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Edward Peters

The following observations represent my opinions. While I believe that the opinions expressed here are consistent with c. 212 § 3, I submit all to the ultimate judgment of the Catholic Church. The letter “c.” stands for “canon” of the 1983 Code of Canon Law. All translations are mine, even if they coincide at times with those of others. Dr. Edward N. Peters

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In the Light of the Law:

a canon lawyer's blog on current issues

Blog Archives 2004

 


Brisbane's Bad Baptisms

2 December 2004

 

     According to ABCNEWS On-Line, a parish church in Australia might have performed thousands (yes, thousands) of invalid baptisms over the years as a result of its priests changing the Trinitarian formula (the words) used at baptism. Brisbane Archbishop John Bathersby has stated: "At a certain stage a parish could—and I'm not saying it has happened here—a parish could make so many changes that they really are no longer Catholic…Perhaps they're a type of Christian church in their own right but they're not a part of what we would refer to as a Catholic church." In some respects, even these worrisome words understate the problem.

 

     Invalid Catholic baptisms do not result in some half-way form of Christianity. They result in nothing. One who is invalidly baptized is in exactly the same ecclesial status as one who was never baptized. Period. Think about it this way: when Angela and I brought home each of our new-borns, they were the cutest little pagan babies in the world. But if they had never been baptized (validly, of course), they would have remained our cute "pagan" babies. Just progressively taller.

 

     Given, moreover, evidence that such invalid baptisms have been going for many years, one must now ask how many of these deceived people went on to first Communion, Confirmation, perhaps even married, without benefit of the desired sacraments, because no sacrament can be validly received without prior Baptism (1983 CIC 842, 849). The complications in those areas alone will be enormous, and we haven't even raised potential penal implications of sacramental simulation (1983 CIC 1379), let alone sacrilege, by offending clerics (1983 CIC 1389).

 

     In light of such factors, I have to wonder how priests who seem to have performed so disastrously for so long on such an incredibly simple but vitally important point are actually being left in place pending investigation. +++

 

 

Overview of Sacramental Responses

 

Baptisms: All will have to be re-conferred, "absolutely" at that, not "conditionally", since there is no prudent doubt about the invalidity of these attempts at baptism (1983 CIC 845, 869).

 

Then, among those people:

 

Confirmations: All would have to be re-conferred, "absolutely" at that, not "conditionally", since there would be no prudent doubt about the invalidity of the earlier attempts at baptism, making any subsequent attempts at Confirmation automatically invalid (1983 CIC 845, 879).

 

Holy Communions: Cannot be rehabilitated in anyway for the non-baptized, but 1) God will impute worthy intentions to those who intended to receive Him in the most holy Sacrament, and 2) one's status in the Church is not impacted by making "First Holy Communion" anyway, so it can be re-done at a convenient time, post-baptismally of course (1983 CIC 912-914). Note that, with the passage of time, Canons 852 and 866 might have become applicable in many of these Confirmation and Communion cases.

 

Confessions: Cannot be rehabilitated in any way, but 1) God will impute worthy intentions to those who expressed sorrow for sin in what they thought was sacramental Confession, and 2) subsequent Baptism will obviate the need for sacramental Confession of any sins committed up to that time (1983 CIC 849). The obligation of the seal still applies to any communications made in these invalid confessions (1983 CIC 983-984, 1388).

 

Matrimony: If there are such cases (and press reports assert that some invalid baptisms were performed on adults, and we know that adults often seek Baptism at the time of marrying a Catholic), the matter can be quite complex. Most issues would center on the fact that non-baptized persons attempt marriage invalidly with Catholics absent a dispensation from the impediment of "disparity of cult" (1983 CIC 1086), and while such dispensations are routinely granted if petitioned, none would have been sought in these cases because everyone assumed both parties were baptized. Possible canonical solutions include convalidation (1983 CIC 1156-116) or radical sanation (1983 CIC 1161-1165), declaration of matrimonial nullity (e.g., 1983 CIC 1686), or even Pauline or Petrine Privilege exercises, all of which are beyond the scope of this Blog. Basically, if any subsequent weddings occurred among this pool of unfortunate people, each baptismal fact pattern will have to be analyzed separately and carefully.

 

Anointing of the Sick: Cannot be rehabilitated in anyway for the non-baptized, but 1) God will impute worthy intentions to those who intended to turn to Him in this sacrament, and 2) subsequent Baptism will obviate any need to re-confess past sins (1983 CIC 849).

 

Holy Orders: Probably not an issue on these facts, Deo gratias. It would include most of the above, and worse.

 

     The long and the short of it is that a genuine ecclesiastical travesty has been worked on hundreds of innocent people who trusted these priests to know what they were doing. If penal canons such as c. 1379 (simulation of sacrament) and c. 1389 (abuse of ecclesiastical function), to take just two examples, are ever to be applied, this surely seems the case. +++

 


Retrospectives on the Balestrieri Matter                                                                                                 21 October 2004

 

      Perhaps it is too soon for retrospectives, events might not have come to rest yet. But here goes.

 

     When I saw Balestrieri/De Fide Press Release # 2 with its headline, SEN. JOHN KERRY “EXCOMMUNICATED,” ACCORDING TO VATICAN RESPONSE, I was stunned, not because I thought it was an exaggeration, let alone because I feared it was false, but because I believed the statement to be true. In no time at all, several major Catholic news sources repeated and expanded on the B/DF claim. It could only mean, or so I thought, a major development in a very important case.

 

     I knew that 1983 CIC 1417 allowed the faithful at any stage of a canonical proceeding to request Rome to assume direct jurisdiction over a case, and while such transfers are not common, I figured, given the novelty, complexity, and volatility of B/DF’s heresy case against a US presidential candidate in an election year, that it had been transferred from Boston and decided against Sen. Kerry. Wow. To say the least.

