How Colorado unwittingly sided with Masterpiece Cakeshop in the SCOTUS hearing

During the Masterpiece Cakeshop vs. Colorado Civil Rights Commission (CCRC) case before the Supreme Court of the United States, an attorney for Colorado unwittingly sided with Masterpiece Cakeshop.¹

A quick summary of the case is that a gay couple in 2012 wanted Masterpiece Cakeshop to make them a rainbow-filled custom cake in celebration of their gay "wedding." Shop owner Jack Phillips is a religious man opposed to the concept of gay "marriage" and so chose not to affiliate his cake artistry in celebration of a gay "wedding" ceremony. Attorneys for Masterpiece argued that free speech protects their client from being compelled to make speech—in this case the artistic expression of a custom cake—contrary to his beliefs.

There are many facets to this case and the December 5 SCOTUS hearing worth discussing, including free speech, what verdicts should be rendered, or what laws might be best in a free market. But the purpose of this blog post is to focus on the apparently inadvertent concession made by CCRC.

KEY EXCHANGE #1

In the middle of the hearing, an exchange took place between Justices Alito and Sotomayor and Frederick Yarger, solicitor general on behalf of CCRC.

YARGER: Mr. Phillips would not be required to sell a cake to a gay couple that he wouldn't sell to his other customers.

Justice Alito interjected:

JUSTICE ALITO: Mr. Phillips would not— do you disagree with the fact that he would not sell to anybody a wedding cake that expresses approval of same-sex marriage?

Yarger does not answer the question directly but admits his case requires the presence of discrimination based on the identity of the customer:

YARGER: What he may not do as a public accommodation that offers to the public ... is decide that he won't sell somebody a product that he would otherwise sell because in his view the identity of the customer changes the message.

JUSTICE ALITO: No, he didn't say the identity. He said the message.

Crosstalk occurred until Justice Sotomayor interjected:

JUSTICE SOTOMAYOR: I'm sorry, could you answer the question asked?  Let's assume this couple did come in and wanted the rainbow cake. ... And this gentleman says one of two things:  If you're same-sex, I'm not going to provide you with a rainbow cake or I don't create rainbow cakes for weddings because I don't believe in same-sex marriage.  I'm not going to sell it to you. I'm not going to sell it to a same (sic)— a heterosexual couple.  I just don't want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding.

Yarger then repeated the parameter which would unravel his own case if true:

YARGER: Justice Sotamayor, in that latter case, if that was truly a product he wouldn't sell to any other customer, he wouldn’t sell to any other customer, he would not have to sell it to this customer.

In these words, Yarger has conceded his own position. Both Justices Alito and Sotomayor asked if it was okay if a business refused to sell even a heterosexual couple the same cake for the same purpose. Alito even referred to it as "fact" that Phillips would not serve to anyone a cake celebrating a gay "marriage." Thus, Yarger cannot say the refusal of service was based on the identity of the customer.

To look at it another way, if a heterosexual couple entered the store to buy a cake, the heterosexual couple would be the customer. If that heterosexual customer wanted a rainbow cake to bring to a gay "wedding," Mr. Phillips would have refused. The sexual orientation of the customer is not a determining factor in producing the cake in question. The customer could be gay or straight, and the business owner would refuse either way. Therefore, CCRC cannot argue that Masterpiece would sell the same product to one identity but not another. CCRC, by the admission of their own counsel, have no case.

KEY EXCHANGE #2

Shortly, thereafter, Justice Alito and Yarger held another exchange to the exact same effect:

JUSTICE ALITO: So if someone came in and said: I want a cake for— to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them the cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we're going to have a party to celebrate Kristallnacht. He would have to do that?

Notice what Alito did here. He came up with a scenario that 1) excludes the identity of the customers; 2) features the identical product for both customers; and 3) features a different purpose for the product. Yarger is thus forced to ignore the identity of the customer or any features of the product. Yarger is forced to address whether the purpose of the cake is a viable reason for refusing service. And, once again, he concedes exactly that:

MR. YARGER: Your Honor, that wouldn't be— 

JUSTICE ALITO: It's exactly the same words. 

MR. YARGER: It is, Your Honor. I haven't— I don't— that would be a question about whether there is a even-handed, genuine policy applied by the baker that doesn't have to do with the identity of the customer. And if it has to do with a message that is apart from the identity of the customer, then he can refuse that.

