I ran into Justice Scalia once, almost literally.

On the Sunday following the 9-11 attacks, Santa Susanna, the church for American and English-speaking Catholics in Rome, celebrated Mass in memory of the victims of that tragic day. The church was packed and it was only afterwards, as we were filing out of the church, I was on the steps and almost bumped into one of the visitors – Justice Scalia. We spoke only briefly and I learned that he had been in Italy on vacation but was unable to return to the States because of the 5 days of travel bans, airport closings, etc. Many people wanted to talk to him and, even though a real conversation was not possible, he smiled graciously and shook a lot of hands. He was waiting to hear word on the possibility of travel resuming to the U.S. that very day, and so was anxious to return to his hotel.

(I hope you have been following the extraordinary papal trip to Mexico at ewtn.com, on TV, via Facebook and all social media. My only post today is this piece on Justice Scalia and religious freedom, although I’ve been preparing for my appearance this afternoon on “At Home with Jim and Joy” when I’ll bring you the words of Pope Francis and Russian Orthodox Patriarch Kirill on marriage, the family and the sacredness of life.)


When I learned Saturday night of Justice Antonin Scalia’s death, I was filled with shock and dismay, shock at what appears to have been a premature death, and dismay because the Supreme Court – and the American people by extension – had just lost a great voice for reason, a voice of moderation, a powerful voice for conservative values.

My very first thought, a nanosecond after reading the news headlines, was, “Oh my heavens, what will become of religious freedom in America – the main voice for supporting this Constitutional right was just silenced!”


I immediately thought of the Little Sisters of the Poor because this order of Catholic nuns and other non-profits have been forced to ask the Court for relief due to the government’s refusal to exempt them from a regulation (part of the so-called HHS Mandate and Obamacare) that makes them choose between their faith—which prohibits them from providing contraceptives—and continuing to pursue their religious mission of serving the elderly poor.

Because SCOTUS (Supreme Court of the United States) now has 8 members and they are equally divided into liberal (4) and conservative camps (4) the extremely important decisions facing the justices this year on religious freedom could end up in a tie, a “hung jury,” so to speak.

(A little history: The Constitution itself does not mandate 9 members: Article III, Section 1 only says: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

(There haven’t always been 9 justices on the court. The U.S. Constitution, as we see, established the Supreme Court but left it to Congress to decide how many justices should make up the court. The Judiciary Act of 1789 set the number at 6: a chief justice and 5 associate justices. “The Supreme Court consists of the Chief Justice of the United States and such number of Associate Justices as may be fixed by Congress. The number of Associate Justices is currently fixed at 8 (28 U. S. C. §1).” In 1869, Congress raised the number of justices to 9, where it has stood ever since.)

One of the hot button cases before the Court is Zubik v Burwell (Zubik is Bishop Zubik of Pittsburgh): One website that studies SCOTUS wrote: “In Zubik, a host of religious organizations, including the Little Sisters of the Poor, have asked the court to block a requirement by the Obama administration that they sign a form asking for a religious exemption for providing mandatory contraception coverage in their insurance plans for employees that’s required by the Affordable Care Act. Virtually all of the lower courts have ruled against the nuns and the other organizations, declaring that signing a piece of paper isn’t much of a burden on religious liberty. So a tied Supreme Court vote is likely to result in a victory for the Obama administration. Nuns lose.”

And that is why I got the chills when I heard of Justice Scalia’s death.

EWTN is one of the dozens of organizations, institutions, universities and colleges who are suing, along with the Little Sisters of the Poor, for the right to exercise freedom of religion in the face of the HHS Mandate.

Pope Francis, by the way, is aware of their case. If you remember, he paid an impromptu visit on the Sisters in Washington, D.C. on September 23 during his U.S. trip.

On July 23, 2015 I posted a story from the Becket Fund for Religious Liberty, as it defends the Sisters and many others: The headline was LITTLE SISTERS OF THE POOR APPEAL TO SUPREME COURT, Forced to choose faith or massive fines, nuns seek relief.

On January 11, 2016, I posted another story from the Becket Fund:


WASHINGTON, D.C. (The Becket Fund for Religious Liberty) A diverse coalition of religious leaders representing Jewish, Muslim, Hindu, Native American, Catholic, Protestant, and other faiths will be joined by over 200 Democratic and Republican Members of Congress in filing friend-of-the-court briefs at the United States Supreme Court today on behalf of the Little Sisters of the Poor (view full list).  The briefs are being filed in Zubik v. Burwell, in which the High Court will decide whether the Little Sisters of the Poor and other ministries can be forced to change their healthcare plans to offer drugs that violate their religious beliefs when those same drugs could be made available through the healthcare exchanges.

“It’s easy to support religious freedom for the majority,” said Dr. Ossama Bahloul, Imam of The Islamic Center of Murfreesboro. “But the test of America’s commitment to religious diversity and freedom comes when we show we’ll defend minorities and those with whom we do not fully agree.”

“We have great admiration for the Little Sisters who are standing up not just for themselves and the elderly poor they serve but for the rights of all people of faith, including Jews,” said Rabbi Mitchell Rocklin. “Their courage is an example to all of us.” Rabbi Rocklin is a member of the Executive Committee of the Rabbinical Council of America.

“We stand with the Little Sisters because America’s proudest moments have come when the many have joined to defend the rights of the few, and we know too well the real cost when our government ignores its promises and puts expediency above principle,” said Pastor Robert Soto of the Lipan Apache Tribe in Texas.

“We are overjoyed and deeply grateful for the diverse outpouring of support we have received from such a variety of people and groups,” said Sister Loraine Marie Maguire, Mother Provincial for the Little Sisters of the Poor. “We have been serving the elderly poor for over 175 years and are simply asking the government to allow us to continue our life’s work without being forced to choose between our faith and millions in government fines.”

I am emphasizing the Little Sisters of the Poor case because it is emblematic of what is happening in our country vis-à-vis freedom of religion, that is, attempts to abridge, change, or undermine what our original U.S. Constitution says about religious freedom:

FIRST AMENDMENT: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Justice Scalia’s was a voice that clearly, forcefully defended that right.

And now, we wait with bated breath.

President Obama has the right to nominate a new justice. However, President Obama undid DOMA, the Defense of Marriage Act, so there’s no reason to think he might name a justice who would protect religious freedom.