 

     But then I read Fr. Basil Cole’s actual response to B/DF. It was immediately obvious to me that such a thoughtful letter, whoever requested it and whoever might have agreed with it, was in no way, shape, or form, a “Vatican response” to anything, let alone an announcement that Kerry was excommunicated. Kerry isn’t even mentioned in the letter, and the few lines that talk about the penalty of excommunication (as opposed to discussing the crime of heresy) are carefully nuanced against particular applications and are themselves canonically debatable (as Cole himself recognizes).

 

     Now I was beginning to feel hoodwinked. And so were lots of other people, the mass of whom have far less experience assessing canonical and ecclesiastical communications than I have, or presumably than Balestrieri has. These folks were consequently reading far more into B/DF’s characterization of Cole's letter than was warranted. Then, as B/DF’s claim to have a “Vatican response” in the Kerry case began to unravel, pundits got into debates about what “contact” means, and a lot of nasty things got said about “Rome’s backing off” and “CDF is trying to cover its tracks” and “It’s so obvious Kerry is a heretic [sic], why won’t the Vatican just say so?” and so on. But all the while, as far as Rome was concerned, it was literally a non-event. Rome had not done anything, good, bad, or indifferent. B/DF claimed that it had.

 

     Like some other observers of B/DF’s heresy case, I have kept my reservations about its canonical persuasiveness muted. First, it’s not my case; second, my concerns about its problems might be wrong; third, unknown factors might develop to improve its chances of succeeding. But there seems little point in worrying about such things now. At this point, there only remains to salvage from the experience some object lessons, of which I think there are many. Here I will mention just one, on canonical technique.

 

     Two impressions are given about the trip Balestrieri made to Rome after he filed his heresy case against Kerry: one version has him posing interesting academic questions about heresy to various Church officials (mostly at the Congregation for the Doctrine of the Faith), the other has him disclosing his status as an active litigant but asking more or less the same questions of the same people. Conceivably, he could have approached some Vatican officials one way and others in the other, but either way, it’s problematic. Consider:

 

A) If Balestrieri posed purely academic questions to important and very busy Vatican officials, who kindly referred the young scholar for some erudite guidance from equally busy professionals, he has absolutely no right later to present any communications occasioned by such requests as if they were in any way official responses to his canonical case. If that is what happened here, then no wonder Roman officials are so cool toward legitimate questions posed by outsiders: they have no idea how their responses are going to be construed by recipients. Cole’s letter could not be clearer that it was a private response. Why should Vatican officials now have to run around denying that it’s anything else, just because B/DF claims that it is?

 

B) If, on the other hand, Balestrieri identified himself as a litigant and asked CDF the same questions, then (notwithstanding the fact that the response he got from Cole is still utterly unofficial), Balestrieri has, at a minimum, come very close to engaging in ex parte communications with officials of the same dicastery before which appeals in a heresy case are likely to end up, i.e., the kind of communications frowned on, if not illegal, in mature legal systems, but which CDF has constantly to beware of due to the fact that it is both an administrative and a judicial dicastery. I know the disquiet an advocate feels when the other side has access to decision-makers that he and his client do not enjoy. It’s not pleasant, and whatever some people’s attitude toward using such approaches might be, I think responsible canon lawyers should strictly avoid using them, both in actuality and even in appearance.

 

     So now, it seems to me, the canonical case against Kerry and a host of other scandal-mongering pro-abortion Catholic politicians has to be reconstructed, basically from scratch. Perhaps some of the research generated by B/DF can be used in such a case, but it is not likely to be primarily a “heresy” case next time, and it’s certainly not going to come together quickly or be tried in the media. In the meantime, the prohibitions imposed by various bishops against abortion supporters like Kerry taking the Eucharist in their territories stand, for such decrees are not dependent on the complexities of a canonical heresy trial, but rather, are firmly based on straight-forward sacramental disciplinary norms (esp. 1983 CIC 915). +++

 

Updates: Wow, lots of feedback on this one! Let me just respond to some of the sincere questions, or the more negative jibes. All comments are read by me, and appreciated, though I can't reply to them all. So, in no particular order:

 

Why do you say Fr. Cole’s letter is “private”? Cole said Balestrieri could publish it.

 

       As I used the word, “private” does not mean “confidential” or “secret”, it means unofficial or based on personal persuasiveness instead of on legal authority. Cole gave permission to make his letter “public”, in your sense, but that does not change its “private” character. It’s a distinction canon lawyers and theologians take for granted.

 

Peters should not criticize Balestrieri’s case publicly.

 

       The first I ever heard of the B/DF heresy case against Kerry was when I read about it in the news where it had been put by B/DF. I published one cautionary but generally supportive blog about it on July 1 (scroll down a bit). Not till October, after B/DF released a series of press statements (picked up by, among many others, CWN, CRUXNEWS, DRUDGE, and various East Coast print media), appeared on EWTN, and gave radio interviews, etc., did I offer any further comments, and then only on matters made public in those statements. Yet I’m out of line for discussing this publicly?

 

What has Peters done for pro-life over the last 30 years?

 

       Not nearly enough. Over the last 26 years, my prayers, picketing of abortion clinics, sidewalk counseling (with four surely deferred, and hopefully cancelled, abortions), volunteer legal defense work, extensive pro-life teaching and writing in many fora, traditional political activism, small donations, giving canonical advice to pro-lifers at many levels of the Church, sponsoring two kids in a Third World orphanage, and raising six firmly pro-life children mostly on a Church worker’s salary, pale next to the value of a single human life lost to abortion. Deus omnipotens, miserere nobis!