Phillips has additional precedent because he has knowingly served multiple gay customers in the past. Their identity cannot reasonably be said to be a factor if Masterpiece only refuses service to those customers—and customers of other identities—for the same type of event. Clearly, the event—in this case the celebration of a gay "wedding"—is the catalyst in refusing service, not the identity of the customer. Phillips has also refused service for a variety of other messages independent of the customer's identity, including refusing to make Halloween cakes, divorce cakes, and even cakes that have anti-gay messages on them.

Because customer identity is not a determining factor in this case nor in the hypotheticals posited by the Justices quoted above, CCRC has no case by their own unwitting admission.

¹For background and further analysis, see amicus brief by Dr. Ryan T. Anderson, The Hill, National Catholic Register, et al; See transcript of SCOTUS hearing PDF here; Listen to audio of SCOTUS hearing here.

"Birth Control" is not medicine

On October 13, 2017, the federal government issued an interim rule which exempts religious entities from paying for objectionable services as part of their insurance plans. These include:

(FDA)-approved contraceptive methods, sterilization procedures ... [including] certain drugs and devices that may not only prevent conception (fertilization), but may also prevent implantation of an embryo ... that many persons and organizations believe are abortifacient.

See here for several prior TCV blog posts about this issue.

WHAT IS MEDICINE?
Responding to this interim rule, Hillary Clinton tweeted: "Rolling back no-copay birth control shows a blatant disregard for medicine, science, & every woman's right to make her own health decisions."

Planned Parenthood, which is pacing at about 300,000 abortion victims per year, also responded. Their president, Cecile Richards, issued a statement saying exemptions for "birth control coverage" are an "attack on basic health care."

Many other celebrities and non-celebrities upset by the rule echoed similar sentiments.

But medicine is designed to fix an affliction of the body. Medicine's end goal is a body that functions properly. For example, medical remedies can come in the form of pills that directly fix a bodily problem such as antibiotics that attack or prevent bacterial infections. Medical remedies can come in the form of a surgery to repair a broken limb or remove a cancerous mass—any necessary part of that surgery could be considered medical care.

Birth control is not medicine. In fact, birth control's end goal is to cause a properly functioning body to malfunction.

One might try to argue something like anesthesia is not medicine, since, for example, it temporarily causes the patient the inability to feel—a malfunction of the body. However, this is only done as part of a larger goal of correcting the body. Body malfunction is not the end goal of using anesthesia. Something like an incision is similar. The ultimate goal isn't to scar a patient, but it can be necessary to ultimately treat the affliction. Contrary to these, the end goal of birth control is body malfunction.

In the case of oral contraceptives, an otherwise properly functioning ovulation cycle is stifled. Other oral contraceptives thicken an otherwise fertile uterine wall, preventing implantation of a zygote, thus killing it. Generally speaking, these are all forms of sterilization—which is a field of disease in itself. This is the product we are told must be covered by medical insurance. Forget for a moment any religious beliefs behind objections to the original mandate. Requiring insurance coverage of birth control can be opposed on medical grounds alone—specifically that birth control is not medicine.

In the earliest stages of this birth control/insurance matter, Cardinal Daniel DiNardo wrote on behalf of the U.S. bishops: "[P]regnancy is not a disease." 

In response to this latest rule, Lila Rose, president of Live Action, defended this concept in a tweet:

Abortifacient drugs are the antithesis of "healthcare." Medicine is meant to heal, not kill.

Abortifacient drugs are the antithesis of "healthcare." Medicine is meant to heal, not kill. https://t.co/Xx2XKP3TYp

— Lila Rose (@LilaGraceRose) October 6, 2017

And she is exactly right. Medicine is meant to heal.

WHAT ABOUT OTHER USES FOR CONTRACEPTIVES?
As in 2012, objectors immediately pointed out that some contraceptives can be used to regulate cycles or alleviate pains. However, in such cases, the product would not properly be called "birth control" because the drug is not used to prevent birth. Recall in 2012, Bishop Lori, speaking before congress, explained how the same medications typically used for birth control could possibly have other uses:

Blake Farenthold - The Catholic Church does not have a problem with contraceptives for medical purposes. So I would assume from that it wouldn't be morally objectionable to the Church to pay for those for medical purposes. I'm not trying to put you on the spot, I'm just trying to make sure I understand where the Church stands. 

Bishop Lori - That would be my understanding also.

And:

Bishop Lori - I think Catholic moral theology is very nuanced. It recognizes that the same drug can operate in different ways and accomplish different things. If it is used to prevent birth, it is against our teaching.

