Professor Dwight Duncan speaks at the Fortnight for Freedom Prayer breakfast

The following is a transcript of a speech given by Professor Dwight Duncan of the University of Massachusetts School of Law at the Fortnight for Freedom Prayer Breakfast on June 20, 2012. When I attended the talk given by Professor Duncan, I was hoping for an intellectually stimulating argument against the HHS mandate that calls for employers to pay for reproductive health care as part of their health insurance programs. Needless to say, I was disappointed in the professor. What I heard was little more than an empty rhetorical attack on our traditional values of religious freedom in favor of a Catholic interpretation of religious freedom that enshrines theocracy over democracy.

Father Healey, thanks for that generous introduction.

Anyway, I am deeply honored to be invited to speak at this prayer breakfast. Our Lord said that the deaf and dumb spirit is cast out only by prayer and fasting. So we're praying and breakfasting.

Which reminds me of a holy priest I knew, Father Sal [?] who was asked whether you could eat while praying. Actually I'm paraphrasing him because he was asked about whether you could smoke, which was viewed differently those days. He replied that the question should be put the other way around. Could you pray while eating? Then the answer is obvious. So I'm suggesting we all pray while eating, and if you don't like my talk, there's always the free food.

Friends, Roman Catholics and countrymen, do you assume America is a free country? Do you assume religious freedom is guaranteed in America? Most of us learned that in school and have taken it for granted ever since. In other countries people might have to worry about whether and how they can practice their religion. Not here. This is America, after all. Why do we think this way? It partly has to do with our law.

The founders and framers of our system of government met in Philadelphia in 1787 to draft the Constitution [and] to delineate the powers of government. They then submitted the Constitution to "We the People" to ratify, but many people all over the country thought that the document they came up with didn't do enough to protect our rights and liberties. And so one of the first things the first Congress did was to propose the Bill of Rights, which became the first ten amendments to the U.S. Constitution.

Not by accident did the First Amendment begin with religious freedom, protecting it from infringement in two ways. One, by prohibiting an official governmentally sponsored religion, "Congress all make no law respecting the establishment of a religion," and two, by protecting the people in their free exercise of religion, "or prohibiting the free exercise thereof."

What does this mean? It doesn't mean that in this country you have just the right to believe whatever you want to believe. Even in North Korea they have that right, because as a practical matter, no one can force you to believe or not believe something.

The free exercise of religion means the ability to act on those beliefs. To practice your religion in private or in public. To proclaim your religion to others, if you wish. To spend your money in furtherance of your own religion, and not in furtherance of anyone else's. To promote what you think is moral, and not to promote anything that you think is immoral.

Here I'll interject my thoughts. Is Duncan seriously saying that freedom of religious conscience is absolute? As a lawyer he must know that this is clearly not so. In our country we do not allow unlimited exercise of religion. For instance, we don't allow some churches to use psychedelic drugs like mescaline, in their rituals. We don't allow human sacrifice. We don't allow underage children to be abused, or allow their parents to withhold medical treatment. Despite Duncan's claims, we do not recognize unlimited freedom of religion or conscience.]

These are all necessary consequences of the idea of religious freedom. But law without practice is a dead letter. Our faith in our American freedoms also has something to do with our history.

The first English speaking Catholics to come to these shores, lead by Cecil Calvert, Lord Baltimore in 1634, practiced religious toleration remarkable for its day. The general idea then in vogue was to create a community where everyone  was on the same page in everything. Catholic countries were supposed to be Catholic. Protestant countries and colonies were supposed to be Protestant.

Well Lord Baltimore bucked the trend and in 1649 the Maryland General assembly enacted an act of religious toleration which promised to every self-described Christian that he our she could not "be troubled, molested, or discountenanced for or in respect of his or her religion nor in the free exercise thereof, nor anyway compelled to the belief or exercise of any other religion against his or her consent."

Duncan completely mischaracterizes the Maryland Toleration Act, which did not protect "every self-described Christian" but only those Christians who believed in the Trinity. Those who denied the divinity of Jesus, on the other hand, faced the death penalty. Why then concentrate on this as an example of religious tolerance when right here in Rhode Island we have such figures as Roger williams and Anne Hutchinson who worked for true religious liberty? It's because Lord Calvert was a Catholic, and Roger Williams a Protestant. Playing up the marginal influence of Maryland's failed attempt at religious liberty over Rhode Island's actual significant accomplishment in this regard is an attempt to rewrite the history of Catholicism as somehow tolerant, when even a casual perusal of history shows it is not. For instance, under the Maryland law, Quakers could be executed for following their consciences.

