Dr. Edward Peters 

To work for the proper implementation of canon law is to play an extraordinarily

constructive role in continuing the redemptive mission of Christ. Pope John Paul II







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5 jan 2013

Some responses to Dcn. James Russell’s remarks on Canon 277



My other remarks on

clerical continence

can be found on

this web page.


There were a couple of developments on the clerical continence debate while I was busy overseas (May-July 2012). I plan to address these developments in time, and will begin by replying to a lengthy post on this matter offered by Dcn. Jim Russell of St. Louis.


Dcn. Russell graciously sent me a draft of his remarks back in May, but circumstances allowed me then only to suggest that he be more precise in his terminology. His final version went up on his website, “The Body Guard”, back on May 19. I find his remarks thoughtfully and charitably offered. They are, however mistaken in several respects. His post is quite long so I have placed my red interlinear replies in Russell's text, as below.



The ‘Continent’ Deacon, by Deacon Jim Russell (18 May 2012)

Interlinear replies by Dr. Edward Peters (6 August 2012)


In a few weeks I celebrate my tenth anniversary as a deacon. Congratulations.


Ten years ago, a lot of things were going through my mind as I approached ordination, laying face-down on the cool marble floor during the Litany of the Saints at the Cathedral Basilica of St. Louis. One thing I was definitely not thinking that day was whether I would be able to, from that day forward, observe “perfect and perpetual continence” for the rest of my life. Of course not. The failure to inform married candidates for orders of this obligation (a failure committed by formators who were themselves most likely unaware of the obligation) is one of the chief points militating against the imposition of this obligation per se on married clerics and their wives at present. It says nothing, however, about how canon law actually reads in this regard, nor about what action the Church may decide to take in this matter in the future.


I’m pretty sure my wife wasn’t thinking that, either. Doubtless not, as above.


And, given the fact that three of my children were born after ordination, the rest, as they say, is history. Again, congratulations, though this happy fact is irrelevant to the issue.


Fast-forward to just this past week when I learn that … This debate has been very public for some years now. I find it hard to image that only a couple weeks’ worth of awareness of it suffices to allow one to become sufficiently informed about the issues. But, I could be mistaken.


… some folks seem very convinced that married deacons are supposed to do just that—give up all rights to marital relations (perfect and perpetual continence) “for the sake of the kingdom of heaven” when they are ordained. Basically correct, but this phrasing should be clarified: My position is that modern canon law (and the unbroken Western tradition behind Canon 277) unquestionably requires “perfect and perpetual continence” of all clerics, even those married. Then, assuming that I (and others) are correct in this interpretation, I hold that either the law should, with equity of course, be enforced, or, it should be changed to reflect some (as yet unclear) developments in the theology of holy Orders which have obviated this traditional clerical obligation.


Every married deacon knows that, once ordained, “persons who are in holy orders invalidly attempt marriage” (Canon 1087), meaning that if our wives die before we do, we can’t marry again and are bound to embrace the celibate state and observe “perfect and perpetual continence for the sake of the kingdom of heaven.” Careful here. All clerics are impeded from marrying in virtue of holy Orders. So, if a married cleric’s wife dies, he is bound by celibacy even without having “embraced” it as would have an unmarried candidate for Orders. Meanwhile the continence expected of single men arises from natural law and moral theology, not from canon law.


But learning that there exists a line of thinking that suggests that all the married deacons of the last generation were, after ordination, supposed to be “continent” though married? That’s come along as a bit of a shock. This repeats the skepticism toward my views expressed above, but it does not make a new argument.


Eventually, I will be bringing a “Theology of the Body” (TOB) perspective to this question… I will be interested to read this, of course, but I caution that the “theology”, if any, at issue here is not primarily that of “the body”, but rather, that of holy Orders. The obligation of clerical continence as reflected in canon law is grounded in holy Orders, not in marriage or in ‘the body’.


… but I don’t think I can do so until I offer a thought or two about the key argument made regarding the matter. So, consider this a “pre-TOB perspective” that will form the groundwork for what will follow. Okay.


