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
Thursday, December 23,
Toward clarifying the canonical status of Sr. Margaret McBride
As more of
the record concerning the canonical situation of Sr.
Margaret McBride comes to light, it is good to see some surmises
about her status being confirmed and/or various gaps in our information being
filled. Specifically, we now know that
declared the excommunication of
McBride following the disclosure of her role in procuring the
abortion of a baby at St. Joseph’s hospital in 2009. The fact of the bishop’s
declaration has some important implications for McBride’s canonical status in
religious life and in the Church.
First, whatever was McBride’s status per
1983 CIC 1331
§ 1 as one (probably) laboring under a latae sententiae
excommunication (and, yes, I am happy to renew my call for the elimination of
automatic sanctions), her status as one laboring under a declared
excommunication is governed chiefly by
1983 CIC 1331
§ 2. While she is not dispensed from the general obligations
of religious life, the Divine Office, or the Sunday obligation, McBride is now
prevented from attempting to perform any ministerial functions in the Eucharist
(reader, etc.), from participating in the sacraments or sacramentals, and from
obtaining indulgences (c.
996). Also, under pain of invalidity, she cannot perform acts of
ecclesiastical office (c.
145) in her religious institute or in the Church. Hers is, in short,
and is intended to be in light of her grave offense against the life of an
innocent child, quite a debilitated state.
Second, McBride’s reconciliation (for which we should all pray)
is not simply a question of moral theology and treatable, therefore, in
sacramental Confession; her juridic status is now changed to the point where,
for the remission of her sanction, Olmsted must play a role either directly (c.
1355 § 1, n. 1) or in consultation with another local ordinary (c.
1355 § 1, n. 2).
Indeed, in this one respect, I would differ with Olmsted’s decision to keep the
declaration of McBride’s excommunication confidential, lest presbyteral
confessors who might be approached by McBride for reconciliation mistakenly
think that they still have the authority to address her juridic situation under
Canon 1357. They do not have
that authority (outside of danger of death, of course, per
Third, while the dismissal of McBride from her religious
institute would seem an appropriate next step, I think her superiors should
proceed with caution. Yes,
Canon 695 mandates the dismissal of any
religious found guilty of violating
Canon 1398 against abortion. But, I would
suggest that McBride was not, strictly speaking, excommunicated for procuring an
abortion, but rather, for lending formal and necessary cooperation toward an
abortion, that is, for being an accomplice to abortion and thus liable
to excommunication per
1983 CIC 1329 § 2. There are differences
between committing a crime, and being an accomplice to one committing crime.
My suggestion of, to put it colloquially, some “wiggle room”, under
can. 695 in McBride’s case is consistent
not simply with the plain text of the law(s), but with the fact that the other
two ‘mandatory dismissal’ canons referenced in can. 695 (namely, cann.
1397) describe offenses that, while also
very serious, come in degrees of wrong-doing and thus, by their nature, allow
(indeed, require) religious superiors to look at the concrete facts of the case
to determine whether a religious’ involvement in such deeds warrants dismissal.
Interestingly, Canon 695, which ties a superior’s hands in some cases that might
warrant some flexibility, is not found in Eastern law.
Abortion, on the other hand, is an all-or-nothing type of crime. If a religious
is guilty of abortion, he or she can and should be dismissed. But, the
all-or-nothing character of abortion suggests that where, within the law, some
way of looking at the concrete facts exists, that way should be used. In
poenis benignior est interpretatio facienda. Regula Iuris n. 49, in VI°
(1298). Besides, if McBride should prove obdurate in refusing to repent of her
role in the death of an innocent human being,
Canon 696 provides more than sufficient
basis for her expulsion from religious life, and sooner than later at that.
I’m sorry that the canonical implications of killing a pre-born baby take our
attention just before celebrating the Nativity of Our Lord. That’s why we call
it “this Valley of Tears”, no? Christmas blessings on all my readers. Oremus
Tuesday, December 21,
Bp. Olmsted, Canon 216, and St. Joseph's Hospital
situation at St. Joseph’s Hospital in Phoenix, in terms of its compliance (or
lack thereof) with several fundamental points of Catholic medical-moral
teaching, was apparently worse than we thought. Bp. Olmsted’s decision
to decertify St. Joseph’s as a Catholic institution is quite well grounded. Two
documents are essential reading here, the
Bishop's Decree of December 21, and the
Bishop’s Statement of December 21.
From the Bishop’s Statement we learn that:
1. The problems in regard to compliance with Catholic moral teaching at Catholic
Healthcare West institutions are apparently not limited to St. Joseph’s Hospital
in Phoenix. Significant problems at CHW’s Chandler Regional Hospital in Arizona
were flagged by Olmsted seven years ago (!), to no avail.
2. The problems at St. Joseph’s
go well beyond a single instance of abortion
(as terrible as that was, per 1983 CIC 1398 and CCC 2270-2272). Apparently,
St. Joseph’s is, and has been for some time, formally (i.e., intentionally)
cooperating in contraceptive counseling and services, including voluntary
sterilizations, and in multiple abortions.
3. The excommunication of Sr. Margaret McBride for her role in an abortion at
St. Joseph’s in 2009 was formally declared by Olmsted in a private exchange with
From the Bishop’s Decree we see that:
as predicted, is being invoked, and
Olmsted is already signaling that he is prohibiting the use of the word
Catholic “in any way” by St. Joseph’s. Olmsted’s revocation of permission
for reservation of the Blessed Sacrament at St. Joseph’s would be grounded in
1983 CIC 934 § 1, n. 2; while the
specific mechanism for his revoking permission to celebrate Mass at St. Joseph’s
was not included in the decree, there are a couple of ways that the bishop could
Olmsted is plainly grounding his actions today on his responsibility to
determine what is, and is not, Catholic in the territory entrusted to
him (I might add, entrusted to him by Christ, through the authority of the
Church, and for which entrustment he must someday render an accounting to God.
Olmsted takes Judgment Day seriously.)
No direct action against Catholic Healthcare West has been taken, at least as of
now. My guess is that there are jurisdictional issues to be addressed, because
CHW is based in the Archdiocese of San Francisco, not Phoenix. But that’s not an
insurmountable bar to action by Olmsted, and/or others, even if there are a
couple more steps involved.
Other good comments:
American Life League
And this, from a fellow canonist who loves his JPII
encylicals: "A particular responsibility is incumbent upon Bishops with
regard to Catholic institutions. Whether these are agencies for the
pastoral care of the family or for social work, or institutions dedicated to
teaching or health care, Bishops can canonically erect and recognize these
structures and delegate certain responsibilities to them. Nevertheless, Bishops
are never relieved of their own personal obligations. It falls to them, in
communion with the Holy See, both to grant the title Catholic to
Church-related schools, universities, health-care facilities and counselling
services, and, in cases of a serious failure to live up to that title,
to take it away." Veritatis splendor, 116, my emphasis.
Friday, December 17, 2010
Lisa Fullam's dangerous advice should be ignored
that the Vatican would oppose him, Joseph Stalin shrugged and asked “How many
troops does the pope have?” To the dictator, the only views that mattered were
those backed-up by men with guns.
Lisa Fullam has offered authorities at
Catholic Healthcare West / St. Joseph's Hospital in Phoenix similarly myopic,
even dangerous, advice when she suggested that, because the word “Catholic” is
not copyright-able, the enterprise should continue to call itself “Catholic”
despite Bp. Thomas Olmsted’s
threatened prohibition of such use, and
simply “let the canonical chips fall where they may.” Apparently Fullam believes
that, since men with badges will never show up to enforce a cease-and-desist
order (that will never be issued) by a civil court regarding the word
“Catholic”, Catholic hospital officials need not worry about bishops tossing a
few “canonical chips” their way.
I strongly suggest that St. Joseph's seek advice from another expert.
If the only criterion for authentic Catholic conduct is “what Church rules are
enforceable by civil courts?”, then there won’t be much left of Catholic codes
of conduct. Thank God. I don’t want states being the final arbiter of what is
acceptable Catholic conduct and what is not, and I would hope that Fullam
doesn’t want that, either.
But if Fullam’s point is that a bishop’s authority over the use of the label
“Catholic” is, absent state enforcement options, nugatory, then she needs to
study up on some elementary canon law (and ecclesiology, for that matter). A
bishop’s authority over the use of the word “Catholic” is reflected in, e.g.,
300, and those norms just get the
conversation started. Canons
1319 comes next to mind, but an
exploration of those options goes beyond what I can cover in blog post.
Fullam’s nonchalance about ecclesiastical authority notwithstanding, I suggest
that Catholic Healthcare West / St. Joseph's Hospital officials put a careful
reading of these and related canons on the agenda for their next meeting.
I’m pretty sure that Bp. Olmsted has them memorized.
Wednesday, November 24, 2010
Was the Chinese episcopal ordination valid?
blogged about the Chinese episcopal ordination ceremony last Saturday, but held
off for lack of concrete facts and because of the eruption of
another story the same day. But a line in
the HSPO press release today (see below) suggests that maybe my earlier hunches
were correct. So here goes.
If I were the Chinese government, I would not be so sure that Saturday’s
episcopal ordination ceremonies had, in fact, resulted in the ordination of a
Quite aside from the pervasive illiceity of the alleged ordination—for
which the HSPO rightly notes that excommunication attaches at least to Joseph
Guo Jincai per
1983 CIC 1382—the validity of an
ordination attempted under these kinds of circumstances is subject to challenge,
and the adjudication of such challenges are solely within the jurisdiction of
the Church (1983 CIC
What might those challenges be? Basically, force and/or fear, under
1983 CIC 125. By the institution of
Christ (nb: not the State, and not even the Church), sacraments have certain
unalterable requirements for their performance. Among those requirements is
sufficient freedom and consent on the part of the minister. The freedom and
intentionality of any minister performing a role under these sort of oppressive
conditions is obviously suspect.
To be sure, sacraments are robust things and the Church does not frequently find
their conferral invalid (1983
CIC 10); but then, we don’t frequently run into modern governments
still operating as if sacraments were some kind of magical rites that, when
pronounced by the right person wearing the right wardrobe, mysteriously achieve
their effects hocus-pocus.
VATICAN CITY, 24 NOV 2010 (VIS) - The Holy See Press Office today released the
following English-language communique concerning an episcopal ordination at
Chengde in the province of Hebei, Mainland China: . . . (2) It is known that, in
recent days, various bishops were subjected to pressures and restrictions on
their freedom of movement, with the aim of forcing them to participate and
confer the episcopal ordination. Such constraints, carried out by Chinese
government and security authorities, constitute a grave violation of freedom of
religion and conscience. The Holy See intends to carry out a detailed evaluation
of what has happened, including
consideration of the aspect of
validity and the canonical position of the bishops involved. (3)
In any case, this has painful repercussions, in the first case, for Fr. Joseph
Guo Jincai who, because of this episcopal ordination, finds himself in a most
serious canonical condition before the Church in China and the universal Church,
exposing himself also to the severe sanctions envisaged, in particular, by canon
1382 of the Code of Canon Law. . .VIS 20101124, emphasis added.
Code of Canon Law in Chinese here.
Monday, November 22, 2010
The continuing mess at L’Osservatore Romano
able others are scrambling to respond to the eruption over the pope’s remarks on
condom use by male prostitutes, I want to ask a few questions about the occasion
of this public relations fiasco, namely, the decision by L’Osservatore
Romano to publish prematurely, out of context, and without commentary, the
single most controversial paragraph of the pope’s book, Light of the World,
in, if nothing else, apparent violation of the agreement in place between its
various publishers concerning a coordinated release of the work.
I frankly wonder whether, even now, L’Osservatore Romano yet realizes
what a serious disservice it has committed by arrogating to itself the role of
introducing the pope’s book, Light of the World, and by its making that
introduction in such a palpably incompetent manner?
Light of the World is a remarkable book, being first, the fruit of a
welcome papal willingness to share frank insights and opinions on the Christian
message today, and being second, the product of much work by many people in
several nations, all oriented to presenting the book in its best light. These
latter groups had planned for months to introduce Light of the World as
the holistic, positive, and integrated work that the pope intended it to be. A
mid-week launch (and, in the vital US market, one day before an extended holiday
that is typically slow in news) was carefully planned with writers, speakers,
and resource persons briefed ahead of time, all ready to comment on the book and
to respond to questions. It was a huge amount of work but, being undertaken by
professionals who knew what they were doing, it promised to be effective.
Now, all of that planning has been shredded by the
L’OR decision to launch
Light of the World on its own.
Worse, L’OR chose to highlight what is probably the single most
speculative and controversial papal paragraph in over 200 pages of print, and to
offer that snippet out of context and without explanation. Unbelievable.
Instantly, of course, the world formed exactly the wrong understanding
of that paragraph that anyone could have predicted. Now, instead of being able
to present the pope’s interview as a positive and even vigorous affirmation of
unified truth, Catholic theologians and spokesmen must respond defensively
against secular attacks and distortions, resorting (for the most part) to a
level of sophistication that befits a graduate seminar in moral theology, not a
reader-friendly presentation of ideas. I mean, great scot, the book is not even
published yet, and already the Vatican Press is Office is having to issue hasty
corrections and unconvincing clarifications!
And it’s all because of L’OR.
Yes, again. L’OR’s panting after pop relevance (with pieces on, e.g.,
The Beatles and The Simpsons) is embarrassing enough. I've learned to ignore
that. Its mistreatment of Brazilian Abp. Cardoso Sobrihno should have been seen
as the warning sign that it was.
I said so at the time.
But, if this media fiasco is not enough to bring sweeping changes to L’OR,
then, I don’t know what ever will. + + +
Update, 23 Nov: Check out
Phil Lawler's commentary on
L'OR, which contains the following gem, among several: "In past
months L’Osservatore Romano has often embarrassed the Vatican, with
puerile articles gushing about the merits of Michael Jackson, The Beatles, and
The Simpsons. But this editorial blunder is far more serious. With its gross
mishandling of this very serious issue, the Vatican newspaper has given rise to
a worldwide confusion on a very important moral issue—damage that it may take
years of painstaking work to undo."
Update, 25 Nov: John Allen's defense of L’Osservatore Romano
here. It occasions a couple of remarks.
First there is apparently a fact question as to whether
L’OR had permission to
publish what it did when it did. My sources indicated that L’OR did not
have such permission, Allen’s suggest otherwise. Now, either L’OR had permission
to publish, or it didn’t. But this should be easy: Simply ask L'OR who
authorized them publish what they did, and then ask whoever they point to
whether such permission was granted.
Of course, if L’OR had permission for doing what it did, my criticisms
of it would fail in that respect. If it did not have permission,
Allen's defense of it fails in that respect. In any case, my criticism of
L’OR for how it did what it did, would stand.
