It is a real and valued privilege to be able to speak to you today by your invitation and the inspiration of my distinguished former student in Oxford, Peter Carfagna: you need to know that he like your President Dean Cieply refrained from suggesting what I might talk about, and has no more foreknowledge of these remarks than any of you have. I was able several times to speak to Ave Maria Law School's students and faculty in its northern years, but this is my first visit to your more southerly home.
I thought I would talk about your next fifty years--you law students in particular (long and happy as I hope the faculty's and others' earthly lives all will be)--not because I or I think any of us have the ability to see so far, or very far at all, into the future, but because I would like to offer a few thoughts about matters that should be important to you whatever the future brings. And those matters can be brought into focus by relating them the great Council of all the world's bishops in communion with the Bishop of Rome that met in the Vatican during four periods (sessions) between October 1962 and December 1965, more than 90 years after the First Vatican Council.
On the threshold of becoming a Catholic, having left behind atheism, I spent a day in Rome in late September 1962, on almost the last leg of my journey from Australia to Oxford, and I saw the seating for the 2,000 bishops being assembled in the nave of St Peter's. Eighteen months later I was reading my own copy of Michael Novak's brilliant book on the Council's first two periods, The Open Church, conceived (as the cover put it) as a moving tribute to the Open Church as she prepares to accept and be accepted by the modern world", but very rightly noting on its second page that "It will take a century perhaps, or two centuries, before the event is put in sufficient focus ... to grasp it sufficiently." (1) By the time the Council finished, I had completed my Oxford doctorate, on the idea of judicial power, and was in Berkeley California teaching legal writing and research at the Law School there for two semesters before taking up the Oxford law-teaching responsibilities I had, in one form and another, for the next 49 years, including two years teaching in and running a Law School in central Africa. During those years in Malawi, and from then on, I was to see St Peter's and the Vatican a good many times (most recently, the week before the election of the present Pope) in various ways and times connected with the Council for Justice and Peace, with the Pontifical Academy for Life, and with the Congregation for the Doctrine of the Faith's International Theological Commission. All this I mention because it may give you a sense of the basis on which I have come to think that your next 50 years are likely to be in many, many ways more difficult and challenging than these last 50 years have been.
These difficulties and challenges will, I think, be particularly evident to you as lawyers, whether practicing or not. Christians, especially faithful Catholics and Evangelicals, will increasingly need whatever legal services you can help provide, as protection (so as possible) in face of threats to their livelihood or liberty mounted on the basis of laws against so-called hate speech and bigotry, or against so-called discrimination in the provision of services involving complicity in immoral conduct; and threats contained in laws or legally supported policies for discriminating against Catholicism on the ground that in its teachings about private morality it rejects forms of immorality that the government or judiciary have decided should be promoted despite their gross injustice to children, or on the ground that in its own ecclesiastical order it distinguishes, in line with most basic differences in the human make-up between male and female. Even if we were to lose all the battles about the constitutionality of these anti-discrimination doctrines, and all or many of the legislative battles, there will still be much need for legal services in the case by case proceedings about alleged offences and torts, or in relation to dismissal and so on and on. Not all of you will have the vocation to provide such legal services, but as you pursue your legal studies I hope you all will work as hard as you can to identify the dangers, and so far as possible the strategies that might, in skilled and generous hands, contribute to alleviating them. The mix of legal craftsmanship and personal courage needed to provide this help will vary in its proportions from one circumstance to another, but both courage and craftsmanship will constantly be needed and, we should anticipate, be constantly in short supply.
An important aspect or fruit of courage is discernment, discrimination, good judgment. For it takes courage to think unpopular or socially penalized thoughts, thoughts that is expressed might even be legally penalized--and such thoughts you will increasingly need to think if you are to fulfill or even contribute much to carrying out the responsibilities or vocation I just mentioned. Obvious examples will easily occur to you, so I will mention only one or two that may not be so obvious.
You will be defending authentic human and civil rights, insofar as they delegitimate the penalties, oppressions and deprivations that will likely be imposed--by laws, employment practices, schooling curricula and orders and judgments about child custody--on Christian parents, children, men and women in their professions and so forth. You will be appealing to human and civil rights as bases for interpretation of state or federal laws. But the "human rights community", and "civil rights" in various of their recent manifestations canonized by the Supreme Court in cases like Obergefell v Hodges, have become a primary opponent of and threat to the preservation of the human and civil rights of Christians. So there is here an ideology that has appropriated these truths and made them half-truths and half-falsehoods, with the latter doing the effective work of persuading courts, legislators and voters. So discernment and discrimination are imperatively needed, and require of you hard critical thought, which in these conditions will require inner fortitude even before it calls for courage in expression and application.
Again, you will be appealing to freedom ("free exercise") of religion, as a constitutional concept and guarantee. Well and good; I have written quite a bit in recent years defending that category against those like my former Oxford colleague Ronald Dworkin who would reduce it to a mere instance of self-defining choices, an instance of no special dignity or weight. I have written quite a bit too expounding the merits of Vatican IPs teaching, in its Declaration on Religious Liberty Dignitatis Humanae, that everyone has the right not to be coerced, legally or socially, in seeking to find and live out religious truth even when they are negligently misconducting that search or mistakenly adhering to religious falsehood. But to all that, it is necessary (and consistent) to add that "religion" and "faith" can be the source of injustice--violations of rights--and that you will need to maintain your freedom, your duty to yourself, to think (and hold fast to) this truth: the worth of your religion is not, ultimately and basically, in its capacity to provide personal integration and consolation, or familial harmony, or social cohesion, but in its truth--its freedom from basic errors about reality, about the great facts of divine creation and providence, and about God's further self-disclosure through the prophets of Israel and the supremely significant events of the mission, execution and resurrection of Jesus of Nazareth, the Son revealing the Father. Religions that mistakenly deny any or all of these great facts can be and sometimes are, especially through their more earnest and dedicated followers, a grave menace to human rights, not least the rights of those who, like Catholics, can point out in words and show up in deeds the error not only of atheism and irreligion but also of those religions' faith and practice.
I will go over that in slower motion, with the outlines of a concrete example. That Council document I mentioned a moment ago, Dignitatis Humanae, is devoted to the right to be free from social including legal coercion in matters of religious belief and practice, within the limits of public order: that is public peace, respect for the just rights of others, and for sound public morality. Its principal explanation of the right is in sec. 3, which begins:
The highest norm of human life is the divine law--eternal, objective and universal--whereby God orders, directs and governs the whole world and the ways of the human community according to the plan of his wisdom and love. God makes us sharers in this his law so that, by divine providence's sweet disposing, we can recognize more and more the unchanging truth. Therefore every one of us has the duty, and so also the right, of inquiring into the truth in matters religious with a view to forming for oneself, with practical reasonableness and suitable means, judgments of conscience that are right and true. This teaching about divine providence and God's eternal law in which we can participate by our natural reason--a teaching that reaches back (2) to the Old Testament's book of Wisdom, to Augustine and Aquinas, and to the First Vatican Council's dogmatic constitution Dei Filius--profoundly distinguishes the Christian religion from any religion that, like Islam in its classical and dominant form, conceives of God as ruling the universe not according to a plan and law of wisdom and love but by acts of will which manifest only sheer power and a wilfully given mercy. That conception goes far to explain the massive and continuing failure of Islamically ordered societies, over very many centuries down to today, to coherently and...