Scalia and Church Teaching

By Russell Shaw
HERALD Columnist
(From the issue of 2/28/02)

As a member of the United States Supreme Court, Associate Justice Antonin Scalia is an estimable jurist. By all accounts he is exemplary as a Catholic layman as well. On both scores, then, his recent remarks about the death penalty were dismaying.

If Justice Scalia had stuck to matters of law, he would almost certainly have had something interesting to say. As it is, his comments in reply to a question at Georgetown University on Feb. 4 and earlier at a conference in Chicago look, as reported, merely strange.

Among other things, the strangeness concerns the fact that here was a Supreme Court justice lecturing the pope about Catholic doctrine. On the subject of capital punishment — which he supports — Justice Scalia’s position appeared to be that he speaks for the Catholic tradition, while Pope John Paul II — who opposes use of the death penalty in virtually all circumstances — does not.

People who write newspaper columns express opinions on everything under the sun, but Supreme Court justices and even popes proceed at their own risk. In this case it was as if Pope John Paul had written an encyclical saying Justice Scalia misunderstood the 14^th Amendment. In that unlikely event someone might reasonably reply: he’s entitled to his opinion, but it really isn’t his field.

In fairness to Justice Scalia, he clearly has given this matter much thought — much more than most people, including other critics of the pope. The reports of his remarks bristle with references to St. Paul, St. Augustine, St. Thomas Aquinas, and St. Thomas More. Unfortunately, the eminent jurist also dragged in the old chestnut that if a pope doesn’t define something as dogma, a Catholic is at liberty to disagree. That isn’t true, even though it’s often said these days.

But one thing apparently missing from Justice Scalia’s citations was John Henry Newman’s Essay on the Development of Christian Doctrine. Published in 1845, this was the groundbreaking work whose writing helped bring Newman into the Catholic Church. It is relevant to the death penalty debate precisely because the shift in Catholic thinking on this topic appears to be a noteworthy case of "development" now taking place.

All of that aside, Justice Scalia made at least one extremely important point. If he agreed with the pope about capital punishment, he said, he’d "have to resign" from the bench. So, he implied, would others similarly situated. Catholics in the legal system could no longer seek, impose, or carry out the death penalty, and would be obliged to get out.

I leave it to others whether resignation in these circumstances would be the only acceptable response, but refusal to cooperate with the death penalty would be — and is — required of those who understand that it is morally wrong. Note, though, that this applies not just to capital punishment and Catholics in the legal system, but to other issues and professions as well.

For example: Catholics working in the health care system cannot perform or cooperate with abortion, euthanasia, direct sterilization, and contraception. Catholics in the defense system cannot be parties to direct attacks on civilian populations. Nowhere and in no circumstances may Catholics in good conscience do evil or directly cooperate in it. If that requires some form of conscientious objection — so be it.

As society slides further in the direction of a utilitarian ethic in conflict with moral truth, Catholics in many lines of work are obliged to resist. I disagree with Justice Scalia on capital punishment, but I congratulate him on reminding us of this fact.

Shaw is a freelance writer from Washington, D.C.

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