Courts

Now That The Pope Is Against The Death Penalty, Will Our Theocratic Supreme Court Follow Suit?

Or does the Court only get religious when it's crushing the rights of women and gays?

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Justice Francis is not what I’m looking for, but would he be better than Brett Kavanaugh? (TIZIANA FABI/AFP/Getty Images)

The reign of Donald J. Trump has really been an acid test for the Christian community and, at least at a leadership level, that community has miserably failed their moral test. A terrifying number of Christian religious leaders have exposed themselves to be inveterate hypocrites. Many faith leaders are willing to go along with seemingly any level of depravity and outright cruelty so long as their president continues to appoint pro-life, anti-gay judges.

Given what we now know about these communities of faith, it is and was never surprising that the same people who can courageously harass and terrorize young women seeking medical consultation from a doctor are also largely silent when already born humans are murdered by the hands of the state.

But not all spiritual leaders have such an a la carte approach to death. Last week, one of the most important spiritual leaders in the entire world, Pope Francis I, declared the death penalty “inadmissible” in all cases.

While Protestants are free to nail a list of “people it’s okay for the state to kill” to Pope Francis’s door, Catholics, arguably, are supposed to listen to this man. And that makes some wonder if our Supreme Court will listen to the Pope’s surprisingly legalistic decree about the death penalty.

The Supreme Court has been dominated by Catholics for a generation. Currently, four members of the Supreme Court are Catholic: John Roberts, Clarence Thomas, Samuel Alito, and Sonia Sotomayor. If Brett Kavanaugh is confirmed, that’ll make five Catholics to replace the Catholic Anthony Kennedy. Before Neil Gorsuch (a Protestant) replaced Antonin Scalia (a Catholic), there were six Catholics on the high court.

Now, a justice’s faith is supposed to be no more important to their rulings than their hair color. We are supposed to live in a secular society. Some guy in Rome is not supposed to have any effect the administration and adjudication of our laws. I’m Catholic, and I don’t support the death penalty, but legally speaking, I don’t care what the Pope says about it.

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If you believe we are supposed to live in a secular society, this quote that came out of the ABA annual conference last week should be very disturbing. From the ABA Journal:

Just hours after Pope Francis declared the death penalty “inadmissible” in all cases, Cardinal Blase Cupich of Chicago urged elected officials and leaders to recognize their responsibility and vested interest “in defending the sacredness and value of every human life.”…

Cupich, already a longtime opponent of the death penalty, said if U.S. Supreme Court Justice Antonin Scalia—a devout Catholic—had lived to hear the pope’s proclamation, he might have reconsidered his position supporting capital punishment.

The cardinal’s comment came in response to moderator Ronald J. Tabak, chair of the section’s Death Penalty Committee. He quoted Scalia as saying, “For the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal. It is a grave sin.”

Of Scalia, Cupich said: “I think that his understanding of salvation has great limitations. It’s an atavistic view of salvation, that is, as individuals.”

To me, Scalia was the one who always broke the Fourth Wall on this stuff. He wore his Catholicism on his sleeve and it’s difficult, very difficult, to believe that religious beliefs didn’t improperly affect his views on every gay rights case that came before him. From his dissent in Lawrence v. Texas, where he railed against the “homosexual agenda,” to his borderline unhinged dissent in Windsor, Scalia seemed more red-faced theocrat than secular jurist when it came to matters of his personal faith.

Cardinal Cupich’s opinion could well be entirely uninformed, but it rings as potentially true, given how Scalia operated.

But what to make of the other “Catholic” justices? They’re not as overtly faith-warriors as Antonin Scalia, and on the crucial issues of gay rights and women’s rights, the Catholic contingent is not joined by faith. The “conservatives” share Scalia’s antipathy towards gay rights and women’s health, the liberal one does not, Kennedy is/was… somewhere in the middle.

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And what to make of Brett Kavanaugh? Kavanaugh’s Catholic bona fides were part of his opening statement to the nation after Trump nominated him to succeed Kennedy. And Donald Trump has promised to make only pro-life appointments, he’s literally called it a “litmus test” for picking a judge. Kavanaugh might try to dodge the issue during his confirmation hearings, but anybody who doesn’t know that Kavanaugh is explicitly pro-life (looking at you Susan “Wishcasting” Collins) simply isn’t paying attention. Every time I hear Kavanaugh mention his faith, I take it as a dog whistle to the pro-life forces that he is on their side.

But is it even fair to ask Kavanaugh about his Catholic beliefs at the hearing? Senator Dianne Feinstein has gotten in trouble for doing that before. Is it fair to ask Kavanaugh if Pope Francis’s recent views will affect his jurisprudence on death penalty cases?

Personally, I’d rather see a secular Court. Of course, I’d also like to have millions of dollars and the power of flight.

Failing secularism, I’d at least like to see a Catholic Theocracy that considers all of the church’s teachings, and not just the ones that are about being sh***y to people. If you’re going to tell me that we can’t have abortions because of Jesus (and without Jesus or some other deity there is no other even plausible legal reason to deny a legally protected right to choose), then at least tell me that your same God compels you to stay the state executions of every person you can. If you are going to tell me that it’s okay to humiliate gay people in public (which, again, is a view so antithetical to a just society that you can’t make it work without appeal to a divinity that you claim to be qualified to interpret), then at least also tell me that your same God compels you to lift the poor and the destitute out of poverty and humiliation. Don’t just give me the parts of the Bible you’ve interpreted to justify hate, give me the Good News as well.

If we’re going to go the way of Theocracy. Which I think we should not. When I need salvation, I’m supposed to go to church. When I need justice, I’m supposed to go to Court.

Would Scalia have shifted on death penalty if he’d heard pope’s decree? Maybe, Chicago cardinal says [ABA Journal]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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