Will pope’s views have an impact on Scalia?
Pontiff, Catholic justice at odds on death penalty
Supreme Court Justice Antonin Scalia is both a death penalty advocate and a devout Roman Catholic. He has said he would quit his job if he believed capital punishment was immoral, or if Catholic doctrine considered it immoral.
On Thursday, Pope Francis, leader of the world’s Roman Catholics, told Congress he is working toward “the global abolition of the death penalty ... since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.” He noted that U.S. Catholic bishops recently renewed their call to end the death penalty and said he supports them.
So, with California’s death penalty law possibly headed for the Supreme Court docket next year, and other constitutional challenges
waiting in the wings, is Scalia preparing to pack his bags? Don’t count on it. Although Francis condemned capital punishment in stronger and more unequivocal terms than previous popes, he stopped short of saying that “as a matter of faith and morals, no member of the Catholic community can take an opposing view,” said Douglas Kmiec, a constitutional law professor at Pepperdine University who has written about religious legal issues.
“I don’t expect (Scalia) to resign,” said David Smolin, a law professor at Samford University in Alabama who followed the justice’s writings on the issue. He said Francis was “making a speech to politicians, not trying to draft moral justifications in the Roman Catholic Church.”
Scalia hasn’t commented on the pope’s speech, which he didn’t attend. But the 29-year Supreme Court veteran, and leader of its conservative wing, has been down this road before.
‘Culture of death’
In the late 1990s, then-Pope John Paul II described capital punishment, along with abortion, euthanasia and assisted suicide, as part of a “culture of death.” While not condemning all executions, John Paul said they should be carried out only in cases of “absolute necessity” and only in defense of society, not for retribution or vengeance. In view of improvements in the modern penal system, he said, “such cases are very rare, if not practically nonexistent.”
In a May 2002 essay, “God’s Justice and Ours,” in the religious journal First Things, Scalia said the pope’s statements were at odds with “2,000 years of Christian teaching” and should not be considered binding on all Catholics.
‘Death is no big deal’
“Unlike such other hard Catholic doctrines as the prohibition of birth control and of abortion, this is not a moral position that the church has always or indeed ever maintained,” Scalia said. In the modern world, he said, “it seems to me that the more Christian a country is, the less likely it is to regard the death penalty as immoral. ... I attribute that to the fact that, for the believing Christian, death is no big deal.”
For scriptural evidence, he turned to the book of Romans, where St. Paul said that “the powers that be are ordained of God” and act as “the minister of God, a revenger to execute wrath upon him that doeth evil.”
“Just retribution is a legitimate purpose (indeed, the principal legitimate purpose) of capital punishment,” Scalia said. He said he was pleased that he found the death penalty morally acceptable, because “I like my job, and would rather not resign.”
Scalia raised the subject again in 2011, after then-Pope Benedict XVI sought clemency for a condemned U.S. prisoner. “If I thought that Catholic doctrine held the death penalty to be immoral, I would resign,” Scalia said in a speech at Duquesne University. “I could not be part of a system that imposes it.”
His theology has been challenged by the church’s best-known death penalty abolitionist, Sister Helen Prejean. In her 2005 book “The Death of Innocents,” she said she was “flabbergasted at the arrogance of a man who says ‘death is no big deal,’ when it’s not his child who’s being put to death.” A more appropriate biblical example, she said, was Jesus, “who transformed the mandate of ‘an eye for an eye’ by urging forgiveness, even of his enemies.”
Strong stance
The pope’s speech Thursday took an equally strong stance, saying the death penalty was contrary to the Golden Rule — treating others as we wish to be treated — which “reminds us of our responsibility to protect and defend human life at every stage of its development.”
Francis clearly considers capital punishment “anathema to his understanding and the church’s understanding of human rights,” but has not issued a binding moral decree to all church members, said Kmiec, the Pepperdine law professor.
Religion and law
Still, said Robert Weisberg, a Stanford law professor, the line Scalia has drawn is extraordinary and probably unprecedented for a Supreme Court justice. “He acknowledges that he allows his religion to trump his reading of the Constitution,” although so far he has managed to reconcile them, Weisberg said.
The issue could return soon to the high court, which last upheld the death penalty in 1976. A federal judge declared California’s death penalty law unconstitutional last year, saying the state was largely responsible for an appellate process of 20 years or more that has created an arbitrary system unrelated to just punishments. That case is before a federal appeals court and could reach the Supreme Court next year.
In a capital case in June, Justices Stephen Breyer and Ruth Bader Ginsburg said they believe the death penalty, as currently administered, serves no legitimate legal purpose. And Scalia, in remarks quoted by the Memphis Commercial Appeal, said in a speech Tuesday that he “wouldn’t be surprised” if the current court declared capital punishment unconstitutional.
He didn’t give reasons for his prediction, but made it clear that he would be appalled, just as he was when the court, over his dissent, declared a constitutional right to same-sex marriage.
“Do you really want your judges to rewrite the Constitution?” Scalia asked.