Another Opening, Another Show: The Red Mass 2014

Editor’s note:  Professor Arkes wrote this column Sunday afternoon. Regrettably, he proved prophetic. He remarks below that, in recent years, the Red Mass has become a Harbinger of Hopes Disappointed, of sadder days to come. Yesterday morning, the Supreme Court declined to hear the cases installing same-sex marriage in several States. According to reports, there wasnt a single dissenting vote in opposition from the conservative judges, even from those who had resisted this revolution in our laws and institutions. — Robert Royal

The first Monday in October: The beginning of the new year, the new term for the Supreme Court of the United States, and the first day of oral arguments. But the Sunday before that first Monday is the day, in Washington, for the Red Mass, the Mass heard before the opening of the courts of justice.

The tradition runs back to the Middle Ages, to Masses held in Rome, Paris, and London. The “Red” comes in part from the color of vestments worn by clergy – in part, also, from the red robes worn by royal judges.

But the main figures, drawing the chief attention at the Red Mass in Washington, have been the members of the Supreme Court.

The Chief Justice, John Roberts, usually comes, as do Justices Scalia, Thomas, Alito, and Kennedy. But one doesn’t have to be Catholic for this affair, and it was taken as a fine gesture when Justices Steven Breyer and Elena Kagan appeared. The presence of Jewish justices could be taken as a compliment, while the presence a few years ago of Vice President Biden produced winces all around.

Yet more than that: placards carried by Catholic protestors, called out Biden for his passionate defense of abortion rights – his grand gestures of contempt for Catholic teaching, carried out with a combination of high flourish and sophomoric ignorance.

It was probably not the protestors who kept him from coming again, for Mr. Biden has long delivered himself from any crippling sense of embarrassment. But in absenting himself he inadvertently rendered his most notable service to the Catholics who gather at the lovely church of St. Matthews on M Street: He spared the rest of us the need to go through the metal detectors that are suddenly propped up outside the church when a president or vice-president is scheduled to come.

Even the presence of Joe Biden could not have impaired the “lift” of this occasion: the loveliness of the music, in that stunning church, with the reunion of friends – lawyers, judges, students, even non-lawyers and pious kibitzers – and all of us coming together with some of those Catholic jurists with whom we still invest our hopes.

In the aftermath last year of the Hobby Lobby case, one federal judge, Richard Kopf, denounced that decision as one produced by “five male justices of the Supreme Court, who are all members of the Catholic faith.”  The offense imputed to these Catholic judges is that they shielded a businessman from the obligation to purchase abortifacients for his employees when he bore deep moral objections to abortion.

         Justices Scalia and Thomas leaving the Red Mass on Sunday

“To the average person,” said Judge Kopf, “the result looks stupid and smells worse.”  No, the average person is more likely to wonder why women cannot afford contraceptives and abortifacients for themselves. Or why the provision of these devices should become the obligation of an employer – and  why they should be forced on a generous employer who has moral objections to them.

A small trip down memory lane may bring back Judge Kopf as the federal judge who treated with contempt the work of the legislators in Nebraska in seeking to forbid the grisly procedure named “partial-birth abortion.”  In that procedure the head of the child was punctured and its brains sucked out. But Judge Kopf couldn’t see how this procedure could be distinguished from others, quite beyond challenge.

For other abortions “routinely ‘deliberately and intentionally’ deliver ‘vaginally’ a ‘substantial portion’ of a living fetus in order to kill it.”   In other words, Dismemberment R Us. That is what abortion involves,  all thoroughly sustained by the Constitution, in the eyes of Judge Kopf, and all apparently beyond the reproach, except from Catholic judges appointed by a Republican president.

Judge Kopf had been appointed by a Republican president (George H. W. Bush) and he surely must have known that it was the Catholic Justice Kennedy whose defection in 1992  made the critical difference in preserving Roe v Wade and that “right to abortion.”  That same Justice Kennedy has also been the decisive vote – and the main engine – in arming judges with the lever for installing same-sex marriage in the separate States.

In fact, to rework an old line, it could be said that holding the Red Mass now in Washington and praying for the Supreme Court – and doing it without the presence of Justice Kennedy – would be rather like playing Hamlet. . .without the first grave-digger.

Praying for Justice Kennedy could indeed become the main work requiring and justifying the need for the Mass. The Mass used to be, for some of us, the occasion to stir hope for the New Year. But the Mass has become by now the Harbinger of Hopes Disappointed, of sadder days to come.

And yet, the setting was so lovely, the music so stirring, that hopes could not be entirely quashed and buoyancy stilled. The service ended with the great hymn, “O Spirit, All Embracing,” remembered more often for its name as a Protestant hymn, “O God, Beyond All Praising.” 

And something in St. Matthews makes us hear the words of the Star Spangled Banner as though for the first time, and weep for a country disappearing. We also heard, in closing, that second verse, rarely heard, of “America, the Beautiful”:  America, America God mend thine every flaw/Confirm thy soul in self-control/Thy liberty in law.”

NOTE: Be sure to read Robert Royals Synod Report. Today: Synod Day 2: “Openness,” Leaks, and Fear of Frankness 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
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Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.