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The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse, 88 Notre Dame L Notre Dame Law Review Volume 88 | Issue 1 Article 7 11-1-2012 Jurisprudence That Necessarily Embodies Moral Judgment: The iE ghth Amendment, Catholic Teaching, and Death Penalty Discourse Kurt M. Denk Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation Kurt M. Denk, Jurisprudence That Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse, 88 Notre Dame L. Rev. 323 (2012). Available at: http://scholarship.law.nd.edu/ndlr/vol88/iss1/7 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\88-1\NDL107.txt unknown Seq: 1 18-DEC-12 9:35 JURISPRUDENCE THAT NECESSARILY EMBODIES MORAL JUDGMENT: THE EIGHTH AMENDMENT, CATHOLIC TEACHING, AND DEATH PENALTY DISCOURSE Kurt M. Denk, S.J.* Despite obvious differences, certain historical and conceptual underpin- nings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis “‘necessarily embodies a moral judgment.’”1 This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death pen- alty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that per- mit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse. 2012 Kurt M. Denk. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational pur- poses, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Associate, Kramer Levin Naftalis & Frankel LLP; J.D., University of California, Berkeley, School of Law; M.Div., Jesuit School of Theology of Santa Clara University; M.A., Fordham University; B.A., Georgetown University. For insight and support as I developed this Article, I am deeply grateful to family and friends; to the Boston College Jesuit Community and the Maryland Province Society of Jesus; to colleagues at Boston College Law School, where I served as Visiting Assistant Professor from 2011–12; to Judge Maryanne Trump Barry of the United States Court of Appeals for the Third Circuit, whom I was honored to serve as a law clerk from 2010–11; and to present and former inmates at San Quentin Prison, where I served as a chaplain from 2004–10. For their own invaluable comments, I also thank Ty Alper, Eric Berger, Gregory Kalscheur, Laurent Mayali, Elisabeth Semel, Andrew Skotnicki, and Amy Uelman. Remaining oversights and errors, and all opinions expressed herein, are wholly my own. 1 Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C. J., dissenting)). 323 \\jciprod01\productn\N\NDL\88-1\NDL107.txt unknown Seq: 2 18-DEC-12 9:35 324 notre dame law review [vol. 88:1 INTRODUCTION The legal implications of religion’s often contested presence in the public square remain at the forefront of national consciousness. Prominent examples of this within the past year include debate over the Obama administration’s decision not to exempt all but a narrow class of religiously-affiliated employers from the new health care law’s mandate to provide insurance coverage for contraception,2 and the Supreme Court’s interpretation of the Religion Clauses’ application to employment decisions in Hosanna-Tabor Evangelical Lutheran Church v. EEOC.3 Religion’s salience to both the form and substance of important legal debates is no less the case with respect to the death penalty. As Professor David Garland has argued, “religiosity and moralism” are among “recurring themes that feature prominently in the American public sphere . [a]nd ha[ve] a bearing on the punishment of offenders and on death penalty politics.”4 Accordingly, “[t]o under- stand today’s American death penalty . we must try to see its moral power, its emotional appeal, its claim to be doing justice.”5 2 See, e.g., Contraception and Insurance Coverage (Religious Exemption Debate), N.Y. TIMES, (May 21, 2012), http://topics.nytimes.com/top/news/health/diseasescondi- tionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/ contraception/index.html (last visited Oct. 1, 2012) (“The announcement of the new rule set off a political firestorm among religious and conservative groups, who denounced it as a threat to religious freedom. [While t]he rule does not apply to church organizations themselves, but instead to affiliated nonprofit corporations, like hospitals, that do not rely primarily on members of the faith as employees[,] . the United States Conference of Catholic Bishops said the compromise still infringed on the religious liberty and conscience of Catholics. [Accordingly, i]n May, 43 Roman Catholic dioceses, schools, social service agencies and other institutions filed lawsuits in 12 federal courts challenging the rule. At least 11 other Catholic and evangelical organizations had already filed similar lawsuits.”). 