As media reaction (both secular and Catholic) to the death of U.S. Supreme Court Justice Antonin Scalia plainly suggests, the time is ripe for yet another serious conversation about what so-called “traditional Catholicism” (more simply, Catholicism) entails with respect to Church-State relations and the duties incumbent upon those who exercise civil authority or otherwise render official public service on behalf of the government.
This need is especially urgent (though certainly not exclusively so) for the faithful living in the United States, the Constitution of which treats religious pluralism as the ideal for a nation in pursuit of such praiseworthy ends as:
…forming a more perfect Union, establishing Justice, insuring domestic Tranquility, providing for the common defense, promoting the general Welfare, and securing the Blessings of Liberty. (cf Preamble, Constitution of the United States of America)
NB: While the present article will examine certain American questions in particular, the underlying principles are universally relevant; especially in light of the Second Vatican Council having largely enshrined this pluralistic (and decidedly anti-traditional) model of religious liberty in the document Dignitatis Humanae.
Specifically with regard to the rights of U.S. citizens and the practice of religion, be it the one true faith or any of the many false religions of the world, the First Amendment of said Constitution reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Closely bound up with this version of religious liberty is the democratic ideal expressed in the Declaration of Independence, wherein it is proposed that “Governments derive their just powers from the consent of the governed.”
In other words, this nation is founded upon the notion that the vox populi shall determine what is “just” and what is not with respect to the powers of the State – a proposition with which Antonin Scalia appeared to be rather comfortable.
The noteworthy deficiencies in the aforementioned texts – obvious enough when read through the eyes of the Catholic faith – are treated in some detail HERE.
At present, I’d like to delve more deeply into the points raised in a previous post, Justice Scalia: A man of “true faith and allegiance,” wherein I suggested that the “devout traditional Catholic” label so widely applied to the late jurist doesn’t really stand up to scrutiny.
That is not to suggest in any way that he wasn’t a man of sincere faith. The depth of Antonin Scalia’s devotion to Catholicism, such as he understood it, isn’t in doubt in my mind, and all of us must earnestly pray for the repose of his soul.
That having been said, Antonin Scalia’s well-known views on jurisprudence simply cannot be squared with the doctrine of the Church.
As such, it cannot be said that his legacy provides other Catholic civil servants with an approach that is worthy of emulation. In fact, on this note, Kim Davis – the Protestant, Democrat county clerk from Kentucky – who chose to go to prison rather than uphold an unjust law, even though her job required it, provided the better example.
One would hardly know it, however, based upon the effusive praise that has been heaped upon the Justice and his legacy following his death; all-too-often by otherwise tradition-minded Catholics quick to employ such epitaphs as devout, staunch, traditional Catholic.
No doubt, they do so with pure intentions; presumably with the mistaken impression that it is only “good form” and an act of Christian charity, but it is imprudent nonetheless.
It would have sufficed to give mention to the many accomplishments for which Antonin Scalia deserves to be lauded, but regardless of their reasoning, a grave disservice has been done to those who are seeking truth.
Likewise are the innocent wounded when these ubiquitous claims concerning Scalia’s Catholicism are left unchallenged; not because the man should be posthumously tried – Our Blessed Lord alone can do that, and indeed He already has – but rather because this brand of misinformation represents a danger to souls.
At this, let’s take a closer look at the reality of the Scalia legacy.
In 2008, Justice Scalia was interviewed for the popular CBS program, 60 Minutes.
When asked about the connection between his “Catholicism” and his “judicial philosophy,” Scalia insisted:
It has nothing to do with how I decide cases. My job is to interpret the Constitution accurately.
Even the neo-conservatives must readily admit that this attitude doesn’t even come close to representing a model of devout Catholicism. There simply is no area of life, personal or professional, wherein one is justified in setting aside their Catholic faith and the objective truths that come to us from God through Holy Mother Church.
