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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 2006
Tuesday, December 05, 2006
Just in time for Christmas!
Still haven't found anything for that hard-to-buy-for canon
lawyer on your Christmas list? Looking for something completely original,
very useful, and really, really cheap (as in, free)? Search no more! Just
send that special guy or gal a link to
Dr. Ed's solaranite-powered guide to the footnotes of the 1917 Code.
It will help if your special canon lawyer likes Latin, old books, and
Plan 9 from Outer Space (of course,that's true for all
of us), but it doesn't really matter: here is this year's perfect gift for
I find the hoopla surrounding Rome's decision to translate
"pro multis" as "for many" (instead of as now, "for all") in the
canon of the Mass disconcerting. Are we so starved for effective exercises
of ecclesiastical authority that we must greet this decision as a triumph
on par with, say, the fall of the Berlin Wall?
Personally, I think no congratulations are in order for having finally
correctly translated a phrase that
Latin students should know by the time they finish Chapter 4 of
Collins' Primer of Ecclesiastical Latin. Rather than dwell,
though, on why ICEL, the USCCB, and the Holy See each in their turn
allowed such an obviously wrong translation to stand for so long, I will
simply recall the words of Psalm 122 and be happy that our feet (on this
point anyway) are standing within the gates of Jerusalem.
At least, that was my plan until I came across an interesting comment
posted by a priest.
Obviously thoughtful and desirous of bringing sound liturgy to his people,
he wrote that, with a smattering of Latin and some input from those who
knew more, he had long ago substituted "for the many" in place of "for
all" when he celebrated Mass. He justifies his action on the grounds that
"for all" was clearly wrong and that people deserve a correct translation
of the Mass. He added that, if his bishop were to direct him to stop the
practice, he would do so immediately.
I think this approach is quite wrong.
1983 CIC 846.1 states "[T]he liturgical books approved by the competent
authority are to be observed faithfully; accordingly, no one is to add,
omit, or alter anything in them on one's own authority."
Sacrosanctum Concilium 22.3 made exactly the same point, and
expressly stated that priests were bound by this norm.
The Code and Council are unambiguous here. Thus, one no more needs a
personal precept from a bishop in order to be bound to observe this
liturgical law, than one needs a personal directive from an IRS agent to
file one's taxes by April 15, or needs a direct order from a traffic cop
to be required to obey a stop sign. Quite simply, as John Paul II stated
promulgated the 1983 Code, "canonical laws by their very nature
are to be observed." (my emphasis)
Does Fr. Gravel really have
permission to hold office?
LifeSiteNews is reporting that
the Canadian priest
Raymond Gravel, notorious for his vociferous disagreement with Church
teaching on just about every major social issue, has obtained permission
from his bishop to run for national governmental office. This claim,
however, seems impossible to reconcile with sound canon law.
Under the 1983 Code, Catholic priests are flatly prohibited from holding
governmental office: Canon 285.3 plainly states "Clerics are forbidden to
assume public offices which entail a participation in the exercise of
civil power." The legislative history of this norm makes obvious the
Legislator's intent to eliminate any exceptions to this rule. See Peters,
Incrementa in Progressu at 234.
Unlike those situations where a priest might be given permission to serve
as an agent for lay persons or as co-signer of a loan, or to hold office
in unions or political parties (see 1983 CIC 285.4 and 287.2),
there is no provision in Canon 285 for bishops to grant a priest
permission to hold governmental office. None. Presbyteral council
"approval" of any alleged "permission" is completely irrelevant.
The Holy See could, of course, grant permission for a priest hold
governmental office, but there is not the slightest chance that Rome would
do anything to enable this cleric to spread his kind of scandal at the
Prescinding from other canonically confusing aspects of this case, the
only theory by which Fr. Gravel might have been given episcopal
permission to seek national office would be in virtue of a dispensation
from disciplinary law under 1983 CIC 87 and 90. The standard canonical
authors recognize such a possibility, but when commenting specifically on
the prohibition against priests holding major governmental office, they
stress how low is the likelihood that such permission would ever
"contribute to the spiritual good" of those under a bishop's care. In Fr.
Gravel's case, of course, the assertion that such permission might serve a
"spiritual good" would be laughable.
In short, it seems that someone has either thoroughly confused Canon 285
with Canon 287, or has deeply disregarded Canons 87 and 90. Either way,
this situation needs correction.
(A minor clarification on the LSN report: the canonical prohibition
against priests holding governmental office did not start with the
Drinan case in the USA; it was part of the Pio-Benedictine Code (see
1917 CIC 139), though Fr. Drinan's conduct in office through the 1970s
certainly helped galvanize renewed enforcement of the norm.)
Same Day Update: Another Canadian priest,
Fr. Thomas Dowd, writes that Fr. Gravel's "permission" to hold secular
office was contingent upon his accepting certain restrictions on his
ministry. Those restrictions seem like some of the "other canonically
confusing aspects of this case" I referred to above. Interesting, but it
doesn't change my analysis. There are no conditions upon which
episcopal "permission" to hold governmental office can be given to a
priest. Again, if this is not a dispensation case, as doubtfully valid as
that dispensation would be, it's nothing.
Updates, November 1: Skimming some other comboxes on this
topic, I see some folks confusing deacons and priests here. Please note,
permanent deacons, per 1983 CIC 288, are not included under the
c. 285 prohibition at all. Technically, they are not an exception to the
rule; they simply don't fall under it to begin with. It is therefore
confusing for some to be asserting that permanent deacons can hold secular
office "if they have their bishop's permission". Per the Code, permanent
deacons don't need permission at all, since they are not prohibited in the
BTW, I provide canon numbers in my posts precisely so people can look up
these things themselves. But too many folks don't do that before posting
what they think are corrections.
Update, November 2: Jimmy Akin is
predicting that Rome will intervene and order Fr. Gravel to stand
down. This seems, indeed, the last hope that the Catholic Church in Canada
will be spared its version of the Drinan disaster.
Update, November 14: There's now
another one in Toronto. I can only say again, I see no basis in canon
law for granting "permission with conditions" in these cases. For priests
to hold governmental office requires dispensation, or it is
canonically illegal. That is not a verbal quibble on my part. The
character of "permission" differs in several respects from that of
"dispensation" and, if history is any guide here, instances of misapplied
canon law usually tend to get worse, not better, over time.
As an aside, I read Fr. Dan's article (that starts by recounting some
in-flight conversations he has had about Latin occasioned by his Roman
collar) the morning after I returned from an out-of-town conference,
during which flight I found myself in almost exactly the same conversation
my teaching Latin. My exchange was occasioned, though, not by a Roman
collar (obviously!), but by someone seeing me reading
Auvray's Sacred Languages (1960).
In short, more evidence that great minds run alike.
Francesco Cdl. Pompedda, one the world's most famous canon lawyers,
died October 18 after a long illness. Pope Benedict XVI immediately wrote
that Cdl. Pompedda "was an outstanding jurist and for many years a
diligent collaborator of the Holy See, particularly on the Tribunal of the
Roman Rota and of the Apostolic Signatura, providing a valuable testimony
of priestly zeal and faithfulness to the Gospel." It would be difficult to
single out Cdl. Pompedda's most important canonical service, but surely
his deanship of the
Roman Rota (1993-1999) would figure prominently. I can only imagine
that someone somewhere has prepared a bibliography of his extensive
judicial sentences and scholarly writings. If I track one down, I'll post
information on it here. Update October 20:
Catholic World News notice.
I have never met
Rod Dreher and know little about his work. Folks whose opinions I
trust indicate that he is an intelligent, thoughtful man.
A few days ago,
Dreher publicly announced that he had left the Catholic Church and
joined the Russian Orthodox Church, this, apparently, being at some level
his reaction to the clergy sex abuse crisis and its associated scandals.
See also his
Gratitude posts. On the whole, I found Dreher's arguments for leaving
the Church unoriginal and unconvincing, but then, I don't think there
are any original arguments for leaving the Church (sub sole nihil
novum) and I wouldn't find any of them convincing anyway (Domine,
ad quem ibimus?), however much I might sympathize with what I was
If I may rephrase him in canonical terms, it seems that one of Dreher's
deepest disappointments in the Catholic Church was the reprehensible
failure of so many bishops to take effective action against priests who
were gravely violating Church law. Now, every legal system knows that,
when authority allows laws to be broken with impunity, it becomes harder
to enforce them in the future. No doubt some bishops today feel
compromised in their duty to hold the faithful accountable under canon law
(1983 CIC 392) after so many terrible failures to do so in the past.
In any case, here I highlight some of the canonical issues I think might
be raised by Dreher's actions. Of course, Dreher and those who agree with
him might find little of interest in my remarks, but I offer them as
evidence that, if nothing else, canonical laws do correspond to real life
1. By all accounts Dreher has committed a formal act of schism; according
to 1983 CIC 1364, he is liable to latae sententiae
excommunication. But, as I and others have often said, the provisions of
1983 CIC 1323-1324 render very complicated, often nugatory, one's
confidence regarding automatic censures in a particular case; it is
tiresome to have to stop every time and debate the intricacies of the
canonical penal process at the expense of focusing on the offensive
behavior that needs correcting. I repeat: it is time to abandon the
latae sententiae operation of sanctions, and to restrict the
application of penalties to ferendae sententiae procedures.
2. Dreher brought his wife and, more to the point, his young children with
him into the Orthodox Church. Even assuming that parents can
remove their children from the Church (at least in a way that such
children would later need to be readmitted formally to enjoy the benefits
of full communion), the "sincerity" of a parental decision to deprive a
Catholic child of his or her religious heritage does not rehabilitate that
decision. 1983 CIC 1366 authorizes "a censure or other just penalty"
against parents who "hand over their children to be . . . educated in a
In brief, there seem to be several aspects of this matter that warrant
Let me say, I don't think that all the ills of the Church are reducible to
violations of canon law, nor is perfect adherence to law a guarantee of
sanctity; but I do think that disregard for Church law has caused or
worsened many of the problems we face today. Dreher would be right to
decry the anomian attitudes that pervaded various hierarchies in recent
But no one should think that serious violations of canon law are unique to
the clergy, nor should one underestimate the harm caused when someone,
especially of a high profile, violates Church law in protest against those
who violate Church law.
Canon Law Society of America was founded in 1939 and has held an
annual convention, usually in October, every year since. For the first
thirty years, presentations made at the convention were published, if
anywhere, in the pages of
The Jurist. But beginning with the thirty-first annual
meeting (1969), convention proceedings have been published in monograph
form. This greatly facilitates the ability of researchers to access the
considerable canonical and theological insights developed for and shared
at CLSA conventions. My
Guide to the Convention Proceedings of the Canon Law Society of
America is offered in service to those wishing to make more
efficient use of CLSA Proceedings. The Guide, which features author,
titles, and my abstract of the articles, currently covers 1969-1986,
inclusive, and is augmented periodically.
Interest in matters related to excommunication is growing,
and I believe that this trend will likely continue. I have therefore begun
assembling what I hope will be a reliable directory of excommunication
cases that have arisen under the 1983 Code of Canon Law. To visit
"Excommunication Blotter" click here.
Life Chain yesterday, my fourth here. Our numbers were down a bit,
though perhaps that was because Pro-Lifers, who are used to having rain
and snow dump on their rallies, were confused by the beautiful weather.
But if our numbers were down a bit, the number of friendly honks and waves
we got was clearly up over previous years, while rude remarks were
noticeably reduced. It left me feeling pretty good about the trend toward
life here in Southeast Michigan. But for one incident.
A young woman in her 20s, driving by in a nice car, leaned far out her
driver-side window and, in a scream of pure hate, shrieked "Kill the
babies! Kill the babies! Kill'em all!" My first thought was, "Something's
been let out of hell on a 12-hour pass."
Of course, she wasn't a demon; she was a human being, herself blessed with
the gift of life, but using her obvious health and wealth to spread
vitriol against innocent children. In an instant, she reminded me of how
far we still have to go. Maybe hers was the heart most touched by
the two hundred or so witnesses to life yesterday; surely, she was worth
Does the BBC enjoy being so
far behind the fact curve?
Apparently the BBC thinks that if the Vatican publishes a
document in 2001, (which the
Catholic press reported on in early 2002), but the BBC only notices it
five years later, the document must have been a deep dark Vatican secret
till then. Quick, what's British English for "Get real"?
Evening Standard reports that the BBC just aired a "Panorama" story
about how Pope Benedict XVI, as head of the Congregation of the Doctrine
of the Faith, sent a "secret Vatican edict" to bishops around the world
(right, like that's a group that could keep a secret if it
tried), an edict so secret "that bishops had to keep it locked in a safe
at all times", which ordered a massive cover-up of clergy sexual
misconduct. Besides narrating the usual litany of
"worst-possible-interpretations" of various statements in the document,
the Standard couldn't resist piling on with "The [BBC]
investigation could not come at a worse time for Pope Benedict, who is
desperately trying to mend the Church's relations with the Muslim
world..." What the Standard thinks ecclesiastical relations with
Muslims have to do with clergy sex abuse is anybody's guess. Maybe it's
British humor, you know, like the Standard asserting that
Ratzinger's first name is "Thomas". (I don't get it; I mean, the man is
only the pope, for crying out loud. Can't the Standard
get his name right?)
