Friday, October 1, 2021

Annual Red Mass and dinner October 6th

This is the final reminder for our annual Red Mass, which will take place next Wednesday October 6, 2021. We will begin with Mass at 5:15 p.m. at the Cathedral of St. John the Evangelist. Our celebrant will be the Most Rev. Jerome Listecki.

Registration through Eventbrite [link] for the dinner is still open and will remain so until the end of the day on Monday October 4th, however, if you plan to come and have not found a seat at a firm table or obtained a ticket, please register as soon as possible so we have an accurate count for the dinner

Dinner will take place following Mass at the Wisconsin Club, 900 W. Wisconsin Avenue. Shuttle service will be available from the Wisconsin Club to Mass at the Cathedral and back. We are honored to announce that our keynote speaker this year will be Rick Esenberg, the founder, President and General Counsel of the Wisconsin Institute for Law & Liberty. During the dinner, the Society will also present the Faithful Servant award to a very worthy recipient: Retired Magistrate Judge from the U.S. District Court for the Eastern District of Wisconsin, Hon. Patricia J. Gorence.

Tickets for the reception and dinner are $60 for individuals and $35 for students. Once again, individual tickets will be available for purchase this year through Eventbrite. There is a link on the attached invitation and also the full website address for ticket purchases. Table sponsorship opportunities are now available (and encouraged!) at a rate of $650 for a table of eight guests. Please contact our Treasurer Brian Tokarz at for additional table purchase and sponsor recognition information. If you have arranged for a table, please let Brian know who will be at the table so that name tags can be prepared.

If you are a judge and plan to attend the Mass, we would greatly appreciate your being part of the procession of judges that precedes the Mass. Please come a bit earlier than 5:15 PM and bring your robe.

The "Red Mass" historically occurs as the term of court opens and dates back to the thirteenth century when it was celebrated at the Cathedral of Paris and then spread to other European countries. In England the celebrant was vested in red as were the Lord High justices. In the United States, the first Red Mass is believed to have occurred in New York City on October 6, 1928. A difference between the Red Mass and a traditional Mass is that the prayers and blessings are typically focused on the leadership role of those in the legal profession and to invoke divine guidance and strength during the coming term of Court. It is celebrated in honor of the Holy Spirit as the source of wisdom, understanding, counsel and fortitude, gifts which shine forth preeminently in the dispensing of justice in the courtroom as well as in the individual lawyer’ s office. (Credit to the St. Thomas More Society of Santa Clara County for this brief history.)

Please share this invitation with others associated with the legal profession who may be interested in attending the Red Mass and reception. Again, all judges are welcome and encouraged to attend.

We look forward to having you join us for this year's Red Mass.

Tuesday, September 21, 2021

Anthony LoCoco 'Constitutional cases in the U.S. and Wisconsin Supreme Courts' October 1st 2021

After the long pandemic, First Friday Masses will resume Friday October 1st. The Mass will again be held at Marquette University Law School in the Chapel of St. Edmund Campion on the 4th floor of Eckstein Hall at 7:30 A.M. Our celebrant will be Fr. Paul Hartmann. You are also invited to a light breakfast and fellowship following Mass ($5/person donation).

After a long time off, the gathering following the Mass will be part social and part presentation. The presenter will be Anthony LoCoco, Deputy Counsel at the Wisconsin Institute for Law & Liberty, who will discuss some interesting cases from both the Wisconsin Supreme Court and the U.S. Supreme Court. We understand there are a number of interesting constitutional cases that have not yet received much coverage, so the presentation should be interesting.

The Law School arrangements will be largely the same as before with a few differences noted below.

For contact tracing to be possible, the Law School will have a sign-in sheet for attendees of the Mass to complete when they arrive at the reception desk to receive their parking validation and to be let through the turnstiles. Also, while the building is normally locked and only accessible to those with an MUID card (with signs on exterior doors indicating this), for the First Friday Mass, the exterior doors will be unlocked from 7 a.m. to 7:45 a.m., so attendees can enter without an MUID card. This will include the entrance from the parking structure. Anyone arriving after 7:45 A.M. will not be able to get into the building. Masks are required when in the building. If someone arrives without a mask, the Law School will provide a paper one for them to wear.

We hope to see as many of you as possible on October 1st and subsequent First Fridays.

