Justice Antonin Scalia

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Justice Amy Coney Barrett could soon prove crucial on legal fights over religious vs. LGBTQ rights 

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Senators, other pols and the news media are agog this week over the impact a Supreme Court Justice Amy Coney Barrett, age 48, might have on abortion law long-term and -- immediately -- disputes over the election results and a challenge to Obamacare that comes up for oral arguments November 10.

But reporters on the politics, law or religion beats shouldn't ignore Barrett's potential impact on the continual struggles between religious freedom claims under the Bill of Rights versus LGBTQ rights the Court established in its 2015 Obergefell ruling that legalized same-sex marriage. Oral arguments in a crucial test case, Fulton v. City of Philadelphia [19-123], will occur the day after Election Day — when journalists will be preoccupied with furious tabulation of absentee ballots.

At issue is whether Philadelphia violated Constitutional religious freedom in 2018 by halting the longstanding work of Catholic Social Services in the city's foster care system because church teaching doesn't allow placement of children with same-sex couples.

Such disputes first won media attention when Massachusetts legalized gay marriage and in 2006 shut down the adoption service of Boston Catholic Charities. which did not place children with same-sex couples. A prescient 2006 Weekly Standard piece by marriage traditionalist Maggie Gallagher explored the broader implications for religious agencies and colleges in free speech, freedom of association, employment law and tax exemption.

The Becket Fund, which represents the Fulton plaintiffs, produced this useful 2008 anthology covering all sides on these issues.

On October 5, the legal jousting heated up when Justice Clarence Thomas, joined by Justice Samuel Alito, issued a protest found within this memo (.pdf here).They dissented on Obergefell, but their chief concern now is that the court's ambiguity "continues to have ruinous consequences for religious liberty" that only SCOTUS itself can and must now remedy. A two-line Slate.com. headline typified reactions of the cultural Left:

Two Supreme Court Justices Just Put Marriage Equality on the Chopping Block

LGBT rights were already in jeopardy. If Amy Coney Barrett gets confirmed, they're likely doomed


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Brace for SCOTUS wars: Three big questions people keep asking about Amy Coney Barrett's faith

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It’s been two weeks since President Donald Trump officially nominated Amy Coney Barrett to the Supreme Court. Right on cue, Barrett’s Catholic faith and religious life became the focal point of news coverage, particularly by the secular press.

What has ensued is an exercise among journalists — particularly in elite newsrooms — to question Barrett’s fitness for the lifetime position, particularly because of her religious beliefs.

For many people in elite zip codes, this is life-and-death territory, since Barrett would give the Supreme Court a solid 6-3 conservative majority on some issues.

The nomination — taking place just weeks before the Nov. 3 presidential election — has already triggered a nasty tug-of-war between Republicans and Democrats. Senate Majority Leader Mitch McConnell has pledged to hold a vote, leaving Democrats with very few options to halt it. In retaliation, Democrats have threatened to pack the Supreme Court with as many as 15 members (from the current nine) should Joe Biden win the race and his party gain a Senate majority in 2021.

Barrett, 48, currently serves on the Seventh Circuit in Chicago, a position she attained after being nominated to the bench by Trump. Barrett, who also teaches at Notre Dame Law School, was one of Trump’s finalists for the Supreme Court two years ago, but he instead went with Brett Kavanaugh.

As Election Day draws near in an atmosphere of near chaos, both the Trump and Biden campaigns have made appeals to communities of faith — particularly Catholic voters in the Rust Belt states of Ohio and Pennsylvania — by highlighting issues they believe resonate with them. In Pennsylvania, Biden has seen his lead widen in recent weeks. It remains a key battleground state with a very large Catholic voting bloc that Trump needs to win.

Overall, Catholics, according to recent polling, favor Biden — but traditional Catholics do plan to join evangelicals and vote for the president. Trump’s pick will certainly serve as an overture to faith voters like evangelicals and a segment of white Catholics who tend to be politically conservative.

