AP wonders: Can Kavanaugh, other Catholic judges "uphold the law as written" after Pope Francis' death-penalty decree?

And here we thought that we’d dodged another “dogma living loudly” moment with the nomination of Brett Kavanaugh rather than Amy Coney Barrett to the Supreme Court. Thankfully, the Associated Press stepped in … and arguably stepped in it, too, with this regurgitation of bias regarding Catholics in public service. Now that Pope Francis has ordered the catechism changed to eliminate all recourse to the death penalty, the AP wonders just how Kavanaugh and other Catholic judges and politicians can “uphold the law as written”:

Pope Francis’ decree that the death penalty is “inadmissible” in all cases could pose a dilemma for Roman Catholic politicians and judges in the United States who are faced with whether to strictly follow the tenets of their faith or the rule of law.

Some Catholic leaders in death penalty states have said they’ll continue to support capital punishment. But experts say Francis’ change could shift political debates, loom over Supreme Court confirmation hearings, and make it difficult for devout Catholic judges to uphold the law as written.

Ahem. Catholic judges have been upholding the law as written, from local magistrates to the Supreme Court, for as long as this country has been around. It’s actually easier for judges to do so, because judges don’t write laws. Legislatures write laws, and executives approve and enforce them in the model of government we have at the federal level and in all 50 states. Judges decide whether the laws violate state and federal constitutions and interpret their enforcement, but they don’t refuse to apply them out of personal feelings or religious convictions. Nowhere in this article does Amy Forliti offer a single incident to support the idea that a Catholic judge would do so.

But does it matter if they’re “sinning”?

The question of whether or not Catholic political and judicial leaders would be sinning if they continue to support the death penalty is up for interpretation. …

Previous church teachings said capital punishment was allowed in some cases if it was the “only possible way of effectively defending human lives against the unjust aggressor.” That gave politicians a way to honor their faith and the law.

But on Thursday, the Vatican said Francis changed church teaching to say capital punishment can never be sanctioned because it constitutes an “attack” on human dignity.

Oh, for Pete’s sake. This is a fallacy based on an oversimplification. It’s true that the previous language in the catechism left a slight window open for prudential judgment, but in the US that was already entirely theoretical. St. John Paul made that clear in 1995’s Evangelium Vitae, in which the necessity of execution as a means to protect the innocent had long since vanished in developed nations:

It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender 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 non-existent.

Effectively, then, this teaching has applied to the US for at least 23 years, further reinforced in 2004 by Cardinal Joseph Ratzinger before he became Pope Benedict XVI. If Catholic judges had a problem with this based on their adherence to the catechism, that would have manifested itself well before last week’s announcement.

Furthermore, the proposed new language acknowledges the development of this teaching in the modern age. That’s a far cry from equating the application of duly created laws to “sin.” In comparison, the new language in CCC 2267 will differ significantly from the language governing abortion. The catechism, in CCC 2270-75, calls abortion a “moral evil” and declares formal cooperation in an abortion “a grave offense.” Those who procure or perform an abortion automatically excommunicated by the act itself (latae sententiae).

This is another reason to scoff at this analysis. The prohibition on abortion in the catechism is far more absolute, and violation of it far more specific in terms of “sin.” And yet, the media rarely questions Catholic politicians who favor abortion rights about how they justify their actions in light of the catechism. It generally only ever comes up as a major story when Republicans nominate Catholics to the federal bench, generating rude exchanges as to how the “dogma lives loudly” within such nominees, and a reason to channel Know Nothingism to question their loyalty to the upholding of the law. Unfortunately, these Catholic politicians have spent the last several decades dodging this issue as “personal belief” versus public policy, an explanation that the media has no trouble accepting in the context of abortion despite its clear status as an excommunicating act in the Church.

Even there, judges would largely be hamstrung by the law, except that everyone understands how judges made the law in Roe v Wade. If those judges had stuck to their brief, this would be a matter of debate among elected officials and not in confirmation hearings, and no one would care just how devout Catholic nominees are.

In the end, the solution to this issue is to appoint judges who stick to the Constitution and their role in interpreting the law rather than writing it themselves. Kavanaugh’s a step in the right direction on that point. And in the future, perhaps major media outlets will take the time to grasp the considerable nuance in the teachings of the Catholic Church and start from an assumption of good faith among Catholics in public service.

Jazz Shaw Jul 06, 2022 9:01 AM ET