Still haven't found anything for that hard-to-buy-for canon lawyer on your Christmas list? Looking for something completely original, very useful, and really, really cheap (as in, free)? Search no more! Just send that special guy or gal a link to Dr. Ed's solaranite-powered guide to the footnotes of the 1917 Code. It will help if your special canon lawyer likes Latin, old books, and Plan 9 from Outer Space (of course, that's true for all of us), but it doesn't really matter: here is this year's perfect gift for canonists.

A Blessed Advent, folks.

I find the hoopla surrounding Rome's decision to translate "pro multis" as "for many" (instead of as now, "for all") in the canon of the Mass disconcerting. Are we so starved for effective exercises of ecclesiastical authority that we must greet this decision as a triumph on par with, say, the fall of the Berlin Wall?

Personally, I think no congratulations are in order for having finally correctly translated a phrase that Latin students should know by the time they finish Chapter 4 of Collins' Primer of Ecclesiastical Latin. Rather than dwell, though, on why ICEL, the USCCB, and the Holy See each in their turn allowed such an obviously wrong translation to stand for so long, I will simply recall the words of Psalm 122 and be happy that our feet (on this point anyway) are standing within the gates of Jerusalem.

At least, that was my plan until I came across an interesting comment posted by a priest.

Obviously thoughtful and desirous of bringing sound liturgy to his people, he wrote that, with a smattering of Latin and some input from those who knew more, he had long ago substituted "for the many" in place of "for all" when he celebrated Mass. He justifies his action on the grounds that "for all" was clearly wrong and that people deserve a correct translation of the Mass. He added that, if his bishop were to direct him to stop the practice, he would do so immediately.

I think this approach is quite wrong.

1983 CIC 846.1 states "[T]he liturgical books approved by the competent authority are to be observed faithfully; accordingly, no one is to add, omit, or alter anything in them on one's own authority." Sacrosanctum Concilium 22.3 made exactly the same point, and expressly stated that priests were bound by this norm.

The Code and Council are unambiguous here. Thus, one no more needs a personal precept from a bishop in order to be bound to observe this liturgical law, than one needs a personal directive from an IRS agent to file one's taxes by April 15, or needs a direct order from a traffic cop to be required to obey a stop sign. Quite simply, as John Paul II stated when he promulgated the 1983 Code, "canonical laws by their very nature are to be observed." (my emphasis)

But perhaps the Bard (in Merchant of Venice, Act IV, Scene 1) put it best:

BASSANIO: I beseech you, Wrest once the law to your authority: To do a great right, do a little wrong.

PORTIA: It must not be . . . 'Twill be recorded for a precedent, And many an error by the same example will rush into the state: it cannot be.

Bassanio was a good man. But he underestimated the harm that could arise from trying to do good in a bad way. He is a lesson for all us tempted to impatience in these times so needful of reform.

I was just interviewed on excommunication by Carl Olson over at Ignatius InsightScoop. The last part of the interview also looks at why I went into canon law twenty years ago. You can go directly to the interview by clicking http://insightscoop.typepad.com/2004/2006/11/excommunication.html

Update, November 25: The interview has been translated into Romanian.

LifeSiteNews is reporting that the Canadian priest Raymond Gravel, notorious for his vociferous disagreement with Church teaching on just about every major social issue, has obtained permission from his bishop to run for national governmental office. This claim, however, seems impossible to reconcile with sound canon law.

Under the 1983 Code, Catholic priests are flatly prohibited from holding governmental office: Canon 285.3 plainly states "Clerics are forbidden to assume public offices which entail a participation in the exercise of civil power." The legislative history of this norm makes obvious the Legislator's intent to eliminate any exceptions to this rule. See Peters, Incrementa in Progressu at 234.

Unlike those situations where a priest might be given permission to serve as an agent for lay persons or as co-signer of a loan, or to hold office in unions or political parties (see 1983 CIC 285.4 and 287.2), there is no provision in Canon 285 for bishops to grant a priest permission to hold governmental office. None. Presbyteral council "approval" of any alleged "permission" is completely irrelevant.

The Holy See could, of course, grant permission for a priest hold governmental office, but there is not the slightest chance that Rome would do anything to enable this cleric to spread his kind of scandal at the national level.

Prescinding from other canonically confusing aspects of this case, the only theory by which Fr. Gravel might have been given episcopal permission to seek national office would be in virtue of a dispensation from disciplinary law under 1983 CIC 87 and 90. The standard canonical authors recognize such a possibility, but when commenting specifically on the prohibition against priests holding major governmental office, they stress how low is the likelihood that such permission would ever "contribute to the spiritual good" of those under a bishop's care. In Fr. Gravel's case, of course, the assertion that such permission might serve a "spiritual good" would be laughable.

In short, it seems that someone has either thoroughly confused Canon 285 with Canon 287, or has deeply disregarded Canons 87 and 90. Either way, this situation needs correction.

(A minor clarification on the LSN report: the canonical prohibition against priests holding governmental office did not start with the Drinan case in the USA; it was part of the Pio-Benedictine Code (see 1917 CIC 139), though Fr. Drinan's conduct in office through the 1970s certainly helped galvanize renewed enforcement of the norm.)

Same Day Update: Another Canadian priest, Fr. Thomas Dowd, writes that Fr. Gravel's "permission" to hold secular office was contingent upon his accepting certain restrictions on his ministry. Those restrictions seem like some of the "other canonically confusing aspects of this case" I referred to above. Interesting, but it doesn't change my analysis. There are no conditions upon which episcopal "permission" to hold governmental office can be given to a priest. Again, if this is not a dispensation case, as doubtfully valid as that dispensation would be, it's nothing.

Updates, November 1: Skimming some other comboxes on this topic, I see some folks confusing deacons and priests here. Please note, permanent deacons, per 1983 CIC 288, are not included under the c. 285 prohibition at all. Technically, they are not an exception to the rule; they simply don't fall under it to begin with. It is therefore confusing for some to be asserting that permanent deacons can hold secular office "if they have their bishop's permission". Per the Code, permanent deacons don't need permission at all, since they are not prohibited in the first place.

BTW, I provide canon numbers in my posts precisely so people can look up these things themselves. But too many folks don't do that before posting what they think are corrections.

A French-language communiqué from the Diocese of Joliette, citing no canons, asserts that Fr. Gravel has episcopal approval to run for civil office on condition that he basically lays aside priestly ministry for the time of his political activity. (Translation of communiqué and pointed questions from CWN here.) Whatever else may be said about Fr. Gravel's overall situation, I see no basis in canon law for this sort of "compromise".

