Culture, Transformation, and Law

by Bishop James D. Conley, S.T.L.

Bishop Vann, esteemed attorneys and judges, dear brothers and sisters in Christ.

Thank you for inviting me to speak to you here tonight. Gatherings like this are important and encouraging. I have noticed that Red Masses are on the rise across the country. Some dioceses are celebrating them for the first time. I pray that our conversation this evening will be fruitful. But I also pray that our conversation will be followed by further conversations, further reflection and further discussions on these vital topics of our day. In short, I hope that our discussion will be the impetus for continued reflection on three questions: who we are, who God made us to be, and how we are called to serve him.

Before I begin, I should offer a word of congratulations to my good friend Bishop Vann. Last Friday, as all of you know, Pope Benedict XVI appointed him to be the 4th Bishop of Orange in California; one of the largest and fastest growing dioceses in the United States. Bishop Vann’s appointment speaks volumes about his leadership here in the Diocese of Fort Worth. It also means that the Holy Father thinks highly enough of all of you to send Bishop Vann to a new place. So, congratulations to Bishop Vann and to all of you!

Two weeks ago on Friday, I was appointed the 9th Bishop of Lincoln, a job I’ll begin on the 20th of November. In the meantime, Bishop Vann and I are “bishops designates” together, and after this talk, I think we’ll compare notes on moving vans and packing boxes. It seems that with our appointments being announced on a Friday, we have broken the usual custom of Super Tuesday and created a new precedent!

I wanted to begin by mentioning Bishop Vann’s appointment because I know it is the fruit of a long commitment to seeking and following the call of Jesus Christ. But Bishop Vann is not the only one called by God to service. Each one of you has a vocation to holiness, and to serving the Lord in a very particular way. This evening I want to talk about your call, about your vocation to life in Jesus Christ.

As attorneys, your call is to serve the Lord in the life of the mind and in the forum of civil government and public life. I realize that not all of you are public servants; judges, politicians, or legislators. But all of you have the privilege of formation in the fundamental contours of American public life and law. With that privilege comes the obligation, indeed the vocation, to be leaders in American public life and discourse.

In fact, the Second Vatican Council, in its Dogmatic Constitution on the Church, Lumen Gentium, declares that since the lay faithful are “tightly bound up in all types of temporal affairs it is their special task to order and to throw light upon these affairs in such a way that they may come into being and then continually increase according to Christ to the praise of the Creator and the Redeemer” (LG 31).

Your task is to shed light on the contours of our public life and to bring to bear, both in legal and political structures, the light of Christ the Redeemer.

For some of you, the idea of public life transformed by Christ the Redeemer may be an uncomfortable thought. We have an instinctual negative reaction to the intersection of faith and public life because we’re trained according to the mantra of “separation of Church and state.” The common perception of most Americans is that faith is the private relationship we share with the divine. This unique relationship is expressed most appropriately in worship and quiet devotion. To be sure, this is certainly a component of faith.

But faith is also meant to be lived in a public way and not "hidden under a bushel basket." As Archbishop Chaput so often says: "faith is personal, but it is never private." And as attorneys, you certainly understand the value the Founding Fathers themselves placed on the role of religious life in the public sphere.

The Constitution establishes a prohibition against the erection of a state church or religious institution. It does not establish a prohibition against public religious expression or activity. In fact, while the Constitution establishes a freedom from religious oppression by a state Church, it also establishes a freedom for religious expression in the free exercise clause. The two concepts go hand in hand because they reflect the experience and the perspective of the Founding Fathers.

Many early Americans had experience with the consequences of persecution by a state sanctioned church or established religion. The Puritans who settled New England, the Catholics who settled Maryland, and the Jews from Eastern Europe who settled South Carolina all knew that for a democracy to thrive in America, an established state church should be avoided. But the goal was not aggressive or mandated secularism. None of the Founding Fathers were called to relinquish their religious perspectives when they entered Independence Hall. For many of them, it was their own religious perspective, which drove them there to begin with!

The goal of the 1st Amendment was precisely to protect active religious plurality in public life.

In fact, this is a unique and often misunderstood facet of the American experiment’s genius: the recognition that religious institutions could be contributors to public morality and civic judgment precisely through the protection of largely unimpeded religious activity.

We should work hard to preserve and protect that notion. The Founding Fathers understood it to be essential for maintaining the social contract underlying the US Constitution. This is the reason why John Adams wrote in 1797, that: "our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

As Roman Catholics, we have a rich history of contribution to American public life. In 1835, Alexis de Tocqueville noted that Catholicism is uniquely suited to contribute to American public life. In his famous work: Democracy in America, DeToqueville observed that among religions "Catholicism appears to me…one of the most favorable to the equality of conditions."