Anyway, more than a year ago, when another British press organ,
The Observer, tried to hype the alleged cover-up angle of this
very same story,
I blogged on it (27 April 2005), pointing out that Cdl. Joseph
Ratzinger's so-called secret document was published in the official
journal of the Holy See, the Acta Apostolicae Sedis, vol.
93 (2001) on pp. 785-788; for that matter, it was
available on the Vatican website for at least several months before
The Observer thought it broke the story in April of 2005. Now
c'mon: it's bad enough the BBC and the Standard don't read the
Acta Apostolicae Sedis; don't they even read The Observer?
Anyway, as I said back then, apparently Pope Benedict has a lot to learn
about how to keep documents secret: like not publishing them in journals
distributed around the world. What surprises me (though only mildly; this
is main-line British journalism we're dealing with) is that I get to say
it all again.
Discuss the CDF document, if you wish, O Media Elites; debate it even; but
don't pretend that it was some sort of dark secret all this time, or
portray yourself as valiant crusaders in search of the hidden truths,
braving Vatican fury to inform the ignorant masses. Cuz it wasn't, and
Ah, the original "Panorama" segment is now
on-line here (it runs a little under 40 minutes). It contains its own
share of serious mistakes and misunderstandings (which I will address),
but the sloppy Evening Standard report on the BBC program,
critiqued above, has certainly compounded the confusion for everyone.
Update, October 19: Fr. Thomas Doyle, the main on-camera
expert in the Panorama hit-piece against Benedict XVI, is distancing
himself from the Vatican-conspiracy claims he made, or came across as
making, for the BBC. In a
letter to NCRep writer John Allen posted Oct 13, Doyle writes
"Although I was a consultant to the producers of the documentary I am
afraid that some of the distinctions I have made about the 1962 document
have been lost. I do not believe now nor have I ever believed it to be
proof of an explicit conspiracy. . . ." Fascinating.
But if I do say so myself, Executive Director Charles Wilson's latest
article, "Applying the principles and procedures of civil law to canon
law: a recipe for frustration" (14 Sep. 2006), which uses extended
passages from two of my recent articles (on the
Schiavo-Centonze wedding and my
Reply to Patrick Gordon), was especially gratifying to see.
Chuck (I presume on the cordiality he extended to me in our only meeting
about 10 years ago) knows from long experience what canonists often know
only from books, namely, that common-law Americans have many mistaken
assumptions about how a Roman-based canon law system works, and he has
explained it succinctly for his readers. There is something gratifying
about seeing one's words correctly understood and then ably mediated to
audiences unforeseen; I hope many people benefit by the article.
This time, Milingo made it
easy (two same-day installments)
By ordaining to the episcopate, without a pontifical mandate, four men
(who happen to be married, though that is not required here), the
notorious Abp. Milingo has just walked right into an unambiguous
excommunication reserved to the Apostolic See (1983 CIC 1382). The
only canonical question I can see is whether notification of an
excommunication can be sent via email.
Oddly, though, a spokeswoman for the Archdiocese of Washington says "this
means nothing in the Church." I wish that were so. This stunt is not like
a woman's "ordination", which in one regard "means nothing" in the Church.
This ordination most definitely means several things: it means
the episcopal orders Christ entrusted to His Church have just been
conferred on four patently ill-disposed men; it means five men are now
automatically excommunicated; and it means Rome is squarely faced with a
grave violation of ecclesiastical order.
Installment II. Well, very interesting, we seem to have a split in the
news sources on a relevant point. Some print sources refer to Milingo
ordaining bishops, others to his
installing bishops. If it was the latter, and if that act did not
include ordaining them (one
website, which I know little about, would seem to support that
interpretation) then Milingo would not be in violation of Canon 1382, as I
argued above, though he likely would be at risk of canonical penalties
for, among other things, abuse of ecclesiastical power (1983 CIC 1389),
communicatio in sacris (1983 CIC 1365), and/or violations of
canon law not expressly treated elsewhere (1983 CIC 1399). My thanks to a
brother canonist for alerting me to the inconsistent news reports; now
let's see what might turn up over the next few days.
Update, Sept. 26: The Holy See regards the activities of
Abp. Milingo as grounds for excommunication, and has declared him such.
Press Release (Italian). Amy Welborn has an
unofficial English translation. Here is the
VIS version. There is some very interesting language herein,
including: 1) the Holy See has repeatedly, but unsuccessfully, tried to
contact Milingo; and 2) the Holy See does not intend to recognize these
ordinations, this a remark sure to provoke canonical and theological
discussion. For now at least, it seems that whatever Milingo actually did
on Sept. 24 was either an ordination, an attempted or pseudo-ordination,
or is otherwise being viewed as an equivalent act subject to censure under
1983 CIC 1382.
An observation: in the
post-conciliar reform of canon law, criminal law or sanctions was cut
to the barest of bones. Since then, many canonists have noted that the
canonical descriptions of many crimes seem too narrow to encompass within
their strict terms (per 1983 CIC 18) the variations with which actual
offenders commit their deeds. While the facts on Milingo are being sorted
out, keep alert to the possibility that, as the living organism which it
is, canon law is expanding, in its terms or interpretations, before our
eyes to help the Church confront better the multiform duplicities of human
behavior. See also some brief I made over at
Amy Welborn's main post.
A final note: The Zenit article from this evening (Code:
ZE06092606) leaves little doubt but that Holy See saw in Milingo's actions
at the least a pseudo-ordination of men who claimed to have already been
(illicitly) ordained to the episcopate (making Milingo's action
sacrilegious, to boot, per 1983 CIC 845.1), and that the excommunication
under 1983 CIC 1382 followed. This argues for a wider interpretation of
the penal norm than one would have suspected a few days ago; I think, for
the reasons I offered above, it makes sense.
Update October 15: The article has just appeared as "Why
archbishop's action brought excommunication" in Our Sunday Visitor
(22 October 2006) p. 3.
Update November 14: VATICAN CITY, NOV 14, 2006 (VIS) -
The Holy See Press office released the following communiqué late yesterday
afternoon: "The Holy Father has called a meeting of the heads of
dicasteries of the Roman Curia, for Thursday, November 16, in order to
examine the situation that has arisen following the disobedience of
Archbishop Emmanuel Milingo, and to reflect upon requests for dispensation
from the obligation of celibacy and requests for readmission to the
priestly ministry, presented by married priests over the course of recent
years. No other matters are scheduled on the order of the day." VIS 061114
On the chance that some conscientious Catholic clergy might
Prof. David Carlin's startling call "for Catholic priests to abandon
their practice of performing civil marriages" lest, by performing a
religious wedding ceremony recognized by civil law, they necessarily
become complicit in the state's laxist attitudes toward divorce, I offer
First, in an area requiring canonical and theological precision, Carlin
often stumbles. For example, he assumes that all marriages are performed
by "priests", despite the fact that deacons and even lay persons can
officiate at Catholic weddings (1983 CIC 1108, 1112). Are all official
ministers held to the same standards, or not? Carlin writes that priests
should officiate only at "sacramental" weddings, contrary to the obvious
implications of Canons 1055 and 1086. Is he suggesting that "valid" and
"sacramental" marriages be treated differently? Carlin makes no reference
to the practice of some Catholic clergy performing so-called "civil"
ceremonies. Does he believe this practice differs from the scenario he
proposes and if so, how? But on to more substantive matters.
I must directly contradict Carlin's central assertion. Catholic officials
at Church weddings recognized by civil law do not perform their
religious duties in dereliction of Church teaching on the permanence of
marriage. Catholic wedding officials perform their functions under
ecclesiastical authority and proclaim thereby, among other things, the
permanence of marriage; nothing in the liturgical celebration of Catholic
marriage remotely suggests otherwise.
True, in America, in praiseworthy recognition of the importance of
religion in public and private life, the state grants civil recognition to
weddings performed under religious auspices. But it is crucial to
understand that this civil recognition of marriage is granted by the
state and for the state's reasons; it in no way implies any
obligation on the part of religious officials to compromise their own
beliefs about marriage, divorce, or anything in between to obtain it.
On the other hand, some nations (one need look no further than Mexico) do
not recognize religious weddings and instead demand that
Catholics go through a separate ceremony for a civilly-recognized
marriage. Anyone who knows anything about the numerous negative pastoral
consequences suffered under such conditions would, I am sure, be shocked
to read that Carlin wants the Catholic Church in America to surrender its
enviable rights precisely in this regard!
Beyond this, did Carlin consider what would happen if parish priests
actually took him up on his challenge and announced, for example, "today's
wedding is in no way intended as a ceremony with civil effects, I disavow
any alleged civil effects, and I have advised the happy couple to stop by
City Hall for a civil wedding ceremony afterwards if they want the state
to recognize their wedding"? At a minimum, such a religious ceremony
would, by its plain terms, pretend to be "a marriage which cannot be
recognized or celebrated according to the norms of civil law (1983 CIC
1071 Â§ 1, 2Â°)" and thus would require permission from the local
ordinary. But what response could an ordinary give that would satisfy the
conscience-imperative (wrongly) asserted by Carlin without compromising
the rights of tens of thousands of Catholic Americans who want civil
recognition of their weddings, to say nothing of addressing the wider
Church-state implications that would be provoked by such unilateral
Obviously Prof. Carlin grieves over the divorce mentality among Catholics
and he is acutely aware of the state's contribution to this social
disaster. But while looking for ways to bring Church teaching on marriage
more directly to bear on state policies in this area, we must avoid
destroying one of the few areas wherein the state and the Church cooperate
correctly in marriage, and that is in the civil
recognition long accorded to religious wedding ceremonies.
The book is conversational in tone, about 65 pages in length, and features
a Foreword by respected
canon and civil lawyer Auxiliary Bishop of Chicago, Thomas J. Paprocki.
Among his other comments, Bp. Paprocki writes "In this book,
Excommunication and the Catholic Church, Dr. Edward Peters sets the
record straight and answers a variety of questions about the
ecclesiastical sanction known as excommunication. This type of analysis is
very needed and timely."
Today, excommunication is more in the news than ever. I hope my discussion
of the topic will not only prevent some needless misunderstandings, but
will help us all to appreciate better what the Catholic Church is, and is
not, trying accomplish through this important and controversial procedure.
Canon law is truly a "sacred discipline" because it operates in direct
service to sacred things. When John Paul II promulgated the 1983 Code, he
used a document entitled
The Laws of Sacred Discipline; likewise when he set out the
Eastern Code, he used a document entitled Sacred Canons.
Nevertheless, neither document claims that these Codes of Canon Law, or
individual canons therein, are "divinely inspired".
We use the term "divinely inspired" to describe, for example, the text of
Sacred Scripture, or maybe certain pronouncements of Ecumenical Councils
or popes. But if we want "divinely inspired" to convey something special
in those crucial contexts, I think we should refrain from using it to
describe many other things that popes and bishops do in the exercise of
their ecclesiastical duties.
Frankly, it would be difficult to find the "divine inspiration" behind,
say, Canon 1630 (setting 15 days as the period of time to lodge appeals)
or Canon 307 (noting that a person may be concurrently enrolled in
multiple associations of the faithful). Such canons are reasonable and
represent directives made by the pope as ruler of the Church, but that
does make them or the Code that contains them "divinely inspired".
A few canons, to be sure, uphold propositions that may be
considered divinely inspired, such as Canon 1024 (restricting holy orders
to baptized males) or Canon 924 (specifying bread and wine as the matter
for the Eucharist). But even here, the canonical norms themselves are not
described as "divinely inspired". For remember, regular folks can make
these assertions too; they might even do so in the exercise of
ecclesiastical offices, but that would not make them "divinely inspired".
Canons come and canons go. 1917 CIC 796 discouraged the same individual
from serving as someone's sponsor at baptism and at confirmation; 1983 CIC
893 encourages this double service. Which norm is divinely inspired?
Indeed, whole Codes come and go. The 1983 Code replaced the 1917 Code. Was
the 1917 Code "divinely inspired" for 65 years, only to be divinely
de-inspired in 1983? If these questions sound silly (and they should) it's
because the basic notion that Codes of Canon Law are "divinely inspired"
is a misnomer to begin with.
I can list at least half a dozen good, even compelling, reasons to enforce
and obey the canons of the 1983 Code of Canon Law; but one of those
reasons won't be that the Code is "divinely inspired". Claiming divine
inspiration for the Code overstates the case, and when it is shown to be
an overstatement, that only gives a pretext to those already looking for
excuses to disregard the legitimate demands of Church law.
press reports, Cdl. Battista Re of the
Congregation for Bishops has sent Abp. Emmanuel Milingo a letter
warning him to leave his civil law wife by Oct 15, or "face canonical
suspension." What's a bit odd is that, by 1983 CIC 1394, Milingo should
already be suspended automatically (latae sententiae) for that
True, formal imposition of an automatic suspension carries a few
consequences that merely latae sententiae suspension doesn't (see
1983 CIC 1333), but practically speaking these differences are minor and
are likely of no significance for someone in Milingo's place.
So what is the "threat" in Cdl. Re's letter? Well, maybe Re is paving the
way for a higher penalty such as excommunication to be imposed under Canon
1393 (for those who ignore lesser penalties). Milingo certainly seems to
be providing as much provocation as he can for Rome to react sternly. Or
maybe (and I admit this is, historically speaking, a long shot) the
cardinal's letter is laying the groundwork for a flat-out dismissal from
the clerical state under Canon 1394, the penalty Milingo would likely be
facing if he were only a presbyter.
