Critical Mass

Catholic Bishops Use Annual Religious Service To Lecture Supreme Court About Controversial Issues

At 10 a.m. on Oct. 3, hundreds of Washingtonians poured into the Cathedral of St. Matthew the Apostle. They were there not to attend just any Sunday mass, but a special service geared toward the most powerful people in the country.

As the ceremony began, Archbishop Donald W. Wuerl personally welcomed Chief Justice John Roberts and Vice President Joe Biden by name. He also warmly thanked Associate Justices Antonin Scalia, Samuel Alito, Stephen Breyer and Clarence Thomas for attending.

“Your presence here,” he said, “is witness to the importance our nation places on the rule of law.”

The Red Mass is held each year in the nation’s capital on the day before the beginning of a new Supreme Court term. The Catholic Diocese sends invitations to all the justices, the president and vice president and other dignitaries.

The Catholic hierarchy claims the mass is merely “a traditional religious observance asking God’s guidance on the administration of justice, and for the Nation.” But for church-state separationists, the service is an unnecessary mixing of religion and government, law and sectarian doctrine.

“The justices aren’t there to just sing songs and shake people’s hands,” said Americans United Executive Director Barry W. Lynn. “They are invited specifically to hear how members of the church hierarchy feel about certain social issues of the day.”

The Red Mass, named for the red vestments traditionally worn by the officiating clergy, was first organized in Washington in the early 1950s, when the Catholic bishops were angry with the Supreme Court. In 1947, the justices had ruled unanimously in the landmark Everson v. Board of Education case that the U.S. Constitution provides for a clear separation between religion and government.

The following year, the high court reiterated this separationist doctrine and struck down a “released-time” religious instruction program in the Champaign, Ill., public schools. The bishops soon after issued a statement that called church-state separation “the shibboleth of doctrinaire secularism.”

Since then, the bishops have used the Red Mass to cajole the justices toward the church’s positions on various issues. The bishops began by lobbying for government aid to parochial schools, then extended the sermons to oppose abortion. In recent years, opposition to gay marriage has emerged.

But the bishops’ tactics have sometimes alienated members of the high court.

A new biography of the late Justice William Brennan recounts a Red Mass following the two major school-prayer decisions of the 1960s – Engel v. Vitale and Abington School District v. Schempp. Brennan, a Catholic, wrote a concurring opinion in Schempp to explain why the court struck down the reading of Bible passages at the start of each public school day.

In Justice Brennan: Liberal Champion, authors Seth Stern and Stephen Wermiel say Brennan’s hope was to ease the church’s anger over the issue. But at the subsequent Red Mass in Washington, he and the other justices were publicly scolded by Bishop John J. Russell.

“Thank God, our Constitution forbids the State’s setting up or favoring any particular form of religion,” Russell said. “But that separation of church and state, which we all cherish in our country, never meant the divorce of government from religion or the separation of law from morality.”

Brennan’s wife, Marjorie, who was also in attendance, was deeply offended by the bishop’s public chastisement. As she kissed the bishop’s ring, she blurted out, “You’re not fit for my husband or me to kiss your ring!”

Brennan and his wife are not the only attendees who have been put off by the church’s rhetoric over sensitive issues. Justice Ruth Bader Ginsburg was also appalled after attending the Red Mass and discontinued her attendance at the event.

In an interview with Abigail Pogrebin, author of Stars of David: Prominent Jews Talk about Being Jewish, Ginsburg said, “I went one year, and I will never go again, because this sermon was outrageously anti-abortion. Even the Scalias – although they’re much of that persuasion – were embarrassed for me.”

In recent years, possibly because of Ginsburg’s reaction and negative media attention, the Red Mass sermons have become much less direct, with clergy using more guarded language to cloak the underlying message.

Archbishop J. Augustine Di Noia followed that approach in this year’s homily.

“Positive law,” he said, “rests on certain principles the knowledge of which constitutes nothing less than participation in the divine law itself: the pursuit of the common good through respect for the natural law, the dignity of the human person, the inviolability of innocent life from conception to natural death, the sanctity of marriage, justice for the poor, protection of minors, and so on.”

Di Noia, an American who now works at the Vatican, argued that “the democratic state does not so much confer the most fundamental human rights and the duties of citizenship as acknowledge their existence and source in a power beyond the state, namely in God himself.”

The archbishop criticized any move toward what he called “exclusive humanism” as a basis for government.

“[T]his exclusive humanism,” he said, “has been exposed as an anti-humanism of the most radical kind. Man without God is not more free but surely in greater danger.” He added that “the eclipse of God leads not to greater human liberation but to the most dire human peril. That innocent human life is now so broadly under threat has seemed to many of us one of the many signs of this growing peril.”

References to the “sanctity of marriage” and “innocent human life” are likely references to the church’s stand against civil marriage for same-sex couples and against legal abortion.

These kinds of messages were delivered more blatantly by speakers at Red Masses of the past.

In 1986, for example, Cardinal James A. Hickey sharply criticized the 1973 Roe v. Wade decision that struck down laws banning abortions.

In 1989, Archbishop Anthony J. Bevilacqua of Philadelphia launched a direct attack on American church-state separation.

“In spite of attempts to separate one from the other, to put an impenetrable barrier between,” said the archbishop, “[Church and State] knew from the beginning that they needed each other, and along the way they became even more convinced of this truth.

“[I]n the last three decades,” Bevilacqua complained, “it is the perception of many that church and state, religion and law, are adversaries instead of companions, enemies instead of friends, antagonists instead of partners. In their quest for their respective kingdoms, church and state are seen as walking with an inviolable, impenetrable, and towering wall between them.

“This opposition,” Bevilacqua concluded, “this impregnable wall between two friends traveling the road of our American experiment cannot endure much longer. If it does, both will suffer and crisis will be upon us.”

Bevilacqua called on the four justices in the audience to return to “religiously based moral values.”

Church officials today claim they do not try to persuade anyone in attendance at the Red Mass. Wuerl told CNN that the event is just an opportunity to put aside partisanship and troubles.

“[Americans have] been very careful about…not allowing any one tradition or church to become the state church,” he said. “But from the very beginning, we’ve always said we need to hear the voice of faith in all the discussion that is a part of determining what we want to do.”
Despite the church hierarchy’s claims, the Red Mass has always been a church-state concern. When it comes to difficult legal questions, it’s hard to know how much of a role faith will play in the justices’ decisions, if at all, said AU’s Lynn.

“We worry about this kind of undue influence,” said Lynn. “They might hear something that could become a lingering factor in their decisions.”