The heart of this question is the phrasing of a single canon in the 1983 Code of Canon Law, Canon 277 §1. It says: Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy which is a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided heart and are able to dedicate themselves more freely to the service of God and humanity. (Clerici obligatione tenentur servandi perfectam perpetuamque propter Regnum coelorum continentiam, ideoque ad coelibatum adstringuntur, quod est peculiare Dei donum, quo quidem sacri ministri indiviso corde Christo facilius adhaerere possunt atque Dei hominumque servitio liberius sese dedicare valent.) Before going further, it seems appropriate to offer some thoughts on the terms “continence” and “celibacy.” Okay.


Simply put, one is “continent” when one does not engage in conjugal relations. One is continent when one does not engage in sexual intercourse (or those other acts appropriate to married couples’ intercourse), regardless of whether those acts are technically “conjugal”.


One is “celibate” when one refrains from the pursuit of or participation in marriage. Ambiguous. Celibate men and women may not pursue marriage, yes, but I do not know what “participation” in marriage means here or what else is allegedly prohibited to them. As I have stated elsewhere, married clerics (and their wives) in fact “participate” in every aspect of marriage, save intercourse.


But, in our context, we have to go one step further, for both terms: A reminder: “our context” is canon law. We are asking, what exactly does canon law require. Now, Canon 17 explains how the meaning of disputed canons is to be determined, and that time-tested process cannot be ignored except at peril to one’s argument about the meaning of canon law. I have provided extensive and sound canonical analysis of a controverted canonical question. Yet almost no one is taking up my canonical arguments; instead most folks are inventing their own criteria for assessing the meaning of a disputed canon.


Our discussion involves not merely “continence” but rather “continence for the sake of the kingdom of heaven” as already indicated above. Okay, let’s see where this goes.


In this context, an intimate and intrinsic link forms between celibacy and continence. I hope these words “intimate and intrinsic link” will be defined; they do not have a ready meaning in canon law and, as they stand, they risk conflating two distinguishable issues.


Both are embraced by the “cleric” “for the sake of the kingdom of heaven.” How does a presumably already-“continent” man (e.g. an unmarried seminarian) assume the obligation of “perfect and perpetual continence for the sake of the kingdom of heaven”? Is this really the question that was meant? Well, single men should be continent in accord with their status as single men, but we do not properly call men “celibate” until they embrace that single state as a life-long commitment, usually in holy Orders, but sometimes in consecrated life. To answer the question, an already-continent (because he is single) man assumes the obligation of clerical celibacy in a liturgical rite that reflects the canonical obligation incurred under Canons 1087.


Through his being bound to the state of celibacy—when he publicly renounces pursuit of and participation in marriage. This statement does not quite reflect the points as I explained above, but perhaps it need not detain us.


Therefore, I propose that in the mind of the contemporary Church—and particularly in the mind of the “legislator” of the 1983 Code of Canon Law (Pope John Paul II)— Again, I must point out that this attempt to explain the meaning of canon law—including the mind of the Legislator!—is not being offered in accord with the principles of canonical interpretation. Several of these considerations are missing, e.g., the implications of Canon 6 § 2.


…the concepts of “continence for the sake of the kingdom of heaven” and “celibacy for the sake of the kingdom of heaven” are not only intertwined but are also seen as intrinsically connected. They are closely related, yes, but they are not identical. Most of the errors in this debate come from not keeping these differences clearly in mind, as below.


Pope John Paul II uses both such phrases (“continence for the kingdom” and “celibacy for the kingdom”) when writing on this subject in his “Theology of the Body.” So? I do not know what canonical point is being made here; the lack of citations to TOB literature makes it impossible for me to consider such claims in context.


The question at hand is whether Canon 277 §1 means that married permanent deacons are, once ordained, supposed to observe perfect and perpetual continence for the sake of the kingdom, just like their unmarried and celibate brother clerics, either deacons or priests (or bishops). The traditional and current clerical obligation is to continence, and not to continence for the sake of the kingdom, at least if that phrase implies a different category of continence with a different character. A given act can be performed from different motives, but it remains the same act. Here, the refraining from intercourse by a single man who wishes to act in accord with natural law is a good thing and the refraining from intercourse by a married cleric who wishes to act in accord with canon law is a good thing, namely, continence. In terms of the actual conduct, they are indistinguishable acts, even though they spring from different motives.


I’ll try to keep this as simple as possible: No! Okay.