3 132 S. Ct. 694 (2012) (holding that the First Amendment’s Establishment and Free Exercise Clauses bar employment discrimination suits by ministers against churches). Professor Michael Stokes Paulsen praised the ruling as “absolutely, com- pletely right” and “a dramatic defense of religious liberty.” Michael Stokes Paulsen, Hosanna in the Highest!, PUBLIC DISCOURSE: ETHICS, LAW, AND THE COMMON GOOD (Jan. 13, 2012), http://www.thepublicdiscourse.com/2012/01/4541. On the other side of the public square, The New York Times editorialized that “[t]he [C]ourt’s conception of the ministerial role is more encompassing than it has been defined by state and federal appellate courts,” and that “[i]ts sweeping deference to churches does not serve them or society wisely.” Editorial, The Ministerial Exception, N.Y. TIMES, Jan. 13, 2012, at A22. 4 DAVID GARLAND, PECULIAR INSTITUTION 175 (2010). 5 Id. at 7. \\jciprod01\productn\N\NDL\88-1\NDL107.txt unknown Seq: 3 18-DEC-12 9:35 2012] death penalty discourse 325 In comparing U.S. jurisprudence with Catholic death penalty teaching, this Article aims to contribute to such understanding.6 Over four years after Baze v. Rees7 ended a brief, de facto national morato- rium on executions,8 the moral, including religious, dimensions of capital punishment remain both poignant and contested.9 Death penalty opponents succeeded at placing an abolition initiative on the November 2012 ballot in California—both the nation’s largest state and the state with the largest population of inmates awaiting execu- tion—and secured over 100 endorsements of repeal from faith and religious organizations.10 In Connecticut, which in April 2012 became the most recent state to repeal its death penalty statute by legislation, New York Times coverage included a photo of religious leaders opposed to capital punishment praying at a rally as Connecti- cut’s Senate debated the abolition bill.11 Senator Gayle Slossberg, a one-time death penalty proponent, was described as “wrestling with the moral implications of capital punishment” before concluding that its abolition “‘set[s us] . on the path to the kind of society we really 6 Concerning this Article’s definitions of jurisprudence and of Catholic teach- ing, see infra notes 68 and 225–29, respectively, and accompanying text. 7 553 U.S. 35, 40–41 (2008) (plurality opinion). 8 Id. at 40–41 (upholding Kentucky’s three-drug lethal injection protocol, simi- lar to what all jurisdictions employing it then used). Litigation akin to that in Baze led to a de facto national moratorium on executions from September 2007 until shortly after Baze was decided in April 2008. Death Penalty in Flux, DEATH PENALTY INFO. CTR. (Sept. 7, 2012), http://www.deathpenaltyinfo.org/death-penalty-flux. 9 This Article largely adopts the definition of “moral” as “relating to principles of right and wrong in behavior,” “expressing or teaching a conception of right behav- ior,” and/or pertaining to that which is “sanctioned by or operative on one’s con- science or ethical judgment” or is “perceptual or psychological . in nature or effect.” Moral Definition, MERRIAM-WEBSTER, http://www.merriam-webster.com/dic- tionary/moral (last visited Sept. 24, 2012). 10 See Death Row Inmates by State, DEATH PENALTY INFO. CTR. (Oct. 7, 2012), http:// www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year (indicat- ing that 724 inmates occupied California’s death row as of April 1, 2012); Endorsements from Faith & Religious Organizations (106), YES ON 34, http://www.safecalifornia.org/ about/faith-religious-organizations (last visited Oct. 7, 2012) (providing information on, and endorsing passage of, California Proposition 34, The SAFE (“Savings, Accountability, and Full Enforcement”) for California Act). Note that this Article was scheduled to go to press before ballot initiative results were available. 11 With Senate Vote, Connecticut Is on Track to End Capital Punishment, N.Y. TIMES, Apr. 6, 2012, at A19 available at http://www.nytimes.com/2012/04/06/nyregion/ death-penalty-repeal-bill-passes-connecticut-senate.html
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