TIM O’BRIEN, correspondent: The Alabama case before the Supreme Court stems from the brutal killing of 52-year-old Cole Cannon, whose body was found in the charred ruins of his mobile home nine years ago. Authorities first thought it to be an accident, but bruises on Cannon’s body and his broken ribs prompted them to investigate further. It turned out to be a murder committed by a neighbor, Evan Miller, who was only 14 years old, and his 16-year-old friend, Colby Smith. It was in the early morning hours; the three had been drinking heavily. When Cannon appeared too drunk to resist, the teenagers tried to rob him, but a fight broke out.

Children are capable of committing horrible crimes, even 14-year-olds like Evan Miller, who beat his victim over the head with this baseball bat and then crushed his ribs with it. He then placed a sheet over his head and told him, ‘I am God. I have come to take your life.’ A fourteen-year-old.

Candy Cheatham is the victim’s daughter.

CANDY CHEATHAM: Even with that, he did not stop beating him, and they set the trailer on fire—there were at least three or four points of origin—and left my Dad there to die. The cause of death was blunt force trauma to the head, and he had about seven or eight broken ribs in combination with the smoke inhalation. Then they proceeded to brag to friends about what they did.

O’BRIEN: Murder in the course of another felony—in this case arson– is a capital offense in Alabama, as it is in most states. The Supreme Court threw out the death penalty for juvenile offenders in 2005, so when the jury returned its guilty verdict, the judge could only sentence Miller to life without parole. The Supreme Court won’t allow more, and Alabama law doesn’t allow anything less for one convicted of capital murder. Prosecutors say Miller got what he deserved.

ROBERT LANG (Prosecutor, Lawrence County, MO): Our legislature and the people of our state believe that if you commit these type of crimes, there are only two punishments that are fitting, and that is either the death penalty or life in prison without parole. So his protection is he’s not going to get the death penalty, but he’s going to be put away for the rest of his life.

O’BRIEN: The Supreme Court is now expected to use the Miller case to determine whether states are required to consider giving juveniles a second chance, no matter what they did. And each side is giving up a little in this case. Alabama is not arguing that all juvenile murderers should be ineligible for parole, only those who commit the worst crimes—crimes that would bring a death sentence if the defendant were an adult.

Evan Miller is represented by the Equal Justice Initiative and its founder and executive director, Bryan Stevenson, and Stevenson isn’t asking anyone actually be given parole, only that when offenders are so young that at some point far down the road, they at least be allowed to demonstrate they are entitled to be set free.

BRYAN STEVENSON (Equal Justice Initiative): I think everyone is more than the worst thing they’ve ever done, and I think that policy makers can make decisions about how to punish them. But I think children are uniquely more than their worst act; they have quintessential qualities and characteristics that a decent society, a maturing society, an evolved society, we believe, is constitutionally obligated to recognize and protect.

O’BRIEN: An argument Stevenson pressed in court to a skeptical Justice Antonin Scalia.

STEVENSON: I think the easier rule to write would be that there is a categorical ban on all life without parole sentences for all children up until the age of 18.

JUSTICE ANTONIN SCALIA: How do I come to that decision? What, do I just consult my own preferences on this matter? Something like 39 states allow it. I mean, the American people, you know, have decided that’s the rule. They allow it, and the federal government allows it. So I’m supposed to impose my judgment on what seems to be a consensus of the American people?

O’BRIEN: John Neiman, Alabama’s solicitor general, says life without parole is a reasonable alternative to the death penalty, even for juveniles.

JOHN NEIMAN (Solicitor General, Alabama): The theory and the thought is that if someone doesn’t deserve the death penalty for that particular crime they deserve life without parole. That’s the appropriate way to express society’s outrage at these sorts of aggravated murders.

It is reasonable for legislatures to conclude that they’re going to draw a line in the sand with respect to aggravated murder, such that as a floor in terms of the appropriate punishment the defendant is going to get, at the very least, life without parole, a punishment that’s no doubt severe, but one that is less severe than the impact the crime has had on society.

O’BRIEN: But Attorney Bryan Stevenson reminded the justices that they have acknowledged in their past decisions that because children do not think like adults, they are less culpable.

STEVENSON: And the decision-making of children, the thinking of children is categorically different. They’re not thinking three steps ahead. They’re not thinking about consequences. They’re not actually experienced enough with the world to understand how they deal with their frustrations in the same way that an adult is, and so their judgments about what they intend to do, their declarations mean something very, very different.

O’BRIEN: At one point, the state’s demand for retribution appeared to give way to a justice’s concern for a child.

KENT HOLT (Assistant Attorney General, Arkansas): The principle justification in this case lies with the retributive principle. The punishment for this crime reinforces the sanctity of human life, and it expresses the state’s moral outrage that something like this could happen.