That Justice Scalia believed otherwise led him to some stunning conclusions. He went on to say in the very next sentence:
And indeed, there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons…
The operative part of the Equal Protection Clause to which Justice Scalia referred says that no state shall “deny to any person within its jurisdiction the equal protection of the laws;” e.g., laws protecting citizens from dismemberment and murder.
The question Scalia was answering (even though his interlocutor never posed it) is simply this: Is an unborn human being a person?
To which he answered, No.
Now, if the late Justice had been asked:
Do you believe what the Church teaches in this case; namely, that human life begins at conception, that ensoulment takes place at that very moment, and the unborn human being is indeed a “person” whose life is entitled to every protection?
I have no doubt whatsoever that he would have answered, Yes, as a Catholic I believe this.
And yet I also have no doubt that he would have quickly followed up with the previously mentioned disclaimer: My Catholicism has nothing to do with how I decide cases; my job is to interpret the Constitution accurately.
You see, while Antonin Scalia presumably felt bound by the Divine Law as a Catholic, as a Supreme Court Justice, he considered himself duty bound to treat the Constitution and the voice of the people as if they were sovereign.
With respect to interpreting the Constitution, Scalia was a practitioner of textualist originalism.
In his magnificent book (which I cannot recommend highly enough), Liberty, the God That Failed, Christopher Ferrara notes:
Justice Scalia’s ‘textualist’ originalism seeks to discern the meaning of a given Constitutional provision, including the First Amendment, as it was ‘originally understood’ – literally the ‘18th-century meaning’ or ‘original public meaning’ of the text. This peculiar hermeneutic is as dubious as it is arbitrary. [Liberty, the God That Failed, pg. 572]
According to Mr. Ferrara, this approach is “arguably even worse than the ‘living constitution’ of the liberals” since the latter “at least allows for the possibility that someday the Court, departing from an eminently debatable ‘original’ meaning or intent, might actually be able to correct objective moral or theological errors.” [ibid. pgs. 572-573]
As it is, Justice Scalia was so steadfast in his commitment to the “original” meaning of a text drafted in large measure by anti-Catholic Protestants intent on establishing a State free of the burdensome demands of Christ the King as made known by the Church, that he would one day declare that “a helpless human being that’s still in the womb” is not a “person” to whom equal protection under the law is due; Constitutionally speaking, of course.
“Note well,” Mr. Ferrara observed, “Scalia, the Court’s most ‘conservative’ reader of the Constitution, says that the Framers made religious belief subject to general civil law.” [ibid. pg. 578]
In a review of a noteworthy freedom of religion case that came before the Court, Mr. Ferrara cites as evidence the majority opinion authored by Justice Scalia:
… chillingly, Scalia quotes the liberal Justice Frankfurter for this proposition: ‘The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.’ [ibid.]
Of those “political responsibilities” that supposedly trump “religious convictions” in the American “political society,” Mr. Ferrara went on to observe:
… in our Lockean polity, founded on the social compact theory, ‘the relevant concerns of a political society’ and ‘political responsibilities’ are not subject to the limitations of any absolute theological standard – the Constitution, after all, does not even mention God – so that the objects of civil law can be, and often are, at odds with the natural and divine law. [ibid.]
Scalia’s Catholic faith was, just as he plainly admitted, quite far removed from his sense of civic duty; so much so that he would even go so far as to say:
You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. [Address to students at the Oxford Union, video clip shown during 60 Minutes interview]
Devout, staunch, traditional Catholics cannot but vehemently disagree; a so-called “right” to abortion is a very serious problem; in fact, such a thing can never truly exist.
The fundamental problem here can be summed up no more concisely, nor more accurately, than the following uncritical assessment of Scalia’s judicial approach as set forth in an article by “conservative” Catholic law professor Helen M. Alvaré:
Justice Scalia was a man blessed with an extraordinary mind and education, but who insisted on remembering that the law comes from the bottom up, from the people, and not from the top down.
These words may sound familiar to those who have explored the circumstances leading up to the Second Vatican Council’s departure from tradition in Dignitatis Humanae.