Update, November 2: Jimmy Akin is predicting that Rome will intervene and order Fr. Gravel to stand down. This seems, indeed, the last hope that the Catholic Church in Canada will be spared its version of the Drinan disaster.

Update, November 14: There's now another one in Toronto. I can only say again, I see no basis in canon law for granting "permission with conditions" in these cases. For priests to hold governmental office requires dispensation, or it is canonically illegal. That is not a verbal quibble on my part. The character of "permission" differs in several respects from that of "dispensation" and, if history is any guide here, instances of misapplied canon law usually tend to get worse, not better, over time.

Fr. Daniel Gallagher, a colleague here at Sacred Heart Major Seminary in Detroit, has just published a fine essay on the importance of Latin training for men preparing for priesthood. Of course, I think that anything promoting Latin, and anything by Fr. Gallagher, warrants reading, but among the many excellent points made about the importance of Latin competence was Fr. Dan's highlighting of 1983 CIC 249, which calls for proficiency in Latin among those seeking ordination, as well as competence in other pastorally useful languages. Nice use of canon law by a non-canonist. Anyway, do check out his "Apologia pro Munere Suo", New Oxford Review, Nov. 2006, pp. 38-41.

As an aside, I read Fr. Dan's article (that starts by recounting some in-flight conversations he has had about Latin occasioned by his Roman collar) the morning after I returned from an out-of-town conference, during which flight I found myself in almost exactly the same conversation about my teaching Latin. My exchange was occasioned, though, not by a Roman collar (obviously!), but by someone seeing me reading Auvray's Sacred Languages (1960).

In short, more evidence that great minds run alike.

Mario Francesco Cdl. Pompedda, one the world's most famous canon lawyers, died October 18 after a long illness. Pope Benedict XVI immediately wrote that Cdl. Pompedda "was an outstanding jurist and for many years a diligent collaborator of the Holy See, particularly on the Tribunal of the Roman Rota and of the Apostolic Signatura, providing a valuable testimony of priestly zeal and faithfulness to the Gospel." It would be difficult to single out Cdl. Pompedda's most important canonical service, but surely his deanship of the Roman Rota (1993-1999) would figure prominently. I can only imagine that someone somewhere has prepared a bibliography of his extensive judicial sentences and scholarly writings. If I track one down, I'll post information on it here. Update October 20: Catholic World News notice.

I have never met Rod Dreher and know little about his work. Folks whose opinions I trust indicate that he is an intelligent, thoughtful man.

A few days ago, Dreher publicly announced that he had left the Catholic Church and joined the Russian Orthodox Church, this, apparently, being at some level his reaction to the clergy sex abuse crisis and its associated scandals. See also his Clarifying and Gratitude posts. On the whole, I found Dreher's arguments for leaving the Church unoriginal and unconvincing, but then, I don't think there are any original arguments for leaving the Church (sub sole nihil novum) and I wouldn't find any of them convincing anyway (Domine, ad quem ibimus?), however much I might sympathize with what I was hearing.

If I may rephrase him in canonical terms, it seems that one of Dreher's deepest disappointments in the Catholic Church was the reprehensible failure of so many bishops to take effective action against priests who were gravely violating Church law. Now, every legal system knows that, when authority allows laws to be broken with impunity, it becomes harder to enforce them in the future. No doubt some bishops today feel compromised in their duty to hold the faithful accountable under canon law (1983 CIC 392) after so many terrible failures to do so in the past.

In any case, here I highlight some of the canonical issues I think might be raised by Dreher's actions. Of course, Dreher and those who agree with him might find little of interest in my remarks, but I offer them as evidence that, if nothing else, canonical laws do correspond to real life situations.

1. By all accounts Dreher has committed a formal act of schism; according to 1983 CIC 1364, he is liable to latae sententiae excommunication. But, as I and others have often said, the provisions of 1983 CIC 1323-1324 render very complicated, often nugatory, one's confidence regarding automatic censures in a particular case; it is tiresome to have to stop every time and debate the intricacies of the canonical penal process at the expense of focusing on the offensive behavior that needs correcting. I repeat: it is time to abandon the latae sententiae operation of sanctions, and to restrict the application of penalties to ferendae sententiae procedures.

2. Dreher brought his wife and, more to the point, his young children with him into the Orthodox Church. Even assuming that parents can remove their children from the Church (at least in a way that such children would later need to be readmitted formally to enjoy the benefits of full communion), the "sincerity" of a parental decision to deprive a Catholic child of his or her religious heritage does not rehabilitate that decision. 1983 CIC 1366 authorizes "a censure or other just penalty" against parents who "hand over their children to be . . . educated in a non-Catholic religion."

3. Apparently most Orthodox Churches receive Roman Catholics into their communion by the celebration of the sacrament of confirmation or chrismation. The Catholic Church, in contrast, presumes the validity of Orthodox chrismation and does not re-confirm those coming into full communion with us (instead, Orthodox converts to Catholicism make a profession of faith). Assuming the 40-year-old Dreher was already confirmed in the Catholic Church, if he underwent this Orthodox rite (I cannot verify either point in his case), his "second" confirmation would be invalid and objectively sacrilegious as an attempt to re-confer a seal sacrament (1983 CIC 845, 1379).

In brief, there seem to be several aspects of this matter that warrant closer attention.

Let me say, I don't think that all the ills of the Church are reducible to violations of canon law, nor is perfect adherence to law a guarantee of sanctity; but I do think that disregard for Church law has caused or worsened many of the problems we face today. Dreher would be right to decry the anomian attitudes that pervaded various hierarchies in recent decades.

But no one should think that serious violations of canon law are unique to the clergy, nor should one underestimate the harm caused when someone, especially of a high profile, violates Church law in protest against those who violate Church law.

The Canon Law Society of America was founded in 1939 and has held an annual convention, usually in October, every year since. For the first thirty years, presentations made at the convention were published, if anywhere, in the pages of The Jurist. But beginning with the thirty-first annual meeting (1969), convention proceedings have been published in monograph form. This greatly facilitates the ability of researchers to access the considerable canonical and theological insights developed for and shared at CLSA conventions. My Guide to the Convention Proceedings of the Canon Law Society of America is offered in service to those wishing to make more efficient use of CLSA Proceedings. The Guide, which features author, titles, and my abstract of the articles, currently covers 1969-1986, inclusive, and is augmented periodically.

