Dershowitz challenges Scalia to a duel on Catholic morality

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Alan Dershowitz is many many things: a legendary civil rights expert and attorney, a Harvard Law Professor, a prolific author (especially when it comes to that closest to him), and omnipresent political expositor. But he is most definitely not a Catholic.

So it’s a little surprising (ok, maybe not that surprising, coming from the man who wrote the book Chutzpah) to see Dershowitz throwing down the gauntlet with Justice Anton Scalia, over his recent dissent in the Troy Davis case, about which Dershowitz accuses Scalia of “Catholic betrayal.”

The Davis decision, which was issued on Monday, granted Troy Davis, a death row inmate, the right to present new evidence to prove his innocence. Justices Scalia and Clarence Thomas, were the lone dissenters in the case.

From Dershowitz’s article originally posted at The Daily Beast:

Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms”: “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.” He continued: “It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the church’s Magisterium.”

Dershowitz insists that he ordinarily “would not include a justice’s religious views in a criticism of a judicial opinion,” but that it is Scalia’s own discussion of the role of his faith in his rulings that opens the debate.

Despite his faith, Scalia’s feelings in favor of the death penalty are well-known and well-documented.  He once called Christian opposition to state executions “handiwork of Napoleon, Hegel and Freud” and said that “the more Christian a country is, the less likely it is to regard the death penalty as immoral.”

But while Scalia’s possible hypocrisy on the death penalty might be old news, Dershowitz has an excellent sense of timing.  The Davis decision has quietly breathed new life into the debate around the death penalty — and its interpretation through the Constitution. At the same time, the Court has become overwhelmingly Catholic — six out of the nine justices, with the recent inclusion of Justice Sonia Sotomayor. In this new environment, it’s hard not to wonder what role faith will , or will not, play in the Court’s decisions.