Second, critics of L’OR come in a variety of shapes of
sizes and they propose a variety of remedies. (That L'OR even has now a
variety of critics in the Church itself says something, I think.) I hope Allen’s
readers make that distinction and assess my criticisms and my
remedies on their own merits. I’m no Vatican insider and I have no clue as to
who is who’s enemy. I think L’OR’s comments on, say, Obama were
inconsequential (I might be wrong about that). But I also think it only fair to
observe that, if some
L'OR critics operate with
some biases, surely it's possible that some L'OR defenders operate
In short, I only know what I read in L’OR, and what I read there is
frequently counterproductive, in my considered opinion, to the image the Church
should be presenting to the world in its most-recognized newspaper.
Friday, November 19, 2010
A good profile essay on almost-Cardinal Burke
of the Diocese of Lacrosse has a nice spread on Archbishop,
and-one-day-shy-of-being-formally Cardinal, Burke in the on-line
The Catholic Times (18 Nov. 2010,
page 3B). Klein offers a good overview of Burke’s typical day at the Apostolic
Signatura, and of the esteem in which he is held by those concerned for the
proper coordination of law and theology. The essay even features a few quotes by
yours truly. So enjoy!
It's been another good week for the Church:
Abp. Dolan elected president of the USCCB,
Abp. Burke, among others, elevated to the College of Cardinals. Let's just
remember, though, the trials of the Church in places like China, where bishops
faithful to the Holy See
are being forced to attend on Saturday an
episcopal ordination performed in violation of
1983 CIC 1382. Think of it as two strides
forward, one shove back. Oremus pro invicem.
Speaking of cardinals, I have updated my list of
Favorite quip this week:
"FLASH! Dolan elected president of USCCB! In other news, Jesus came again."
Wednesday, November 17, 2010
Munus Archiepiscopi Dolan novissimum erit magnum!
versione quam audivi, Timotheus Dolan, tunc discipulus juvenis in octava classe
apud Infantis Sancti scholam in Sancti Ludovici urbe, pulsavit in campanam domi
paroecialis, et locutus est parocho quod voluit aliquod facere ad Ecclesiam
adjuvandam. Presbyter, videns cortem asperam suam, respondit “Eheu! potesne
gramen meum resecare?” Timotheus puer se immersit hunc in laborem et, opere
perfecto, pulsavit iterum in campanam ad munus postulandum secundum. Cum vidit
parochus puerum etiam avidum servire Ecclesiam, dixit eo "Fili, loquamur."
In temporis cursu, ut dicunt, res genuit rem, et hodie Archiepiscopus Timotheus
Dolan Neo-Eboracensis, contra exspectationem omnium, electus est ad praesidem
Conferentiae Catholicorum Episcoporum in Foederatis Civitatibus Americanis
Aep. Dolan non congratulationes vult habere, sed assidue petit ex omnibus
orationes; ergo, dum coquamus crustula cum M&M viridibus electionis suae
celebrandae causa, quoque recordamur pro cultore horti ecclesialis orare dum
ille munus recentissimum suum accipiat. Memento quoque: munus hunc recipit
archiepiscopus sine annorum trium tempore usitato ad res preparandas!
Si adesse debeant congratulationes, fiant pro Episcoporum conferentia, quae
bonum consilium habuit ad Aep. Timotheum Dolan, ut dux illorum, eligendum.
Nunc, ad illa crustula!
Tuesday, November 16, 2010
Abp. Dolan's latest service will be a great one
of the story I heard was that Tim Dolan, then an eighth grader at Holy Infant
Parish in Saint Louis, rang the rectory doorbell one day and told the pastor
that he wanted to do something to help the Church. The priest glanced at his
shaggy yard and said, “Well, okay, how about you cut the lawn?” Timmy Dolan
threw himself into the project, did a good job, and rang the doorbell to ask for
his next assignment. When the pastor saw the youth still eager to serve the
Church, he said, "Son, let's talk."
One thing led to another, as they say, and today Abp. Timothy Dolan of New York,
in a stunning break with the way things were supposed to happen, was elected
president of the United States Conference of Catholic Bishops.
Abp. Dolan wants no congratulations, but he regularly begs for prayers, so,
while we are baking cookies with green M&Ms to celebrate his election, we will
also remember to pray for the former ecclesial greens-keeper as he takes on his
latest project to help the Church. And keep in mind, he shoulders this role
without the customary three-years to “read up” on things.
If any congrats are due, it’s congrats to the bishops’ conference for having had
the good sense to choose Abp. Timothy Dolan as their leader.
Now, about those cookies!
Wednesday, October 20, 2010
Congratulations Abp. Raymond Burke
had what amounted to metaphysical certitude that Abp. Raymond Burke of the
Apostolic Signatura was going to be made a cardinal, today’s announcement of his
being named to the College by the pope is cause for rejoicing and prayers. What
else can I say? It’s a great day.
Abp. Burke’s elevation occasioned from him, moreover, a deeply moving set of
remarks that defy condensation. I’ll just post them below, in their entirety.
I am deeply humbled and honored by the announcement that His Holiness Pope
Benedict XVI intends to name me to the College of Cardinals of the Holy Roman
Church at the Consistory which he has convoked for this coming November 20th.
Having received the news of the Holy Father’s intention, I express my deepest
gratitude to His Holiness for the great confidence which he has placed in me,
and I renew my commitment to serve Him, as Shepherd of the universal Church, in
total fidelity and with all my being.
Considering the weighty responsibilities of the members of the College of
Cardinals in assisting the Holy Father as his closest co-workers, even “to the
shedding of blood,” I am more than ever conscious of my own weakness and of my
total dependence upon the help of divine grace, in order that I may fulfill
worthily and generously the responsibilities which will be mine, God willing, as
a Cardinal of the Church.
I count upon the continued intercession of the Blessed Virgin Mary and the
Communion of Saints, and the prayers of the many faithful whom I have been
blessed to serve as priest and Bishop, especially in my home diocese, the
Diocese of La Crosse, and in the Archdiocese of Saint Louis, and of those with
whom I have been, in the past, and am now privileged to serve in the Roman
Curia, especially my co-workers at the Supreme Tribunal of the Apostolic
Signatura. Only the knowledge of God’s immeasurable and unceasing outpouring of
mercy and love from the glorious pierced Heart of Jesus gives me the confidence
to accept the great honor and burden which His Holiness intends to confer upon
Today’s announcement turns my thoughts with deepest affection and gratitude to
my late parents and all my family, living and deceased; and to the priests,
consecrated persons and lay faithful who have assisted me to know my vocation to
the Holy Priesthood and to respond to it with an undivided heart over the more
than thirty-five years of my priestly life and ministry. Today, with all my
heart, I humbly thank God for the gifts of life, of the Catholic faith, and of
At the same time, my thoughts naturally turn to the many challenges which the
Church faces in our day in carrying out her divine mission for the salvation of
the world. In particular, I am deeply conscious of the critical importance of
the loving witness of the Church to the truth, revealed to us by God through
both faith and reason, which alone is our salvation. It is a witness which Our
Holy Father tirelessly gives with remarkable wisdom and courage. I pledge myself
anew to assist Pope Benedict XVI in this critical witness and in the many works
of his pastoral charity on behalf of all our brothers and sisters in the Church
and in the world.
I ask for prayers that I may be able to assist our Holy Father Pope Benedict XVI
to the best of my ability and with every ounce of my strength. I, once again,
place my whole heart, together with the Immaculate Heart of the Blessed Virgin
Mary, into the Most Sacred Heart of Jesus. In the glorious pierced Heart of
Jesus, I am confident that I will find the purification, courage and strength
which I will need to carry out the new responsibilities to be confided into my
hands. I thank, in advance, all who will pray for me, and ask God to bless them
(Most Rev.) Raymond L. Burke, Prefect
Supreme Tribunal of the Apostolic Signatura
October 20, 2010
And now, like the good St. Louisans Abp. Burke and I will always be at heart, I
think I’ll take the family out to Steak’n’Shake! + + +
Update, 22 October: here's a neat idea:
Wednesday, October 13, 2010
Thoughts occasioned by Dr. Woestman's advisory opinion on exorcism
William Woestman, omi, the famous
canonist from Arkansas, emeritus from St. Paul’s University in Ottawa and now an
episcopal vicar in the Archdiocese of Chicago, has published a short but good
advisory opinion on exorcism (1983
CIC 1172) in the 2010 Roman Replies and CLSA Advisory Opinions.
I take the occasion of his remarks to offer a few of my own.
The delay in getting an English translation of the Rite of Exorcism (the
editio typica has been available for nearly a decade!) is inexcusable.
An important, if critical, article on the revised rite was published by Dr.
Daniel Van Slyke in Antiphon (2006) and is
I wonder whether the apparently deliberate use of the word “presbyter” in c.
1172 (see my Incrementa in Progressu at 1038) excludes the appointment
of bishops (say, auxiliaries) as exorcists.
Exorcists should keep in mind that verification of mental disorders in an
individual does not preclude the possibility of concomitant possession.
Woestman’s point about exorcists being on guard against tricks used by the Devil
to discourage resort to exorcism is well illustrated, I think, in a scene from
“The Exorcist” (1973) which film,
notwithstanding some exaggerations, is pretty good at describing possession and
exorcism. At one point in the film Fr Karras sprinkles water on Regan that she
would have guessed was blessed. Regan, who might have known that evil spirits
detest holy water, writhes in apparent agony. Later, Fr Karras discloses that
the water was plain tap water, and that Regan’s violent reaction to non-blessed
water is not consistent with her being possessed. That, of course, is
the whole point: the devil contorts Regan in an attempt to make her
look like an imposter in
the hopes of throwing Fr. Karras off the trail. It’s a brilliant depiction of
the wiles to which the Father of Lies will resort.
Woestman’s suggestion about exorcists forming a small group of discreet prayer
supporters is a good one reflected, obliquely, in the older rites.
It goes without saying that an exorcist will want to avoid publicity. The
potential, once one’s identity or special work is made public, for being hounded
by every odd ball in town is obvious.
Finally, it is very important not to believe or disclose any comments made by
the devil/possessed during the rites. Falsehoods are bad, but falsehoods mixed
with truths can be devastating. No matter how many truths about oneself or about
others that one might hear during the rites, one should not assume that any
other comments are, or even might be, true. Nothing disclosed
or even intimated by the possessed can be trusted. Absolutely nothing.
Sunday, October 10, 2010
Dissection of baloney journalism
just how many things
a single AFP article on “women priests”
can get wrong. I quote the original article in black, with my remarks
MONTREAL — Despite a Vatican (I think AFP means “Holy See”, plus it’s really a divine law at issue)
ban and threats (they aren’t threats, they are warnings) to
excommunicate her, a sixth Canadian woman was ordained (no)
as a Roman Catholic priest Saturday, an official with a group supporting women
in the priesthood said (no: Look, if AFP wants to say “another woman claimed to be ordained”,
fine, but don’t report
what is a total sham pretense. These folks are no more being "ordained" than I
can be "commissioned" in the US Army by some buddies at the mall, and if the
press insisted on describing me and other pretenders as "commissioned officers"
--albeit without Army approval--, we'd dismiss it as the shabby, agenda
journalism it is.)
The group Roman Catholic Womenpriests ordained (not) Linda
Spear, a retired teacher from Quebec, in an Anglican church in Sutton, Quebec,
According to Bridget Mary Meehan, who was ordained (not)
as a bishop in 2006 in the United States, Roman Catholic Womenpriests was
founded shortly after 2000 and has grown swiftly.
The first seven women priests (not) were ordained on a boat in the Danube in 2002
and since then another 80 women have become priests (not)
in the United States as well as about 20 others around the world, Meehan told
AFP by phone.
Spear is the first Quebecer but the sixth Canadian woman to become a Catholic
this way. She was symbolically (huh? just
symbolically now? what’s
that mean?) ordained (not) by US
Andrea Johnson. Spear can celebrate the sacraments such as marriage (well,
ok, I guess, if Spear is free to marry, and if she marries a baptized person,
would be a sacrament) but they will not be recognized by the
Vatican (the Vatican recognizes
marriages now? what is AFP even talking about?) which limits the
priesthood to men (diaconate
too, let's not forget, and it’s not a 'Vatican' rule we’re talking about, it's
"We are not leaving the church (that’s true: excommunication does
result in expulsion from the Church), we are leading it into
living Jesus's example of Gospel equality (huh?). Jesus called men and women to be disciples,"
Meehan said (that’s true, too, Jesus did call men and women to be disciples: but
he didn’t call women to holy orders).
"We are disobeying an unjust (not) church (not a 'Church' law, or at least, not
a Church law) law that prohibits (it does more than “prohibit” it: the Church declares such simulations
of sacrament invalid, and those who commit them excommunicated)
women's ordination and is rooted in discrimination," (well,
strictly speaking, God
does discriminate, but not in the way that the word is being used here:
He “discriminated” when he took Mary straight to Heaven but not the Apostle
John, but I rather think that God’s call not make, not ours) she
explained. Spear could be excommunicated (I assume, will be);
Meehan already has been (well, AFP got
that one right, anyway). END OF AFP ARTICLE
Whew. That’s more than a dozen plain errors, not counting another half-dozen
misleading assertions, packed into one article, all skewered toward reporting as
“fact” the pretensions of a little group of female pseudo-priests.
Why do people bother reading such blatant agenda-driven news-reporting?
Tuesday, September 21, 2010
Three recent and important "short-reads" related to canon law
A number of
pressing projects reduce the time I have available for blogging, but I wanted at
least to call attention to three very different, but very interesting, short
essays that I came across over the last few days.
The first offers
the recent remarks of Bp. Robert Vasa (Baker, OR) on
episcopal conferences in general and on the role of diocesan bishops
vis-à-vis the USCCB in particular. Vasa, a canon lawyer, manages to
make about a half-dozen excellent points in hardly that many pages. His talk
deserves, I think, an especially careful reading by two groups: Catholics
concerned that the USCCB is usurping the leadership role of local bishops (Vasa
argues that it’s really some bishops who are ducking behind conference
statements as if those statements absolved them of having to make their own
decisions); and, secular journalists who routinely exaggerate the authority of
the episcopal conference because they prefer the kind of “low-confrontation”
language that committee documents tend to use, as opposed to reporting on the
straight talk coming from many diocesan bishops today. I’m adding Vasa’s text to
my required reading list for applied ecclesiology students.
The second comes from Dr. Marie Hilliard, an ethicist (and
canon lawyer) at the National Catholic Bio-Ethics Center in Philadelphia.
Writing in the
Ethics & Medics newsletter,
Hilliard points out that a new drug, ulipristal, is headed for FDA approval as
an emergency “contraceptive”, despite the overwhelming evidence that it works as
an abortifacient. Worse, Hilliard reports that the Catholic Health Association
has missed not one, but two, opportunities to weigh in against this
drug, or at least to argue for a conscience exemption for health care
professionals (Catholic or otherwise) who do not want to offer a death-dealing
drug to women. I join many in wondering just what purpose is being served by the
The third is a short report by Charles Wilson, Director of the
St. Joseph’s Foundation (in TX), on the recent Canon Law Conference for
Canonists and Civil Attorneys. Wilson focuses on the fine pair of talks given
thereat by the
iurisconsult Fr. John Coughlin,
but he also manages to convey a sense of how blessed the wider meeting was,
leaving us all hoping that it becomes an annual event. Wilson's article will
eventually go on-line, but why wait?