Interest in matters related to excommunication is growing, and I believe that this trend will likely continue. I have therefore begun assembling what I hope will be a reliable directory of excommunication cases that have arisen under the 1983 Code of Canon Law. To visit my "Excommunication Blotter" click here.

Also, as noted below, orders for my Excommunication and the Catholic Church (Ascension Press, 2006), with a Foreword by Bp. Thomas Paprocki, JD, JCD, are now being accepted.

Update, October 6: Jimmy Akin comments on the Blotter.

Update, November 7: I was just interviewed on excommunication by Carl Olson over at Ignatius InsightScoop. The last part of the interview also looks at why I went into canon law twenty years ago. You can go directly to the interview by clicking http://insightscoop.typepad.com/2004/2006/11/excommunication.html

I attended Life Chain yesterday, my fourth here. Our numbers were down a bit, though perhaps that was because Pro-Lifers, who are used to having rain and snow dump on their rallies, were confused by the beautiful weather.

But if our numbers were down a bit, the number of friendly honks and waves we got was clearly up over previous years, while rude remarks were noticeably reduced. It left me feeling pretty good about the trend toward life here in Southeast Michigan. But for one incident.

A young woman in her 20s, driving by in a nice car, leaned far out her driver-side window and, in a scream of pure hate, shrieked "Kill the babies! Kill the babies! Kill'em all!" My first thought was, "Something's been let out of hell on a 12-hour pass."

Of course, she wasn't a demon; she was a human being, herself blessed with the gift of life, but using her obvious health and wealth to spread vitriol against innocent children. In an instant, she reminded me of how far we still have to go. Maybe hers was the heart most touched by the two hundred or so witnesses to life yesterday; surely, she was worth our trying.

Apparently the BBC thinks that if the Vatican publishes a document in 2001, (which the Catholic press reported on in early 2002), but the BBC only notices it five years later, the document must have been a deep dark Vatican secret till then. Quick, what's British English for "Get real"?

Britain's Evening Standard reports that the BBC just aired a "Panorama" story about how Pope Benedict XVI, as head of the Congregation of the Doctrine of the Faith, sent a "secret Vatican edict" to bishops around the world (right, like that's a group that could keep a secret if it tried), an edict so secret "that bishops had to keep it locked in a safe at all times", which ordered a massive cover-up of clergy sexual misconduct. Besides narrating the usual litany of "worst-possible-interpretations" of various statements in the document, the Standard couldn't resist piling on with "The [BBC] investigation could not come at a worse time for Pope Benedict, who is desperately trying to mend the Church's relations with the Muslim world..." What the Standard thinks ecclesiastical relations with Muslims have to do with clergy sex abuse is anybody's guess. Maybe it's British humor, you know, like the Standard asserting that Ratzinger's first name is "Thomas". (I don't get it; I mean, the man is only the pope, for crying out loud. Can't the Standard get his name right?)

Anyway, more than a year ago, when another British press organ, The Observer, tried to hype the alleged cover-up angle of this very same story, I blogged on it (27 April 2005), pointing out that Cdl. Joseph Ratzinger's so-called secret document was published in the official journal of the Holy See, the Acta Apostolicae Sedis, vol. 93 (2001) on pp. 785-788; for that matter, it was available on the Vatican website for at least several months before The Observer thought it broke the story in April of 2005. Now c'mon: it's bad enough the BBC and the Standard don't read the Acta Apostolicae Sedis; don't they even read The Observer?

Anyway, as I said back then, apparently Pope Benedict has a lot to learn about how to keep documents secret: like not publishing them in journals distributed around the world. What surprises me (though only mildly; this is main-line British journalism we're dealing with) is that I get to say it all again.

Discuss the CDF document, if you wish, O Media Elites; debate it even; but don't pretend that it was some sort of dark secret all this time, or portray yourself as valiant crusaders in search of the hidden truths, braving Vatican fury to inform the ignorant masses. Cuz it wasn't, and you're not.

Resources: John Paul II's enabling legislation (AAS 93: 737-739); Cdl. Joseph Ratzinger's implementing letter (English translations are widely available). Follow-up on British hierarchy replies.

Ah, the original "Panorama" segment is now on-line here (it runs a little under 40 minutes). It contains its own share of serious mistakes and misunderstandings (which I will address), but the sloppy Evening Standard report on the BBC program, critiqued above, has certainly compounded the confusion for everyone.

Updates, October 2-9: Good comments and links at AmyWelborn; Archdiocese of Birmingham; Cormac Cdl. Murphy-O'Connor's letter to the BBC.

Update, October 19: Fr. Thomas Doyle, the main on-camera expert in the Panorama hit-piece against Benedict XVI, is distancing himself from the Vatican-conspiracy claims he made, or came across as making, for the BBC. In a letter to NCRep writer John Allen posted Oct 13, Doyle writes "Although I was a consultant to the producers of the documentary I am afraid that some of the distinctions I have made about the 1962 document have been lost. I do not believe now nor have I ever believed it to be proof of an explicit conspiracy. . . ." Fascinating.

Update, October 23: The endemic bias of the BBC.

I have subscribed (if I can put it that way, since it's free) to Christifidelis, the newsletter of the St. Joseph Foundation in Texas since I don't know when. It features a mix of ecclesiastical news, sometimes good, sometimes bad, and offers canonical perspectives on many matters. I invariably find myself reading nearly all of every issue when it arrives, which is four to six times a year. Occasionally I am quoted therein, always accurately and fairly.

But if I do say so myself, Executive Director Charles Wilson's latest article, "Applying the principles and procedures of civil law to canon law: a recipe for frustration" (14 Sep. 2006), which uses extended passages from two of my recent articles (on the Schiavo-Centonze wedding and my Reply to Patrick Gordon), was especially gratifying to see.

Chuck (I presume on the cordiality he extended to me in our only meeting about 10 years ago) knows from long experience what canonists often know only from books, namely, that common-law Americans have many mistaken assumptions about how a Roman-based canon law system works, and he has explained it succinctly for his readers. There is something gratifying about seeing one's words correctly understood and then ably mediated to audiences unforeseen; I hope many people benefit by the article.

If you don't already know of St. Joseph's Foundation, check it out; if you don't already get Christifidelis, ask for a sample today. Those who like to visit "In the Light of the Law" or my CanonLaw.info will likely find Mr. Wilson's project interesting too.