Why do I think this? Several reasons come to mind, including the fact that, in January of this year, the US Bishops were all told by the appropriate Vatican authority that the answer is no. That seems pretty compelling to me. I grant that it seems compelling to many people. When the original document is published, I will publish my reply to it.


After all, one promise that all deacons make, whether married or not, is the promise of obedience to our bishops. Obedience, to bishops or otherwise, is not at issue here.


The key players in this debated question include the respected canon lawyer, Dr. Edward Peters, who is incredibly competent and has an immense body of work dedicated to this subject. Thank you.


Yet, in my effort to maintain a simple approach to this, I wish to point out where, in my view, Dr. Peters (whom I respect and greatly admire!) makes an error regarding Canon 277 §1. He interprets the canon as referencing two distinct and separate “obligations” for clerics: continence and celibacy. I do see two obligations in Canon 277, but as to exactly how “distinct” they are, we need to see how the terms are being used. I do not hold that they are completely unrelated, of course.


Dr. Peters is on record as referring to these as “dual obligations,” in fact. But Canon 277 §1 mentions only one “obligatione”—that of perfect and perpetual continence. “Obligatione” is a Latin singular. The text of the canon states that “clerics” are “bound” (tenentur) by the “obligation” (singular, obligatione) to observe perfect and perpetual continence for the sake of the kingdom of heaven “and therefore” (ideoque) “are bound” (adstringuntur) to celibacy. I believe the phrasing of the canon suffices to establish two related but distinct obligations here. Consider: If American law says “All citizens are obligated to file their tax returns by April 15, and must file in English,” is there only one ‘obligation’ set out here, or are there two? I think there are two. Granted, the word 'obligation' only appears once, but, pretty obviously, one cannot claim there is only one obligation here, can one? Those doubting that claim should consider the consequences of filing one's tax return in English after April 15, or in French before April 15.


This may seem like a subtle distinction, but it’s crucial to the argument. Indeed. And if it is crucial to the argument, then its failure would mean the failure of the argument, right?


The canon references one obligation (not two separate obligations) that “binds” the cleric, the “obligation” of perpetual and perfect continence for the sake of the kingdom. But how? Through the equally necessary (ideoque—the “therefore”) “binding” of the cleric to God’s “gift” of celibacy. This is basically, I fear, to rephrase the question as its own answer. In any case, I do not see Canon 277 as setting out a single obligation with, I gather, two sides, such that obviation of one is the obviation of the other, but rather, I see it setting out a fundamental clerical obligation (continence) that is to be lived by most clerics within the context of a wider obligation (celibacy). This latter obligation is, from time to time, relaxed for Western clerics, but the former obligation, at least in current canon law and in the ancient tradition behind the canon, is never relaxed. I believe my reading of the law is more consistent with its plain text, and I am certain that my reading of the law is more consistent with how all predecessor norms for Canon 277 have been understood and applied over the centuries. I don’t see my arguments in this regard being addressed here, let alone refuted.


Therefore, my contention is that the reference in Canon 277 is to one obligation—that of continence for the sake of the kingdom of heaven—which is made possible through its intrinsic link to the celibate state, as I described earlier. Addressed above, but surely, continence is not “made possible” by celibacy; continence is already required of every unmarried person regardless of ‘celibacy’.


Illustrating this point further, other than Canon 277, there is only one other place in the Code that uses the word “continence,” and it can help illustrate that this is the correct way of looking at Canon 277 §1. Here is Canon 599, which reads: The evangelical counsel of chastity assumed for the sake of the kingdom of heaven, which is a sign of the world to come and a source of more abundant fruitfulness in an undivided heart, entails the obligation of perfect continence in celibacy. Okay. Reminder, I am talking about clerical continence, an obligation arising from holy Orders, and not about obligations arising from consecrated life, but, well, okay.


Notice here, too, the use of the singular “obligationem” and the phrase “continentiae perfectae in coelibatu” (perfect continence *in* celibacy). Canon 599 reflects the idea that, for the legislator of the Code, “continence” and “celibacy” are actually two aspects of *one* obligation, as expressed both in Canon 277 §1 and 599. Addressed above.


