Catholic member of the Supreme Court is off-base in ideas
about church teachings
By Patricia Kasten
Compass Associate Editor
Supreme Court Justice Antonin Scalia, a Catholic and opponent of abortion, seems nonetheless misguided in his obligations to the teaching of his church.
The justice recently participated in a conference on the death penalty at the University of Chicago Divinity School. There, he stated support for capital punishment, defended his right to oppose John Paul II's teaching against it and argued that his beliefs should not affect his legal decisions.
Can a practicing Catholic separate his beliefs from the bench? Should, as Scalia said, a judge who opposes capital punishment resign if he opposes the law of the land? What about a justice who opposes abortion?
Should faith influence one's work? Vatican II said, "(I)t belongs to the laity to seek the kingdom of God by engaging in temporal affairs and directing them according to God's will. They live in the world ... (that) they may contribute to the sanctification of the world" (Lumen Gentium, no. 32).
Addressing the pope's 1995 encyclical, Evangelium Vitae, Scalia said it is not ex cathedra (infallible) teaching. "I have given it careful and thoughtful consideration," he said, "and rejected it."
Can he? The Baltimore Catechism said: "A baptized person separates himself from full incorporation in the Mystical Body by schism when he openly refuses obedience to the lawful authorities of the Church, particularly to the Pope" (question 169E). The Catechism of the Catholic Church says much the same, though in more gentle terms, about the authority of the bishops and pope (see nn. 888-896).
Justice Scalia next questioned the pope's adherence to tradition. CNN quoted him: "No authority that I know of denies the 2,000-year-old tradition of the church approving capital punishment." Scalia added that the church has always supported the death penalty as retribution.
Have we? Going back 2,000 years, we hear Jesus say, "You have heard that it was said, 'An eye for an eye'... But I say to you ... When someone strikes you on your right cheek, turn the other on to him as well" (Mt 5:38-40).
Of the early church, fourth century historian Socrates of Constantinople reported that Emperor Julian refused public office to Christians because "their law forbids them to use the sword against offenders worthy of capital punishment." (Ecclesiastical History, Chapter 13).
Scalia cited St. Augustine as favoring the death penalty. Yet Augustine sought mercy for the convicted killers of fellow Christians "so that the sufferings of the martyrs, which ought to shed bright glory on the Church, may not be tarnished by the blood of their enemies" (Letter to Marcellinus, 412 AD).
Scalia also cited St. Thomas Aquinas. The Angelic Doctor did accept the death penalty -- if no other means could be found to protect others. However, Thomas added that the penalty should not be used if it endangered others: "Wherefore our Lord teaches that we should rather allow the wicked to live, and that vengeance is to be delayed until the last judgment, rather than that the good be put to death together with the wicked" (Summa, part II, question 64).
The U.S. Bishops, issuing statements against the death penalty since 1974, make just that argument: the death penalty endangers society. "We see the death penalty as perpetuating a cycle of violence and promoting a sense of vengeance in our culture... We oppose capital punishment not just for what it does to those guilty of horrible crimes, but for what it does to all of us as a society" (4/2/99).
Additionally, the bishops of Ohio (where Scalia first practiced law) have opposed capital punishment since 1996 and Card. James Hickey of Washington, DC, urged all his parishes to oppose it (9/14/97).
So it should be clear to Justice Scalia where the church stands -- right where the Spirit has been leading it since Christ himself suffered capital punishment.
It should be equally clear to a practicing Catholic where his vocation lies. "Catholics... should not decline to enter public life; for by a worthy discharge of their functions, they can work for the common good and at the same time prepare the way for the Gospel" (Decree on the Lay Apostolate, Vatican II, no. 14).