The Bishop's principle can be seen in action, for example, at the University of Notre Dame's human resources page:

[U]nder the university’s plan, you cannot receive reimbursement for oral contraceptives, contraceptive devices or contraceptive implants, except when specifically requested by a physician based on medical necessity and for purposes other than contraception.

Insurance companies have made similar distinctions with other drugs. For example, Finasteride can be used to treat enlarged prostates but also to treat hair loss. The latter is considered cosmetic and insurance companies are not required to cover the drug in such cases.

Nevertheless, the original HHS Mandate made no distinction regarding coverage of contraceptive products. Contraceptives were required for medicinal as well as anti-medicinal purposes. The Church and other entities object to the anti-medicinal use of contraceptives, i.e. birth control.

WHAT ABOUT VIAGRA?
You may have seen in reaction to this latest rule cries that requiring coverage for Viagra is hypocritical or misogynistic. For instance, NARAL, a vocal pro-abortion group, tweeted: "In case you were wondering, bosses can’t “opt out” of paying for Viagra." 

But what is the obvious failure of intellect in that statement? Viagra, which treats erectile dysfunction, is designed to correct a body malfunction. And, again, birth control, is designed to cause body malfunction. If NARAL and their peers were serious about finding a valid parallel, they would argue that something like OTC skin ointment should be covered since it is designed to fix a bodily affliction or mouthwash which is designed to prevent poor hygiene.

I should note, for the purposes of this blog post, I'm not arguing whether or not any drug/treatment should be "required" in medical insurance policies. Certainly there are reasonable discussions that could be had regarding coverage of only major medical expenses or to give market forces a greater voice in shaping insurance policies. The purpose of this post is focused on birth control and the nature of medicine.

OUR LADY'S INVOLVEMENT?
You might have noticed at the beginning that this interim rule was issued on October 13, 2017, the 100th anniversary of the apparition of Our Lady at Fatima and the Miracle of the Sun. One of the central figures in this contraceptive case was the Little Sisters of the Poor who would have incurred severe fines under the original mandate had they not paid for birth control for someone else. Other religious entities faced similar burdens. Many prayers on this matter have occurred over the past 5 years. Participation in birth control, sterilizations, and chemical abortions are clearly a moral offense in the eyes of the faithful. This is why the matter of conscious rights took a prevalent position in this discussion. We saw in a previous TCV article the amazing rescue of Chilean miners on October 13, 2010. Might Our Lady have interceded for the faithful and little ones, to protect their consciences, lives, and souls?

Debunking the Monty Hall "solution"?

Although this post is not directly theological, it is an exercise in logic and lateral thinking. Such cognition can be useful in life when answers are not obvious. It can also help in theological studies such as when interpreting Scripture in instances where figurative lessons await discovery beneath the literal meaning of a text. So let's look at the classic Monty Hall problem.

Here is how an article at Scientific American presents the Monty Hall problem and it's supposed solution:

[Y]ou are on a game show with three doors, behind one of which is a car and behind the other two are goats. You pick door #1. Monty, who knows what’s behind all three doors, reveals that behind door #2 is a goat. Before showing you what you won, Monty asks if you want to switch doors. ... [Y]ou should always switch. ... Here’s why: At the beginning of the game you have a 1/3rd chance of picking the car and a 2/3rds chance of picking a goat. Switching doors is bad only if you initially chose the car, which happens only 1/3rd of the time. Switching doors is good if you initially chose a goat, which happens 2/3rds of the time. Thus, the probability of winning by switching is 2/3rds, or double the odds of not switching. ... [T]ry the various computer simulations yourself and you will see that you double your actual wins by switching doors.

The article also posits these three assumptions:

(1) Monty never opens the door you chose initially; (2) Monty always opens a door concealing a goat; (3) When the first two rules leave Monty with a choice of doors to open (which happens in those cases where your initial choice was correct) he makes his choice at random.

Let's take a look at this visually in 2 Figures:

The classic Monty Hall solution recommends each contestant switch to the other's door to improve his odds of winning. But, as you can see from Figures A and B, there is a statistical conundrum.

In the above scenarios, each of the three classic Monty Hall assumptions were accounted for in each contestant's game. And, remember, the hidden prize location is the same for both contestants. The classic Monty Hall solution tells contestant #1 that door #3 has a 2/3 chance of winning. And the classic Monty Hall solution tells contestant #2 that door #1 has a 2/3 chance of winning. But how can 2 doors have a 2/3 chance of winning? The two doors cannot combine for a 4/3 chance of winning. It is at least statistically paradoxical.

