Religion & Law

"Will more Supreme Court Justices attend this year's Red Mass [or, as she puts it, 'Red Mass'] than next year's State of the Union?", Dahlia Lithwick asks in this Slate piece.  After recalling how the President's (inaccurate) description of the Citizens United case prompted Justice Alito last year to shake his head and say "not true" during last year's SOTU, she says, among other things, that:

At the Red Mass this year, the justices heard a homily that flicked at the evils of abortion, gay marriage, and "humanism." There is no record of any justice in attendance furiously mouthing the words "That's not true" as these admonitions were delivered. For what it's worth, I would be just as uncomfortable if these justices all trooped en masse to Kol Nidre services to hear a stem-winder about the magic of creationism. (Which may explain why Justice Ruth Bader Ginsburg stopped attending the Red Mass altogether after hearing her very first homily, which she has described as "outrageously anti-abortion.")

Of course, there was nothing "furious" about Justice Alito's reaction at the SOTU last year, but put that aside.  Put aside also questions one might have about what, exactly, the point is supposed to be of her observation that Justices didn't react to a homily that proposed for the lawyers assembled certain claims about the implications for policy of a commitment to human dignity and equality in the same way that Justice Alito reacted to a partisan mischaracterization of what the Court had, in fact, done.

The Red Mass [or, "Red Mass"] story serves, it turns out, simply as an introduction to a piece about the possibility that the Justices stand poised this year (or soon) to "dramatically" transform Establishment Clause evidence, and about -- more particularly -- a case involving the federal RLUIPA.  She concludes with this:

They will dispose of [the RLUIPA case] without ever reaching the troubling question of how a cross can be one man's universal and secular symbol of remembrance and the core element of another man's religious practice. It is this same tension that leads one to question how sitting through the Red Mass has become less awkward for some justices than attending the State of the Union. These aren't questions we get to ask of the justices. But maybe they are questions they can ask of themselves.

I don't get it.  What's the connection?  What am I missing?  What does the question presented in the RLUIPA case have in common -- at all -- with the Red Mass v. SOTU question?

  The Red Mass It seems to me that Lithwick is attempting to equate two very different things.  Justice Alito said "not true" because what the President said was, in fact, "not true."  It is a different thing, it seems to me, for a Catholic bishop to propose, to lawyers gathered to reflect on their shared vocation, that, say, abortion is