A further complication in Dr. Peters’ interpretation is that he says: First, given the dual obligations of continence and celibacy established in c. 277, c. 1042 affirms the general rule that Holy Orders are not open to married men, though it makes allowance for a married diaconate, as follows: “The following are simply impeded from receiving orders: 1° a man who has a wife, unless he is legitimately destined to the permanent diaconate…” The canon, while obviously suggesting a mitigation of the rule of clerical celibacy by expressly referring to married men being ordained to the permanent diaconate, makes no statement in regard to mitigating the express and more fundamental obligation of clerical continence. The two groups of ordinands envisioned in c. 1042, men with a wife and those without, are treated separately in subsequent law. Okay.


I see this as an error in interpretation, in that Dr. Peters says that the Canon “makes allowance for a married diaconate.” The problem is that the canon does not explicitly indicate whether or not the “celibacy” mentioned in Canon 277 §1 is to be imposed on the married man seeking to be ordained. Rather, Canon 1042 only indicates that being married is an impediment to receiving orders unless the married man is “legitimately destined for the permanent diaconate.” This Canon focuses entirely on what does and does not impede a man from *being* ordained, without regard for what his life is supposed to be like after. I do not follow what is being offered here. I see no aspect of this canonical question that is not covered somewhere in the Code, but canon law need not repeat every aspect of every issue in every canon addressing that issue. Canon law is to be read as a whole, and what is stated in one part of the Code can generally be assumed when reading other parts of the Code. Briefly, again, continence and celibacy are canonically imposed on every Western cleric; canonically, celibacy is lifted for some clerics, continence is not lifted.


As such, Dr. Peters is merely making the (admittedly reasonable) assumption that Canon 1042 “obviously” mitigates the rule of clerical celibacy for married men ordained to the diaconate. Hmm. I am not 'assuming', I am concluding, but let's see what follows.


The next sensible question then becomes: Why doesn’t Dr. Peters also conclude that Canon 1042 “obviously” mitigates the rest of Canon 277 §1 as well? Well, because nothing in the text, context, or history of Canon 1042 tells me that the rest of Canon 277 is being mitigated. Indeed, my research has shown that exactly the opposite interpretation is more persuasive.


What Dr. Peters is doing here is making an assumption (partially and obviously correct) that half the obligation (singular) in Canon 277 §1 is mitigated: Married men who become deacons do not have to assume the celibate state upon ordination. I am drawing a conclusion (not positing an ‘assumption’), and I am doing so only as far as I think the canons allow me to draw a conclusion. In any case, all sides agree that Canon 1042 (and others) allows us to conclude for the mitigation of celibacy for some clerics, no?


The problem is that Dr. Peters continues with an assumption that the other half of the canon, which binds clerics to perfect and perpetual continence, is not mitigated. Well, no, of course it is not mitigated, for all the reasons I offered above and elsewhere. That's not a "problem", that's my point.


I suggest that this makes his interpretation inconsistent and erroneous: Why state it’s “obviously” mitigated relative to celibacy (when Canon 1042 does not explicitly state this) but not mitigated relative to continence? Because, as I said above and in many other places, they are distinct obligations treated distinctly in the law. To continue my analogy from above, Congress could change the deadline for filing taxes, or it could change the language for filing returns, but modifying one part of the filing law does not imply that the other part of the law has been changed as well. Clearly, the pope modified one clerical obligation for one category of men seeking one part of holy Orders; but many others have assumed that he modified much more than that. The burden is on them to show where and how.


Based on Canon 277 and Canon 1042 exclusively [exclusively?], all one can really claim is that “clerics” are bound by the obligation of perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy, while married men are not impeded from ordination to the permanent diaconate. Nowhere does the Code of Canon Law explicitly relieve married men from what it says clerics are bound to—continence for the sake of the kingdom and celibacy. First, as stated above, and as explained fully in my original studies of this topic, one is not permitted to talk about only two canons in this area when, in fact, many canons are relevant; second, while not every canon in the Code is written in the stylistic manner that I or others might like to have seen them written in, one can offer convincing conclusions about the meaning of most canons using words other than those used by the canon. If Canon 1042, with its roots in Sacrum diaconatus ordinem being expressly cited, tells me that married men with wives are impeded from Orders unless they are destined for the permanent diaconate, I can conclude that the celibacy imposed by Canon 277 on clerics is mitigated for such men headed to such a rank of holy Orders. But I do not extend that mitigation-conclusion to other men, or to other ranks of Orders, or to other clerical obligations.