I recently saw an advertisement for chapel veils. The ad
features a lovely young lady wearing a handmade veil, and presents the
following text: "Did you know that nothing in Vatican II changes the
practice of headcoverings for women and that Canon 1262 is still in
force?" Assertions about canon law always get my attention, so I wondered,
is Canon 1262 still in force?
Indeed it is. It states: "The faithful are to give support to the Church
by responding to appeals and according to the norms issued by the
conference of bishops." Hmmm. Nothing in there about chapel veils. In
fact, nothing in there about liturgy. But that's not surprising: Canon
1262 is not located within Book IV of the
1983 Code of Canon Law where most norms on liturgy and sacraments are
found, but rather, it is in Book V where Church property is regulated.
Okay then, what about Vatican II?
Turns out, it's true that Vatican II changed nothing regarding
women's headcoverings; but then, Vatican II said nothing about
women's headcoverings one way or the other. In fact, to the best of my
recollection, neither did Vatican I, or Trent, or Fifth Lateran, or so on
back to Nicaea. Leafing through my sources, it seems that the canonical
requirement that women cover their heads in church is almost completely
unattested until the appearance of the 1917 Code, specifically, in Canon
1262, where we read "women, however, shall have a covered head" when
assisting at liturgy. Ohhh! that Canon 1262.
I yield to no man in my admiration of the 1917 Code, but its Canon
1262 went out of force in November, 1983 (see 1983 CIC 6); the 1983 Code
simply does not require women to cover their heads in church. (By the way,
if 1917 CIC 1262 were still in force, we'd have to explain why we
don't observe its other norms, like separate seating for men and women in
Lawyer though I am, I also look through Scripture from time to time, and I
recall St. Paul talking about women praying bareheaded (he does not limit
it to "in church") and suggesting that it is better for them to shave
themselves bald (I Cor. 11: 5 ff). What that passage might mean today, I
leave to exegetes to explain. I don't see it mentioned in the
Anyway, please don't misunderstand me: I'm a big fan of the textile arts,
and I think chapel veils look pretty on girls and women, as do scarves and
hats and those things that keep their hair in place. I'm just saying,
there is no canonical requirement that women cover their heads in
A saying in canon law runs thus: "There's no law against it
till somebody does it." Well, somebody's doing a new "it", so maybe it's
time for a new law.
New Jersey Herald News and the
Te Deum Blogspot, Fr. Louis Scurti, a campus minister at William
Paterson University in New Jersey, "brings his two dogs everywhere [oh?]
and that includes Sunday Mass." His pair of pooches set themselves up in
the sanctuary during Mass, "making people feel included" [huh?] and
providing a "symbol of domesticity" [double huh?]. Although the apparently
untethered canines "have been known to growl" at late-comers, Fr. Scurti
assures us that his dogs "don't remove the sacredness of the liturgy at
The dictates of common sense are hard to put into words. If one has to
explain to a pastor why his mutts don't belong in Mass, one goes into the
effort with the uneasy feeling that such words might be wasted on, well,
someone who needs that kind of thing explained in the first place. But
most folks can tell the difference between a liturgy and a living room,
and many Catholics are out of patience with priests (granted, in shrinking
numbers) who still treat the Mass as their personal property.
Yes, I could cite some canons: 1983 CIC 1210 excludes from churches things
that do not advance "worship, piety, or religion"; Canon 1220 states that
"whatever is inappropriate to the holiness of the place is excluded"; and
Canon 285 tells priests to avoid "unbecoming" behavior at all times; but
none of these norms quite make the point I want.
I might try appeal to the Catechism of the Catholic Church,
paragraph 1181, which observes that a church "ought to be in good taste
and a worthy place for prayer and sacred ceremonial" and that "the harmony
of the signs that make it up should show Christ to be present and active
in this place", but that doesn't quite get me there either.
So, I guess we need a new law: No animals in the sanctuary, ever, and no
animals (except certified assistance dogs) in a church. There, now I won't
be tempted to bring variously my two dogs, four parakeets, a cockatiel,
salamander, newt, corn snake, or rabbit to church, and my fellow
worshippers will just have to seek elsewhere for "the sense of calm and
peace" I experience around my pets. Though I still think
observing common sense would save us all a lot of trouble.
Oh, one last thought: it sometimes happens that, if canon law does not
adequately address a problem, civil law might. The appropriate university
or diocesan officials might want to check New Jersey leash laws. Liability
issues are always better explored before problems arise, rather than
Update Sept 13: Several people have offered other
examples of priests who bring dogs to Mass with them, whether in or out of
the sanctuary. To them I say, first, you are not alone in thinking such
practices are quite out of place in public worship, and second, every
pastor has a boss. See also
BettNet, and more from
Fr. Amorth announced his conclusion that Hitler and all Nazis, and
Stalin (but not all Communists?) were possessed by the Devil. I suspect
that others will ably point out what a very problematic
assertion, at many levels, that is. For now, I only call attention to
my negative review of Amorth's most famous book, An Exorcist Tells
His Story (1999) and respectfully suggest that IAE consider making it
clear that the ubiquitous Fr. Amorth does not speak for them.
For those who would like a generally reliable narration of an actual
possession/exorcism case, see
Thomas Allen, Possessed: The True Story of an Exorcism (1993);
see also Henninger Media Development, "In the Grip of Evil" (DVD 1997),
containing, among other things, interviews with Allen and Fr. Walter
Halloran, SJ, the seminarian who assisted the original St. Louis exorcist
in 1949. (And yes, I know the weird Bp. Emmanuel Milingo makes a brief
appearance toward the end of the film. Oh well.)
For Jimmy Akin's reservations on Fr. Amorth,
A good organization should not let its opposition dictate
the agenda, and certainly the Catholic Church has better things to do than
to react to every media-hyped manifestation of the latest theological
agitprop. But some problems, like "Take
Back Our Church", might warrant a closer look.
Brian Saint Paul alerts us that TBOC is an opposition group, yes, but
of a different caliber;
Tim Jones did the same thing rather humorously last week, and
Peter Nixon was on it back in July. I recommend each of their posts,
and here underscore only some canonical points.
TBOC's assertions on canon law are frequently flawed. Example: "Canon law
endorses a time-honored way for a nation to re-structure its governance.
It is called a regional, or national synod." Um, no, it's not. Under
current law, "synods" are held at the diocesan, not the national,
level (1983 CIC 460-468), unless one is talking about the "Synod of
Bishops" which, however, operates at the universal, again not the
national, level (1983 CIC 342-348).
But guessing that TBOC meant "national council" (close enough for
canonical horseshoes under 1983 CIC 439 et seq.), TBOC compounds the
confusion: "[A] national synod can include non-bishops, up to fifty
percent of the delegates. If those delegates were elected by Catholics in
every state and claimed active voice, the synod might take on the
character of a constitutional convention." Maybe one can forgive TBOC for
muffing the percentage of non-bishop participants in plenary councils
(even canonists read 1983 CIC 443 slowly). But for suggesting that
Catholics-at-large can elect their own representatives to a council? or
for asserting that non-bishops could have a deliberative vote (TBOC's
"active voice") in the proceedings? No, both claims are quite wrong.
Moreover, 1983 CIC 445-446 effectively preclude implementing council
legislation that might be in conflict with universal law. So much for
TBOC's "constitutional convention" model of governance.
But beyond canonical incompetence, there might be more in this case.
1983 CIC 1374 states: "A person who joins an association which plots
against the Church is to be punished with a just penalty; however, a
person who promotes or directs an association of this kind is to be
punished with an interdict."
Now consider some
TBOC assertions: "[W]e do plead guilty in our wish to overturn, at
least in the United States, what the last pope called 'the divinely
instituted hierarchical constitution of the Church.'" or: "[We Americans]
must elect our own bishops. And retain the power to un-elect them if they
fail to serve us." and ask: at what point do expressions of opinion,
protected by 1983 CIC 212, become machinations against the Church
penalized under Canon 1374? TBOC, it seems, is daring Church leadership to
answer that question. Maybe this time it should.
The answer that Church leadership might make to TBOC need not be penal, of
course; indeed, in accord with good canon law and pastoral practice, the
first response probably shouldn't be penal (1983 CIC 1341). Instead it
might take the form of plain words, the hard truth spoken in real love,
the way that
Milwaukee Abp. Timothy Dolan recently wrote to chronic dissenter Daniel
Maguire. In any event, we have little evidence that simply ignoring
challenges to Church authority makes them go away; and even if we did have
such evidence, that would not excuse our letting real people get hurt in
Many not in Church governance look at Canon 1374 and say "Ah, c'mon, do
you really think there are sinister forces plotting coups against
the Catholic Church today?" and too many within Church governance look at
fringy groups and say "Ah, c'mon, do you really think the faithful are
being taken in by such tomfoolery?" Considering TBOC's public assertions
above, and its claim that nearly 600 persons have signed up with it in the
last several weeks, it seems to me that the correct answer to both
questions is Yes.
Perhaps all this overlooks a more basic question: just whose Church is it,
anyway? I don't think it's mine, and I sure don't think it's
theirs. I wonder why "His" keeps coming to mind?
secular news reports are, as usual, muddled, it appears that a priest
in Jacksonville FL (Diocese of St. Augustine) has been excommunicated for
something related to agitating for married clergy. What caught my eye in
the story, though, was the priest's line "...I love the woman that I
am going [to] marry so much that I'm willing to
give up everything for her." My emphasis.
Just so we're all clear, a man upon ordination to the diaconate (which
comes before priesthood, of course) incurs the "impediment of holy orders"
(1983 CIC 1087) meaning that this priest cannot marry his
intended in the eyes of the Church; not ought not, but cannot.
Moreover, if he does attempt marriage, even a civil marriage, he will be
automatically suspended from ecclesiastical office (1983 CIC 1333, 1394)
and sets himself up for additional penalties, up to and including
dismissal from the clerical state. All of this would need to be addressed
separately from his excommunication, which was apparently incurred for
Maybe it's just me, but I sense today a rather different mood among
American bishops facing outlandish behavior by their clergy;
problem-priest cases seem much less likely now to drift along year after
year in unresolved, canonically ambiguous states. Ecclesiastical justice
is never swift, of course, but at last its wheels seem to be turning
The pseudo-ordinations that a number of women around the
lately in the United States, have attempted are, to borrow Leo XIII's
phrase, "absolutely null and utterly void". (See specifically John Paul
Ordinatio sacerdotalis, n. 4). Last summer (scroll
to 6 July 2005) I explained how such affronts to divine and canon law
can and will result in excommunication, although, as I argued, not by the
automatic process (1983 CIC 1314) that many simply assumed would apply to
such cases. Here I need to make a different point.
To no one's great surprise,
some of these women have gone on to attempt to celebrate the Eucharist.
Canonically speaking, what they have done is to simulate the Mass, which
action is a distinct crime under canon law (1983 CIC 1378 § 2, n. 1).
Moreover, the penalty for Eucharistic simulation is automatic,
specifically, interdict, which differs from excommunication in a
few respects (1983 CIC 1332). The differences need not detain us, though,
for 1983 CIC 1378 § 3 allows the penalty of interdict to be increased to
excommunication in cases of simulation "according to the gravity of the
delict." It should be obvious that the circumstances surrounding these
simulated liturgies are quite sufficient to support the augmentation of
The practical consequence is this: those women who, after undergoing
pseudo-ordination, compound their canonical crimes by simulating Holy
Mass, cannot be restored to full communion (basically per 1983 CIC 1347
and 1358) upon repentance from their attempted ordinations; they must also
repent of their mockeries against the Mass.
Which means the rest of rest of us have more praying and fasting to do.
Update, August 15: This, from the GB&I Comm, 794: "The
offence involved here is that of a lay man or woman, or even a deacon, who
goes through the rites prescribed for the Mass in an attempt to celebrate
the Eucharist, whether publicly or in private." See also CLSA Comm 924-925
and CLSA New Comm 1586.
There's a meme on books making the rounds in cyberspace,
and it got me to thinking:
A book that changed your life. Stuart Chase, The Tyranny
of Words. A book that you've read more than once. The 1983 Code of
Canon Law. A book that you'd want on a desert island. The Liturgy of
the Hours. A book that made you laugh. Evelyn Waugh, Decline and
Fall. A book that made you cry. Martin Gilbert, The Holocaust. A book that you wish had never been written. Mao Tse-Tung,
The Little Red Book. A book that you hope someone will write. Incrementa in
Progressu 1917 Codicis Iuris Canonici. A book that you wish you had written. Anders Winroth, The
Making of Gratian's Decretum. A book that you're currently reading. Charles Journet,
The Meaning of Grace. A book that you've been meaning to read. The Code of
Canons of the Eastern Churches.
Actually, I like personal reading logs and
keep one posted myself. I think they're a good idea in several
respects, and wish more people would join in!
Abp. Raymond Burke is the
newest member of the Signatura
Funny thing about the Catholic Church: When she really wants to give
someone a reward, or an honor, or some kind of recognition, she doesn't
spend much time on medals and ribbons, on parchment proclamations, or
(perish the thought!) a cozy research grant. No, when the Catholic Church
really wants to honor a man of extraordinary talent and
dedication, she gives him—another job to do.