JUSTICE RUTH BADER GINSBURG: You say the sanctity of human life, but you’re dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope. I mean, essentially you’re making a 14-year-old a throw-away person.

CANDY CHEATHAM: Society needs to be protected, and it’s not throwing away a juvenile. If he wants to be rehabilitated, that can happen behind bars. It’s just too high of a cost to risk.

O’BRIEN: Candy Cheatham remembers her father as a “good man” and says how he died will haunt her for as long as she lives.

STEVENSON: If we win, the United States will still have the harshest punishment scheme for children in the world. We will still have very severe punishments in place to punish any offender who commits an aggravated crime.

O’BRIEN: The court was sharply divided in 2005 when it found the death penalty unconstitutional for juvenile offenders. Whether juveniles may also be spared life in prison with no parole when they commit murder isn’t any easier. Although some justices were sympathetic, others are known to feel that these decisions are best left to juries and state legislatures, not federal judges. The court’s opinions, and there will surely be several, are due in the next month.

For Religion & Ethics NewsWeekly, I’m Tim O’Brien at the Supreme Court.

BOB ABERNETHY, host: Religious groups held rallies and a 48-hour prayer vigil in front the Supreme Court this week as the justices heard oral arguments over Arizona’s controversial immigration law. At issue in the case is whether the state law infringes on the federal government’s authority to establish and enforce immigration policy. But several faith groups argue the law violates the dignity of immigrants and could result in racial profiling.

For more on this I am joined by Kim Lawton, managing editor of this program, and Patricia Zapor, a staff writer with Catholic News Service who’s been covering the faith community and immigration. Pat, it’s nice to have you back here again.

PATRICIA ZAPOR (Staff Writer, Catholic News Service): Thank you, it’s good to be back.

ABERNETHY: The Catholic bishops and many other religious leaders want a whole new kind of approach to immigration. What specifically, what exactly do they want?

ZAPOR: Well, that could take the whole program to explain. They want a comprehensive approach, something that gives people who are already here illegally the chance to legalize their status so that they can pull their families together, reunite torn-apart families, work legally, be able to go home to their home countries and visit their families there. They want a path for jobs. There’s a whole assortment of things.

ABERNETHY: Any likelihood that they might get those things any time soon?

ZAPOR: I think that’s probably very unlikely in an election year, although it might make for some good political demanding during this season.

KIM LAWTON (Managing Editor, Religion & Ethics Newsweekly): One of the arguments this particular week, as the case was at the court, from the religious community was that some of the local laws could hinder their ministry. What were they talking about?

ZAPOR: Well, this came up most conspicuously in 2006 in a version of legislation that passed the House included a provision that would make it illegal for anybody to help people who are in the country illegally. Cardinal Mahony of Los Angeles, then the archbishop, at that time told his priests that if this bill passes I am not going to expect you to follow through with that, to follow that law. It’s seen as an imposition on the rights of people of faith to take care of others.

ABERNETHY: People talk about the rights of other people, too, and what do the religious leaders say to those who say look, we’ve got laws, and laws need to be enforced and obeyed?

ZAPOR: Well, I think the religious leaders agree that states, government have a right to enforce their borders, but their arguments against the current immigration situation relate to the civil rights era, when Dr. Martin Luther King and bishops and priests and rabbis were at the forefront of arguments that the laws requiring segregation were inhumane, and they were unjust laws, that they had a right and an obligation to fight against those laws.

LAWTON: What are some of the theological and moral arguments that these religious leaders, really across a pretty broad spectrum, are making on this?

ZAPOR: Well, and they go back to the Old Testament and into the New Testament to calls to take care of the stranger, to take care of those people who have no rights in a society. They are throughout scriptures. That’s one of the main things that they go to.

ABERNETHY: There was some new data that came out this past week about the number of immigrants from Mexico going down for the first time in a long time. Does that change things at all?

ZAPOR: Not really, because there are a lot of people who are in the country illegally, to begin with, and that hasn’t particularly—doesn’t reflect a slowing of migration from Central America, from South America. Just because the situation in Mexico is changing doesn’t really change the whole picture all that much.

ABERNETHY: Situation changing? What? Better job opportunities?

ZAPOR: In Mexico, yes. Mexico’s economy has improved, there’s a lower birthrate, an assortment of factors involved in that.

ABERNETHY: Pat Zapor of Catholic News Service, many thanks.

ZAPOR: Thank you.

BOB ABERNETHY, anchor: Supreme Court nominee Elena Kagan made the rounds in Washington this week, introducing herself to the senators who will vote on her confirmation as the newest justice on the High Court. Special interest groups, many of them religious, are already urging specific lines of questioning for the upcoming hearings. If she is confirmed, Kagan would become the third Jewish justice and the third woman on the current court.

PRESIDENT BARACK OBAMA (at announcement of Supreme Court nomination): A court that would be more inclusive, more representative, more reflective of us as a people than ever before.

