Scalia and JFK

Print More

In his speech to the Houston Ministerial Association in 1960, John F. Kennedy famously declared:

I do not speak for my church on public matters; and the church does not speak for me. Whatever issue may come before me as President, if I should be elected, on birth control, divorce, censorship, gambling or any other subject, I will make my decision in accordance with these views–in accordance with what my conscience tell me to be in the national interest, and without regard to outside religious pressure or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come–and I do not concede any conflict to be remotely possible–when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do likewise.

Speaking at the Duquesne Law School a couple of days ago, Antonin Scalia invoked a different standard: “If I thought that Catholic doctrine held the death penalty to be
immoral, I would resign. I could not be a part of a system
that imposes it.”

Kennedy’s position has over the years drawn increasing criticism, especially from conservatives, for seeming to reject the influence of one’s religious tradition on one’s approach to public service. But Scalia himself cannot allow his religion to have any role in shaping his jurisprudence. As he said at Duquesne:

What does it mean to be a Catholic law school? There is no such
thing as Catholic law. The law is no different for a Catholic
than it is for a Jew any more than it is different for a woman or a man
or a white man or a black.

Thus it is that I am sometimes embarrassed when sincere opponents of
abortion sometimes thank me for championing their cause. … I do not
champion their cause. The Constitution addresses the subject
not at all, which means that it is left up to the states.

What he has done, then, is make his church’s doctrine do the work that Kennedy assigned to his conscience, and in the process fibbed. As Dan Burke over at RNS and John Gehring at Faith in Public Life have pointed out, from the Catechism to papal declaration to bishops’ and theologians’ pronouncement, the Catholic magisterium has strongly opposed the death penalty, both as a general practice and in particular cases. The wiggle room provided for judicial execution (if it is “the only possible way of effectively defending human lives against the unjust aggressor”) plainly does not apply to the system of which Scalia is a part. To think that he is unaware of all this strains credulity, to put it mildly.

It is pleasant to imagine Pope Benedict writing the following “Dear Antonin” letter:

It has come to our attention that you have gone to a Catholic law school and suggested that the Church does not consider the death penalty to be immoral. For someone in your position to make such a claim is distressing and, to be candid, a bit of a scandal–i.e. likely to lead members of our faith to believe that we do not teach what we do in fact teach. So for the record, Catholic doctrine does consider the death penalty, as it exists in your country, to be immoral. We trust that you will cease characterizing our position in any other way. Of course, whether you choose to resign your position on the U.S. Supreme Court as a result is a matter for you to resolve with your conscience.

Which would, of course, be the JFK standard.