That's how I see the recent appointment of
St. Louis' Archbishop Raymond Burke as a member to the
Apostolic Signatura (the Church's highest administrative law court,
1983 CIC 1445). Abp. Burke knows that offices in the Church are given for
the sake of service, and that when the Church calls one to higher and
additional offices, she is really calling one to serve the People of God
even more deeply than before. Prayers and best wishes, Archbishop Raymond
Consider: until the last few decades, all canonical discussions of
abortion were concerned with actions occurring, obviously, within
the womb. The recent development of extra-uterine fertilization
technologies, however, including cryogenic storage of embryonic human
beings, has created a group of humans at peril for their lives, but who,
given the canonical maxim that penal laws are subject to narrow
interpretation (1983 CIC 18), might fall outside the scope of the
traditional abortion canon. So, one must ask: is the deliberate
destruction of an embryonic human being outside the womb the canonical
equivalent of an abortion procured within it?
Cardinal Lopez Trujillo believes that it is, and I think he's right. How?
Back in the late 1980's, again in the wake of bio-medical developments,
the question arose whether very early abortions caused by the IUD, RU486,
and certain contraceptives, were encompassed by the abortion canon which,
as canonists knew, envisioned later-term procedures. On 23 May 1988, the
Pontifical Council for the Interpretation of Legislative Texts addressed
the following question: "Whether abortion, as treated in canon 1398,
should be understood as only the expulsion of an immature fetus, or
whether it is also the killing of a fetus accomplished in any manner and
at any time from the moment of conception?"
But notice: nothing in the 1988 authentic interpretation limits the
understanding of abortion to actions occurring in the womb;
indeed, the interpretation clearly asserts that any killing of a
fetus, accomplished in any manner at any time after
conception, is canonically an abortion for purposes of Canon 1398.
Now, I don't want to put words in the cardinal's mouth, and it is possible
that he has other arguments by which to defend his position, but it seems
to me that, in asserting that those involved in deliberate embryo
destruction are liable to excommunication for abortion, the cardinal,
while not authorized to issue binding interpretations of canon law, has
simply connected the dots left by offices that do have that
authority. At a minimum, I think those disagreeing with Cardinal Lopez
Trujillo have the burden of showing why deliberate embryo destruction is
not, in light of the 1988 interpretation, a type of abortion
punishable by excommunication.
There are, of course, more issues raised by the cardinal's interview than
I can discuss here. But for now, I observe only that Cardinal Lopez
Trujillo remains one of the most consistently incisive and plain-talking
members of the Roman Curia, and that's good news for our side.
Note: As it happens, the
Ave Maria School of Law in Ann Arbor MI is dedicating an entire issue
of its excellent law review to the legal and philosophical thought of--you
guessed it--Cardinal Lopez Trujillo. A host of fine scholars will be
responding to an original essay by the cardinal which appears in that same
issue, and it all begins with an introductory essay provided by yours
truly. Look for it soon!
Cormac Burke is an Irish priest of the prelature Opus Dei, a member of
the Irish bar, professor of modern languages, and a prolific theological
author. More than all of these, though, Msgr. Burke is one of the world's
most influential English-speaking canon lawyers, serving 13 years on the
Roman Rota as an "auditor" (essentially, a judge), retiring in 1999,
only to continue his priestly service by teaching in Kenya.
Msgr. Burke is that unusual kind of man who has maintained extensive
scholarly output while performing Church work at the highest levels; in
him, we have the chance to see how a canonical judge (one with a common
law formation at that) adjudicates actual cases, and how the same man
reflects on those issues as an academic. Thus, his decision to launch
a personal website, featuring many of his
judicial sentences, is very exciting news. His materials (often entire
works) are now available in several languages.
Note that in earlier centuries, retired Rotal judges would often publish
collections of their sentences for the edification of those to follow.
Ius novissimumcanonists such as Cavalerius, Herrera, and
Otthobono come to mind here. But with the codification of canon law in the
early twentieth-century, this practice seems to have fallen off. It's been
50 years since Charles Holbock, a Rotal advocate, published his personal
guide to Rotal jurisprudence, the Tractatus de Jurisprudentia Sacrae
Romanae Rotae. So, by making his Rotal sentences available
electronically, Msgr. Burke revives an invaluable practice, and helps
bring the wisdom of canon law to bear more effectively on the issues of
Several obstacles stand in the way of a formal canonical trial in Maciel's
case. First, such accusations, by their very nature, are difficult to
prove (that being one of the most enraging aspects of this scandal);
second, the long period of time since the alleged acts raises
serious questions (usually under the rubric of statutes of limitations)
about the prudence of attempting to adjudicate such cases at all;
third, the juridic problems associated with the excessively long list of
"affirmative defenses" that defendants can use to resist canonical
penalties (chiefly in 1983 CIC 1323-1324) are very difficult to address
during a trial; finally, in every prosecution of the elderly (Maciel is
86), prosecutors ask cui bono?
Nevertheless, I think that the CDF directive that Maciel undertake
prayerful "penance" might have greater canonical significance than meets
Under common law, one is either found guilty of a crime in a trial, or
not; thus, the possibility of, and significance of, canon law's
alternative to a formal guilty verdict and sentence is easy to miss,
especially since it (penance) sounds like something all the faithful are
called to anyway (1983 CIC 1249).
Canon 1312 § 3, setting out the basic categories of ecclesiastical
sanctions, states "Penal remedies and penances are also used; the former
especially to prevent delicts, the latter to substitute for or to
increase a penalty." In other words, the same kinds of acts or
omissions that could result in a canonical penalty can, for various
reasons, result instead in what is called a "penance". The possibility
that CDF's call here for penance is its response to canonical
crime(s) increases when one notes that 1983 CIC 1339-1340 authorize
penances for those "upon whom, after investigation, grave suspicion
of having committed a delict has fallen."
Nothing here proves the accusations against Maciel, which
he has repeatedly denied; nor does it force the conclusion that CDF
believes the accusations; in fact, we do not even know whether CDF is
using the word "penance" with a sanctions-connotation. As American lawyers
would say, there is wiggle-room in the statement, and it is possible that
today we see Maciel joining the sad list of holy men and women who, over
the centuries, have been vilified by the world and mistreated by
On the other hand, Rome is not in the habit of publicly telling
successful, high-profile Church leaders to go off and spend their lives in
private penance. It is possible that CDF examined the Maciel case, found
within it evidence of grave misconduct yet, like the farmer who discovered
weeds growing amid the wheat (Matt XIII), decided that uprooting the evil
now would harm the innocent; if so, it seems, CDF has directed Maciel to
especially prepare, trusting in the infinite mercy of Christ, for the day
when every deed, and every aspect of every deed, will be made plain to
Just last year, though, a civil lawyer published what purported to be an
extensive canonical and theological criticism of Bp. Daily's decision:
Patrick Gordon, "Gotti, Mob Funerals, and the Catholic Church",
Journal of Catholic Legal Studies 44 (2005) 253-276. (Abstract
here) When I saw the article, I turned to it with interest because I
assumed it would deal competently with a legally and socially important
topic. To my surprise and disappointment, however, the article was very
poor. Gordon, using demonstrably shabby canonical analysis, visited severe
criticism on a bishop who was acting squarely within the scope his
authority. I decided a reply was in order.
My defense of Bp. Daily's funeral decision, "Lest amateurs argue canon
law: a reply to Patrick Gordon's brief against Bp. Thomas Daily", has just
been published by the Pontifical University of St. Thomas Aquinas (Rome),
in its review
Angelicum86 (2006) 121-142. The article is
now available on my website.
I had not intended to blog about canonical penalties,
specifically 1983 CIC 1382 and its automatic excommunication, in
my earlier remarks on the Communist ordinations, but the issue keeps
coming up. Oh well, that often happens in a crisis; matters better left
for discussion in calmer times are suddenly thrust into the limelight.
Briefly, there are two very complex and controverted canonical
issues raised here: (1) what is the place of automatic (latae
sententiae) penalties in a legal system; and, (2) do Canons 1323-1324
render practically unenforceable most of Book VI, Part II, of the 1983
Code? I will not suggest an answer to either question in this blog; I'm
just alerting to folks to where the questions are.
In the case at hand, prescinding from several other worthy canonical
defense arguments, 1983 CIC 1324 § 3 says that a latae sententiae
penalty does not apply to one whose actions were coerced by grave fear
(even if it is only grave in the perception of that person), even if the
action tends to harm of souls. The
Vatican's own statement asserts what others reasonably surmised: some
of these men were coerced by Communist officials into acting as they did.
Now, I like to think that laws mean what the words say; thus, I cannot
think how automatic excommunications were incurred under these facts.
But notice, the Vatican has not claimed otherwise.
While Navarro-Valls' correctly referenced Canon 1382, he did not
state that those involved in this case had incurred the sanction.
He does not have that authority, and I frankly doubt that even the Vatican
would have access yet to the kind of canonically relevant information
necessary to form such a conclusion. Instead,
the secular media has drawn that conclusion, though in this case it's
hard to blame them for doing so. Canon 1382, the only norm cited by N-V,
sure seems to support it.
The sacramental questions raised by Communist ordinations still seem more
interesting to me, but if this crisis occasions a fresh look at the legal
problems associated with latae sententiae penalties and the
affirmative defenses in Canons 1323 and 1324, so be it.
Last thought: the more that factors such as external coercion
tend to diminish penal liability, the more it seems that questions about
sacramental validity can be raised; conversely, where there is less
interference with freedom, the more likely it is that sacramental actions
are valid and that penalties for illicit celebrations would apply.
Second thoughts on Communist
The excommunications consequent to the
illicit episcopal ordinations (1983 CIC 1382) staged by Chinese Communists
are so obvious that few commentators have mentioned them. Here I raise a
different question: In the face of some sacraments being so obviously
celebrated with no discernible pastoral sense and, in fact, driven by
little besides a "let's stick it to the Catholic Church" animus, has the
time come to step back and ask some hard questions about the canonical
validity of such sacraments?
I have suggested that the most theologically significant decision reached
by CDF under Cdl. Ratzinger was its
2001 declaration that Mormon baptism is invalid, despite eligible
ministers and recipients, and despite proper matter and form. Reopening a
debate that seemed settled since the time of Sts. Augustine and Cyprian,
Mormon baptisms are invalid apparently solely on the basis of
intention, that fifth, and in many ways most elusive, of the factors
impacting sacramental validity.
Is it too much to wonder, then, whether Communist episcopal ordinations
have crossed a similar line? Just what is a Communist's understanding of
and intention in conferring, of all things, holy orders? Remember, until a
few decades ago, similar questions on Mormon baptism seemed unthinkable,
and until a few years ago, everyone assumed they knew the answer.
Updates: May 4.
Navarrao-Valls' statement. The comment about bishops and priests being
"greatly pressured and threatened" ( I can imagine) to take part in the
ordinations raises fresh concerns, I suggest, about their validity. See
1983 CIC 125, etc.
Note: The bases upon which one can raise validity questions about
Communist episcopal ordinations without raising similar questions on, say,
SSPX episcopal ordinations, are contained in the above post, but I don't
like to spend time underscoring the already-obvious.
Analogy: Two Catholics free to marry, but under ecclesiastical
precept not to marry each other (1983 CIC 1077), and neither of them
wanting to marry the other, are forced by government officials to go
through a wedding ceremony together. Any guesses as to how many ways such
a sacramental "marriage" could be declared null? Can a similar analysis be
applied to ordination, pace contract issues?
Related issue. The problematic nature of latae sententiae
(or, automatic) excommunications is highlighted in this case. Navarro-Valls
recites both the canon imposing the excommunication and numerous factors
that would prevent the penalty from being imposed in this case (see 1983
CIC 1323-1324). That is different topic, however, except to
mention that, in this case, the factors which mitigate one's
culpability for crime seem similar to some that impact one's
intentionality for sacramental celebration.
Secular media reports about the Vatican having excommunicated those
involved cite to N-V's statement which statement, however, standing alone,
would be insufficient to declare the incurrence of a penalty in a
particular case (1983 CIC 1341).
Canon Law Discussions.
Praecipue ad usum scholarum.
I. The Formal Act of Defection.
1. It is possible (c. 124), but highly unusual, to impose, for
validity, on "rank-and-file" members of the Church, the specific
obligation of writing when they wish to achieve an effect in the
Church. Indeed, outside of a few cases involving higher-level
ecclesiastical administration, it appears that a writing requirement for
the validity of an action is virtually unheard of.
Rest of post continued off-blog.
Of those matters we know anything about (an important
qualification when discussing papal activities),
Benedict XVI's letter to the
Congregation for the Causes of Saints seems to me to be one of the
most important things he's done to date. It certainly shows the clearest
difference between him and John Paul II to emerge so far. Benedict XVI
could have communicated his concerns about the beatification and
canonization process in a simple telephone call; instead he wrote a short
treatise on the topic. The world was meant to
John Paul II, both
legally and by force of his personality, improved the Church's ability
to recognize contemporary examples of holiness. But, by
canonizing over 450 saints (more than all the popes since Trent
combined) and by
beatifying more than 1,300 men and women besides, John Paul's vital
message that the "universal call to holiness" (Lumen
gentium V) could be lived in modern times was (in the opinion
of many) being steadily diluted by an avalanche of names that, with few
exceptions, would never be recognized beyond small circles of compatriots.
Moreover, most of the examples of those living the universal call to
holiness seemed less than universal: while they came from many places
around the world, the vast majority of canonizations and
beatifications under John Paul II were of clergy and religious; of those
laity lifted to the altars, almost all of them were martyrs. But
how many examples of how to be a good nun, even in the twentieth century,
does one need? Is there really, for all practical purposes, no
way for laity to become saints except by martyrdom?
