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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:
blog on current issues
Blog Archives 2005
Wednesday, December 28, 2005
Fox News reports that a fake
priest served for several months in the diocese of Linz (Austria) before
being discovered as a fraud. He has since left the area. Of course,
imposters can infiltrate any organization, and the trust that Catholics
extend to their clergy can be abused. But the incident raises a few
First, "Church officials" are reported as saying the man committed no
crime. Maybe something was lost in translation but, as it stands, that
assertion is wrong. Canons 1379 and 1384, to name just two, authorize "a
just penalty" against those who "simulate the administration of a
sacrament" or who "illegitimately perform a priestly function". The phrase
"a just penalty" means that a penalty (e.g., restitution, interdict,
excommunication) can be tailored to fit the crime.
Second, both canon and civil law take an especially dim view of
impersonation when it involves money. If this man handled any
ecclesiastical finances or took money for his fraudulent actions, he can
likely be prosecuted civilly as well as canonically. Indeed, clerical
fraud cases usually involve men who impersonate priests to collect
donations for "worthy causes". One can guess who the worthy cause is.
Third, what of those Catholics who attended "services" or received what
they thought were sacraments from this man? As one person put it, "does
his Mass satisfy the Sunday obligation?"
To answer the question as posed, No, for such an action was not a Mass and
thus cannot satisfy the Sunday obligation. Nevertheless, anyone
who attends a ceremony honestly believing it was Mass, only to find out
later that the event was a fake, is excused the obligation for
that day. Moreover, one who reverently received a host "consecrated" by
such a man commits no idolatry, for there was no intention to worship
something known not to be Jesus, the Son of God.
As for the other sacraments, his baptisms would almost certainly be valid,
for one need not be in Holy Orders to perform a baptism (CCC 1256).
Confirmation, on the other hand, would be invalid (1983 CIC 882) and,
because it is a "character-imprinting" sacrament that can only be
administered by a priest (1983 CIC 845 § 1), it would have to be
administered anew. Confessions, too, though not character-imprinting,
would also be invalid (1983 CIC 965) and at least those relating mortal
sins should be repeated at one's earliest opportunity. In the meantime,
the good faith shown by one confessing sins to a person honestly believed
to be a priest would, one may be sure, be respected by God. Assessing
weddings would be a bit more complicated because of the interplay between
the canonical requirement of "form" (1983 CIC 1108 ff.) and local canon
and civil legislation but, at least canonically, it is likely that such
weddings would be recognized as valid.
If one ever has doubts about the credentials of someone claiming to be a
priest, I suggest contacting the local pastor (whose appointment is quite
public), one's local chancery (all of which are listed in the phone book
or on the Internet) or, for American clergy, looking up the name in the
Official Catholic Directory, published annually by P. J. Kenedy &
December 26, 2005, How Mass can be
illicit and sinful
Fr. Bozek, despite his excommunication, said Mass at St.
Stanislaus on Christmas Eve, and news sources report that 1,500 people
welcomed him with thunderous applause. What a pity. In any case, readers
have sent some follow-up questions: 1) What does it mean to say that a Mass
is "valid but illicit"? and 2) how can it be sinful to go to Mass? I address
Liturgy is many awesome things, but the phrase "valid but illicit" in
connection with Mass usually means that the confection of the Holy Eucharist
occurred, but under circumstances that violated Church law. Given the
immense importance of the Mass, participating in an illegal celebration of
the Eucharist such as Fr. Bozek's is always grave matter (i.e., objectively
sinful). But let's illustrate these points with a less controversial
There are, as it happens, a number of restrictions on when and where and by
whom Masses may be celebrated. To take just one example, the celebration of
Holy Mass is prohibited on Good Friday. But suppose some priest decides that
he knows more about the Church's prayer life than does the Church herself
and announces his intention to celebrate Mass on Good Friday. Now, Jesus
does not take away the power of confecting the Eucharist from priests even
when they are going to abuse His sublime gifts, so a priest's celebration of
Mass on Good Friday would be, in one sense, "valid". But celebrating Mass on
Good Friday would constitute a serious violation of Church law and hence
would be gravely "illicit". A priest acting thus would be sinning gravely.
And what about those who attend such a renegade Mass? Well, assuming they
knew that Good Friday Masses were forbidden but they nevertheless attended
as a way to show their own disagreement with the Church's prohibition of
Good Friday Masses, they would be cooperators in the priest's illegal action
and would share in his offense.
If this is true for a Mass which was "only" in violation of liturgical law,
it applies even more where a priest (who has abandoned his own parish and
illegally taken a job with a second) and the leadership of the second parish
are excommunicated for an act of schism and thus are forbidden the
sacraments and sacramentals (1983 CIC 1331).
A physician who loses his medical license might still be able to give sound
medical advice, but practicing medicine without a license is illegal and
punishable even if the medical advice in a given case was correct. A
disbarred lawyer might still know the answers to people's legal questions,
but practicing law without a license is a crime, even if the answers to
clients questions were right. Similarly, an excommunicated priest can still
pronounce over bread and wine the words needed for valid consecration of the
Eucharist, but he gravely violates Church law if he does so and those who
knowingly join with him share his guilt. +++
Fair-minded readers of
Archbishop Raymond Burke’s December 16th letter declaring the
excommunication of the St. Stanislaus Kostka parish leadership must conclude
that the archbishop would rather have written about any of a hundred other
topics during the last week leading up to Christmas. But once again, the lay
board of the Polish personal parish—under interdict since February for
obstructing the archbishop's authority to supervise the administration of the
parish—has forced the archbishop’s hand, this time, by hiring a priest (himself
already suspended for abandoning his pastoral post in the neighboring
diocese of Springfield-Cape Girardeau) and announcing that he will celebrate
Mass for them on Christmas Eve. That defiant act of schism (see 1983 CIC 751)
won the lay board and priest they hired,
Fr. Marek Bozek,
excommunication under 1983 CIC 1364 § 1.
