Judge's dirty forehead - church vs state?

Great Debates
1

Just got back from oral argument at the 7th Cir Ct of Appeals. Was a little surprised to see Judge Manion, presiding judge on the 3-judge panel, wearing an ashen cross on his forehead.

I am not aware of anything prohibiting judges from wearing things that indicate their personal beliefs, and I certainly agree that he should be allowed to pursue his beliefs, and should not need to hide his beliefs. My orthodox friend brought up his yarmulke (sp.) I would not say that an observant jewish judge would have to bare his head. ;j

But I thought it might have been preferable for someone in such a position to either wipe their forehead before going on the bench, or instead receive ashes after the morning’s arguments. I see it more akin to a judge not wearing a big crucifix or star of david on a chain outside of their robes.

If I were arguing an abortion rights case or such, I certainly would be upset by seeing obvious signs of Catholicism on the decision-maker. I wonder if he checked what the docket was, or if he simply didn’t think about it?

Not a huge issue, as it only happens once a year. And may be more of an IMHO than a GD.

2

The abortion rights person arguing a case may very well be upset, but they would have no legal redress, in my opinion.

The First Amendment says that government cannot establish religion. It does NOT say that government employees cannot practice religion in public. So long as a judge is not ordering people to observe any religious practice, even something as basic as believing in a higher power, or permits the government to do something to the same effect, he’s well within First Amendment bounds.

Also, it is not guaranteed that the judge is Catholic. Lutherans and Episcopalians perform the ash ceremony as well. Only evangelicals, with their rejection of all the pomp, circumstance and ritual of the old ways, would outright reject such a thing.

3

Even though the primary opinion in Roe v. Wade was written by a Catholic?

4

I apologize for my ignorance concerning who participates in Ash Wednesday. Limited by my personal RC upbringing.

I agree that the judge was not and should not be legally barred from “practicing his religion in public.” It just seems to me that discretion, and an interest in avoiding even the appearance of bias, would limit how a judge appears and conducts himself while on the bench.

Yes, Tom, I’m well aware of Blackmun’s faith. And I used abortion only as an example. I could have said school prayer or any number of other issues. Or suggested a party of a certain faith who might be intimidated by such a display by the judge.

But heck, I didn’t take out my earring, so who am I to complain! :wink:

5

Dinsdale, what’s the difference between the yarmulke and the ashes? You accept the one, but not the other, but they’re both indicators that the individual is an observing member of a particular faith.

6

Well, my understanding is that the Jew is required to wear the yarmulke at all times.

I am not aware of any requirement that ashes be gotten at a certain time, or left on for a certain time. But, I haven’t gotten ashes for several decades so i’m not up on what is and isn’t allowed (and the Catholics seem to keep changing those rules! ;)) So, in my mind, the judge COULD have gotten the ashes and then wiped them off, or gotten them after his morning court call.

Following a very cursory search, I pulled this language from some state’s judicial codes of ethics.

*In all activities, a judge shall … avoid impropriety and the appearance of impropriety, and act in a manner that promotes public confidence in the integrity and the impartiality of the judiciary.

A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge.

The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.

A judge shall not hold membership in any organization that the judge knows practices invidious discrimination on the basis of race, sex, religion or national origin, nor shall a judge regularly use the facilities of such an organization. *

As I said in my OP, I am unaware of any prohibition against a judge displaying signs of his religious beliefs on his person. BUT, it seems to me that discretion would have the judge err on the side of avoiding possible “appearance of impropriety.”

Course, doesn’t seem to slow Scalia down much…

7

This is rightly a question of propriety, not about the doctrine separation. You can’t ask people not to practice their religion: the only question here is whether the particular practice is somehow intrusive to the legal process, and it has to be judged as any other sort of potential impropriety would, not given special attention simply because it’s religious in nature.

8

However, Apos I get a bit miffed when the alleged “appearance of impropriety” is based on a poorly-thought out assumption. For there to even be an “appearance of impropriety” in a judge having ashes on his forehead, you are assuming that the judge does not have the capability of separating his religiousness from his judicial decision making. Saying that because a judge shows his religious affiliation, there is an appearance of impropriety is insulting not just to the judge, but to the First Amendment as well.

9

Actually, I believe one is not supposed to wipe the ashes off-at least not until one’s next bath.

10

There’s just something a little “creepy” in wearing a cross of ashes on your forhead all day long, religious implications aside. (A necklace or a yarmulke wouldn’t bother me in the same way.) If I walked into the courtroom and saw a judge in, say, goth makeup, I’d have much the same reaction. It doesn’t look “professional.”