In a 1950 memorandum to one Giovanni Battista Montini (the future Pope Paul VI), John Courtney Murray, the Jesuit architect of the Declaration on Religious Freedom of Vatican II, set forth the reasons why he believed that the Catholic Church should adopt the American Constitutional pluralistic model.
In it, he paid lip service to the idea that the State’s rule must be in harmony with the law of God while insisting that this “must be achieved from the bottom up, by the layman acting under the guidance of his Christian conscience.”
What is this “bottom up” approach to State rule embraced by the Framers of the Constitution, Antonin Scalia, and John Courtney Murray alike?
Truly, it is nothing more glorious than a repudiation of the Social Kingship of Our Lord Jesus Christ!
Having considered all of the above, perhaps it is now clear, if perhaps it wasn’t already, why I refuse to sit silent while even certain of my con frères imprudently shower Justice Scalia with epitaphs such as devout, staunch, traditional Catholic.
At this, it is necessary to address a very important question for those of us living in the United States:
Readers may recall that my previous post on Justice Scalia quotes the following oath taken by all of the Supreme Court Justices:
“I, ________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
This oath is also taken by members of Congress (House and Senate).
Officeholders in the various states, police officers and even lawyers are also required to similarly pledge fidelity to the U.S. Constitution.
As noted (most explicitly via the link provided above), said Constitution is irreconcilable with the Catholic faith on a number of points, as such, it is reasonable to ask:
How can a faithful Catholic go about participating in civil service; in particular, in any position that requires one to take an oath of fidelity to the Constitution?
Before providing my own best attempt at an answer (surely not the best to be had anywhere), I think it bears mention that many Americans tend to think in terms of a “right” to hold a position of civil authority (Congressman, Senator, President, Supreme Court Justice, etc.), or at the very least, a right to seek such a position.
Properly speaking, however, this right isn’t absolute; rather, it is particular to our form of government.
Consider, for instance, that if an individual is living under a monarchy that provides no such right to attain to a position of civil authority, it cannot be said that this individual is being unjustly deprived of a God-given right.
With this in mind, if one was to conclude that, as a Catholic, it is not possible to take such an oath of fidelity to the U.S. Constitution in good conscience, and therefore not possible to take civil service positions that demand as much, it’s not a bona fide tragedy.
One may labor for a just society in any number of ways other than via a position of civil authority. In fact, all of us are obligated to do so regardless of our profession or the system of governance under which we live, and we have, therefore, a corresponding right to do so as well.
That said, I do believe that a Catholic may indeed take such an oath, but it’s important to realize that the pledge to uphold the Constitution is specific to the office one holds.
For instance, the police officer can very easily reconcile his professional duties under the Constitution with his Catholic faith. Likewise, it would seem to me, can the lawyer, the Senator, the state delegate, etc.
It further seems to me that the position of Supreme Court jurist is somewhat unique in that the “job” necessarily entails the task of determining what constitutes a just law according to a standard by which, as Christopher Ferrara pointed out, “the objects of civil law can be, and often are, at odds with the natural and divine law.”
In this case, an oath to do so “without any mental reservation or purpose of evasion” would seem untenable. Others may disagree.
Is there a case to be made for the morality of taking such an oath while secretly harboring reservations with the intention of one day using the influence of office to defend the divine law?
The truth is, very few of us will ever be faced with this prospect. If that day ever comes, it may be a good idea to consult with a trusted moral theologian. Until then, I’m not sure there is much point in laboring over it.
The bottom line is rather simple – anyone who must choose from the following, be it in the role of civil servant or otherwise, it is clear what must be done:
A) Affirm as a “right” that which is a clear offense against the Divine law as required by one’s job description.
B) Refuse to do so even upon pain of punishment.
As all devout Christians most certainly agree, we must reject the approach espoused by Antonin Scalia, the Catholic, in favor of the example set by Kim Davis, the Protestant.
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