Supreme Court Justice Antonin Scalia spoke recently at VillanovaLawSchool on the assigned topic of “the role of Catholic faith in the work of a judge.” Although a transcript of the lecture has not been made available, a news report summarized Scalia’s simple “bottom line”: “there is no such thing as a ‘Catholic judge,’” any more than there is a “‘Catholic’ way to cook a hamburger.” “I am hard-pressed,” the justice stated, “to tell you of a single opinion of mine that would have come out differently if I were not Catholic.”
His opinions about the Ten Commandments suggest otherwise.
The justice is well-known for his dissenting opinions opposing the constitutional rights to abortion and homosexual privacy, as well as for his support of the death penalty. Although the first two positions are consistent with Catholic theology, the church has questioned the morality of capital punishment. Scalia explains that in all three areas, his jurisprudence is based on the Constitution, not Catholic thought. Instead of reading the Constitution’s perspectives on abortion, homosexuality and the death penalty as a Catholic, he interprets them as a “textualist,” a “strict originalist” and a “legal positivist”: “Simply put, he believes the Constitution means what it says and nothing more.” Because the Constitution says nothing about abortion, for example, the states may restrict it; that is a constitutional and not a Catholic argument.
Should a Catholic justice enforce the death penalty when his church opposes it? The church’s opposition to the death penalty is “recent” and therefore not infallible, Scalia explained, unlike its infallible teaching about abortion. If he agreed with the church’s teaching on capital punishment, the justice believes it would be appropriate to resign from the bench rather than to refuse to enforce the death penalty on Catholic grounds. Some Catholics argue that a moral justice should stay in office and do the right thing by blocking executions. Justice Scalia, however, warned Catholics not to encourage judges to “meld religion with their work”: “If it’s proper for Catholic judges to do that, it’s proper for atheistic judges, for secularistic judges, for judges opposed to all Christian and religious beliefs, to do the same thing,” Scalia said. “And just between you and me, there are more of them than of us,” he said.
Scalia’s statements sound very similar to President John F. Kennedy’s famous Address to the Greater Houston Ministerial Association, when the presidential candidate also promised to govern by American, not Catholic, principles, and to resign if the obligations of office conflicted with his conscience. Scalia, however, somewhat surprisingly criticized Kennedy’s reasoning: “I was offended by John F. Kennedy when he was running for president and said he hoped no one would vote against him because of his religious ‘affiliation,’” he remarked, pointing out religious beliefs were the source of the abolitionists’ opposition to slavery, as well as the basis of our laws, including those against public nudity and bigamy.
That comment suggests a loophole in Scalia’s strict textualist reading of the Constitution. If religious beliefs are the basis of the laws, then what prevents a justice from importing his religious, or Catholic, perspective into his legal interpretation? That loophole expanded after Justice Scalia observed that he is justified in inserting his Catholic perspective into constitutional interpretation when questions of natural law are involved. Although he says the areas of the Constitution concerning natural law are “relatively small,” they include rather large topics, namely freedom of speech, freedom of religion and, perhaps, the right to own guns. This list suggests that Catholic teaching could be relevant if the Supreme Court decides to hear a case about the Second Amendment arising from a strict District of Columbia gun control law.
Two years ago Justice Scalia, interpreting the First Amendment, voted to uphold public displays of the Ten Commandments in a Kentucky courthouse and on the Texas State Capitol grounds. “[T]here is nothing unconstitutional in a State’s favoring religion generally, he wrote, although that appears inconsistent with the constitutional text prohibiting an establishment of religion. The Establishment Clause clearly, he thinks, “permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” Scalia explained that because monotheists—Christians, Jews and Muslims—make up 97.7% of all believers in the United States, and “believe that the Ten Commandments were given by God to Moses”:
Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population–from Christians to Muslims–that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.
This appears to be an opinion that might have come out differently if Scalia were not Catholic, but Hindu, Buddhist, Atheist or Polytheist.
The next time you are in a Washington restaurant, be sure to order a Catholic hamburger.