Seeing Red (Mass)
Thomas Jefferson's "wall of separation" between church and state has always been a porous one, even after landmark Supreme Court decisions outlawing official prayers in public schools and some (but not all) postings of the Ten Commandments on public property. On Sunday there was a religious service that some see as a minor gap in the wall of separation, but which some First Amendment purists see as sinister. I'm referring to the Red Mass celebrated in St. Matthew's Cathedral the day before the opening of the new term of the U.S. Supreme Court. Five justices – four Catholics, including Chief Justice John G. Roberts Jr., and one Jew, Stephen Breyer -- attended.
The service produced a photo (at right) that I'm sure strict separationists saw as a neo-medieval alliance: Archbishop Donald Wuerl, mitered and holding the crosier or shepherd's crook, and Roberts, who, unlike the archbishop, wasn't wearing his robes.
The Red Mass in Washington is sponsored by a Catholic group and asks for divine guidance for lawyers and public officials. Americans United for Separation of Church and State looks askance at the fusion of the secular and the spiritual, though it conceded in its report on this year's event that Cardinal John P. Foley's sermon "was rather mild when it came to judicial lobbying." Instead of the veiled condemnations of abortion in past Red Mass sermons, Foley said "that all of us may see law as a reflection of God's loving care," and he reminded the justices to follow God's guidance in building a society "of justice, of peace and of love."
As long as the sermons at the Red Mass aren't exercises in lobbying or scolding the Supreme Court justices in attendance, they don't set off a First Amendment alarm for me. I recognize that sincere separationists see it differently, as do old-fashioned anti-Catholics who worry that the court now has a Catholic majority. (No one complained when it had a Protestant majority.) The larger point is that supporters of separation of church and state, a group in which I include myself, need to lighten up and recognize that some breaches in the wall of separation are what lawyers call de minimis -- loose translation: "no big deal."
Would "strict separationists" argue that the justices, Catholic or not, be prohibited from attending Mass altogether or just this Red Mass? How would this prohibition be created and enforced? Would it not "prohibit" the justice's "free exercise" of their religion? The Free Exercise clause is explicitly in the Constitution; the "separation of church and state" is only implicitly there (via the "Establishment" clause, which only disallows the establishment of a state religion). The separation of church and state is a gloss on the Establishment Clause. The Free Exercise clause needs no such gloss. This is not a "de minimis" violation of the Establishment Clause because it is no violation whatsoever. To argue that the Justices "ought" not participate implies that they should not be permitted to do so. This would be a direct and total violation (not de minimis) of the Free Exercise Clause. This needs to be made clear.
Posted by: JPM | October 08, 2008 at 12:49 PM