Fr. Bozek has been ordained for hardly three years, and he’s been in
America (from his native Poland) for barely five. Yet he has apparently decided
that he knows all there is to know about a vexing parochial situation that has
been simmering since decades before he was born, more about where he should
minister than the bishop who took him in, educated him, and ordained him for
service in southern Missouri, and more about pastoral administration than the
archbishop of St. Louis, who happens to be one of the most respected canonists
Fr. Bozek’s abrupt decision to walk out on his own
pastoral assignment at the
co-cathedral parish in Springfield and to assume unauthorized—nay,
forbidden—duties in St. Louis is tantamount to a minor officer in the army being
assigned to Ft. Smith, but deciding on his own that he would be more useful at
Ft. Jones, and simply going there. Such a status is called AWOL, and such an
officer would be placed under arrest for dereliction of duty.
But the Church is not the army, and Archbishop Burke does not have
MPs to arrest a renegade priest who takes up residence in his archdiocese and
return him to Springfield—where, of course, Bp. Leibrecht doesn’t have a jail to
put Fr. Bozek in anyway. Instead, both bishops have imposed on Fr. Bozek
penalties within the limits of their jurisdiction. But, golly, what a pathetic
way to mark one’s third anniversary of ordination: suspended by one bishop,
excommunicated by a second.
Both suspension and excommunication are
"censures" (1983 CIC 1312 § 1, 1°). As a canonist,
Archbishop Burke would be the first to tell Fr. Bozek that, when one “withdraws
from contumacy”, one has a right to the prompt lifting of a censure (1983 CIC
1358 § 1).
Fr. Bozek should renounce his intention to set
up operations at St. Stanislaus parish, return to Springfield, and seek
But Fr. Bozek needs to know something here: contumacy for an
excommunication imposed for an act of schism is itself punishable, this time, by
penal dismissal from the clerical state (1983 CIC 1364 § 2). Moreover, once
imposed, penal dismissal from the clergy—not being a censure (1983 CIC
1336 § 1, 5°)—is not reversible by what amounts to offering a sincere
apology. Indeed, reinstatement of a “defrocked” priest is reserved to Rome (1983
CIC 293) and is so rare as to be non-existent.
Fr. Bozek should stop and
think about that and let the parties to the dispute in St. Louis work out their
situation in accord with law. +++
I leave others to debate the credibility of
reports that a cardinal, in no little detail, has broken his
to observe secrecy about the balloting in the
conclave that elected Pope
Benedict XVI. Related
questions, such as whether the reporter Brunelli dealt directly with the
cardinal or with an intermediary, and, if with an intermediary, how the
cardinal’s diary was obtained by him or her in the first place, are beyond my
I write only to correct a comment on the canon law that appeared in this unfortunate story,
namely: “Brunelli says he couldn't identify the author [of the diary] because of
the vow of secrecy each cardinal took before entering the conclave. Punishment
for violating the vow is excommunication.” The first sentence is painfully
imprecise. The second is simply wrong.
refusal to identify someone who breaks an oath of secrecy does not
protect the latter from culpability for having broken the oath. If the oath was
broken, responsibility for the deed attaches in accord with the usual
rules of morality and, if applicable, law.
2. According to ecclesiastical law,
however, no penalty is specified for cardinals who break
their solemn oath. The small number of support staff who are permitted into conclave
precincts are bound by oath to observe secrecy and their oath is enforceable by penalty, but
even there the penalty is not excommunication.
Rather, it is that “which the future Supreme Pontiff will see fit to adopt, in
accordance with Canon 1399 of the Code of Canon Law” (UDG
48).The sanction enabled by
CIC 1399 is “a just penalty” which might or might
not extend all the way to excommunication. There is also
55 that threatens
"grave penalties according to the judgment of the future Pope"
for those who violate secrecy, but the context of ¶ 55 is electronic
eavesdropping, and in any case, the penalty need not be excommunication. Per
elector notes are to be burned, but again, no specific penalty (excommunication
or otherwise) is attached to the violation of this norm.
In brief, if this sad story is true and if
the offending cardinal is identified, Pope Benedict XVI may deal with
the situation any way he sees fit, for no specific response to this particular
offense is dictated by the words of Church law.+++
While sacrilege is never funny, there is something comical
about the recent spate of ladies climbing into river boats and
play-acting as bishops and priests. Philippe Cardinal Barbarin
youngest elector in the College of Cardinals, was not amused
when it occurred in his portion of the Lord’s vineyard (Lyons, France) and yesterday
he excommunicated a woman [it is now all but certain that,
contrary to these press reports, the excommunication was in fact
not issued] who was “ordained”
a-boating by three other women (two of whom
had already been excommunicated in late 2002 by then-Cardinal
Ratzinger of the Congregation of the Doctrine of the Faith,
subsequent to their own “ordinations”—admittedly on a different
river). But behind the Lyon and CDF edicts of excommunication,
which sensible Catholics are likely to regard as canonical
“no-brainers”, there is, I suggest, at least one, perhaps two,
aspects of Church law undergoing development here.
