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Edward Peters

In Light of the Law 

A Canon Lawyer's Blog: Archives: 2005

(Go to Current Issues Blog)

The following observations represent my opinions and I am solely responsible for their content. 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



19 April E-Bay and the Eucharist


     Faithful Catholics react with disgust to the news that some folks are apparently attempting to use eBay to sell consecrated Hosts (obtained at papal Masses, no less). A few thoughts might help focus our discussion.


     1) The sale of consecrated Hosts is a grave moral evil. Even the “private” retention of the Eucharist (say, for personal adoration in the home) is illicit and exposes consecrated Hosts to risks of profanation.


     2) The purchase of consecrated Hosts is morally neutral, the moral character of the act being determined more by such factors as the purchaser’s intention (e.g., to possess it for the purpose of desecration, or to possess it to save it from desecration.)


     3) EBay’s role in this event, so far, is one of “cooperation in evil” and the standard rules for assessing such cooperation should be applied before deciding what action to take, if any, in regard to eBay.


     4) We have only the seller’s word that these wafers are consecrated Hosts. If someone is willing to sell consecrated Hosts, should we so easily assume that they wouldn’t lie about the wafers being consecrated in the first place?


     5) There is no general moral obligation on the part of Catholics to purchase (allegedly or actually) consecrated Hosts, even to save them from potential desecration. That the purchase of such objects encourages a “market” for them should be remembered.


     6) This situation has virtually nothing to do with Communion in the hand. Hosts were being taken for sacrilegious purposes long before Communion in the hand, and were being sold for same long before eBay. Of much greater relevance here would be poor Eucharistic catechesis and the increased brazenness of sinners bent on hating Our Lord in the Sacred Species. The remedies include augmented education and personal penances offered in reparation for such offenses.


     The above facts do not exempt us from taking the latest variation on a sad theme seriously, but they should help us keep it in perspective. +++


     Fact updates:


     More updates (25 April) this apparently from eBay:


We understand that you are upset at having seen certain Catholic items or items related to the Pope on eBay, including item #6169851381. Because eBay's community is a diverse, international group of more than 135 million users with varied backgrounds and beliefs, there are times when some items listed on eBay by sellers might be offensive to at least some of our users somewhere in the world. At times, members may see listings that they may consider morally wrong or objectionable. However, even though these listings may be offensive to some, please remember that most of the time the law does not prohibit the items.

Due to the fact that eBay's focus is to have a free and diverse community, we are reluctant to interfere with listings that are not illegal. Regarding offensive items, there are many items that are considered sacred to many people of various religions, and we sometimes hear complaints about these items. Examples would be Catholic relics of saints, Mormon (LDS) garments, certain Buddhist tablets, etc. However, eBay has made the decision not to prohibit any item only on the basis of the item being endowed with sacred properties by certain religious groups. In general, eBay will remove items for a violation of our Offensive Materials policy only in extreme examples in which the listing explicitly promotes hatred, violence, or racial intolerance. However, we do not remove religious items that are otherwise legal for sale and do not violate any other eBay listing policy.

Please keep in mind that many of us at eBay may also share your distaste with an item, and may not support the sale. In fact, eBay has many Catholic employees. However, we do our best to understand and tolerate the many viewpoints held by our worldwide community. The Eucharist is not illegal to sell, and is generally allowed on eBay as long as the seller does not otherwise include hateful text or images in the listing. Although we realize that you may not agree with this decision on eBay's part, we hope that you can respect the diverse and open nature of eBay's marketplace.

Regards,  eBay Community Watch

This would be a credible response and needs to be taken on its merits. The points it makes are consistent with my suggestion that eBay finds itself in a position of cooperation with evil (whether they quite realize that themselves), and thus those standards for behavior need to be applied to determine whether eBay is acting morally or immorally.


     1) May I boycott eBay? Of course, if you want to call it that, since you are not required to do business with them in the first place nor are you in the position of patronizing them frequently for necessary goods or services.


     2) May I encourage others to boycott eBay? One is free to share one's opinions with others, but your conclusions should be morally sound, i.e., you should be able to defend your determination that eBay itself is acting immorally in allowing allegedly consecrated Hosts to be sold. Moreover, you need to consider that boycotts often hurt innocent people (see eBay assertions above) and that a boycott failure can result in more brazen acts by offenders in the future (if only by suggesting impotence on the part of boycotters).


While these points are being sorted out, may I suggest that well-intentioned Catholics STOP BUYING allegedly consecrated Hosts on eBay or anywhere else, and that we make better known the possibility that a world which would sell the Eucharist in the first place would not scruple to claim falsely that such-and-such a wafer is the Eucharist precisely in order to sell it. Seriously folks, this is the Internet we're talking about here: why are so many people so easily believing such claims by people who, well, would claim to do this? What possible evidence could they offer for their claim, besides their "word"? Meanwhile, what motive would they have for lying? US $ 2,000 is a nice start. +++



2 April 2005 John Paul the Lawgiver


One hundred-and-seventeen cardinals are preparing to enter the next papal conclave, and doubtless each one is thinking to himself: “There are at least one hundred and sixteen men more worthy than I am to become the next pope.” But inevitably, one of those men must be wrong. And in relatively little time, we will know who he is.


Who would want to fill the shoes of Pope John Paul II? Theologian, philosopher, apologist, political scientist, priest and bishop, and most of all, pastor to the world, John Paul II has been all of these things. Here, though, I wish to underscore just one (somewhat overlooked) aspect of this incredible man: John Paul the Lawgiver.


Pope John Paul II was not a jurist-pope in the tradition of Innocent III, Benedict XIV, or even Pius XII. And yet he wielded immense influence over modern ecclesiastical legislation. He promulgated (and often directly contributed to the very drafting of):

As the authority behind these documents alone, Pope John Paul II would have left his mark as a very influential legislator. He has provided the raw materials for canonical explorations and applications for decades, if not for centuries. But to them, one must add (oh!, where to start?):

  • ap. con. Divinus perfectionis (greatly streamlining the beatification and canonization process);

  • ap. con. Ex corde Ecclesiae (strengthening official supervision over Catholic higher education);

  • ap. con. Ad tuendam fidem (among other things, setting a pattern for reform of the 1983 Code itself);

  • and ap. con. Universi Dominici (wisely governing the election of his own successor).

            Even this extremely short list does not do justice to his very significant use of canon law in his many teaching documents (one need only start looking at footnotes in his encyclicals and at the appendices to the Catechism of the Catholic Church to get a sense of how much John Paul II strove to alert Catholics to the legal aspects of so many of his statements). His annual addresses to the Roman Rota are of immense importance for the development of sound matrimonial jurisprudence in the Church. Even the strengthening of educational requirements for future canon lawyers occurred on his watch (Novo Codice). Perhaps now it is clearer why canonists usually refer to the pope simply as "the Legislator"!


          As John Paul himself observed: "To work for the proper implementation of [canon law] is to work for the up-building of the Church herself. It is to work for the salvation of the world. It is to play an extraordinarily constructive role in continuing the redemptive mission of Christ himself." I suggest that we as Catholics owe a debt of gratitude to this pope for helping to lift canon law from the antinomian nadir it suffered in those first years of post-conciliar confusion; moreover, we as canonists have a special obligation to continue to apply the Church's laws in accord with the mind of the Church, a mind---and a mine!---that Pope John Paul II has helped tremendously to open up for Catholics in the new millennium. +++


Recent Books by Dr. Peters:


Incrementa in Progressu: A Legislative History of the 1983 Code (2005)

Annulments and the Catholic Church: Straight Answers to Tough Questions (2004)

The 1917 Pio-Benedictine Code of Canon Law (2001)



March 18 2005, Emergency Fast for Terri Schiavo


Terri M. Schiavo is dead. March 31, 2005.


Can we consider emergency fasting for Terri Schiavo?


     "Whatever its motives and means, direct euthanasia consists in putting an end to the lives of handicapped, sick, or dying persons. It is morally unacceptable. Thus an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person and to the respect due to the living God, his creator. The error of judgment into which one can fall in good faith does not change the nature of this murderous act, which must always be forbidden and excluded." Catechism of the Catholic Church, no. 2277. Moreover, "A person who commits a to be punished according to the gravity of the delict." 1983 CIC 1397. Imposing a starvation/parching death on Terri Schiavo would violate both of the norms, even if Terri had asked for it (which I strongly doubt).


     "The New Law practices the acts of religion: almsgiving, prayer, and fasting, directing them to the Father who sees in secret..." CCCC no. 1969. Lent is an especially appropriate time to offer up fasts. CCC nos. 1434, 1438.


     Fast Options: 1) a Bread and Water* fast until Terri is fed again; or 2) a Good Friday fast (one meal per day, two smaller ones if necessary, and no meat) until Terri is fed again; or 3) no snacking or eating out till Terri is fed again; or 4) some physical sacrifice for Terri, her husband and his lawyer, all those defending Terri, and all those attacking her. Any of these still allow us far more food and water than Terri is getting, but if you have any questions about your own ability to fast, check with a qualified advisor, and follow his or her advice. Never eliminate fluids, especially water, even for what might seem short periods of time. May God bless Terri, and may God bless our country.