To his credit, Roger Williams, the founder of Rhode Island, who arrived to Puritan Boston in 1631 would go even further. Driven from the Massachusetts Bay Colony for his religious dissent, his colony would allow freedom to practice religion to everyone: Protestants (including Quakers), Catholics, Jews, and Muslims. In 1658 the Rhode Island General Assembly reminded the other colonies in New England that "freedom of different consciences to be protected from enforcements was the principle ground of our charter, which freedom we still prize as the greatest happiness that men can possess in this world."

More shading of history here by Duncan. Of course Roger Williams guaranteed religious freedom for Protestants, he was one. But Williams went further than even Duncan cares to admit. Rode Island respecting the religious beliefs of the "paganish, Jewish, Turkish or antichristian" as well as those who believed in Jesus, whether divine or not, whether in the form of a trinity or not. By the way, "antichristian" was Williams' term for atheists. Williams, in establishing Rhode Island, did more for religious freedom and conscience in his lifetime than the Catholic Church had done 1650 years.

Abraham Lincoln had occasion to join his voice to the cause of religious freedom in the 1840's, a time when nativism was exhibiting its persistent anti-Catholic strain. "The guarantee of the rights of conscience as found in our Constitution is most sacred and inviolable, and one that belongs no less to the Catholic than to the Protestant, and all attempts to abridge or to interfere with these rights either of Catholic or Protestant directly or indirectly, have our decided disapprobation and shall ever have our most effective opposition."

125 years ago, in 1887 James Cardinal Gibbons, Archbishop of Baltimore, went to Rome to take possession of his titular church, Santa Maria in Trastevere which is the oldest church in Rome dedicated to Our Blessed Mother. He gave a famous sermon there celebrating the American tradition of separation of church and state. He said, "For myself, as a citizen of the United States, without closing my eyes to our defects as a nation, I proclaim with a deep sense of pride and gratitude, and in this great capitol of Christendom, that I belong to a country where the civil government holds over us the aegis of its protection without interfering in the legitimate exercise of our sublime mission as ministers of the gospels of Jesus Christ"

That church in Rome where Cardinal Gibbons spoke contains the mortal remains of Cardinal Campeggio a renaissance prelate who had been sent to England to judge, along with Cardinal Wolsey, the annulment proceeding of Henry VIII against  his wife Catherine of Aragone.
This reminds us, of course, of the martyrs we will celebrate the day after tomorrow. Saints John Fisher and Thomas More, who both gave their lives to protect the freedom of the Catholic Church when the king put himself in the place of Pope and bishops at the head of the church in England, something which clearly violated the first article of Magna Carta. "That the English Church shall be free and shall have its rights undiminished and its liberties unimpaired."

Let's look at John Fisher and Thomas More. Saint John Fisher is no exemplar of religious freedom. This is a man who ordered the arrest of Thomas Hitton, and who, according to some reports, interrogated and tortured the man, before having him burned at the static. Hitton's crime? Being a Protestant. Thomas More described Hitton as "the devil's stinking martyr" and as Chancellor saw to the death by burning of six men, including Hitton, for daring to follow their consciences. John Tewkesbury, one of More's victims was a "London leather-seller found guilty by More of harboring banned books and… refusing to recant." Many would see More's subsequent execution by Henry VII as a sort of ironic justice, but More escaped the slow, painful death of burning since Henry mercifully had his head chopped off.

There are lots of moral lessons to be drawn from the story of Henry VIII, but since I'm a lawyer, I want to emphasize legal technicalities and particularly this bit about the Magna Carta. Magna Carta guaranteed the rights of the Catholic Church in England. But the chief executive officer of the country tossed it away, because he had the will to do so. He had the power to do so largely because not enough people stood up to him.

This is especially galling. A comparison is being made here between President Obama and King Henry VIII. One, an elected leader of a democracy that guarantees it's people freedom of elision, the other a monarch and theocrat. Obama has yet to execute any of his political enemies, Henry did. Also, there is no way in which the use of the term "chief executive" can be used to accurately describe the position of monarch in Britain at this time. This is a modern term that applies to a modern presidency.

We remember our sainted martyr John Fisher. He was made a cardinal by the Pope, but his head was off before the hat was on. There were thirteen other bishops in England at the time. Do you remember any of their names? Probably not, because when the winds blew their house caved in. We remember Thomas More, but there were many more lawyers and government officials at the time. They heard what the Lion wanted, and they gave it to him.

This fall we will commemorate the 50th anniversary of the opening of Vatican II, pretty clearly the greatest religious event of the last century.

Perhaps for Catholics, this is true, but what about the religiously inspired works of Ghandi in securing independence for his people? What about the establishment of Israel as an independent Jewish homeland after WWII? These are just two great religious events, both easily more influential than the ideas formulated by Vatican II, many of which reforms have been steadily rolled back by the church in the intervening decades.

