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The Theocracy Brief

I've written a lot of amicus briefs in the U.S. Supreme Court.  Indeed, at this point I suspect there are few, if any, people who have written more.  My arguments have shown up in the opinions on a good many occasions, sometimes attributed but generally not.

The number of amicus briefs has risen in recent years, and their usefulness to the Court, on average, has declined.  Many are submitted just so the submitters can say they were in the case.  CJLF never does that.  If we have nothing of value to add, we don't file.  That rarely happens, but it has happened.

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus brief purporting 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.


The Catholics on the court will laugh at NCR's contribution, if their recent nonsense, with three other publications offers any clue.

Rebuttal of Four Catholic Publications Call For End to Capital Punishment
Dudley Sharp


Some other rebuttals

--- Four Catholic Journals Indulge in (anti death penalty) Doctrinal Solipsism, Stephen Long, THOMISTICA, March 5, 2015,

--- The Traditional (CATHOLIC) Case for Capital Punishment, By Fr. C. John McCloskey, The Catholic Thing, MARCH 16 2015

--- Okay, what about Catholics and the death penalty?, In the Light of the Law A Canon Lawyer's Blog, Edward Peters, JD, JCD, Ref. Sig. Ap. March 9, 2015,

Regardless of what happens in civil law, the problem is more delicate for a believer when it arises from a religious perspective. The Catholic Church (with the consensus, on the other hand, the Orthodox and Protestants, and except for some minor heretical sects of reformed themselves) has never denied that lawful authority possesses the power to inflict death as punishment. The proposal of Innocent III, confirmed by the Fourth Lateran Council of 1215, according to which the civil authority “without sin can inflict the death penalty, provided he acts motivated by justice and not by hatred and carry it with caution and not indiscriminately “is de fide matter.(Vittorio Messori dixit)
So if the teacher recognizes the legitimacy of the death penalty the only explanation that theologians and bishops’ conferences in full have gone further to define any type of capital punishment as “contrary to the Christian spirit” or “disagree with the Gospel.” This is a desperate attempt by the bishops to remove or reduce the anti-Catholicism on the left. The bishops believe that by supporting the cultural battles of the liberal left will decrease their anti-Catholicism and his support for abortion. Of course it is a failed strategy, Amnesty International has become a pro-abortion lobby. In other words the bishops sacrifice victims and their families in a pathetic effort to gain the support of the Liberals.

One might ask why a Catholic and even a priest or nun involved in the activities of pro-criminal movement, whose ideology, little is known or studied, is clearly hostile to religion in general, or at least the social relevance of religion, which should be especially dear to a Catholic.
Some believe that the collaboration of some Catholics with pro-criminal movement is explained by his irritation with the violations of human rights of prisoners, “which leads them to choose, wrongly, because they confuse violent tone with a powerful critic – the hardest line and decided against movements for the rights of victims of violent crime.
However, my experience tells me that this explanation is valid for a minimum number of Catholics (kind Pope Francis and others, whose ingenuity is as great as his inability to fully understand the problems related to movements such as Human Right Wacht and Amnesty International and the Movement pro-criminal . For other Catholics, the decision to collaborate with the pro-criminal response to a disturbing logic. They are Catholics who do not ignore the ideological schema secular, pro-abortion and pro-gay pro-criminal Movement; know him well, but plan to use him as a weapon to attack his opponents within the Church, labeling them “fundamentalists.”

All this confirms once again the need not fail to interest-and even, when necessary, to intervene – for the violated rights of inmates and prisoners, but starting from a point of view and according to categories specifically Catholic, other than secularism Movement pro-criminal. With each passing day it becomes clearer to work with Amnesty International is not only useless, but even reprehensible and harmful.
On the other hand I know that the American Jesuits have for years financed Human Rights Watch.

I have a more general question about Amicus briefs - what is the procedure for requesting permission to file one (I mean in general, as I assume each court has its own specific rules)?

In the U.S. Supreme Court and the U.S. Courts of Appeals, would-be amici ask consent of the parties first. If given, they just file the brief. If withheld, they make a motion to the court for leave to file.

The practice of the Supreme Court has long been to grant nearly all the motions. With no advantage to withholding consent, most Supreme Court advocates representing parties routinely consent to all requests. It then became common to file "blanket" consents to all amicus briefs, and this practice gained official recognition in the most recent revision to the rules.

The governments of the United States and the several States can just file without consent or leave of the court.

State practice varies, but it's generally an application to the court for leave to file.

The opposition the National Catholic Reporter (NCR) ascribes to capital punishment is from statements by bishop’s conferences (which are not considered dogmatic).

