Kevin Walsh of the University of Richmond School of Law writes:
The twitterverse is alive with tweets about Justice Scalia’s headgear for today’s inauguration. At the risk of putting all the fun speculation to an end . . . The hat is a custom-made replica of the hat depicted in Holbein’s famous portrait of St. Thomas More. It was a gift from the St. Thomas More Society of Richmond, Virginia. We presented it to him in November 2010 as a memento of his participation in our 27th annual Red Mass and dinner.
Wearing the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both: Make of it what you will.
January 21st, 2013 | 10:14 pm
What a sublime protest!
January 21st, 2013 | 11:28 pm
[...] I noticed this during the stomach turning broadcast of the President’s inauguration, but here is a post with a photo. Check out First Things: [...]
January 21st, 2013 | 11:32 pm
I want a hat like that.
January 22nd, 2013 | 12:20 am
Wearing the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both: Make of it what you will.
What would be ironic, if Justice Scalia wore the hat as some kind of protest, is that he is the author of the majority opinion of Employment Division v Smith, which was such a blow against religious liberty as it had been long understood that Congress passed the Religious Freedom Restoration Act to try to undo the damage Scalia had done. Under Scalia’s reading of the Constitution, the “contraceptive mandate” would clearly be constitutional.
I ran across an article titled Religious Freedom vs. Compelling State Interests earlier today which explains the issues clearly and, having been written in 1998, has no ax to grind regarding the current controversies.
January 22nd, 2013 | 1:11 am
So how’re you guys celebrating Obama’s new Religious Freedom Day (Jan. 16)?
January 22nd, 2013 | 1:15 am
Where could others get hats like that? Surely the costumers who outfit historical reenactors must have a source for sixteenth-century millinery.
January 22nd, 2013 | 1:44 am
David Nickol, the high court properly interprets the US Constitution to forbid legislators from legislating not stupidly nor recklessly but only unconstitutionally. (It’s a strict construction thing, you wouldn’t understand.)
January 22nd, 2013 | 4:18 am
Actually this reminds me of the incident from 2009 when a picture showed the soles of Obama’s shoes while on the phone with the PM of Israel. That too hit the headlines as an insult to Israel. Subtle protest as well? Hmmm…something to think about.
January 22nd, 2013 | 6:19 am
One could hope our bishops would wear the vestments of Thomas Becket.
January 22nd, 2013 | 6:37 am
Other men on the Supreme Court were wearing headdresses that resembled those of Orthodox and Byzantine clergymen; that is, they looked like skouphias and kamelavkas.
Or so they looked to me.
January 22nd, 2013 | 6:41 am
Why does this look so photoshopped?
January 22nd, 2013 | 7:14 am
Maybe, he’s starting to think outside of his constructionist, “religious liberty” constraints and see himself as God’s servant first.
January 22nd, 2013 | 7:21 am
Marx said, “Hegel remarks that all great world-historical facts and personages occur, as it were twice. He has forgotten to add: the first time as tragedy, the second as farce.”
I can’t think of anybody better suited to play Thomas More in this farce than Antonio Scalia.
January 22nd, 2013 | 7:36 am
I want to deserve a hat like that.
January 22nd, 2013 | 7:46 am
David Nickol What would be ironic, if Justice Scalia wore the hat as some kind of protest, is that he is the author of the majority opinion of Employment Division v Smith…
Would it be that ironic, given that he joined the (unanimous) majority in Gonzalez v. UDV? I would imagine he’d have written a separate concurrence if so.
I could see how Scalia’s opinion in that case would correspond to his attitude towards the rule of law, and that RFRA was the law of the land, but I’ve also wondered if Scalia changed his mind over time on that case.
January 22nd, 2013 | 8:26 am
Tigger,
Anti-Americanism has no place on this blog, which is for Catholics of all nations.
To state that St. Thomas More would have been against the type of government set up in the United States is not only an anachronistic and impossible conjecture, but begs the question that the Reformation did away with the monarchy in England, slowly, slowly by replacing absolute power, which Elizabeth was the last to have, with Parliament.