 

It sounds like no matter what Balestrieri did in Rome, you’d have a problem with it.

 

       There is some truth to that. I think when a lawyer puts together and files a legal case, that he should let justice take its course. Courts know how to ask for more information they might want, and it is not up to lawyers, in my opinion, to agitate in the public arena for their cases, however worthy their goals are. Let commentators do that, for better or worse. From a purely tactical point of view, moreover, I think the time to gather favorable opinions from heavy hitters is before one files a controversial case, and the place to disclose them is within the formal proceedings. Getting some long after the filing is complete, and broadcasting them in press releases, suggests to some, anyway, poor research and gives the opposition unnecessarily advanced notice of points you presumably wanted to raise in court.

 

Why does the heresy case have to start from scratch?

 

       Well, that’s just my opinion (as I said in my blog), and obviously any number of things could still happen with or to the case. B/DF has indicated several times that they are very confident in the case they put together, and I think there is some impressive material therein. As long as regular folks (who do not know how canonical cases actually proceed or what the legal issues really are) are not mislead into thinking that anything about the B/DF Kerry heresy suit is a “slam dunk”, then I’m content to wait and see with everyone else.

 

If you're such an "expert" in all this, why didn't you do it yourself?

 

Some folks think Ed Peters looks

a little like FBI Agent Eliot Ness

       Do what? File a heresy case against John Kerry? Precisely because I am an "expert" in this, I think the obstacles to getting the canonical equivalent of an indictment, let alone a conviction, for heresy on these facts are all but insurmountable, so I would not have tried it at all, especially not when other canonical means of redress were available. For more than a decade, I have been pointing to 1983 CIC 915 as a way to restrict major pro-abortion politicians from approaching the Eucharist, as well as trying to make people aware of 1983 CIC 1369, a provision that allows, among other things, various canonical sanctions to be imposed on those who use the public media to seriously harm good morals (Scroll down in this very Blog to 4 October 2002). I grant neither of these approaches has the headline appeal of "excommunication" or "heresy trial", but so what? Remember: Eliot Ness sent the murderous sociopath Al Capone to prison for tax evasion because he got an easier conviction that way and still managed to take a big bite out of crime.  In any event, if someone has a better idea, I assure you I'm more than open to it. Like Marc Balestrieri, we all think the scandal has gone on long enough.

 

 

Shouldn’t we support Balestrieri, since he’s the only who’s trying anything, and even if he fails, he still sent a clear message that enough is enough?

 

     Fair question, to which I can only offer my opinions. First, it is simply not true that for all these years no one has done anything about the scandal of pro-abortion Catholic politicians. Younger people often arrive on a dreadful scene in this Valley of Tears, take one look around, and assume that no one has done anything about it. That’s an understandable reaction on their part (I experienced it myself not so many years ago), but it is frequently wrong, and it is certainly unfair to those (many or few) who have been struggling for decades without even the consolation of tangible results for the labors.

 

     More importantly, while I agree that at times we are called to undertake efforts offering little prospect of worldly success, there are certainly other times when we are called to consider that our failed efforts will make it even more difficult for others to come along and try (or continue) their approaches. That possibility needs to be seriously weighed, too, and the more prominent the effort envisioned, the more burdensome the duty of circumspection. If the proverbial gun (or cannon?) goes off half-cocked, it will probably miss its target, imperil the innocent, and require additional time and resources to set right again for proper use. At the very least, it is an open question as to which way history will view B/DF’s canonical heresy case against John Kerry, and how it will assess the message B/DF sent.

 

Post-script: October 22, Apologist Jimmy Akin suggests a way to get out of this with the least residual damage. Worth considering.


John Kerry: A Question of Heresy?                                                                                                           18 October 2004

 

Things are moving in canon lawyer Marc Balestrieri’s remarkable case before the Archdiocese of Boston wherein he denounces Catholic and vigorously pro-abortion Sen. John Kerry for heresy. Among notable recent developments is a four-page letter from the esteemed Dominican theologian, Fr. Basil Cole to Balestrieri concluding principally that obstinate doubt or denial of the Church’s teaching on abortion is heresy. Some points bear noting here.

 

     Obviously, and despite some pretty dramatic press descriptions to the contrary, Cole’s excellent letter is not and plainly does not purport to be an official statement by the Congregation of the Doctrine of the Faith, let alone is it an authentic interpretation (1983 CIC 16 § 1) of the canons in question (incl. 1983 CIC 750, 1321, 1331, 1364, and 1398) or an endorsement of the canonical case prompting the letter. Cole's letter is several steps removed from any kind of official Vatican decision in this case.

 

     Cole’s theological analysis does, however, move us closer to the central canonical question raised in this matter, namely: whether advocacy of abortion, by a knowledgeable Catholic, in and of itself, is heresy. Now, for the reasons ably outlined by Cole, obstinate doubt or denial of Church teaching on abortion may well be regarded as heresy. But our concern is different: is disregard of Church teaching on abortion, perhaps even chronic contempt for it, necessarily heretical? Consider: If I deny the Real Presence of Christ in the Eucharist, I commit heresy. But if I throw the Eucharist in the gutter, I commit the crime of sacrilege (1983 CIC 1367), not heresy (1983 CIC 1364).

 

     So, a Catholic politician might say, “I believe that human life begins at conception and that abortion kills an innocent baby. But I want to be elected to office, and that means I support abortion.” Such reprehensible words/deeds would be gravely sinful and would place the politician in peril of his soul. But it is not clear that his sin would be heresy. At least, it is not clear how this scenario would be held as heresy, and we not be required to hold virtually every other deliberate violation of grave moral law as heretical.