Sign up for the printed newsletter here
(donations welcome, but not required).
Happy reading, folks.
Monday, August 09, 2010
Musings on the next Consistory
In the mood
for some completely personal musings on an important topic that none of us have
the slightest control over? Okay, how about papal elections? Rome basically
shuts down in August, and here in the USA summer vacation is winding its way
toward Labor Day. So it’s a great time to speculate on the next Consistory,
rumored to be scheduled for as early as this Fall, but more likely in the Spring
of 2011. Or, not. We'll see.
Setting aside a few variations in their modern structure, Consistories are
chiefly important in that new cardinals are formally named thereat, and it's
the age of 80) who elect popes. Since the
time of Paul VI, the number of eligible electors in the College of Cardinals has
been officially capped at 120 (pace John Paul II, who
at one time had some 133 eligible electors on the list!). Benedict XVI is not
likely to exceed the cap, nor will he, at age 83, lightly assume that he will
have several more chances to shape the College over the years. So, if
he wants to impact the direction of the College of Cardinals, my guess is, he
will do so at his next opportunity.
If the Consistory were held today,
Benedict could name 13 new cardinal electors; if he waits till the end of August
he could name 14, and if he goes into October he could appoint 17, maybe 18.
That would be a sizeable class, and some significant reshaping could be
accomplished by naming so many new cardinals at one time.
Now, all credible observers agree that America will get at least two red hats,
and most predict at least three. But I want to suggest that we could see at
least four, and perhaps as many as five or six, Americans named to the College
Consider: Most American cardinals (pace O’Malley and DiNardo) fall into
two tight age groups: Keeler, Law, Egan, and Stafford turn 80 quite soon,
between March 2011 and July 2012, and a second group, Rigali, Foley, Mahony,
Levada, and George, turns 80 from April 2015 to January 2017. The first group is
more significant from an appointment “timing” point of view.
Despite the close Catholic demographics that obtain between the US and Italy,
there are currently 19 eligible Italian papal electors but only 11 Americans.
One may therefore suggest that, either Italy is
over-represented in the
College of Cardinals or, at the least, the US is under-represented.
Moreover, between now and July 2012 (when Stafford turns 80), the disproportion
between the US and Italy will widen as each country loses four more electors.
Therefore, even assuming that no Italians are named next time around (unlikely,
that), naming even three Americans at the next Consistory will not
suffice even to maintain the current lopsided ratio. Only by naming four
Americans does the pope prevent the discrepancy from widening, and only by
naming five or even six Americans does he narrow the gap. Not eliminate it,
obviously, but narrow it. And I think that could be a good thing.
A final thought: to date, Benedict has named six Italians to the College, but
only four Americans. What that might mean...well, who knows?
PS: Yes indeed, I’ve got six good American suggestions, but—for the record—no
one on the far side of the Atlantic has called. Or even left a message. :)
Thursday, August 05, 2010
Canon law is not for the faint of heart
Canon Law Conference for Canonists and Civil Attorneys,
hosted by the
Shrine of Our Lady Guadalupe in La Crosse, WI,
is over, but the buzz from that meeting will remain in the air for some time. It
was a terrific success and it needs to become, I think, an annual event at that
beautiful locale during the first week of August.
The quote of the conference had to be Abp. Raymond Burke’s quip during the
Monday evening dinner to a question about how canon lawyers should prepare to
face the challenges of the future. “Well,” replied the world’s most influential
canonist, “the first thing I would say is, canon law is not for the
faint of heart!”
The honesty, clarity, and charity, of that remark, delivered with cheerful
confidence in the Lord and His Church, sums up this terrific meeting.
It would have been, of course, nigh on impossible to find four better speakers
for this inaugural conference: Abp. Raymond Burke, prefect of the Apostolic
Signatura, Fr. James Conn, sj, editor of Periodica, Fr. John Couhglin,
ofm, professor at Notre Dame Law, and Mr. Ben Nguyen, Chancellor of the Diocese
of La Crosse. Each of their talks was engaging and thoughtful and deserves wide
But, if I may so, this impressive constellation of
speakers was also such as
to draw a dynamic audience of canonists, attorneys, pastors, religious,
and numerous other interested (and interesting!) people, making the break times
almost as productive as the formal sessions. I cannot begin to list all the
folks at the meeting whom I’ve read for years, corresponded with, and/or
generally followed in their service of the Church. It was edifying and exciting
to be around them.
I look forward to the next conference just as soon as it can be arranged! + + +
to Fr. Z. Thanks! See also
more here) and
Caritas in Veritate (with more
CiV here and
more here). This post now available in
French at Americatho.
Sunday, August 01, 2010
Fr. Doyle and the ecclesiology of despair
Doyle, op., has an essay in The Tablet (24 July 2010) wherein he
comments, mostly negatively, on
some canonical procedural norms recently
revised and published by Rome. My concern here, though, is with what I will call
an “ecclesiology of despair” to which I think Fr. Doyle’s essay gives voice.
Concluding his criticisms of the new norms, Fr. Doyle asserts that: “They are
tragic evidence that the hierarchical governing body of the Church is no longer
capable of leading the People of God.” Now, for Catholics called to maintain
communion with the Church in all things (c.
209), such an assertion, no matter what context occasioned it, is
The “hierarchical governing body of the Church” is the pope and bishops in union
with him (cc.
336), usually operating dispersed
throughout the world (cc.
381), sometimes operating in an
ecumenical council (c.
337). But let's be clear: the
“hierarchical governing body of the Church” is not the ecclesiastical
equivalent of, say, the Democratic or Republican Party (groups that can and do
lose their mandate to govern in any number of ways), nor is the Church's
hierarchy even the equivalent of the federal-state governmental system we know
in America (a structure that need not have been adopted and that many nations do
not follow). Not at all.
Rather, the “hierarchical governing body of the Church” is the divinely-mandated
governing structure that Christ left to his Church. See
Lumen gentium 8, 18-29. It
is the way that Christ wants his Church to shepherd the People of God.
To assert, then, that “the hierarchical governing body of the Church is
no longer capable of leading the People of God” is to assert that
Christ’s plan and his promise of abiding protection were insufficient to
preserve (not so much individuals from sin, for they still have free will, etc.,
but rather, to preserve) the Petrine-Apostolic foundations of his Church from
eventual collapse and, at least from then on, to save her very reason for
existence from radical frustration. In short, one sighs in despair, So much for
Christ and his divine promises.
Of course Fr. Doyle, blessed with free will, can urge this viewpoint, and others
are, I trust, free to contradict him. But we should make no mistake about
what his assertion implies for ecclesiology: if the hierarchical governing
body of the Church really is “no longer capable” of governing, then it
cannot function, not even to reform itself. Nor would the faithful left
drifting in the wake of this purported disintegration of the hierarchy get to,
say, gather themselves into some sort of world-wide “constitutional convention”
and re-found Christ’s Church on X, Y, or Z principles. No, for the Church as
founded by Christ would have already ceased to be, and
her erstwhile members would be left only to realize that she had disappeared.
Over the centuries, to be sure, many have reached essentially the same
conclusion toward which Fr. Doyle's essay seems inclined. Some later repented of
it while others went to their graves convinced of it. We cannot judge their
consciences. But we can say that, among Catholics, including Catholics grieved
by the clerical sexual abuse of children (which is to say, all
Catholics), an ecclesiology of despair in divine promises has no place.
Thursday, July 29, 2010
Contraception and Consummation
I don’t have
time to comment on it now, but
this important essay by
Dr. Christian Brugger, arguing that
contracepted sex does not suffice to consummate Christian marriage,
deserves a wide and careful reading. I hope to offer some more thoughts on the
matter later; for now, I just think that folks interested in current canonical
issues should be aware of this developing theory.
Monday, July 26, 2010
Even canon law is dangerous in the hands of amateurs
The answer to
a canonical question is seldom found in a single canon.
A simple observation, one would think, but it is routinely overlooked by
canonical amateurs, often with inconsequential results of course, but sometimes
with ludicrous ones. Take, for example, a recent post by one “skellmeyer”
who, citing Canon 253, suggests that
Dr. Janet Smith is unqualified to teach
in a Catholic seminary!
Skellmeyer, apparently upset with Christopher West’s presentations of TOB, has
attacked Smith, a prominent West defender, on the basis that, if she is
unqualified to teach in a Catholic seminary, she's probably also unqualified to
defend West. We’ll come back to what one’s teaching in a seminary doesn’t
have to do with one’s defense of West/TOB below, but for now, let’s look at
Skellmeyer’s questioning of Smith’s eligibility to teach in a seminary.
Canon 253 § 1, upon which Skellmeyer relies, states “The bishop or bishops [in
charge of a seminary] are to appoint to the function of teacher in
philosophical, theological, and juridic disciplines only those who are
outstanding in virtue and have obtained a doctorate or licentiate from a
university or faculty recognized by the Holy See.” Obviously this canon is
relevant to assessing credentials for seminary appointments, although how
exactly Skellmeyer concludes that Canon 253 is “among the most roundly ignored canons
[sic] in canon law”, escapes me. I can think of several other
candidates for that dubious distinction. But let that pass.
Skellmeyer then correctly lists Smith’s academic credentials: her Bachelor’s in
Classics from Grinnell College; a Master’s in Classical Languages from the
University of North Carolina; and a Ph.D. in Classical Languages from the
University of Toronto, noting finally that Smith holds the Fr. Michael J.
McGivney Chair in Life Ethics (at
Sacred Heart Major Seminary in Detroit).
Here’s where the trouble begins.
First, Skellmeyer rephrases the canon incorrectly ( “Wow. Can't teach in a
seminary without a doctorate, eh?” ) but worse, mistakenly assuming that
Canon 253 is the sole criterion by which seminary appointments are assessed, and
amid sarcasm that has no place in the public discourse of Catholics, then
launches an attack on Smith (and, while he’s at it, against the esteemed
Ralph Martin and
George Weigel as well!)
Says Skellmeyer: “No good Catholic would violate the sacred canons of the
Church, would they? Would they? . . . Not only does Janet [sic] appear
to be missing a Ph.D. or licentiate in from an ‘institution recognized by the
Holy See’, none of her degrees appear to actually be in theology at all. Could
someone tell me how one gets the Michael J. McGivney Chair in Life Ethics at
Sacred Heart Major Seminary without having a degree in theology? It's certainly
Well folks, it’s not a “poser”, not for anyone who knows canon law or
Dr. Janet Smith.
Canonically, the credential requirement of Canon 253 is unquestionably
among those many norms subject to dispensation in accord with Canons 10, 85-87,
and 149 § 2. Cito, Exegetical Comm., II/1: 273. If, therefore,
competent archdiocesan authorities concluded that Dr. Smith was qualified to
teach in a seminary, they were fully authorized to appoint her.
Nor is this opinion conveniently offered just to aid my friend*:
During the lengthy post-Conciliar canonical revision process, the requirement
newly proposed for Canon 253, that seminary faculty have “pontifical degrees”,
was criticized as being unnecessary in certain cases and unduly burdensome in
many others. This criticism was effectively conceded and remedied when
the pontifical Revision Commission expressly confirmed that the newly proposed
credential requirement could be dispensed from by local authorities.
Communicationes 14 (1982) 166. Smith’s seminary appointment therefore falls
wholly within canon law and Skellmeyer is simply rash to assert that
she "appears to be in violation of canon law."**
Notwithstanding the patent legality of Smith’s appointment, Skellmeyer could, I
suppose, still complain about it to the Holy See. But in complaining to Rome—and
here we come to our second point—Skellmeyer should keep in mind a few salient
points about Smith.
Janet Smith: (1) was appointed in the mid 1990s by Congregation for the Doctrine
of Faith to a three-person team charged with investigating the
highly controversial Grammick–Nugent materials
on Church teaching regarding homosexuality; (2) was appointed in 2005 by the
Congregation for Catholic Education to serve as a
US seminary visitor; and (3) was
reappointed in 2009 to her third five-year term as a consultant to the
Pontifical Council on the Family. I am,
frankly, hard-pressed to think of an American lay woman who has been called upon
to serve more Roman dicasteries than has Janet Smith!
Yet Skellmeyer, having looked up a canon, questions her qualifications to teach
in a seminary. See what I mean by "ludicrous"?
A last thought: by personally attacking Janet Smith, Skellmeyer has done a
disservice not only to Smith, obviously, but also to the other critics
of Christopher West. At a minimum, I seriously doubt that any of the
West/TOB critics I’ve read so far would want to join Skellmeyer in questioning
the suitability of Smith’s seminary appointment or in twisting her academic
credentials into a basis to ignore her arguments on West/TOB. Put another way, I
won't assume that West’s other critics are as hapless as “skellmeyer”, and I
will suggest that arguments for West/TOB offered by scholars as distinguished as
Janet Smith cannot be so cavalierly brushed aside. + + +
* In the interest of full disclosure: I carpool with Smith
about once a week and if, per absurdum, she lost her teaching position
at SHMS, I would have to arrange for alternative transportation on Wednesdays.
Which I’d really prefer not to have to do. ;)
** Moreover, as should be obvious to anyone who reads the plain
text of Canon 253, if Skellmeyer doesn’t like Smith teaching in a seminary, his
beef is not with Smith, but rather, with the present archbishop of
Detroit (who, btw, as Rector of SHMS, hired Smith in 2001!)
Thursday, July 15, 2010
Replies to Ron Modras' six questions on excommunication
individual, indeed, no medium-sized office of people, would suffice to provide
adequate replies to the mostly-junk theology routinely put out by the
National Catholic Reporter. But rather than curse the darkness, I light
here a candle against a single paragraph of Ronald Modras, “Does excommunication
do any good?”,
NCRep on-line 12 July 2010.
Modras asks: “If a girl becomes the victim of a date rape and takes the
morning-after pill, is she excommunicated? And if so, why is she excommunicated
and not the rapist? Or is she excommunicated? Is Zapp now excommunicated for
leaving the church as an institution but not as a community of faith? Does
opting out of paying his church taxes endanger his immortal soul? Was McBride
excommunicated, if she made her difficult gut-wrenching decision with prayer and
a good conscience?”
I will reply to each of Modras' questions below, but first, I must remind
readers that “excommunication” is a penalty, while “latae
sententiae” is a procedure. As soon as one says, then,
“excommunication latae sententiae” one is mixing penal issues with
procedural ones, and sorting out the consequent substantive and adjectival legal
questions is no easy matter. I have long held that “automatic sanctions”
inevitably confuse discussions of ecclesiastical discipline and, for this and
other reasons, I hold that canonical penalties should no longer be incurred
latae sententiae. But that is not my decision to make.
Below, I will answer the harder question posed (wittingly or otherwise)
by Modras, that is, not whether such-and-such action results in automatic
excommunication (against which consequence more defenses could be raised), but
instead, whether such action could result in ferendae sententiae
1. If a girl becomes the victim of a date rape and takes the
morning-after pill, is she excommunicated?