That he was a martyr-victim because of hatred of the Catholic Church is the reason for his holiness.
One does not have to be a monarchist to be a saint; one only has to have Christ as the center of one’s being regardless of the government at hand.
Should I state that the ancestors of the Catholics who stayed in Europe have sold out to a greater evil, that is, socialism, condemned by every Pope since the 1840s?
We have many examples of saints who have been canonized from modern states.
And, Thomas More’s ideas of government are not any more infallible than mine.
January 22nd, 2013 | 8:39 am
Tigger condemns Thomas More for his opposition to the Protestant Reformation. His comment seems to assume that the Reformation was self-evidently correct in all of its arguments, assumptions, and in the actions that followed.
It also seems to assume some level of understanding of the mind of Thomas More. St. Thomas clearly stated his understanding of the powers of the state and of religious freedom: he honored the King but was God’s servant first, and recognized that a line had been crossed.
Church teaching is that the Church on earth always stands in need of correction, chastisement, purification that it may return to its original mission.
Our Founders understood that all men are created equal – that all are entitled to religious freedom, even Roman Catholics.
The Protestant Reformation displayed for all to see -as does the human hierarchy of the Catholic Church – the impossibility of perfection for human beings. Either God is present in the sacraments of the Church through the power of the Holy Spirit or not. That is the question.
I would hope that comments such as “historical ignoramous … pathetic drama queen, etc., etc.” would have no place at this blog. These words make no contribution to the discussion, at least in my opinion.
January 22nd, 2013 | 8:41 am
I was issued a cap like that for my law school graduation ceremony. So odd to see it again.
January 22nd, 2013 | 8:50 am
Jack, I don’t think so. The O Centro Espirita case involved a completely different issue from Smith—the latter involved what the first amendment requires, and the former, what RFRA requires. That RFRA and the first amendment address roughly the same issue doesn’t make the cases comparable.
January 22nd, 2013 | 8:52 am
If this hat is a copy of the Thomas More who was beheaded for standing up against what Henry VIII was doing morally under the cloak of politics, then…Way to Go, Justice Scalia! (I will not be a cynic–I take this as a symbolic act of integrity in the midst of a tidal wave of relativism… and appreciate it!) ♥
January 22nd, 2013 | 8:56 am
El Duderino : extremely well put ! Ditto.
January 22nd, 2013 | 9:19 am
When I saw Scalia’s martyr’s hat I thought it was worn in keeping with the commemoration of Martin Luther King Day which coincided with the inauguration the 21st of January….as Dr. King was considered a civil rights martyr, who was killed because of his steadfast beliefs, so was St. Thomas Moore killed for his beliefs as he steadfastly refused to take the oath of supremacy of the Crown. It will be interesting to see if Scalia comments.
January 22nd, 2013 | 10:02 am
[...] Was the imitation of More a form of silent protest? As First Things’ Matthew Schmitz says: [...]
January 22nd, 2013 | 10:05 am
David Nickol, the high court properly interprets the US Constitution to forbid legislators from legislating not stupidly nor recklessly but only unconstitutionally.
Micha Elyi,
I understand that principle quite well, and support it wholeheartedly. However, what it has to do with Scalia’s opinion in Employment Division v. Smith is something you will have to explain.
(It’s a strict construction thing, you wouldn’t understand.)
Scalia is not a strict constructionist. He has said so explicitly, “I am not a strict constructionist, and no one ought to be…. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”
January 22nd, 2013 | 10:28 am
Sometimes we Catholics forget that salvation does not come through governments or politics, but through the Catholic Church. We need to pray that these men in power follow their Catholicity, think like Catholics, act like Catholics, and, like us, hopefully, die as good Catholics.
January 22nd, 2013 | 10:34 am
Bravo Nino!. Trouble is I dont think that crowd at 1600 gets it. They are Kantians to the bone. All power flows from the state whether you want it or not. David J Kenney
January 22nd, 2013 | 10:53 am
[...] speculation was rampant on the Internet as to what the hat was. Matthew Schmitz at First Things cleared that up by noting that the not-so-snappy brim was a gift to Scalia from the St. Thomas More [...]
