National Catholic Register

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Red Mass Marks New Court Term

Redefinition of Marriage Cases Prominent

BY Joan Frawley Desmond

Senior Editor

October 21-November 3, 2012 Issue | Posted 10/16/12 at 12:09 PM

 

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 press time, 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.

 

DOMA Showdown

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 blog, 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, said.

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. 

 

Other Issues

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 (see sidebar) 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.’"

 

‘We Are Instruments in the Hands of the Lord’

The following text is the homily that was given by Archbishop Timothy Broglio of the Archdiocese for the Military Services at the 60th annual "Red Mass" in Washington on Sept. 30. Each year, the Mass is held the day before the Supreme Court’s new term begins to ask God’s guidance upon justices, judges, attorneys and senior government officials.

Cardinal Donald Wuerl, the archbishop of Washington, was the principal celebrant at the Mass at the Cathedral of St. Matthew the Apostle.

The author A.J. Cronin told the story of a district nurse he knew during the time he practiced medicine. She covered a 10-mile district by herself, was extremely capable and generous with her time. She was patient and cheerful. Her salary was insignificant, and late one night, after a particularly strenuous day, Dr. Cronin suggested that she demand a higher salary. "God knows you are worth it," he added. Her reply was classic: "If God knows I’m worth it, that is all that matters to me" [as recounted in Father Richard Beyer’s The Catholic Heart Day by Day].

Indeed, if we live and work with the confidence that we are inserted into the Lord’s plan, then that is all that matters. Is that not what the word of God tells us this morning at the 60th annual "Red Mass," as the readings invite us to be open to the Spirit of God, beg his blessing on a new judicial year, and strive to be instruments of a New Evangelization?

The passage from the Book of Numbers is fascinating. The Lord has guided the chosen people out of Egypt and through the desert, but there is a structure and a system to govern them. Seventy elders are chosen to help Moses with the task of judging, but Eldad and Medad miss the installation. Still, they receive the gift and the mission.

To Joshua’s concern about a possible challenge to Moses’ leadership, he explains that the Divine gift is not limited by place, but attached to the person, wherever he or she might be found. The sovereign liberty of God determines how he will act, and that obliges the believer of all times to question the temptation to close God within the narrow spaces of a justice which assigns itself the task of protecting the presumed rights of God while trampling upon those of his or her brothers and sisters.

Of course, you and I live in a world of forms, IDs, procedures and verification. One commentator on this passage suggested that in the near future in order to die you will have to fill out the appropriate form, and perhaps a diligent clerk will tell you to save the receipt to present to St. Peter at the gates of paradise.

Moses’ wish is the better course: "Would that all the people of the Lord were prophets!" His invitation is to look for the evidence of the good, of truth and of the beautiful in another. There is not a monopoly of the Spirit, but, rather, an abundance of gifts to be used to build up the body of Christ.

How appropriate it is to speak about that abundance on Sept. 30, when we would normally celebrate St. Jerome, a learned doctor of the Church, who was first charged to translate the Bible from its original languages to the vernacular Latin. His talents were used to make the word of God accessible to the ordinary folk.

We remember him and remain inspired by his quest for learning, as we gather as a community of faith to beg an abundance of blessings upon the women and men of our judiciary and the legal profession.

It is a moment to pause and pray for those who serve our country and foster justice for all. We know that a believing community engages in prayer for the needs of all, but especially for those who face arduous tasks.

Indeed: "Justice is radically intolerant of injustice; justice seeks out injustice to destroy it. To emphasize security at the expense of eradicating injustice creates a fool’s paradise" [as Archbishop Robert Dwyer said at the Red Mass in 1957]. The Romans put it more succinctly: "Justitia non novit patrem nec matrem; solum veritatem spectat justitia" — justice knows neither father nor mother; justice looks to the truth alone.

For that reason, we are here primarily to pray with you and for you as you execute the daunting task assigned to you at various levels. We beg a blessing for all of you and for all of those who assist you in this important ministry. We invoke the only Just One so that he might inspire all that you do. We recognize "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" [as Archbishop Daniel Pilarczyk said at the Red Mass in 1988].

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. 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.

So we pray for all of those gathered here, that they might welcome the strength of the Holy Spirit and the interior dynamism with which he fills our hearts. We do so just before the beginning of the Year of Faith given to us by the Holy Father, because there is a "need to rediscover the journey of faith, so as to shed ever clearer light on the joy and renewed enthusiasm of the encounter with Christ" [Pope Benedict XVI, Porta Fidei].

The mission is always audacious, but it is possible with the gifts of the Holy Spirit. We are instruments in the hands of the Lord, and so we pray to be ever open to his presence. The message is filled with hope: not only for eternal life, but also for the graces necessary so that our lives are truly noble, worthy of God and of the vocation he has given us.

We speak so often of the New Evangelization because we recognize that we must be its instruments in all that we do. The faith we hold in our hearts must motivate the decisions, the words and the commitment of our everyday existence. That existence is extraordinary, because it is infused with divine grace.

St. Thomas More said that he died the good servant of the King but the faithful servant of God first. We, too, are faithful citizens only when we embrace the fullness of the principles of our faith and allow them to enliven and fortify our contributions to the life of the nation. Or, to draw on the eloquence of the archbishop of Baltimore in a paraphrase: "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" [Archbishop William Lori’s installation Mass homily].

There is so much that we bring to the discourse of our society. Our faith expresses itself in worship, but also in witness. From the beginning, the Church has been active in society to make a contribution, especially to the care of the poor, but also to education. The first universities grew out of the monasteries.

We cannot separate who we are from how we live. To quote Father Alfred Delp, a Jesuit condemned to death by the Nazis, "Futility or ineffectiveness do not dispense one from speaking the truth, declaring what is right and just. … Woe if the prophets are mute out of fear that their word might not be heeded" [as quoted in Magnificat, Vol. 14, 2012].

I am reminded of my first year as a seminarian in Rome. An important 19th-century Justice Department building was closed because it was unsafe. It seemed to be sinking into the ground. Yet the Colosseum, Pantheon and the ruins of the Roman Forum were all still standing and could be visited. It was a good reminder that not everything contemporary is good — and that stable foundations are essential. Our society must also rest on stable, clear foundations. Otherwise, we run the risk of sinking into the mire of one popular sound bite after another.

Last January, the Holy Father recalled for the bishops of this region that consensus about the nature of reality and the moral good and the conditions for human flourishing are at the heart of every culture: "In America, that consensus, as enshrined in your nation’s founding documents, was grounded in a worldview shaped not only by faith, but a commitment to certain ethical principles deriving from nature and nature’s God."

Cronin’s nurse knew that as well. She recognized 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" (John 14:23).