No, but not because very early abortion is not the taking of a human
life and therefore an excommunicable offense (because
it certainly is), but because of insurmountable forensic doubts about
whether an abortion took place on these facts and, even if one did,
whether it was the result of the woman’s actions. (As it happens, I am
addressing this topic as part of a formal advisory opinion to be submitted for
peer-review later this year. Watch for it down the road.)
2. And if so, why is she excommunicated and not the rapist?
Rapists are not excommunicated for the same reason that arsonists, embezzlers,
rioters, bank robbers, drunk drivers, counterfeiters, polluters, traitors—the
list could go on—are not excommunicated: because states adequately punish these
crimes. In contrast, abortion has always been difficult for civil authorities to
detect and prosecute, and today, most modern nations have simply abandoned
preborn babies to abortionists’ fury. The Church steps in to defend as best she
can those most vulnerable to being killed.
3. Or is she excommunicated?
How many times does Modras get to restate the same rhetorical question?
4. Is Zapp now excommunicated for leaving the church as an institution
but not as a community of faith?
I have not followed the Hartmut Zapp case closely and I know little of the
German civil law involved here, but I can say that anyone attempting to drive a
wedge between the concept of the Church as an “institution” and the Church as a
“community of believers” does so with ecclesiological peril. History is rife
with examples of schismatics who left the corrupt and flawed "visible Church”
for the pure and pristine "invisible Body of Christ”. It’s still a schismatic
action making one liable to ecclesiastical sanction.
5. Does opting out of paying his church taxes endanger his immortal
I thought we were talking about the ecclesiastical punishment known as
excommunication, not the eschatological consequences of what might be unrepented
mortal sin. Oh well, since Modras brought it up, any action, if undertaken with
evil motives, can be rendered evil. What Zapp’s intentions were here, I have no
idea. But, again since Modras brought it up, I must caution that even a
seemingly small act undertaken for, say, one’s financial or social benefit
(e.g., tossing just a little incense on the idol’s fire) could amount to an
objectively grave sin against the faith.
6. Was McBride excommunicated, if she made her difficult gut-wrenching
decision with prayer and a good conscience?
“Prayer and good conscience”—assuming such factors can even be weighed in law—do
not excuse intrinsically evil acts such as deliberate abortion. This is
rudimentary moral theology, and it is certainly good law. I am sure Modras would
shudder at real examples of heinous acts performed "in good conscience". We need
not belabor the point.
In conclusion, Modras asks whether excommunication does any good. It’s a fair
question, though hardly one original with him. The Church has asked herself that
question since the Lord walked among us (Matthew 18), and she will continue to
ask it until He comes again. She is certainly open to advice on the matter. But
those offering her advice should first demonstrate an adequate understanding of
the issues, no?
Saturday, July 10, 2010
Friends don’t let friends publish inaccurate headlines
Robert Carlson (St. Louis)
recently published a good article on the
Fifth Commandment wherein he addressed, among other things, the incapability of
support for abortion and Catholic identity. My concern is not with the article,
but rather, with how LifeSiteNews characterized the article.
LifeSiteNews headlined its report
“Archbishop Carlson: Abortion Supporters are Excommunicated, Should not Receive
Communion”. The first half of that headline puts obviously controversial words
in Abp. Carlson’s mouth, but they are words he never said.
“Abortion supporters” describes a very large group of people. The phrase
includes abortionists, of course, and others working in the abortion business,
but it also includes judges, legislators, lobbyists, most media personnel, many
health care administrators, and even ordinary citizens. Now, there are
Catholics who argue sincerely (but in my view quite wrongly) that such “abortion
supporters”, especially legislators, are excommunicated for their abortion
support, and, naturally, they would like nothing more than to be able to point
to a prominent bishop who agrees with their reading of canon law. LifeSiteNews’
headline implies that they have found a champion in Abp. Carlson.
Problem is, Abp. Carlson, a canonist, never said “abortion supporters are
What he said was “The Church attaches the canonical penalty of excommunication
to this crime [procurement of abortion] against human life (see canons
1398,1314, and 1323-1324).” That statement is perfectly accurate, folks, but it
covers a much, much narrower group of people than does the phrase
“abortion supporters”. Even if one were to include the archbishop's sentence
before, namely, “That's why formal cooperation in an abortion constitutes a
grave offense”, the prelate’s words, precisely chosen, cannot be read so as to
embrace all “abortion supporters”. Indeed, Canon 1329 (on formal accomplices in
crime) cannot be interpreted even to include pro-abortion Catholic legislators.
So, whence comes the claim that Abp. Carlson considers "abortion supporters"
excommunicated? Nowhere I can see.
My point boils down to: In matters of controversy, inaccurate re-presentation of
others' positions, even by allies, only hinders the wider discussion. When a man
bothers to write out what he means, I think we should read, and report on, what
he actually wrote, instead of on what we think he meant.
Two quick points: (1) Abp. Carlson took, in his article, no position on Canon
915 (withholding of holy Communion), instead, he reiterated what Canon 916
states, namely, that those in grave sin should not approach the sacrament; and
(2) Abp. Carlson did not say that pro-abortion Catholics are not Catholic,
he said they are not Catholics in good standing.
Update, 14 July 2010: A
much improved headline now graces the
Tuesday, June 29, 2010
RIP Nancy Peters (1923-2010)
charity, kindly remember the soul of my mother, Nancy Peters, who died this
morning in St. Louis after a long illness. Fortified by the sacraments of the
Church, mom died in the presence of my dad, her husband of 54 years, Nade, and
my two sisters, Linda and Sue.
Mom belonged to the Greatest Generation of Americans, for whom the Great
Depression, World War II and Korea (and even Vietnam), the enervating threat of
nuclear annihilation, the ecclesiastical turmoil after Vatican II, and the
steady erosion of Western values was one long and confusing cross. Only those
who experienced it can really understand it, I am sure.
Mom took especial pride in the fact that, as the only one among her siblings
even to enter university (lack of funds later sent her home), she saw all five
of her kids graduate from college. In this, she led by example as well as by
word, taking courses in computer sciences at community college until well into
her 70s. Hard to argue with that kind of commitment, and little surprise that
now her grandkids are following suit.
Requiescat in pace.
Wednesday, June 23, 2010
Pelosi, Canon 915, and excommunication
A couple of
important figures in the Catholic blogosphere (Brad
Miner and my son
Thomas) have called for the
excommunication of Nancy Pelosi, a position they are certainly allowed to adopt
and discuss per Canon 212. Their case for excommunication stands or falls on the
arguments they adduce for it. Both have apparently invoked me, however, as a
supporter of Pelosi’s excommunication, citing
my blog post of March 25th.
Actually, I have not called for Pelosi to be excommunicated (c. 1331)
but rather, for her to be denied holy Communion (c. 915). It’s
a significantly different option, notwithstanding some
overlap in externals. Personally, I think the case for invoking
Canon 915 against Pelosi is airtight,
while an excommunication case against her is, well, not airtight. Not yet,
anyway. Bottom line, my position is: one step at a time.
Normally, I let misunderstandings of my positions go uncorrected (for lack of
time, if nothing else), but both of these men are clearly striving ad bonum
Ecclesiae, and both would, I think, rather see things done right than
simply done their way.
Tuesday, June 22, 2010
Bp. Velasio de Paolis and the Legion
little to say about the Legion of Christ disaster over the last year or so, and
my opinions (published
mostly throughout 2009) about what to do with what's left there are
essentially unchanged. But I read today about the probable appointment of
Bp. Velasio de Paolis as the papal delegate for the
Legion. It's an inspired choice, folks, and deserves
our prayerful support.
Now, let's hope the Spanish and English vice-delegates are as well chosen. + + +
PS: Happy Feast of Sts. Thomas More and John Fisher!
Saturday, June 19, 2010
Some reactions to Fr. Orsy's comments on the Phoenix abortion case
Fr. Ladislas Örsy, sj, one of the most
respected -- I would even say revered -- figures in canon law today, has
a letter in
The Tablet containing his
informal reactions to the Phoenix abortion case. I offer a few reactions of my
own to Örsy's comments in italics, in service, I hope, to advancing
this important discussion.
The articles . . . convey the complexity of the case of Sr. Margaret Mary
McBride whom the Bishop of Phoenix, Arizona, declared automatically, latae
sententiae, excommunicated for allegedly cooperating in a crime of abortion.
EP: I am still not sure that is how Bp. Olmsted intended his
statements to be taken but, absent a direct clarification of the point, I must
say, once again, that this sort of inevitable and distracting confusion is one
more reason why latae sententiae penalties must be eliminated from
modern canon law. In any case, I have already questioned whether the public
statements of Bp. Olmsted would satisfy the requirements for formal declaration
of a latae sententiae penalty. But then, perhaps, they were never
intended to do so.
1. The Code of Canon Law, following centuries of tradition, draws a sharp
distinction between an act that is morally wrong, and a legal penalty that may,
or may not be, attached to it. Thus, the correctness of the penalty must be
judged by its own laws found in the Code.
EP: Quite true, and a good point to recall: It is possible for
one to be morally guilty of a sin, and not be canonically guilty of the
2. The term "excommunication" can be misleading. Briefly, in modern canon
law it means that a person is prohibited from receiving the sacraments and from
holding an office in the church (cf. canon 1331). In no way does such a penalty
"excommunicate the person from the Catholic church".
EP: Again, true, certainly to the extent that modern
excommunication does not expel one from the Church.
3. According to canon 1321.1 "No one is punished unless the external
violation of a law or precept committed by the person is gravely imputable by
reason of malice or [grave] fault, ex dolo vel ex culpa. Excommunication is an
extreme penalty; it condemns a member of the community to spiritual starvation.
The church, therefore, does not want to inflict it unless there is a deliberate
act of defiance. Nothing that we know about the attitude of Sr. Margaret speaks
EP: The word "defiance" is not canonically defined, so it is
difficult to know exactly what is meant in this context, but we should be
careful lest an equivocal word like "defiance" come to imply that one cannot be
guilty of grave sins or liable for grave crimes provided they are commited not
out of "defiance", but instead, out of, say, some misconceived compassion.
Abortion and euthanasia are two common examples of grave offenses that are often
performed out of compassion. But, offenses they still remain, and consequences
they still provoke.
4. Canon 1398 states: "A person who procures an abortion that becomes
effective, effectu secuto, incurs automatic, latae sententiae, excommunication."
The key word is "procures," procurat. Common sense (or any dictionary) tells us
that to give an opinion is not the same as to procure.
EP: To the degree this criticism applies to statements made
about certain third parties to this abortion (statements that seem not to have
been made by Bp. Olmsted), then it is surely correct. But as I understand it,
Sr. M's role was not simply one of expressing an opinion, but
rather, of granting necessary consent. That is a different matter.
However, there is more to it. Ecclesiastical criminal laws are of "strict
interpretation": their meaning is found in their true but narrowest sense. Now,
the narrowest sense of "procuring" does not include "giving an opinion,"
certainly not when an answer must be given under pressure and the question makes
even the experts tremble. Moreover, "to procure" means to do something actively
in order to bring about the intended effect. Not a shred of evidence has ever
been made public that would prove (or even hint) that Sr. Margaret "procured" an
abortion. From what we know, her entire life was dedicated to the saving and
mending of human lives. A good competent judge would take such lifelong attitude
EP: I don't know of any informed commentator who is accusing
Sr. M of having "procured" (as canonists use the term) an abortion. Clearly, she
would be innocent of that charge. But the question remains as to whether her
role was one of necessary cooperator in an abortion per
c. 1329 § 2. If she were a necessary
cooperator to abortion she would be liable to sanction. Finally, a lifelong
attitude of good is no guarantee against committing a grave evil, though
hopefully, it would facilitate one's repentance. (Note that
c. 1344, n. 3 does not
work to mitigate censures.)
5. The Code of Canon Law contains nothing specifically and precisely (a
"must" in criminal matters) about an automatic excommunication inflicted on
"cooperators" in abortion (which does not exclude that their act could have been
wrong and that they may suffer other punishment).
EP: Well, but Canon
1329 § 2 is expressly designed to reach
"accomplices who are not named in a law", so I am not understanding Örsy's point
here. Either Sr. M deliberately lent essential assistance to those committing an
abortion, or she didn't.
It follows that no cooperator is automatically excommunicated unless the
cooperation itself amounts to procuring the abortion.
EP: This, I suggest, is a misreading of the law.
Canon 1329 § 2 does not
require for liability that one's cooperation amount to co-delinquent behavior,
but rather, that one's intentional cooperation make possible the commission of
an offense by another.
6. The church's criminal law is based on an ancient and inviolable rule:
whenever objective doubt exists, however small, as to whether or not a person
has incurred an automatic excommunication, the person must not be held
excommunicated. The rule is not canonical hair splitting; it is for the defense
of the accused. This rule binds every bishop and each of his flock.
EP: Notwithstanding my regret at the presence of latae
sententiae penalties, I do not agree that all "objective doubt, however
small" must be eliminated for liability to attach, else, such sanctions would be
impossible. The law only requires "moral certitude", not
absolute certitude, in reaching most conclusions (see, e.g., Canon 1608).
7. The conclusion is compelling: to say the least, it is highly doubtful
that Sr. Margaret acted out of malice aforethought, or that she actively
procured an abortion. Hence, she could not have been--and she was
not--automatically excommunicated. The declaration of the excommunication by the
local bishop, therefore, is null and void. In her case, canon 1324.3 is
applicable, "the accused is not bound by the automatic, latae sententiae,
penalty" and, of course, no one is bound to respect it.
EP: Having challenged several of these premises, I am not
persuaded by the conclusion as asserted. But I do agree that Canon 1324 § 3
effectively vacates most latae sententiae penalties, though, only
insofar as they are automatic: one might still fall under a ferendae
sententiae declaration of an automatic penalty. Moreover, I again call
Canon 1326 § 1, n. 2 by which Sr. M's
liability for her deed might be increased in virtue of her
office. Finally, as noted at the outset of this discussion, Sr. M's moral
culpability for her role in the direct killing might apply even if she avoids
canonical liability for her actions.
8. At this time no information is available whether or not the case is on
appeal. Be that as it may, we may throw more light on the situation by recalling
what a competent appeal judge should inquire about. He should ask whether or not
the bishop fulfilled his duty detailed in canon 1341: "The Ordinary is to start
a judicial or administrative process to impose and declare penalties only after
he has ascertained that neither fraternal correction, nor reproof, nor other
means of pastoral solicitude [are effective in the situation]".
EP: True -- assuming the bishop launched any penal process at
all, which is not clear to me.
Also, the judge should ask whether or not the Ordinary observed canon 1342.1
mandating that a judicial process--never to be omitted without a just cause--had
been completed before any formal declaration. The bypassing of such injunctions
by the Ordinary may not invalidate the declaration, but it would alert a
conscientious judge to scrutinize the whole process for more substantial
violations of justice. (At the present we do not know how the Bishop of Phoenix
handled such obligations.)
EP: This seems sound to me. I and many others have long
supported judicial penal processes over administrative wherever possible (c.
Final words: Our canonical procedures may have deficiencies (they do) but
there are times, when properly applied, they reveal the humanity of the church
and church's intent to protect the innocent.