January 22nd, 2013 | 10:56 am
Is it possible that Justice Scalia was only using a bit of common sense and keeping warm in a flu season that has the whole country under siege. All of the other reasons may just have been afterthoughts or possibly no thought.
January 22nd, 2013 | 11:00 am
Regardless of Smith’s merits, RFRA is a vindication of Scalia’s view: if you want stricter religious freedom protection, enact it by statute. RFRA imposes strict scrutiny against federal violations of religious freedom. Scalia voted and will vote to impose that strict scrutiny fully. He has no cause to “explain” himself in wearing More’s hat to this lawbreaking adminstration’s attack on religious freedom.
January 22nd, 2013 | 12:25 pm
Yes Steve P in Detroit, it is a sublime protest – also a subtle prophecy?
January 22nd, 2013 | 12:51 pm
RFRA imposes strict scrutiny against federal violations of religious freedom.
Matt Bowman,
But only for federal violations, since it was subsequently ruled unconstitutional for states and localities. Here’s an interesting paper by Rick Garnett in which he is rather sanguine about Smith (although see his conclusion, written after he presented the paper) but summarizes in his first few paragraphs the shock and outrage the decision was met with.
I am no expert in constitutional law, but clearly the decision broke with the past and lowered the bar for government in justifying legislation that infringed on religious liberty, and RFRA only partially restored what Scalia had undone.
January 22nd, 2013 | 1:23 pm
So what–Scalia was attending a federal event. States can and often do impose their own strict scrutiny. You haven’t shown that Scalia has any explaining to do in his implicit criticism of Obama’s illegal attack on religious freedom. By the way, the abortifacient/contraception mandate is not even remotely generally applicable, so even under Scalia’s Smith, Obama has transgressed strict scrutiny.
January 22nd, 2013 | 2:20 pm
Also, readers, take note of the self contradiction by Catholic Obama defenders. Scalia should be criticized, they say, because Smith took away religious freedom, and Smith is what bishops really should attack. But Obama should not be criticized, they say, because laws like the HHS Mandate would have been upheld pre-RFRA/Smith, where religious freedom wasn’t really protected back then under (now obsolete) cases like Lee, and RFRA itself should be scrubbed of strict scrutiny today. Predictable. But you can’t have it both ways. If Scalia/Smith really should be criticized for harming religious freedom, then Obama is violating pre-Smith law in addition to violating RFRA. If Obama hasn’t done anything wrong pre-Smith OR RFRA, what in the world do you think Smith took away? In reality, RFRA’s strict scrutiny is real, and the HHS mandate is too weak to survive even Scalia’s position in Smith if it had to.
January 22nd, 2013 | 4:15 pm
I find it both insulting and childish. Not happy with the job he has in serving the nation? then retire and let us all be pleased.
January 22nd, 2013 | 4:18 pm
I don’t see this as having anything to do with Obama. I am actually not of the opinion that Scalia was silly enough to wear a “protest hat” to the inauguration. I think people are reading too much into it. It just seems to me that people are going overboard in considering Scalia a great champion of religious liberty when Smith was so widely considered a catastrophe. You may not think so, and Rick Garnett may not think so, but here is a taste of Rick Garnett’s summary of the decision’s reception, which again, I point out, does not reflect his own view:
Even you have not so far defended Smith. You have argued “[r]egardless of Smith’s merits . . . “
January 22nd, 2013 | 4:43 pm
Matt Bowman,
There are actual facts here, and I wish we could focus on them. This is not about Obama and the contraceptive mandate. It is about Scalia and Employment Division v Smith. What you aren’t acknowledging is that Smith was widely viewed as a catastrophe for religious liberty. I deliberately linked to a 1998 article on the decision and its aftermath to avoid discussion of more current issues. The Religious Freedom Restoration Act was passed to restore what Scalia had done away with. That is just a fact. Maybe Scalia was absolutely right. I don’t even have an opinion. But his decision in Smith clearly appalled so many people that RFRA sailed through the Senate 97-3. Clearly the feeling was that what Scalia had done had to be fixed.
