Your reason for being: 'Equal justice under the law'

By Archbishop Thomas Wenski - The Archdiocese of Miami

Archbishop Thomas Wenski preached this homily during the annual Red Mass for legal professionals hosted by the Miami Catholic Lawyers Guild, and celebrated Oct. 25, 2021 atGesu Church in Miami.

In this morning’s first reading, St. Paul says: The Spirit himself bears witness that we are children of God. As “children of God” but also as members of the bar and the judiciary, as legal professionals, you gather here today in this beautiful downtown church to invoke the power and wisdom of the Holy Spirit to guide you in your deliberations as men and women who, by the grace of God, are both members of the Church's faithful and citizens of this great nation.

It was once commonly recognized that the essential American legal principles of equality, rights, and government by consent, were derived from the laws of God, articulated in the Declaration of Independence under the general appellation of the “Laws of Nature and of Nature’s God,” and incorporated into the various state constitutions and the federal Constitution. If you visit the U.S. Congress you will find several reliefs of notable persons enshrined on the walls in the upper gallery — among them are two popes, and the great lawgiver, Moses. They didn't get enshrined in Congress by accident but for their contribution to the understanding of law and its purposes.

In today’s Gospel, we find Jesus engaging with the leader of the synagogue in a legal argument. Remember he always insisted that he did not come to destroy the Torah, the law, or the prophets, but to fulfill them. And so, when criticized for healing a crippled woman on the sabbath, he does not reject the Torah but makes a legal argument based on the legitimate allowances of restricted levels of work permitted on the sabbath.

Like the ailing woman of the Gospel today, many people have some forces in their lives that can cripple them. There is the weight of grief, loss of work or other economic woes; there can be failure of important relationships — any of these things can cripple or bend us over. Imagine how this bent down woman saw the world and how her perspective changed when Jesus healed her allowing her to stand straight. Law, when its serves justice, helps make things straight — especially when it provides relief for those being bent over by forces in their lives beyond their control. And, I am sure, the opportunity afforded to “make things straight” is the source of your satisfaction in the performance of your profession.

That said, we should keep in mind a critical distinction in our Anglo-America legal tradition — something once taught in the first year of law school — is the distinction between actions that are "malum in se" and those that are "malum prohibitum." "Malum in se" are actions that are wrong in themselves. It was assumed that we cannot not know that murder, rape, theft, and fraud are wrong — now these things are formally prohibited by legislation, but their wrongness exists independently of legislative prohibition. If Florida were to repeal its statutory prohibition of murder, murder would still be wrong in Florida as it would be wrong everywhere else. Of course, other actions are wrong because the government says so. A "No right on red" sign tells us that making a right turn on a red light can be wrong in one state while it isn't in another. This is malum prohibitum — a positive law established by a legislator rather than the natural law that can be said to be "written on the human heart."

It is important to keep this distinction clear in our minds — because today many no longer hold that there is anything “malum in se”. And, if we set aside moral absolutes, we still will need to lay down a minimum of norms if human beings are to live together. The only recourse is that of judicial positivism: to seek procedural rules that seek to cover every conceivable circumstance. And today we are bombarded with more and more complicated and often indecipherable rules and regulations. But this ultimately leads to a dead end — and to some real confusion. For such legal positivism to adopt a relativism makes the practice of law the province of irrational tastes and arbitrary subjective judgments — and then we risk descending into a “might makes right” regime that “cripples” rather than “sets straight.” If we set aside moral absolutes and the first principles that derive from them, then judges will just become “politicians in robes,” as not a few people already believe.

Rather than an era of change, our age is a change of an era. We sense that our country, our culture, indeed our entire world is undergoing a transformation that is as unprecedented as it is unpredictable. Implicit in this change of an era is a crisis of values and a crisis of leadership. And behind the anger and frustration of many people is simply fear.

Given the crisis of leadership, what's ahead of us in the years and decades to come as pressing problems such as instability in international relations and continuing polarization at home, the opioid crisis in Middle America, unsustainable entitlements, a broken immigration regime, increasing inequality resulting in some way from the creative destruction of a globalized economy, will continue to vex us. Not to mention how we emerge from the pandemic.

Even more reason to invoke the help of the Holy Spirit especially for those of you in the legal professions. In the Gospel, the crippled woman, “a daughter of Abraham,” was set free by Jesus from the bondage of her infirmity. Your craft as lawyers and as officers of the court has as its foundation, its reason for being, the principle emblazoned on the façade of the Supreme Court building, “Equal justice under the law.” Equal justice is befitting for those who know themselves to be children of God and makes possible that belonging — e pluribus unum — in which we as Americans find our identity and the security that enables human flourishing in this the home of the brave and the land of the free.