Last week, two of the Supreme Court’s most ardent Catholic justices, Samuel Alito and Brett Kavanaugh, met at the court with an odd trio of visitors: Brian S. Brown, who runs several anti-gay advocacy groups; German Princess Gloria von Thurn und Taxis, once known as a 1980s party girl; and Gerhard Ludwig Müller, a right-wing German cardinal who has said publicly that a “homosexual network” inside the church is responsible for the clergy sexual abuse scandals.
— Brian S. Brown (@briansbrown) October 29, 2019
While the trio may have a vested interest in the court’s LGBT-rights jurisprudence—one of Brown’s groups has filed an amicus brief in cases currently pending before the court—their visit is notable for another, unexpected, reason: All three are in the vanguard of a political, right-wing movement that’s been pushing to topple Pope Francis. By posing for a photo op, the powerful Catholic justices provided an all but official expression of support for their work.
“It is striking that these Catholic justices met with some of the most vocal and vociferous of all the Holy Father’s opponents,” says Father James Martin, an American Jesuit priest who has supported better treatment of LGBT people in the church and who Pope Francis appointed as a consultant to the Vatican’s communications arm. “I wonder if this were, say, 20 years ago, whether they would have posed with people who had accused St. John Paul II of heresy and implied that his papacy was illegitimate—and smiled while doing so.”
Since his election in 2013, Jorge Mario Bergoglio, the first Latin American pope, has moved to reform the church in ways not seen since Pope John XXIII abolished the Latin Mass and freed nuns from wearing their hair-concealing habits in the 1960s. He has supported allowing some divorced people to take communion and pushed for greater tolerance of LGBT people. But he has also used his powerful platform to preach progressive Catholic social teaching, condemning the death penalty and imploring the world to fight climate change.
Francis has been particularly outspoken in his support for immigrants, telling a group of German pilgrims visiting the Vatican in late 2016, “It’s hypocrisy to call yourself a Christian and chase away a refugee.” He has celebrated mass on the Mexican border and suggested that President Donald Trump is not Christian because of his anti-immigrant policies. Perhaps most importantly, Francis has taken direct aim inequality, global capitalism, and the evils of growing nationalism in Europe and elsewhere. In doing so, the 82-year-old Jesuit has sparked a powerful backlash, particularly among right-wing clerics, wealthy conservatives, and anti-gay activists.
Brian Brown has been at the apex of the Francis resistance efforts in the US, turf he marked out as one of the country’s foremost anti-gay activists. He’s the co-founder and president of the National Organization for Marriage, an anti-LGBT advocacy group created in 2007 to push Proposition 8, a California ballot initiative banning same-sex marriage. NOM has never disclosed its funders, but the leading suspects have been the Catholic Knights of Columbus and the Church of Jesus Christ of Latter-day Saints, which was active in the Prop 8 fight. NOM has been the leading opponent of same-sex marriage in the US, and has also defended the discredited “ex-gay” conversion therapy, opposed legal protections for transgender people and kids, and promoted anti-gay adoption laws.
Since losing the battle decisively in 2015, when the Supreme Court legalized same-sex marriages in all 50 states, Brown has taken his culture war abroad through the International Organization for the Family (IOF), another group he founded to push anti-gay legislation in places with authoritarian governments, like Russia and Hungary. A devout Catholic with nine children, the 45-year-old Brown seems to have had mixed feelings about Francis. In the past, he has credited the progressive pope for sticking with church teaching about traditional marriage. But Brown also runs a conservative political action committee called ActRight, which in a September Facebook post suggested that the “socialist, environmentalist” pope was a gay man himself.
Brown was apparently responsible for bringing Müller to DC and the Supreme Court. His IOF co-sponsored an event at the Willard Hotel where Müller spoke about his new book, a thinly-veiled critique of the reforms in the church under Pope Francis. Müller is an ally of the former Pope Benedict and previously served as the church’s top orthodoxy watchdog—until Pope Francis sacked him in 2017. Müller has been an outspoken critic of the church under Francis, particularly the pope’s recent move to allow some married priests to serve in the Amazon. He’s part of a right-wing group of cardinals who have suggested that a gay mafia is operating inside the Vatican, and that “homosexuals” are singularly responsible for the church’s ongoing clergy sexual abuse scandals.