EP: Again, sound, though one might question the prominent use
of the word "innocent" in regard to Sr. M given the admissions she apparently
has made. Diminished liability (which I think Sr. M could plead), whether moral
or canonical, is not tantamount to "innocence". In any case, I
agree that some church laws, like c. 1398 against abortion, are especially
designed to protect the innocent. Sadly, the disregard of that canon in this
case cost an innocent baby his or her life.
Saturday, June 05, 2010
That "Catolicas por el Derecho a Decidir" knows little about canon law seems no
bar to their misusing the Code
I see little
point in reacting to Catolicas por el Derecho a Decidir, the latest
group to emerge in opposition to Church teaching on abortion. Groups that simply
recycle a long list of long-refuted pro-abortion arguments are not, I suggest,
really interested in debates, but in agitation. So, like, whatever.
But, I can offer a few words on
CDD's reported use of canon law.
Per the article: "The Catholic Church is influencing legislation to punish
abortion, without taking into account the exceptions to the punishment of
excommunication that Canon 1323 of the Canon Law dictates," Maria de la Luz
Estrada, a member of Catholics for the Right to Decide, said at a press
conference to launch the campaign Monday.
Are there some exemptions from the canonical punishments attached to abortion?
Sure, no secret that. But let's read on.
According to Canon 1323, women who have an abortion will not be
excommunicated if they are aged under 16, or if they 'acted due to physical
force,' 'for necessity,' or 'due moderation against an unjust aggressor for the
sake of legitimate self defense.' Neither will they be excommunicated if they
were 'coerced by grave fear' or if they 'lack the use of reason.'
This jumble of canonical claims requires some sorting out.
1. Yes, Canon 1323, n. 1 exempts from punishment a woman who,
on or before her 16th birthday, has an abortion. The canon does not speak to her
possible moral culpability for having procured an abortion (nor does it
protect abortionists), but it would exempt a young mother from canonical
liability for her act. (But, what is CDD's point? Is the Church pushing for
civil legislation to the contrary?)
2. No, Canon 1323, n. 3 does not exempt from
penalties a woman who, in procuring an abortion, "acted due to physical force".
This claim is just bizarre, but rather than my taking time, beyond denying it,
to prove a negative, let's wait to see if CDD ever offers some arguments as to
why a "physical force" argument should protect mothers who abort their babies.
3-4. No, Canon 1323, n. 4, does not exempt
from penalties a woman who procured an abortion on the grounds of "necessity"
or while "coerced by grave fear" because, as is obvious to
anyone who reads the whole norm, necessity and grave fear do not exempt
when the offense "is intrinsically evil." I know that CDD does not recognize the
intrinsic evil of deliberate abortion, but, what can I say, CDD doesn't get to
define moral theological categories.
5. No, Canon 1323, n. 5, does not exempt from
penalties a woman who procured an abortion on the basis of "self-defense"
because self-defense (assuming it can even be argued, which in almost all
abortion cases it cannot) does not exempt from punishment when the self-defense
is achieved by intrinsically evil means like direct abortion, et ut supra.
6. Yes, Canon 1332, n. 6, would protect from penalties a woman
who aborted her child if, at the time of her deed, she "lacked the use reason."
Short story here: "lack of reason" is a high standard to satisfy, but, yes, it
could be argued and, if proven, accepted. (Again, is the Church pushing
for civil legislation to hold such women civilly liable?)
Now, who (besides maybe CDD) thinks that getting only two out of six canonical
claims correct is a sign of competence?
The wording [of the canons] is open to many interpretations. . .
No, they are not open to many interpretations, at least, not to many correct
interpretations. One could, I suppose, multiply incorrect
interpretations of canon law ad infinitum, but what's the point of
that? Besides obfuscation.
Angeles Gonzalez of the Jalisco Feminist Agenda, an associated member of
Catholics for the Right to Decide, believes the Church is contradicting its own
Okay, well, could I suggest seeking opinions about the Church from someone
other than a member of a group that just botched four of its six claims
about Church law?
Tuesday, June 01, 2010
"Necessity" does not canonically excuse intrinsically evils acts like abortion
The following is a response to two aspects of
Fr. Thomas Doyle's recent analysis of the Phoenix
abortion case. I think several of his
comments deserve replies but I must plead, for now, lack of time.
1. Doyle observes that canon law recognizes the
"doctrine of necessity", a jurisprudence whereby some actions (or omissions)
that, under most circumstances, would be illegal and punishable, may be
performed (or omitted) with impunity. Doyle correctly cites
1983 CIC 1323-1324,
their predecessor-in-part 1917 CIC 2205, and two
classic canonical commentaries (Michiels and Wernz-Vidal) to show that canon law
recognizes the "doctrine of necessity".
That's all fine, though no one I know disputes
that canon law (like every
other legal system worthy of the name) has a "doctrine of necessity". The
question is rather when and how "necessity" can be plead. Now,
to get right to my point, "necessity" cannot be plead
as exculpatory* of an intrinsically evil action like abortion. In demonstration
whereof, I can cite the same authorities invoked by Doyle, Michiels and
Michiels (five pages past the passage quoted by Doyle) writes: "necessity [under
Canon 2205] is never said to excuse from intrinsically evil acts prohibited by
the natural law itself," and, just a couple pages later, Michiels explicitly
lists abortion as an act whose intrinsically evil character prevents "necessity"
from being urged as an excuse. Wernz-Vidal (two pages past the passage quoted by
Doyle), agree: "nor does this principle [of necessity under Canon 2205] apply to
things illicit in natural law, things which cannot be rendered licit by any
necessity." It would be easy to cite to numerous other canonists and moral
theologians who reject, without exception, the intentional performance
of an evil action to achieve any good, but Doyle's own sources, when
read more completely, make the argument sufficiently.
Evidently, "necessity" defenses are not to be lightly invoked in
penal canon law.
2. I am sure that Doyle does not want to challenge Church teaching that
deliberate abortion committed against a human being
is an intrinsic evil (CCC
2271 etc.), so I would assume that his
advice to the faithful contemplating such a horrific idea would be to never
cooperate with or consent to it, regardless of the appealing rationales offered
for the deed or the ambiguities lurking in imperfectly phrased laws.
But Doyle goes too far
I think (if I read him correctly) when he asserts that the mitigational language
of Canon 1324 protects Sr. Margaret from excommunication: first, as Doyle notes,
Canon 1324.3 protects one from
sententiae penalties, but, I would add,
latae sententiae penalties;
not necessarily protect one from later suffering
for a crime.
If, then, as Doyle asserts, Bp. Olmsted's statement
sententiae declaration of a penalty (I'm not sure it was, but Doyle
thinks so) an excommunication
sententiae could have been declared thereby; second, even if Sr.
Margaret could argue "necessity" for a
mitigation of the basic
abortion penalty of excommunication (down to, say, interdict),
could have allowed an augmentation of the penalty back up to
excommunication against Sr. Margaret because she (unlike, say, the mother in
this case) "had abused a position of authority or office in order to commit the
delict". + + +
*Scholion on 1983 CIC 1324.1.5. What
does one make of language in the 1983 Code that suggests "necessity" as
some of level of defense even to intrinsically evil acts? Some thoughts: (1)
unbroken moral tradition against doing any evil to achieve good trumps
the phraseology of a canon that, in a number of respects, seems poorly worded;
(2) this anomalous "necessity" language does not appear in Eastern
canon law; (3) 1983 CIC 1324 and 1917 CIC 2205 permit "necessity" to be plead
only in mitigation of liability for intrinsically evils acts, but never in
exculpation; and (4) the facts giving rise to a "necessity" plea in the first
place would likely diminish culpability on other grounds (e.g., force and fear,
or the relative inferiority of the violated law) and so are probably better
invoked under those headings. In short, while I would clarify Canon 1325 in
regard to necessity, I would not, in the meantime, advise clients that, absent
such clarification in the law, they may commit canonical crimes that are
intrinsically evil provided that the good they hope to achieve thereby is, by
some characterization of necessity, sufficiently impressive.
See also my May 21, 2010 post, "The
Phoenix abortion case"
Tuesday, May 25, 2010
The Maltese bishops on reception of holy Communion
chuckle time, again, reading some secular press characterizations of
the Maltese bishops' recent statement against
reception of holy Communion by cohabiting couples. One would think,
to judge from various secular headlines, that the bishops of Malta and Gozo had
hurled some kind of anathema at quivering couples whose only sin was to love too
The bishops' statement is, instead, a model of pastoral solicitude and firm but
gentle recollection of the saving truths taught by Christ and his Church. Still,
it needs no canonist come from America to tell us that. T'is plain from
the statement itself.
Instead, I pause to say that, any implications that the Maltese bishops are
announcing some new Communion policy are simply wrong: Specifically, no
directives to ministers about withholding Communion were given in the statement.
Instead, cohabiting couples themselves were urged to refrain from reception
unless and until their external conduct is brought in line with Church teaching
on sex and marriage. Even at that, no canons were cited, although
Canon 916 (distinguished from
Canon 915) would be an obvious and
Time will tell whether the Maltese bishops are setting stage for a more direct
intervention in defense of the Eucharist against objectively sacrilegious
reception. But for now, it seems, the bishops are asking offending couples
themselves to amend their conduct, both for their own good and for the good of
the wider Church.
Which is exactly how good pastors go about caring for their flocks.
Saturday, May 22, 2010
Signaturae Apostolicae Referendarius
it was announced that His Holiness Benedict XVI has appointed me a
Referendarius (Referendary) of the
Apostolic Signatura. As one of some dozen
international consultants to the Church's highest administrative tribunal, it
will be my privilege and responsibility to advise*, on an as-needed basis, the
officials of that dicastery regarding matters impacting the administration of
law and justice within the Church.
A number of persons have graciously conveyed their congratulations to me on this
honor, and I am truly grateful for their kind words. But I want to underscore
that I see this appointment not so much as an honor, but rather, as an
invitation to serve more effectively the mission of the Church as the
Even as I prepare, however, to place my training in canon and common law more
readily at the service of the Church, I recall what Canon 1752 stresses, namely,
that "the salvation of souls [is] the supreme law in the Church." Salvation is
not, in the end, a work of law, but one of love. As such, it is a work toward
which we all can, and must, contribute.
Ergo, oremus pro invicem! + + +
It bears mentioning perhaps that (1)
in canon law consultors express opinions only and do not enjoy decision-making
authority over the matters presented to them, and (2) my opinions as a canonist
carry only the weight of the arguments I adduce for them, or in other words,
that in all matters, I speak only for myself and not on behalf of the Church.
Today's original announcement: "Il Santo Padre ha annoverato tra i Referendari
del Supremo Tribunale della Segnatura Apostolica i Reverendi Sacerdoti Eduardo
Baura de la Pena,
Docente presso la Facolta
di Diritto Canonico della Pontificia Universita della Santa Croce, e
Paolo Giuseppe Bianchi, Vicario Giudiziale del Tribunale Ecclesiastico Regionale
Lombardo; i Reverendi Padri Bruno Esposito, O.P., Docente presso la Facolta
di Diritto Canonico della Pontificia Universita
S. Tommaso d'Aquino, e Luigi Sabbarese, C.S., Decano della Facolta
di Diritto Canonico della Pontificia Universita
Urbaniana; l'Ill.mo Sig. Edward N. Peters, Docente di Diritto Canonico presso il
"Sacred Heart Major Seminary" dell'arcidiocesi di Detroit."
Signatura is basically described in
authority of the Apostolic Signatura is set out in
John Paul II, ap. con.
Pastor bonus (28 June 1988),
AAS 80 (1988) 841-930, Artt. 121-125.
The current proper law of the Apostolic Signatura is found in
Benedict XVI, m.p. Antiqua ordinatione (21 June
2008), AAS 100 (2008) 513-538. Referendarii are mentioned in Artt. 3,
4, 9, 10, and 22.
Friday, May 21, 2010
The Phoenix abortion case
(no, make that, the hubris and hypocrisy) of "Catholics for Free Choice", a
group notoriously dedicated to disregarding the right to life of
pre-born babies, criticizing a Catholic bishop for allegedly disregarding a
hospital administrator's right to a good reputation after she admitted
her cooperation in the killing of an innocent baby, is, well, beyond comment. So
let's just move on.
To follow the discussion below, one needs to know that, in late 2009, a Sr.
Margaret McBride, an administrator at St. Joseph's Hospital in Phoenix,
apparently formally cooperated in the direct abortion of a baby in the hospital.
Because of medical record privacy laws, however, and against the backdrop of the
chronic unreliability of secular reporting when it comes to Catholic issues,
exactly who said what after that is a matter of some confusion. But, we do have
Diocese of Phoenix Communications Office "Q-A"
on the case,
CFFC President Jon O'Brien's critiques of the
Phoenix Q-A, and
some statements about the case by Phoenix Bishop
Thomas Olmsted (who is a canonist). Read these carefully before
1. The Phoenix Q-A has only the authority of the Office of Communications to
support it. If there are errors or ambiguous statements in the Q-A, they would
be attributable only as far as the signed author of the document (a Rob
DeFrancesco who, I doubt, is a canon lawyer).
2. No one can challenge, or is challenging, the idea that most of the assertions
in the Q-A are plainly correct. CFFC might not like what the Church
says about the absolute inviolability of innocent human life, and it might
resent the fact that the Church takes violations of such rights so
seriously, especially when such crimes are committed under the auspices of
prominent Catholics, but CFFC cannot dispute that the Church teaches what she
teaches on abortion.
Canon 1398 establishes a latae
sententiae excommunication against any Catholic who "procures" an abortion.
Because it is canonically possible for persons other than the mother and the
abortionist to "procure" an abortion and come under the penalty, the Phoenix Q-A
is right to make this legal point. But, where the Q-A seems to overstate its
case is when it uses language implying that anyone who might fall
within the terms of Canon 1398 necessarily does so. Canonists (like
Olmsted) know what non-canonists (like DeFrancesco) might overlook, namely, that
every canon in the Code must be read in light of every other canon in the Code
and that sometimes other canons (not to mention the specific facts of a concrete
case) might impact the application of a given canon in a given case. If this is
O'Brien's point, he is correct in making it.
4. Further, canon law, like every legal system, recognizes that some crimes are
committed with the cooperation of several people and that such cooperation can
come in different forms and degrees, warranting different levels of punishment.
The Phoenix Q-A is right to alert readers to the possibility that others could
share not only in the moral guilt of cooperating in the killing of an
innocent baby, but also in the canonical liability attached to
cooperation. But what the Q-A cannot do, and what it should not have come across
as trying to do, was to apply that complex area of law to the facts of a
specific case. Again, if this is O'Brien's complaint, he has some basis for
5. There is disagreement among canonists as to how far one's facilitation of a
specific abortion can be removed from the act and yet still fall within the
canonical definition of an accomplice (esp. per
1983 CIC 1329). Good arguments against
holding medical administrators liable for abortions have been made (see, e.g.,
James Coriden in CLSA Advisory Opinions 1986, beginning at p. 141),
but, canonical counter-arguments aside, such opinions depend heavily on the
facts of specific cases. Here I think O'Brien skirts a crucial point.