You see, there is no canon directly punishing the "ordination" of
women. Canon 1382, which prohibits, upon pain of automatic
excommunication, episcopal ordinations without papal mandate (e.g., the Lefebvre
case) does not apply here, for these female “ordinations” were not to the episcopate,
but to the presbyterate. Canon 1383, a little closer to our facts, prohibits
bishops from ordaining priests without what are called “dimissorial letters"
but, while the ladies did not have recognized dimissorial letters, the penalty
for violating Canon 1383 is not excommunication, but only suspension. Besides,
the "ordainers" were not bishops, and in any case the failure to complete some ordination paperwork is not likely to explain the
sense of outrage that many Catholics understandably feel upon reading about these
latest feminist shenanigans. Canon 1384 for its part punishes with “a
just penalty” one who illicitly performs a “priestly function or other sacred
ministry” but of course, sacramentally speaking, the women in these cases
manifestly couldnot perform a priestly function (female
ordination being impossible under Canon 1024 and a host of supporting
Church teachings) and one cannot be punished for something one in fact did
not do. There certainly is, however, Canon 1379 which threatens “a just penalty”
for the simulation of a sacrament, but, while the “ordination” of a woman
would fit squarely within the scope of this canon, interestingly, this norm was
not cited as a basis for penal action taken by CDF in 2002. (I do not know
whether Cdl. Barbarin relied on it earlier this week.)
exactly is going on here? How are these excommunications (CDF’s
certainly, and perhaps Barbarin’s) being implemented?
Enter Canon 1319 § 1: “To the extent that one can impose precepts
[directive orders] in the external forum because of one powers of governance,
one can alsoimpose determinate penaltiesby precept, with the
exception of [what are known as] perpetual expiatory penalties” (my emphasis).
In other words, Canon 1319, which applies to a huge swath of ecclesiastical
authority figures, is being read by CDF (which dicastery, incidentally, received the
canonically very important “specific
approval” of Pope John Paul II for its action) as enabling penal actions in
a wide range of situations not directly mentioned in the 1983 Code. And this,
without even resorting to the oft-overlooked Canon 1399 (which already seems to
offer considerable possibilities for broader-than-legislated penal actions in
cases of seriously delictual behavior, an offer Church leaders have been slow to
Besides occasioning, then, this intriguing application of Canon 1319, these excommunications shed light on another
question. To the extent that the values behind such Canons as 1379 and 1399
influenced the dicasterial and episcopal action in these cases—and clearly such norms are relevant even if they are not cited—the imposition of
“excommunication” in situations that seem, at first glace, to warrant only the
less specific “just penalty,” adds to the argument that "excommunication" need
not be expressly listed as a penalty for a given crime in order for it, at some
point at least, to be applicable to that crime. In brief, the strength of the hands
of Church leaders faced with increasingly bizarre and disruptive behavior is
waxing. It will be interesting to see what they do with it.
Excommunication is a "medicinal penalty" (see 1983 CIC 1312,
distinguishing excommunication, by the way, from "expiatory"
penalties not eligible for imposition under Canon 1319). The
hoopla surrounding excommunication notwithstanding, it is
fundamentally oriented toward bringing Catholics to repent
of certain seriously wrong behaviors. Sometimes the penalty achieves its
end, sometimes it doesn't. But Cdl.
Barbarin is right to try it, and he gives a
good example to his brothers who might face
similar situations in their dioceses sooner than later. +++
1) What's up with the boats? Why
are they getting the water? Well, at least some of these
ladies have this idea that they can escape the penal jurisdiction
of local ordinaries by straddling a diocesan (and/or national)
border, a wattery one as it happens. This is silliness: (a)
regardless of which diocese the simulated sacrament occurred in
(for purposes of Canon 1412), bishops have penal jurisdiction
based on the individual's domicile or quasi-domicile (Canon 1408),
and all defendants would have at least one of these; (b) The Holy
See's jurisdiction extends to all people and places on earth (cit.
omm.), so, again, any Catholic can be brought before it for penal
judgment. In the end, the
willingness of some to flout
fundamental sacramental law stands in
hypocritical contrast with their d
to try to hide in the sinews of procedural law after having acted as they did.
Perhaps you’ve seen
recent press stories about then-Cardinal Ratzinger's "secret
letter" to all bishops in May 2001 wherein the one-time head of
the Congregation for the Doctrine of the Faith, now Pope Benedict
XVI, allegedly ordered black-out grade secrecy on ecclesiastical
investigations of clergy sex abuse allegations. Depending on which
version of the story you encounter, you might also hear that leaks
of Church investigations will be punished with papal
excommunication, that the Church claims secret jurisdiction over
such cases for ten years, etc., etc.
Folks, from where I sit, it seems much ado about not much.
First, the CDF letter is so secret that it’s been
posted on the Vatican website for some time now. I noticed it months ago.