     Updates, March 19-22: 1) Congressional legislation seems poised to restore Terri's food and water. But that HAS NOT HAPPENED yet, and prayers are still urgently needed until she is actually being fed again. 2) I would like to acknowledge the many people who have contacted me (I keep no records) and said they would adopt one of the sacrifices for Terri and encourage others to do so. God bless you all.


     *A straight "bread and water fast" is pretty easy for others to spot and might (I say, might) distract from the fasting itself or perhaps confuse others. But with a fast on, say, plain tea and toast, one can pass for just not being especially hungry at the time, yet accomplish essentially the same thing.


      Of related interest: A canonical aspect of the Terri Schiavo case




Answering Crocker and Crisis, 8 March 2005


H. W. Crocker III, ostensibly telling us how good children are for marriage, meanly ridiculed Natural Family Planning and, inexplicably, Crisis magazine published it (December 2004). Both apparently believe that an appropriate way to praise one good is to denigrate another. Between them, they have wronged a wholesome and important apostolate. Crocker and Crisis expect supporters of NFP to shrug it all off because, they claim, it was all intended to be funny. Well, Crocker's essay wasn't funny; it was smug. But judge for yourself: click here. Who writes so mockingly without intending to mock, or publishes something so contemptuous of a program without intending to show some contempt?


       Whatever their motives, the Crocker-Crisis brand of humor hurt a lot of good people; moreover, they have ill-served the wider community with several specious anti-NFP assertions. Prominent persons among Crisis' already-shaken circle of friends have expressed objections to the piece. For their letters and Crocker's reply, click here. But running a few letters to the editor is not sufficient, especially not when Crocker, given the last word by Crisis, shows more condescension toward his critics.


       Crocker's sarcasm--to say nothing of his caricature of marriage in general and NFP in particular--have no place in Catholic discourse, and should be repudiated. Crisis should frankly acknowledge a serious failure in editorial judgment. Stonewalling obvious blunders only makes them worse.


       Tell Crisis what you think:


       For my own brief reply (mostly canonical) to just some of Crocker's flawed claims, read on.


Crocker committed several substantive errors in attacking NFP and the people who use it. May I suggest just three examples?


1. In his opening paragraph, Crocker completely confuses Catholic teaching on openness to children with a method for complying with that teaching. NFP needs a new slogan, says Crocker, because Catholics reject Church teaching on human procreation. That is an obvious and fundamental error in categories. NFP’s “slogans” are just fine; it’s dissident Catholics who need to change their stance.


2. Crocker says there is no apparent evidence to support claims that couples using NFP enjoy very low divorce rates. Maybe not apparent to Crocker, but there are few signs he looked. A nice place to start would have been with my article “Contraception and Divorce: Insights from American Annulment Cases” published in the Couple to Couple League’s Family Foundations, November-December 1998, on-line version (posted for a good three years now) here.


3. In the mouth of his own ethnically stereotyped creation, Crocker places words that presumably he agrees with: “The primary and fundamental purpose of marriage is not companionship, not romantic love, not moonlit strolls on the beach, or any other balderdash but the begetting and raising of children—lots of ’em, and starting soon.”  Maybe Crocker should have a look at the 1983 Code of Canon Law, indeed, at its opening canon on marriage.


“The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, and which is ordered by its nature to the good of the spouses and to the procreation and education of offspring....” 1983 CIC 1055 § 1.


            Phrases describing marriage as “a partnership of the whole of life” and as being ordered to both “the good of the spouses and ... to children” simply do not support the utterly unbalanced depiction of marriage (as being little more than licensed baby-making) that Crocker wishes to impose. But if Crocker can be excused for not knowing that these ideas on marriage now animate the Code of Canon Law (how many Catholics have the Code on their reading list?) he has no excuse for not knowing that these same ideas are prominent in such fundamental conciliar documents as Gaudium et spes no. 48 and Lumen gentium no. 11, to say nothing of Humanae vitae no. 8. Certainly the drafters of Canon 1055 had these texts before them, and Pope John Paul II approved this language during his line-by-line review of the Code before promulgation.


There is, to be sure, a lively debate going on about the conciliar and post-conciliar descriptions of marriage, debates animated by the fact that A) “baby-first” language was prevalent in pre-conciliar descriptions of marriage, and B) such language is completely gone from official post-conciliar articulations. But Crocker not only makes no contribution to that debate, he writes as one completely unaware of the fact that it is even going on.


Humor, like beauty, might be in the eye of the beholder, but truth is not. Crocker’s quest for glibness at NFP’s expense does not excuse his sacrificing accuracy about its (or any other morally licit approach’s) tested methods, and even less does it pardon his distorted descriptions of Christian marriage. It was a mistake for Crocker to write his essay, and, may I add, as one who normally cuts editors a lot of slack in choosing what to publish and what to reject, it was a mistake of Crisis to publish it. But perhaps I am saying something Crisis already knows: their on-line version of Crocker’s essay includes the request to “send angry mail directly to [Crocker]”. I can imagine. +++


Update, March 9: for more intelligent commentary on another disturbing aspect of Crocker's essay, see Carl Olson at Ignatius Insight Scoop.




9 February 2005, Forcing the Pope's hand


There is a lot of silly talk—much of it self-perpetuating—about the College of Cardinals arranging for the next pope to resign upon reaching a certain age. This is complete nonsense; neither the College of Cardinals nor any other power on earth has the slightest authority to require a papal resignation (see 1983 CIC 331, resting on divine authority stretching back to the Petrine Commission recounted in Matthew 16).


Pope John Paul II has considered resignation in the past, but the desire to set an example of spending one’s last breath in service to the Church weighs heavily on him. So does, I suspect, his awareness that a papal resignation today might make more palatable the idea of another papal resignation tomorrow. Dangerous precedent, that, should the world face off against a pope who is not so widely loved. Is the Church paying a price by John Paul’s retention of office? Perhaps so, but the Church would pay a price upon his resignation, and no one grieves more at his inability to serve better the Church we love than does Pope John Paul himself.


And yet, I think another consideration may be raised here: The sufferings of old age (for those blessed to attain it) are, of course, a frightful consequence of Original Sin. But, beyond the physical hardships they endure, the vast majority of elderly face their final years without even the small consolation of being able to say that they are still being useful to others. Retirement, whether chosen or forced, leaves one very alone, makes one realize that the world is going to continue anyway, and forces the frightful question, “What have I really done with my life, now that I can apparently add nothing to it?”


If Pope John Paul II does resign, his final pontifical act should not be seen as acquiescence to the inevitable, but rather as yet another instance wherein he has shown his solidarity with the most forgotten segments of society; this last time, it would be with the long-suffering but oh-so-helpless elderly. +++


Update, February 10: If there's a lot of silliness on the pro side of the papal resignation debate, there's at least a little on the anti side as well. One high-ranking prelate, for example, is quoted as saying that it would be wonderful if Pope John Paul II outlasted Pope Pius IX's 37-year reign. Oh, really? What would be so wonderful about that?


The papacy is about service (Servus Servorum Dei), not about moving up another notch in the Guinness Book of World Records. For John Paul II to outstay Pius IX would require another ten years in office. I don't see any inconsistency between wishing, Deo volente, John Paul another 10 years of life, and harboring concerns about the papacy--and the Church--being run under the present circumstances for another decade. Ironically, most of us on the anti-forced resignation side of this debate support what political scientists would call a strong monarchial model of the papacy, even while the position we defend is leading to a de facto oligarchial reality.


The ecclesiological quandaries of an incapacitated pope are very real (the press and bloggers have not even scratched the surface yet), and we are seeing them play out before our eyes. Canon Law simply doesn't cover this situation. But the Holy Spirit does, and I'm very sure that Pope John Paul II needs no advice, pro or con, from the rest of us as to how to discern the Spirit's will in this matter.



Retrospectives on the Balestrieri Matter                                                                                            21 October 2004


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


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


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


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


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


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


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


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


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


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



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


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


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


Peters should not criticize Balestrieri’s case publicly.


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


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


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


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


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


Why does the heresy case have to start from scratch?


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


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


Some folks think Ed Peters looks

a little like FBI Agent Eliot Ness

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



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


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


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


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

John Kerry: A Question of Heresy?                                                                                                     18 October 2004


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


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


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


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


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


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


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


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



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

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


Update: October 19


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


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


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


Update: October 21


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


22 September 2004


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

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


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


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


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


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


Two Brief Notes on Annulments

19 August 2004


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


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


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


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


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


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


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


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



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


Not guilty, your honor


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


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


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


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


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



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


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


* * *




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

Brother, can you spare a copy of CWR

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

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


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


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


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


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


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


A Canonical Case against Kerry                                                                                                        1 July 2004


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


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


The matter is less clear under current canon law.


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


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


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


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


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


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


Fr. Beal's America article, 18 June 2004


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


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


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


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


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


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


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


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


The Cardinal and the Canons, 18 May 2004


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


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


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


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


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


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


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


Not with a bang, 25 March 2004


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

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

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

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

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


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


Sauce for the Gander?