Joining Müller on his Washington tour was Princess Gloria von Thurn und Taxis, a former ‘80s punk rock party girl (dubbed Princess TNT by Vanity Fair) who has become an uber-conservative Catholic and a close personal friend of the former Pope Benedict, who took the unusual step of stepping down in 2013. According to the New York Times, Princess Gloria’s castle in Regensburg, Germany, has served as something of a salon for disgruntled right-wing Catholic elites and cardinals like Müller who are unhappy with Francis. Last year, she was working with former Breitbart News publisher and former Trump adviser Steve Bannon, a vociferous Francis critic, to create a “Gladiator School” at her castle to prepare conservative Catholics to fight to preserve traditional church practices and to train an army of far-right activists in nationalist ideology. The princess introduced Bannon to Müller, according to the Times.
The Supreme Court wasn’t the only seat of power the cardinal and the princess visited with Brown in Washington. Brown described shepherding the pair around DC on the IOF website, writing, “This past week, I had the distinct honor of accompanying Cardinal Müller and Princess Gloria at a number of important meetings in Washington. Certainly a major highlight of our meetings was the opportunity to spend time with Supreme Court Justices Samuel Alito and Brett Kavanaugh.” He reported having several meetings with “high-level officials in the White House” and meeting with members of Congress, including Rep. Greg Pence (R-Ind.), the vice president’s brother.
The Supreme Court press office did not respond to an inquiry about how the anti-Francis crowd scored a private audience with the justices. But it wouldn’t be the first time a conservative Catholic on the court has publicly fraternized with right-wing Catholic activists. Both Alito and Kavanaugh have close ties to Leonard Leo, the executive vice president of the conservative judicial group the Federalist Society. Leo has been instrumental in pushing Trump’s judicial nominations, including Kavanaugh’s, who is, in turn, the keynote speaker at this year’s Federalist Society national lawyers’ convention in DC. Alito has also been an occasional speaker at the group’s events.
Leo has had a long history of involvement with right-wing Catholic organizations. For instance, he serves on the board of the Catholic Information Center in Washington, an outpost of the secretive and powerful Opus Dei (which means “work of God” in Latin), a 91-year-old organization known as the church’s “Holy mafia,” which seeks to promote far-right politics and oppose any signs of creeping liberalism. They continue to celebrate the Latin Mass, in defiance of the work of Pope John XXIII. (The author Dan Brown highlighted Opus Dei members’ practice of mortification of the flesh in his book, The Da Vinci Code.) Membership to Opus Dei is closely guarded, but the late Supreme Court Justice Anton Scalia was long rumored to have been a part of the organization. The DC center is the meeting place of ultra-conservative Catholics seeking power in the nation’s capital. Both Attorney General William Barr and Trump White House Counsel Pat Cipollone are former board members.
Justice Alito has also publicly rubbed shoulders with other high-profile conservative Catholics who are viewed as Francis opponents. In 2017, John Gehring, Catholic program director at the nonprofit think tank Faith in Public Life, attended a $1,250-per person, two-day conference of American Catholic elites at the Trump International Hotel in Washington. The event was sponsored by the Napa Institute, a Catholic nonprofit founded by billionaire Timothy Busch, a lawyer who made his fortune in estate planning for the 1 percent. In 2011, Busch co-founded the Napa Institute to train Catholics to defend their faith in an increasingly secular society, and last year, launched the Napa Legal Institute to provide legal services for Catholic nonprofits. The Federalist Society’s Leonard Leo is on its board. Even so, Gehring was surprised to find Alito in the audience for Busch’s kick-off speech back in 2017. Busch has been a big player in what Tom Roberts, executive editor of the National Catholic Reporter, describes as the “hostile takeover” of the US Catholic church by right-wing billionaires.