The brief begins noting the United States Conference of Catholic Bishop’s (USCCB) call for abolition; and to put that in authoritative context, Pope Benedict XVI (when he was Cardinal Ratzinger) has remarked on the teaching authority status of the episcopal conference:

“The decisive new emphasis on the role of the bishops is in reality restrained or actually risks being smothered by the insertion of bishops into episcopal conferences that are ever more organized, often with burdensome bureaucratic structures. We must not forget that the episcopal conferences have no theological basis, they do not belong to the structure of the Church, as willed by Christ, that cannot be eliminated; they have only a practical, concrete function. No episcopal conference, as such, has a teaching mission; its documents have no weight of their own save that of the consent given by the individual bishops.

“It is a matter of safeguarding the very nature of the Catholic Church, which is based on an episcopal structure and not on a kind of federation of national churches. The national level is not an ecclesial dimension.

Ratzinger, J. Cardinal with Vittorio Messori. (1985). The Ratzinger report: An exclusive interview on the state of the Church. San Francisco: Ignatius Press. (pp. 59-60)

Dogma is only established when the pope speaks ex cathedral , or in concert with the entire global body of bishops.

No pope has spoken ex cathedra on capital punishment and the only recent action with the pope and the global body of bishops is the Catechism of the Catholic Church which clearly supports capital punishment, though noting that if penal conditions ever arise that the aggressor can be stopped from continued aggression, then capital punishment may be allowed to stop.

However, as we see from this article as part of the National Public Radio (NPR) series on Super Max prisons, that situation is not even possible there, which is what most people think of when claiming the aggressor can be stopped in the right penal condition.

An excerpt from the NPR article.

Even locked in isolation, some inmates have managed to find ways to kill each other and assault staff. On a recent afternoon, a half-dozen officers spent an entire day tearing apart the cells in one hallway, searching desperately for a metal binder clip they believed one of the inmates was hiding.
Officer Buchanan discovered the paper fastener hidden inside a crack in the concrete wall. It had been sharpened into a deadly razor.

In the cell next door, Sgt. France held up a couple of staples she found.

“They use the staples. They sharpen them to a point, wrap paper around them real tight, and make a spear out of it,” France says. “It will go through the perforations on the cell. They can spear someone with it.”

Isolation Breeds Deadly Ingenuity

Lt. Steve Perez explains that inmates pull out the elastic from their underwear and braid it into a kind of super-powered bow to fire their weapons.

“They can project a spear coming out of there at 800-square-pounds per foot,” Perez said. “And 800 pounds per foot, into your neck, it’ll drive that right in there. And now we’ve got to go in there, and what does he have on it? Does he have feces? HIV? Does he have herpes? TB? Hepatitis? And that’s not unusual.”

Prison officials say that removing the most dangerous gang members and putting them in segregation makes regular prisons safer for the rest of the inmates — and it weakens the gangs.

But Jim, a 38-year-old SHU inmate from Long Beach, says that’s wishful thinking. He says that to gang members, being sent to the secure-housing unit is an honor.

“Coming up here was the big thing,” Jim says from inside his cell. “Put in work. Come up here, be with the big homeys. Because this is the only place you’re going to be around the fellas, you know.”

‘You’re a Target Because of the Color of Your Skin’

Jim says gang leaders still control the gangs from within the SHU, mostly by mailing each other letters. And he says if you show up to prison and don’t join the gang of your race, you’ll be a target for the other gangs within days.

Retrieved March 21, 2015 from http://www.npr.org/templates/story/story.php?storyId=5584254

In closing, the amicus brief notes that Catholics belief in the sanctity of life is why capital punishment should be abolished, but they have it backwards.

The sanctity of human life is exactly why capital punishment is and always has been, allowed by the Catholic Church, an argument built on God’s covenant with humans noted in the Catechism:


The witness of sacred history

2259 In the account of Abel's murder by his brother Cain, Scripture reveals the presence of anger and envy in man, consequences of original sin, from the beginning of human history. Man has become the enemy of his fellow man. God declares the wickedness of this fratricide: "What have you done? The voice of your brother's blood is crying to me from the ground. And now you are cursed from the ground, which has opened its mouth to receive your brother's blood from your hand."

2260 The covenant between God and mankind is interwoven with reminders of God's gift of human life and man's murderous violence:

For your lifeblood I will surely require a reckoning. . . . Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image.

The Old Testament always considered blood a sacred sign of life. This teaching remains necessary for all time.

Retrieved March 23, 2015 from http://www.vatican.va/archive/ccc_css/archive/catechism/p3s2c2a5.htm#I

This statement “This teaching remains necessary for all time” came from the pope and all the bishops of the world, who wrote and approved the Catechism, and is dogma, incontrovertible truth.

"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?"

If it were true that five of the current Justices of The Supreme Court were Catholic, then the fact that every son or daughter of a human person can only be a human person, and only a man and woman can exist in relationship as husband and wife, as long as that particular man and woman have the ability and desire to exist in relationship as husband and wife, would not be up for debate. We can know these two facts through both Faith and reason.

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