Life and death - - Complicity and conscience

TUESDAY, JANUARY 12, 2021 ORDER IN PENDING CASE 20-A124 MONTGOMERY, LISA M. V. WATSON, WARDEN, ET AL. The application for stay of execution of sentence of death presented to Justice Barrett and by her referred to the Court is denied. Justice Breyer, Justice Sotomayor, and Justice Kagan would grant the application.

Lisa Montgomery was executed the next day, the first woman to be executed by the federal government since 1973

Over dissents by Sonia Sotomayor and Stephen Breyer that the Supreme Court has, in Sotomayor's words, promoted an "expedited spree of executions" the Trump administration executed 13 after a 17 year hiatus in federal executions. Breyer observed in his dissent that there was a substantial question of whether Montgomery, a victim of childhood abuse who had committed a bizarre and brutal stabbing, understood now "the fact, meaning, or significance of the execution".

Many have noted that former Notre Dame law professor Amy Coney Barrett and Catholic University President John Garvey - prominent Catholic law professors - opined in 1998 that "While mere identification of a judge as Catholic is not sufficient reason for recusal under federal law, the authors suggest that the moral impossibility of enforcing capital punishment in such cases as sentencing, enforcing jury recommendations, and affirming are in fact reasons for not participating."

But adherence to Catechismal doctrine posed no obstacle to five Catholic Justices denying a stay of execution to three death row prisoners executed in the last week of the Trump presidency. 

What significance should a judge give to a history of severe childhood abuse?  

Of the possibility that the prisoner lacks comprehension of the "fact, meaning or significance" of her impending execution?  

Should her gender matter to the court?

Should Barrett have recused?  Voted to stay execution based on her personal opposition to capital punishment? 

Should Biden allow federal executions to proceed despite his personal opposition to capital punishment?

If all five Catholic justices refused to permit executions would that be a good thing? 

What should be the relationship between religious conscience and law?

The Little Sisters of the Poor were granted accommodation by the Supreme Court because they said that complicity in evil barred them even signing a form which exempted them from providing employees insurance covering contraceptive medicines and abortion procedures to which the Sisters have religious objections. 

 

 - GWC

Little Sisters of the Poor v. Pennsylvania: The Misuse of Complicity | Take Care

By Ira Lupu and Robert Tuttle (7/20/20)

In Little Sisters of the Poor v. Pennsylvania, the Supreme Court held that the Trump Administration did not violate norms of administrative law in promulgating an exemption for employers that have religious or moral objections to the “contraceptive mandate” of the Affordable Care Act.  This decision, by a vote of 7-2, appears at first glance to continue the string of decisive wins for religious organizations reflected in Espinoza v. Montana and Our Lady of Guadalupe School v. Morrisey-Berru.

On closer inspection, the decision is better seen as a tenuous 5-4 victory for religious organizations on a key question: when is an entity complicit in acts that it deems sinful but are performed, or potentially performed, by others?  One answer, which commands the votes of five justices, appears to be that the entity is complicit whenever the religious entity believes it is complicit.[1]  The opposing choice – that complicity is subject to judicial review, in light of legal (not religious) principles – is not well-articulated but should be.  The majority’s concept of complicity has the capacity to make the Religious Freedom Restoration Act (RFRA), similar federal and state legislation, and a possibly reinvigorated Free Exercise Clause, instruments for a dramatic expansion of claims – quite often successful – for religious exemption.  As Justice Scalia predicted in Employment Division of Oregon v. Smith, such a result could produce “anarchy,” but would more likely result in judges acting inconsistently, accommodating sympathetic religious claimants and denying relief to those who are not.