Our annual Red Mass will take place on the evening of Wednesday October 6, 2021. Details can be found on the posted invitation.

We are also planning the next First Friday Mass at the Law School for Friday November 5, where following the Mass, the speaker is scheduled to be Al McCauley from Pius XI Catholic High School and Saint Anthony on the Lake in Pewaukee. More details to come.

Friday, August 6, 2021

Level-up Remedies for Religious Discrimination

Note by Mark C. Gillespie at the Harvard Journal of Law & Public Policy.

"This Note argues that where substantive, explicit constitutional rights guaranteed by the Free Exercise Clause have been violated alongside the Equal Protection Clause, the Constitution may require courts to favor a level-up approach. In other words, courts should presumptively apply level-up remedies in religious discrimination cases involving free exercise violations." [p. 963]

Friday, July 2, 2021

The "Essential" Free Exercise Clause

Article by Josh Blackman, Professor, South Texas College of Law Houston, at the Harvard Journal of Law & Public Policy.

"In the span of a year, COVID-19 would affect every corner of the globe. During this period, governments were confronted with difficult choices about how to respond to the evolving pandemic. In rapid succession, states imposed lockdown measures that ran headlong into the Constitution. Several states deemed houses of worship as non-essential, and subjected them to stringent attendance requirements. In short order, states restricted the exercise of a constitutional right, but allowed the exercise of preferred economic privileges. And this disparate treatment was premised on a simple line: whether the activity was “essential” or “non-essential.” If the activity fell into the former category, the activity could continue. If the activity fell into the latter category, it could be strictly regulated, or even halted immediately. Houses of worship challenged these measures as violations of the Free Exercise Clause of the First Amendment.

"This Article provides an early look at how the courts have interpreted the “essential” Free Exercise Clause during the pandemic."

Tuesday, June 15, 2021

Mass and gathering for Feast of St. Thomas More June 22nd 2021

This year continues to be an "unusual" year and we continue to hold our First Friday Masses at Marquette University Law School in abeyance until further notice. However, we wish to recognize that the feast day of St. Thomas More is June 22, 2021 and offer an opportunity to attend the 7:00 A.M. Mass at Old St. Mary Church, at Broadway and Kilbourn in downtown Milwaukee.

The Mass is open to the public. Through Matt Fricker, we have arranged with the church for Society members to have access after Mass to the adjoining parish center for a brief gathering (with pastries, juice and coffee) for the first time in over a year.

Friday, June 4, 2021

The Essential Works of Thomas More

Steve Donoghue reviewed The Essential Works of Thomas More, edited by Gerard B. Wegemer and Stephen W. Smith*, at Open Letters Review.

"There’s no denying this enormous volume is worth that price tag, even though it can be neither bought nor read casually. It’s beautifully designed, with the frontispiece showing Pablo Eduardo’s gorgeous sculpture portrait of More from the Boston College Law School (and a close-up of Holbein’s famous portrait of an unshaven, worried-looking man), a barrage of textual footnotes on every page, and a binding strong enough for [the] thing’s immense weight."
*Yale University Press, 2020, $100.

Revisiting 'Smith':

'Stare Decisis and Free Exercise Doctrine', by Branton J. Nestor, at the Harvard Journal of Law & Public Policy.

"'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... .
—U.S. Const. amend. I'
The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. That holding, although good law, remains controversial, with many scholars and judges now asking whether, if Smith was wrong, it should be overturned. Wading into this debate, this Article suggests that one common stare decisis consideration—a precedent’s consistency with related decisions—likely cuts against retaining Smith, at least to the extent that Smith’s holding and rationale are compared to the Supreme Court’s broader approach to the Religion Clauses. This Article first argues that Smith broke from prior Free Exercise Clause precedent and that, although Smith remains good law, it is in tension with many strains of Free Exercise Clause precedent today. This Article next argues that Smith is in tension with the ascendant focus on text, history, and tradition that has become increasingly central to contemporary Establishment Clause doctrine. While this Article does not fully resolve Smith’s stare decisis fate, it suggests one important weakness confronting any attempt to defend Smith on stare decisis grounds—with that weakness, and the doctrinal tensions it reveals, pointing the way toward how to reform contemporary Free Exercise Clause doctrine to better account for the text, history, and tradition of the Religion Clauses."