That Justice Antonin Scalia believes in execution as a moral form of punishment is a well-known fact. That he is an observant, traditional Roman Catholic is, similarly, well-known.
That he appears to believe his church supports the death penalty and that he’s willing to stake his job on that conviction is nothing short of astonishing. But there it is: “If I thought that Catholic doctrine held the death penalty to be immoral, I would resign,” he told an audience at Duquesne University Law School last month. “I could not be part of a system that imposes it.”
Let’s start with Scalia’s implication that the Roman Catholic Church supports the death penalty. The evidence to the contrary is overwhelming. In 2005, the U.S. Conference of Catholic Bishops released a statement saying that “ending the death penalty would be one important step away from a culture of death and toward building a culture of life.” In 2007, the Vatican said that capital punishment is “an affront to human dignity.” Both Pope Benedict XVI and his predecessor, John Paul II, have consistently voiced their opposition to the death penalty and praised governments and leaders who abolished it.
In 2007, Benedict sent a letter through an emissary pleading for clemency in the Georgia capital case of Troy Davis. On Sept. 21, the U.S. Supreme Court denied Davis’s petition for a stay of execution and Davis was killed by injection. One doesn’t know how Scalia voted. But in any case, that justice’s professional and democratic obligations overrode the express wishes of his pope that night.
Scalia might argue that the statements and pleas cited above are just that, statements and pleas reflecting a current mood. And he would be right. Bishops, Vatican officials and even popes say and write many things that are important or illuminating but do not qualify as doctrine, according to the law of the church. Scalia might argue further, as he has done in the past, that he is as traditionalist in his approach to religious interpretation as he is to the Constitution and that Catholic tradition has long endorsed capital punishment. Paul, Augustine, Thomas Aquinas and Thomas More — all these saints — he has argued, believed in punishment by death.
On the question of doctrine, though, Scalia is out on a limb, and like a cartoon bunny, he’s sawing it off behind him. In 1995, Pope John Paul II issued an encyclical — an official document of the utmost importance — called “Evangelium Vitae,” in which he weighed in on the death penalty.
“The nature and extent of the punishment,” he wrote, “ought not to go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible to defend society.” In today’s societies, the pope said, “such cases are very rare, if not practically non-existent.”
Death penalty opponents celebrated, saying that “Evangelium Vitae” voiced the church’s near total opposition to capital punishment. Although important theologians disagreed, saying the encyclical falls short of calling the death penalty immoral, Scalia was not one of them.
“I do not agree with ‘Evangelium Vitae,’ ” he said, “that the death penalty can only be imposed to protect rather than avenge, and that since it is, in most modern societies, not necessary for the former purpose, it is wrong.”
And so, after consultation with canonical experts, who advised him that the doctrine was nonbinding, Scalia — his words, again — “rejected it.”
To recap: The U.S. bishops oppose capital punishment. So do this pope, the last pope and documents from the Vatican press office. Catholic doctrine isn’t crystal clear, but Scalia himself believes “Evangelium Vitae” fails to support capital punishment. And so, in the tradition of millions of Catholics for thousands of years, he has rejected official teaching in favor of his own view, which he believes (to be presumptuous for a minute) to be more traditional and more moral than the established one.
That’s fine with me. I don’t want a justice sitting on the Supreme Court who submits blindly to religious authority or who holds his religion above the laws of the land. So keep your job, Justice Scalia. Just don’t pretend your church approves of the death penalty. Or that you aren’t like most people of faith, cherry-picking the teachings of your church that suit you best.