21 March 2004


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

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

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

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

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


The right answer to the right question

5 November 2003


Circumstances usually make it too difficult to answer individual questions in a blog format, but Mark Brumley has raised a good one:


            Ed, I just read a Q & A concerning the point at which during the Mass one arrives too late lawfully to receive Communion.  The answer raised a number of issues with me, issues which I anticipate others may have concerns about as well.  First, what does the Church require in the matter?  Second, shouldn't the issues of conditions for receiving Communion under be distinguished from the conditions for fulfilling one's Sunday obligation?  I appreciate what the respondent was attempting, but it seems to me that his answer was problematic.  Perhaps it would be helpful if you were to address the matter on your blog.  I would have interest in linking to it on mine. Thanks. Mark.


In pertinent part, the Q & A Mark refers to reads as follows: 


Question: At what point in time during Mass is it considered too late for anyone coming into the Mass to receive Communion? These days I see a lot of people who enter the Mass even as Communion is being given and they head straight to receive. Is this right?

Answer: Like most priests, I am loath to give a straight answer to this question because, in a way, it is a catch-22 question for which there is no right answer. … Although I prefer not to hazard giving a precise cutoff moment, certainly someone who arrives after the consecration has not attended Mass, should not receive Communion, and if it is a Sunday, go to another Mass.


I think this answer is wrong in several respects and I will offer below what I think is the correct reply. But the answer also underscores the importance of two important obligations that fall on those of us privileged to be approached by the faithful with questions.


First obligation: Answer correctly the question posed. Here, the question posed was “At what point in time during Mass is it considered too late for anyone coming into the Mass to receive Communion?” The correct answer is that one’s eligibility for Communion is not determined by the time of one’s arrival at Mass. A Catholic who is not conscious of being in grave sin (cc. 915-916), has fasted for an hour (c. 919), seeks the sacrament at a reasonable time (c. 843), and has not already received (c. 917), is eligible for Communion (c. 844). To state that anyone who arrives late to Mass, even “after the consecration," may not receive Communion is simply wrong. No provision of Church law supports such a position. Indeed, it runs afoul of several canons upholding the faithful’s fundamental right to the Eucharist (cc. 213, 912) and leads people to assess inaccurately (perhaps embarrassingly so) the eligibility of others to participate in the Eucharist. 


But, then to go on and answer additionally that such a person needs to go to another Sunday Mass thoroughly confuses the question posed with one not actually asked, and that in turn leads us to another obligation.


Second obligation: Help the questioner ask the question he might, or also, want answered. Here, the questioner might (I say might, as there is no evidence of this in the question itself) have wanted to know “How much of Mass can be missed before one cannot be said to have satisfied the Sunday obligation?” A very different question indeed. In response, one should help the questioner see first that the Sunday obligation is not a Communion reception obligation at all, and that receiving Communion no more fulfills the Sunday obligation than not receiving Communion means one has not fulfilled the Sunday obligation. Once that distinction is clear, helping the questioner avoid more legalistic descriptions of the Sunday obligation is easier, the unity of the entire Eucharistic celebration can be stressed, and the importance of being present at and participating in the whole liturgy is more obvious. To the insistent questioner still demanding to know just how late one can be and still have it count, one must simply reply “The Legislator (Pope) has not told us how much of Mass one may miss under what conditions and still have it count toward one’s Sunday obligation, but this much is clear: if you arrive during, let alone after, the Entrance Rites, you are late, and you may be sure that you’ll being taking up your reason for being late with God at Final Judgment." Finally, the blanket assertion that "certainly ... someone who arrives after the consecration ... should go to another [Sunday] Mass" also needed, but unfortunately did not receive, some important nuances and qualifications. But enough of this.


It is not easy to avoid morphing questions we are asked into those we thought we were asked, or even into those we think we should have been asked, but that’s our duty as experts in canon law, liturgy, theology, and so on, to say nothing of our responsibility to get the answers right. If I react thus when I see a fellow seemingly commit these errors, it’s only because I bear the regret of having committed similar ones myself and hope others can avoid my mistakes. +++



Terri Schiavo, a 38 year old brain damaged woman, is being starved to death in Florida under a court order issued at her husband’s request. Over the weekend, Terri’s parents, who want their daughter to live, accompanied a priest to her facility hoping to administer Holy Communion to her. Incredibly, they were barred by police citing a doctor’s order not to give her anything by mouth (see report below). It seems that some believe (or at least want to claim) that Communion could cause her to choke.


The Holy Eucharist, usually administered under the species of Bread (small in size, to be lightly chewed and swallowed), can also be administered under the species of Wine alone (1983 CIC 925), in the tiniest visible drop, delivered by pipette just past the lips. It is absurd to claim that this form of the Eucharist constitutes the slightest danger of choking, or even that it is a “feeding” in violation of the (abominable) court order in Terri’s case.


Terri Schiavo is a Catholic with a fundamental right to the Eucharist (1983 CIC 213, 834, and 912). One in danger of death, moreover, has the special right to the Eucharist as Viaticum (1983 CIC 921-922 deliverable exactly as above, without unnecessary delay). She should be allowed to receive Holy Communion (not mention anointing of the sick, 1983 CIC 1004-1007) immediately. +++


PINELLAS PARK, Florida, OCT. 19, 2003 ( Police guarding the entrance to a hospice barred a priest from giving Communion to a brain-damaged woman whose feeding tube was removed last week, the Associated Press reported.

Monsignor Thaddeus Malinowski wanted to give Terri Schiavo viaticum on Saturday but was refused entry to the hospice. He was accompanied by her parents, Bob and Mary Schindler. Police officers told the family the Communion would violate a doctor's order that nothing be placed in her mouth, to prevent choking and aspiration.

A last-ditch effort to replace Schiavo's feeding tube failed Friday when a Leon County Circuit Court judge refused to issue a court order allowing Governor Jeb Bush to intervene under his constitutional authority to protect life, Tampa Bay Online reported. Supporters who oppose orders by Schiavo's husband to cut off her nourishment held a vigil outside the hospice. ZE03101922


Getting the details and  

the big picture right

8 October 2003


Judie Brown, a Catholic veteran of the pro-life movement, and Tod Tamberg, spokesman for Los Angeles Cardinal Roger Mahoney, are trading shots about the proper response to several high-profile Catholic politicians who prominently support the unbridled abortionism of California. Now, I take no position on whether Brown should have run her provocational newspaper ads (basically calling for withholding the Eucharist from several major pro-abortion Catholics) in the first place, nor on whether Tamberg should resign his post given his derisive ad mulierem response to Brown. Both sides, however, invoked canon law in their defense, and both sides can't be right at the same time in the same way. Here, I’d like to suggest that Tamberg is technically right, but in substance wrong (or deficient, anyway), and that Brown, while technically wrong, is in substance right.  


Tamberg says, “The reception of Holy Communion by Catholics is a right guaranteed by the church, not a privilege determined by Judie Brown or anyone else at the American Life League. She's not Judge Judie, she's not Bishop Judie, and she's not Pope Judie. The bishops of the church, with the Holy Father, are the ones who interpret church law.”


Brown says, “The fact is no Catholic has a ‘right’ to receive the Body and Blood of Christ, truly present in the Sacrament of Holy Communion. No human being is truly worthy of receiving the Sacrament, but a Catholic who persists in promoting a manifestly grave evil like abortion is clearly bringing sacrilege upon the Sacrament when he or she receives it. One need not be the Pope, a bishop or a judge to recognize that Canon Law No. 915 is clear.”



Well, according to the 1983 Code, reception of the Eucharist by Catholics is a fundamental right protected by, among other norms, Canons 18, 213, 843, and 912. In this regard, Brown is wrong in asserting that reception of the Eucharist is not a right, and Tamberg is correct (maybe more than he himself realized?) in claiming that it is.


But just mention “rights” these days and people tend to think that one has asserted an inviolable principle before which all authority bows down in silent acquiescence. Well, no healthy society understands rights, however legitimate they might be in themselves, that way. The reception of the Eucharist is a fundamental right, and it is one that can be regulated by ecclesiastical authority.



1983 CIC 223 § 2: Church authority is competent, in view of the common good, to oversee the exercise of rights that belong to the Christian faithful.

In fact, what Tamberg fails to mention, and what Brown should include in her argument, is Canon 223, wherein the Church, like the healthy society She is, expressly reserves the authority to oversee (moderari) the individual exercise of rights by the faithful. That authority, derived ultimately from Christ, applies to the exercise of any rights, even fundamental ones such as reception of the Eucharist.


Now we can see just how correct Brown is in citing Canon 915 (and she might consider adding Canons 843 and 897-898): promotion of abortion by Catholic political leaders is objectively gravely evil, and, I suggest, it triggers the obligation of Catholic ministers of the Eucharist to protect the Most Holy Sacrament against potentially sacrilegious reception.

1983 CIC 915: Those who by imposition or declaration of a penalty are excommunicated or interdicted, and others who obstinately persist in manifest grave sin, should not be admitted to holy communion. (Emphasis added.)