Beyond these pastoral questions, Benedict XVI's letter also communicates
some important theological points. I'll mention just one: martyrdom must
be carefully distinguished from other instances of religious persecution
and murder, even those committed against Christians, by this crucial fact:
a martyr accepts death delivered out of hatred for the Faith.
A drive-by shooting victim, shot outside of a church because the killer
hates Catholics, is not a martyr (for lack of acceptance of the death by
the unaware victim). A Catholic priest thrown into a concentration camp
because he is a priest, is a victim of religious hatred, but not a martyr
(for lack of the witness ending in death). A pious Catholic girl who flees
soldiers intent on raping the women of a village, during which flight she
is shot, is not a martyr (for lack of the soldier's hatred of the Faith).
Yes, we all know there are a few close cases such as
Maximilian Kolbe and
Gianna Beretta Molla; a blog is not the place to analyze them.
Moreover, note that each of the above examples might well describe a
saint (if not a martyr). Finally, bear in mind that once the
Church canonizes someone, we have the assurance that they are now with God
in Paradise--no matter what procedural rules were being applied at the
Nevertheless, Benedict XVI's letter to the Congregation enables us to ask
some probing questions about the canonization and beatification process
without appearing disrespectful of the worthy goals that John Paul II was,
by his lights, trying to serve.
To highlight just a few items:
Rev. Mark Pilon, though not a canonist, offers a canonically sound look
at the advantages that might accrue if we started leaving pastors in
parishes for more than a few years at a time. Msgr. John Burke brings out
catechetical imperatives in the New Evangelization (a topic very dear to
us here at
Sacred Heart Major Seminary), and the redoubtable Fr. Anthony
Zimmerman helps us unpack pastoral issues raised by the
1997 Vademecum for Confessors regarding contraception. Passing over
Dominican Fr. Girard's homilies (I'm just a layman, so what do I know
about preaching?) and Nancy Cross' critique of the New American Bible (I'm
a cradle Catholic, so what do I know about the Bible?), Mary Gillman (a
former graduate student of yours truly) writes a trenchant expose
of the latent anti-Catholicism behind the perennial attacks on Pius XII in
regard to the Holocaust, and there's an engaging reply by Chuff and
Kathenborn to an earlier HPR article on the ordination of homosexuals
(confirming that the really interesting debates occur within orthodoxy,
not outside of it). All Detroit-area Catholics know about the "Grotto",
but others might enjoy automotive engineer (!) Diane Korzeniewski's
personal, but not idiosyncratic, look at the liturgies celebrated at
Assumption Parish. There's an in-depth book review of a new text on
the Catholic Church and economics (outside of my area, but I'm glad we
have people on this) and several other useful notices, including a very
helpful look at the recent release of
St. Raymond's Summa on Marriage in English and a short
overview by Fr. Leonard Kennedy (csb) of
Judge John Noonan's controversial exploration of (alleged?) changes in
Catholic moral teaching.
Fr. Baker's editorial is a combination report/analysis on the 2005
Synod as it impacts the clergy shortage. The QA column (rats!)
and "My Favorite Priest" are missing, but the space saved thereby this
month was obviously devoted to some of the solid articles and reviews
If only for breadth of topics, not to mention fidelity of treatment, the
April 2006 HPR is going to be one tough act to follow.
Consider: either Fr. McGuire committed these acts, or he didn't.
If Fr. McGuire did not commit these acts, we have a textbook
illustration of why statutes of limitations are vital: the innocent have a
much harder time defending themselves against older accusations than
against newer, especially when the wider community is awash with examples
of similar accusations being independently confirmed or admitted. We also
see a serious gap in 1983 CIC 1390, which treats false accusations and
testimony against a priest in civil courts as, at most, simply another
kind of "injury to the good reputation of another", a description that
scarcely does justice to the viciousness of this particular form of injury
to a reputation.
But if Fr. McGuire did commit these acts, we confront an even
deeper reality: we see, do we not?, how Christ, Who makes all things new
(Rev. 21:5), can draw immense good even from people who have done evil
things. I knew Fr. McGuire briefly in the mid 1980s when he was a portrait
of priestly piety and good sense in the cesspool that was Hollywood. About
that time, moreover, Mother Teresa, no mean judge of men, had selected Fr.
McGuire as one of the very, very few priests whom she would allow to give
spiritual direction to her sisters. So, if his accusers are telling the
truth (something we willall know with certainty on the
Last Day, CCC 1038-1040), then it seems that Fr. McGuire had, by the time
I knew him 15 years later, drawn deeply on the graces that Christ
continually offers us all--in this case, to go from sexual miscreant to
profound instrument of God's love. All I can say to that is, there must
truly be hope for any of us.
I don't know which scenario is true, and I've learned that opining about
the truth in these kinds of cases is pointless, or worse. But can we not
say at least this much: If Fr. McGuire goes to prison for crimes he did
not commit, he certainly (a) won't be the first priest in Church
history to do so, and (b) will minister faithfully to whomever he meets.
And if Fr. McGuire goes to prison for crimes he did commit, he
(a) will doubtless apply his suffering under this world's rough justice
against whatever he might owe before God's terrible tribunal, and (b) will
minister faithfully to whomever he meets.
Either way, I want to be in his prayers.
Update July 29: Fr. McGuire has been sentenced to seven
years in prison and a long period of probation. His conviction is under
appeal. His commented at his sentencing "Your Honor, you are looking at an
innocent man, innocent of the heinous crimes of which I was accused."
I have long argued that the statutes of limitations in canonical criminal
cases (see 1983 CIC 1362-1363) were too short, but I have never supported
changing them to enable prosecution of past canonical crimes; too
many innocent people are required to defend themselves under circumstances
where their ability to do so is seriously weakened.
By the way, those who manage to hide their crimes until a statute of
limitations has run do not escape punishment. They merely transfer it to a
realm wherein mercy has no power to mitigate justice.
Pontifical Commission for Legislative Texts has just issued a
"Notification" that makes it more difficult to conclude that a given
person has "defected by a formal act" from the Catholic Church. The
Notification raises some thorny questions for canonists which need to be,
and will be, addressed elsewhere; here, I only point to a strength in the
Notification that rank-and-file Catholics are likely to overlook.
The Notification (para. 2) rejects an understanding of "formal defection"
that would accept as proof of formal defection those curious documents
that dioceses around the world get from time to time (in my experience,
they were all from Germany) whereby the local bishop is duly informed that
so-and-so, baptized in his diocese, has renounced before a government
official his or her Catholic identity--and thereby gets a religious tax
St. Paul, I suspect, will have some rather strict things to say to such
folks on Judgment Day, but personally I hesitated to read these documents
as anything more than money-saving schemes filled out by lazy and/or badly
catechized Catholics. That hunch (and I think it was widely shared) now
seems verified by the Pontifical Commission, which clearly views formal
defection from the Church as an action much closer in character to
apostasy, heresy, or schism, than one comparable to a
"fill-out-the-form-and-save-a-few-euros" gimmick. I think that's good.
Some other important issues raised by the Notification are best discussed
elsewhere, but perhaps one more quick observation is in order: Because it
is now clearly harder to prove that a given Catholic has defected formally
from ecclesiastical communion, that means that the number of Catholics
still bound by the requirement of canonical form (1983 CIC 1108 and 1117)
for marriage is higher than some might have thought, which in turn means
that more "marriages outside the Church" can be found null for violating
canonical form. My impression is that US tribunals had already adopted a
narrow reading of "formal defection" to begin with, so the actual impact
of this Notification on raw numbers in US marriage cases will be small,
but to the degree the Notification has any effect in this area, it would
be to increase, not decrease, the number of annulments.
Here's another question: Catholics have a "proper pastor" in their bishop
(1983 CIC 369) and in their parish priest (1983 CIC 515 Â§ 1). It
is not clear to me, then, how at least two distinct men, who obviously
need not agree in their reading of the facts in a specific case, are
simultaneously "uniquely qualified" to decide whether a given act counts
as a "formal defection" (Notif. para. 5). Moreover, the use of the word
"Ordinary" in para. 5 still has the feel of "diocesan bishop" about it,
despite 1983 CIC 134 underscoring that when canon law means bishop,
it will say "bishop".
As I suggested above, there are several other questions occasioned by this
Notification, and time will doubtless help us sort them out. In the
meantime, here's one for the dogmaticians: Is the phrase "Semel
baptizatus, semper baptizatus" (which the Notif. para. 7 clearly and
correctly upholds) identical in meaning to "Semel Catholicus, semper
Catholicus"?; and another for the Church historians: "Would most
(indeed, would any?) of the 16th-century Reformers have been
considered to have "formally defected" from the Church under this
Back in Lent of 2003, Bp. John Botean, Romanian Catholic
Eparch of Saint George in Canton OH, issued a
startlingly specific condemnation of Catholic participation in the Iraq
War. I thought then, and still think, that such a statement could not
simply be issued and forgotten. The eparch's letter raised too many
important issues for that to be its fate. I
blogged to this effect on March 18, 2003 (updated March 20) calling
attention to, and expressing serious reservations about, Bp. Botean's
statement. Unfortunately, it appears that his letter, despite provoking
serious questions on the use of canonical and moral authority, has
been--at least at the hierarchical level--ignored.
Some time later, John Sharpe began assembling an impressive array of
thinkers opposed to the Iraq War and, for obvious reasons, included Bp.
Botean's letter in his collection. Despite my clear reservations about Bp.
Botean's comments, Sharpe contacted me and asked permission to include my
critique of Bp. Botean's comments in the book he edited,
Neo-Conned! Just War Principles: a Condemnation of the War in Iraq
(HIS Press, 2005). Happy to cooperate with those trying to make a
serious contribution to public discourse, notwithstanding my disagreement
with some of their positions, I gave that permission, and my essay on Bp.
Botean's letter appears in Neo-Conned.
Since then, various promotional notices of Neo-Conned and
some early (perhaps necessarily superficial) reviews of the book have,
quite correctly, listed me as a contributor to Neo-Conned, but in
a way that makes me feel like an usurper of the praise that those who
agree with the book's major premise want to give its contributors, while
simultaneously being presumed guilty by those opposed to the book's
argument in that I published in Neo-Conned. Oh well, over time
people will read Neo-Conned itself and form their own conclusions
about what I did, and didn't, write.
Having said this much, though, and for what it might be worth, on the Iraq
War I fall, if anywhere, in a very narrow no-man's-land. I say "if
anywhere" because I have not really "taken a position" (whatever that
exactly means) on the war for the simple reason that ordinary citizens
(and I am unusually ordinary) generally do not have the information
necessary to form persuasive opinions on such matters. Specifically, I
think that Just War principles are primarily intended to inform
governmental leaders in their decision-making (CCC 2309); the
criteria by which we citizens relate to the government are distinguishable
in a number of respects.
In any case, here in no-man's-land, we happy few think that a plausible
case can be made for the United States to have invaded Iraq to rid that
people of their mass-murdering, war-mongering, terrorist-abetting,
eco-terrorist dictator Saddam Hussein, but that our staying there to try
to establish a parliamentary democracy in a land with no 'democratic
infra-structure' is, well, less plausible. I admit to being surprised that
this reasoning finds so little resonance with others; it makes me wonder
whether I/we have missed something important, but, there it is.
In any case, my comments about Bp. Botean, on my blog and in
Neo-Conned, are only about the eparch's canonical and moral
reasoning, on which topics I have some special qualifications to speak,
and not about US participation in the Iraq War, on which matter I have no
special qualifications with which to opine.
The discussion of this issue grew rapidly, and so I'm going to be moving
it over to my CanonLaw.Info website later. In the meantime, a very
thoughtful letter arrived from a seminarian asking questions about this
case in a way that seemed to warrant answering from a seminary professor
(albeit at a different institution). On the chance that his questions and
my answers would be interest others, I am posting them (edited down).
I am a seminarian and am very interested in Canon Law. I believe that in
its proper application there is much wisdom contained.
Amen to that.
Bp. Bruskewitz says in his release that the "Diocese of Lincoln is and has
always been in full compliance with all laws of the Catholic Church." I
assume that Bp. Bruskewitz knows that the charter has been given the force
of particular law in the USA. Careful here,
you're confusing the Charter with the Essential Norms. I made the
same careless confusion myself in my earliest posts (see below), so I know
how easy it is to do. Ironically, even some of Bp. Bruskewitz's abler
advocates have called both the Norms and Charter "particular law"
(although I do not think the bishop ever confused them), so there is (or
was) apparently plenty of misspeaking on this. In any case, we all
(including me!) should be clear: only the Norms qualify as particular law,
not the Charter.
Could he be asserting that he does not believe that the charter can be
enforced? The "enforceability of law" is a
complex issue but, while interesting, I don't think it is raised by these
facts. You see, everyone agrees that Norms are law, most bishops recognize
at least some degree of appropriateness in the Charter, and even
Bp. Bruskewitz has said that if the Charter became law, he would
abide by it. So enforceability per se is not an issue. I
understand Bp. Bruskewitz to be saying that the Norms are law (which they
are) and that he has followed them (the verification of his assertion
being a separate matter). He says that the Charter is not law
(which it is not) and therefore he does not even have to recognize its
existence or that of the USCCB's National Review Board (which is a
different and debatable assertion).
The National Review Board and other agencies established by the charter by
their nature interfere in the divine right of bishops to govern (ref.