I would ask, with respect, that Dr. Peters address this aspect of the issue. I have addressed it, copiously, but most people continue to read right past my points (if they actually read what I have published). I can only say to those interested, read my original works in this area. I cannot repeat every argument about this matter every time it comes up.


Now, as a matter of common sense, since the “General Norms for Restoring the Permanent Diaconate in the Latin Church” (June 18, 1967) makes it quite clear that married men can become deacons without being bound to celibacy, it should be safe to assume that… No, it is not safe to assume; it is common to assume, but it is not safe to assume, as I have said repeatedly.


… in the mind of the “legislator” of the 1983 Code of Canon law, there is no intention that Canon 277 §1 be interpreted as requiring celibacy for married deacons, despite the fact that the Code nowhere explicitly relieves the married deacon from the celibacy requirement for “clerics.” I addressed what Paul VI expressly “assumed” when he restored the diaconate as a permanent rank of Orders. I invite people to read my original discussion of this very point.


So, what about applying a little “common sense” to the requirement for continence as well? If half of Canon 277 §1 is “assumed” not to apply to married deacons, why not the other half? Common sense tells us that false assumptions usually lead to mistaken conclusions. As here.


One should also ask why the “legislator” uses the unqualified term “clerics” in Canon 277 §1 when he already knows that married deacons-to-be don’t assume celibacy when they become “clerics”? I have addressed all of these points. The pope said 'clerics' in Canon 277 because he meant 'clerics' in Canon 277.


Furthermore, when the draft of Canon 277 §1 was reviewed by Pope John Paul II prior to promulgation, why did he eliminate the explicit references to married deacons not being bound by the obligation of continence-celibacy, despite knowing that the preparers of the texts did not consider married deacons bound to either, particularly since the restoration of the permanent diaconate was underway by this time and the Church was not, either in theory or practice, binding married deacons to continence or celibacy? Addressed many, many times.


Here is how I view this: by the time Pope John Paul II received the text for review, the proposed texts regarding married deacons had created something brand-new–something actually absolute. I don't know what this means. The diaconate as a permanent rank of orders, open to married men, was not brand-new, nor was it “absolute”, by the time John Paul II reviewed the final draft of the 1983 Code. And nothing in the Church is ever created by “proposed texts”.


This occurred because of the combination of an exemption from perfect and perpetual continence (edited out by JPII from the content of what is now Canon 277) and an exemption from the impediment of orders (edited out by JPII from the content of what is now Canon 1087). Such an “absolutizing” by the drafters actually reflected a further development in which married deacons—contrary to the existing practice underway since the restoration of the permanent diaconate—were not to be held bound by continence-celibacy after the death of their spouses—they could re-marry if they so chose. This is what the Holy Father edited out of the Code upon review. I cannot follow what is being offered here. What “this” is to have occurred, what elimination of orders as an impediment to marriage is meant here, what “absolutizing” happened, etc? I do not know what these terms mean.


By editing out an “absolute” exemption for deacons from continence-celibacy, the Holy Father maintained the historical integrity of Canon 1087, which says: Persons who are in holy orders invalidly attempt marriage. Simple as that—being in Holy Orders is an impediment to marriage, and the Holy Father wanted to sustain this important and longstanding tradition of the clergy. As above. Again, I am not talking about celibacy, I am talking about continence.


This still leaves us with the version of Canon 277 §1 in the Code today, a version that clearly and simply states that “clerics” are bound to the obligation of perfect and perpetual continence and therefore also bound to celibacy. This is despite the existing practice of ordaining married men who are neither perfectly/perpetually continent nor celibate. Sounds like Canon 277 §1 is just wrong…right? Or, it is right, and needs to be enforced, albeit with equity.


Maybe not. As I see it, there are three possibilities: 1. By leaving the term “clerics” unmodified in Canon 277 §1, the Code overlooked an important qualifier [Did it?]. It should have said explicitly “Unmarried clerics”. It represents a “lacuna” in the law (it’s “wrong”). Okay, well, I don't think it is 'wrong', but I have always accepted the logical possibility that the Western Church meant to abandon its unbroken tradition of continence for all clerics, and simply did not get around to doing that in its law.