It’s in Latin because it is addressed to all the bishops of the world, and it is
common Vatican practice to send out important communications in one common
language rather than in umpteen vernacular versions. For those whose Latin is
some versions of the CDF letter include links to websites that translate
Second, the CDF letter had as one important aim to settle certain
procedural questions among canonists as to which canonical crimes are “reserved”
to CDF per 1983 CIC 1362, that is, which ecclesiastical offenses are considered
serious enough that Rome itself could adjudicate the case instead of allowing
the normal canons on penal jurisdiction to operate (e.g., 1983 CIC 1408, 1412).
These canons were on the books long before the clergy sexual abuse crisis
erupted, but their interpretation had been disputed. CDF’s letter cleared up
much of the confusion.
Third, in extending jurisdiction over these cases to 10 years past
the alleged victim’s 18th birthday, CDF actually increased the
amount of time that Church officials (whether diocesan or Roman) had to
prosecute these offenses. Before CDF’s letter, canonical prosecutions were
complicated by unduly short statutes of limitations—the very same problem, by
the way, that state prosecutions encountered in many pedophilia cases.
CDF was hardly obstructing justice; it was trying to make justice more
Fourth, keep in mind that most ecclesiastical crimes are not crimes
under civil law, and that the Church obviously legislates for the majority of
cases she encounters. For most canonical offenses, then, secrecy in criminal
matters (1983 CIC 1455, 1717) accomplishes several goods: 1) protecting the
integrity of the investigation; 2) shielding victims from untimely or unwanted
exposure; 3) protecting accused, especially the wrongly accused, from
devastating publicity; and so on. Need I say that numerous civil authorities
conduct secret investigations for exactly the same kinds of reasons? More
importantly, though, nothing whatsoever in CDF’s letter prevents or discourages
victims (or their parents) from going to the police, private attorneys, or even
the press with their stories. CDF, it seems, has a lot to learn about how to
Of course, a few ecclesiastical crimes are also crimes under civil
law. Where two great powers overlap in a very serious matter, as happens when
Church and state are confronted with evidence of child sexual abuse by priests,
genuine legal and procedural questions can arise. Again, there is nothing new
here. Working out the best manner of accommodating the rights and duties of
both systems might require some discussion, but there are no insurmountable
obstacles to doing just that. In the meantime, the process is not helped by
plaintiffs’ attorneys hurling accusations of medieval secrecy at Church leaders.
Updates, 29 April: Occasional reactions to
things arising in the Blogosphere:
Umm, please, read
what I wrote. I never said CDF's letter "became public a few months ago". What I
said was that I noticed it on the Vatican website some months ago. That's
a narrow statement about me, not about CDF. In point of fact,
CDF's letter actually became public, in printed, hard-copy form, FOUR YEARS AGO
when it was published in the Acta Apostolicae Sedis
93 (2001) 785-788], the official journal
of the Holy See (1983 CIC 8.1) which journal is sent monthly to thousands
of libraries and offices around the world. There were also
news stories on the matter in early 2002. Now, I realize that not everybody
subscribes to the AAS, but then not everybody subscribes to the
US government's Code of Federal Regulations either, a fact that detracts
not one bit from the official and publicly-available character of materials
appearing in such publications. Golly, it would save us a lot of time if
discussants would actually read what was written, and expressed agreement or
disagreement with that, instead of with what they think was written.
2. Didn't the
Vatican itself confirm that the CDF letter is "not a public document"?
Nope. An unnamed source in the Vatican is alleged to have said that. What the
source could possibly mean I have no idea, since the letter was published in the
AAS. But, questions of journalistic accuracy, individual staff
competence, and even translation aside, if one wants the Vatican's position on
something, one has to consult the correct Vatican office. Standard operating
procedure in any large organization. The competent sources for commentary on a
CDF letter would be (A) Pope Benedict XVI (who happens to be the man who wrote
the letter, though that is irrelevant here), (B) a named official of CDF, or (C)
a named official in the Vatican Press Office. When one of them makes a
comment on a letter that is, I think, already quite understandable in itself,
then we'll have a comment.
Faithful Catholics react with disgust to the news that some folks are apparently
attempting to use eBay to sell consecrated Hosts (obtained at papal Masses, no
less). A few thoughts might help focus our discussion.
1) The sale of consecrated Hosts is a grave moral evil. Even the “private”
retention of the Eucharist (say, for personal adoration in the home) is illicit
and exposes consecrated Hosts to risks of profanation.
2) The purchase of consecrated Hosts is morally neutral, the moral character of
the act being determined more by such factors as the purchaser’s intention
(e.g., to possess it for the purpose of desecration, or to possess it to save it
3) EBay’s role in this event, so far, is one of “cooperation in evil” and the
standard rules for assessing such cooperation should be applied before deciding
what action to take, if any, in regard to eBay.
4) We have only the seller’s word that these wafers are consecrated Hosts. If
someone is willing to sell consecrated Hosts, should we so easily assume that
they wouldn’t lie about the wafers being consecrated in the first place?
5) There is no general moral obligation on the part of Catholics to purchase
(allegedly or actually) consecrated Hosts, even to save them from potential
desecration. That the purchase of such objects encourages a “market” for them
should be remembered.
6) This situation has virtually nothing to do with Communion in the hand. Hosts
were being taken for sacrilegious purposes long before Communion in the hand,
and were being sold for same long before eBay. Of much greater relevance here
would be poor Eucharistic catechesis and the increased brazenness of sinners
bent on hating Our Lord in the Sacred Species. The remedies include augmented
education and personal penances offered in reparation for such offenses.