I wonder if the judge was, say, a counter person at McDonalds, what the reaction to his ashes would be. Would his boss demand that he wipe them off? I think so.

11

[nitpick]
Actually, Dinsdale, there are quite a few Episcopalians walking around with ashes on their foreheads today, too. If I hadn’t had a doctor’s appointment at midday, I’d be one of them, and I’m still feeling a bit guilty for not going tonight.

I’m firmly in favour of separation of church and state, but I don’t know where I stand on this one. I think if I were the judge and were going back to work, I would have wiped the ashes off my forehead, rather than waiting for my evening bath, but I could also see how doing so might feel vaguely sacriligeous. This doesn’t strike me as that big a deal, but it’s easy for a Christian like me to say that.

Like I said, I don’t know about the judge’s actions, but I do know it’s not just the Catholics who are sporting ashes this evening.
[/nitpick]

CJ

12

Hello lawsuit. Hello deep pockets.

Wearing ashes (or attending Ash Wednesday services) is not obligated per se…in the sense that (I think) wearing a yarmulke would be. It is however, a valid long practiced custom among many Christians. I’d love to see MickeyD’s have their ass handed to them if a manager tried that stunt.

FWIW…there is no “formal” rules about how long one wears ashes…

However

Comparing my religious custom with goth makeup in “creepiness” and “unprofessionalism”…well to each her own I guess. :rolleyes:

13

And I believe said boss would be in the wrong.

14

I’d distinguish this from the case of the judge who posted the Ten Commandments in ‘his’ courtroom, for the obvious reason that it wasn’t his courtroom in the sense of ownership; it belongs to we, the people, and was ‘his’ only in the sense that that’s where he showed up on days when he was hearing cases.

OTOH, one’s body is one’s own. I don’t know what I would have done in the judge’s situation, but I believe he has the right to wear the marks of his religious observance, peculiar as these particular marks may seem to non-liturgical Christians.

15

Does anyone think a MickeyD’s manager would fire a Hindu employee who was wearing a bindi?

If they did…could you measure the time that the ACLU jumped in in nanoseconds or picoseconds?

16

—However, Apos I get a bit miffed when the alleged “appearance of impropriety” is based on a poorly-thought out assumption.—

I didn’t try to imply that I thought there was an appearance of impropriety anymore than a black judge in a trial dealing with racism. I said “potential impropriety,” because it was under question here. I don’t know what the legal standard for impropriety is, or whether it’s even a substantive charge, but I assume it requires some evidence of the act or display having some substantive effect on the trial or the judge’s performance at trial.

17

about the yarmulke thing:
A jew does not have to wear a yarmulke specifically, they could wear any sort of head covering (baseball caps included). I myself wear a rasta hat. Also, a judge wearing a head covering would depend on his own interpretation of the 1st amendment, interestingly, because with only a few exceptions, the law of the land takes precedence over Jewish law. So if a Jewish judge thought that wearing a yarmulke in court was unconstitutional, hey would be required by Jewish law not to wear it.

18

From the “rules” I cited above:

*A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. *

I also believe judges are traditionally given considerable latitude concerning dress and decorum in “their” courtrooms. Could a judge choose to wear robes adorned with religious words/phrases? This would avoid the “It’s not his courtroom” issue.

And the black judge does not have any choice as to his color. *(Oh, I don’t want to try and rephrase that to avoid folks argung that their religious beliefs are not mere “choices.”) *

19

XWalrus2, I have to disagree with the last two sentences of your post.

The rule that “the law of the land has the force of Jewish law” (in the original Aramaic, dina demalchusa dina) is rather circumscribed in application: it applies only to (a) civil laws that (b) don’t conflict with Jewish law and © don’t discriminate against Jews. In addition, one’s personal understanding of what the law should be makes no difference: so long as the appropriate legislature or judiciary hasn’t declared a certain act to be illegal or unconstitutional, it wouldn’t fall under the scope of this rule.

That said, it is true that wearing a yarmulke is not specifically required by Biblical or Rabbinical law; it started out as a custom, though it has acquired the force of law. I’m not sure of the details, so perhaps someone who has access to the relevant sources can comment - but IIRC, contemporary posekim (authorities on Jewish law) have issued rulings allowing Orthodox Jewish men to go bareheaded in certain cases, where there’s concern that wearing a yarmulke may affect their job performance (such as a lawyer who fears that an obvious symbol of Jewishness on his part may prejudice a jury against his client).

20

I am an atheist, and if I were to appear in this judge’s court for any reason, I would have no problem whatsoever with this display of personal faith unless I had evidence that said faith were interfering with his judicial procedures and legal judgement.