In brief, Brown can easily amend the technicalities of her argument to bring it fully into support of her substantively correct position. Now, here’s hoping that arch/diocesan officials, in their turn, will respect all of the canons on the reverence we owe the Eucharist—in which August Sacrament we are, in a very real sense, privileged to participate.+++


Click here for an earlier blog on this same issue, or here for a fuller canonical analysis of the withholding of the Eucharist from pro-abortion Catholic politicians.


Libertas loquendi delenda est?

22 June 2003


The pastoral crisis that has racked the Diocese of Dallas under Bp. Charles Grahmann’s leadership continues unabated. Looking at a June 20th report in the Dallas Morning News, it appears that the latest sad chapter centers on the response that Bp. Grahmann’s spokesman, Bronson Havard, recently gave to a letter signed by several prominent Catholic laity seeking the papal nuncio’s intervention.

The lay letter (see below) asks for the immediate removal of Bp. Grahmann. It is short, respectful, balanced, and accommodating. In every respect, I suggest, it complies with the requirements of Canon 212 § 3 by which the faithful may present their opinions on matters affecting the good of the Church.

          Writing in Bp. Grahmann’s Texas Catholic, however, spokesman Havard claimed that the bishop “always welcomes the advice of lay people, even their criticism,” but then warned that church law “prohibits anyone from holding a position in Catholic associations ‘who has abandoned ecclesiastical community’, which can include those who publicly oppose their bishop.”        Canon 212 § 3: In accord with their knowledge, competence, and preeminence, the faithful have the right, and at times even the duty, to manifest to their sacred Pastors their views on matters affecting the good of the Church. They also have the right to make their opinions known to others members of the Christian faithful, but in so doing, they must always respect the integrity of faith and morals, show due reverence to Pastors, and take into account both the common good and dignity of individuals.

Of course, not one word of the lay letter suggests their “abandonment from ecclesiastical community” (Bronson’s odd rephrasing of Canon 316 § 1, which actually requires “ecclesiastical communion” of those belonging to Church associations), and in fact it bespeaks quite the happy opposite. Nor does the letter seem aimed at "inciting...hatred or animosity against...[a bishop]...or provoking [his] subjects to disobedience..." (1983 CIC 1373). One is left wondering, then, as to just what Havard could possibly be referring, but to the obvious goal of the letter itself, Bp. Grahmann’s removal. Certainly reasonable minds may differ on the best solution to the on-going Dallas debacle, but Bp. Grahmann’s resignation or removal is surely an option, and it is seriously wrong for one of his officers now to imply that these lay Catholics were in violation of any canon law in respectfully calling for it as they did.

For that matter, though, Havard’s own suggestion that Church law can be invoked against those who oppose Bp. Grahmann must be tempered by other provisions of Church law, for example by Canons 128 and 1389 § 1, provisions that take a dim view of Church officials themselves abusing ecclesiastical office. Chancery personnel would do well to recall such norms before officially weighing in against legitimate lay exercises in freedom of speech.

Unless these words, coming from Bp. Grahmann’s spokesman and published in Bp. Grahmann’s paper, are disavowed, they must be assumed to represent Bp. Grahmann’s position. In any event, such a retort to faithful Catholics remains first and foremost an injustice to them, as well as a discouragement to Catholics contemplating the prudent exercise of their rights, and as yet another encouragement to those already inclined to forsake the rule of law in the Church.

  Text of the letter the "Committee of Concerned Catholics" sent the papal nuncio to the United States, Archbishop Gabriel Montalvo. About three dozen people signed the letter.

Your Excellency:

The current sexual abuse and leadership crisis in the Diocese of Dallas has become a scandal and an embarrassment to the Church. We strongly urge you to end this crisis by promptly replacing the Most Rev. Charles V. Grahmann as Bishop of our Diocese.

We, the undersigned, are faithful Catholics who believe with the church fathers that the bishop is the vicar of Christ in his diocese. As lay Catholics, we also understand the obligation the church fathers have placed on us to protect and defend the Catholic faith. In keeping with that trust and in order to restore the dignity of the sacred office of bishop in our city, we are compelled by conscience and by a pragmatic assessment of the damage to the church in Dallas to petition you to act. We believe that daily harm will continue to accrue to the church unless this crisis is addressed.

We have chosen to act only reluctantly, after despairing of being heard through conventional channels. The local diocesan leadership is isolated and in denial about the gravity of the situation, and our concern grows daily. We do not take lightly our plea for intervention, and make it only after much thought and reflection, and only for the purpose of seeking relief from an untenable situation.

We respectfully request that you meet with several of us so that we can present a first-hand report on the gravity of the situation. We request this meeting outside of the normal juridic procedures of the church because the situation has become so serious that it requires the immediate attention of the Holy See.

Realizing that the signatures of a few may count for little on such a serious matter, we plan to begin a media campaign and to establish a web site within ten days to solicit the signatures of our fellow laypeople and devoted clerics and religious in Dallas in support of our petition. We have secured funds in an effort to ensure that every Catholic in Dallas is made aware of this petition drive.

Unless you request us not to do so before a meeting with you, we will proceed to gather this petition citywide in order to present to you and to the Congregation of Bishops a full picture of how deeply the Catholic community feels about the urgent need for the replacement of Bishop Grahmann.

If you are able to accommodate us, we would hope to meet with you at your earliest convenience. Representatives of the undersigned will be available to travel to Washington for any meeting you suggest. ...

Thank you for your attention to this matter. We realize that other matters urgently seek your attention, but due to major missteps by the bishop that have received widespread media attention and due to the recent announcement that Bishop Galante is leaving, the situation in Dallas requires immediate action.

Yours in Christ,

A brief critique

1. Papal nuncios have no authority to remove diocesan bishops (1983 CIC 364-365 and 377).

2. Rome will not recognize the letter signatories as formally representing a group, but it will accept their statement as coming from them as individuals (1983 CIC 310).

3. There are, fortunately, no “conventional channels” by which the faithful may force the removal of a bishop, but prudently expressing one’s desire for such removal is itself  the "conventional channel", if the phrase means something specific here, and is available when circumstances warrant (1983 CIC 212).   

4. The signatories might have asked that the Dallas situation be considered in light of Canon 401 § 2, which earnestly requests bishops who, for grave reason, have become less than able to perform their duties rightly, to resign. Cf. 1983 CIC 1740, striking a similar note for pastors.

5. To my knowledge, Coadjutor Bp. Galante has not announced that he is leaving (such would not be in his power to do anyway), but rather that he would welcome reassignment. +++


Bishop Boteans' Lenten Message 

18 March 2003


In an astounding statement, Bp. John Michael Botean, Eparch of the Romanian Catholic Eparchy of Saint George in Canton, OH, purports to declare authoritatively that the pending US-led attack on Iraq is absolutely immoral and has forbidden his subjects (basically 5,000 Romanian Catholics in the US) to take part in it. While the statement has, I believe, many substantive flaws and errors in it (see below), it is not my purpose to critique the statement itself, but rather to highlight some important canonical issues it raises. Citations here are to the 1990 Code of Canons of the Eastern Churches (CCEO) that governs Eastern Catholics.


The bishop’s statement clearly invokes, and provokes, fundamental questions of Christian rights and duties because of the following points: 


  • Eastern Catholics are bound to follow what their bishops declare as teachers of the faith (CCEO 15 § 1), though this obligation is qualified by the phrase “conscious of their [the faithful’s] own responsibility.”

  • Individual Eastern bishops are to be regarded as authentic teachers of the faith for those entrusted to their care and the faithful must adhere to that teaching with a “religious obsequium” of soul (CCEO 600). The canon expressly states, however, that individual bishops are not infallible.

  • One who disobeys an Eastern bishop can be subject to sanctions for that disobedience (CCEO 1446). Bp. Botean does not threaten canonical sanctions, but warns of "incalculable temporal and eternal consequences" should his letter be ignored.

On the other hand, and in addition to the qualifications already contained in some of the above provisions, we should note that:


  • Eastern Catholics have the right to, among other things, make known their opinions on matters pertaining to the good of the Church and to make their opinions known to others (CCEO 15 § 3). There is no doubt that public statements by Catholic hierarchs on issues related to just war theory, the duties of citizens toward their nations, and the obligations of Catholics to their bishops, would be legitimate topics of discussion.

  • An Eastern bishop who misuses his high office can be subjected to sanctions for that misuse (CCEO 1464 § 1).  

The eparch's statement is unprecedented for its clarity and starkness; it simply must be read to appreciate this point, though fair-minded readers can admit that it is not a peacenik, blame-America-first harangue, but is instead a reasoned (though, I think, wrongly) exercise of conscience. It cannot be issued, however, and then forgotten. If Bishop Botean is correct, his argumentation would seem to apply to all Catholics, and only an inexcusable lack of pastoral solicitude on the part of other Eastern and Latin bishops could account for them not following suit immediately. If, on the other hand, Bishop Botean is wrong, then he has placed his faithful in a profound and direct conflict of conscience between their ecclesiastical and civil leaders, which, I suggest only an inexcusable lack of pastoral solicitude would suffer them to remain in.