With religion so crucial to this campaign season, here are three things you need to know about Barrett’s faith:


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Conservative Catholics could be energized if Trump picks Amy Coney Barrett for SCOTUS

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It was back in January — eons ago in the context of 2020 news — that Donald Trump became the first U.S. president to appear at the annual March for Life. At last month’s Republican National Convention, a conservative nun named Sister Deirdre “Dede” Byrne called Trump “the most pro-life president that this nation has ever had.”

This brings us to now and the death of Supreme Court Justice Ruth Bader Ginsburg.

The expectation is that Trump will put forth a nominee — a shortlist that sees Judge Amy Coney Barrett as the frontrunner — that has a record of being opposed to America’s post-Roe v. Wade abortion laws. That will inflame activists on the cultural left and exacerbate tensions in this country following the pandemic and protests surrounding racial injustice.

The focus on abortion will, once again, challenge journalists to produce balanced, accurate, on-the-record material describing the religious beliefs of the potential nominees.

How will this affect the final weeks of the 2020 campaign? Attacks from some Democrats on Barrett during the confirmation process, should she be the nominee, could very well help Trump with some Catholic voters. In turn, attacks on Barrett would hurt Biden, a Catholic trying to get Catholic swing voters in Pennsylvania and Ohio to vote for him. If anything, anti-Catholic attacks against Barrett could both galvanize GOP voters and tip some undecided Catholic voters across the Rust Belt toward Trump.

The 48-year-old Barrett, a native of New Orleans, and her husband Jesse Barrett, a former prosecutor, have seven children, including two adopted from Haiti and one with Down syndrome. Barrett learned of her son’s diagnosis during a prenatal test, but decided to have the baby. Aside from being a federal judge, Barrett teaches law at Notre Dame. She is a former law clerk to the late Justice Antonin Scalia, with The New York Times reporting that her fellow clerks saying she was his favorite. She graduated from Notre Dame Law School and joined the faculty in 2002.

If nominated and confirmed, Barrett would be the youngest member of the Supreme Court in history and, thus, could help shape many future decisions.


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Podcast: Will preachers fighting 'shelter in place' rules create a church-state disaster?

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For several weeks now, churchgoers — and journalists — have been waiting to see what would happen at Easter, Passover and Ramadan.wisely,

We don’t have all the answers, yet. But it’s clear that in the overwhelming majority of cases, Christians in North America and around the world will be observing Holy Week and Easter at home, watching small teams of clergy and musicians celebrate the holiest rites of the Christian year while striving to follow the fine details of “shelter in place” orders.

In my own church — Eastern Orthodoxy — we will celebrate Pascha a week after Western Easter. Clergy in the Diocese of the South (Orthodox Church in America) just learned that our Archbishop Alexander has (I believe) set strict standards (.pdf here) for his parishes all across the Sunbelt. People will stay home through it all — Holy Week and Pascha — watching five-person teams of clergy and chanters do as many of the long, ancient rites as they can. Click here for Rod Dreher’s poignant post on that, which includes:

Did you know that the Church of the Holy Sepulcher in Jerusalem, the one built over the site where Jesus died, was buried, and was resurrected, has been closed for the first time since … the Black Plague, in the 14th century? The right way to see this is that we Orthodox Christians are being asked to make an absolutely extraordinary sacrifice for the life of the world — so that this plague which has killed, and will kill, so many, and will have reduced so many to poverty, can be defeated. As the old-school Catholics like to say about sacrifice, we should, “offer it up” as an extreme sharing of Christ’s passion. We will know in a way we never have the meaning of the crucified Jesus’s words, “My God, my God, why have you forsaken me?”

All of that loomed in the background as “Crossroads” host Todd Wilken and I recorded this week’s podcast (click here to tune that in).

For the most part, we tried to look past that story and down the road at the long-term legal implications of other religion-beat headlines caused by the coronavirus crisis.