 

     An interpretation of heresy that construes it as, in effect, an included offense in nearly every grave sin is not, I suggest, a part of canonical jurisprudence. Even the Pio-Benedictine Code, which regarded those committing certain crimes as being “suspected of heresy” (see 1917 CIC 2315 and, e.g., 1917 CIC 2371, on bishops promoting to orders in simony), did not see the primary crime in such cases to be heresy. At most, certain crimes provided a basis for considering whether they might have arisen from an underlying heresy. But the failure to prove heresy as a “motive” for the primary crime would not mean that a crime was not committed, nor would one’s heresy about a given doctrine necessarily lead to the conclusion that one had committed another crime inspired by the heresy. In any case, it should be noted that those guilty of abortion were not suspected of heresy under Pio-Benedictine law (see 1917 CIC 2350) and that, even if they had been, “suspicion of heresy” is not part of the 1983 Code.

 

     Of course, a pro-abortion politician might have made statements obstinately denying or doubting Church teaching on abortion as part of his political support for abortionism. Such assertions could make one liable to a heresy charge. But that is rather different from arguing that one’s support for pro-abortion policies is itself heretical. Ironically, Kerry’s statements on things theological are so muddled and confused that there is some question as to what he precisely believes, and even whether some of his more bizarre expressions show sufficient intellectual coherence so as to be susceptible to juridic evaluation. But I digress.

 

     Actions can speak louder than words. Conceivably, some actions, even unaccompanied by words, could be juridically construed as heresy, and there is some nuanced support for this interpretation in canonical tradition. Yet Cole's letter directly suggests this conclusion about Kerry in only one, obviously less formal, paragraph at the very end of his fine theological analysis, and even that observation contains a number of important qualifiers. Generally, though, the fact patterns wherein behavior speaks to the question of heresy still leave plenty of room for argument under an ecclesiastical penal law system that already seems (too?) generous with affirmative defenses. Nevertheless, as I said at the outset, Cole's answers to Balestrieri's questions greatly help us to ask pointedly whether open support for abortion is, in and of itself, heresy under 1983 CIC 1364. It's a question well worth answering, though I think it's still open.

 

     Sen. John Kerry’s active support for abortion is a disgrace, and canon law is able to and should respond effectively to his scandal. But the juridic soundness of that response, whether it be the one proposed by Balestrieri or some other, is very important not just for the Kerry situation, but for the on-going recovery of canon law in modern Church governance. +++

 

 

Post-script: Within minutes of my completing the above, friends forwarded a clarification by Fr. Cole that deserves quotation in full. It completely squares with my opening observations.

          Several weeks ago, Fr. DiNoia, the undersecretary for the Congregation of Doctrine and Faith, asked me to communicate with Marc Balestrieri about a question concerning abortion, excommunication and the like. I was neither delegated by the Congregation to speak for it, nor was I in any sense a "consultor" to the Congregation. I was simply someone trying to help someone understand the gravity of the evil of abortion and the possible penalties associated by formally and publically teaching that abortion was not per se a grave sin. Both Fr. DiNoia and I assumed that the person was a student wanting to understand the Church's teaching. I was told he was seeking to do a JCD degree by the person in question. Neither Fr. DiNoia nor I had any knowledge that he was going to "go after" Kerry or any other Catholic figure for their public stance concerning the evil of abortion. So, in my letter to Marc Balestrieri, I began by mentioning that my letter is a personal and private opinion to him about anyone who would publically and persistently teach that abortion is not morally prohibited. It in no way is authoritative from the Congregation nor was I representing the Congregation. It's only weight is that of a priest and a theologian who appeals to sacred sources. I was helping out Fr. DiNoia who asked me to do this for him. Fraternally in St. Dominic, Fr. Basil Cole, OP

 

Update: October 19

 

Fr. Augustine DiNoia, op., undersecretary for the Congregation for the Doctrine of the Faith in Rome, has denied that Dominican Fr. Basil Cole's letter to Marc Balestrieri represents an official Vatican determination of any aspect of the Kerry case. Catholic News Service article here. This will not surprise readers of the October 18 Canon Law Blog above. Cole himself has reiterated the private and unofficial character of his opinions.

 

It is a pity that a refined and thoughtful letter by a thinker of Fr. Cole's credentials was so mischaracterized (as if it were a Vatican determination on a key point in Balestrieri's case), and that so many people (eager perhaps for something finally to be done about the Kerry scandal) relied on those mischaracterizations (despite the plain wording of Cole's letter itself!) and circulated them uncritically.

 

Whatever else happens now (and I fear several repercussions actually), I think a gaff like this appears to be is going to make it even more difficult for Balestrieri to pursue his heresy case against Kerry, a case that was already facing some significant procedural and substantive canonical hurdles. Now, I yield to no man in my desire to see canon law used to, among many other things, protect the unborn, but I repeat that such efforts have to be undertaken with scrupulous regard for canonical correctness, lest debates about the intricacies of Church law and governance distract from our efforts to uphold the values that law and governance are meant to serve.

 

Update: October 21

 

1. Apologist Jimmy Akin runs through some of Balestrieri's inconsistent and confusing statements in this matter, here.

 


22 September 2004

 

Re: ZENIT Interview on Annulments with Rev. Prof. Miguel Ortiz of Holy Cross canon law faculty in Rome.

Date: 22 SEP 2004, Code: ZE04092222 On Marital Failure and Nullity

 

     The interview is sound, of course (if a bit vague in places for my taste) but it needs one qualifier for American readers, namely, Ortiz's statement that in the annulment process "it is indispensable that both the spouses as well as the defender of the bond really have the possibility of confronting one another, that is, that the proceedings be a real judicial process."