Updated October 17: Chuck Wilson's article is now posted.

Installment I. By ordaining to the episcopate, without a pontifical mandate, four men (who happen to be married, though that is not required here), the notorious Abp. Milingo has just walked right into an unambiguous excommunication reserved to the Apostolic See (1983 CIC 1382). The only canonical question I can see is whether notification of an excommunication can be sent via email.

Oddly, though, a spokeswoman for the Archdiocese of Washington says "this means nothing in the Church." I wish that were so. This stunt is not like a woman's "ordination", which in one regard "means nothing" in the Church. This ordination most definitely means several things: it means the episcopal orders Christ entrusted to His Church have just been conferred on four patently ill-disposed men; it means five men are now automatically excommunicated; and it means Rome is squarely faced with a grave violation of ecclesiastical order.

I'll talk about it tomorrow with WDEO's Al Kresta, at 4 pm Eastern. More background from Catholic World News. Another news source: Baltimore Sun.

Installment II. Well, very interesting, we seem to have a split in the news sources on a relevant point. Some print sources refer to Milingo ordaining bishops, others to his installing bishops. If it was the latter, and if that act did not include ordaining them (one website, which I know little about, would seem to support that interpretation) then Milingo would not be in violation of Canon 1382, as I argued above, though he likely would be at risk of canonical penalties for, among other things, abuse of ecclesiastical power (1983 CIC 1389), communicatio in sacris (1983 CIC 1365), and/or violations of canon law not expressly treated elsewhere (1983 CIC 1399). My thanks to a brother canonist for alerting me to the inconsistent news reports; now let's see what might turn up over the next few days.

Update, Sept. 26: Jimmy Akin offers valuable commentary, and suggests that ordaining bishops without pontifical mandate should itself be recognized as an act of schism under 1983 CIC 751.

Update, Sept. 26: The Holy See regards the activities of Abp. Milingo as grounds for excommunication, and has declared him such. Press Release (Italian). Amy Welborn has an unofficial English translation. Here is the VIS version. There is some very interesting language herein, including: 1) the Holy See has repeatedly, but unsuccessfully, tried to contact Milingo; and 2) the Holy See does not intend to recognize these ordinations, this a remark sure to provoke canonical and theological discussion. For now at least, it seems that whatever Milingo actually did on Sept. 24 was either an ordination, an attempted or pseudo-ordination, or is otherwise being viewed as an equivalent act subject to censure under 1983 CIC 1382.

An observation: in the post-conciliar reform of canon law, criminal law or sanctions was cut to the barest of bones. Since then, many canonists have noted that the canonical descriptions of many crimes seem too narrow to encompass within their strict terms (per 1983 CIC 18) the variations with which actual offenders commit their deeds. While the facts on Milingo are being sorted out, keep alert to the possibility that, as the living organism which it is, canon law is expanding, in its terms or interpretations, before our eyes to help the Church confront better the multiform duplicities of human behavior. See also some brief I made over at Amy Welborn's main post.

A final note: The Zenit article from this evening (Code: ZE06092606) leaves little doubt but that Holy See saw in Milingo's actions at the least a pseudo-ordination of men who claimed to have already been (illicitly) ordained to the episcopate (making Milingo's action sacrilegious, to boot, per 1983 CIC 845.1), and that the excommunication under 1983 CIC 1382 followed. This argues for a wider interpretation of the penal norm than one would have suspected a few days ago; I think, for the reasons I offered above, it makes sense.

Update October 4: I will be writing about this case for the Our Sunday Visitor newsweekly.

Update October 15: The article has just appeared as "Why archbishop's action brought excommunication" in Our Sunday Visitor (22 October 2006) p. 3.

Update November 14: VATICAN CITY, NOV 14, 2006 (VIS) - The Holy See Press office released the following communiqué late yesterday afternoon: "The Holy Father has called a meeting of the heads of dicasteries of the Roman Curia, for Thursday, November 16, in order to examine the situation that has arisen following the disobedience of Archbishop Emmanuel Milingo, and to reflect upon requests for dispensation from the obligation of celibacy and requests for readmission to the priestly ministry, presented by married priests over the course of recent years. No other matters are scheduled on the order of the day." VIS 061114 (110)

On the chance that some conscientious Catholic clergy might consider heeding Prof. David Carlin's startling call "for Catholic priests to abandon their practice of performing civil marriages" lest, by performing a religious wedding ceremony recognized by civil law, they necessarily become complicit in the state's laxist attitudes toward divorce, I offer some correctives.

First, in an area requiring canonical and theological precision, Carlin often stumbles. For example, he assumes that all marriages are performed by "priests", despite the fact that deacons and even lay persons can officiate at Catholic weddings (1983 CIC 1108, 1112). Are all official ministers held to the same standards, or not? Carlin writes that priests should officiate only at "sacramental" weddings, contrary to the obvious implications of Canons 1055 and 1086. Is he suggesting that "valid" and "sacramental" marriages be treated differently? Carlin makes no reference to the practice of some Catholic clergy performing so-called "civil" ceremonies. Does he believe this practice differs from the scenario he proposes and if so, how? But on to more substantive matters.

I must directly contradict Carlin's central assertion. Catholic officials at Church weddings recognized by civil law do not perform their religious duties in dereliction of Church teaching on the permanence of marriage. Catholic wedding officials perform their functions under ecclesiastical authority and proclaim thereby, among other things, the permanence of marriage; nothing in the liturgical celebration of Catholic marriage remotely suggests otherwise.

True, in America, in praiseworthy recognition of the importance of religion in public and private life, the state grants civil recognition to weddings performed under religious auspices. But it is crucial to understand that this civil recognition of marriage is granted by the state and for the state's reasons; it in no way implies any obligation on the part of religious officials to compromise their own beliefs about marriage, divorce, or anything in between to obtain it.

On the other hand, some nations (one need look no further than Mexico) do not recognize religious weddings and instead demand that Catholics go through a separate ceremony for a civilly-recognized marriage. Anyone who knows anything about the numerous negative pastoral consequences suffered under such conditions would, I am sure, be shocked to read that Carlin wants the Catholic Church in America to surrender its enviable rights precisely in this regard!

