Wednesday, March 02, 2005

Catholics, Beware of the Social Activism from our Supreme Court

Though my initial thoughts on the Roper ruling yesterday were ones of satisfaction that the death penalty has been weakened in our country, after it had sunk in and in reading Justice Kennedy's opinion I am rather disturbed for the effect it could have on future decisions from the Supreme Court.

From the Editioral Page of OpinionJournal today comes a good summary of what happened and its consequences. Some highlights:

No doubt most Americans will concede that the death penalty for 16- and 17-year-olds is a difficult moral question. That is why different U.S. states have different laws on the matter, and we'd probably oppose such executions if we sat in a legislature. But rather than defer to the will of voters as expressed through state legislatures and at least two ballot initiatives (in Arizona and Florida), Roper imposes the view of five justices that the execution of 16- and 17-year-olds is both wrong and unconstitutional. As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, "The court thus proclaims itself sole arbiter of our nation's moral standards."

Justice Kennedy rests his decision on his assertion that American society has reached a "national consensus" against capital punishment for juveniles, and that laws allowing it contravene modern "standards of decency."

This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind.

Even weaker is the Roper majority's selective reliance on scientific and sociological "evidence"--the kind that legislatures (and juries) are used to weighing. The American Psychological Association claims in this case that killers under the age of 18 are incapable of making appropriate moral judgments. But this is the same organization that has told the Court in the past that teen-age girls are mature enough to decide whether to have an abortion without parental input. Which is it?
If same-sex marriage or euthansia become "popular" or some organization has "evidence" which show same-sex marriage or euthansia as normal, healthy and natural, will the Court then make decisions which are at odds with Catholic teachings?

Perhaps the most troubling feature of Roper is that it extends the High Court's recent habit of invoking foreign opinion in order to overrule American laws. "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty," Justice Kennedy writes. We thought the Constitution was the final arbiter of U.S. law, but apparently that's passé.

In invoking international "opinion," however, the majority also seems rather selective. Justice Kennedy cites the United Nations Convention on the Rights of the Child, which outlaws the juvenile death penalty. But that Convention also prohibits imprisonment without parole for juvenile offenders--a penalty favored by some, if not all, 50 states. Is the Court ready to sign on to that international standard too?
What happens when the Court starts to acknowledge international opinion which contradicts our Catholic moral senses on religion (think about what is happening to the place of Christianity in Europe), or abortion (think about the UN promoting it as a 'human right').

Such inconsistency suggests that the real reason this Court has taken to invoking "international opinion" is because it is one more convenient rationale that the Justices can use to make their own moral values the law of the land.

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