 

     Canon law is an "inquiry-based" legal system, not an "adversarial" system, as is common law, and "confrontation" does not mean in canon law trials what it means in the common law trials. There is no right of confrontation in canon law as we Americans know it (see, e.g., 1983 CIC 1554, 1559, 1598). What exists in canon law, and what I think Ortiz is referring to, is better described as one's right to all of the information that is going to be used in a case, in order that all sides, Petitioner, Respondent, and Defender of the Bond, be able to submit materials and address matters raised by others adequately. That is what a "real judicial process" is about in canon law.

 

     In marriage nullity cases, Petitioners do not attack Respondents and Defenders of the Bond don't attack Petitioners. Rather all parties, in accord with canon law (which includes, of course, the presumption of matrimonial validity), seek the objective truth of the case. +++

 

For more on the annulment process, see: E. Peters, Annulments and the Catholic Church: Straight Answers to Tough Questions

 


Two Brief Notes on Annulments

19 August 2004

 

Annulments figure briefly in two recent Catholic news stories. Both suggest some misunderstanding of the topic.

 

1. Catholic politico Deal Hudson has resigned as a religion advisor to President Bush’s re-election campaign rather than face unfriendly questions about various “mistakes” he made in the past. Conventional political fodder, this. Some versions of the story, though, seem to suggest that among Hudson’s mistakes were two annulments he received prior to coming into the Church.

 

But how is the fact of his having two annulments evidence that they were “mistakes” on Hudson’s part? The decision to declare nullity in a marriage case does not belong to the parties in the case, but rather to ecclesiastical tribunals. Hudson simply could not have made a mistake in obtaining them in the way he could have, for example, signed an “erroneous” tax return that was now causing him embarrassment. What was meant, perhaps, was that Hudson had made mistakes in the course of his two previous attempts at marriage. That’s certainly possible, but it’s quite different from suggesting that the annulments were a mistake.

 

As a tribunal judge, I saw many potential converts to Catholicism approaching the Church with multiple marriages needing adjudication. Coming to honest grips with the past is a major step toward new life for the future. Some people make mistakes in marrying, but only some of those mistakes result in nullity. If a convert’s annulments were declared—and many are—it was because the tribunal found canonical nullity in the attempted marriages. Whatever Hudson’s domestic mistakes might have been, they were not committed by his obtaining annulments.

 

2. Catholic World Report’s ubiquitous “Diogenes” posted an Off The Record comment on the disturbing links appearing among powerful bishops and clergy sexual abusers. They are generally interesting observations. But consider this line: “[Abp.] Thomas Kelly, whose archdiocese now has problems of its own, winked through Rudy Kos’s annulment (in spite of his wife's insistence he was a pedophile), clearing his way into the Dallas seminary…”

 

            Now wait a minute: a wife, of all people, gives emphatic evidence that a husband is, of all things, a pedophile. Should this make a tribunal more inclined to think the marriage was valid? Credible evidence of pedophilia is highly—and negatively—relevant to one’s suitability to enter priesthood. But is it irrelevant, or even conducive, to one’s ability to enter marriage?

 

Another implicit (mis)understanding here seems to be that Church annulments go to basically nice people who deserve another chance. (Since pedophiles are not nice people, they should be less able to get annulments than typical petitioners.) Surely many petitioners and respondents are nice people. But the reality is that annulments also occur in cases where, to put it mildly, one side, or both, are not nice people at all. Indeed, their “non-niceness” might well arise from the same complex of factors that led to marital breakdown, divorce, and annulment in the first place. Annulments are not compliments; generally, they are signs that something was seriously wrong somewhere. The tribunal, it seems, caught that in Kos’ case; the seminary system did not. +++

 

Annulment reading suggestions: 1) Article—Edward Peters, Annulments in America (1996); 2) Book—Edward Peters, Annulments and the Catholic Church (2004).

 

 

Follow-up 1: Diogenes differs! as posted on Off The Record August 20

 

Not guilty, your honor

 

   Ed Peters--a very solid canon lawyer whose blog [Light of the Law] is ordinarily quite reliable, takes me to task [immediately above] for a recent comment about an annulment granted to the notorious Rudy Kos, enabling him to enter the Dallas seminary and begin preying on boys. Maybe I skipped over the point too quickly, but I did not intend to suggest that the Kos marriage was valid.

 

   No one disputes the fact that Kos's union was never a marriage or that the declaration of nullity wasn't appropriate--in fact, it seems an open and shut case. But my understanding is that the grounds on which the marriage is declared null are part of the tribunal's decision.

 

   Now if the judgment of the tribunal was based on ANY grounds other than those of Kos's grotesque psychopathology, it would be tantamount to a fraud.

 

   Yet how could Kos have been permitted to enter the seminary unless the grounds given for his annulment were not prejudicial to his character? My (admittedly elliptical) point is that, since Kos's wife's explanations were known, and since Kos entered the seminary, Archbishop Kelly must have framed the declaration of nullity in such a way as to launder Kos's reputation.

 

   If there was collusion between Kelly and the Dallas gang, this is villainy on Kelly's part; if there was no collusion, it is gross pastoral negligence. Pick one.

 

 

Follow-up 2: Light of the Law replies, August 23

 

Note: I intended to post this on Off The Record's board, only to find out that one has to be a paid subscriber to Catholic World Report to have posting privileges. Fair enough, but being a shameless moocher of other people's copies of CWR, I am forced therefore to use my own soapbox for reply. So, here it is, as originally drafted.

 

       Hi Diogenes! Thanks for your kind words. We should meet sometime. Now, about this Kos annulment matter.