Beyond this, did Carlin consider what would happen if parish priests actually took him up on his challenge and announced, for example, "today's wedding is in no way intended as a ceremony with civil effects, I disavow any alleged civil effects, and I have advised the happy couple to stop by City Hall for a civil wedding ceremony afterwards if they want the state to recognize their wedding"? At a minimum, such a religious ceremony would, by its plain terms, pretend to be "a marriage which cannot be recognized or celebrated according to the norms of civil law (1983 CIC 1071 § 1, 2°)" and thus would require permission from the local ordinary. But what response could an ordinary give that would satisfy the conscience-imperative (wrongly) asserted by Carlin without compromising the rights of tens of thousands of Catholic Americans who want civil recognition of their weddings, to say nothing of addressing the wider Church-state implications that would be provoked by such unilateral action?

Obviously Prof. Carlin grieves over the divorce mentality among Catholics and he is acutely aware of the state's contribution to this social disaster. But while looking for ways to bring Church teaching on marriage more directly to bear on state policies in this area, we must avoid destroying one of the few areas wherein the state and the Church cooperate correctly in marriage, and that is in the civil recognition long accorded to religious wedding ceremonies.

Update, Oct 2: Jimmy Akin takes apart "A Stunningly Bad Article"

A note from Matthew Pinto, President of Ascension Press, informs me that my Question & Answer book, Excommunication and the Catholic Church, will be out by mid-October. They are accepting orders now.

The book is conversational in tone, about 65 pages in length, and features a Foreword by respected canon and civil lawyer Auxiliary Bishop of Chicago, Thomas J. Paprocki. Among his other comments, Bp. Paprocki writes "In this book, Excommunication and the Catholic Church, Dr. Edward Peters sets the record straight and answers a variety of questions about the ecclesiastical sanction known as excommunication. This type of analysis is very needed and timely."

Today, excommunication is more in the news than ever. I hope my discussion of the topic will not only prevent some needless misunderstandings, but will help us all to appreciate better what the Catholic Church is, and is not, trying accomplish through this important and controversial procedure.

Update, November 8: I was just interviewed on excommunication by Carl Olson over at Ignatius InsightScoop. The last part of the interview also looks at why I went into canon law twenty years ago. You can go directly to the interview by clicking http://insightscoop.typepad.com/2004/2006/11/excommunication.html

No, but I see why some people might think it is.

Canon law is truly a "sacred discipline" because it operates in direct service to sacred things. When John Paul II promulgated the 1983 Code, he used a document entitled The Laws of Sacred Discipline; likewise when he set out the Eastern Code, he used a document entitled Sacred Canons. Nevertheless, neither document claims that these Codes of Canon Law, or individual canons therein, are "divinely inspired".

We use the term "divinely inspired" to describe, for example, the text of Sacred Scripture, or maybe certain pronouncements of Ecumenical Councils or popes. But if we want "divinely inspired" to convey something special in those crucial contexts, I think we should refrain from using it to describe many other things that popes and bishops do in the exercise of their ecclesiastical duties.

Frankly, it would be difficult to find the "divine inspiration" behind, say, Canon 1630 (setting 15 days as the period of time to lodge appeals) or Canon 307 (noting that a person may be concurrently enrolled in multiple associations of the faithful). Such canons are reasonable and represent directives made by the pope as ruler of the Church, but that does make them or the Code that contains them "divinely inspired".

A few canons, to be sure, uphold propositions that may be considered divinely inspired, such as Canon 1024 (restricting holy orders to baptized males) or Canon 924 (specifying bread and wine as the matter for the Eucharist). But even here, the canonical norms themselves are not described as "divinely inspired". For remember, regular folks can make these assertions too; they might even do so in the exercise of ecclesiastical offices, but that would not make them "divinely inspired".

Canons come and canons go. 1917 CIC 796 discouraged the same individual from serving as someone's sponsor at baptism and at confirmation; 1983 CIC 893 encourages this double service. Which norm is divinely inspired? Indeed, whole Codes come and go. The 1983 Code replaced the 1917 Code. Was the 1917 Code "divinely inspired" for 65 years, only to be divinely de-inspired in 1983? If these questions sound silly (and they should) it's because the basic notion that Codes of Canon Law are "divinely inspired" is a misnomer to begin with.

I can list at least half a dozen good, even compelling, reasons to enforce and obey the canons of the 1983 Code of Canon Law; but one of those reasons won't be that the Code is "divinely inspired". Claiming divine inspiration for the Code overstates the case, and when it is shown to be an overstatement, that only gives a pretext to those already looking for excuses to disregard the legitimate demands of Church law.

According to press reports, Cdl. Battista Re of the Congregation for Bishops has sent Abp. Emmanuel Milingo a letter warning him to leave his civil law wife by Oct 15, or "face canonical suspension." What's a bit odd is that, by 1983 CIC 1394, Milingo should already be suspended automatically (latae sententiae) for that offense.

True, formal imposition of an automatic suspension carries a few consequences that merely latae sententiae suspension doesn't (see 1983 CIC 1333), but practically speaking these differences are minor and are likely of no significance for someone in Milingo's place.

So what is the "threat" in Cdl. Re's letter? Well, maybe Re is paving the way for a higher penalty such as excommunication to be imposed under Canon 1393 (for those who ignore lesser penalties). Milingo certainly seems to be providing as much provocation as he can for Rome to react sternly. Or maybe (and I admit this is, historically speaking, a long shot) the cardinal's letter is laying the groundwork for a flat-out dismissal from the clerical state under Canon 1394, the penalty Milingo would likely be facing if he were only a presbyter.

But alas, why get everybody's hopes up?

Updates: A good statement by Abp. John J. Myers; more thoughts from Jimmy Akin.

I recently saw an advertisement for chapel veils. The ad features a lovely young lady wearing a handmade veil, and presents the following text: "Did you know that nothing in Vatican II changes the practice of headcoverings for women and that Canon 1262 is still in force?" Assertions about canon law always get my attention, so I wondered, is Canon 1262 still in force?

Indeed it is. It states: "The faithful are to give support to the Church by responding to appeals and according to the norms issued by the conference of bishops." Hmmm. Nothing in there about chapel veils. In fact, nothing in there about liturgy. But that's not surprising: Canon 1262 is not located within Book IV of the 1983 Code of Canon Law where most norms on liturgy and sacraments are found, but rather, it is in Book V where Church property is regulated. Okay then, what about Vatican II?