ABERNETHY: Kagan’s confirmation would also mean that for the first time in American history the Supreme Court would have no Protestants. Does this matter? If so, what does it say about the place of Protestantism in America today? Joining me is Kim Lawton, our managing editor. Kim, I want to have a little discussion about this. People are saying, Protestants are saying, well, yes, this is a big symbol and they’re sad about it, of declining Protestant influence in this country. But at the same time I hear other people saying it’s really good news, because it is a symbol of how far the country has come in overcoming the anti-Catholic and anti-Jewish prejudice that existed for so long—still exists, but there’s been a lot of progress made on that. And they also say it matters a lot more what somebody thinks, a Supreme Court justice thinks, on a particular issue than what kind of religious label that person wears. You hear that?

KIM LAWTON, managing editor: Well, it is interesting. I mean, nobody is saying that she shouldn’t be confirmed because it throws the religious balance of the court out, or anything like that, but it has been a very interesting moment to take stock of this change in our society. But, yeah, what I’m hearing from people, what I heard from one Protestant pastor this week was he said to me I’m less concerned about her religious affiliation than I am about how she’s going to vote on, for example, some of the religion cases, and certainly that those ideas of the separation of church and state and what kind of relationship the government and religion should have—that’s been very controversial. There have been some very close decisions on the court, and so what she thinks about that, for example, is going to have a big impact no matter what kind of religious label she carries.

ABERNETHY: Yeah. There’s also this idea that has been spoken of this week sometimes about a Protestant worldview and how it’s important—Protestants after all are half the country, 51 percent, but still pretty close to half—that there is such a thing as a Protestant worldview and that this needs to be represented on the court. But is there such a thing as a Protestant worldview anymore?

LAWTON: Well that’s been really interesting for me this week to watch or to read what some people are saying just in terms of that notion. Of course people’s faith, their beliefs affect their worldview, affect how they look at things, their values. But is there a uniquely Protestant worldview in this kind of situation? There are certainly a lot of different kinds of Protestants, and even when the court had all Protestants they didn’t have all unanimous decisions, so I do think it’s been an interesting question that’s been raised.

ABERNETHY: And it doesn’t mean that there can’t ever in the future be another Protestant justice.

LAWTON: Well, certainly the Protestant influence in America is not going anywhere. I mean, our president is Protestant, we’ve only had one non-Protestant president, the majority of the US Congress is Protestant. Protestants still are a vibrant community in this country and still very influential, but things are different than they used to be.

ABERNETHY: Kim Lawton, many thanks.

DEBORAH POTTER, guest anchor: As we mentioned earlier, another presidential nominee is in the spotlight this week, Sonia Sotomayor. The news of her nomination to the Supreme Court has dominated headlines, along with the California Supreme Court’s decision to uphold a ban on same-sex marriages. Joining us now to discuss those stories are Dan Gilgoff, senior writer at U.S. News & World Report, and Tod Lindberg, research fellow at the Hoover Institution. Welcome to both of you. Dan, you’ve described the nominee’s record on abortion as “inscrutable.” What do we know about her record on that particular issue?

DAN GILGOFF (Senior Writer, U.S. News & World Report): Not much. She’s ruled on a handful of cases related to abortion, but none of them directly related to Roe v. Wade. The one case that some in the pro-life community are citing as a hopeful sign for their cause is that she ruled against plaintiffs who are seeking to overturn the Mexico City policy, which bans federal funds from going to family-planning providers abroad that either endorse or promote abortion. Other than that she seems to be, you know, a black box on this issue, which is kind of fitting, because David Souter, the justice who she’s replacing, was also promised to be a conservative when George H.W. Bush appointed him to the Court in 1990, then of course voted to uphold Roe v. Wade a couple of years later. And so what’s happening this week is that some abortion rights groups are getting rather nervous. That’s kind of unexpected.

Dan Gilgoff

POTTER: Well, Tod, is this actually good news for conservatives who may have been concerned that the president would nominate a true liberal to the Court?

TOD LINDBERG (Research Fellow, Hoover Institution, Washington, DC): Well, I think that it’s still very much up in the air. It’s hard to see at this point. We all know that people who are hoping to be nominated to the Supreme Court are very cautious about what they say in their private lives and in their public writings, apart from what they are doing on the bench with regard to the abortion issue. I know people who aspire to be judges who would tell you, “I would absolutely never discuss that with you” for that precise reason. You want to be opaque, because if you have a position, I mean a discernable position, then you put yourself at substantially greater political risk. It’s kind of kabuki drama in its own way, but it’s one that we’ve been playing in Washington for a long time.

POTTER: And yet Hispanic voters traditionally are sort of much more anti-abortion than the rest of, say, the Democratic electorate. Is that — does that give you any clues, that fact that she’s Hispanic?