Letter from Dr. Ewers "Though their governance authority is fully
understood by the Board"). I think I know
what you're saying here, but I doubt anything "by its nature" interferes
with the divine right of bishops to govern. Some things in practice
might cause interference, and that needs to be looked at (as we do below).
But Dr. Ewer's letter does not concede that the NRB to which she has been
appointed "by its nature" interferes with legitimate episcopal authority.
Indeed, as I noted below, this audit-survey was clearly authorized by the
USCCB, which authorization included a direction to publish the names of
those not in compliance with the Charter. But as to whether that
authorization could then be parlayed into authorization to call for
bishop's "fraternal correcton", and whether such a call would justify in
turn the kind of response it received from Bp. Bruskewitz, well, surely
reasonable minds may differ.
The National Review Board and other agencies would represent a separate
authority in his diocese making the Bishop answerable to another group in
his governance other than God and the Holy See.
Depending on what we mean here, this answer
could go a few different ways. But first, it is not true that a bishop is
answerable only to the Holy See in the governance of his diocese. You will
learn in courses on diocesan structures and supra-diocesan structures that
bishops must be responsive, for example, to civil law in a whole host of
matters (begin with 1983 CIC 22), to episcopal conference authority over
some 40-80 canons, to metropolitans and patriarchs in a few areas (and
historically, suffragan bishops were subject to intermediary prelates in
many respects), and even to some local ecclesiastical bodies such as the
diocesan finance council and the college of consultors (see, e.g, 1983 CIC
1277). Even the notion that bishops respond to the "Holy See" can be
misleading insofar as it assumes that the "Holy See" speaks to bishops
with one mind and one voice in clear and consistent terms. In brief, the
perception held by some that there is only a bishop-straight-to-the-pope
authority structure in the Church is an over-simplification of reality,
and is not supported by law or history.
About your comparison of two kinds of reports, ad limina versus
National Review Board, what are the theological and ecclesiological
reasons that would allow the USCCB or the NRB to demand anything of a
diocesan bishop as opposed to the Holy See. I think we've addressed that above, no? If
not, keep reading!
But there is still a question here.
Everyone agrees that the Norms are law, and that the Norms require bishops
to undertake certain independently verifiable actions. What is not clear
(to me anyway) is whether the audit, conducted under the aegis of the
Charter (following an admittedly overly complex schematic of offices
and mandates), which audit was refused by Bp. Bruskewitz, is the USCCB's
mechanism by which a bishop's compliance with the Norms is verified. If it
is, then would not a bishop's refusal to respond to the audit, at least in
regard to questions concerning the Norms (and I showed below some examples
of where that happens), amount to a refusal to offer verification of his
compliance with the Norms? I phrase this as a question, since it possible
that Bp. Bruskewitz has offered verification of his compliance with the
Norms in some other way. The USCCB would know whether Bp. Bruskewitz has
complied with all the Norms.
The Holy Father by reason of his office as universal pastor can demand
things, Yes, of course, as per 1983 CIC 331
but the USCCB does not have an office as such.
Well, but the USCCB does have
authority to bind member bishops in certain matters, as I said, in that
the 1983 Code gives it authority in roughly 40-80 areas of canonical and
pastoral concern. Also, with the Holy See's approval, an episcopal
conference can make additional demands on diocesan bishops under 1983 CIC
455, and that is what happened in regard to the Norms. Note that the Holy
See's approval of the USCCB Norms does not turn conference legislation
into papal legislation. It remains conference legislation; that's why we
call it "particular" (as opposed to "universal") law.
I understand that the charter [Norms]
has become particular law in the United States, but what is the ordering
if another law of the church is contrary to the particular law?
The general rule is, of course, that law
emanating from lower authorities that is in conflict with law emanating
from higher authority must yield to that higher law.
Can a person point to internal contradictions in the law and say which
governs? Again, it depends on what one means
by "say". I might well think that a lower law being imposed on me
conflicts with a higher law, but I probably do not have the right to
exempt myself from the lower law while I take my case to higher authority.
(Leave aside hard cases where something gravely contrary to natural law is
being commanded.) Besides, I might be sincerely but seriously mistaken in
my reading of the lower law, or I might be partly right and partly wrong.
You can see that allowing each subject of a law to decide which laws apply
to him or her would quickly lead to chaos.
The present case makes this question basically moot, though, because the
Charter is not law at all, and the "particular law" in the Norms
has already been approved by the Holy See. Time will tell whether any of
the drafting infelicities in the Norms need to be repaired, but it would
be hard to argue that the Norms already approved by Rome constitute a
grave interference with various canons on episcopal office approved by
Rome. That's what the extended, pre-approval consultation back in 2002 was
all about, heading off such conflicts.
Dr. Peters, I appreciate your attention to my questions. I want to express
in advance my gratitude any time you would be able to put toward advancing
the education of a seminarian. Hey, that's
what we're here for. Oremus pro invicem.
----FROM HERE ON DOWN, THE POSTS APPEAR CHRONOLOGICALLY, FROM FIRST TO
LAST. I'M LEAVING THEM UP AS FIRST APPEARED, MY OWN MISTAKES INCLUDED, TO
LET PEOPLE SEE HOW THE ISSUES EMERGED AND, I HOPE, EVENTUALLY IDENTIFIED
THE CORE QUESTIONS AND THE SALIENT RULES TO BE APPLIED.----
I should have known we'd never fit this all into one blog entry. Below are
really four entries, I, II, III, IV.
Bp. Bruskewitz is a dynamic leader who loves the diocese committed to his
care and the Church universal. I think that I am as zealous for the
ecclesiological prerogatives of a diocesan bishop facing a huge episcopal
conference and its lay staff as anyone who is not a bishop himself can be.
Nevertheless, some serious questions about a bishop's duties under
universal and particular law are being raised here.
The USCCB's Charter is not simply a list of good, or least not
bad, suggestions. Whatever weaknesses there still are in the
surely there are some--the fact remains, it constitutes what canon law
calls "particular law" (1983 CIC 455) for the United States. It was
approved overwhelmingly in
2002 by the US bishops and
then by Rome (specifically the Congregation for Bishops, albeit after
extensive discussions); it was reissued in
2005. As "particular law", the Charter is binding on all the
bishops in the US, not just on those who voted for it, and not just in
regard to those parts with which a bishop agrees.
No one seriously thinks that the Diocese of Lincoln is trying to hide
anything here. But Bp. Bruskewitz's statement goes beyond expressing
refusal to implement the Charter (at least those several parts
that are not already required by Nebraska law or the 1983 Code of Canon
Law). It goes beyond refusing cooperation with the annual self-audit that
was mandated by the Charter (the results of which occasioned
O'Donnell Ewer's remarks). Bp. Bruskewitz is plainly rejecting the
legitimacy of the USCCB Review Board itself and the policies it is
mandated to coordinate. Regretfully, I don't see how else to put this: Bp.
Bruskewitz is defying legislation that was legitimately passed by the
episcopal conference and which received Rome's considered and express
approval. And I think that's a problem.
Three quick questions, one more significant one, and a thought.
Is Bp. Bruskewitz the first bishop who needs "correction"? What about
bishops X and Y and Z? I think a number of bishops deserve, at the
least, "fraternal correction" in regard to one or more aspects of the
clergy sexual abuse crisis, but I have no special insight as to who
deserves it first, or more, etc.
What about the bishop's charges of bias on the part of the Board?
Many people have expressed misgivings about some of the persons serving on
the Board. That is a fair, but separate, question from whether they hold
legitimate offices and have real authorization to undertake certain acts.
We often make the same distinction (that is, between the person holding
the office and the office being held) when we discuss bishops.
What do you think of the tone of his letter? People can assess
that for themselves. Lawyers have no special expertise on the tone of
Are audits required under the Charter? The audit (a term I do not
like) that Bp. Bruskewitz has refused comply with is expressly authorized
by 2005 version of Charter (Art. 9). It follows two previous audits
conducted under, but not expressly called for, under the 2002 version of
the Charter. Implicitly under the 2002 Charter, and
explicitly under the 2005 Charter, the USCCB has established
norms for the conduct for bishops and has authorized a particular body to
investigate and report on the compliance of bishops with those norms. Bp.
Bruskewitz refuses cooperation with that verification process, rendering
nugatory the attempt to verify compliance with the law.
Unfortunately, Bp. Bruskewitz did not limit his response merely to
refusing cooperation with the audit process. He has asserted, among other
things, that Board has no legal standing in the Church, that its Chair has
no authority of any sort, and that he recognizes no requirements to act
beyond the requirements already found in civil and canon law. There are,
however, a number of provisions in the Charter that are not
found in canon or civil law, such as appointing diocesan review boards,
running safe environment programs, having printed procedures for making
abuse allegations, and publicizing policies. Bp. Bruskewitz seems to be
rejecting all of these provisions--even those of very easily demonstrated
A thought. If Bp. Bruskewitz, who arguably "needs" the
Charter less than most other bishops in the country, is concerned
that it is the thin wedge by which a serious encroachment into episcopal
authority is being made, he should take his case to Rome, specifically, by
asking for a dispensation from the Charter or an indult of
exemption. He is a smart man with proven record of orthodoxy. He would
certainly get fair hearing on such an important concern, have the chance
to make his arguments calmly, and be able hear Rome's necessarily wider
view of the situation. More to the point, he would avoid coming across as
projecting an above-the-law mentality as do so many others.
A welcome admonition from a monsignor who thinks I have
not clearly enough distinguished above between the "Norms" and the
"Charter". There is indeed some equivocation out there on this (in part
because the Norms and Charter seem to overlap on various
substantive points, and it is not always clear as to which rubric a
question is being raised under). The 2002 Norms were approved by the USCCB
and Rome. The revised 2005 Norms have been approved by the USCCB and
(apparently) sent to Rome for approval. Both of those sets of norms
contain a number of provisions that go beyond civil law and the 1983 Code.
The USCCB has the right and duty to verify that bishops are complying with
the particular law of the Norms. The National Review Board, operating
under the Charter, seems to be the way the USCCB wants to conduct
that verification process. But the point is arguable.
We need to recognize that the Norms and the Charter were drafted
in the midst of a disgusting crisis that had festered far too long and was
consequently being addressed under the glare of hostile media attention
and the approaching catastrophe of litigation that was sometimes scarcely
distinguishable from plunder. Not surprisingly, the Norms and the
Charter (as I indicated above) suffer from drafting ambiguities, both
substantive and procedural, and that those need to be clarified.
But for now, Bp. Bruskewitz takes the position that nothing in the
Charter needs to be clarified because it is not particular
law, and therefore anything or anyone associated with it is irrelevant.
What is there to clarify about a non-entity? But are the Charter
and the National Review Board really non-entities, or are they the
(perhaps inadequately defined) mechanisms by which the USCCB verifies
compliance with the Norms of particular law? And in any case, what in Bp.
Bruskewitz's statement above indicates how his compliance with
the Norms is to be assessed--well, beyond accepting his word as a man of
Every five years, in compliance with Canon 399, Bp. Bruskewitz sends to
the Holy See a quinquennial report on the state of his diocese; doubtless
there is cause for rejoicing when the Lincoln report arrives. A
quinquennial report is a way that developed over the centuries to verify
that things are going as they should and to spot areas that need
improvement in local Churches. But I wonder whether the requirement for
such reports was perfectly articulated when norms for them first appeared
in the 18th century; I wonder whether there was some good ecclesiological
back-and-forth (perhaps taking place behind closed doors) about why such
reports were necessary, even appropriate. But over time, the law was
clarified and the requirement was accepted. Perhaps Bp. Bruskewitz's
strenuous objections to reporting to the USCCB about certain matters in
his diocese will occasion clarifying the appropriateness, and even the
necessity, of diocesan reporting on matters of extraordinary national
interest in the future.
April 2: I am reminded of the little town that only had
one lawyer. Poor fellow almost starved for lack of business. Then a second
lawyer moved to town, and they both made a nice living. You can read
canonist Pete Vere's April 1 and April 2 comments, largely disagreeing
I agree with Pete's comments in several places. But, among other points:
1. Pete defends
Bp. Bruskewitz's 2004 refusal to reply to the John Jay Survey, but of
course the John Jay survey is different from the audit authorized by the
2005 Charter. By my count, there are at least five offices and/or
tools (National Review Board, Office of Child Youth and Protection, Gavin
Group, CARA, and John Jay College) conducting USCCB-sanctioned surveys,
studies, compliance audits, etc. That's crazy; no wonder if a bishop feels
he's had enough of such overlapping inquiries. The JJC survey seems the
least obligatory of them all. Anyway, because a bishop needs no
reason to decline participating in it, we needn't debate the ones Bp.
So, on to the Office of Child Youth and Protection audit that occasioned
the present debate:
2. Pete quotes only the first paragraph (of three) in Article 9 of the
2005 Norms to demonstrate the advisory role of Office of Child Youth and
Protection. The paragraph he quotes supports his argument. But in support
of my claim that the audit they conducted was authorized, as was
their publishing the results, I cited (above) to all of Article 9. Now,
the second paragraph of Article 9 states:
"The [OCYP] Office is to produce an annual public report on the progress
made in implementing and maintaining the standards in this Charter.
The report is to be based on an annual audit process whose method, scope,
and cost are to be approved by the Administrative Committee on the
recommendation of the Committee for the Protection of Children and Young
People. This public report is to include the names of those
dioceses/eparchies which the audit shows are not in compliance with the
provisions and expectations of the Charter."