 

      First, I appreciate the acknowledgement that “maybe [you] skipped over the point too quickly”, and that your point was “admittedly elliptical.” As I could only go on what you wrote, it’s nice to know that I wasn’t being unfairly dense about your text. In any case, writing on annulments is like entering a mine-field. Avoiding one mistake might land you right on top of another. In this case, two others. May I show you?

 

 

Brother, can you spare a copy of CWR

for a fellow American who's down on his luck?

       

     You’ve just written: “Now if the judgment of the tribunal was based on ANY grounds other than those of Kos's grotesque psychopathology, it would be tantamount to a fraud.” Not necessarily. Tribunals often encounter cases that present a cornucopia of grounds and evidence for nullity. Having proven matrimonial nullity on one of those theories, there is usually little point in hearing the case on others. Here, for example, the Kos case might have focused on Kos’ wife, or maybe it was a lack of canonical form case, or perhaps the marriage was found null due to an undispensed impediment. Who knows? The point is, in none of these scenarios would the annulment have depended on Kos psychology, even if evidence on that point were available. Granted, maybe the Kos case was heard on Kos himself and went affirmative based on his deep disorder (a judgment you and I would agree on). But, unless one has the case file or other reliable information, one can’t simply assume what the grounds of an annulment case were. I only know that the Kos marriage was declared null. Do you know more specifically?

 

     Speaking of assumptions, you again seem to be suggesting that Abp. Kelly was personally involved in the Kos annulment case. Have you evidence for this? It’s a sincere question since A) I don’t know the answer, but B) I do know that it is highly unusual for a bishop to be involved in an annulment case. The vast majority of annulment cases around the world are heard with no episcopal knowledge, indeed with no bishop’s advertence, whatsoever (1983 CIC 1419-1420).  But you write about Abp. Kelly “framing” the Kos annulment decision to “launder” Kos’ reputation. That’s a pretty steep charge. Can you share your evidence for it?

 

     In addition—pace some important debates on the law and even some counter examples—the general rule is that tribunal personnel are prohibited from disclosing information from tribunal cases to any one but the parties and their advocates (1983 CIC 471, 1455, 1598). Thus, what exactly would you have had Abp. Kelly do with annulment-generated information on Kos, assuming he even possessed it in the first place?

 

     Fundamentally, the decision to admit a man to seminary, and later ordain him, belongs to the bishop of that diocese (here, Dallas) and to no one else (1983 CIC 241, 1052 § 3). If the bishop of Dallas and his staff did not conduct a sufficient inquiry into Kos’ background, and/or if Kos himself were deceptive about his past, they should be held accountable. But based on the information available to me thus far, I cannot conclude that Louisville's tribunal erred in Kos’ annulment case, let alone that its Abp. Kelly acted with villainy or gross pastoral negligence in this matter.

 

     We'll keep the lamp on for you. Kindest regards, edp. +++

 


A Canonical Case against Kerry                                                                                                                          1 July 2004

 

The now-abrogated 1917 Code of Canon Law expressly recognized the right of individual faithful to make formal denunciation of another’s delict and to assert a personal right “to seek satisfaction or to recover damages” for an alleged canonical crime (see 1917 CIC 1935). In fact, this right of denunciation was recognized as a duty under natural law when the crime(s) alleged represented a “danger to faith or religion or some other imminent public evil was present.”

 

Thus, under previous canon law (and however infrequent such filings might have been) a basis for recognizing the kind of denunciation apparently made against Senator John Kerry in the Archdiocese of Boston would have been clear. Granted, the complex course of justice would have to be followed, convictions (if any) would have to arise from the law and the facts of the case, and any punishments meted out would remain within the discretion of the judges. But for all that, something would have to be done as a result of the denunciation itself.

 

The matter is less clear under current canon law.

 

For starters, canonical commentators recognize that 1917 CIC 1935 was not carried into the revised 1983 Code. Thus, express authorization for this kind of individual denunciation is missing from the revised law. Not rejected, perhaps, but not asserted anymore.

 

Moreover, under 1983 CIC 1721, the filing of actual canonical charges against a member of the faithful is reserved to the Promoter of Justice (described in 1983 CIC 1430, but basically a canonical cross between in-house counsel and a district attorney), who in turn can file charges only when so authorized by the ordinary, usually, the diocesan bishop (1983 CIC 1341, 1720). Strictly speaking, the modern criminal process is not terribly different from the way things worked under the 1917 Code, but the removal of 1917 CIC 1935 somewhat alters the light under which preliminary penal procedural canons are read today.

 

Aside: It is ironic that just at the time when, in hindsight anyway, what we might call “private attorney general” actions might have played a role in circumventing episcopal lethargy in responding, say, to clergy sexual abuse cases, the very canon authorizing such actions was dropped from the revised law (yes, I know, for reasons totally unrelated to that looming crisis, which is why I termed it ironic, not duplicitous). Perhaps some consideration should now be given to restoring express recognition of the right of individual denunciation.

 

In any event, the values underlying 1917 CIC 1935 arose from natural law, and natural law applies regardless of whether it is specifically codified in human law. Hence, the basic right and duty to take the kind of action that seems to have been followed in the Kerry case is well-grounded. This natural law argument, plus a variety of relevant canonical rationales (and I have seen only news reports about the denunciation, not the document itself), will need to be carefully addressed by whatever level of ecclesiastical authority eventually treats this matter.

 

Whatever else this case does, it recognizes that the faith and conduct of a prominent Catholic is at issue, as is the welfare of the faith community with which he claims communion, to say nothing of the fate of untold third-parties whose very lives are at risk under certain measures strongly endorsed by Sen. John Kerry. Such concerns figure prominently among the issues that Christ charged His Church to watch over, and that makes the Kerry case something canon law speaks to.