DeToqueville argued that Catholicism is a natural supporter of democracy because "Catholicism places the same standard on all intellects, it forces the details on the same beliefs on the learned as well as the ignorant, the man of genius as well as the vulgar; it imposes the same practices on the rich as on the poor…it compromises with no mortal, and applying the same measure to each human, it likes to intermingle all classes of society at the foot of the same altar, as they are intermingled in the eyes of God" (pg 191).

DeToqueville’s observation is precisely the point I’ve been trying to make with you tonight: religious life is an essential factor in a well-ordered and just democracy.

I’d like to discuss two fruits of public religious participation in democracy.

The first is that religious life provides the ability to make moral judgments, which are rooted in a sense of the common good, rather than individual good. To borrow from DeToqueville, again, "where education and freedom are the children of morality and religion, democracy makes better choices than everywhere else."

A religious sense of the common good allows us to make better choices for public governance.

St. Thomas Aquinas offers some insight into precisely why this is.

In his Treatise on Law, St. Thomas outlines a vision for legislation that is rooted in the end, or telos, of law. I’m sure you have studied this in your philosophical formation. The idea is that law is established to achieve a social purpose, to recognize and promote a particular virtue, but not for the sake of virtue alone. Law is the fruit of a reasoned attempt to achieve a common good and, as such, it seeks to transform those who are bound by it.

An example might help to elucidate that concept. The Code of Canon Law is the body of legal norms that govern the internal life of the Catholic Church. The Code is not a handbook of moral theology that guides Catholics in the decision making of their daily lives. Instead, it governs the concrete affairs of the Church; the administration of sacraments, the appointment of bishops and pastors, and the management of Church finances and temporal patrimony.

Bishop Vann is a canon lawyer, so I owe him an apology when I say that much of the Code of Canon Law is a pretty good cure for sleepless nights.

But I mention canon law because the Code is overt in the telos, the end, that it pursues. Canon 1752 states directly that "the salvation of souls is the supreme law of the Church," and all other laws are devised in service to that purpose.

For the Church, the common good can be identified as the salvation of souls; and law is devised to achieve that good. This means that law is not only just; it seeks to make us just. The norms governing the administration of Church finances are concerned with the administrators themselves; with habituating them to virtue, to encourage them to think with the mind of the Church in service to the salvation of souls.

Law, for St. Thomas, is transformative. It sets us free to choose the common good by forming us in its service. "For law to be good," St. Thomas observed, "it makes us good."

The challenge in any democracy, particularly a contemporary US democracy, is identifying and agreeing upon the common good law pursues. Although salvation is our ultimate goal, it would be unreasonable to suggest that American common law is ordered to our salvation in the same way that canon law is.

But at the same time, it is dispiriting to take up the Hobbesian notion that law exists merely to protect ourselves from one another; that the common good we pursue is a basic certitude and guarantee that we won’t kill each other.

Without a sense of the common good, a notion of the common good dependent upon common sense (which, unfortunately, is not too common these days), we default to a position of basic self- interest and self-protection. When we have no unified purpose, our goal is to avoid being harmed by one another. And this is the challenge in thinking about law merely in a positivistic way; in terms of the protection of rights. We’re made for more than merely avoiding violence. We’re made to pursue more.

Law can free us to pursue more. Law can point us in a direction and help us achieve it; and the direction should be ordered to our common good.

DeToqueville observes that in democracy we possess freedom to pursue whatever the majority wills; our political bonds are relaxed. But without an external sense of the common good, the will of the majority can easily become shortsighted and insular. "How can a society fail to perish," he asks, "if while the political bond is relaxed, the moral bond were not tightened?”

Rights-based legal positivism leaves us to strive for very little, it leaves us to seek the bare minimum as a public polity. It leaves us isolated and confused. And it leaves us uncertain, perplexed, and disagreeing constantly about where we ought to go and who we ought to become.

Religious faith, and Christianity in particular, provide an external sense of justice and truth, as well as a clear sense of authentic human dignity. Promoting human dignity is the common good. Promoting the family is the common good. Protecting truth and preserving justice is why we make law. We need to bring that perspective to bear in the public square.

But, it seems to me, that we are largely lacking this sense of the common good, of the very purpose of law itself, in our contemporary culture. We’ll discuss the consequence of that in a moment. But before that, I want to mention briefly another fruit of religious faith in public life.

One of democracy’s great virtues is its disposition towards equality. In a democracy, all people are equal before the law—they should have an equal right to vote, equal representation in government and equal protection in law. Equality before the law should ensure that poor or marginalized are not systematically overridden by the wealthy or the powerful. Legal equality is a good thing.

But DeToqueville observed a peculiar consequence to democratic equality. The American love of personal equality can contribute to a loss of discernment. Our love of equality effects the way we judge. Because the notion of equality elevates the lowly and weakens the powerful, it can do the same thing to ideas. It can prevent us from understanding and appreciating the excellence of what is true, what is good, and what is beautiful.

