Red Mass Marks New, Unpredictable U.S. Supreme Court Term
Definition of marriage cases could highlight this sitting.
BY JOAN FRAWLEY DESMOND
| Posted 10/1/12 at 6:24 AM
WASHINGTON — As the U.S. Supreme Court prepared for a new term, Archbishop Timothy Broglio of the Archdiocese for the Military Services exhorted members of the high court to be guided by the Holy Spirit and moral norms that transcend political considerations.
“We have heard the question posed by the apostles just before the Lord Jesus ascended into heaven. Their vision was of a political reality alone: the end of Roman rule and the independence of the chosen people,” stated Archbishop Broglio during his Sept. 30 homily at the annual Red Mass, traditionally held at the Cathedral of St. Matthew the Apostle the day before the new term starts.
“It was a vision firmly anchored in this world alone. They would need the gift of the Holy Spirit so as to purify their goals, understand their mission correctly and be able to accomplish it.”
Addressing a congregation that included the chief celebrant Cardinal Donald Wuerl of Washington, six of the nine justices on the Supreme Court, led by Chief Justice John Roberts Jr., and a slew of lawmakers, the archbishop called on the nation’s public servants to allow their faith to guide their deliberations.
“We must be loyal Americans by being bold and courageous men and women of faith and conviction regarding the ethical norms that guide society and its choices,” he said, paraphrasing a passage from a homily by Archbishop William Lori of Baltimore.
There are now six Catholics on the Supreme Court: Chief Justice Roberts and associate Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, Sonia Sotomayor and Clarence Thomas.
During its most recent term, the court drew intense public scrutiny and partisan attacks as it reviewed legal challenges to the Patient Protection and Affordable Care Act; it upheld the health law in a controversial ruling on June 28.
Last January, in a closely watched First Amendment case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the court unanimously upheld the “ministerial exception” doctrine, which bars government interference in the appointment of religious ministers.
The U.S. Catholic bishops applauded the Hosanna Tabor decision. But the Supreme Court’s ruling on the Affordable Care Act meant Church leaders must press ahead with legal challenges to the federal contraception mandate, which is authorized under the health law.
At present, the high court’s October 2012 docket includes 32 cases set for oral argument over the next two months. There are civil liberty, equal protection and criminal cases.
First Amendment scholars haven’t flagged any of those cases, but lower-court decisions and congressional action could change the mix. Experts also predict the court will soon agree to hear appeals of lower-court decisions against the federal Defense of Marriage Act (DOMA) and possibly review the court decision that invalidated California’s Proposition 8, which in 2008 amended the state constitution to affirm “only marriage between a man and a woman is valid or recognized in California.”
“Most of the DOMA cases address the same core issue: Can Congress define marriage for federal purposes as the union of a man and a woman?” noted Jim Campbell, legal counsel for the Alliance Defending Freedom, who said the court was likely to review at least one DOMA case.
"I think that it is very likely that the court will grant review of rulings striking down DOMA and Prop. 8. It would be grossly irresponsible of the court not to do so," said Ed Whelan, president of the Ethics and Public Policy Center, a Washington-based think tank.
An expert on constitutional law who blogs at National Review Online’s Bench Memos, Whelan has predicted that if the court rules against DOMA and Prop. 8 it risks igniting a “decades-long firestorm that will make Roe v. Wade’s disruption of American politics appear minor by comparison.”
In a Sept. 26 post, Whelan said the court should “affirm the proposition that the Constitution does not speak to the question of same-sex 'marriage,' but that it (the Constitution) instead leaves that matter to the political processes for decision.”
Richard Garnett, a constitutional scholar at the University of Notre Dame, agrees that pressure is building on the court to address the “question of whether states are required by the Constitution to expand the definition of civil ‘marriage’ to include same-sex couples.”
Earlier this year, the Ninth Circuit ruled against Prop. 8, and Garnett thinks the high court will likely review that decision “because — generally speaking — if a federal court invalidates a state law on federal constitutional grounds that state can make a strong case that it is entitled to review by the Supreme Court,” said Garnett, who blogs at Mirror of Justice.
The Obama administration confirmed in February 2011 that it would no longer defend DOMA. Speaker of the House John Boehner quickly pledged that Congress would take up that responsibility, and Paul Clement, the former U.S. solicitor general in the Bush administration, was hired to defend the federal law.
The U.S. bishops are watching the DOMA cases carefully, not only because a redefinition of marriage in federal law would undermine an essential social institution, but also because it would trigger legal challenges designed to halt the operations of Catholic social agencies and educational institutions that adhere to Church teaching on marriage.
"If the definition of marriage is changed at the federal level, religious freedom will really be threatened," Archbishop Lori of Baltimore, the chairman of the U.S.Conference of Catholic Bishops' Ad Hoc Committee on Religious Liberty, told the Register.
The timeline for one or more DOMA cases moving into the high court’s docket is still unclear, but Garnett speculated that the court might even “accept all of these cases at once.”
Once a federal court “invalidates, on constitutional grounds, an act of Congress — even an act that the president has declined to defend — there is a strong argument that Congress, as a co-equal branch of government, is entitled to review of that invalidation by the Supreme Court,” he explained.
But while the pressure is on to have the court decide DOMA’s fate, experts don’t expect any straightforward religious-liberty cases like Hosanna Tabor to appear in the court’s docket this term.
“From a First Amendment point of view, this could be a quiet term,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty.
“Theoretically, an HHS mandate case is possible, but these cases still have a ways to go. There are 30-some cases, but they are long shots,” said Rienzi, who is a law professor at The Catholic University of America. He noted the government had moved to dismiss several legal challenges to the federal mandate, arguing that plaintiffs’ concerns would be addressed in its proposed rulemaking.
For the moment, however, constitutional experts like Richard Garnett say they will be following the court's deliberations on a number of “controversial and interesting questions," including a challenge to the Voting Rights Act of 1965 and an affirmative action case, Fisher v. the University of Texas.
“Add this to the fact that, if President Obama is re-elected, at least one justice will almost certainly resign and be replaced this term, and you have an interesting year coming up,” Garnett concluded.
At the Red Mass, Archbishop Broglio’s homily seemed designed to hold such political dramas at bay, as he repeated the ancient Roman maxim, “Justice knows neither father nor mother; justice looks to the truth alone,” and told the congregation that “those who involve themselves with human law are doing God’s work. You are called to be involved with the same matters with which the Lord God is involved in relationship with his creation.”
Quoting from John 14:23, he asked the justices to remember that “the ultimate value was the eternal judgment rendered by almighty God. ‘Whoever loves me will keep my word, and my Father will love him, and we will come to him and make our dwelling with him.’”
Joan Frawley Desmond is the Register’s senior editor.
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