The above facts do not exempt us from taking the latest
variation on a sad theme seriously, but they should help us keep it in
More updates (25 April) this apparently from eBay:
We understand that you are upset at having seen certain Catholic
items or items related to the Pope on eBay, including item
#6169851381. Because eBay's community is a diverse, international
group of more than 135 million users with varied backgrounds and
beliefs, there are times when some items listed on eBay by sellers
might be offensive to at least some of our users somewhere in the
world. At times, members may see listings that they may consider
morally wrong or objectionable. However, even though these
listings may be offensive to some, please remember that most of
the time the law does not prohibit the items.
Due to the fact that eBay's focus is to have a free and diverse
community, we are reluctant to interfere with listings that are
not illegal. Regarding offensive items, there are many items that
are considered sacred to many people of various religions, and we
sometimes hear complaints about these items. Examples would be
Catholic relics of saints, Mormon (LDS) garments, certain Buddhist
tablets, etc. However, eBay has made the decision not to prohibit
any item only on the basis of the item being endowed with sacred
properties by certain religious groups. In general, eBay will
remove items for a violation of our Offensive Materials policy
only in extreme examples in which the listing explicitly promotes
hatred, violence, or racial intolerance. However, we do not remove
religious items that are otherwise legal for sale and do not
violate any other eBay listing policy.
Please keep in mind that many of us at eBay may also share your
distaste with an item, and may not support the sale. In fact, eBay
has many Catholic employees. However, we do our best to understand
and tolerate the many viewpoints held by our worldwide community.
The Eucharist is not illegal to sell, and is generally allowed on
eBay as long as the seller does not otherwise include hateful text
or images in the listing. Although we realize that you may not
agree with this decision on eBay's part, we hope that you can
respect the diverse and open nature of eBay's marketplace.
Regards, eBay Community Watch
This would be a credible response and needs to be taken on its merits. The points it
makes are consistent with my suggestion that eBay finds itself in a position of
cooperation with evil (whether they quite realize that themselves), and thus
those standards for behavior need to be applied to determine whether eBay is
acting morally or immorally.
1) May I boycott eBay? Of course, if you want to call it that, since you
are not required to do business with them in the first place nor are you in the
position of patronizing them frequently for necessary goods or services.
2) May I encourage others to boycott eBay? One is free to share one's
opinions with others, but your conclusions should be morally sound, i.e., you
should be able to defend your determination that eBay itself is acting
immorally in allowing allegedly consecrated Hosts to be sold. Moreover, you need
to consider that boycotts often hurt innocent people (see eBay assertions above)
and that a boycott failure can result in more brazen acts by offenders in
the future (if only by suggesting impotence on the part of boycotters).
While these points are being sorted out, may I suggest that well-intentioned
Catholics STOPBUYING allegedly consecrated Hosts on eBay or anywhere
else, and that we make better known the possibility that a world which would
sell the Eucharist in the first place would not scruple to claim falsely that
such-and-such a wafer is the Eucharist precisely in order to sell it.
Seriously folks, this is the Internet we're talking about here: why are so many
people so easily believing such claims by people who, well, would claim to do
this? What possible evidence could they offer for their claim, besides their
"word"? Meanwhile, what motive would they have for lying? US $ 2,000 is a nice
Who would want to fill the shoes of Pope John Paul II?
Theologian, philosopher, apologist, political scientist, priest and bishop, and
most of all, pastor to the world, John Paul II has been all of these things.
Here, though, I wish to underscore just one (somewhat overlooked) aspect of this
incredible man: John Paul the Lawgiver.
Pope John Paul II was not a jurist-pope in the tradition of
Innocent III, Benedict XIV, or even Pius XII. And yet he wielded immense influence
over modern ecclesiastical legislation. He promulgated (and often directly
contributed to the very drafting of):
and the apostolic constitution Pastor Bonus (governing the Vatican’s
own extensive operations).
As the authority behind these documents alone, Pope John Paul
II would have left his mark as a very influential legislator. He has provided the
raw materials for canonical explorations and applications for decades, if not
for centuries. But to them, one must add (oh!, where to start?):
ap. con. Divinus perfectionis (greatly streamlining the
beatification and canonization process);
ap. con. Ex corde Ecclesiae (strengthening
official supervision over Catholic higher education);
Even this extremely short list does not do justice to his very
significant use of canon law in his many teaching documents (one need only start
looking at footnotes in his encyclicals and at the appendices to the Catechism
of the Catholic Church to get a sense of how much John Paul II strove to
alert Catholics to the legal aspects of so many of his statements). His annual
addresses to the Roman Rota are of immense importance for the development of
sound matrimonial jurisprudence in the Church. Even the strengthening of
educational requirements for future canon lawyers occurred on his watch (Novo
Codice). Perhaps now it is clearer why canonists usually refer to the pope
simply as "the Legislator"!