It is on the basis of this second paragraph of Article 9 (not
quoted by Pete) that I say the audit which Bp. Bruskewitz declines to
answer was authorized by the USCCB, and that there was
authorization to publish the results, including the negative ones. An
episcopal conference does not need Rome's permission to ask its members
questions or to publish the results. I recognize that this is a separate
(though I think, still open) question from whether a bishop is required to
answer a given audit. For that matter, I see no language (anywhere) that
authorizes the Review Board Chair to publish a call for a bishop's
"fraternal correction" for not participating in an audit, although the
case for such an comment would begin with 1983 CIC 213. Also, USCCB
President Bp. Skylstad apparently reviewed and General Secretary Msgr.
Malloy approved the report for publication, including O'Donnell-Ewers'
call. One should not read too much into such official awareness of
O'Donnell-Ewers' position, but it does not appear that she blind-sided
conference officials with her remark.
3. Finally, there still seems to be the basic question as to how Bp.
Bruskewitz, who recognizes the obligatory character of the 2002 Norms,
demonstrates his compliance with those requirements without replying to
the audit. Compare, say, 2002 Norms 1-4 with Article 2 of the Charter, and
you'll see how very much overlap there is between the Norms and the
Charter in those areas. Has Bp. Bruskewitz satisfied the USCCB that he is
in compliance with its Roman-approved particular law (i.e., the Norms, not
the Charter) in this area in some other way? Perhaps so;
individual canon lawyers have no special access to such information
(that's one of several reasons why calls for us to take our concerns on
this and other matters to, say, the Roman Rota are so silly; canon lawyers
are not little attorneys general.)
How to sum up? After decades of real or perceived inaction in the
face of growing evidence of clergy sexual abuse of minors, the USCCB has
recently reacted with a plethora of rapidly organized responses to reverse
its real or perceived inattention. Notwithstanding some strengths, these
efforts are, in my opinion, inadequately defined and poorly coordinated.
Some of them are obligatory on bishops, some are optional; some are
necessary or at least helpful, others are redundant, intrusive, or open to
misuse. They all occasion genuine questions of conference vs.
diocesan authority (the answers to which questions, all agree, have
implications beyond that of the current abuse crisis). Controversies about
major matters do not always surface in neat, refined, and polite ways,
even in the Church. But we are, I trust, committed to finding the answers
as quickly and as cordially as possible. I hope my own blogging on this
has given those who need to make the decisions here some better awareness
of the issues involved.
Oh, and folks, don't ever let disagreement among canon lawyers worry you.
Rudimentary familiarity with Church history, the last decade's, or the
last millennium's, will find many more serious disagreements than this
one! In any event, tomorrow's Monday, and it looks like this canon lawyer
has raked in all the megabucks he's going to make on this file. It's time
to go on the next big case. (Pete, do you know where we turn in our
billable hours for this?)
posted by Dr. Edward Peters
Friday, March 31, 2006
The Lenten foot fight
At just over
1,100 words, my remarks on the annual controversy over who should have
their feet washed on Holy Thursday came in a bit long for a blog (I try to
keep blog entries under 500 words, pace my Bp. Bruskewitz blog,
which morphed into five distinct entries and was sent over to my blog
archives). My thoughts on the foot-washing controversy are posted if you're
Lenten foot fight: it's time to resolve the mandatum rubric
that Tom Cruise and Katie Holmes are just two terribly catechized
Catholics who don't have the faintest idea what it really means to be
"married in the Church." That would explain how they (and the clueless
media) could even be talking about their "being engaged" despite Tom's two
previous putative marriages (c. 1085) and his apparent apostasy (cc. 751,
1071) to Scientology on the one hand, and the stress of Katie's metapublic
pregnancy and her own dalliance with Scientology on the other. The point I
wish to address, however, deals not so much with them, as with their baby,
due shortly. As things stand now, their baby cannot be licitly baptized in
the Catholic Church.
In order for a baby to be licitly baptized in the Catholic Church, there
must be what canon law calls "a founded hope that the child will be
brought up in the Catholic religion." (c. 868). It is a common and
defensible pastoral practice to delay the baptism of any baby born to
Catholic parents not married in the Church which, last time I checked,
described TomKat's status. But to that concern, one must add Tom's
vociferous commitment to Scientology and Katie's obvious interest in it.
If these facts don't add up to just cause for delaying the Catholic
baptism of this child, then, nothing would.
Obviously, this norm is not designed to punish a baby for something beyond
its control, but rather, to impress upon Catholic parents the importance
of what they and their child are undertaking, and to give some assurances
that the child will have serious assistance as he or she grows into the
fullness of Christian life. Admittedly, at some point, the child's right
to baptism will outweigh the parents' duty to provide a Catholic
upbringing, but that point is several years down the road at least.
G'ma Holmes has been reported as saying that she will baptize the child
herself. Well, unless her grandbaby is suddenly thrust into danger of
death (cc. 861, 867) such an action would be gravely illicit on her part.
Her conferral of baptism would probably be valid (c. 850), but it would
still represent a disregard for a host of canons that emphasize
parental duties and the proper role of ordained ministers
for this crucial sacrament. Nor can G'ma claim hers was only a "temporary"
baptism (till her daughter comes to her senses) or a "conditional" baptism
designed to last until an "official" baptism could be conferred. I've
heard both of these theories (and others) floated by grandparents
distressed that their grandchild is being deprived of what they saw to it
was offered to their own children. But, honest sympathies aside, that is
not what law or sound sacramental theology hold.
And yes, the rules on baptism are the same for everybody here, not just
super-celebrities whose lives so often seem like textbook examples of how
not to go through life.
Canon 401 says that bishops "are requested" to resign their offices at age
75. Admittedly, a "request" from the pope (albeit in the form of a canon)
is not lightly declined, but it's still not like canon law compels bishops
to retire at 75. Indeed, the legislative history of 1983 CIC 401 shows a
very clear ratcheting down of the "obligation" to resign. See
Peters, Incrementa 364.
Cardinals, moreover, retain the right to vote in papal conclaves until age
Intro) and the recent practice has been for them to stay in their (arch)diocesan
leadership positions until then; also, many cardinals in Vatican
dicasteries stay in office well past 75 notwithstanding Canon 354 and ap.
con. Pastor bonus art. 5, 2 (see, e.g.,
Current Eligible Electors).
But the main reason we will see fewer arch/diocesan bishops retiring at 75
is practical: there is a serious shortage of good men, and a vacant see (USA
worldwide) is a bigger problem than is a see held by a man who is over
75. Doubtless, elderly bishops deserve to retire; privately, I imagine,
many of them want to retire. But the Church cannot afford to let them go.
The bishop crunch is in full swing, and it will be with us for quite some
E. Peters, "The coming bishop crunch" Homiletic & Pastoral Review
(Nov. 1995) pp. 15-19.
For these reasons, 1983 CIC 354 and 401 have become laws that are
routinely ignored under circumstances where their enforcement would be
easy. In this case, it is better, I think, simply to change the laws,
rather than to cause more people to wonder what the force of exhortative
canons really is in the 1983 Code.
Although endowed with no special jurisdictional authority, there are
actually five patriarchates in the Roman Church: Jerusalem, Lisbon,
Venice, the West Indies, and the East Indies (Johnson, CLSA New Comm
577). In addition, there are perhaps two dozen "primates" in traditionally
Roman-rite countries, although they have little to no governing authority
as such (1983 CIC 438).
But the reductio ad obscuritatem that befell the western
patriarchates (which were originally associated with their strategic
locations as the New World was discovered) might have been a consequence
of the fact that, when the pope himself is the patriarch in the
west, what matters who else might have such a title? But therein lies the
point: the pope no longer is the Patriarch of the West.
Might this development over time (admittedly, likely measured in
centuries) allow for a redevelopment of a functioning patriarchate system
in the West? Perhaps Lisbon's day or Venice's has passed, but what about,
say, Mexico City? or Chicago? or Manila? or even (let's really dream) Hong
Kong? For that matter, might some currently quiescent primatial sees begin
to exercise once again a real leadership role in their nations or regions?
Or are we happy that there are no effective ecclesiastical structures
between individual diocesan bishops and the Holy See, save for the
bureaucracies of national episcopal conferences?
known that there's nothing like real life to force the clarification of
canonical and theological matters or, perhaps better in this case, to send
one back to "the approved authors" for their answers to our questions.
What is new is the ability of the blogosphere to ask questions in public
that hitherto would have been (and perhaps should have been) researched
more discreetly first.
A few days ago, in tracking down some issues raised by
the Phoenix Case (see immediately below), I came across a comment by
the esteemed Nicholas Halligan, op, (Administration of the Sacraments)
to the effect that unless the Sacred Species is/are swallowed,
one does not "receive" the Eucharist; put another way, unless Communion
(under either form) is taken into the stomach in the manner of food or
drink, one has not received Our Lord.
The implications of this interpretation, if it is correct, in the Phoenix
Case would be obvious: the boy's manner of reception would not be
sufficient to allow him to make Communion; but the implications for wider
pastoral practices could be much greater. Two examples: (1) the
administration of the Eucharist in the form of a drop of Wine to the
moribund might not be administration of Communion to them after all; and,
(2) the practice of tens of thousands of persons receiving the Eucharist
under both forms at Sunday Mass--which such persons do in the minutest
amounts in order to leave some for others--might not even be a reception
[of the Precious Blood] if there is not enough actually taken in to
swallow it to the stomach.
In any case, I did not update my own post with this finding because
Halligan gave no cites by which one could verify his assertion (even
though he said his was the common view) and I am disinclined to raise
disturbing questions without more research. But, I had not anticipated the
"DB", posting over at Jimmy Akin's blog. (You'll need to scroll way
down past some distressingly off-point comments.) DB has located support
for (what I am presenting as) Halligan's thesis in Jone-Adleman, Prummer,
Roberti's Dictionary, and even the Baltimore Catechism. All of
those individuals are highly approved authors, meaning that Halligan's
claim has some very good support.
To be sure, more research has to be done before forming any definite
conclusions here, and still other good questions are clearly being raised.
But so far, these findings seem to lend more support to the bishop's
decision that the manner of Eucharistic reception in this case was not
acceptable, and should serve to remind all that simple questions often do
not have simple answers.
Update, March 15: Bp. Olmstead has just pointed out what
the MSM certainly missed, namely, that he has not denied anyone Communion
here; what he has done is to say that the practice attempted here
is not Communion, and therefore cannot be continued.
Click here for the story. More clear thinking, if you don't mind my
saying so, from a canon lawyer bishop.
According to published reports, Bp. Olmstead of the Diocese of Phoenix
has stated a 10-year-old, moderately-to-severely autistic boy should not
be given Communion until it is demonstrated that the boy can receive the
Host (which he apparently does reverently for some seconds) without then
spitting it out (due to its texture which the boy's condition makes
intolerable for him). Other shapes and sizes of Hosts have been tried
without success, as has offering him the Eucharist under the appearance of
Wine. Till now, the boy's father has been taking his son's Host and
consuming it himself, an obviously loving act intended to facilitate his
son's desire to receive Communion and preventing an immediate (objective)
sacrilege to the Eucharist.
A complex of canons builds a strong case in favor of reception of the
Sacraments (1983 CIC 213, 843, and 912, to name some), and persons with
special needs deserve extra efforts at accommodation (See, most recently
in a considerable literature in this area, P. Vere, "Calling God's special
children to holiness: sacramental access for the mentally and cognitively
challenged", Canon Law Society of America Proceedings 66 
But a clear canonical preference for sacramental access, augmented by the
special needs persons deserve, does not amount to a "reception under
any circumstances" rule. There are other important values that need to be
considered here, and some of these necessarily guard against the
profanation (intended or not) of the Eucharist. Both the parents and
pastoral ministers in this case have, it seems, sincerely tried to find a
way to let this boy receive the Eucharist and avoid profaning the Host.
Still, the bishop, among whose duties is to monitor the celebration of the
Eucharist in his territory (See, e.g., 1983 CIC 389, 392, and 838), has
determined that those efforts were not successful. That is a reasonable
conclusion within the scope of the bishop's authority. The situation is no
one's fault, but it does mean that parents and parochial
ministers will have to think of something else.
In the meantime, no one should doubt the good will of anyone involved in
this difficult case; and there is certainly no question but that Christ
will help all find the right answer in time.
Update, March 08: 1. Jimmy Akin, proffering no final
answer here, has some
theologically sound observations on the notion of "reception" of the
Eucharist on his blog; 2) The Vere article cited above is similar to
another available on-line, I. Burgess & P. Vere, "The canonical rights of
God's special children", Homiletic and Pastoral Review (April
2003) 61-66; 3) a few people have opined that I obviously haven't the
faintest idea of what it's like to raise a special needs child. To that
may I say, my experience (if any) of raising special needs children is not
relevant to my ability to explain the canonical issues raised in
this case, but anyone with rudimentary research skills can easily
whether such a characterization of me is accurate in the first place.
Reports are circulating that Pope Benedict XVI is exploring ways to
bring the followers of Abp. Marcel Lefebvre (d. 1991) back into full
communion with the Catholic Church; in other words, that the pope is doing
one of the main things that popes are supposed to do, trying to heal
divisions in the Mystical Body of Christ. But this process and its outcome
are not completely under the control of Pope Benedict.