I am referring to the small number of evangelical Protestants who have been rebelling against government orders to “shelter in place.” Julia Duin and I wrote about the coverage of some of these cases here (“About Rodney Howard-Browne and what happens to Easter, Passover and the hajj during a plague“) and then here (“All megachurches are not alike: NYTimes noted Howard-Browne arrest, but didn't leave it at that“).

What happens if — as some are planning — clashes between a few churches and state officials end up in court?


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Gorsuch and the big scare-quote religion stuff? So far, little light shed on Supreme Court pick

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What reporters have missed about Judge Neil Gorsuch, the President’s nominee for the Supreme Court, is that the Episcopal parish he attends in downtown Boulder is headed by a female priest.

Think about that for a moment. If this man is the frightening conservative that some on the Left are already alleging him to be, there’s no way he’d be Episcopalian, much less at a woman-priested church. It will be interesting to see if the Episcopal hierarchy issues any kind of formal reaction to this nomination. Watch this space: The Episcopal News Service.

The Episcopal Church, for anyone who’s not been following religion trends in recent decades, has been careening to the theological and cultural left for years and its membership statistics show it. Thousands have left TEC and joined alternative Anglican churches.

Not so this judge. A church in bluest of blue Boulder is not going to be a conservative hideout and this article notes that Gorsuch’s parish is pretty liberal. The place is St. John's, Boulder and for you trivia experts out there, it's the same church that JonBenét Ramsey's family attended. A Google search shows there’s an Anglican church in Boulder that the Gorsuch family could be attending if they so desired.

So, the fact that the judge and his family has remained at St. John’s says something.

So far, the mainstream press has missed all that and concentrated on his court rulings on hot-button topics, the kinds of subjects often framed in scare quotes. For example, while his precise views on abortion remain a mystery, he has written extensively on euthanasia -- producing a book on the topic ("The Future of Assisted Suicide and Euthanasia").

What the New York Times ran with is typical:

While he has not written extensively on several issues of importance to many conservatives, including gun control and gay rights, Judge Gorsuch has taken strong stands in favor of religious freedom, earning him admiration from the right.


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New Year's observations on matters religion writers will want to be watching (Part I)

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The Religion Guy’s thoughts about religion-what beat specialists may want to anticipate for 2017 once the New Year has been properly toasted are as follows: Much of the action will circle around LGBTQ-related controversies. I am sure that is not a surprise.

As throughout 2016, all things Donald Trump will dominate the news. Due to the ongoing conflict between gay rights and religious-liberty assertions there’s keen interest in the unpredictable new president’s Supreme Court choice to succeed the late Justice Antonin Scalia. Justice Samuel Alito recently lamented the repression of free speech, particularly on college campuses, but warned that “freedom of religion is in even greater danger.”

Again, this is not a big surprise.

Alito and Scalia uttered that same warning as dissenters when the court majority dodged religious rights in its 2015 ruling legalizing gay marriage. A new justice in Scalia’s mold won’t shift the Court’s balance of power. The bigger ruckus comes later, with a replacement for swing voter Anthony Kennedy (age 80), or liberals Ruth Bader Ginsberg (83) or Stephen Breyer (78). 
Also vital, though often neglected by the media, will be Trump’s nominees for lower federal courts that will decide most of these First Amendment disputes.

Though this is often portrayed in the press as a mere concern of Catholics and white evangelicals, 27 African-American Protestant leaders rallied by the Seymour Institute sent a notable letter to candidate Hillary Clinton. Alongside conventional black concerns on matters like education and justice, the clergy charged that gay activists want to “criminalize our biblical texts as hate speech,” and accused Democrats of “open contempt for religious freedom.”


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Covering the funeral of Antonin Scalia, while ignoring what the Mass was really about

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In the end, here was the question that loomed over the funeral Mass of U.S. Supreme Court Justice Antonin Scalia: Was this a political event? The answer is easy to find, simply by glancing at the coverage offered by several elite newsrooms.

