RELIGION IN COURT

Justice Antonin Scalia has always spoken sharply and decisively as one of the most conservative members of the present U.S. Supreme Court and one cited by President Bush as an example of judicial greatness. So his scathing words about some of his colleagues in his dissenting opinion when the court recently ruled 6 to 3 against the execution of mentally retarded criminals should have come as no great surprise. He wrote, “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.”

But a lecture he gave last January at the University of Chicago Divinity School casts fresh light on Mr. Scalia’s thinking. Princeton historian Sean Wilentz recently highlighted some important parts of it in a New York Times commentary.

In Chicago, Justice Scalia focused his remarks on the death penalty and on a recent Catholic Church teaching that the death penalty is permissible under only rare circumstances. He said with relief that the ruling was not “binding” on Catholics. If it had been binding, he said, it would have amounted to urging Catholics to retire from public life, since the federal government and 38 states (not including Maine) “believe the death penalty is sometimes just.” His point appeared to be that Catholics, as citizens, must submit to binding church doctrine. He said that any judge who believed the death penalty to be immoral should resign, “rather than simply ignoring duly enacted constitutional laws and sabotaging death penalty cases.”

Mr. Scalia said Western thought until recently had been guided by St. Paul’s dictum in the New Testament book of Romans: “Dearly believed, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” To this, Mr. Scalia added, “And in this world the Lord repaid – did justice – through His minister, the state.” He said that historic consensus, on the divine authority of the state, had been upset by the emergence of democracy. He went on: “The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible.”

Mr. Wilentz agrees that modern democracy did upset the divine authority of the state. He quotes Thomas Jefferson as saying, “our civil rights have no dependence on our religious opinions anymore than on opinions in physics or geometry.” But Mr. Scalia’s comments suggest that he should be recognized, not as a strict constructionist or even a conservative, but as a deeply religious man who, as Mr. Wilentz puts it, seeks to abandon the intent of the Constitution’s framers and impose his own views of government and divinity.