In conclusion, I don't profess to be a statistics expert. And even if someone offers a sound mathematical explanation to account for what I've discussed above, I think the thought exercise will at least be fruitful in producing that answer — one which I have not previously seen to date.

A 2D graphic analogy of the Trinity

The mystery of the Most Holy Trinity is the central mystery of the Christian faith and of Christian life. God alone can make it known to us by revealing himself as Father, Son and Holy Spirit. (CCC#261)

A couple years ago, I came across this illusion. Do you see a woman or do you see a bird? Look at it long enough, and you'll see both. There are many similar famous illusions. But what struck me at the time was how the image didn't change, yet it embodied both depictions. Simply speaking, the image is a two-in-one. This ignited a lightbulb over my head.

The catechism initially describes, you guessed it, three qualities with regard to the dogma of the Holy Trinity:

• The Trinity is One (CCC#253)
• The divine persons are really distinct from one another (#254)
• The divine persons are relative to one another (#255)

Was there a work of art that depicts three-images-in-one without a change to the artwork itself, similar to the above woman-bird illusion? I took to the Catholic Forums with this quest. User Beryllos provided a figure involving cube shapes.  I've recreated my own version of the artwork here:

There are three distinct perspectives to view this one work of art. You can see here:

• A cube tucked in a corner
• Looking up at the missing corner of a cube
• A small cube at an angle in front of a larger cube

If you don't see any of these, I created animated gifs at the bottom of this post to better visualize each of the three hidden perspectives. I also did it as an excuse to dust off old LEGO® blocks.

Let's review the three qualities of the Trinity in the catechism as they correspond to the cube illusion:

• One - The cube illusion is a single image just as God is indivisible. When recognizing the different cubicle arrangements within the image, the image itself is not divided. 
• Distinct - Each of the three cubicle arrangements are different, yet embody the entirety of the original image. This corresponds to the indivisibility of God even though the three divine persons are distinct. 
• Relative - CCC#255 expounds on the Trinity's relationships thusly: "the real distinction of the persons from one another resides solely in the relationships which relate them to one another." And it goes on to reference Father, Son, and Holy Spirit, which are relational concepts. In the cube analogy, the relational distinctions are admittedly weak in that none of the three relationships between each figure are dependent on one another. Instead, each of the three distinct perspectives are revealed in the way each relates to the same lines. 

Certainly, neither this, nor any temporal analogy, is adequate to "explain" a mystery as vast as the Holy Trinity. As Cardinal Ratzinger (Pope Benedict XVI) once said of Christ's decent into hell, we try to understand the matter with "images which remain very inadequate." "For now we see in a mirror dimly," (1 Cor. 13:12) as Paul wrote. But, we can still get dim glimpses of God through "the world's order and beauty." (CCC#32)  Perhaps this thought exercise contributes to that pursuit.

7 historic photos with Catholic back stories III

This is the third "historic photos" post here at The Catholic Voyager. See here for Historic Photos 1 and Historic Photos 2. These photos often contain obvious or lesser known details pertaining to Catholicism. Here are the next seven in no particular order.

1. Hollywood to sisterhood, 1958

Photo of Dolores Hart and Elvis Presley from public domain trailer of King Creole (1958).
Acquired from Wikimedia Commons.

In 1957, young Dolores Hart starred opposite Elvis Presley in his first film, Loving You. She was the first to kiss him on screen. From there her career blossomed. She starred in 10 feature films opposite many famous Hollywood stars. Pictured above, she is seen in the 1958 film, also opposite Elvis, in King Creole.

And then Hart answered the call to join a contemplative Benedictine monastery. In 1963, she entered the Abbey of Regina Laudis in Bethlehem, CN. Today, Mother Dolores is prioress of the abbey.

The National Catholic Register relayed Hollywood’s reaction in an interview with Mother Dolores:

They were shocked — angry. My boss, Hal Wallis, just couldn’t believe it. He sent me a message that said, "Don’t leave. Because if you do, I’ll make sure you never work again in Hollywood!" [She laughs.] But, eventually, he became a very good friend. His wife is still alive and sends us a basket of fruit every month.

On prayer, she said:

Prayer is not something you just teach a little child as a pious action. Prayer comes from the deepest heart of human beings who want their life to continue or they want the life of someone else to continue. The call for prayer is a belief and faith that their needs can be answered.

