Associate Justice Antonin Scalia, a devout Roman Catholic, dislikes the treatment of the death penalty in Pope John Paul's 1995 encyclical, "Evangelium Vitae" ("The Gospel of Life"), and the official catechism of the Catholic Church.
The pope and catechism all but rule out capital punishment. Scalia objects that this "is not a moral position that the church has always -- or indeed ever before -- maintained" during the past 2,000 years.
Another prominent layman, Oklahoma Gov. Frank Keating, has tangled with the hierarchy about this issue, yet was chosen by the U.S. bishops' president to lead the National Review Board that's monitoring the church's handling of sexual abuse reforms.
Scalia spoke on capital punishment this year at the University of Chicago Divinity School and Georgetown University in Washington, D.C.. The conservative interfaith journal First Things printed the Chicago speech and has since printed vigorous reactions, along with Scalia's reply to them.
John Paul said government shouldn't execute offenders "except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically nonexistent."
The catechism contains similar teaching and quotes the pope's encyclical.
Scalia noted that the death penalty is part of Old Testament law, but he relied on St. Paul's New Testament words:
"(The ruler) is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil" (Romans 13:4, King James Version).
Scalia and others interpret "sword" to include death as the ultimate form of punishment for crime.
Scalia demanded, "how in the world" can supposed penal improvements make the death penalty less appropriate for, say, the Oklahoma City or the World Trade Center attacks? If "just retribution" is the main purpose, as Scalia believes, how can one "possibly say with a straight face" that death is "rarely if ever" appropriate?
Fortunately, Scalia added, theologians assure him the pope's teaching isn't binding, though it should receive respectful consideration. Otherwise, Scalia said, that would effectively remove Catholic judges and legislators from public life.
In the First Things responses, Cardinal Avery Dulles of Fordham University in New York agrees that Paul accepted capital punishment and that this "older tradition" is probably irreversible.
But, he contends, "the pope says nothing against the traditional doctrine." Rather, Dulles thinks, making capital punishment "rare" is a "prudential judgment" that applies Catholic doctrine to changing circumstances.
Dulles agrees with the pope but says Catholics, like Scalia, who do not agree aren't dissenters from church teaching.
Denver's Archbishop Charles Chaput says past tradition doesn't bar the church from reaching deeper understandings. He accuses Scalia of a "flawed understanding" of the church, which he calls the institution founded by Jesus Christ to guide believers "in the light of revealed truth and lived experience" that change over time.
Former Judge Robert Bork, a non-Catholic, says the church "has no special, or sometimes even an adequate, understanding of the subject," so the pope and bishops are "owed no particular deference" by Catholics or others.
Replying to these and other commentators, Scalia says against Dulles that the pope has ruled out retribution as a justification, allowing only "defense of society," which Scalia insists changes church teaching.
Scalia says that Chaput's claim that modern feelings should override the law's original intent reflects the attitude the U.S. Supreme Court used to forbid abortion limits, much to Chaput's and Scalia's dismay.
And he agrees with Bork that the church has no special expertise on the death penalty.
Scalia says he takes no stand on whether the death penalty is a good or bad idea but merely insists it's entirely moral to impose it.
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