In 1988, Abp. Lefebvre and four bishops he ordained were
excommunicated by Pope John Paul II for violating 1983 CIC 1382. The
resulting SSPX has never acknowledged the efficacy of this papal act and
has called for the Holy See to repudiate the excommunication as a
prerequisite for reconciliation talks. According to canon law, however,
excommunication cannot be remitted unless the offender has "withdrawn from
contumacy" (1983 CIC 1358 § 1). It is difficult to see how one can be
considered to have "withdrawn from contumacy" (see 1983 CIC 1347 § 2) when
one denies there is any contumacy to withdraw from in the first place. So,
what to do?
As I see it, there are only three options here: either the Holy See
decides that John Paul II's decree of excommunication was insufficiently
grounded in law and/or fact, and on that basis it lifts the penalty
without addressing the merits of the situation today; or, the SSPX
leadership somehow acknowledges its wrong-doing and repents sufficiently
to allow lifting of the penalty under 1983 CIC 1358; or the SSPX remains
fixed in its position and the excommunication remains in place while talks
continue—or not, as the case may be.
The first option has the proverbial snowball's chance of ever happening; a
fourth option (that the SSPX remains contumacious of the penalty, but the
pope simply lifts it anyway) is not realistic: Pope Benedict XVI cares
about truth, even when the truth hurts.
I can only imagine how much this schism pains Pope Benedict XVI, of all
people. Oremus pro invicem.
Follow-up: What about all those comments from Vatican
officials that the SSPX is not in schism? Isn't that a way a preparing us
for the repeal of JPII's decree without a retraction from the SSPX?
Distinguo: The SSPX membership has never (to my knowledge)
been declared to be under a penalty; its leadership (the
surviving bishops) have been so declared. It is their canonical status
that is at issue just now; other things are certainly related, but
canonically distinct. In short, one problem at a time.
Mainstream Media reminds me of a stopped-clock. Basically useless, except
twice a day when it happens to be right.
The spin on the pope's annual
January address to the Rota is that Benedict has called for "speedy
annulments". I doubt it. He knows juridical procedures are about truth
first, and alacrity only insofar as it does not interfere with accuracy.
That said, the pope might well have spoken against the unseemly delay in
reaching matrimonial decisions that persists in certain parts of the
world. But then, in calling attention to the right in justice
that persons have to know their status in the Church, Benedict would only
be following the lead of Pope John Paul, who made the same point several
1984 and 1986)
When I get an official version of the January address, I'll try to comment
Update: In the meantime, here is a summary from the
Groupe des canonistes francophones de Belgique (sans diacriticals,
sorry): "Le Pape entend depasser l'opposition apparente entre deux
approches des nullites de mariage : la perspective pastorale du dernier
Synode et la perspective juridique de l'Instruction Dignitas Connubii.
C'est l'amour de la verite qui est presente comme une voie d'analyse
correcte, avec diverses consequences, comme l'objectivite des juges, le
respect de delais raisonnables, mais aussi une meilleure preparation au
Schiavo, while married to Terri Schindler-Schiavo, cohabited for several
years with Jodi Centonze, a woman he described several times as his "fiancee".
2. Michael Schiavo, through the instrumentality of the civil courts and
various medical personnel, instigated the starvation-dehydration death of
his then-incapacitated spouse Terri in March 2005.
3. One who, desirous of marrying a specific third party, is the
mandans behind a current spouse's death, incurs a canonical
impediment known as crimen (1983 CIC 1090 § 1).
4. The impediment of crimen can only be dispensed by the
Apostolic See (1983 CIC 1078 § 2, 2°).
5. According to
press reports, Michael Schiavo just married, in a Catholic ceremony,
6. Nothing suggests that the conditions were present by which a "reserved"
dispensation could, if needed in this case, have been granted by lower
level ecclesiastical authorities (1983 CIC 1079-1080).
7. The diocesan officer known as the Promoter of Justice is generally
"bound by office to provide for the public good" (1983 CIC 1430) and is
specifically authorized to challenge the putative validity of any marriage
where "the nullity has already become public" (1983 CIC 1674, 2°).
In light of the above, I believe the following questions warrant careful
A) was a Schiavo-Centonze wedding attempted under color of Catholic canon
law; if so,
B) did the pastor of the place or his delegate first verify that "nothing
stands in the way of a valid and licit [wedding] celebration" (1983 CIC
C) was the impediment of crimen incurred by Michael Schiavo; and,
D) was a dispensation from the impediment sought and duly granted?
Follow-up: Some folks have wondered whether the strict
canonical standards that apply to incurring a canonical penalty
apply to incurring a matrimonial impediment as well. The answer
is No. While ignorance of a penalty means, for most practical purposes,
that one does not incur it (1983 CIC 1323, 2° and 1324 § 1, 9°), ignorance
of an impediment does not excuse one from incurring it (1983 CIC 15 § 1).
If Michael Schiavo has incurred the impediment of crimen in
regard to his attempted marriage with Jodi Centonze, that impediment
applies regardless of whether he is aware of it or agrees with it.
often get in trouble simply for reminding people of the ground rules in a
discussion, and good lawyers always recognize the elements of truth in an
opponent's position, lest they attack the other side precisely where it is
Cardinal Pompedda's recent remarks on divorce seems to be those of a
good (canon) lawyer.
Caution: comments on "news stories", especially foreign new
stories, come at one's own risk. To all the vagaries associated with
domestic journalistic reports of theological issues, one must add
translation and cultural issues that can be extremely confusing. So, who
knows what was really said, or what the wider context of the cardinal's
comments was? Thus, I'll respond to the flap over Cdl. Pompedda's remarks
as if they are hypotheticals.
1. If Cdl. Pompedda said that divorce is not necessarily sinful, he's
right. The Catechism of the Catholic Church n. 2383 makes the
same point: "If civil divorce remains the only way of ensuring certain
legal rights...it can be tolerated and does not constitute a moral
offense." That important distinction (which proves the cardinal's point)
does not make the CCC pro-divorce, does it?
2. If the Spanish Jesuit to whom the cardinal is said to be responding
said that "divorced persons who remarry are not excommunicated", he's
right too. I can't prove a negative, but take it from me, there is no
canon that excommunicates divorced and remarried persons. True, there
used to be particular legislation applicable only in the
United States that imposed such a penalty, but that penalty was lifted
some 30 years ago (See Q. 83 in
my book). That does not mean that typical divorced and
remarried persons should consider themselves free to approach the
Eucharist: they still find themselves at odds with 1983 CIC 915 regarding
objective grave sin (a point I hope the Spanish Jesuit considered).
Our Lord's teaching in Matthew 19 has been debated since ancient times,
but it seems that two fundamental points about the divorce prohibition
stand out: not everything that looks like divorce is wrong, and,
remarriage after divorce is what really gets Our Lord's ire. Moreover, St.
Paul's authorization of what became known as the "Pauline Privilege" (1
Cor. VII) connotes an acceptance of divorce under circumstances having
nothing to do with underlying matrimonial invalidity. Cdl. Pompedda's
remarks on these points, as I understand them, fall squarely within the
bounds of orthodoxy and good canon law.
judge has ordered a priest to testify about whether he ever heard the
confession(s) of an accused clergy child-abuser, saying that the
priest-penitent privilege protects the content of confession, but
not the fact of confession. It's a narrow distinction that I
cannot consider here; let's just say there are plausible points to be made
on both sides of that one. What I want to ask is something different,
namely: why does the court think it needs to know whether Father A heard
Deacon B's confession in the first place?
Off the top of my head, here are six reasons why a civil court CAN'T (not
shouldn't, but CAN'T) draw any conclusions about a penitent's conduct
based on whether he went to confession, and about whether he even went to
(what folks generally consider to be) confession simply because his priest
asserts the "priest-penitent" privilege.
According to canon law (1983 CIC 983), the seal of confession applies:
1) Whether the sins are grave or trivial. "Bless me Father for I
have sinned, I lifted $ 2 that was left as a tip in a restaurant" gets
exactly the same seal of confession protection as would "I embezzled $
50,000 from my brother's business." One can tell absolutely nothing
about the magnitude of a sin based on a priest's assertion of the
2) Whether sins are already public knowledge (even admitted publicly)
or are secret. Even if a freely admitted, DNA-convicted, serial
killer goes to confession the night before his execution, the priest can
say no more about that confession than if someone whose sin never has been
and never will be found out goes to confession. To the outside world, the
priest's stance must be the same for both cases.
3) Whether the sins are new or have already been confessed and
absolved previously (even by a different priest). So-called
"devotional confessions" which relate sins that are remote in time and
already forgiven, qualify for the same seal protection as do sins recently
committed never before confessed. One can't tell, then, whether "old news"
or "new sins" were discussed based on whether a confessor asserts the
4) Whether the "sins" are really even sins in the first place.
If, say, someone concerned about the environment sincerely confesses
riding an elevator instead of climbing the stairs, the priest should point
out that using elevators is not a sin, but he is nevertheless bound by the
seal never to mention that so-and-so rode the elevator. One cannot tell,
then, whether what was confessed in the conversation was even a sin at all
simply because the seal is invoked.
5) Whether the confession was completed. If confession is
interrupted for any reason (emergency, illness, bad memory, lack of time,
etc.), what was disclosed up to that point is still protected by the seal
of confession. One can't tell how much, if anything, was communicated
simply because the privilege is invoked. Moreover, even if absolution is
not given (again, many benign factors could account for that) a priest
still must honor the seal of confession and invoke the privilege against
6) Whether the sins are "common" or "particular". Here, a
"common" sin describes an action that would be wrong for anyone to do
(e.g., stealing, insulting one's parents, etc.) while "particular" sin
describes actions that are sinful only for certain persons (e.g., a cleric
deliberately failing to say his daily prayers). Thus, depending on
circumstances, a person might confess things that are sinful for him or
her, but are clearly not sinful or even wrong for most other people.
Either way, the priest is bound by the seal, and outsiders cannot deduce
anything about what kind of sins a given person might want to confess
based on his refusal to answer questions.
To be sure, not every conversation one ever has with a priest is
necessarily privileged, and persons with information which they are free
to share should do so when legitimately asked by a court. But if, as in
this case, one can conclude so little, in fact virtually nothing, about a
penitent in light of his confessor's assertion of the "priest-penitent"
privilege, why risk prejudicing the fact finders by asking such questions
in the first place, and why chance provoking an unnecessary, and severe,
Church-State conflict along the way?
Al Kresta and I will talk about this today at 5:20 PM Eastern. Tune
judge Elizabeth Perris has ruled that parish property within the
Archdiocese of Portland OR is subject to seizure if needed to satisfy the
liability obligations (chiefly, ones arising from clergy sexual misconduct
cases) of the archdiocese. Judge Perris thus joins
Judge Patricia Williams (hearing similar cases in Spokane WA) in
holding, among other things, and for the time being at least, that
bankruptcy law takes precedence over canon law and consequently trumps the
Free Exercise clause of the First Amendment to the Constitution. How so?
Under civil law, parish properties across the United States are registered
in at least four very different ways (corporation sole, religious
corporation, various trust models, and fee simple). But to complicate
unavoidably an already complex situation, under canon law all parishes are
"juridic persons" (1983 CIC 515). Thus, regardless of civil registration
forms, Catholic parishes canonically own the assets assigned to or
acquired by themselves (1983 CIC 1256). Pastors, who administer parish
assets (1983 CIC 532, 1279), and bishops, who exercise vigilance over
property belonging to juridic persons in their territory (1983 CIC 392,
1276), are sworn (1983 CIC 833) to act in accord with canon law in the
performance of their duties lest, among other things, their actions be
null and they themselves be derelict performance of their duties (cit. omm.).
The stage is now set for a classic "free-exercise" conflict. It arises
Canon law reasonably requires that "alienations" (selling or other
transfers of property) meet a variety of requirements for validity (see
generally all of Book V of the 1983 Code). Among those numerous
requirements is the need for authorization from Rome for alienations over
$ 3,000,000 (1983 CIC 1292), a figure all sides agree will easily be
surpassed in these cases. But what if Rome, for all sorts of objectively
defensible reasons, says No? At that point, Catholic administrators will
either defy their religious responsibilities and sell-off assets for
whatever they might fetch, or they will refuse to cooperate with the
liquidations whereupon, presumably, federal bankruptcy courts will order
the seizure of parish property, and thus align the U. S. government with a
long line of powerful states that have confiscated Church property over
the centuries. Both scenarios gravely threaten the free exercise
guarantees of the Constitution.
But let's prescind from law for a moment, and look at this matter common-sensically:
exactly how is it just to make individual parishes pay for
diocesan (read: episcopal) negligence? Consider: parishes have no say
in who will be their pastor (1983 CIC 523), parishioners in many of these
cases were themselves the direct victims of priest predators, and now
parishes are being told they might have to pay—and pay dearly—for the
gross offenses of men over whom they had no control. Does that sound fair?
Let there be no mistake: a way should to be found, and I think
will be found, to compensate justly the victims of clergy sex abuse. The
way will doubtless be painful. Nevertheless, justice cannot be satisfied
by shuttering parish churches and schools or by disbanding community
service organizations, and it cannot be served by letting stand lower
court rulings that could provoke a major Church-State show-down with
serious international repercussions. +++
See also Thomas Szyszkiewicz's news-analysis article, "Who owns the
Church?" in Catholic World Report, October 2005. Go