From the WSJ Opinion Archives
REVIEW & OUTLOOK
Supreme Justice
Scalia weighs in on his Catholic faith and the death penalty.
Usually when the opinion of a sitting Supreme Court justice provokes public controversy, the subject is the law. But leave it to Antonin Scalia to leave his mark on theology as well.
At a moment when the headlines are fixed on the scandal of sexually predatory priests, Justice Scalia has used a magazine article to weigh in on another prickly topic: the morality of the death penalty.
The essay appears in the latest issue of First Things, occasioned by a debate not entirely of the justice's making. In early February, during a Q&A session at Georgetown University, his alma mater, Justice Scalia was asked how he could reconcile his own rulings upholding the death penalty with the proscriptions against capital punishment in the new Catholic catechism. When Justice Scalia defended himself--by saying that the catechism was at odds with 2,000 years of church teaching and that judges shouldn't be putting personal preferences above the law anyway--he suddenly found himself cast in an unaccustomed role: religious dissenter.
Justice Scalia's defense of the death penalty within the context of traditional Catholic teaching makes a fascinating read. But the wider import of his message extends far beyond Catholic theology and cuts to the heart of a debate we hear with every judicial or executive nomination: the right relation between faith and law in the American constitutional system.
This is not a new debate; Americans from Jack Kennedy to Joe Lieberman have had loyalty questions directed at them because of their respective faiths. Indeed, notwithstanding the Constitution's prohibition against any religious test for public office, wasn't the argument against John Ashcroft that his religious faith would prevent him from carrying out the laws of the land?
Justice Scalia says that, for strict constructionists such as himself, there is no conflict--because the proper role of courts is to interpret the Constitution, not rewrite it. Mr. Ashcroft answered along the same lines when he said he would administer existing law on Roe v. Wade. As Justice Scalia writes, his views "on the morality of the death penalty have nothing to do with how I vote as a judge, [though] they have a lot to do with whether I can or should be a judge at all." Meaning that a Supreme Court judge needs to be honest with both himself and the American public when he swears to uphold the Constitution.
Which leads to an interesting double standard. Where was the outcry about imposing private morality on public policy when another Supreme Court justice, Harry Blackmun, announced that he would vote to overturn all death sentences? Or when Christie Whitman refused to enforce a partial-birth abortion law duly passed by the New Jersey Legislature because she personally opposed it?
In his First Things essay, Justice Scalia leaves no doubt where he stands: respectful disagreement with a nonbinding teaching of his church and a request for judges who find their private beliefs in irreconcilable conflict with their oath of office to resign. It doesn't settle the debate over the death penalty. But it sure explains why, when it comes to individuals imposing their own morality on American law, we probably have more to fear from judicial activism than from religious belief.