Bishop Botean having no superior short of the Holy See, I believe his extraordinary statement must be ratified or rejected by the Holy See without delay (CCEO 1060-1061).


Update March 20:  Some have suggested that either the Metropolitan of the Romanians in Romania (CCEO 133 et alia), or even the Patriarch of the Byzantines (CCEO 56 et alia), might also be called upon to assess Bp. Botean's extreme statement. I think either of these ideas, and perhaps others, is worth considering, cumbersome though they might prove in actual practice. Nevertheless, the Roman Pontiff (CCEO 43) remains the only superior above an eparch unquestionably able on his own authority to address conclusively what, in this case, Bp. Botean (CCEO 178) has imposed as a fundamental question of conscience on thousands of Romanian Catholics in the US.


Just One Example


I realize it is easy to say “There are many things wrong with this document, but I don’t have time to show you.” Well, there are many things wrong with it, and I don’t have the time to discuss them. But I will give one example. Bishop Botean writes: “Unjust killing is by definition murder.” This is wrong. There are many kinds of unjust killing: some of them are unintentional accidents and we call them manslaughter, not murder. It is still an unjust killing, but both law and sound Catholic moral theology recognize a diminished culpability and do not treat such acts as murder. This important distinction, left unvoiced by Bp. Botean, is enough to show a serious flaw in a major point of his paper. +++  


Compounding the Disasters

2 April 2003


The Diocese of San Bernardino, facing potentially extensive liability for the sexual abuse its faithful assert occurred at the hands of Boston-based priest Fr. Shanley, is suing in civil court the Archdiocese of Boston, upon whose advice the California diocese says it relied when assigning Shanley to ministerial duties there. Although some are suggesting that this move represents a sudden change in ecclesiastical customs, actually, the canonical foundations for such lawsuits were laid more than two decades ago with the promulgation of the 1983 Code, and this, through changes to codified law, not in unwritten manners.

The 1917 Code, consistent with many centuries of canonical praxis, militated against civil lawsuits between ecclesiastical persons and institutions as an implication of the “privilege of the forum” (1917 CIC 120). The canonical privilege against being subjected to civil litigation was, in some cases, enforced with sanctions up to excommunication (1917 CIC 2341). Of course, disputes between bishops and dioceses, etc., were sure to arise, and the former law guaranteed access to Vatican tribunals for such cases (1917 CIC 1557).

But of these earlier provisions, the two prohibitory norms were dropped from the revised law when it was issued in 1983, and while access to Vatican courts is still available for these kinds of situations (1983 CIC 1405), their use is no longer obligatory. News reports do not mention whether the dioceses and bishops involved in this dramatic development were in discussion between themselves or with Rome before taking this licit but very saddening step. I hope they were.

St. Paul (especially as the inspired author of I Corinthians 6), pray for us. +++  


The Baltimore Verdict

17 December 2002


To no one’s great surprise, the man who admitted shooting a priest three times in broad daylight was found Not Guilty by a Baltimore jury that believed he was, at the time of what prosecutors argued was plainly attempted murder, suffering from a “dissociative disorder”, itself the result of the man's being (and no one seriously doubts this) sexually abused by the priest a decade ago. My criticism is not so much of the verdict (however much it reinforces the quip that the innocent want a trial by judge while the guilty go for a jury) for clearly, the trauma of childhood sexual abuse can result in a legion of psychological and emotional disorders perduring for years. The greater problems, as I see it, are the reactions to that verdict.


First, the exonerated shooter is quoted as saying that he hopes the verdict will send a message of hope to other victims of clergy sexual abuse. Well, if I may ask, just what message of hope could that be? That they too might suffer from dissociative disorders and might as a result find themselves shooting priests in the street? Presumably, that is all the verdict said about the man’s actions in this case, and that does not sound very “hopeful” to me. If the man sees more than that in the verdict, it makes one wonder just how sincerely his insanity defense was offered in the first place.


Pope Paul VI 

Si vis pacem, cole iustitiam.

Second, Baltimore’s William Cardinal Keeler, (who, in full view of the jury, stopped to shake hands and exchange cordialities with the priest's assailant on his way to the witness stand) says he hopes that the verdict brings a measure of peace to the community. But didn’t Pope Paul VI teach us that peace is the fruit of justice? If so, the highly dubious quality of the scant justice wrought in this case leaves little basis for the Cardinal’s hopes.

For decades, many Catholic priests inflicted grave injustices on children, and many Catholic bishops responded, if at all, wholly inadequately to those crimes. During most of that time, civil authorities looked the other way, too. In other words, the two greatest social institutions, the Church and the State, grievously withheld basic justice from young victims. We should not be surprised, then, that we, like other societies abandoning the rule of law, now see, quite literally, violent consequences in our streets.


Nevertheless, those who tell us that the Baltimore verdict is the dawn of hope for victims and a harbinger of peace for the community are false prophets. Instead, I suggest the Baltimore verdict is a tragic endorsement of a savage response to a despicable crime.+++


The Blame Game Needs Some Rules 

5 March 2003


An informative article by Maya Kremen indicates that Paterson NJ Bishop Frank Rodimer, through spokeswoman Marianna Thompson, is prepared to blame on a consulting psychologist, the Rev. Benedict Groeschel, cfr, the bishop’s decision to authorize ministry for a priest, Fr. James T. Hanley, a priest who had undergone counseling with Groeschel, and who later apparently abused children. 

I know nothing of the particulars of this case, but some canonical principles might help in assessing what threatens to spin out of control into an emotive blame game that serves no one.

1. All assignments for diocesan priests to minister in that diocese are made under the almost unfettered authority of the diocesan bishop. See, for starters, 1983 CIC 157, 274 § 2, 524, & 547.

2. If Fr. Hanley had been declared “impeded for the exercise of orders” under 1983 CIC 1044 § 2, 2°, (and, as I say, I don’t know whether even that happened in this case), then a bishop is not to permit the priest to resume the exercise of orders until after the bishop consults with an expert, presumably, but not necessarily, an expert in psychology, psychiatry, etc. In no way, though, is the bishop bound to accept the advice of the expert, whether for or against ministry, and in no way does the expert make the ministerial appointment.


Rev.  Benedict 

Groeschel, cfr

3. There is all the difference in the world between a bishop, in response to lawsuits against him claiming that he was negligent, saying, on the one hand, that he utilized the best expert information available to him at the time of making his ministerial assignments, and for that reason he was not negligent, and his saying, on the other hand, that his experts should be held morally or legally to blame for the bishop’s assignments. What could be, and should be where appropriate, used as an affirmative defense against claims of episcopal negligence, can be perverted into a way of dragging third-party counselors in as co-defendants.  

4. This leaves entirely open the possibility that some bishops were negligent for using certain counselors or institutions, but then episcopal negligence would be based, not on the fact that predictions about priestly conduct from qualified counselors turned out to be wrong, but rather on the questionable character and/or standards of the counselor or institution known to the bishop at the time he sought the advice.

5. Let’s never forgot that the primary perpetrators here are the priests who betrayed their vocations and abused children. The blame of bishops, and there doubtless is some, is derived from the atrocious behavior of some of their priests.

6. A small, additional point: if a spokesman for a bishop is going to make a statement for a bishop on an extremely sensitive topic, it is disconcerting to see the statement being attributed to “a private conversation.” Either it’s the bishop’s statement, or it’s not. This is no time for ambiguity in assertions. +++  


The Canonization of St. Thomas

28 January 2003 


Ask a Dominican when St. Thomas Aquinas was canonized, and he or she will answer 1323. Ask a canon lawyer, though, and you might get a different response. You see, when the 1983 Code was promulgated, it contained several norms, on, among other things, the educational regimen for priests. One of them, Canon 252 § 3, expressly names St. Thomas as the master for clerical studies in dogmatic theology. Indeed, St. Thomas is actually hailed twice in current canon law, for Canon 251, outlining philosophy studies in the seminary, says such instruction must be based on the “perennially valid philosophical heritage”, with “philosophia perennis” being code (no pun intended) for Thomism. While other saints are mentioned in the 1983 Code, none of them, or their systems, were “canonized” as were St. Thomas Aquinas and his greatest works with the advent of the 1983 Code. Happy Feast of St. Thomas! +++


The Code of Canon Law Turns 20


25 January 2003 



Pope John Paul II signs the 1983 Code. 

Cdls. Ratzinger and Castillo-Lara look on.

Twenty years ago today, Pope John Paul II signed the 1983 Code of Canon Law into effect. The date was chosen deliberately, for on January 25th 1959, Pope John XXIII had stunned the world by convoking the Second Vatican Council and, in that same announcement, told the Church to look for the thorough revision of canon law after the Council.

God’s providence has blessed by us by giving us a pope who not only actively participated in that Council, but who has had twenty years to shape the implementation of the ecclesiastical discipline he promulgated. These years have not been easy for him or the Church, and neither canon law nor canon lawyers have all the answers to the problems facing the People of God on earth. But Church law has many of those answers, more, I suspect, than some people believed to be the case not too many years ago.