Some believe young Dolores' role as St. Clare of Assisi influenced her conviction to become a nun. Although Dolores grants there may have been some influence there, she better recalls a moment while filming Lisa, a story of a Nazi survivor. In speaking with a real Nazi survivor, Dolores contemplated the evils of the world. In another National Catholic Register interview, she stated:

I realized that the human condition was in such terrible pain that I wondered what one person could do. What can one woman do to face that kind of evil? The only thing that came to me was: The consecration of a woman was the only way to fight that. You have to believe that giving your body into that kind of prayer has a meaning.

See further reading at the Abbey of Regina Laudis.

2. Cologne crane, 1868

The Cologne Cathedral crane.
Photo by Theodor Creifields, 1868. Acquired from Wikimedia Commons.

The Cologne Cathedral crane pictured here was a centuries-old mechanical marvel. The cathedral, whose construction began in 1248, took over seven centuries to build! (I'm betting any original Contract Surety Bonds on that construction project defaulted). The crane was thus once a fixture in the Cologne skyline, it’s 13 meter jib serving as a familiar arm in the sky for centuries. The date of origin of the crane is unclear, but it appears in paintings as early as 1450. The official website of the Cologne Cathedral posits a date of origin for the crane around 1350. But many of those centuries were without activity.

In either the 15th or 16th century, lack of funds prevented further construction until 1842.  The official website imagines that the crane was originally built at ground level, and slowly raised along with the construction of the tower by lifting each corner atop the tower blocks, up to 50 cm at a time, until the base reached a height of 45 meters.  Many websites and books reference this device when detailing the history of cranes. By 1880, the Cathedral was completed.

3. Soccer priest, 2008

Chase Hilgenbrinck (left) playing for the New England Revolution in 2008.
Photo acquired from Fr. Hilgenbrinck.

As a promising soccer talent in high school and at Clemson University, Chase Hilgenbrinck eventually signed in Chile where he played several seasons, including three in the Chilean top flight league.

In 2008, he was signed by the Colorado Rapids in Major League Soccer, although he was released during the pre-season. But other scouts recognized his defensive talent and he eventually signed with the New England Revolution. He ended up playing several games for the Revolution until he decided to leave the sport of soccer. Why? To become a priest, of course! Our story here resembles Dolores Hart's, told above, of someone leaving public fame for religious life.

After announcing his decision to leave the Revolution and enter the seminary, Hilgenbrinck said:

"I wouldn't leave the game for just any other job. I'm moving on for the Lord. I want to do the will of the Lord, I want to do what he wants for me, not what I want to do for myself." (CatholiCity)

Even then, he already incorporated soccer technique into his new vocation:

"When you play soccer you have to continue getting better every day. It's the same with faith. You have to improve every single day, search for opportunities to deepen your relationship with Christ."

Hilgenbrinck was ordained in 2014 and currently serves at St. John’s Catholic Newman Center in Champaign, Illinois.

In May 2016, Fr. Chase returned to the city of Chillán where he played “on first division teams for three years.” (Catholic News Agency) This time, he returned not as a soccer player, but as a priest, to celebrate the Eucharist with over 600 faithful in the community that knew him.

Further reading at Wikipedia: Chase Hilgenbrinck.

4. Tomb of a priest, 2016

Presumed tomb of Don Miguel de Palomares (d. 1542) in Mexico City.
Photo: Mauricio Marat, INAH. Used with permission.

In April 2016, construction crews sought to install new lamp posts to illuminate the Mexico City Metropolitan Cathedral. In digging one of the holes, the crew struck a historic slab of stone.

Pictured above is the stone, now featuring the hole made by the construction crew. As it turns out, the slab is inscribed with the name Miguel de Palomares, a Catholic priest. The slab is apparently the cover of his tomb. 

Miguel was one of the first Catholic priests to evangelize Mexico. He arrived in Mexico from Spain in 1524 “to work with Juan de Zumarraga, the Franciscan prelate and the first Bishop of Mexico.”   He died in 1542.

Miguel’s tomb is set in a foundation of what was once an Aztec temple. The Aztecs were known for committing hundreds if not thousands of gruesome human sacrifices per year. 

The question was raised in media as to why the Church would not have destroyed the Aztec temple. However, the question may not be so intriguing as simple. As explained by Raul Barrera, an archaeologist for the Mexican National Institute of Anthropology and History: “The Spaniards, Hernan Cortes and his followers, made use of the pre-Hispanic structures, the temples, the foundations, the floors.”  The foundation was already firm and saved on excessive construction materials and would have been adequate for a foundation for a cathedral.

