Remember the 'transcendent dignity of the human being'

By Archbishop Thomas Wenski - The Archdiocese of Miami

Archbishop Thomas Wenski preached this homily at the annual Red Mass hosted by the Miami Catholic Lawyers Guild at Gesu Church, Oct. 11, 2017.

Thank you for making time out of your busy schedules to be here at this Mass today. It’s good that we pray, it’s good that we pray together, and that we pray often. As the disciples walked with Jesus, they found him often at prayer. A good lesson there for all of us, Jesus wasn’t as tied to a schedule as he was tied to his Father.

I was privileged to hear Pope Francis speak to a joint session of Congress two years ago this past September. It is interesting to note that several reliefs of notable persons are enshrined on the walls in the upper gallery � among them are two popes, and the great law-giver, Moses.

Looking up to the image of Moses directly across from the dais, the Pope said to the assembled congressmen and senators: "Yours is a work which makes me reflect in two ways on the figure of Moses. On the one hand, the patriarch and lawgiver of the people of Israel symbolizes the need of peoples to keep alive their sense of unity by means of just legislation. On the other, the figure of Moses leads us directly to God and thus to the transcendent dignity of the human being. Moses provides us with a good synthesis of your work: you are asked to protect, by means of the law, the image and likeness fashioned by God on every human face."

I think what the Pope says applies not only to those in the legislative branches of government but also to you who, because you are officers of the court, represent in one way or other � either as attorneys or judges � the judicial branches of local, state and federal governments.

Our forefathers envisioned a "divided government" as the best way to keep in check the baser instincts of our fallen human nature that would open to door to tyranny and oppression. The "rule of law" was to prevail over the "rule of men." But today, hyper-partisanship has given us not so much a "divided government" as a "paralyzed government" � and increasingly because of this paralysis in the legislative branch, we have seen over the years instances of overreaching in both the executive and the judiciary.

The Pope has also said that 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 angry 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 terrorism, unsustainable entitlements, a broken immigration regime, increasing inequality resulting in some way from the creative destruction of a globalized economy continue to vex us?

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. Moses, the law-giver of Mount Sinai, didn't get enshrined in Congress by accident.

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.

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."

Yet, many, many people � and this includes some revered members of our courts � no longer hold that there is anything "malum in se". What Pope Benedict has called "the dictatorship of relativism" and Pope Francis has labeled “ideological colonialism” has undermined our confidence in the existence of moral absolutes. Natural law � which simply means that the moral law applies to everyone who shares a human nature � is set aside. Now, it is the “ego”, the "I", and its whims that is the ultimate measure. We saw this with Casey v. Planned Parenthoodthat compounded the error of Roe v. Wade by effectively establishing a new secular religion asserting that everyone has the "right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life."

Now, if any reference to a common truth founded in natural law is ruled out, it still remains necessary 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.

We see this confusion, for example, in the debate about immigration. The phrase "What is it about 'illegal' you don't understand?" is used to trump all debate. (The use of the verb here is purely coincidental.) To label a “criminal” both someone who commits actions that are malum in se and someone else whose only wrongdoing is the commission of actions that are merely malum prohibitum is to use language confusingly. And in most cases, unlawful or irregular presence in the US is not a criminal offense but a misdemeanor.

Certainly there can be legitimate debate over how open our borders should be. But merely calling “illegal” immigrants “criminals” does not settle the matter. “Illegal” immigrants are “criminals” only because government policy declares them to be or treats them as such � in the same way that persons openly practicing Christianity or Judaism in Soviet Russia were “criminals” only because government policy declared them to be. And conversely if government policy determines that something is "legal," like abortion, then the current conventional wisdom is "if it's legal it can't be wrong."

Let me end this reflection, repeating once again the words of the Holy Father in Congress. "The figure of Moses leads us directly to God and thus to the transcendent dignity of the human being. Moses provides us with a good synthesis of your work: you are asked to protect, by means of the law, the image and likeness fashioned by God on every human face."

This is a beautiful task but a grave responsibility and so we pray with you and for you: "Come Holy Spirit, fill the hearts of your faithful and kindle in them the fire of your love. Send forth your Spirit and they shall be created. And You shall renew the face of the earth.

“O, God, who by the light of the Holy Spirit, did instruct the hearts of the faithful, grant that by the same Holy Spirit we may be truly wise and ever enjoy His consolations, Through Christ Our Lord, Amen."