January 22nd, 2013 | 9:07 pm
Just because Justice Scalia believes that the federal government has constitutional power to do something, doesn’t mean he can’t object on moral grounds to what the government is doing.
As St Thomas More said, ‘I die, the King’s good servant, but God’s first.’
January 23rd, 2013 | 3:58 am
In Sodom and Gomorah God couldn’t find ten just men. In America today we have [suprisingly]found…at least one. May God bless Justice Scalia-!
January 23rd, 2013 | 10:08 am
Nothing in Smith restricts the religious beliefs of individuals; it excludes their intervention in, or impact on, the relations between private individuals and public authorities and obliges individuals to respect common rules in these relations. If the rights of citizens are to vary in accordance with their religious affiliations, how is the republic one and indivisible?
January 23rd, 2013 | 10:49 am
I agree.
What a comment.
Quiet, yet there and prominently presented.
Would that others might look to see what the facts are before they open their mouths.
Blessings,
Charlie
January 23rd, 2013 | 10:57 am
The “actual facts” are that a Catholic Supreme Court justice wore the hat of a religious freedom martyr to the inauguration of a famously lawbreaking attacker of Catholic religious freedom. The actual facts are not that his hat has anything to do with a 23-year-old court case. The actual fact is also that even a Smith supporter can be consistent in criticizing Obama’s trampling of federal laws protecting religious freedom. The actual facts are that Obama’s attacks on religious freedom are illegal under RFRA, Smith, and pre-Smith law. The word “restoration” in the title of RFRA does not alter any of these facts.
January 23rd, 2013 | 1:58 pm
I, as a Protestant, Bible-believing Calvinist, found the most interesting thing about Scalia’s hat to be that he is honoring a man who murdered Christians. As the Thomas More Society website notes re: More:
“More had six Protestants burned at the stake and ordered the imprisonment of as many as forty others. His chief concern in this matter was to root out collaborators of William Tyndale, the exiled Lutheran scholar who in 1525 had published an English translation of the Bible, which was circulating clandestinely among English Protestants.”
Praise God for the triumph of the Reformation!
John Lofton
JLof@aol.com
January 23rd, 2013 | 3:10 pm
When I heard reporter wondering about the Jusitce’s unusual hat I glanced at the TV and immeduitely recognized it as the hat pictured on Saint Thomas More the Patron of Religious Freedom.
We ae forming Freedom of Religion groups in churches to educate and advocate to restore that feedom and preserve it for generations to come.
We open our meetings with a prayer that St Thomas More will guide our actions in defense of God given religious liberty.
Wearing that distinctive hat to the inauguration was a clear statement of criticism for this president’s attack on our 1st amendment Freedom of Religion.
Well done!
January 24th, 2013 | 10:39 pm
Ah, yes….Free Speech is afforded to even Justice Scalia.
I LOVE IT!
January 26th, 2013 | 4:59 pm
Mr. Lofton:
Careful with that triumphal attitude – Protestants killed Catholics and other Protestants in persecutions. It was the way things were done then. We can be glad we don’t do it now, but nobody gets a pass on misdirected efforts back then.
Fr Theodore
Orthodox Monk
January 26th, 2013 | 11:01 pm
Fr. Theodore,
The Catholic Inquisition killed many Protestants!
We always throw back the Catholics killed in England and the Catholic Persecution, but that was mild compared to the Heretics that were killed! This was a time we should forget! Amen
January 27th, 2013 | 11:25 am
Cathy, can you give the actual number of Protestants killed by the Spanish Inquisition?
Bet you can’t!
Actually, the total number of people executed under the auspices of the Spanish Inquisition during the 300 years of its activity in Spain was only 3,000. Common criminals would claim to be heretics because the conditions in the Inquisition’s jails were better than in the secular jails.
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