If you want a sign that perhaps Pope John Paul II thinks so too, just look at the academic credentials of the American episcopal appointments he has made over the last several years. One sees, I suggest, a real up-tick in the number of young bishops with earned degrees in canon law, certainly as compared to appointments being made in the late 1960s through the mid 1980s. Happily, appointments of men with licentiates and doctorates in theology are also on the rise. Even bishops with degrees in, say, sociology, history, or literature (appropriate disciplines to be represented in an episcopal conference) today seem more likely to have parallel degrees in canon law or theology. While, in my opinion, we need a few bishops degreed in fields such as mathematics, biology, or chemistry -- along with canon law or theology -- the Vatican’s demonstrable appreciation for advanced training in canon law among the men it selects for bishops is a happy note upon which to wish the 1983 Code and all those committing to administering it, Happy Twentieth Birthday! +++

Update, January 28: Read Abp. Herranz's comments on the twentieth anniversary of the Code.


Kneeling for Communion, Again

7 January 2003

St. Raymond Penyafort

Patron of Canonists

Update, January 8: The matters of posture for and gestures of reverence before reception of Holy Communion are well addressed by Mr. Colin Donovan, STL, here, and I offer his remarks in place of my earlier ones (Jan. 7).

Friendly Fire

15 December 2002


According to a Dec 15 article by Marion Lloyd in the Boston Globe:


Sometimes people on the same side of an issue say things that they think are helpful to their friends, but in reality this "friendly fire" might harm the efforts of their allies. I believe this might have happened in the present case.


Catholic officials [in Mexico] voiced sympathy for [Bernard Cardinal Law] the disgraced Boston prelate. ''This should not be taken as an admission of guilt,'' Bishop Abelardo Alvarado Alcantara, secretary general of the Conference of Mexican Bishops, said Friday. ''Due to the enormous pressure from dissident groups, including priests, he generously decided to do what he felt was his duty ... in the best interest of his diocese.''


A resignation is not an admission of guilt per se, but neither is it a ringing reiteration of one's defense. Cardinal Law's resignation should have been firmly presented and accepted months ago because it was fundamentally the right thing to do. Instead, the delay gave some dissident voices the opportunity to pile on the beleaguered prelate (whom they opposed for, shall we say, less noble reasons) and left the impression that his announcement was a capitulation to pressure, instead of an action justified in itself.


Alcantara said he thought Law had been unfairly judged for his past actions by the stricter standards of responsibility that have emerged as the result of the priest sex scandal.


I must question the implication that canonical norms against clerical sexual misconduct have significantly changed here or that the obligation of bishops to protect their flocks from clerical sexual predators is something new in canon law. But the point is, however, irrelevant because what "brought down" the Cardinal are not actions from decades ago, but decisions made by him in just the last few years.


''It's as if we wanted to judge crimes today that at the time weren't considered serious,'' Alcantara said. ''The bishop can't be expected to denounce a priest and hand him over to a civil judge. It's like when a father knows his son is guilty, he tries to protect him and help him correct the mistake. It's a different mentality.''

I repeat, clerical sexual abuse of minors has always been grave violation of ecclesiastical discipline, and bishops have always known it. As for the analogy that suggests fathers ought to hide their criminal sons from the law, well, maybe it is a different mentality after all, but certainly it's one that loving fathers may responsibly reject.+++


The Manchester Agreement

11 December 2002


WASHINGTON (December 10, 2002) -- Belleville Bishop Wilton D. Gregory, President of the United States Conference of Catholic Bishops, issued the following Statement concerning the Agreement announced today between the Diocese of Manchester and the Office of the Attorney General of the State of New Hampshire:


One cannot but feel sympathy for Bishop Wilton Gregory, President of USCCB, upon whose watch four decades of clerical sexual misconduct have come home to roost. I realize that in his position, he (no more than anyone else would have been), is not entirely his own man, and I have on several occasions praised his earlier statements on this burgeoning crisis. But now, after reading the statement issued under his name on the Manchester agreement, I feel it is time for some criticism.


The Diocese of Manchester has reached a legally binding mutual agreement with the office of the Attorney General of New Hampshire which involves acknowledgment by the Diocese that the State has evidence likely to sustain a criminal conviction against the Diocese for a failure in its duty to care for young people.


The enormity of the admission in Paragraph 1 (a Catholic diocese admited engaging in criminal conduct) calls for, before anything else, an immediate and profound expression of renewed sorrow. There is none.

I understand the pressures under which the Diocese acted, and I note that this resolution is specific to the facts in the Diocese of Manchester and to the laws of the State of New Hampshire. It does not in any way indicate agreement on the part of any other diocese or of the United States Conference of Catholic Bishops in the legal analysis on which the Office of the Attorney General of New Hampshire has acted.


Is Bp. Gregory suggesting that the “pressure under which the Diocese acted” should temper our reading of its admission? Does the Diocese admit to criminal activity, or not? If so, was its admission free, or not? If it was free, what matters whether pressures deriving from diocesan criminal misconduct were present? And why protest that the Manchester agreement in no way reflects the opinions of other dioceses or the USCCB? What question is being raised here?


However, there are elements in the agreement which parallel the bishops' own decisions last June which are embodied in the "Charter for the Protection of Children and Young People." 


This statement actually means so little, that it cannot be commented upon.

In particular, the idea that an audit function would be helpful in resolving this terrible problem permanently was adopted with the creation of the Office of Child and Youth Protection. With its director, Kathleen McChesney, in place, every diocese will now benefit by an audit of their efforts to keep children safe.


Phrases like “audit function” reinforce the pervasively bureaucratic appearance of the bishops’ response to what is fundamentally, at every level, a moral crisis. The cold phrase “audit function” rings in most ears as dealing with financial concerns. It is incumbent on authors to explain their idiosyncratic usage of terms common from other fields.


We did this because, as bishops individually and collectively have acknowledged, there were mistakes and failures in our handling of cases of abuse of minors by clergy. 

Bp. Gregory speaks of  “mistakes and failings.” Just “mistakes and failings”? How about “sins”, or even “crimes”? Isn’t that what the Manchester  agreement concedes? One doesn’t face prosecution for “mistakes”, one faces it for crimes. Avoidance of that stark term fools no one. Of course, if the Diocese does not feel it engaged in criminal activity, it should say so. But if the Diocese concludes that its activities were criminal, others have little basis to doubt that admission.


They were serious ones, but they are not attributable to intentionally bad acts but, most often, to a lack of awareness of the extent to which this behavior entails a deep sickness which is resistant to treatment.

Does Bp. Gregory think the only crimes for which one should be prosecuted are “intentional” crimes? No one I know is suggesting that bishops routinely assigned sexual miscreants with the intention that they would abuse minors, rather, the claim is that some bishops were criminally negligent in their toleration of these men in church work. As for whether the misconduct was a result of a “deep sickness”, well, I think we can agree, some were. But were all of them so? What do we think about those cases? By the way, could not this same “deep sickness” defense be used to defend, say, a drunk driver who goes out and kills people, albeit unintentionally? I ask, so what?


The errors of specific persons, at specific times and places which may have endangered children, cannot be attributed to the "Church" as a whole without overlooking the lives of integrity and good works of ministers of the Church in our country throughout its history.

"May" have endangered children? May? This paragraph plainly tries to paint a very narrow picture (“specific persons, at specific times and places”) of a very broad, even systemic, problem. It’s yet another attempt at bureaucratic minimalization. No one honestly doubts but that thousands of fine Catholic priests have been at work over the last 40 years. That does not excuse the episcopal toleration of hundreds of sexual offenders in clerical ranks for decades. To try to avoid saying that, and saying it plainly, is but to fan the flames of cover-up suspicion already raging out of control. It certainly does not ring as true as did Bp. Gregory’s fine statements this past summer.


There is a difference between mistakes and intentional wrong doing. 

Never talk down to readers. This crisis is not about mere "mistakes". And we are not talking (at least in regard to most bishops, a distinction Bp. Gregory himself admits later) about intentional episcopal wrong-doing. We are talking about the huge middle possibility of culpably negligent episcopal behavior. That is what people want to hear bishops, where appropriate, admit to frankly and without bureaucratic dissimulation or word-mincing.


As Church leaders, we are willing to own up to our mistakes. However, except for those very few who personally have also been perpetrators, church leaders have not intentionally endangered the welfare of children. 


We will always repent of the mistakes that resulted in abusers being kept on in ministry to hurt and abuse more children. We give our full support to means, such the Office of Child and Youth Protection, which will help us prevent abuse in the future.

One does not “repent” of “mistakes”. One learns from them. One repents from sins. Bishops should be unequivocally holding themselves to that standard, and they should be calling the rest of us to repent of ours. Also, among the welcomed “means” for preventing child abuse in the future, does Bp. Gregory include agreements like Machester's, or not? I hadn’t thought it was a question till I read this statement. Now, I’m not sure.+++


Standard Cardinal Coat of Arms


Cardinal archbishops, like all ecclesiastical office holders, may resign their sees for any just cause (c. 187). The reasons that suggest the appropriateness of a pastor resigning his parish (cc. 1740-1741) would, mutatis mutandis, be relevant to the case of an archbishop considering resigning his see.