As John Paul himself observed: "To
work for the proper implementation of [canon law] is to work for the up-building
of the Church herself. It is to work for the salvation of the world. It is to
play an extraordinarily constructive role in continuing the redemptive mission
of Christ himself." I suggest that we as Catholics owe a debt of gratitude to this pope for
helping to lift canon law from the antinomian nadir it suffered in those first
post-conciliar confusion; moreover, we as canonists have a special obligation to continue to
apply the Church's laws in accord with the mind of the Church, a mind---and a
John Paul II has helped tremendously to open up for Catholics in the new millennium. +++
"Whatever its motives and means, direct euthanasia consists
in putting an end to the lives of handicapped, sick, or dying persons. It is
morally unacceptable. Thus an act or omission which, of itself or by intention,
causes death in order to eliminate suffering constitutes a murder gravely
contrary to the dignity of the human person and to the respect due to the living
God, his creator. The error of judgment into which one can fall in good faith
does not change the nature of this murderous act, which must always be forbidden
Catechism of the Catholic Church,
no. 2277. Moreover, "A person who commits a homicide...is to be punished
according to the gravity of the delict." 1983 CIC 1397. Imposing a starvation/parching death on
Terri Schiavo would violate both of the norms, even if Terri had asked for it
(which I strongly doubt).
"The New Law practices the
acts of religion: almsgiving, prayer, and fasting, directing them to the
Father who sees in secret..." CCCC no. 1969. Lent is an especially appropriate time
to offer up fasts. CCC nos. 1434, 1438.
Fast Options: 1) a Bread and Water*
fast until Terri is fed again; or 2) a Good Friday fast (one meal per day, two
smaller ones if necessary, and no meat) until Terri is fed again; or 3) no
snacking or eating out till Terri is fed again; or 4) some physical sacrifice
for Terri, her husband and his lawyer, all those defending Terri, and all those
attacking her. Any of these still allow us far more food and water than Terri is
getting, but if
you have any questions about your
own ability to fast, check with a qualified advisor, and follow his or her
advice. Never eliminate fluids, especially water, even
for what might seem short periods of time. May God bless Terri, and may God
bless our country.
19-22: 1) Congressional
poised to restore Terri's food and water. But that
HAS NOT HAPPENED yet, and
prayers are still urgently needed until she is actually being fed again. 2) I
would like to acknowledge the many people who have contacted me (I keep no
records) and said they would adopt one of the sacrifices for Terri and encourage
others to do so. God bless you all.
*A straight "bread and water fast" is pretty easy for others to spot
and might (I say, might) distract from the fasting itself or perhaps
confuse others. But with a fast on, say, plain tea and toast, one can pass for
just not being especially hungry at the time, yet accomplish essentially the
W. Crocker III, ostensibly telling us how good children are for
marriage, meanly ridiculed Natural Family Planning and,
inexplicably, Crisis magazine published it
(December 2004). Both apparently believe that an appropriate way
to praise one good is to denigrate
another. Between them, they have wronged a wholesome and important
apostolate. Crocker and Crisis expect supporters of
NFP to shrug it all off because, they claim, it was all intended
to be funny. Well, Crocker's essay wasn't funny; it was smug.
But judge for yourself:
click here. Who writes so mockingly without intending to
mock, or publishes something so contemptuous of a program without
intending to show some contempt?
Whatever their motives, the Crocker-Crisis
brand of humor hurt a lot of good people; moreover, they
have ill-served the wider community with several specious anti-NFP
assertions. Prominent persons among Crisis' already-shaken
circle of friends have expressed objections to the piece.
For their letters and Crocker's reply,
click here. But running a few letters to the
editor is not sufficient, especially not when Crocker,
given the last word by Crisis, shows more condescension
toward his critics.
Crocker's sarcasm--to say nothing of his
marriage in general and NFP in particular--have no place in Catholic
discourse, and should be repudiated. Crisis should frankly
acknowledge a serious failure in editorial judgment.
Stonewalling obvious blunders only makes them worse.
For my own brief reply (mostly canonical) to just some of Crocker's
flawed claims, read on.
Crocker committed several substantive errors in attacking NFP and the people who use it. May I suggest just three
1. In his opening paragraph, Crocker completely
confuses Catholic teaching on openness to children with a method
for complying with that teaching. NFP needs a new slogan, says Crocker, because
Catholics reject Church teaching on human procreation. That is an obvious and
fundamental error in categories. NFP’s “slogans” are just fine; it’s dissident
Catholics who need to change their stance.
2. Crocker says there is no apparent evidence to
support claims that couples using NFP enjoy very low divorce rates. Maybe not
apparent to Crocker, but there are few signs he looked. A nice place to start
would have been with my article “Contraception and Divorce: Insights from
American Annulment Cases” published in the Couple to Couple League’s Family
Foundations, November-December 1998, on-line version (posted for a good
three years now) here.
3. In the mouth of his own ethnically stereotyped
creation, Crocker places words that presumably he agrees with: “The primary and
fundamental purpose of marriage is not companionship, not romantic love, not
moonlit strolls on the beach, or any other balderdash but the begetting and
raising of children—lots of ’em, and starting soon.” Maybe Crocker should have a look at the 1983
Code of Canon Law, indeed, at its opening canon on marriage.
“The matrimonial covenant, by which a man and a
woman establish between themselves a partnership of the whole of life, and which
is ordered by its nature to the good of the spouses and to the procreation and
education of offspring....” 1983 CIC 1055 § 1.
Phrases describing marriage as “a
partnership of the whole of life” and as being ordered to both
“the good of the spouses and ... to children” simply do not support the utterly
unbalanced depiction of marriage (as being little more than licensed
baby-making) that Crocker wishes to impose. But if Crocker can be excused for
not knowing that these ideas on marriage now animate the Code of Canon Law
(how many Catholics have the Code on their reading list?) he has no
excuse for not knowing that these same ideas are prominent in such fundamental
conciliar documents as Gaudium et spes no. 48 and Lumen gentium
no. 11, to say nothing of Humanae vitae no. 8. Certainly the drafters of
Canon 1055 had these texts before them, and Pope John Paul II approved this
language during his line-by-line review of the Code before promulgation.
