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Separation and the Courts 

by James Hitchcock
February 7, 2003

The American system of separation of church and state is beneficial to both religion and a healthy polity, so long as the it is not taken to require government hostility to religion. Recently there have been two blatant violations of the church-state principle by judges. But, as I write, the incidents do not seem to have called forth protests from the people who usually warn against church-state entanglement.

In Washington, DC, three people went on trial for trespassing at the annual meeting of the American bishops. The three were homosexual activists who had earlier been refused Communion at the bishops' Mass at the Shrine of the Immaculate Conception, because they were thought to be part of a homosexual demonstration. According to the defendants' account, they then went to the bishops' meeting to find someone who would give them Communion and to get an explanation as to why they had been turned away at the Shrine.

Their story is frankly fishy. It was perfectly obvious why they were refused Communion -- Church officials had warned that they would turn away anyone involved in a demonstration. As to receiving Communion, all the three would have had to do was attend Mass at one of the hundreds of churches in the Washington area where they were not known. The claim that they were not trying to create an incident is belied by the fact that two of the three were activists from the West Coast, and we are asked to believe that they just happened to be at the Shrine at the time of the demonstration.

The three were found guilty because they had trespassed and had refused repeated requests to leave, instead standing in the hotel lobby with hands outstretched, allegedly anxious to receive Communion and to "find healing among the people who had caused [us] so much suffering."

The judge imposed as punishment the time they had already spent in jail -- thirty hours. Perhaps no good would have been served by further jail time, but the judge's announced reasons for the suspended sentence were outrageous. Judge Mildred M. Edwards, a Catholic, apologized to the defendants "on behalf of the Church" for the way they were treated, finding that "tremendous violence has been done to you ... when the Body of Christ was denied to you."

I cannot recall a more blatant instance of the misuse of judicial authority. The one principle of the American law of church and state which has never been challenged over the years is that courts may not intervene in the internal affairs of religious groups. When asked to do so by church-members, usually in property disputes, the courts must apply the laws laid down by the church itself. Anything else has been regarded as interference with religious liberty.

Judge Edwards as a Catholic was thus required to express her theological opinions only privately, not to proclaim them from the bench, and it is grossly improper for any public official to claim to speak in the name of the Church. Under the Constitution the Catholic Church has the right to determine who can or cannot receive communion, and for a public official to imply otherwise is a gross abuse of authority. If the case demonstrates anything, it shows that Judge Edwards is not qualified to hold public office.

Recently in St. Louis a judge mocked the Catholic doctrine of the the Eucharist, when he used the term "hocus pocus" to characterize a particular legal maneuver. "Hocus pocus" is a term coined centuries ago by extreme Protestants to mock the Latin words of consecration at Mass.

Possibly Judge Lawrence Mooney, like most people, does not know the origin of the term. But he went on to demonstrate that he knew what he was doing, when he admonished the defendants in a civil case that their procedures could not "transubstantiate" the meaning of a document. In a case which had nothing to do with religion, the judge used words sacred to Catholics in a flippant, disrespectful, even jeering fashion.

From the bench one judge expresses her great concern that everyone be welcome at communion, while another judge uses the words of the Mass sneeringly. How long need we wait for the American Civil Liberties Union and other separationists to decry these obvious violations of the First Amendment?

James Hitchcock, professor of history at St. Louis University, writes and lectures on contemporary Church matters. His column appears in the diocesan press. His two-volume book on religion and the Supreme Court has just been published by Princeton University Press. E-Mail: Dr. James Hitchcock

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