Turns out, it's true that Vatican II changed nothing regarding women's headcoverings; but then, Vatican II said nothing about women's headcoverings one way or the other. In fact, to the best of my recollection, neither did Vatican I, or Trent, or Fifth Lateran, or so on back to Nicaea. Leafing through my sources, it seems that the canonical requirement that women cover their heads in church is almost completely unattested until the appearance of the 1917 Code, specifically, in Canon 1262, where we read "women, however, shall have a covered head" when assisting at liturgy. Ohhh! that Canon 1262.

I yield to no man in my admiration of the 1917 Code, but its Canon 1262 went out of force in November, 1983 (see 1983 CIC 6); the 1983 Code simply does not require women to cover their heads in church. (By the way, if 1917 CIC 1262 were still in force, we'd have to explain why we don't observe its other norms, like separate seating for men and women in church.)

Lawyer though I am, I also look through Scripture from time to time, and I recall St. Paul talking about women praying bareheaded (he does not limit it to "in church") and suggesting that it is better for them to shave themselves bald (I Cor. 11: 5 ff). What that passage might mean today, I leave to exegetes to explain. I don't see it mentioned in the Catechism, though.

Anyway, please don't misunderstand me: I'm a big fan of the textile arts, and I think chapel veils look pretty on girls and women, as do scarves and hats and those things that keep their hair in place. I'm just saying, there is no canonical requirement that women cover their heads in church today.

A saying in canon law runs thus: "There's no law against it till somebody does it." Well, somebody's doing a new "it", so maybe it's time for a new law.

Per the New Jersey Herald News and the Te Deum Blogspot, Fr. Louis Scurti, a campus minister at William Paterson University in New Jersey, "brings his two dogs everywhere [oh?] and that includes Sunday Mass." His pair of pooches set themselves up in the sanctuary during Mass, "making people feel included" [huh?] and providing a "symbol of domesticity" [double huh?]. Although the apparently untethered canines "have been known to growl" at late-comers, Fr. Scurti assures us that his dogs "don't remove the sacredness of the liturgy at all."

The dictates of common sense are hard to put into words. If one has to explain to a pastor why his mutts don't belong in Mass, one goes into the effort with the uneasy feeling that such words might be wasted on, well, someone who needs that kind of thing explained in the first place. But most folks can tell the difference between a liturgy and a living room, and many Catholics are out of patience with priests (granted, in shrinking numbers) who still treat the Mass as their personal property.

Yes, I could cite some canons: 1983 CIC 1210 excludes from churches things that do not advance "worship, piety, or religion"; Canon 1220 states that "whatever is inappropriate to the holiness of the place is excluded"; and Canon 285 tells priests to avoid "unbecoming" behavior at all times; but none of these norms quite make the point I want.

I might try appeal to the Catechism of the Catholic Church, paragraph 1181, which observes that a church "ought to be in good taste and a worthy place for prayer and sacred ceremonial" and that "the harmony of the signs that make it up should show Christ to be present and active in this place", but that doesn't quite get me there either.

So, I guess we need a new law: No animals in the sanctuary, ever, and no animals (except certified assistance dogs) in a church. There, now I won't be tempted to bring variously my two dogs, four parakeets, a cockatiel, salamander, newt, corn snake, or rabbit to church, and my fellow worshippers will just have to seek elsewhere for "the sense of calm and peace" I experience around my pets. Though I still think observing common sense would save us all a lot of trouble.

Oh, one last thought: it sometimes happens that, if canon law does not adequately address a problem, civil law might. The appropriate university or diocesan officials might want to check New Jersey leash laws. Liability issues are always better explored before problems arise, rather than after.

Update Sept 13: Several people have offered other examples of priests who bring dogs to Mass with them, whether in or out of the sanctuary. To them I say, first, you are not alone in thinking such practices are quite out of place in public worship, and second, every pastor has a boss. See also Jimmy Akin, Curt Jester, BettNet, and more from Te Deum.

Fr. Gabriel Amorth (b. 1925) was for many years the chief exorcist of the Diocese of Rome (not "the Vatican's exorcist", a post that does not exist) and is now honorary president of a professional organization he founded in the early 1990s, the International Association of Exorcists. Exorcisms are regulated under 1983 CIC 1172, and the current Rite of Exorcism was promulgated in 1999.

Recently, Fr. Amorth announced his conclusion that Hitler and all Nazis, and Stalin (but not all Communists?) were possessed by the Devil. I suspect that others will ably point out what a very problematic assertion, at many levels, that is. For now, I only call attention to my negative review of Amorth's most famous book, An Exorcist Tells His Story (1999) and respectfully suggest that IAE consider making it clear that the ubiquitous Fr. Amorth does not speak for them.

For those who would like a generally reliable narration of an actual possession/exorcism case, see Thomas Allen, Possessed: The True Story of an Exorcism (1993); see also Henninger Media Development, "In the Grip of Evil" (DVD 1997), containing, among other things, interviews with Allen and Fr. Walter Halloran, SJ, the seminarian who assisted the original St. Louis exorcist in 1949. (And yes, I know the weird Bp. Emmanuel Milingo makes a brief appearance toward the end of the film. Oh well.)

For Jimmy Akin's reservations on Fr. Amorth, go here.

A good organization should not let its opposition dictate the agenda, and certainly the Catholic Church has better things to do than to react to every media-hyped manifestation of the latest theological agitprop. But some problems, like "Take Back Our Church", might warrant a closer look.

Brian Saint Paul alerts us that TBOC is an opposition group, yes, but of a different caliber; Tim Jones did the same thing rather humorously last week, and Peter Nixon was on it back in July. I recommend each of their posts, and here underscore only some canonical points.

TBOC's assertions on canon law are frequently flawed. Example: "Canon law endorses a time-honored way for a nation to re-structure its governance. It is called a regional, or national synod." Um, no, it's not. Under current law, "synods" are held at the diocesan, not the national, level (1983 CIC 460-468), unless one is talking about the "Synod of Bishops" which, however, operates at the universal, again not the national, level (1983 CIC 342-348).

But guessing that TBOC meant "national council" (close enough for canonical horseshoes under 1983 CIC 439 et seq.), TBOC compounds the confusion: "[A] national synod can include non-bishops, up to fifty percent of the delegates. If those delegates were elected by Catholics in every state and claimed active voice, the synod might take on the character of a constitutional convention." Maybe one can forgive TBOC for muffing the percentage of non-bishop participants in plenary councils (even canonists read 1983 CIC 443 slowly). But for suggesting that Catholics-at-large can elect their own representatives to a council? or for asserting that non-bishops could have a deliberative vote (TBOC's "active voice") in the proceedings? No, both claims are quite wrong. Moreover, 1983 CIC 445-446 effectively preclude implementing council legislation that might be in conflict with universal law. So much for TBOC's "constitutional convention" model of governance.