There is, to be sure, a lively debate going on about
the conciliar and post-conciliar descriptions of marriage, debates animated by
the fact that A) “baby-first” language was prevalent in pre-conciliar
descriptions of marriage, and B) such language is completely gone from
official post-conciliar articulations. But Crocker not only makes no
contribution to that debate, he writes as one completely unaware of the fact
that it is even going on.
Humor, like beauty, might be in the eye of the
beholder, but truth is not. Crocker’s quest for glibness at NFP’s expense does
not excuse his sacrificing accuracy about its (or any other morally licit
approach’s) tested methods, and even less does it pardon his distorted
descriptions of Christian marriage. It was a mistake for Crocker to write his
essay, and, may I add,
as one who normally cuts editors a lot
of slack in choosing what to publish and what to reject, it was a mistake of Crisis to publish it. But
perhaps I am saying something Crisis already knows: their on-line version
of Crocker’s essay includes the request to “send angry mail directly to
[Crocker]”. I can imagine. +++
There is a lot of silly talk—much of it
self-perpetuating—about the College of Cardinals arranging for the next pope to
resign upon reaching a certain age. This is complete nonsense; neither the
College of Cardinals nor any other power on earth has the slightest authority to
require a papal resignation (see 1983 CIC 331, resting on divine authority
stretching back to the Petrine Commission recounted in Matthew 16).
Pope John Paul II has considered resignation in the past, but
the desire to set an example of spending one’s last breath in service to the
Church weighs heavily on him. So does, I suspect, his awareness that a papal
resignation today might make more palatable the idea of another papal
resignation tomorrow. Dangerous precedent, that, should the world face off
against a pope who is not so widely loved. Is the Church paying a price by John
Paul’s retention of office? Perhaps so, but the Church would pay a price upon
his resignation, and no one grieves more at his inability to serve better the
Church we love than does Pope John Paul himself.
And yet, I think another consideration may be raised here:
The sufferings of old age (for those blessed to attain it) are, of course, a frightful
consequence of Original Sin. But, beyond the physical hardships they endure, the
vast majority of elderly face their final years without even the small consolation of being
able to say that they are still being useful to others. Retirement, whether
chosen or forced, leaves one very alone, makes one realize that the world is
going to continue anyway, and forces the frightful question, “What have I really
done with my life, now that I can apparently add nothing to it?”
If Pope John Paul II does resign, his final pontifical act
should not be seen as acquiescence to the inevitable, but rather as yet another
instance wherein he has shown his solidarity with the most forgotten segments of
society; this last time, it would be with the long-suffering but oh-so-helpless elderly. +++
Update, February 10: If there's a lot
of silliness on the pro side of the papal resignation debate, there's at
least a little on the anti side as well. One high-ranking prelate, for
example, is quoted as saying that it would be wonderful if Pope John Paul II
outlasted Pope Pius IX's 37-year reign. Oh, really? What would be so wonderful
The papacy is about service (Servus Servorum Dei), not
about moving up another notch in the Guinness Book of World Records. For John
Paul II to outstay Pius IX would require another ten years in office. I don't
see any inconsistency between wishing, Deo volente, John Paul another 10
years of life, and harboring concerns about the papacy--and the Church--being
run under the present circumstances for another decade. Ironically, most of us
on the anti-forced resignation side of this debate support what political
scientists would call a strong monarchial model of the papacy, even while the
position we defend is leading to a de facto oligarchial reality.
The ecclesiological quandaries of an incapacitated pope are
very real (the press and bloggers have not even scratched the surface
yet), and we are seeing them play out before our eyes. Canon Law simply doesn't
cover this situation. But the Holy Spirit does, and I'm very sure that Pope John
Paul II needs no advice, pro or con, from the rest of us as to how to discern
the Spirit's will in this matter.
Cardinal Gulbinowicz, who every one thought was 76,
has just admitted that he is really 81, and thus is ineligible to vote in
the next papal conclave. I leave to others a discussion of factors impacting
the morality of lying about one’s age and of letting that lie persist for many
decades. Let’s just say, thank heaven it came out now, and not after a papal
conclave which an ineligible elector stood to enter.
Canonically, Gulbinowicz’s ballot would have been null (1983
CIC 171 § 1, n. 2), but the election of the next pope would
have been valid, provided that the null ballot did not provide the necessary
vote for election (1983 CIC 171 § 2). There’s the rub, of course.
Conclave actions are super-secret. Should suspicions that an
ineligible elector participated in a conclave arise after an election (and,
increasingly, I think we should assume that most such things eventually do come out)
doubts about the election could have been dispelled only by disclosing, at least
to some extent, what the actual voting was. That possibility itself is obviously
cause for some concern, to say nothing of the influence, especially in early
rounds where vote margins are usually smaller, a null ballot might have had on
other electors, let alone that the final vote itself might have been close.