Mr. LINDBERG: You know, you’re talking about making a conclusion based on statistical evidence, polling, etc. and applying it to a particular person. It’s just not going to work for us. We’re not going to be able to know that. The test will be once she’s confirmed, and I think everybody assumes that she will be, when the cases arrive.

POTTER: Dan, what do we know about her record on issues of religious freedom, separation of church and state — other issues that really matter to voters of faith groups?

Mr. GILGOFF: Well, we know that she has a record of siding with those who are alleging violations of their religious liberty. And I think that’s been another bright spot for conservatives. It’s interesting in that conservatives came out roundly against her as soon as her nomination was announced this week, and at the same time, I mean, in the analysis that they were releasing before Obama made his choice, she kind of received the warmest treatment. And I think some of that was because of her rulings over the religious liberty cases.

Mr. LINDBERG: I think you’d also have to draw the distinction between the conservative commentary crowd and actually the members of the Senate, who have taken a very cautious view of this. I mean they promised, the Republicans promised full scrutiny, full assessment, but certainly no one has leapt out to be an opposition figure. Certainly no one has said this nominee is unacceptable where it really matters, which is in the Senate.

POTTER: So the presumption at this point is that she will be confirmed?

Tod Lindberg

Mr. LINDBERG: I think the presumption is exactly that, in the absence of some unknown, unexpected revelation or disclosure.

POTTER: And that would leave us with six justices out of the nine being Catholics for the very first time. Is that important? Does that have significance?

Mr. GILGOFF: I think that it really speaks to the diversity ideologically of the Catholic community in this country. I mean, you talk as though, or people talk as though there’s a Catholic voting bloc, for instance. But Catholics really have voted for every winning president going back to Richard Nixon, and so it’s hard to see them — you know, they’re conservative Catholics and liberal Catholics — as a distinct bloc. But so far on the Court they’ve supplied the conservative side — the [five] Catholics are voting with the conservatives on the Court. So what I think this will do is kind of reflect more broadly the Catholic diversity that exists in the country on the Court. I also think it tells us something important about the administration politically in that they’ve taken the Catholic community very seriously. This is really a nod — Sotomayor — to the new Latino complexion of the United States. I mean, the Catholic Church is losing, you know, four Catholics for every person that’s signing up for the Church, and if it wasn’t for this huge infusion of immigration, the Church would have a real problem on its hands, and I think they’re really acknowledging that in this pick.

Mr. LINDBERG: I think the conclusion that we have to draw from this six-out-of-nine thing is that Catholic is always a plus in terms of your political calculation of who you are going to put on the Court.

POTTER: Now, let’s talk a little bit about the ruling in California that upheld a ban on same-sex marriage there.The Republicans, I gather, put out some talking points this week on Sotomayor, and one of their talking points was that she could impose a federal right to same-sex marriage. Does that have the chance of holding water, that argument, or no?

Mr. GILGOFF: I don’t think so, and I also think that the timing of this is actually very serendipitous for the White House. There was even some speculation that the White House expedited the announcement of Sotomayor to get ahead of the California Supreme Court ruling, because had the California Supreme Court struck down Proposition 8 you would have had this conservative uproar, largely directed at the Court, saying this is really the threat. The threat is that there will be Court-imposed same-sex marriage.

POTTER: Activist judges?

Mr. GILGOFF: Exactly. And so I think that the California Supreme Court ruling was really a lucky break for the Obama Administration in getting, you know, in sort of clearing a path for Sotomayor.

POTTER: What do you make of the next steps for the opponents of same-sex marriage? What do they do now? Where is their next step?

Mr. LINDBERG: Well, you know, I think there will be a continuation of initiative kind of processes. It is also interesting to look at what, you know, the next steps for the proponents are going to be. I think there’s a pretty strong indication that they do not want this matter, really, in the federal courts at this point. They would rather spend some time building up a case both politically and in terms of kind of the state court rulings that they’re able to obtain with the hope that California is more of an outlier than an indication of the trend, and take that then eventually into the federal courts. So I think, you know, conservatives will be looking to try to win in state courts where possible to show, however strongly, you know, the emotions run on this issue, that there is a principled case for defense of marriage as between a man and a woman, and that that is where most of the American people are.

POTTER: Are the statutes in the 29 states that have already banned same-sex marriage basically safe, because you’d have to go after them through some kind of referendum process, which is really hard to do?

Mr. LINDBERG: Well, safe is — no. I mean, I think if there’s ever a majority on the Supreme Court that wants to change the law on this then those statutes are precisely not safe, and I think that everybody’s aware of that and what the stakes are. But, you know, what I don’t see is a quick resolution of this issue. I think it’s one that unfolds over possibly ten years or maybe longer.

POTTER: Alright, thank you both very much. Thank you to Tod and thank you to Dan for joining us for that conversation.