But beyond canonical incompetence, there might be more in this case.

1983 CIC 1374 states: "A person who joins an association which plots against the Church is to be punished with a just penalty; however, a person who promotes or directs an association of this kind is to be punished with an interdict."

Now consider some TBOC assertions: "[W]e do plead guilty in our wish to overturn, at least in the United States, what the last pope called 'the divinely instituted hierarchical constitution of the Church.'" or: "[We Americans] must elect our own bishops. And retain the power to un-elect them if they fail to serve us." and ask: at what point do expressions of opinion, protected by 1983 CIC 212, become machinations against the Church penalized under Canon 1374? TBOC, it seems, is daring Church leadership to answer that question. Maybe this time it should.

The answer that Church leadership might make to TBOC need not be penal, of course; indeed, in accord with good canon law and pastoral practice, the first response probably shouldn't be penal (1983 CIC 1341). Instead it might take the form of plain words, the hard truth spoken in real love, the way that Milwaukee Abp. Timothy Dolan recently wrote to chronic dissenter Daniel Maguire. In any event, we have little evidence that simply ignoring challenges to Church authority makes them go away; and even if we did have such evidence, that would not excuse our letting real people get hurt in the meantime.

Many not in Church governance look at Canon 1374 and say "Ah, c'mon, do you really think there are sinister forces plotting coups against the Catholic Church today?" and too many within Church governance look at fringy groups and say "Ah, c'mon, do you really think the faithful are being taken in by such tomfoolery?" Considering TBOC's public assertions above, and its claim that nearly 600 persons have signed up with it in the last several weeks, it seems to me that the correct answer to both questions is Yes.

Perhaps all this overlooks a more basic question: just whose Church is it, anyway? I don't think it's mine, and I sure don't think it's theirs. I wonder why "His" keeps coming to mind?

Although secular news reports are, as usual, muddled, it appears that a priest in Jacksonville FL (Diocese of St. Augustine) has been excommunicated for something related to agitating for married clergy. What caught my eye in the story, though, was the priest's line "...I love the woman that I am going [to] marry so much that I'm willing to give up everything for her." My emphasis.

Just so we're all clear, a man upon ordination to the diaconate (which comes before priesthood, of course) incurs the "impediment of holy orders" (1983 CIC 1087) meaning that this priest cannot marry his intended in the eyes of the Church; not ought not, but cannot. Moreover, if he does attempt marriage, even a civil marriage, he will be automatically suspended from ecclesiastical office (1983 CIC 1333, 1394) and sets himself up for additional penalties, up to and including dismissal from the clerical state. All of this would need to be addressed separately from his excommunication, which was apparently incurred for other activities.

Maybe it's just me, but I sense today a rather different mood among American bishops facing outlandish behavior by their clergy; problem-priest cases seem much less likely now to drift along year after year in unresolved, canonically ambiguous states. Ecclesiastical justice is never swift, of course, but at last its wheels seem to be turning again.

The pseudo-ordinations that a number of women around the world, and lately in the United States, have attempted are, to borrow Leo XIII's phrase, "absolutely null and utterly void". (See specifically John Paul II, Ordinatio sacerdotalis, n. 4). Last summer (scroll to 6 July 2005) I explained how such affronts to divine and canon law can and will result in excommunication, although, as I argued, not by the automatic process (1983 CIC 1314) that many simply assumed would apply to such cases. Here I need to make a different point.

To no one's great surprise, some of these women have gone on to attempt to celebrate the Eucharist. Canonically speaking, what they have done is to simulate the Mass, which action is a distinct crime under canon law (1983 CIC 1378 § 2, n. 1). Moreover, the penalty for Eucharistic simulation is automatic, specifically, interdict, which differs from excommunication in a few respects (1983 CIC 1332). The differences need not detain us, though, for 1983 CIC 1378 § 3 allows the penalty of interdict to be increased to excommunication in cases of simulation "according to the gravity of the delict." It should be obvious that the circumstances surrounding these simulated liturgies are quite sufficient to support the augmentation of the penalty.

The practical consequence is this: those women who, after undergoing pseudo-ordination, compound their canonical crimes by simulating Holy Mass, cannot be restored to full communion (basically per 1983 CIC 1347 and 1358) upon repentance from their attempted ordinations; they must also repent of their mockeries against the Mass.

Which means the rest of rest of us have more praying and fasting to do.

Update, August 15: This, from the GB&I Comm, 794: "The offence involved here is that of a lay man or woman, or even a deacon, who goes through the rites prescribed for the Mass in an attempt to celebrate the Eucharist, whether publicly or in private." See also CLSA Comm 924-925 and CLSA New Comm 1586.

There's a meme on books making the rounds in cyberspace, and it got me to thinking:

A book that changed your life. Stuart Chase, The Tyranny of Words.
A book that you've read more than once. The 1983 Code of Canon Law.
A book that you'd want on a desert island. The Liturgy of the Hours.
A book that made you laugh. Evelyn Waugh, Decline and Fall.
A book that made you cry. Martin Gilbert, The Holocaust.
A book that you wish had never been written. Mao Tse-Tung, The Little Red Book.
A book that you hope someone will write. Incrementa in Progressu 1917 Codicis Iuris Canonici.
A book that you wish you had written. Anders Winroth, The Making of Gratian's Decretum.
A book that you're currently reading. Charles Journet, The Meaning of Grace.
A book that you've been meaning to read. The Code of Canons of the Eastern Churches.

Actually, I like personal reading logs and keep one posted myself. I think they're a good idea in several respects, and wish more people would join in!

Funny thing about the Catholic Church: When she really wants to give someone a reward, or an honor, or some kind of recognition, she doesn't spend much time on medals and ribbons, on parchment proclamations, or (perish the thought!) a cozy research grant. No, when the Catholic Church really wants to honor a man of extraordinary talent and dedication, she gives him—another job to do.

That's how I see the recent appointment of St. Louis' Archbishop Raymond Burke as a member to the Apostolic Signatura (the Church's highest administrative law court, 1983 CIC 1445). Abp. Burke knows that offices in the Church are given for the sake of service, and that when the Church calls one to higher and additional offices, she is really calling one to serve the People of God even more deeply than before. Prayers and best wishes, Archbishop Raymond Burke!