In the Phoenix case, it appears that the abortion in question could
not have occurred without the specific and express consent of
hospital authorities, and that Sr. Margaret either voted for the request in the
hospital ethics committee or independently supplied the necessary authorization
for the abortion to proceed. Either way, a compelling case that Sr.
Margaret was a necessary, formal cooperator in
the killing of an innocent baby is present. That's what I think her own
admission concedes, and neither Bp. Olmsted nor the Phoenix Q-A seems to be
saying anything contrary.
6. As to whether Bp. Olmsted, as a well qualified canonist, simply confirmed
that the objective elements of a crime (especially those elements revolving
around "cooperation in crime") seem to him to have been met in this case, or
whether he intended his statement to be a formal declaration of the incurrence
of a latae sententiae excommunication for purposes of
Canon 1331.2, is not clear to me (and
certain phrases in the Q-A suggest that he has not made such a formal
decision), but neither is it crucial for appreciating what is happening in this
case. And I say that even though I have long held that latae sententiae
penalties are unsustainable in a modern legal system, that their use
inevitably distracts attention from the underlying offense and redirects it
toward the complexities of the canonical legal system (which most folks are not
prepared to assess), and that the 150 year trend toward reducing automatic
penalties in the Church is good and should be maintained. Still other issues,
such as authority to remit sins and sanctions, are unnecessary complicated by
automatic sanctions as well.
But Bp. Olmsted's reported approach in this case (occasionally to be
distinguished from how the Phoenix Q-A explains things) moots these issues and
puts the focus where it needs to be: on the inviolability of innocent human
life, on the Church's duty to reprove offenders, and on her desire to win back
sinners even from something as terrible as abortion. Bp. Olmsted's actions are,
to put it simply, three-for-three here.
Sr. Margaret's frank admission of complicity seems a welcome first step toward
her reconciliation, and the last thing she or Bp. Olmsted needs now is for
Catholics for Free Choice to stir up a “let’s you and him fight” scenario. Not
when real babies' lives are at issue.
One last thought: I would encourage
Mr. O'Brien to keep reading canon law.
Maybe starting with
Canon 1369. + + +
See also my
June 01, 2010 response to Fr. Thomas Doyle
on this case.
Monday, May 10, 2010
Diaconal categories and clerical celibacy
My article on
"Diaconal categories and clerical celibacy", has just appeared in Chicago
Studies 49 (2010) 110-116. In it I question the rationale and ultimate
sustainability of treating the diaconate as, in effect, two distinct categories
(so-called "transitional" and "permanent"), the implications of this recent
bifurcation for Western clerical celibacy (1983
CIC 277), and conclude with some suggestions for recovering our
appreciation of the essential unity of the diaconate.
Here's hoping folks find it useful.
Wednesday, April 28,
Routine "general absolution" for minors?
Marjorie Campbell recently posted an interesting
essay at InsideCatholic wherein she describes being asked by a priest
in confession, many decades ago, about a girlish romp she and a sister had after
bath time one evening. When the priest began asking questions about the escapade
and her sister's role in it, Campbell clammed up (rightfully, I think, on these
facts) but was eventually absolved of whatever 'sin' her play time could have
possibly amounted to. Even today, though, Campbell says she feels pangs of guilt
for discussing what the priest asked her in confession, and blames the secrecy
of the confessional for the discomfort she felt at his improper questions.
Campbell's is, as I said, an interesting essay, but the solution she proposes
for the problem is not good.
Campbell recommends that "individual, integral confession" (c.
960) not be celebrated by children until they reach age 18.
Instead, Campbell recommends that general absolution be routinely offered to
Catholics under 18, whereupon, one surmises, they will be able to defend
themselves from improper questioning in confession and so may begin taking the
sacrament in the usual way.
This proposal, however, has a number of problems, including (1) avoiding dealing
with the real problem Campbell apparently experienced, (namely, improper
questioning by a confessor), and (2) punishing the innocent (by depriving
children of the benefits of personal confession). Let's see how.
First, I have within arm's reach here at home a half-dozen books by experts in
moral theology and canon law who expressly declaim against confessors
questioning penitents about the identity or activities of third parties, and
that's without even going into my office. (Granted, I probably have more books
on moral theology and canon law on my home book shelves than do most Catholics,
but my point stands: some of the confessor's inquiries here were undoubtedly
wrongly placed.) But Campbell's solution simply avoids the need to address the
primary problem of bad sacramental practice.
Second, general absolution cannot offer the benefits to be gained by one's
engaging in a careful and balanced act of moral self-assessment, so Campbell's
solution essentially deprives young people, for many crucial years, of the
experience of growing in self-knowledge and of developing a lively awareness of
the mercy of God. Moreover, as Campbell notes,
Canon 962 requires later individual
confession by those receiving general absolution (precisely to avoid
one's conscience growing up untamed from the chronic lack of self-accusation),
but Campbell thinks that later time should be upon turning 18 (at which point,
what happens? a general confession of everything assumed in by general
absolutions since age 7?) At a minimum, lest we countenance a massive disregard
for the plain meaning of a canon, Campbell's proposal would require Rome's
amending Canon 962 to apply only to adults, this, despite centuries of
experience showing that regular confession works in real life for people of
every age. Obviously, such a drastic amendment is not going to happen.
And it shouldn't.
If the faithful need renewed catechesis that the seal of confession binds only
the priest, not the penitent, provide it. If priests need a refresher course on
the parameters of sacramental practice, give it to them. If parents need to
underscore with their children their freedom to talk about anything,
anytime with them, underscore it. But don't react to bad practice by
clergy in confession by discouraging young Catholics from approaching a
sacrament provided by Christ and his Church and vital to our growth as
responsible sons and daughters of God. +++
PS: In the comboxes following Campbell's essay, some folks float the idea of
having parents sit in on the confession of their children, or of having
"interpreters" in the confessional when children appear. Both of these ideas are
terrible. The first proposal would have an obvious chilling effect the
freedom of children in confession (see
also CDF's 2007 rejection of so-called "couples confession"), and the
second idea would turn interpreters (persons with specific canonical duties)
into quasi-chaperons (a role they would not be suited for). And both options
would present insoluble conflicts with regard to the seal of and confidentiality
attached to confession.
Wednesday, April 28,
Consultations and Advocacy in Canon Law
years I have received many, many requests for canonical information or
assistance. These requests run a wide gamut from the quick question that can be
answered with a short note (although too many people assume that their
question is a simple one, when in fact it is not!) to proposals for my
involvement in quite complex matters. I try to consider every request presented
to me, but I cannot respond affirmatively to them all.
In any case, for the benefit of those who might wish to approach me for
professional assistance with a matter related to canon law, I have recently
developed a webpage with basic information regarding my
Independent Consultations & Advocacy in Canon and
Common Law. I have also included therein suggestions about other
sources for canonical referrals.
I hope readers find it useful.
Tuesday, April 27, 2010
A primer on ordination blessings and indulgences
questions related to ordinations always seem to surface about this time of year.
Below are four (well, actually, five) points that might be useful to recall.
1. The practice of receiving a priest's "first blessing" after his ordination
Mass is a praiseworthy custom, but there is no specific indulgence attached to
receiving such a blessing or, for that matter, to attending a cleric's
2. There is a specific plenary indulgence attached to attending a priest's
first "scheduled" or "public" Mass (regardless of whether it is designated a
"Mass of Thanksgiving", although it likely will be so designated), and to the
first such Mass only. Enchiridion 1999, conc. 27. The
celebration indulgenced here is not the same as the ordination Mass.
3. Deacons are authorized to give any blessings so listed in the Book of
Blessings and several such blessings could be appropriately given by a
deacon immediately after his ordination. See
1983 CIC 1169.3, and, e.g., Shorter
Book of Blessings, passim, but especially the Appendix "Solemn
Blessing and Prayers over the People".
4. Diocesan bishops may prohibit certain blessings from being offered (1983
CIC 1169.2 and CLSA Comm at 1403). Clergy should
comply with such prohibitions, of course, but are free to discuss the policy
with the proper authorities. Arguments against such prohibitions (say, those
discouraging deacons from offerings blessings) are certainly at hand.
5. It would be within the authority of the arch/diocesan bishop to enrich a
cleric's "first blessings" with a partial indulgence, per Enchiridion
1999, norm 7.1, although the requirement for prior Roman review of such grants,
per norm 12, probably makes such an idea impractical for this year.
Read more about indulgences: Edward Peters, A Modern Guide to Indulgences
(Liturgy Training Publications, 2008) 115 pages.
Monday, April 26, 2010
Canon Law Blog operational again
month's worth of serious technical problems have apparently been solved,
allowing my canon law blog finally to reappear.
changes in the technology hosted by Google's Blogspot software, In The Light
of the Law can now be found at
http://canonlawblog.blogspot.com/ (If you
use a RSS reader to find out about new blog posts, please change your link to
blog posts are fed automatically to Twitter:
Whew. Thanks ever, folks. edp.
Thursday, April 01,
Roman Catholic Arch / Bishops of the USA
regularly updating my
Roman Catholic Arch / Bishops of the USA page, I have
recently been improving the layout of and links offered on the page. Now, for
example, USA auxiliary bishops are found on the main bishop's page (instead of
being posted separately), and a graphics summary of US vacant sees and overdue
retirements is provided at the bottom. I hope folks find it useful.
By the way, the total number of US vacant sees and overdue episcopal
retirements, both absolutely and in terms of cumulative months, are at decade
lows. The serious backlog in necessary appointments that had accumulated during
the last ten years or so of John Paul II's papacy has been dramatically reduced
under Benedict XVI.
Blessed Triduum, all.
Thursday, March 25,
One canon 915 case at a time: Nancy Pelosi
Canon 915 is meant to be enforced might
yet harbor reservations about actually barring from Communion this pro-abortion
Catholic politician or that one, for fear of igniting endless debates about why
one does not also bar that pro-abortion Catholic politician or this
one. The prospect of being criticized for "imperfectly" applying the law might
cause some prelates otherwise inclined to invoke the law to hesitate doing so.
I understand their concern, and have argued elsewhere that
enforcement of Canon 915 is not as simple as some seem to believe.
But, lest the perfect become the enemy of the good, I am convinced that one has
to start what one might call the 'national application'* of Canon 915
somewhere, and that the best case to start with is that of Speaker of the
Before proceeding, let's be very clear about something: verification of the
conditions described in Canon 915 does not merely
authorize ministers to
withhold holy Communion from those 'obstinately persevering in manifest grave
sin'; it requires ministers to withhold holy Communion in such
cases, this, upon pain of dereliction of their sacred office (1983 CIC
Now, I suggest that there is no US Catholic politician whose conduct at the
national level is more stridently and widely pro-abortion (to name just one area
in which Pelosi's machinations are gravely objectionable) and whose scandalous
rhetoric is more overtly Catholic (many of her bizarre assertions the bishops
have had to stop and refute) than is Nancy Pelosi's. If her prolonged public
conduct does not qualify as obstinate perseverance in manifest grave
sin, then, in all sincerity, I must admit to not knowing what would
constitute obstinate perseverance in manifest grave sin.
But, if I am right about the objectively evil quality of Pelosi's public
conduct, then hers should be the first case in which Canon 915 is
applied, even if no one else follows suit (although frankly, I think others
would follow suit, ad bonum Ecclesiae et salutem animarum, which cases
should be dealt with on their own merits). One is not required to
commit to doing every conceivable good before one is required to do the good
right in front of one's nose. One acts on what life presents, and life has
presented us with Pelosi. She is our responsibility, not our parents',
not our children's.
Of course, the bishops with immediate authority to act in regard to Pelosi are
the Archbishop of San Francisco CA, George Niederauer, followed by the
Archbishop of Washington DC, Donald Wuerl. The decision to apply Canon 915 to
Pelosi is, and must be, theirs (and recall that Abp. Wuerl, joined by Bp.
Loverde of Arlington VA, has already
signalled his willingness to honor the banns
imposed by "home" bishops on politicians when they are in DC, though I think
Wuerl's authority is more extensive than
that).** Pretty clearly, some people are already thinking this one through, and
I am sure other prudent and qualified persons are available to assist if needed.
My main point is this: if anyone is hesitating to apply Canon 915 to an obvious
case because he thinks he would be quickly forced to apply it to several others
only nearly as obvious, such hesitation is ungrounded. + + +
* My supposition is not that Canon 915 can only be effective at
the "national level", but rather that, the most prominent Canon 915 cases are
invariably going to be those with national repercussions, and that those factors
might as well be anticipated from the outset. Obviously, a few Canon 915 cases
have already arisen at regional levels, and
some seem quite instructive.
** Conceivably other prelates with sufficient notice of Pelosi's intent to take
Communion in their territory (say, during a visit there) could act to prevent
such scandal, but that is, I think, to place them in a difficult position
administratively, if nothing else.
Update, 26 March: This post
now presented in French at Americatho.org.
Update, 23 June: I think
Brad Miner and my
son Thomas have misunderstood my post
above, at least to the extent that they seem to think it supports Pelosi's
which it doesn't.
Thursday, March 18,
If it deserves Abp. Naumann's attention, it certainly deserves ours
Joseph Naumann of Kansas City KS (no stranger
to doing the right thing under difficult
called out Sister Carol Keehan,
Chief Executive of the "Catholic Health Association" for providing "cover for
any member of the House who chooses to buckle under the pressure of the
President and the Democratic leadership to accept government funding of
abortion". Keehan's arguments, says Naumann, are "either incredibly naive
or disingenuous". He concludes "I encourage you to contact Sister Carol Keehan
and the Catholic Health Association expressing to them your disappointment in
their willingness to accept government funded abortion as part of health care
reform." Abp. Naumann is backed up by
Bp. Robert Finn (KC, MO), and
Abp. Charles Chaput of Denver CO.
"Disappointment" is putting it mildly. This move by CHA leadership (one wonders
whether Sr. Carol sought support from her board before declaring for Obamacare)
is taken in
obvious opposition to the USCCB, not to
mention that it contradicts the studied conclusions of numerous pro-life groups
with long track-records of knowing what they are talking about and who don't
tend to make
gi-normous amounts of money for their
do contact Sr. Carol.
But I raise a further point: To whom exactly is the "Catholic Health
Association" accountable in the first place? It appears that
they answer only to their own board.*
But, if they aren't accountable to a given bishop, or to the USSCB, or to Rome
312), then how does the CHA justify, say,
using the word "Catholic" in their title? They apparently claim
Catholic identity (and tax-exempt status)
in virtue of
their inclusion in the
Kennedy Directory (see Archdiocese of Saint Louis), but do they
deserve such accommodations from the hierarchy?