5. Easter Island Moai, 2011

A row of Moai at the Easter Island sacred site Ahu Akivi (2011).
Photo by Arian Zwegers. Acquired from Wikimedia Commons.

Easter Island, natively known as Rapa Nui, is home to many mysterious statues and mythology from ancient history. The most famous icons of this historic place are the great “Moai,” giant monument busts. Pictured here is a row of Moai at the sacred site Ahu Akivi, and the apparent location on the cover of Father Sebastian Englert’s 1970 book, Island at the Center of the World. 

Easter Island is one of the most remote inhabited lands on the entire planet, about 1,200 miles away from the nearest inhabited Pitcairn Islands and 2,000 miles away from the nearest mainland in Chile.

Father Englert was a Capuchin Franciscan friar stationed at Easter Island for decades. The island is home to a single museum named The Father Sebastian Englert Anthropological Museum. The museum website describes the priest having "lived at Rapa Nui for more than 30 years, extensively documenting the island's legends, language and culture in general."

Father Englert is suspected to have been the only non-native during his time on the island to have mastered the language. Following is an excerpt from Father William Mulloy’s biography of the late Father Englert:

In 1935 he volunteered to serve on Easter Island, and continued there until his death [1969], having contact with the outside world only through supply ships which arrived once or twice a year. He devoted every free moment to study of his island and its people. 

Fr. Mulloy described Fr. Sebastian as a student of Easter Island's "linguistics, ethnology and archaeology. Fr. Sebastian was unique in that "no other investigator of the island [had] ever been able remotely to approach the rapport which he had obtained with the islanders." He was also involved in the restoration of the island's monuments, which "began to be fulfilled in 1960."

6. LBJ oath of office, 1963

Lyndon B. Johnson, standing between Lady Bird Johnson and Jacqueline Kennedy,
takes the oath of office aboard Air Force One on Nov. 22, 1963.
Public domain photo acquired from jfklibrary.org

November 22, 1963 forever remains a day of infamy in the history of the United States. At around 12:30 local time, President John F. Kennedy was shot and killed by a sniper in Dallas as he rode along side his wife, Jacqueline. This seismic event in the history of the U.S. remains today the subject of fascination, conspiracy theories, and mysteries. One such mystery involves the Catholic missal on which Lyndon B. Johnson was sworn in approximately 2 hours later.

Following the President’s death and ensuing chaotic events, a group of federal staff found themselves aboard Air Force One, prepared to fly back to Washington, along with the deceased. Mrs. Kennedy, keeping near the casket, accompanied the group. Johnson had requested that a Judge Sarah T. Hughes administer the oath. 

The events surrounding the Catholic missal begin around 2:34 p.m.  A timeline appearing in Esquire recounts the moment as follows:

2:34 p.m.Marie Fehmer palms the typewritten oath to Judge Hughes. But they still need a Bible. Larry O'Brien, excusing himself to Jackie, finds a Catholic missal in the bedroom's nightstand drawer. It is in a small box, still wrapped in cellophane. It is possibly a gift, something that somebody, somewhere, had thrust into Kennedy's hands, perhaps even on this last trip to Texas. Now O'Brien tears open the box and hands the book to Judge Hughes.

A recorded phone call (MP3) between U.S. Supreme Court Associate Justice Abe Fortas and Judge Hughes reveals Fortas stating: 

“[Larry O’Brien] handed you something that he thought was a Bible that a steward had handed him, which had been in the President’s quarters.”  

How Kennedy acquired the missal remains unknown. Some articles posit that someone, perhaps even a civilian, had simply handed it to President Kennedy at some point.

Then came the administration of the oath. A 1967 article in the Washington Post reported:

“Mr. Johnson and Federal Judge Sarah Hughes, who administered the 36-word oath, both believed that the small, leather-bound book was a Bible. … [O’Brien] entered the room. He handed the missal to Judge Hughes, who looked at it briefly and took the book to be a Douay (Roman Catholic) Bible.” (Washington Post, Feb. 26, 1967, PDF)

And, so, at 2:38 p.m., President Lyndon B. Johnson was sworn in as 36th president of the United States. Everything about the scene felt providential. Mrs. Kennedy stood by his side, wearing clothes still stained with her husband’s blood. Kennedy’s body was elsewhere in the jet. Judge Hughes to this day remains the only woman to administer the oath of office. And Johnson, a Protestant, took the oath wth his hand atop a Catholic missal.