 

I have been saying for many years that, as general knowledge of canon law spreads among the faithful, its ability to respond to a much wider range of questions than, say, clergy personnel matters and annulments, is going to become clear. This is good news. Two millennia of legal and pastoral experience is too much to ignore any longer. +++

 


Fr. Beal's America article, 18 June 2004

 

When a canonist with the credentials and clarity of a Rev. John Beal treats a topic like denial of the Eucharist to pro-abortion Catholic politicians, those who disagree with his conclusions need not spend much time correcting many mistakes (that weren’t made) or dispatching many straw men (who weren’t set up). Instead, we can get right to the issues.

 

The first five paragraphs of Beal's America article (up to and including his remarks on excommunication) raise no issues that need detain us now. But his four final topics (namely, grave sin, manifest grave sin, obstinacy, and conclusions) bring several questions to mind. Assuming readers are already familiar with Beal’s full essay, I'll go directly to these observations.

 

Grave sin. Without underestimating the care that must go into assessing the applicability of moral principles to concrete facts, we should resist the idea that "the binding force of church teaching diminishes as it descends from the mountaintop of moral principles to the dark valley of practical applications.” Moral principles are not intended to adorn the mountain tops, glistening brightly on far away peaks; instead they are supposed to change into flowing waters, bringing life to plains below, even if that means things get a little muddy along the way. Here, if we can say that a given politician’s actions are “wrong-headed, inconsistent, pusillanimous or even stupid”, is it unthinkable that we could also conclude those actions to have been “sinful”? Moreover, intelligent people will admit that legislators (Catholic or otherwise) have to work within legal strictures unfairly imposed by a solidly anti-life federal judiciary, but that does not mean those politicians are exempt from moral critique precisely within those parameters. And surely it is no rebuttal for them to claim that the manifest and persistent grave sin that results in them being denied the Eucharist is only a “fraction” of their overall political activity!

 

Manifest grave sin. Here I think Beal’s description of the canonical notion of “manifest” is wanting. He describes "manifest" as being a condition “so habitual that it constitutes an objectively sinful lifestyle or occupation.” But surely this reduces “manifest” to a category virtually indistinguishable from “obstinate.” As it is in large part the very issue of "manifest" that distinguishes Canon 915 (whereby ministers withhold the Eucharist from certain persons) from Canon 916 (whereby certain persons themselves decline to approach the Eucharist), we should be careful not to define "manifest" out of the picture. I suggest that “manifest” here describes actions that are obvious, apparent, or otherwise quite clear to a community of observers, with little attention being paid (yet) to the duration of the action or its pervasiveness in one's life. In this sense, moreover, politicians’ public votes and speeches against the right to life are "manifest" activities in a way that few other citizens’ deeds could ever be. "Manifest" is also a factor that distinguishes, for the present at least, the public actions taken by politicians in a legislature from those of taken by private citizens in a voting booth. While both behaviors might be morally problematic, bishops are being prudent in confronting the high-profile actions of the politicians first.

 

Obstinacy. For some decades, American bishops might well have been remiss in setting out Church teachings on many topics, but the right to life is not one of them. The presence of pro-abortion Catholic politicians signals, therefore, not the failure of Catholic bishops to teach, but the refusal of certain Catholic politicians to be taught. In any case, withholding the Eucharist occurs only in consequence of actions taken by certain persons, not of truths inadequately grasped by them. In other words, a Catholic politician's allegedly fuzzy thinking on the right to life would not result in being denied the Eucharist, but his or her actions taken in violation of that fundamental human right could.

 

We should, by the way, beware of making too much of canon law's “obstinacy” (or Beal’s “manifest”) requirement, although it is well satisfied in the case of people who have the education levels and access to information that major Catholic politicians enjoy on such a major topic as abortion. Surely some behavior—say, a would-be recipient approaching the Eucharist in brown-shirted swastika gear or a KKK hood—can merit immediate withholding of the Eucharist, that is, even without proving the offender’s “obstinacy” in resisting argument.

 

Conclusion. I agree with Beal that the bar for refusing Communion under Canon 915 has been raised (for example, by adding the requirement of "obstinacy" to the traditional requirement of "manifest"), but the sad fact is that several pro-abortion Catholic politicians have managed to clear it. Furthermore, not only are some conscientious bishops obviously not acting on “visceral instincts”, engaging in “hasty action”, or “politicizing the Eucharist”, it is instead certain pro-abortion Catholic politicians who wish to use for political purposes their eligibility for Eucharistic reception as if it were an implicit Church endorsement of their character and positions, albeit with about as much sincerity as one senses in the traditional candidate-kissing-the-baby photos.

 

Except, these powerful men and women aren’t exactly kissing babies, are they? +++

 


The Cardinal and the Canons, 18 May 2004

 

Cardinal Roger Mahony, amid a variety of interesting comments that I am sure will attract competent commentary from others, spoke inaccurately about certain canonical considerations surrounding pro-abortion Catholic politicians receiving Communion. Some of the most salient canonical assertions by the cardinal were:

 

1. "The [C]hurch has always been quite cautious about denying anyone the sacraments of the [C]hurch.” That’s right. See 1983 CIC 18, 213, 843 & (most topically) 912.

 

2. "In fact, with respect to the Eucharist, it really is not possible for a priest or bishop to deny someone Communion unless that person is known to have been a public sinner, in the sense of having been interdicted or excommunicated or formally sanctioned in some way.” That’s wrong. Canon 915 plainly says that those who “are excommunicated, interdicted, or…obstinately persist in manifest grave sin are not to be admitted to Holy Communion.” It is patent that one need not be under a formal sanction to fall within the purview of Canon 915. Politicians who chronically support abortionism are persisting in grave sin.