       If a cardinal resigns his pastoral or curial office (indeed all are requested to do at age 75 anyway, cc. 354 & 401) he does not thereby lose the power of voting in a papal conclave. That, he retains until age 80, at which point his right to vote automatically lapses. 


There is no mechanism for forcing a given cardinal to attend a papal conclave, however, and Church law expressly allows a conclave to proceed despite the absence of one or more cardinal electors, though in such circumstances, it is expected that a cardinal who declines to attend, presumably for grave reasons, will so inform the conclave. 

Anti-Catholic U.S. Media

[4 December 2002]

On Dec. 3, 2002, Joseph Cardinal Ratzinger made the following comments at a conference in Spain: “In the Church, priests also are sinners. But I am personally convinced that the constant presence in the press of the sins of Catholic priests, especially in the United States, is a planned campaign, as the percentage of these offenses among priests is not higher than in other categories, and perhaps it is even lower. In the United States, there is constant news on this topic, but less than 1% of priests are guilty of acts of this type. The constant presence of these news items does not correspond to the objectivity of the information nor to the statistical objectivity of the facts. Therefore, one comes to the conclusion that it is intentional, manipulated, that there is a desire to discredit the Church. It is a logical and well-founded conclusion.” Source: Zenit ZE02120324.

"Maria Monk"


I agree with the Cardinal. I would simply add, though, as one who has watched, and tried to fight, anti-Catholicism in the US media throughout my adult life, that even the most outrageous accusations of the infamous Maria Monk canard pale against the real life deeds of scores, if not hundreds, of our priests, frequently with the knowledge of, or at least the culpably negligent ignorance by, our bishops. Anti-Catholics in the US media have no need for lies when the truth condemns. Yes, our enemies rejoice over us. But it is we who have betrayed the City into their hands. God surely sees the hearts of those who hate the Church and delight in its suffering. But, in the meantime, each of us has contributed to this debacle by our own sins, and, just as surely, we must each contribute to the Church’s recovery by our own acts of personal repentance. +++


Extending canonical training

 20 November 2002

Zenon Cardinal Grocholewski, one of the Vatican's most respected canon lawyers, 

directs the Congregation for Education.


The Congregation for Education, the Vatican dicastery that accredits pontifical faculties around the world, announced November 19 in its decree Novo Codice, that it will henceforth require a third year of full-time canonical studies for the degree of licentiate in canon law (J.C.L.). The Congregation also reiterated its expectation that all canonists, notwithstanding the wide availability of basically reliable canonical translations, still be able to read Latin, the official language of canon law. Moreover, the practice of waiving First-Cycle theology requirements for civil lawyers (a practice I am pleased to note was not adopted by my alma mater) has not only been prohibited, but an additional year of theological study will now be required of all incoming JCL students not already possessing a Masters in theology. All of these changes are steps in the right direction. They are, I suggest, more evidence that canon law continues its re-emergence from the cloud of antinomianism under which it has labored since the Second Vatican Council. 


Considering only, for example, how much of the recent clergy scandals in the USA can be traced to ignorance of, or disregard for, canonical directives in Church life, it's good to see Rome taking positive steps to augment the expertise of those who will be increasingly called upon to advise bishops and others on the juridical aspects of ecclesiastical ministries and apostolates. But these are only steps and more remains to be done to increase the vital professionalism of modern canon law. I’ll be addressing those points in due course.+++



The revised norms for handling allegations of clerical sexual misconduct are out, and while, strictly speaking, they still require approval from the USCCB and, once more even, from Rome itself, there is little doubt but that both ratifications will be secured promptly. Predictably, some are presenting the revised norms as virtual endorsements of the USCCB’s summer proposals, while some, conceivably, would like to cast the new norms as a trouncing of the bishops efforts. As usual, neither extreme interpretation is accurate.

As I had hoped, the bishops’ excellent Preamble remained virtually intact. Deftly, however, Rome chose the Preamble to insert a badly needed clarification as to what legally constituted the sexual abuse of minors (i.e., “an external, objectively grave violation of the Sixth Commandment”), thus remedying one the weakest parts of the bishops’ summer efforts.

The bishops’ call for all dioceses to file policies on sexual misconduct with the USCCB has been retained, but the revised norms now explicitly demand that such policies honor the requirements of procedural canon law (e.g., Canons 1717-1719).

The bishops’ plans to have outside boards conduct the canonically mandated investigations of clergy sexual abuse allegations has been rejected by Rome; such boards now merely advise bishops on what was, all along, their responsibility. Rome has also insisted that all the members of this board be Catholic (pace the USCCB’s press release on this point) albeit persons financially independent of the Church. In both respects these are major improvements over the original proposals.

The so-called “appellate review boards” are completely gone, saving the Church and the people she serves the confusion of a whole parallel system of institutions for dealing with just one kind of case. And the earlier skimpy outline of investigation procedures has been considerably beefed up by express references to various relevant canons that, all along, have been in force, waiting to be applied. Importantly, Rome has reiterated the rights of the accused not to be subjected to involuntary psychological investigation, I hope once and for all.

Both versions of the norms recognize that for even a single act of child sexual abuse an offending cleric will be removed permanently from ministry. Amen to that, especially now that the working definition of child sexual abuse is much less subjective than was earlier envisioned.

Two new and important provisions inserted by Rome remind bishops that 1) they already have what canonists call “executive power of governance” enabling them to deal promptly with potential abuse situations not immediately addressed by criminal canon law, and 2) that bishops can request from Rome, even without the cooperation or consent of the cleric in question, what is termed an ex officio dismissal from the clerical state for offensive behavior. It is, I suggest, another quiet affirmation that canon law was not lacking as this crisis mounted, it more often was simply not being applied.

We can leave to others the interesting, if largely irrelevant, question as to the degree to which the revised norms should be seen as endorsing the bishops’ original proposals from this summer. One’s time is better spent, I suggest, in identifying any possible remaining weaknesses in the policies (there are some, I think), and then getting about the task of protecting children from sexual predators among the clergy. +++

Francis Cdl. George

Chicago, IL

Abp. William Levada

San Francisco, CA

Bp. Thomas Doran

Rockford, IL

Bp. William Lori

Bridgeport, CN


The four American prelates who worked with Roman officials to obtain a significantly improved 

procedure for dealing with the crisis of clergy sexual misconduct with children. 


The authority of the Roman Pontiff to establish new mysteries in the Marian Rosary is certain (c. 331). As a result of Pope John Paul II issuing his apostolic letter Rosarium Virginis Mariae, the canonical directive to pray the rosary given to seminarians in Canon 246 § 3 and to those living the consecrated life in Canon 663 § 4 will now be observed by praying a rosary consisting of fours set of mysteries, instead of the traditional three.

For the rest of us, likewise, when we pray the rosary as an authentic devotion (see cc. 214, 839, & 1186) we will do so in light on the pope’s call to expand our meditation as outlined in Rosarium


There is, of course, no canonical obligation on us to pray the rosary at all, and for those who do so, the days suggested for praying specific mysteries are, strictly speaking, just that, suggestions. Other manners of praying (e.g., a decade a day, chosen in a way consistent with the liturgical season) are acceptable. Finally, the revised format of the Rosary is unquestionably eligible for indulgenced prayer in accord with Handbook of Indulgences, Other Grants, No. 48. Sancta Maria, Mater Dei, ora pro nobis peccatoribus! +++



The Vatican is about to reject, at least in substantial part, the USCCB’s novel proposals for dealing with the clerical sexual abuse of minors crisis. This is good news.

Except for its Preamble (which reads quite well, I think), almost the whole of the rest of the June 14th document was problematic. It failed to define terms, it ignored whole stretches of canonical criminal procedure, and, though billed as the charter for episcopal responsibility, it actually removed from bishops considerable authority for responding to these cases (on the Church’s behalf, no less) and delivered it to quasi-independent committees, themselves only vaguely configured.

Pope John Paul II

Man of Prayer, Man of Law

Chiefly, though, the Charter never recognized that the canons already on the books of the 1983 Code of Canon Law will, if applied responsibly, go a long, long way toward punishing wrong-doers, aiding victims, and preventing future abuse from occurring. The problem has not been the law. The problem all along, I suggest, has been too many bishops’ failure to apply canon law diligently. I see in the Vatican’s rejection of this proposed charter a clear directive to apply the canons now in force, and to the degree they might need reforming (canon law, like the Church, always needs some reforming), Rome will, as it has in the past, consider reasonable proposals.

Pope John Paul II is starting his 25th year in the Chair of Peter with a bang: a beautiful document updating the laity’s chief Marian devotion on one hand, and a firm reassertion of the measured application of disciplinary law on the other. Pro papa nostro, agimus Tibi gratias, Domine! +++


Update: (18 October): "When it comes to beating the Catholic Church", said G. K. Chesterton, "any stick will do." It's already started:


Hostile critics are charging the Vatican with everything from stupid curial blindness, to clerical wagon-circling, to an out-and-out cover-up, based on its rejection, for the most part, of the USCCB's proposed norms on clerical sexual misconduct. In reality, though, the Vatican wants bishops, not vaguely described committees, to take real responsibility for supervising Catholic clergy and allegations of misconduct; it wants canon law to be applied fairly and vigorously against such dangers, and will not countenance resort to ill-defined policies thrown together under media spot lights; and it even dares to suggest that in the flood of verified allegations of disgusting clerical misconduct, there are at least a few innocent priests (and others) who are being railroaded by the same disrespect for fundamental legal procedures that helped get us into this horrible mess in the first place.