Busch—along with the oil and gas magnate Koch brothers—has given millions of dollars to the Catholic University of America to teach libertarian economics focused on aggressive individualism and reduced government aid to the poor, ideas squarely at odds with much traditional Catholic social teaching. He also sits on the board of the Eternal World Television Network, a media empire that has become something of a Catholic Fox News and a prominent forum for attacks on the progressive pope. (Cardinal Müller did an interview with the network while he was in DC last month, and Raymond Arroyo, a pro-Trump, anti-Francis EWTN host, was the master of ceremonies at his book event.) Busch’s Napa Institute holds annual conferences that feature powerful political figures—Sen. Lindsey Graham (R-S.C.) had top billing at one this summer—and are hotbeds of anti-Francis activism and right-wing politics.
“It’s part of this ecosystem where well-funded conservative Catholics have been very effective in making inroads with influential politicians and legal scholars,” Gehring says, “and apparently Supreme Court justices, too,”
But federal judges, including those serving on the Supreme Court, are supposed to remain above the fray, even religious ones. The judicial cannon of ethics says judges must not use the prestige their office to advance private interests, their own or of others. The justices’ photo op with Brown, Müller, and the princess all but signals their approval of efforts to undermine the progressive pope.
The photo op was bad for the court for more secular reasons as well. Brown’s NOM has filed amicus briefs in three LGBT-rights cases the justices will decide. The cases will determine whether the Civil Rights Act protects LGBT people from being fired from their jobs based on sexual orientation. Take Back the Court, a liberal group advocating to expand the number of justices on the court to break up its conservative majority, has written letters to Alito and Kavanaugh asking them to recuse themselves from the three cases in which NOM has filed briefs. “The credibility and impartiality of the current Supreme Court is in tatters,” the group’s executive director Aaron Belkin said in his letter. “Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts’ assertion that a judge’s role is to impartially call balls and strikes.”
Still, it’s unlikely the justices will recuse themselves from the term’s hottest cases. The only people who can enforce legal ethics rules for Supreme Court justices are the justices themselves, and they rarely deem any of their members guilty of a conflict of interest. Justice Clarence Thomas, for instance, heard challenges to the Affordable Care Act even though his wife was working with conservative groups devoted to overturning the law.
Charles Geyh, a judicial ethics expert at the Indiana University law school, says the justices are bound by a federal statute that requires them to disqualify themselves in cases where their impartiality might reasonably be questioned. But even then, their bar is pretty high. He recalls the time in 2004 when the late Justice Antonin Scalia spent a weekend duck hunting with Dick Cheney when the court was considering a case in which the sitting vice president was a named defendant. Scalia still participated in the case, arguing that Cheney had no personal stake in its outcome and that as a result, no one could question his impartiality.
Alito and Kavanaugh apparently met with Brown for far less time than Scalia spent with Cheney in the duck blind, however, and Brown’s group is only an amicus, not a full party in the LGBT cases. “While it would be a gross ethical violation if they discussed the case in their meeting, there is no indication that happened,” Geyh says of Brown and the justices. Nonetheless, he says, “The optics are not great. Meeting behind closed doors with an amicus in a pending case raises concerns that could be avoided if the justices kept their distance from parties, their lawyers, and amici, while the case was pending. But it’s a stretch to argue that a relatively brief exchange between amicus on topics unrelated to the action creates a perception of partiality problematic enough to require disqualification.”
But really, it’s not like anyone ever believed the Catholic conservative justices were going to do anything other than side with groups like NOM against LGBT people in the cases currently before them, regardless of their photo op with the anti-gay activist. Alito voted against same-sex marriage legalization in 2015, and Trump would never have nominated Kavanaugh if he’d shown even the slightest sympathy for the victims of anti-gay discrimination. What the visit may mean for the embattled Pope Francis, however, is another question.