A friend sent me a copy of your editorial of Feb. 17-23, enTITLEd “Scalia's Dissenting Opinion.” It is full of mistakes — beginning with the remark that I should “stick to being a jurist.” I am being a jurist when I ask whether the performance of my job (I participate in imposition of the death penalty) is forbidden by authentic Catholic doctrine.

Or do you think that authentic moral imperatives announced by the Church have no real-life consequences? Perhaps so, because I cannot imagine any other explanation for your acknowledging that disagreement with Evangelium Vitae is permissible, while simultaneously criticizing me for voicing such dissent in response to a student at Georgetown who asked (quite reasonably) “How, as a Catholic judge, can you participate in the process of imposing the death penalty, which the Church says is immoral?” You say that my response — to the effect that I do not believe immorality of the death penalty to be authentic Catholic doctrine — was “an example of a powerful man persuading a crowd of people that the Church is wrong.”

What was I supposed to say? “I am a judge, not a theologian”? Or perhaps “Well, the Church says that, but it really doesn't expect anyone to act upon it”? (In any case, I was of course not asserting that the Church was wrong, but that the Church in fact teaches the opposite of what recent, non-ex cathedra, pronouncements have said.)

Perhaps you do not appreciate the moral dilemma that the new teaching has forced upon Catholic judges, prosecutors and jurors because you do not understand the new teaching. You amazingly say that it provides no more support for completely abolishing the death penalty than it does for continuing the death penalty. All Evangelium Vitae teaches, you assert, is “that the cases where the death penalty must be used are extremely rare, practically nonexistent” — as though it tells the faithful that only rarely (if ever) is the death penalty morally required.

That is quite wrong. The encyclical says that the death penalty is only justified — only moral — “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 non-existent.”

In other words, the death penalty is rarely, if ever, morally permissible.

This represents a fundamental change from the (infallible) universal teaching of the past 2,000 years, because it proceeds from the premise that the only justifiable purpose of the death penalty is to “defend society” in the manner that prisons defend it — that is, to disable the offender and deter future offenders. Prior teaching, from St. Paul forward, was that retribution is a valid objective. Whereas, St. Paul says, individual Christians must “give way to wrath,” the government “carries the sword” as “the minister of God to execute vengeance upon him that doeth evil.” (By the way, your editorial accuses me of “selectively” quoting St. Paul. Perhaps you would like to tell your readers which portions of St. Paul contradict the morality of the death penalty. Of course there is none.)

Your equating of my refusal to accept the new teaching regarding the death penalty with the refusal of the Catholic Massachusetts lab scientist to accept the new teaching regarding human cloning is utterly absurd. The teaching that cloning is immoral is new, but does not contradict two millennia of authoritative teaching that cloning is OK.

With regard to the death penalty, by contrast, your editorial acknowledges that Church doctrine, “voiced by popes, saints and doctors of the Church around the world,” “has consistently held that the state has the right to execute criminals.” Today is different, you say, because the modern state “Denies a transcendent moral order and denies that its authority over life is delegated from God.” “[H]ow,” you ask, can such a state “justly apply the penalty? Would St. Thomas Aquinas look at the Supreme Court Scalia sits on and blithely hand it more power over life?”

Well, I cannot say about Aquinas, but I do know that the “minister of God to execute vengeance” that St. Paul was referring to (the ruler at the time he wrote his letter to the Romans) was Nero — who many think was even less devout than the Supreme Court. The notion that only good Christian rulers derive authority from God is as unorthodox as the notion that the only valid objective of the death penalty is “to protect society.”

Finally, I protest your portrayal of me as “supporting the death penalty.” I do no such thing. I support the proposition that it is not sinful for a Catholic to support it, and indeed to participate in its imposition. Whether it should be imposed — whether such severe retribution is desirable — is a question I do not address. It is my job to help administer whatever response the American people give to that question, and I do not accept that performing my task (in either direction) is morally wrong.


U.S. Supreme Court

Washington, D.C.