Groups that want the perks that come from being
called "Catholic" need to
conduct themselves in accord with the obligations of being Catholic,
no? It's time, I think, to take a closer look at the Catholic Health
Association. + + +
CHA Board lists one bishop as a member
(out of 23 slots), Robert Lynch of St. Petersburg FL--sharply
criticized for his stance on the Terri Schiavo travesty--and an
"episcopal liason", Kevin Vann of Ft. Worth TX, who probably has no vote on CHA
Important background reading: Anne Hendershott, "Mixed
Signals: the strategy of powerful Catholic health care advocates in the debate
over reform has left many confused", Special to Catholic World
Wednesday, March 17,
No dispensation for this Friday (St. Joseph) is needed
general law of abstinence from meat on Fridays (c. 1251) does not bind on "solemnities"
(like the Solemnity of St. Joseph, per c. 1246.1 and the
Gen. Norms for the Lit. Year and Calendar)
is so obvious that few commentaries bother to say "If the Solemnity of St.
Joseph falls on a Friday, even in Lent, one need not abstain from meat."
Nevertheless, the exemption from abstinence on solemnities is patent, and one
need not bother pastors or bishops for a dispensation before enjoying a
pepperoni pizza this Friday.
Now, for my fellow canon law geeks, let me add something really cool. The
revised law is not only clear in itself, but reflects two significant changes
from the discipline of the 1917 Code.
First, whereas the 1917 Code exempted Lenten Fridays from the exemption
associated with certain holy days (1917 CIC 1252.4), this
not appear in the revised
law, meaning that solemnities trump even Lenten Fridays (pace Good
Friday, of course).
Second, whereas the 1917 Code spoke in terms of "feasts of precept" as generally
exempting one from the law of abstinence, the 1983 Code speaks in terms of
"solemnities", thus obviating thorny questions about what to do if a given
"solemnity" were not observed as a "day of precept" here or there. Today, the
designation of a liturgical day as a "solemnity" suffices to occasion the
exemption from abstinence, regardless of whether the solemnity is treated as a
holy day of obligation. By the way, this explains why dispensations are
sometimes sought to celebrate St. Patrick's Day when it falls on a Friday in
Lent, for St. Paddy's t'aint'a solemnity, don'tchaknow.
So, this Friday, feel free to enjoy spaghetti and meat balls, and remember to
seek the indulgences attached to invoking the
powerful intercession of St. Joseph. (See
Preces in honorem S. Joseph. Enchiridion 1999, conc. 19; Enchiridion
1986, conc. 6. Circumstances might suggest using the "Blessing of St. Joseph's
Table" contained in the BOOK OF BLESSINGS, Chap. 53; SHORTER BOOK OF BLESSINGS,
Monday, March 15, 2010
Resources on Canon 915
discussion of Canon 915 requires access to key documents on the law and
awareness of the positions taken thereon by qualified commentators. I have
developed a webpage for those who wish to understand, and perhaps contribute to,
the discussions on the application of Canon 915 in the life of the Church.
Materials include: Part One: Relevant Canons; Part Two:
Official Statements on the Law; Part Three: Applications of the
Law; Part Four: Scholarly Commentaries on the Law; Part
Five: Dr. Peters' Blog Discussions of Canon 915; and Part Six:
Other Matters. I will try to update the page as feasible.
Resources for Understanding and Applying Canon 915.
Friday, March 12, 2010
Abps. Dolan and Listecki on holy Communion for pro-aborts
Dolan of New York and Listecki of Milwaukee recently came under fire for
comments they made seeming to express reluctance to
withhold holy Communion from Catholic politicians under various
conditions. Particularly in open-forum comment boxes (always to be taken with
shovel-fulls of salt, those!), there's a lot of sky-is-falling carping against
the prelates for shirking their duties, abandoning babies, betraying Pope
Benedict, and so on. Hogwash.
Neither prelate -- whose commitments to and sacrifices for Church teaching dwarf
the puny gestures of most of us -- has announced a Communion policy at all.
Instead, both made informal remarks to reporters in the midst of addressing
other topics. Listecki's comments, for that matter, expressly refrain from
making a decision in concrete cases, and Dolan's make the totally-correct points
that withholding Communion should not be a pastor's first response and that he
intends to follow the lead of prior popes in this area. Now, if that "lead" is,
among other things,
Ratzinger/Benedict's 2004 directions that
Communion can be withheld under certain circumstances, who can complain? In any
case, time will tell.
Words are important, to be sure, and in the modern world major prelates need to
be constantly vigilant about their words; but actions speak louder than words,
and, in the end, what bishops do in regard to the Eucharist and
manifest public sinners is more important than what they might or might not have
said about the Eucharist and manifest public sinners.
Wednesday, March 10,
Punish married couples for the sins of the DC council?
like me -- should be very cautious in commenting on the recent move by Abp.
to eliminate spousal benefits to future employees
(lest, by providing such benefits in accord with DC's recent legalization of
"same-sex marriage", the Archdiocese of Washington come across as endorsing such
unions). Wuerl is a careful thinker (I say this notwithstanding
my disagreements with some of his statements
on Canon 915); he is right to say that nothing in Church social teaching
specifically demands spousal benefits as part of a "family wage"; and
his critics (a la
Tim Sawina) have
twisted Church social teaching into a stick
to beat the DC prelate while he is trying to deal with an obviously hostile city
That said, I think the archbishop's decision to deny spousal benefits to certain
persons married in the eyes of the Church is a mistake, both as a principled
matter and as a practical one.
First, the archbishop's fears about his coming across as legitimizing "same-sex
marriage" unless he cuts off spousal benefits seem misplaced: no action
performed under compulsion can be construed as necessarily signaling approval or
agreement with such action. This is basic moral reasoning, and without it,
consciences are subject to infinite scruples and society quickly ceases to
Second -- and even though, like most good lawyers, I don't go around looking for
battles nor do I lightly recommend them to others -- what appears to be a very
promising case to fight this intrusive legislation is being squandered by the
archdiocese's capitulation to the policy. The archdiocese seems to have very
good facts on its side and is blessed with real resources to fight this civil
imposition on its governance. It could doubtless attract significant support
from others if it turns and fights. If it folds, however, not only is its own
position lost, but many other smaller operations, less able to resist, will
doubtless come under added pressure to conform.
Third, as it stands, the archdiocese's decision does not deny a single
gay-couple coverage, but it does deprive people who are trying to live
in accord with Church teaching on marriage and the family the dignity of having
their vocation recognized
in something besides papal encyclicals and catechisms. The pressures bearing
down on married couples, especially those raising children, are burgeoning,
while the concrete gestures of support toward them are becoming ever fewer and
further apart. One of these days . . .
There are, I think, other problems with Abp. Wuerl's decision to eliminate
certain spousal benefits rather than to risk paying them to same-sex couples,
but the foregoing should be enough to suggest that the current approach has
Saturday, March 06,
Answering Msgr. Pope's good question
Msgr. Charles Pope asks whether we need a new word
for "marriage". He deftly outlines how the word "marriage" has been
gutted over the last generation or two, and proposes that we (presumably,
Catholics) start pushing the phrase "holy matrimony" instead.
It's an attractive idea, at first glance, but it stumbles pretty quickly, I
First, it's not Catholics who need to find a new word for "marriage", rather,
it's social engineers who need to find a new word for whatever exactly it is
that they think 'same-sex marriage' is meant to be; in any case, they should
stop co-opting our perfectly fine term.
Second, it falls to the Church to protect true marriage not just for Catholics
but for all human beings; the plain fact is, however, the great majority of true
marriages in the world are not sacraments (because the parties thereto are not
baptized), hence, most truly married couples are not in what may be called "holy
matrimony." It wouldn't do to protect "holy matrimony" while abandonning true
marriage to the machinations of secularists.
So, okay, maybe this particular solution to the crisis in marriage won't get us
very far; but that doesn't mean that the sort of radical steps that monsignor
has in mind aren't needed. It just means that he needs to keep on helping us
find and refine those solutions.
Friday, March 05, 2010
If King Juan Carlos signs, what then?
parliament recently approved an expansion of that nation's legalization of
abortion, and it is now hoping that King Juan Carlos will sign the measure. The
complexities of Spanish civil law are beyond me (so I don't know exactly what
the king's role in the government is), but I do know that any signature on a
piece of paper that endorses the legitimization of abortion is an objectively
immoral act, regardless of whether such signature is legally "required" for the
act to become law. We are talking about concrete actions that are contrary to
divine law, against which the technicalities of Spanish protocol count for
That said, though,
Human Life International seems to be over-reaching
when they call, not simply on the king to refrain from signing such
legislation (of course), but, in the event that the king does sign the measure,
on the Spanish episcopal conference to declare the king excommunicated.
Two problems: first, it is not, repeat not, clear just what canon(s)
HLI thinks put the king at risk for excommunication, but that's a discussion
I'll reserve for those who are actually familiar with the relevant canons;
second, and more to the point, not only have episcopal conferences no authority
to declare anyone excommunicated, but, solely the Roman Pontiff may address
canonical cases that involve "those who hold the highest civil office of a
state" (1983 CIC 1405).
I hope, for the sake of his soul, that the king does not sign this measure, but,
if he does sign it, the canonical consequences are not going to be
decided by Spanish ecclesiastical officials. + + +
Friends tell me the king signed the act yesterday.
Wednesday, February 10,
Some options for responding to the Albany diocese's needle exchange program
I have made the case that, in authorizing
a needle-exchange program, Albany's Bishop Hubbard,
et al., is formally*
cooperating with the evil of drug abuse. As no man can judge his own cause,
however, I must leave to others to decide whether I have made the case against
the bishop's decision adequately.
In the meantime, some who think that my arguments are correct (or that I have at
least shifted the burden of proof to the Albany authorities) are now asking who
might have the ecclesiastical authority either to prohibit further cooperation
by the Church of Albany in this program or to direct it to vindicate its actions
against the arguments raised by opponents.
I address those procedural questions now.
faithful are free to make known to sacred pastors their
opinions on matters affecting the good of the Church (c. 212), but they have no
basis for seeking the canonical equivalent of "injunctive relief" or a
"declaratory judgment" in a case like this.
metropolitan of the province of New York has no authority to intervene
in this action by a suffragan church, but if he concludes or fears that Albany's
action is an 'abuse of ecclesiastical discipline', he could inform the Roman
Pontiff of same (c. 436).
USCCB has no authority to intervene directly in this action by a
particular church. The USCCB could, I suppose, issue an opinion on the moral
liceity of this program, but beyond that, any formal intervention by the
conference would require prior Roman approval (c. 455).
The Congregation for the Doctrine of the Faith (ap.
Pastor Bonus 48, 50) and the
Congregation for Bishops (ap.
Pastor Bonus 79) have, I
believe, the authority to seek from the bishop an explanation of these actions,
and (especially in the case of CDF) they also have the authority to direct the
diocese to cease its cooperation in the program if they find it inconsistent
with or contrary to Church teaching and/or practice. Whether Roman dicasteries
find this situation to rise to a level warranting their attention is not for
others to say.
possibility that this needle exchange program constitutes formal
cooperation in an evil action, there is the possibility that it constitutes
unacceptable immediate material cooperation with evil and on that basis
should be discontinued. I have focused on the formal cooperation question, and
leave to others the case against this program insofar as it might be
unacceptable material cooperation. If this program fails moral analysis under
either rubric (formal or material), of course, it should cease.
Tuesday, February 02,
Arguments against Bp. Hubbard's authorization of "needle programs"
Formal cooperation in another's evil act (that is, undertaking to
help expressly another to perform an act known to be evil) is itself evil.
Moral and Pastoral Theology (1938), I: 341-342. There are no
exceptions to this rule; no supervening circumstances can ever render formal
cooperation in evil good.
The use of [illegal] drugs "inflicts very grave damage on human health and life
[and] . . . is a grave offense. Clandestine production and trafficking in drugs
are scandalous practices. They constitute
direct co-operation in
since they encourage people to practices gravely contrary to the moral law."
CCC 2291, my emphasis. See also Pontifical Council for Pastoral Assistance to
Health Care Workers,
for Health Care Workers" (1995), n. 94.
I think that one who supplies, without a physician's
prescription, needles/syringes (nb: devices with only one practical use) to
people whom one reasonably believes will use those devices to inject illegal
drugs into their own bodies and/or the bodies of others, encourages those people
to practices that are gravely contrary to the moral law, rendering thereby, it
seems to me, direct assistance to their commission of an objectively gravely
evil act while intending precisely to help them accomplish that act. This
conclusion is not contingent on whether the needles are clean, or are
merely exchanged, or on any other accidental aspect of the program.*
The only question is whether giving a syringe to a drug abuser abets his or her
injection of illegal drugs. If it does, then giving a drug user a needle
formally cooperates with the specific evil of his or her taking those illegal
Bp. Hubbard of Albany authorized his Catholic
Charities office to distribute syringes to apparent drug abusers,
in my opinion, he began formally**
cooperating in the grave evil of drug abuse in his diocese.
Now, I can't imagine that any of these observations
come as a surprise to the Albany administrators who spent, what? five years?
developing this proposal. But the official inadvertance to some pretty obvious
objections (at least in the materials I located in this matter so far) is
disquieting. Perhaps the powers-that-be will share their analysis more fully, or
at least cite us to some experts who are willing to stand behind this program?
In any event, if my moral analysis is correct (and I
invite interested persons to carefully investigate the tradition for
themselves), then there is an obvious concern for the scandal (in the classical
sense of that word, that is, conduct that has the effect of diminishing others'
sense of sin and/or encouraging others to commit sin) that is given when, not
simply Catholics, but Catholic bishops approve the public distribution,
under Catholic auspices, of injection devices to users of illegal drugs.
Indeed, if a
bishop, who is to be "an example in holiness and charity" (1983
CIC 387; CCC 893), uses his offices to achieve the distribution of
needles to illegal drug users, is he not abusing ecclesiastical power or
function and/or placing acts of ecclesiastical power, ministry or functions with
harm to others, contrary to
Canon 1389? If such actions are
undertaken by one who "has been established in some dignity or . . . position of
authority or office" (1983
CIC 1326.1.2), does that not make the immediate reversal, or at least
suspension and reconsideration, of such a decision all the more urgent? + + +
To be clear, under Catholic moral analysis, there are no justifications for
formal cooperation in evil, so if needle programs
are formal cooperations in
evil, we need not comment on the various
justifications alleged by proponents of
needles-for-illegal-drug-users programs. We simply cannot do evil to achieve
good. One could, however, if one wishes, see
some brief comments by Fr. Tadeusz Pacholczyk,
Ph.D., on "safe injection sites".
** In 1999, the
Congregation for the Doctrine of the Faith directed
an Australian religious hospital to cease providing an
injection room for heroin addicts on the
grounds that such assistance was "an extremely proximate material cooperation in
the grave evil of drug abuse." I don't have all the facts of that case or the
entire CDF letter, but it is interesting to note that CDF reproved what it
considered to be "only" direct material cooperation in drug-abuse.
While I argue that Bp. Hubbard's action here seems to constitute formal
cooperation in drug abuse, even if his actions were deemed to be "only"
material cooperation in illicit drug use, they would still labor under
weighty moral objections.
