Think pieces on Justice Scalia, funeral sermons, humility and the First Amendment

The funeral of Justice Antonin Scalia this coming Saturday will be in the grandest possible setting that America offers for a Catholic who spend spent decades on the U.S. Supreme Court -- the Basilica of the National Shrine of the Immaculate Conception.

As noted in a Religion News Service update, Scalia preferred the Latin Mass, so journalists will want to probe into the details of the service as they emerge. Another key question: Will Scalia's son -- Father Paul Scalia of the Catholic Diocese of Arlington (Va.) -- play a major role in the rite?

Who will speak during the funeral Mass? Whoever it is will want to read a fascinating letter that Scalia wrote to the Rev. James C. Goodloe after the funeral of Justice Lewis F. Powell, Jr. The subject: Appropriate sermons at funerals. Reporters will want to note an interesting question about Catholic canon law. Here is that letter:

September 1, 1998
Dr. James C. Goodloe
Grace Covenant Presbyterian Church
1627 Monument Avenue
Richmond, Virginia 23220-2925
Dear Dr. Goodloe:
I looked for you unsuccessfully at the luncheon following the funeral yesterday. I wanted to tell you how reverent and inspiring I found the service that you conducted.
In my aging years, I have attended so many funerals of prominent people that I consider myself a connoisseur of the genre. When the deceased and his family are nonbelievers, of course, there is not much to be said except praise for the departed who is no more. But even in Christian services conducted for deceased Christians , I am surprised at how often eulogy is the centerpiece of the service, rather than (as it was in your church) the Resurrection of Christ, and the eternal life which follows from that. I am told that, in Roman Catholic canon law, encomiums at funeral Masses are not permitted -- though if that is the rule, I have never seen it observed except in the breach. I have always thought there is much to be said for such a prohibition, not only because it spares from embarrassment or dissembling those of us about whom little good can truthfully be said, but also because, even when the deceased was an admirable person -- indeed, especially when the deceased was an admirable person -- praise for his virtues can cause us to forget that we are praying for, and giving thanks for, God’s inexplicable mercy to a sinner. (My goodness, that seems more like a Presbyterian thought than a Catholic one!)
Perhaps the clergymen who conduct relatively secular services are moved by a desire not to offend the nonbelievers in attendance—whose numbers tend to increase in proportion to the prominence of the deceased. What a great mistake. Weddings and funerals (but especially funerals) are the principal occasions left in modern America when you can preach the Good News not just to the faithful, but to those who have never really heard it.
Many thanks, Dr. Goodloe, for a service that did honor to Lewis and homage to God. It was a privilege to sit with your congregation. Best regards.


Next, journalists may want to look over a touching story posted online by Jeffrey Tucker of the Foundation for Economic Education. It's a private story about Scalia that he didn't feel comfortable sharing while Scalia was still a public figure.

Like many of the tributes surfacing at this point, it's an attempt to show that Scalia was a complex man and that his Catholic faith played a crucial role in his public -- and private -- life.

The setting is a Catholic sanctuary within easy walking distance of the U.S. Supreme Court. The service was over and Scalia had lingered in the back pews to pray.

There were no reporters, nobody watching. There was only a woman who had been attending the same services. She had no idea who he was. I was a bystander, and I’m certain he didn’t know I was there.
What was a bit unusual about this woman: she had lashing sores on her face and hands. They were open sores. There was some disease, and not just physically. She behaved strangely, a troubled person that you meet in large cities and quickly walk away from. A person to avoid and certainly never touch.
For whatever reason, she walked up to Justice Scalia, who was alone. He took her hands, though they were full of sores. She leaned in to say something, and she began to cry.
He held her face next to his, and she talked beneath her tears that were now streaming down his suit. He didn’t flinch. He didn’t try to get away. He just held her while she spoke. This lasted for perhaps more than 5 minutes. He closed his eyes while she she spoke, gripping her back with his hand.
He didn’t recoil. He stood there with conviction. And love.
There were no cameras and no other onlookers besides myself, and he had no idea I was there.
Finally she was finished. What he said comforted her, and she gained composure. She pulled away, ready to go. He held her rough, sore-filled hands and had a few final words that I could not hear. He gave her some money. And then she walked away.
And then he walked away, across the green grass, toward the Supreme Court building, alone. He was probably preparing for an afternoon of work.

It's a simple story and precisely the kind one rarely reads in public media.

Reporters: Visit the churches closest to the court and the U.S. Senate and House office buildings. I predict that you will hear some interesting human stories, as I did during my decade teaching on the Hill.


Finally, let me recommend two pieces focusing on Scalia's delicate balancing act when it came to personal faith and secular law.

Note the following, in a short Time essay:

Scalia was no stranger to debate over how he lived as a Catholic and ruled as a justice, especially on matters like abortion and marriage, when his positions aligned with Catholic social doctrine and on the death penalty, where his views diverged. Scalia often made a point of publicly distinguishing between the two parts of his life. ...
Critics at times have argued that Justice Scalia’s Catholicism at times dictated his jurisprudence. “Nothing could be further from the truth,” says Vincent Phillip Muñoz, professor of political science and law at the University of Notre Dame. “His most significant church-state decision, Oregon v. Smith (1990), limited the reach of the First Amendment’s Free Exercise Clause. When criticized by religious conservatives for overturning precedent and narrowing protections for religious freedom, Justice Scalia responded by writing another opinion [in City of Boerne (1997)] supporting his original decision with even more evidence from the founders to support his decision.”

Richard Garnett, a professor of law at the University of Notre Dame, added:

“A big part of his legacy will be how navigated the relationship between one’s deeply held faith commitments and one’s role as a judge,” Garnett, of Notre Dame, says. “For him, the way to navigate that relationship, it was not to compromise one’s religious faith or water it down, it was to distinguish between the legal questions the judge has the power to answer and the religious commitments that a judge has the right to hold, just like all of us do.”

Think about that as you read the stories that try to predict precisely how Scalia would have voted in the upcoming Supreme Court cases involving religious liberty and the First Amendment. At what point would Scalia have decided that Americans can no longer count on state and national legislators to protect their free exercise rights, on matters of religious doctrine? Would Scalia have heard the cries of the Little Sisters of the Poor?

Read the following news analysis by Godbeat veteran Peter Smith of The Pittsburgh Post-Gazette. It starts like this:

Faith-based groups from Western Pennsylvania had been getting primed for a U.S. Supreme Court showdown next month on the parts of Obamacare that they say violate their religious rights.

Now these cases, set for oral arguments on March 23, are among the many things whose fate has been thrown into doubt by the weekend death of Justice Antonin Scalia.

It’s not clear if Justice Scalia’s death will change the outcome on challenges to the Affordable Care Act by the Roman Catholic dioceses of Pittsburgh and Erie and the Presbyterian-affiliated Geneva College of Beaver Falls. These and other plaintiffs are challenging a mandate under which their employees would get contraception coverage.

But even so, the late justice’s fingerprints are already all over these and other challenges.

If you read closely the legal briefs of those challenging the law, you’ll find that they don’t base their claims where you’d expect to find a religious-liberty defense -- on the First Amendment to the U.S. Constitution. Instead, the challengers are largely banking on a federal statue, the 1993 Religious Freedom Restoration Act.

Credit or blame for that goes to Justice Scalia.

Read it all. And stay tuned.

IMAGE: File photo from the Facebook page of the Little Sisters of the Poor.

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