A considerable number of the men who actually created this crisis, whether they be priests who engaged in gravely illicit behavior, bishops who did not recognize or did not act on that information, or some advisors who helped shape an attitude of neglect, are now gone from the scene, leaving others behind to clean up their mess. The lack of credibility that current committed Catholic leadership has on this topic is the price it has to pay for other's mistakes. So be it. Time and again the Church has experienced the pain of having wandered from its own published principles and the solution was rarely found in the concoction of new structures, committees, position papers, charters, and what have you, but rather the humble return to the perennial principles of sound moral, pastoral, and canonical wisdom.+++


Plenary Council Concerns

3 October 2002


          Some weeks ago, a small but thoughtful group of US bishops proposed convoking what would be the "Fourth Plenary Council in America" in order to deal with the crisis of clerical sexual misconduct. Since then the list of supporters of the idea has slowly grown. A plenary council is, of course, a serious thing. It has genuine legislative authority (c. 445), a power that is not widely distributed in the Church (c. 135). An examination of the canons on plenary councils (cc. 439-446), however, raises some questions that need to be addressed before moving forward. In brief, the problem is not the council, it's the conference.

The last Plenary Council for the United States met 

in Baltimore, Maryland, in 1884.

            Specifically, the United Stated Conference of Catholic Bishops (the recently reorganized USCCB) would have almost complete agenda-making and conduct-governing authority over a national plenary council (c. 441). But this is the same conference on whose watch the clergy misconduct crisis has festered for years. Its efforts to address priestly misconduct (and there have been some efforts, to be sure) have not generally been such as to inspire confidence among the faithful yet.

            One might counter that, at least in part, some of the bishops who made up the conference in years past (when little was being done nationally to check priestly misbehavior) have since retired, leaving relatively more influence to recent appointees. These, there is reason to hope, seem more willing to confront criminal behavior in the ranks of their priests. Ah, but this raises a second concern, namely, that the conference is empowered to invite even retired bishops to a plenary council, which in turn would be required to give them a deliberative vote (c. 443 § 2). Such an action would dilute the influence of exactly those newer bishops whose voices most need to be heard.

            A plenary council, if one is held, should limit its agenda to the topic of clergy sexual misconduct and only active bishops who have to face the crisis here and now should be invited with a deliberative vote. Finally, the Holy See needs to communicate that it is truly ready and willing to reject any legislation that might be inconsistent with genuine Catholic character (c. 446). +++


Update, November 10: The November issue of Catholic World Report, pp. 32-33, features opinions from several prominent US Catholic observers on the advisability of convoking a Plenary Council for America.


Kneeling for Communion

2 October 2002

If all things were equal—and they never are—but if all things were equal, I would prefer to see people receive Holy Communion standing. I personally like the symbolism of those who have been raised to new life in Christ receiving Him standing, as was done in the early Church. But this “ancient practice” argument cannot be pressed very far, at least not unless one is also willing to go back, say, to seven-years-on-bread-and-water penances. The selectivity of those who argue for the return of some ancient practices while avoiding, if not vetting, others, borders on the hypocritical.

            But I would never dream of withholding, or of countenancing the withholding of, the Eucharist from someone because of their choice to receive Jesus kneeling. This gesture of reverence for the real and substantial presence of Our Lord in the Eucharist has as distinguished a pedigree in the Church as does the erect posture. Besides, among fully-initiated Catholics (c. 842 § 1) who have observed a one-hour fast (c. 919 § 1), only “the excommunicated, interdicted…or others who obstinately persist in manifest grave sin” are to be denied the Eucharist (c. 915. See also cc. 213, 843 § 1, & 912). It is inexcusable to treat devout Catholics who choose to receive Holy Communion on their knees as if they were suddenly grave sinners.  


If nothing else, the timing of this change is wrong. Instead of removing a traditional sign of belief in the Eucharist at the very time when most studies show Catholic belief in that mystery to be at modern lows, we should welcome a reasonable and popular gesture of faith in the Blessed Sacrament. Finally, if a change in discipline does come, it would be nice if, for a change, it were not sprung on loyal but bewildered Catholics who have been encouraged in one practice for years, only to be chastised for not reading the latest liturgical tea leaves quickly enough to suit the makers of liturgical morals. The faithful deserve some pastoral preparation. +++



Abp. George Pell


          Archbishop George Pell of Sydney Australia should not have surrendered his ecclesiastical authority for an indeterminate period of time. His gesture of 20 August 2002 in response to sexual misconduct accusations against him is meant to convey his willingness to undergo the rigors of investigation and his confidence about his own vindication. It is obviously well-intentioned. It has the air of a “class act” undertaken by a true gentleman (not surprising, considering that is exactly what Archbishop Pell is.) 

But it has no foundation in a canon law system that only recognizes only outright resignation from episcopal office (c. 401) or, more rarely, a declaration that a see has been “impeded” (c. 412) by conditions clearly not satisfied under the present circumstances. As archbishop, moreover, Dr. Pell could not have used his powers to interfere with various investigations that were being conducted independently of his office in the first place. His action therefore, already extra legem (outside the law, but not exactly contrary to it), accomplishes little concrete in the order of procedures.

What it does do, I am afraid, is to establish a dangerous precedent or “unwritten expectation” for others. If a man as upright and as innocent as (I believe) Archbishop Pell is will surrender high ecclesiastical office for an extended period of time on the flimsiest of accusations, what is to prevent every bishop, not to mention clerics or lay workers, from being held to that same unreasonable standard, especially given that few accusations are likely to be as obviously worthless as are those under which Archbishop Pell labors. Will not such expectations of “temporary resignations” now be demanded by every enemy of the Church who wants to gum up its administrative and pastoral life? Moreover, should Archbishop Pell now order, or even allow, one of his own faithful pastors or lay workers to drop his duties to Christ and His people in response to accusations that the archbishop himself might be certain are false? If so, at what point exactly does an investigation into these sorts of accusations end? This is far from clear, leaving the terminus of such an anomalous situation helplessly up in the air. If nothing else, these are some of the questions that need to be addressed before concluding in favor of the archbishop’s action. +++

Update 1: It is now October 8th, and the archbishop’s “accuser” is apparently still refusing to cooperate with a civil investigation of his allegations, all the while leaving Dr. Pell in a foggy accusational limbo. Let the investigations continue, but meanwhile the esteemed archbishop should declare his self-imposed exile over, and resume his praiseworthy leadership of the Church of Sydney. +++

Update 2: As of the 15th of October, an independent inquiry being unable to substantiate any of the accusations made against Abp. Pell, he has resumed his duties. Deo gratias. +++

Prof. Rev. Gianfranco Ghirlanda, SJ, distinguished dean of the canon law faculty at Rome’s influential Gregorian University, is reported to have said recently “From a canon law perspective, the bishop and the [religious] superior are neither morally nor judicially responsible for the acts committed by one of their clergy.” (Assoc. Press, 18 May 2002, article by Tom Rachman).  

Perhaps Professor Ghirlanda was misquoted or his remarks taken out of context. In any case, the claim that bishops and religious superiors are neither morally nor judicially responsible for acts of their clergy seems difficult to reconcile with Canon 128 of the 1983 Code of Canon Law that states: “Whoever unlawfully causes harm to another by a juridical act, or indeed by any other act which is deceitful or culpable (actu dolo vel culpa posito), is obliged to repair the damage done. (British trans.)” The Americans render the operative phrase “with malice or negligence”. Either way, the canon (one, incidentally, that greatly expands the scope of ecclesiastical liability for malfeasance in office over its 1917 Code counterpart, Canon 1681) is a clear enunciation of the obligation of persons in the Church (there being no exemption for bishops in this regard) to make good harms unlawfully caused as a result of their actions or omissions.  

The pertinent claim is that the some bishops (not all, but at least some) placed priests known to them to be pederasts or homosexually active in positions wherein they could and did sexually abuse minors. A man who knows his hound snaps at children must not allow such an animal to run free through the neighborhood. If he does so, and if a child is bitten by such a dog, the owner, I suggest, is morally and juridically liable not for biting children himself, obviously, but for knowingly allowing a situation to arise wherein children could predictably be bitten by his dog. The same would seem to apply to bishops who knowingly assigned to parish ministry priests with a known proclivity to toward sex with minors.

If that analogy limps in some ways (e.g., dogs don’t have free will, but priests do), consider the case of one man who freely lends his automobile to another despite knowing that the other is a reckless driver. The owner’s good driving record is not at issue when the other man causes a tragic accident, but his prudence in helping to make possible the crash by enabling the reckless man to have access to a car, is.


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