More from Religion News Service;
A brief discussion over at Catholic Answers on-line
NCCB/USCC, "A Response to the HIV/AIDS Crisis"
(1990), wherein: "Education and treatment aimed at changing behavior
are the best way to control the spread of HIV among intravenous drug users and
to prevent passage of the virus to their sexual partners and to children in the
womb. Although some argue that
distribution of sterile needles should
be promoted, we question this approach for both moral and practical reasons:
More drug use might result while fewer intravenous drug users might seek
treatment; Poor monitoring could lead to the increased spread of HIV infection
through the use of contaminated needles; Distribution of sterile needles and
syringes would send message that intravenous drug use can be made safe. But IV
drug users mutilate and destroy their veins, introduce infection through
contaminated skin, inject substances that often contain lethal impurities, and
risk death from overdoses." My emphasis.
More analysis from Religion News Service, 5 February
Feb 4 thru 8.
I have seen a number of reactions to my argument that Albany's Bp. Hubbard is
formally cooperating in the evil of drug abuse by his authorization of a needle
exchange program under a diocesan office. Some reactions are thoughtful, some
are ridiculous, some are signed, others are anonymous, and so on. In no
particular order, and with no pretense of completeness, I will offer below, time
permitting, some "reactions to these reactions".
1. Somebody wrote that, since the addicts have a needle before the exchange, and
they have one after, the status quo is the same, and no harm is done.
Great scot. Do we really need to address this? If an addict gets and uses a
needle for drug abuse on his own, that's his responsibility; but if I give
him the needle, knowing what he plans to do with it, it becomes mine.
Analogy: suppose a man declares his intention to commit a
stabbing (that is, to do an evil act), but I notice that the knife he is holding
is rusty, covered in excrement, and lacks a safety grip (thus, the device he
intends to use poses serious risks not only of cutting, but of infection, to his
victim, himself, and maybe to others). Should I call out to him "Wait! that's a
dangerous knife you have! You might accidentally infect yourself or others if
you use it! While I am opposed to stabbing, and while I sincerely hope that you
won't go out and stab someone, since you insist on stabbing someone, at least
use a clean knife and thus lower the risk of infections." Whereupon I hand
him a clean knife.
How can anyone miss the fact that, in handing a self-declared would-be stabber a
knife, I have given him the specific tool that he will use to commit a
specific evil act, despite my knowing that he intends to perform the
evil act, and thus come share in the guilt of the evil of a specific stabbing?
* A lawyer buddy of mine observes, "Try using that line as a defense to a charge
of aiding and abetting muder or attempted murder. You'd be laughed right out of
court." And right into prison, I might add.
Likewise arises the guilt of those who give needles, of all things, to drug
abusers, of all people.
By the way, the guilt of such persons for an addict's specific
act of drug abuse might be higher, because they are not addicted and
thus should be in greater control of their thinking and decisions than
a drug addict likely is of his!
2. Some else writes, needle exchange programs indisputably reduce the spread of
disease (and so should be supported). Well, credible others do dispute
the so-called "indisputable", but my argument against needle-exchanges does not
rest on whether such program are "effective" in reducing disease, but rather, on
my assertion that such programs are morally wrong.
There are lots of ways to achieve "good" results in the world, right?, but some
ways are impermissible because they involve doing evil deliberately. There are
thousands of examples such scenarios, I need not list them. I am trying to get
people to see that the weighing of competing "good" and "bad" outcomes is
irrelevant if either result, even the "good" one, is to be achieved
through morally evil means.
3. Some folks oppose needle exchange programs on the basis that we/society
should be doing more for addicts than giving them clean needles. Personally, I
agree with such a claim, but my argument does not rest on it. Mine is not
argument of prudence (a la, certain resources should be have better
spent, or, needle-exchanges only mask deeper problems), rather, my argument is
that this diocesan program constitutes formal cooperation in specific evil acts
of drug abuse and so should cease. Immediately.
4. Some observe that the local police have approved of the needle program, so we
shouldn't complain about it. First, I don't know exactly what the police (or the
City Council, etc.) have said, but whatever they said, it's not relevant to
whether this program passes Catholic moral analysis. The police do not determine
what is moral, they do not even determine what is legal; they determine, as a
practical matter, how to apply their limited law-enforcement resources to the
real world. Their decision, then, not to arrest drug abusers in and around this
van (if that was their decision) is at most one of prudence, not of morality. I
am arguing the immorality of this program.
5. Some seem to think that my opposition to the Albany needle exchange program
rests on the assumption that such programs "encourage" drug abuse, iow, that I
fear such programs result in a net increase in illegal drug use. They point to
studies indicating, however, this is not the case. Okay, fine. I'm not qualified
to assess these studies, but, again, I don't have to: my argument against the
diocesan needle program is not a prudential one concerned with whether
the program increases or decreases drug abuse or disease, it is a principle
argument that one may never do evil to achieve good, and that this program
formally cooperates in specific evil acts, thus doing evil to achieve good.
Again, whether the total number of evil acts goes up or down is not germane to
whether this program itself is an evil.
This is why, btw, one may not walk up to an abortionist and kill him despite the
forseeable result that by killing him, one would reduce the number of babies he
destroys. Obviously, killing an abortionist would bring the number of his future
evil acts down to zero, but, in the meantime, one would have committed a grave
evil in murdering him. One is not permitted to perform, or to counsel others to
perform, or to knowingly equip others to perform, any such evil act.
6. Some folks concede that the Albany needle program is material
cooperation in evil (perhaps even a material cooperation to an impermissible
degree of directness) but they reject that it is formal cooperation
because the program never endorses, and even might counsel against, drug abuse
during the actual needle exchange. In other words, these folks seem to believe
that the concomitant recitation of words, (nay, the sincere recitation of words)
vitiates one's cooperation in evil, rendering merely material what
would have been formal.
Not so. Actions speak louder than words, and the
action here is to put into
the hands of one proposing to do evil the tool used to do that evil, knowing
what use the evil-doer has planned. To hold that the offering of advice against
an evil action is sufficient to obviate one's cooperation in the evil action
performed with one's assistance, is to enable anyone to escape moral liability
for assisting in evil action simply upon uttering exculpatory words.
When might words reduce or even eliminate one's liability for cooperation in
evil? When the cooperation is merely material to begin with.
Example: If I give a drug addict $ 20, with the advice "Buy
some food", I am aware that, yes, he might in fact buy drugs or a syringe with
the money. But I have not endorsed such use, I have advised him to a good use,
and I have enabled him, here and now, to do that good with what I gave him. If
he misuses the tool I gave (the $ 20), that's his responsibility.
But if I give him a tool (a syringe) that can, in the practical order, only
be used for evil, and which I am reasonably certain will be used for that evil,
my words about "Don't do it, it's bad for you," etc., are belied by my actions,
which is to assist him toward his evil plan, knowing of his evil plan. The only
thing a drug abuser can do with a syringe (as opposed to doing with $ 20) is
take drugs with it, and I know I it (and he knows I know it), and I give him the
tool anyway. That makes my cooperation with his evil act of taking drugs
7. Some have asked whether the Albany needle-sharing program falls under the
same moral strictures as condom distribution programs. I have not considered
that question closely, and I make my case against needle exchanges independently
of the condom issue, if only because, in the condom case, the underlying action
might be a good (e.g., married sex) that is distorted by condom usage, whereas
in the needle exchange scenario, the underlying action, illicit drug use, is
always gravely disordered, though it is rendered more dangerous by using dirty
8. Paraphrasing another post here, "the needle program might be evil, but it
does reduce disease, so, maybe it's okay for the state to do it, but not the
Church." Ummm, the Church (the Diocese of Albany) should not do it because it's
evil, but because it's evil, the State should not do it either. Okay?
9. Why is this needle program not acceptable as an application of the
principle of double-effect? Because, double-effect analysis, as shown
by its first criterion (the action must be either good or at least morally
neutral in itself), applies only to situations akin to material
cooperation in evil, not formal. Here, I argue that the action under
discussion (giving needles to drug abusers who intend to use them to do illicit
drugs) is itself a formal cooperation in evil, so the effects (double,
triple, whatever) are irrelevant to assessment of the morality of the act.
10. Others ask, isn't it Albany's "intention" here to reduce disease? No,
Albany's motive or goal in running the program is to reduce disease,
but their intention in doing this needle program is to give needles to
drug abusers knowing they will use them to do illegal drugs. Maybe we can make
it clearer thus:
10 A) Suppose a trustworthy source says "Ed, please bring this (wrapped) package
of food down to those drug abusers at the corner." I say fine, and do so. I have
done a morally good (or at least neutral) action because I intended to deliver,
and did deliver, morally neutral goods to people who can use them licitly, even
if they happen to be drug abusers.
10 B) Okay, now suppose a trustworthy source says "Ed, please bring this
(wrapped) package of food down to those drug abusers at the corner." I say fine,
and do so, except this time, it turns out that the wrapped package was full of
illegal drugs and syringes. Now, even though I intended to deliver
food, I actually delivered drug paraphernalia to drug abusers; but even
so, I am morally guiltless for the act, because I intended to
deliver what I reasonably believed was food to people who happen to be drug
10 C) Continuing, if a source says, "Ed, please bring this package of syringes
to the hospital", and I do so, I have performed a good (or at least neutral)
act, because I intended to deliver and did deliver medical supplies to what I
was reliably informed was a licit recipient.
10 D) But, in the Albany situation, one says, "Ed, please bring these syringes
to the drug abusers on the corner". If I do so, I have performed an evil action
because I intended to deliver (and did deliver) drug paraphernalia
to people whom I can reasonably predict will use them illicitly. (Nb:
if I deliver what I think is drug paraphernalia to drug abusers, but
unbeknownst to me the package contains food, I still incur moral guilt because I
intended to do, and did do as far as I knew, an evil action!)
Notice, in none of these scenarios was my motive (whether it is to make
money, to help in crisis relief, to save my brother a trip, to reduce disease,
whatever) relevant to assessing what my intention was in engaging in
the specific act of delivering a known something to a known
someone who had a known purpose. Obviously, then, the primary factors
determinative of the morality of this action are in what is (known or believed)
to be delivered to whom and for what use, and not in the motives or
goals of the giver.
Some options for responding to the Albany diocese's
needle exchange program (10 Feb. 2010)
February 2010: I see that
Robert Araujo, SJ, of Loyola Univeristy Law School,
has weighed in
against the Albany needle program.
Tuesday, January 26,
Ban the Tebow commerical?
Women's Media Center,
National Organization for Women, the Feminist
Majority, and other groups want to ban a commercial featuring Tim
Tebow and his mother talking about the value of human life?
I say . . . Go Girls, Go!
Banning Tebow & Mom's spot will leave more time for sexually exploitative ads
implying that women are basically bonus awards for guys drinking the right brand
of beer, and besides, why would NOW et al ever want to see a commerical
that emboldens women to stand up to male doctors and exercise their own judgment
when it comes to medical care?
No, Tim Tebow and his mom are sending a very dangerous message to
Well, to "feminists", anyway.
Tuesday, January 26,
Canonical Save-the-Dates: August 3 & 4, 2010
intersections between canon and civil law in America are becoming ever busier
and trickier to navigate. It's with real excitement, then, that I am giving
Canon Law Blog readers a heads-up for a summer conference brimming with
canonical and civil expertise.
Shrine of Our Lady of Guadalupe in La Crosse, WI,
is hosting a Canon Law Conference for Canonists and Civil Attorneys on Tuesday
and Wednesday, August 3 and 4, 2010. It will feature several of today's most
important American (or Roman, as the case may be!) canonists, including canonist
Abp. Raymond Burke (Prefect of the Apostolic Signatura), canon and civil lawyer
Rev. James Conn, sj, (editor of the Gregorian University's Periodica de re
Canonica), and canon and civil lawyer Rev. John Coughlin, ofm, (Special
Professor of Law and Theology at Notre Dame).
I can't imagine missing this terrific line-up, and I hope many of my readers can
visit especially-lovely-in-the-summer Wisconsin for some stimulating discussions
of canon and civil law.
brochure is here, and the
registration form is here.
See you there!
Thursday, January 21,
An invitation to join me in reading the Decretals of Gregory IX (1234)
the year 1230,
(St.) Raymond Penyafort began compiling
the texts that would eventually comprise Pope Gregory IX's famous
Quinque Libri Decretalium. Upon its
promulgation in September of 1234 as the Church's first authentic collection of
canon law (not yet a Code, but a binding collection nonetheless), the
Liber Extra (as the QLD was also known) was the mechanism by which the
canon law of the Catholic Church functioned for nearly 685 years, that is, until
the Pio-Benedictine Code went into full effect in 1918.
By any measure, that's a lot of Church history, legal and otherwise,
and it's a pity so few ecclesiastical scholars know about the Liber Extra,
let alone consult it anymore.
Well, I've decided to do something about that, and I invite a few brave
folks to consider joining me: Over the next four years or so, I plan to
read the Decretals of Gregory IX, straight through, wrapping up by September
The QLD consists of roughly 1,870 "chapters" (some of which are only a few lines
long), grouped under 185 "titles", themselves arranged into 5 "books". These
texts, as it happens, fill some 930 columns in the second volume of
Freidberg's edition of the
Corpus Iuris Canonici. Now, if one reads just one
column per day, just Mondays thru Thursdays even, one can complete the QLD in a
little over four years. I think that's an eminently do-able project. If you
think so, too, and if you decide to join in this extended study project, drop me
a note at
Sacred Heart Major Seminary, and we'll
stay in touch over the coming years. I think our time will be well rewarded.
I will post where I am in the reading
here. If you can't find a hardcopy of the
Liber Extra, it is available on-line, sans commentary,
Two points: Personally, I am inclined to skip the sometimes lengthy partes
decisae, that is, source materials that were omitted by St. Raymond but
included by Friedberg (see DDC VI: 1248). After all, these partes did
not form part of Decretal law, and who am I to second-guess a saint and his boss
the pope? On the other hand, many partes are quite short and can be
easily accommodated in the course of one's regular reading. Second, I am
undecided as to whether to read a gloss along with the Decretals. Bernard's
Glossa Ordinaria can be read, if slowly,
here, but most of
the other commentators on Decretal law
Fagnanus or Reiffenstuel) are far too
long to manage in the time allotted. So, I don't know yet. Maybe
Gottofredo would work (allowing for its
primitive fonts). We'll see.
My guess is that the last men likely to have read all of the Decretals would
Wernz (d. 1914),
Gasparri (d. 1934), and perhaps Dom
Augustine (d. 1944). Let's pick up where they left off. It just requires some
self-discipline and keeping up with the reading in small steps.Who knows what
St. Raymond of Penyafort, patron of canonists, pray for us!
Ps: Be sure to ask our Lord for the indulgence attached to the study Christian
doctrine (Enchiridion 1999, conc. 6; Enchiridion 1986, conc. 20; see also
"Blessing of Students and Teachers" contained in the Book of Blessings, Chap. 5
and in the Shorter Book of Blessings, Chap. 4.) The partial indulgence applies
to self-study projects within any recognized ecclesiastical discipline, and not
just to catechetics. See
1983 CIC 827.2.
The initial response to this idea is encouraging. I
have set up on my CanonLaw.info website a project webpage ad lectionum usum,
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