Why the missal was perceived as a Bible may have come from the cover. According to Justice Fortas in another recorded call (MP3):

"[T]he missal was bound in “black leather cover…with a cross on it. I would assume looking at it, it was a Bible. I’m sure the President (Johnson) knew nothing about it.”

Fortas later revealed that the book was a “St. Joseph Sunday missal.” A photo of the missal can be seen here at the LBJ Library & Museum.

The immediate fate of the missal following the oath is also unclear. In the same phone call, Justice Fortas stated, “somebody, probably a secret service man” handed the missal to Lady Bird Johnson, who placed it in her bag and returned it to the White House archives. Mrs. Johnson, who was also on the call, claimed she did not remember the sequence of events. 

The Esquire account describes the immediate fate of the missal thusly:

2:41 p.m.There will soon be stories that have Judge Hughes taking the Catholic missal with her and in her shock handing it to a mysterious man, never to be seen again. In fact, the missal ends up in Lady Bird's purse. She will show it secretively to Liz Carpenter, and they will worry for a moment that it's a Catholic book, one more of the day's accidental crossings. Today, the missal is at the LBJ Library in Austin. It looks as new as it did the day it was made, its soft black leather cover embossed with a cross.

Two other mysterious aspects surround the missal. First, details of the missal’s fate were apparently never revealed to William Manchester, who was then writing The Death of a President. In his book, published in 1967, Manchester stated that the missal was missing. The other matter concerned ownership of the missal. As the phone calls reveal, the inside of the book’s leather binding are embossed with “JFK.” The calls touch on whether or not the White House legally had the right to retain the missal or if it should be returned to the Kennedy family. The LBJ Library (also the location of 9 recorded phone calls regarding the missal) clears up these two issues as follows:

Although Manchester says in his book, published in 1967, that the book used for the swearing-in ceremony was missing, it is clear now that the White House had the missal but did not disclose this at the time.  In 1979, when Merle Miller was doing research at the Library for his book on LBJ, Miller asked Library staff for information on the book used to swear in the President.  At that time Harry Middleton, Director of the LBJ Library, disclosed that the Library had the book and that it was a Catholic missal.  The question of legal title arose at that time since the book had actually belonged to President Kennedy.  Middleton notified John Stewart, Assistant Director of the Kennedy Library, and offered to send the item to the Kennedy Library.  On April 2, 1979, Dan Fenn, the Director of the Kennedy Library, responded and stated that it was his opinion that the missal should remain in the Johnson Library.  Dan Reed, the head of Presidential Libraries at the time, concurred.  The LBJ Library considers legal title to the item to have transferred with this letter.

7. The John McNulty case, 1894

Sketch of John McNulty from Jan. 26, 1894 issue of the San Francisco Call newspaper.

Saturday, March 24, 1888. San Francisco. John McNulty, a longshoreman, was once employed by a George Haskell, who is said to have teased and bulldozed McNulty frequenty. McNulty had left his employment to work for Haskell’s son. McNulty’s departure was considered personal to Haskell Sr. and his workmen. Quarrels had escalated, and the matter was to be settled in a fistfight between McNulty and one of Haskell’s men, James Collins, at the nearby wharf. The encounter occurred that Saturday afternoon.

According to McNulty, Collins showed up at the wharf with friends who proceeded to “beat him with a wagon-wheel spoke till he bled from the lungs.” Later that evening, McNulty purchased a "revolver to protect himself."

Sunday, March 25, 1888. The next day, McNulty claims to have seen Collins and friend Mike Halpin (or Halpen) walking down the street. The three men had an encounter, apparently arguing about the fight at the wharf the day prior. McNulty was quoted as follows:

“Collins approach me in a threatening manner and put his hand to his hip-pocket. Fearing he was going to shoot me, I drew my pistol and fired it at him.” 

Collins died shortly thereafter at a nearby hospital.

Halpin’s version of the story differs. He claims McNulty was the aggressor and challenged Collins to a fight. McNulty then is said to have shot Collins after Collins refused to renew the fight. A Wednesday news report adds the testimony of Patrick Morgan, who also claims to have been with Collins when the murder occurred.  In this report, Morgan's account of the murder is similar to Halpin’s, although there is no mention of Halpin's presence.

McNulty was immediately arrested by nearby police. His pregnant wife did not learn of the arrest until after visiting hours, and she wept outside the prison, unable to enter. While behind bars, McNulty was reported to have heard hear crying and said, “Poor woman, she will soon give birth to a child that will have a man like me as a father. That’s the only thing I am sorry for.”