That answer: Of course this was a political event. What would the alternative be? Actually covering the words and symbols of the event itself, which in this case would have led to news reports containing the doctrines at the heart of the Christian faith?

That would never do. That wouldn't be "real," since Scalia was clearly a powerful player in the world of law and politics -- the "real" world.

You know that this inside-the-Beltway prejudice against religious faith being "real" was on the mind of Father Paul Scalia, the preacher and celebrant. As one of the justice's sons, you know that he was more than aware of his father's convictions about the content of funeral rites and the sermons preached in them (and thus mentioned this subject in his funeral sermon). Click here for Antonin Scalia's thoughts on that.

Readers had a chance to know what the family was thinking because of the opening lines of Father Scalia's sermon, which directly challenged the Beltway mindset. If anyone saw these words reported in a mainstream news story, please let me know. I know that this is long. That's the point:

We are gathered here because of one man. A man known personally to many of us, known only by reputation to even more, a man loved by many, scorned by others, a man known for great controversy, and for great compassion. That man, of course, is Jesus of Nazareth. It is He whom we proclaim. Jesus Christ, son of the Father, born of the Virgin Mary, crucified, buried, risen, seated at the right hand of the Father. It is because of Him, because of His life, death and resurrection that we do not mourn as those who have no hope, but in confidence we commend Antonin Scalia to the mercy of God.


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OMg! OMg! Journalists continue to ignore the Associated Press Stylebook!

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Yes, here we go again.

I was interested in this Syracuse, N.Y., dateline story already, because of its obvious religious overtones -- both in terms of the scientist in the lede and the metaphysical, to say the least, nature of the issues involved in this breakthrough.

Then, later on, we had -- OMG! -- that whole revisionist Associated Press Stylebook thing going on again. But let's be patient and look at the actual story for just a second:

SYRACUSE, N.Y. -- Peter Saulson sat in a synagogue for the Jewish new year Sept. 14, cut off from the rest of the world. He had turned off his cell phone and computer to observe the holiday.
Saulson was oblivious that his email inbox had started exploding around 7 a.m. with 75 messages that carried the same subject line: "Very interesting event."
Saulson wouldn't get word until that night, when he finally turned his computer back on, that he was on the verge of culminating his life's work, and the work of a thousand other scientists across the world.
That was the day two massive telescopes, one in Louisiana and the other in the state of Washington, detected for the first time gravitational waves from the collision of two black holes from 1.3 billion years ago.

I like the fact that this story opens in a synagogue, where one must assume that folks would upper-case the "G" in "God," as well as the "E" in Einstein, as in Albert, if for different reasons under Associated Press style.


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Looking ahead to Justice Scalia's funeral, with a flashback to wisdom from his son, the priest

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Looking ahead to Justice Scalia's funeral, with a flashback to wisdom from his son, the priest

So what mattered the most in the end, the contents of Justice Antonin Scalia's heart or his head?

Where did the work of the Catholic believer (some journalists called him a "fundamentalist") end and the fierce advocate of Constitutional "originalism" begin?

At mid-week, when host Todd Wilken and I recorded or next "Crossroads" podcast -- click here to tune that in -- I was still wrestling with the following quote from Notre Dame University law professor Richard Garnett, which was featured in a Time magazine think piece about Scalia's impact on American law and culture.

“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.”

In other words, something like this? "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's." That is never an easy task.

While the news media remains focused on the political fallout after Scalia's death, I think it will be interesting to note the fine details of what is sure to be a grand funeral service in the Basilica of the National Shrine of the Immaculate Conception. We know that President Barack Obama will be missing, but how many bishops, archbishops and cardinals will find their way into the "choir"? To what degree will the service -- as the justice desired -- focus on basic Christian beliefs about eternity, as opposed to hints about legal wars in the here and now?


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