Cardinal Gulbinowicz retired (albeit, belatedly) from
pastoral duties due to age about one year ago. At that point, he was eligible
for no further leadership roles save participating in a papal conclave. Whatever
reasons might have accounted for the cardinal’s earlier deceptions about
his age, these reasons ceased upon his retirement from pastoral duties. Continued
deception threatened the liceity, perhaps even the validity, of the one role he
fraudulently retained. Cardinal Gulbinowicz should have quietly notified the
Holy See of his ineligibility for a conclave at the time his other resignation
was accepted, instead of the Church having to deal with this matter amid an
obvious crisis in an elderly pope’s health. +++
PS: The 1983 Code of
authorizes a "just penalty in accord with the seriousness of the offense" on
those who fabricate or use falsified ecclesiastical documents (such as baptismal
certificates), and on those who use other kinds of false documents (such as
birth certificates) in ecclesiastical matters (say, to claim eligibility for
ecclesiastical office). See 1983 CIC 1391. The statute of limitations for such
crimes is three years and does not even begin to run until the offense, if it is
habitual, has ceased (1983 CIC 1362). The Church, justly renowned for having a
long memory, should recall the turmoil that the faithful have suffered in past
centuries as a result of irregularities in papal elections; her officials should
consider canon law and ecclesiastical history when reaching a "tacit agreement
Gulbinowicz" on this matter.
Update, February 4:
Well, this Canon Law Blog has generated some interesting
questions (that's not surprising: we are, after all, talking canon law here).
So, in no special order:
1. Why should we punish an 81
year old man?
Who says we should
punish anyone yet? We have only press reports to go on so far, and several
factors important for canonical prosecution of crime are not mentioned therein. What
is described, however, provides enough basis to wonder whether canon law was
violated in this case. Certainly, as with any crime alleged against the elderly, one
can’t help but see old age itself as a heavy burden and take that into
consideration. But, if a crime was committed in this case, ignoring it could provide more fodder to those who
already point to cases in Church and State where the powerful are held to no
account when they break the law. But all of this is the pope’s call. (See question 7 below).
2. What would be an appropriate
I don’t know. The
Legislator only specifies “a just penalty” in a c. 1391 case, and this phrase
allows great flexibility in responding to a particular situation. One
idea occurs to me—assuming a violation of canon law occurred: a published
apology for not having declared ineligibility for a conclave sooner and for
causing confusion and embarrassment at an already stressful time in the Church’s
life. But again, it’s the pope’s call. (See question 7 below).
was trying to dodge the Red draft. Is that so wrong?
I tread lightly
here, never having been called upon to risk my own life for my country. Also,
some important questions about the legitimacy of the Communist government in
that territory at that time need consideration but are beyond my ken. But at
least one factor should also be recalled: troops were being mustered to repel an
unjust invader (Hitler’s army). In any case, this interesting question sheds no
light on the propriety of a cardinal later using falsified documents
many decades after their
confection to retain offices
and duties in the Church, and that's
what this case concerns.
4. Aren’t seminarians immune
from the draft?
Under canon law?
No. Canon 289 claims no such exemption today. Under Pio-Benedictine law,
however, a very broad exemption from military duty, extending even to
seminarians, was asserted (1917 CIC 121) by the Church, though it was often ignored by
civilian governments. Still, ecclesiastical authority seems to have begun
backing off its broad assertion in the 1920s, and by the early-to-mid
1950s it had de facto abandoned it (certainly as far as seminarians were
concerned). This interesting question, though, sheds no light on the propriety
of a cardinal using falsified documents
many decades after their
confection to retain offices and duties in the
and that's what
this case concerns.
Gulbinowicz did not fake his
certificates, his parents did. Why punish him?
Who actually did
what and when is not clear here, but I have to wonder how a typical 21 year old
man would react to his parents suddenly telling him he was only 16, suggesting
some level of complicity in the deed. In any case, Canon 1391 scores not simply
fabricating documents, but also using fabricated documents, and that, it
seems, is what the cardinal did for many, many decades, indeed, until just days ago. For
example, a dispensation from nonage would have been thought to have been
priestly ordination in 1950 (see 1917 CIC 975) raising questions about whether
the subterfuge was being continued past the war, and so on, until 2004 when the
cardinal finally tendered his archiepiscopal resignation as requested to do by 1983 CIC
401, but in reality doing so some six years after the designated time. His
admission of conclave ineligibility came just days ago, roughly a year and a
half after it was owed.
6. He was obviously able to
function in office long after “official” retirement age came and went.
Should he be punished for working on?
are requested to submit their resignations at age 75 in virtue of 1983 CIC 401 §
1, a provision enacted by John Paul II, and cardinals lose the right to
participate in conclaves at age 80 in virtue of
UDG 33, a provision drafted and enacted by John Paul II. Questions about the
propriety of such rules are best addressed to Pope John Paul II (as
was done, in fact!). In the meantime, I would observe that many secular
institutions and businesses have mandatory retirement ages. However much one
might disagree with such policies, one is not justified in lying about
one’s age in order to retain a job.
7. Whether the cardinal
admitted this on his own or maybe someone finally reported him, I don’t know.
But he must be terribly embarrassed by now. Shouldn’t we just let it drop?
Canonical cases involving cardinals may be heard by the pope alone (1983 CIC
1405 § 1, n. 2). Pope John Paul II knows Church history, canon law, what young
Catholic men suffered during those terrible days of war or repression, and the
record of the man in question. I’m certainly content to let him decide how
best to handle the situation.