In July 1888, McNulty plead not guilty. The trial was even postponed because Mrs. McNulty had given birth and was considered a key witness.

When the trial began, a new report said the McNulty defense, behind attorney J.N.E. Wilson, was temporary insanity. The jury found McNulty guilty on August 6 which likely meant the death penalty. McNulty is reported to have later sparred “violently insane” with prison guards that evening following a visit from his wife.

After some appeals, Judge Murphy delivered his sentence on October 6—the death penalty. At the announcement, McNulty’s mother reportedly cried “Oh, Lord, have mercy,” while his wife cried, “My God, my God, pity me and my child.”

Subsequent appeals continued to occur for many months. In a brief segue on January 12, 1890, McNulty escaped from prison with five other inmates, having snuck past a guard and dug through a rotted wall. By January 19, he was recaptured after traveling “through the mountains.”

Appeals continued for the next years. By then, McNulty was represented by attorney Carroll Cooke. But the sentence of death continued to loom.

An August 1892 article describes Nulty’s prison situation.

The condemned man is a Catholic and he is zealously devoting most of his time in preparing for death in accordance with his faith. During the afternoon he was visited by two priests and two Sisters of Mercy. … At the upper end of the cell is a shelf. Upon this stands a crucifix flanked by two candles and a few glit-edged prayer-books.

The article also reported an interview between McNulty and a reporter. "I killed Collins in self-defense," McNulty said, echoing his defense from the day after the murder.

By 1894, the gallows had already been raised twice to hang him, only to be stored again after legal stays and appeals.

McNulty was scheduled again for execution by hanging on January 26, 1894. But our story comes to an end on January 25. McNulty sat in his cell accompanied by two Sisters of Charity, consoling him and offering prayers. At 2:15 p.m. a telegram is delivered to the prison. It is from a sheriff relaying a message from California Governor Henry Markham. The message reads:

Sacramento, Jan. 25, 1894. McDade, Sheriff, San Francisco—The Governor has commuted McNulty’s sentence to imprisonment for life. I will bring official document down to-morrow morning.

According to the news report, the entire prison population, as well as an outside crowd, received the news with joy. The prison sheriff reportedly exclaimed, “Thank God!” on hearing the news. The deputy and newsmen apparently ran to tell McNulty the news, who himself exclaimed, “Praise God!” The sisters shook his hand as well as the messengers'. (News reports regarding Mrs. McNulty were absent.)

After hearing the news, McNulty immediately sent a message to his mother reading:

Mrs. Miles McNulty, St. John, New Brunswick, care of Joseph Watson—Dear Mother: God has spared you from the disgrace that once threatened you. Yours. John McNulty.

McNulty’s first visitor the following morning was Father Jaquet of St. Ignatius Church, who encouraged the prisoner to have hope. In an interview with the San Francisco Call, Father Jaquet stated:

I have known McNulty for years, and I never believed he would be hanged. Why? Well, when I learned that his mother came here to sacrifice her last cent for him, yet refused to swear falsely for his sake, to swear that he had been subject to epileptic fits for eighteen months when he had not, I believed that for her sake his life would be spared.

Remember, during his first attorney’s term, McNulty’s plea was temporary insanity. Perhaps the mother had refused to give false testimony that McNulty suffered from seizures.

And so, our story comes to a close. It is a strange story that raises moral questions. Whether or not McNulty killed in self-defense remains unknown. Obviously the judge and jury did not buy the self-defense argument (nor his original plea of insanity with his first attorney). However, what does not seem in dispute is that Collins and some other party indeed took to beating McNulty the day before the kill. A medical report did not confirm the use of foreign objects in McNulty’s beating, as McNulty claimed, but it did reveal “discolored contusions” on McNulty’s body.

An editorial did appear shortly after Gov. Markham’s commutation, criticizing the governor’s decision, insisting murder was no fair exchange for battery. Although, as cited above, other reports claimed the community, the police staff, and religious were gladdened by the commutation. Did this indicate McNulty had shown remorse? Was McNulty only regretful for his mother and wife and child, but not the killing of Collins? That priests and nuns visited him regularly, coupled with the report that he had taken up his Catholic faith, does give evidence that he may have repented. What about Collins’ culpability? We know little of the victim’s life, other than probably leading another man’s beating, and possible involvement in bullying McNulty in the days prior to the incident at the wharf. The incident may move us to ponder our own lives and interactions with others as we strive, even if poorly, to lead worthy lives. And, as faithful, we can hope with God for the salvation of all men (1 Tim. 2:3-4).