For Antonin Scalia, faith and work did not conflict

Washington D.C., Feb 15, 2016 / 16:54 pm

The late Supreme Court Justice Antonin Scalia was a man of deep Catholic faith who saw his work through the eyes of vocation, said those who knew him.

"I think he's an excellent example of someone who is a public servant because of his faith, and understands that he is living out the vocation. He's not just doing a job, but he is living out his calling," said Kevin Walsh, a law professor at the University of Richmond who once clerked for Scalia at the Supreme Court.

"Justice Scalia was a person of deep and sincere Catholic faith. It is clear that this faith, and the teachings of the Church, shaped his views about ethics, morality, and policy," Richard Garnett, a professor of law at the University of Notre Dame, told CNA in a statement.

But while his faith was a powerful driving factor in life, Scalia "insisted, though, that it was not the job or the place of a Catholic judge to reach 'Catholic' outcomes in cases," Garnett emphasized. Rather, he focused on interpreting existing law as it was originally intended.

"In his view, the responsibility for making sure that our laws and policies are fair, just, and moral lies with 'we the people' and the representatives we elect," he said. "In our system, he thought, judges should limit themselves to identifying and interpreting the laws that are given; they should not re-shape those laws, even to make them better."

Justice Scalia passed away at age 79 on Saturday at a ranch in West Texas of apparently natural causes. The Diocese of El Paso confirmed that he received Last Rites after his death. Scalia, appointed to the Court in 1986, was the longest-serving Supreme Court justice on the bench and one of five Catholic justices.

The son of an Italian immigrant, he was baptized in the Cathedral of the Diocese of Trenton, N.J. and attended Xavier Catholic High School in New York City and Georgetown University in Washington, D.C. He and his wife had nine children, including Fr. Paul Scalia who is a priest in the Diocese of Arlington.

After his death, Catholic legal scholars and bishops all praised Scalia's intellectual acumen and deep Catholic faith.

Bishop David O'Connell of Trenton, Scalia's home diocese, called him "a devout Catholic" who "was widely regarded as one of the brightest American legal minds in recent decades" in a statement on the diocesan website.

"He was a man of extraordinary legal genius and fidelity to the Constitution," stated Archbishop Charles Chaput of Philadelphia.  However, he added, "the larger part" of Scalia's character "was his enduring Christian character.  His life as a husband, father, friend, scholar and judge was shaped profoundly by his Catholic faith. What made him 'great' in the only way that finally matters was his moral integrity."

Bishop James Conley of Lincoln recalled his admiration of Scalia from a one dinner where he sat next to the justice and conversed with him.

"I have a graduate degree in moral theology, and still, the depth of his reflections, and the obvious extent of his research, astounded me.  No one, no matter his politics, can credibly deny Scalia's genius," he said in an op-ed in the Southern Nebraska Register.

And Scalia was open about his faith. His 2013 interview with New York Magazine raised eyebrows when he candidly revealed his belief in the existence of the devil.

"Hey, c'mon, that's standard Catholic doctrine!" he told the surprised interviewer. "I mean, Jesus Christ believed in the Devil! It's in the Gospels!"

Although he was a man of deep faith, however, Scalia did not invoke his faith to reach "Catholic" decisions at the Court, scholars maintained.

"He understood that he held an office, as a matter of public trust, and that that office had limits," Walsh said. "His job was to apply the federal law of our country as faithfully as he could."

An example of Scalia affirming this was his 2007 keynote address at a Villanova Law School conference, as reported by the journal First Things, where he said that "there is no such thing as a 'Catholic judge'."

"The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge," he said. "Just as there is no 'Catholic' way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic."

In a 2002 essay for First Things on the morality of the death penalty, he prefaced it with this statement:

"Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court.

That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a 'living document' – that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean."

Scalia's emphasis on interpreting the law as it was originally written and intended drew criticism from some Catholics that he was a "legal positivist" who ignored or downplayed the moral content of the law to focus on its original meaning. Walsh argued that is a misinterpretation.

"I think what he [Scalia] drew from Natural Law was an understanding that there are moral benefits to positive law, to adhering to things that were decided in the past, to use them to resolve disputes now," he explained. "That there is a serious moral underpinning to insisting on sticking with the law, even when it doesn't lead to outcomes that you prefer."

The interpretation of human law for the citizenry – as seen in Scalia's work – was emphasized by St. Thomas Aquinas, Walsh added. Law, in the classical sense, "is an ordinance of reason for the common good made by one with authority and promulgated," Walsh said.

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"And Justice Scalia's jurisprudence really brings out the significance of promulgation in human law, that is, put out there in a form that could be understood, put out there in a form that you can hold the government, as well as the governed, to, set forth in authoritative text there to be applied by judges and other government officials."

And Scalia, in interpreting the law as it was written, was uncomfortable with some actions he ruled were constitutional, Walsh noted. In Texas v. Johnson, he sided with the majority opinion that the burning of an American flag was protected under the First Amendment as a lawful expression of free speech.

"It would have pained him to see a flag being burned," Walsh said, but he ruled that way "because our Constitution protects people from not being punished for expressing views that people disagree with. And that was a difficult vote for him in one sense, but not at all once he knew what the law required."

Other critics might charge that Scalia's "conservative" Catholic faith improperly influenced his decisions on abortion, marriage, and religious freedom, but that too is misguided, Garnett said.

"No one is perfectly consistent, of course, but it seems clear that Justice Scalia did not see his votes and opinions in cases as opportunities to impose Catholicism," he said.

For instance, Scalia's dissent in Planned Parenthood v. Casey – where in 1992 the Court upheld the Roe ruling that decided a woman's legal right to have an abortion – was based on his opinion that a legal right to abortion was not in the Constitution, not that it was immoral.

"That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a 'liberty' in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not," he wrote.

Ultimately, Justice Scalia's commitment to truth and serving the common good is an example for all lay Catholics to follow, wrote Bishop Conley.

"Of course, Catholics do not need to agree with every decision or viewpoint Antonin Scalia offered," he said. "But like Justice Scalia did, all Catholics have an obligation to form their consciences according to the teaching of the Church, and to commit themselves to serving the common and public good."
 
"In the face of great injustices, he offered himself – his intellect, his energies, and his judgment – for the sake of the common good. Every Catholic is called to imitate Scalia's commitment to religious liberty, the family, and the unborn," he continued.

"Like Justice Scalia, each one of us is called to seek justice and truth. We are called to support the right to life and the dignity of the human person. We are called to actively engage in public and political life, not in spite of our faith, but because of it."