Irony in the SCOTUS child rape case

Turns out the military gives the death penalty for raping kids - but the DOJ forgot to tell somebody. I suppose originalists who hate Justice Kennedy's "emerging consensus" style reasoning in Kennedy v. LA would like this information to go against the Court's conclusion that a "maturing society" doesn't use the death penalty in this instance. The irony is - in light of Gitmo, Abu Ghraib, US Atty Firings, FISA spying, etc. - the U.S. military and DOJ hasn't had the most "mature" reputation under this administration and therefore seems to re-enforce Kennedy's "emerging consensus" argument.