An American love of equality can quickly endorse a vulgar and banal relativism about culture.

Christianity draws us out of ourselves and towards the transcendent -- ultimately, towards Jesus Christ. In a limited way, the same thing can be said about other Western religions — Islam and Judaism point men towards something higher; towards God. It helps them transcend the temporal and the mundane. Western religions share an orientation towards something higher -- God himself. Because of that, religious people have a basic sense that while all men are created equal, not all things are actually equal. Not all experiences or expressions are equal. Some things mirror the reality of God more closely. They mirror what is true, what is good, and what is beautiful.

Having that discernment allows us to see that the temporal, the mundane, and the profane are not reflections of God. We come to realize that we ought to strive to reflect truth, goodness, and beauty in our ideas, in our judgments, in our expressions, and in our laws.

In short, without something drawing us towards what is holy we lose sight of holiness. And we lose sight of our own dignity as men and women created in the image of God.

We are facing a cultural crisis in contemporary America. The fruits of a vigorous and public religious life that I mentioned earlier are largely lacking. We find it difficult to discern the truth, or goodness, or beauty, let alone agree upon what it is. And we have little sense of the common good.

Pope Benedict XVI said in 2005 that in our time we are marching toward a "dictatorship of relativism." With no sense of truth, with no sense of common purpose or common good, the Holy Father says that we are simply "tossed here and there, carried about by every wind of doctrine" (April 24, 2005). The dictatorship of relativism, says Pope Benedict XVI, is the prevailing uncertainty, ambiguity, and confusion that we face in our culture today.

Certainly, we face this legally. The now infamous HHS mandate is a chilling example of our circumstances. Without a sense of the common good, we’ve legislated from a perspective of shortsighted, self-interest.

Contraception is not healthcare. Neither is abortion and sterilization. Contraception is an offense to our health and dignity.

While marginalizing the religious institutions and the people that are essential to the success of our democracy, we’ve legislated not to serve the common good by providing healthcare, but to serve self-interest, by providing unfettered access to the tools of indignity, injustice, and disunity.

The HHS mandate is not an example of a singular instance of bad law. It is a consequence of a culture with no sense of common justice or civic purpose; and with no sense of the great gift, dignity and beauty of sexuality. The HHS mandate represents unprecedented religious persecution. But it also represents the troubling absence of religious people participating meaningfully in public life.

As attorneys, you have a special obligation to do just that. I’ve mentioned this to you twice, and I will continue to do so. If the American experiment is to survive, it needs Christianity. And if our legal system is to survive, it needs your influence.

Our obligation is, of course, to vote, "early and often," as the saying goes, for candidates who will support the dignity of the unborn, of the family, and of religious institutions. And we should use all of our resources to encourage others to do so.

But at a deeper level, our obligation is to work to restore a sense of the common good and a sense of the transcendent in American public discourse. In his excellent essay Politics and the English Language, George Orwell noted that: "in our time, political speech and writing are largely [a] defense of the indefensible."

Law need not be a defense of the indefensible. But in part, that hinges on influencing the conversation about the role of law in our nation. If law continues to be an agent of self-interest, we will see more instances of religious and personal persecution. On the other hand, if law helps us to identify, proclaim, and seek a common good, then we will have turned the tide and served the vision of the Founding Fathers.

Law can be transformative. Law can demonstrate the meaning of words like justice, truth, and freedom. Law can return us to virtue. As a nation, law can help us to choose the good.

Let me conclude with a story from American history that continues to fascinate me. Some of you may remember a Steven Spielberg film from about a decade ago, "Amistad." It was a true story about a dozen or so African men on trial for rebelling against slave traders who had abducted them. "Amistad" was the name of the slave boat. They won their case and it became an important milestone in the abolition movement.

The attorney who defended the Africans before the U.S. Supreme Court was John Quincy Adams, our nation’s sixth president and son of John Adams, our second President and one of the nation’s Founding Fathers. The only President who served in Congress after his term ended.

Accounts of the trial say that throughout it, Adams kept appealing to a copy of the Declaration of Independence that was hanging on a pillar before the high court justices.

At one point Adams said this: “In the Declaration of Independence, the Laws of Nature are announced and appealed to as identical with the laws of Nature’s God — and as the foundation of all obligatory human laws."

Adams argued that if the rights of these African men were not given to them by God; then they could be taken away at the whim of other men or by the government.

To deny the principles expressed in our Declaration, Adams argued, "reduces to brute force all the rights of man. It places all the sacred relations of life at the power of the strongest."

John Quincy Adams was right. The Founding Fathers believed that religion and the laws thereby derived from religious belief had a fundamental role to play in public and political life. Without it, they feared their noble experiment would fail. It isn’t too late for our noble experiment to succeed. But it depends on your courage, your commitment, and your trust in Jesus Christ.

Thank you.

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