In some ways the American contribution to the council is principally to be found in its declaration of religious freedom, the handiwork of the American Jesuit John Courtney Murray, which solemnly affirmed, "that the human person has a right to religious freedom. This freedom means that all people are to be immune from coercion on the part of individuals or social groups and if any human power in such ways as no one is to be forced to act in amasser contrary to his own beliefs, nor is anyone to be restrained from acting in accordance with his own beliefs, whether privately or publicly whether alone or in association with others within due limits."

Now we are implicated in this battle over the HHS mandate concerning contraceptives, abortion inducing drugs and sterilization. It could just as well have been another flashpoint. Denmark, for example, has just required churches to solemnize same-sex weddings.

Of course, Denmark doesn't have separation of church and state. They have a state church, the Evangelical Lutheran Church and now it has to recognize the right to marriage for everyone, since everyone owns the churches in Denmark. It should be noted that no minister is obligated to perform these ceremonies, they can refuse if the so desire. Other churches in Denmark, including the Catholic Church, are exempted from this law. So Duncan is being deliberately deceitful in not giving the whole story here.

In Ireland the government is seriously proposing abolishing the centuries old priest penitent privilege, thus enabling the government to force priest tho violate the sacred seal of confession, something that has been well settled in the common law since the days of Henry II and Saint Thomas Becket.

Again, Duncan isn't telling the entire story, but by now that shouldn't surprise us. There is a law that mandates reporting of child abuse in Ireland. Because of the Catholic Churches troubled history as regards the rape, torture and even murder of children by priests, the Irish don't want to allow the Church to hide behind priest penitent privilege when covering up these crimes, as the Church has been known to do. Certainly, no matter what the law says, a priest can refuse to report the crime or to testify. the priest has every right to follow his conscience. Unfortunately, in helping to cover up the crime of child rape, that priest will go to jail. Somehow, I don't see most people having a problem with that.

In Nigeria, in what seems like a weekly ritual, Christians are being killed for attending church.

I can't argue here. These killings are truly horrific and wrong, an affront on basic human decency. But Duncan and the Catholic Church are hardly alone in condemning these attacks. There is virtually no one on Earth in favor of this brutality. So this seems a clumsy attempt to use this ongoing tragedy for political and rhetorical gain.

How fortunate we are that we are not encountering any of these obstacles to living in accord with our consciences. Still, the threat to religious freedom is real.

When our government tells us we must pay for acts we believe and know to be immoral for everybody, our situation is comparable to what's happening in these other places, even if it isn't precisely similar.

No. None of the examples Duncan cites are the least bit comparable to what's going on here, today, in the Catholic Church's attack on the HHS mandate. We are not talking about child rape here. We are not talking about church murders here. We are not even talking about how a theocratic democracy decides on who can use what churches for what purposes, because we are not a theocratic democracy. Duncan is sketching in broad, unconvincing strokes an imagined war on religious conscience, when what he is really fighting is the waning of political power and influence of the Catholic Church. To Duncan's discredit, and as a professor at an institution of higher learning he should really know better, he has created a sloppy bit of pseudo-scholarship for the purpose of evangelizing and motivating the Catholic base to agitate politically against their own well-being. In so doing Duncan has tossed away even the thinnest veneer of academic honesty in the hope of currying favor with the church hierarchy.

So what are we called upon to do? Of course, we want to render to Caesar the things that are Caesar's. But we must also render to God the things that are God's. Conscience, as the voice of God within is distinctly a resident of our father's house. When the government tries to force conscience to bow to Caesar, we have no choice but to obey God rather than man. When the authorities in Jerusalem ordered Saints Peter and John to stop preaching about Jesus, they replied, "Whether it is right in the sight of God for us to obey you rather than God, you be the judges. It is impossible for us not to speak about what we have seen and heard."

Note the context and the details: Peter and John didn't say that the authorities were illegitimate. They didn't tell the authorities what they must believe. They even invite their listeners to judge for themselves according to their own consciences, but they stand their ground on one point: That they must do the will of God, no matter what anyone else, government included, says.

It's a bit of a Paul Revere moment. Only this time it's not the British that are coming, it's Big Brother. Or, if you prefer, think of Rosa Parks. We can go along and sit quietly in the back of the bus or we can stand up for human dignity and the rights of conscience.

Are religious people today really in the same position as Rosa parks was in 1955? Is this really the comparison Duncan wants to make here? Those striving for true freedom of conscience and human rights for all people would have every right to feel insulted by this comparison. Professor Dwight Duncan should be ashamed of himself.

When it comes to our precious heritage of religious freedom we must either use it, or lose it.

Thank you.

The video of the talk is here. Duncan begins speaking at the 14 minute 30 second mark.