2. Because of the complication of occasional exceptions in the Church—such as when a married man under very special circumstances seeks priestly ordination and is specially permitted to do so as long as he and his wife agree to assume perfect/perpetual continence via assuming the celibate state, the legislator believed this use of unmodified “clerics” in Canon 277 §1 to be the best rendering of the obligation, relying on the more contemporary ecclesial mindset [I do not know what this phrase means, but …] that continence and celibacy for the sake of the kingdom of heaven are intrinsically linked (as I assert above). Wittingly or otherwise, this phrasing suggests some awareness that, even if, pro arguendo, my interpretation of Canon 277 did not apply to deacons, there is no indication whatsoever that the Church meant to exempt married priests—men even more closely configured to Christ the High Priest than are deacons—from the ancient and unbroken obligation of perfect and perpetual continence. Few have adverted to that aspect of this issue.


Relying on this view—that in which continence and celibacy together represent one obligation for clerics (which view I have rejected)—the Code can be interpreted as implicitly “mitigating” the entire obligation of Canon 277 §1 when permitting the married man to be ordained while not explicitly compelling him to immediately assume the celibate state. I am not sure what this means, but it obviously rests on a disputed and, I think, erroneous, assumption.


3. Canon 277 §1 really does apply and was intended to apply to married deacons, because married men who are to be ordained to the diaconate both understand and embrace the obligation to continence-celibacy for the sake of the kingdom at the moment of ordination. At that moment, they know they are accepting a canonical “impediment” to future marriage (an impediment that ultimately equates to the obligation of continence-celibacy for the sake of the kingdom). They assume this obligation upon becoming a cleric, but they do not actualize the obligation unless and until their spouse dies. In this sense, even married clerics “bind” themselves to this obligation, and thus the best rendering of Canon 277 §1 is the unqualified use of “clerics”. Well, some terms are blurred here, and the existence of an obligation, as opposed to one’s liability for 'violating' an obligation of which one is unaware, are distinguishable points, but basically, yes, the possibility exists that Canon 277 means exactly what it says.


My thought would be that the truth lies somewhere in #2 and #3 above. I don’t think it is a “lacuna” because of the personal attention Canon 277 received from Pope John Paul II. But keep in mind that Pope John Paul II was the man who also gave us the “Theology of the Body.” So? Is a canonical point being made here?


In fact, interestingly, the timing was such that Pope John Paul II was concluding the delivery of the Catecheses we now call “TOB” around the same timeframe in which he was finalizing the text of the Code. Why is this “interesting”?


(The TOB audiences on “continence” ran from 3/10/82 through 7/14/82. The final draft of the Code of Canon Law was submitted to him 4/22/82, and in 12/82, he declared he would promulgate the Code on 1/25/83.) Okay. So?


Anyone who reads TOB knows that Pope John Paul II was a man who could “live” in the apparent tension of the “now-but-not-yet” reasoning I expressed in #3 above. Perhaps even in the Code of Canon Law? I do not follow what is being offered here.


I would submit that this “now-but-not-yet” perspective (in which, by being ordained, the married deacon implicitly binds himself to the possibility of a future embrace of celibacy) is exactly where we find the married cleric today. I do not understand this phrasing. Anyway, what about the key point of this discussion, namely, continence?


And, rather than make a return to the venerable practice of married-continent-clerics, in a future post I will attempt to demonstrate why it seems fitting that the permanent deacon retains all the rights and responsibilities and signs of marriage while still being a cleric. Well, that is the central question here, is it not? Have we not been talking about it? Married men have the natural right to conjugal relations with their wives. No one is debating that. We are asking whether married men (and their wives) give up that right under certain circumstances. Single men have the natural right to marry, a right they give up when they receive holy Orders; married men have the right to conjugal relations, a right they give up when they receive holy Orders. That’s either what Western Catholic law and tradition states, or it is not.


As always, I welcome correction and critique, and if there is anything I have offered that is found to be inconsistent with the Magisterium of the Catholic Church, I will humbly and gladly amend my work. Same here, of course.


God bless you! Deacon JR. You too, Deacon! Oremus pro invicem. Ed Peters