 

3. "The presumption is that if someone presents himself for Communion, that they are doing so with the belief that they are in a state of grace and receiving in good faith the Eucharist.” That’s incomplete.  Like most presumptions (for example, the presumption of innocence), we must also say that the presumption of one's eligibility to receive the Eucharist yields to sufficient contrary evidence.

 

4. "That is the decision the communicant makes, not the person giving Communion.” That’s wrong. The cardinal is confusing Canon 916, wherein an individual who is conscious of being in grave sin should indeed refrain from receiving the Eucharist, even if no else is aware of his sin, with Canon 915, wherein a minister who is aware of an individual’s obstinate persistence in manifest grave sin must not admit such person to the Eucharist.

 

Let's be clear about what Abp. Burke and others are doing: Their stance against pro-abortion Catholic politicians receiving the Eucharist is completely justified. In brief, their decisions are 1) made in the realm of sacramental discipline, not penal law; 2) meant to prevent serious scandal to the faithful, curb sacrilegious reception of Communion, and impress upon certain persons the gravity of their deeds; 3) binding on all ministers of the Eucharist in their jurisdictions; 4) illustrative for others who, someday, as will we all, have to account to Jesus for what they did with His Precious Body and Blood. I need hardly add that all that is necessary to secure one’s readmission to the Eucharist would be confession and firm purpose of amendment. 

 

I agree with His Eminence that we have had pro-abortion Catholic politicians receiving the Eucharist since 1973. What’s changed is that we now have bishops who are saying enough is enough. +++

 


Not with a bang, 25 March 2004

 

           The unexpected, but not entirely surprising, transfer of Dallas coadjutor bishop Joseph Galante to the diocese of Camden NJ brings to a quiet close a strange interlude in American episcopal history. Strange, because coadjutor bishops are supposed to take over the see for which they were appointed (1983 CIC 403 § 3). That's the whole point in naming them in the first place and for distinguishing them from auxiliary bishops. Moreover, to facilitate the intended transition, while awaiting succession coadjutors are supposed to be appointed vicar general (basically, the No. 2 position in a diocese, 1983 CIC 406 § 1).

            For these reasons, coadjutor bishops tend not to be appointed unless the current bishop has resigned or soon will resign his office (his reasons for resigning not being important). But since late 1999 when Bp. Galante was first made the Dallas coadjutor, there has been considerable "back-and-forth" about when, and even whether, current Dallas Bp. Charles Grahmann (who does not reach retirement age until July 2006)  would resign. Nor does it appear that Bp. Galante was appointed vicar general in the meantime. As I say, strange.

Now, it's not as if things have been quiet in Dallas for the last several years, suggesting less need to be concerned about what some might dismiss as the niceties of episcopal protocol. To the contrary, to pick just one notorious example, the Diocese of Dallas under Bp. Grahmann has been host to one of the worst (in part because much of it occurred recently) clergy sexual misconduct cases in the country (the Kos case, since jailed and laicized), and was hit with one of the largest jury verdicts in history.

So one is left wondering, why was Bp. Galante, a man of obvious talent and credentials, appointed as Dallas coadjutor, if not to take over in fairly short order? Did Bp. Grahmann signal his willingness to resign five years ago, and then change his mind? If so, why? And what, finally, might this say about the other (currently four) coadjutor appointments in the US?     

To the last question, I can suggest an answer: not much. It takes two points to establish a line, so unless another American coadjutor is suddenly pulled from his intended see, one should probably regard Bp. Galante’s transfer as just another oddity associated with the Dallas situation, and not as signaling a Roman rethinking of the valuable office of coadjutor. +++

 

Happy Solemnity of the Annunciation, everybody! (PS: Please add my name to the list of those who think that crisis of abortionism --here, and around the world-- warrants the Church's raising this magnificent day to the rank of Holy Day of Obligation (1983 CIC 1244).

 


Sauce for the Gander?

21 March 2004

 

I’m not adverse to holding others to a high standard of accuracy, so I should not hesitate to hold myself to the same norm.

In an interesting article on annulments for the National Catholic Register (14-20 March 2004, pp. 1, 12) for which I was an identified source, Pat Novecosky writes: “The dramatic increase [in annulments] is based on [various] factors, Peters said.” So far, so good. Sounds like something I'd say (indeed, have said, many times.) But next comes, “Procedural changes in canon law—including a new emphasis on psychological factors—make it easier to prove a marriage null.” Hmm.

First, I hope I didn’t say that “emphasis on psychological factors” (referring to Canon 1095) was a procedural change in canon law. Obviously, Canon 1095 is a substantive canon, not a procedural one, a distinction I regularly explain to interested inquirers, albeit with mixed results. In any case, blurring these two categories would be sloppy thinking coming from a canonist.

More worrisome, though, is the possibility that I might have said it’s now “easier to prove a marriage null.” Instead, I thought I said it’s “easier to prove an invalid marriage null.” There's a subtle but important difference between the two statements. The first (while defensible and sometimes used by trustworthy ecclesiastics) can lend unwitting support to a casual-divorce-and-easy-annulment mentality, while the second squarely aligns one with Cardinal Ratzinger and his September 1994 Letter on Eucharistic reception by the divorce-and-remarried (esp. ¶ 9). Personally, I am more comfortable agreeing with Cardinal Ratzinger than with seeming, perhaps, to have caved into the divorce mentality.

Now admittedly, if I were critiquing someone else I’d hasten to add that, given the complexity of the subject matter and the occasional technical inexpertise of busy journalists, perhaps the expert, despite having actually said what he certainly thought he said, had simply been misunderstood or somehow had questionable positions mistakenly attributed to him. But, while extending him the benefit of the doubt, I’d still encourage his setting the record straight. Accuracy on these things is important. +++


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