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Tuesday, March 24, 2015

"The Theocracy Brief"?

At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures).  Here's the primary part of the post:

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.

As it happens, the amicus brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case.  It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.  

Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that.  But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" -- about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why.  Just FYI."  


Posted by Rick Garnett on March 24, 2015 at 01:52 PM in Constitutional thoughts, Criminal Law, Rick Garnett | Permalink


I have to agree with Sykes. It sounded like those comments came out of emotion. Well off the mark i'm afraid.

Posted by: Sydney | Apr 4, 2015 7:18:58 PM

Scheidigger's comment seems to have been made in utter ignorance of the National Catholic Reporter's place among Catholic publications.

Posted by: Sykes Five | Mar 25, 2015 9:16:50 AM

As Rick points out, this is a door the court opened itself. "If Islamic teachings say it's okay to behead people, would that make beheading constitutional under the Eighth Amendment?" Well, maybe: If one takes seriously that the Eighth Amendment excludes punishments contrary to the the evolving standards of decency of American society, and if the question of beheading arose at a time when Muslims have become a significant fraction of that society, and if Muslims don't believe beheading to be inconsistent with their standards of decency, why isn't that relevant?

We can laugh and shake our heads at those simpletons at the NCR for taking the court seriously, for taking it at its word, for giving it information on what it says relevant to its decisions. We know better, right? We know that the basis on which the court decides these cases has nothing to do with the garnish that they slop onto the plate for public consumption. But—isn't that a problem?

Posted by: Simon | Mar 24, 2015 8:29:04 PM

Doesn't the National Catholic Reporter brief beg the question of whether or not self identified Catholics actually subscribe to the church's teaching on the issue?

Posted by: brad | Mar 24, 2015 5:47:30 PM

I don't think Jefferson's letter, which is basically an informative expression of a certain viewpoint of the 1A, really tells us much in respect to the argument made.

The problem, as stated, is that KS doesn't actually address the argument made by the brief -- not that the beliefs of a certain religious sect should guide us but that the group provides general educative value on contemporary community standards as a whole. After all, the Baptists in Jefferson's day arguing for separation of church & state didn't damn the argument. Religious leaders would be one means of understanding what religious liberty meant. A major secular group could do the same thing.

And, agree that if Islam was as a major part of society as Catholicism (which has a plurality of believers in this country), their views on the death penalty would be as informative. Religious groups like the Quakers provided a brief in the same sex marriage case since their views are relevant. The same applies here.

Posted by: Joe | Mar 24, 2015 4:29:52 PM

I'm always surprised by how many legal professionals seem to think Jefferson's letter to the Danbury Baptists has some sort of official constitutional status.

And really, if the US became an overwhelmingly Muslim country, it would be very difficult to show why Islam's position on beheading should not be persuasive or even dispositive under the "evolving standards" theory.

Posted by: Think Like a 1L | Mar 24, 2015 3:43:09 PM

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