Some interesting analysis on this appointment from reporter Tom Szyszkiewicz.

Alfonso Cardinal Lopez Trujillo, the outspoken president of the Pontifical Council on the Family, has asserted that "destroying human embryos is equivalent to abortion"; therefore, he says, those directly involved in such deeds are liable to the canonical penalty established for abortion, namely, excommunication (1983 CIC 1398). That the cardinal stands on solid biological and moral grounds in equating deliberate embryo destruction with procured abortion is beyond serious question. What I want to ask is whether he stands on solid canonical grounds as well.

Consider: until the last few decades, all canonical discussions of abortion were concerned with actions occurring, obviously, within the womb. The recent development of extra-uterine fertilization technologies, however, including cryogenic storage of embryonic human beings, has created a group of humans at peril for their lives, but who, given the canonical maxim that penal laws are subject to narrow interpretation (1983 CIC 18), might fall outside the scope of the traditional abortion canon. So, one must ask: is the deliberate destruction of an embryonic human being outside the womb the canonical equivalent of an abortion procured within it?

Cardinal Lopez Trujillo believes that it is, and I think he's right. How?

Back in the late 1980's, again in the wake of bio-medical developments, the question arose whether very early abortions caused by the IUD, RU486, and certain contraceptives, were encompassed by the abortion canon which, as canonists knew, envisioned later-term procedures. On 23 May 1988, the Pontifical Council for the Interpretation of Legislative Texts addressed the following question: "Whether abortion, as treated in canon 1398, should be understood as only the expulsion of an immature fetus, or whether it is also the killing of a fetus accomplished in any manner and at any time from the moment of conception?"

The pontifical council ruled for the wider definition (AAS 80 [1988] 1818-1819), and eminent canonists such as Fr. Joseph Fox, op, explained then that the interpretation kept the canonical understanding of abortion medically up to date and morally consistent with the respect owed to innocent human beings regardless of the technique by which they were being killed during their first months of life.

But notice: nothing in the 1988 authentic interpretation limits the understanding of abortion to actions occurring in the womb; indeed, the interpretation clearly asserts that any killing of a fetus, accomplished in any manner at any time after conception, is canonically an abortion for purposes of Canon 1398.

Now, I don't want to put words in the cardinal's mouth, and it is possible that he has other arguments by which to defend his position, but it seems to me that, in asserting that those involved in deliberate embryo destruction are liable to excommunication for abortion, the cardinal, while not authorized to issue binding interpretations of canon law, has simply connected the dots left by offices that do have that authority. At a minimum, I think those disagreeing with Cardinal Lopez Trujillo have the burden of showing why deliberate embryo destruction is not, in light of the 1988 interpretation, a type of abortion punishable by excommunication.

There are, of course, more issues raised by the cardinal's interview than I can discuss here. But for now, I observe only that Cardinal Lopez Trujillo remains one of the most consistently incisive and plain-talking members of the Roman Curia, and that's good news for our side.

Note: As it happens, the Ave Maria School of Law in Ann Arbor MI is dedicating an entire issue of its excellent law review to the legal and philosophical thought of--you guessed it--Cardinal Lopez Trujillo. A host of fine scholars will be responding to an original essay by the cardinal which appears in that same issue, and it all begins with an introductory essay provided by yours truly. Look for it soon!

Pertinent follow-ups: John Allen; Chronicles of Higher Education; Amy Welborn; Jimmy Akin; Sandro Magister.

I have expanded my earlier (23 Jan 2006) blog concerning potential canonical problems with the Schiavo-Centonze wedding and published those more developed observations in the Fellowship of Catholic Scholars Quarterly 29:2 (Summer 2006) pp. 6-8: "Canonical questions about the Schiavo-Centonze marriage". Together with my January 2004 essay from This Rock, these three short pieces set forth why I think that several important canonical and pastoral questions have been raised by a Schiavo-Centonze wedding taking place under Catholic auspices (21 Jan 2006).

I anticipate, however, and want to respond to, one related point: contrary to the perception of some, canon lawyers are not "private attorneys general"; canonists qua canonists cannot compel ecclesiastical authority figures to take or refrain from taking action on specific cases. We can set out, to the best of our ability, the salient ecclesiastical issues in a case—and, of course, await evaluation of our positions by qualified critics—but ultimately, responsibility rests with officials in the local Church (or their hierarchic superiors) to investigate (or to direct the investigation of) important pastoral and social matters such as those arising from the Terri Schiavo case. Or not, if that is what they decide.

Msgr. Cormac Burke is an Irish priest of the prelature Opus Dei, a member of the Irish bar, professor of modern languages, and a prolific theological author. More than all of these, though, Msgr. Burke is one of the world's most influential English-speaking canon lawyers, serving 13 years on the Roman Rota as an "auditor" (essentially, a judge), retiring in 1999, only to continue his priestly service by teaching in Kenya.

Msgr. Burke is that unusual kind of man who has maintained extensive scholarly output while performing Church work at the highest levels; in him, we have the chance to see how a canonical judge (one with a common law formation at that) adjudicates actual cases, and how the same man reflects on those issues as an academic. Thus, his decision to launch a personal website, featuring many of his books, articles, and judicial sentences, is very exciting news. His materials (often entire works) are now available in several languages.

Note that in earlier centuries, retired Rotal judges would often publish collections of their sentences for the edification of those to follow. Ius novissimum canonists such as Cavalerius, Herrera, and Otthobono come to mind here. But with the codification of canon law in the early twentieth-century, this practice seems to have fallen off. It's been 50 years since Charles Holbock, a Rotal advocate, published his personal guide to Rotal jurisprudence, the Tractatus de Jurisprudentia Sacrae Romanae Rotae. So, by making his Rotal sentences available electronically, Msgr. Burke revives an invaluable practice, and helps bring the wisdom of canon law to bear more effectively on the issues of our time.

Related interest: Click here for Dr. Peters' reading notes on papal addresses to the Roman Rota; click here for Dr. Peters' 1990 review of Burke's Authority and Freedom in the Church (1988).

The Congregation of the Doctrine of the Faith has invited Fr. Marcial Maciel Degollado, the founder of the Legionaries of Christ, to spend his remaining days in "prayer and penance, refraining from all public ministry". Given the enormity of the sexual abuse accusations made against Maciel and the apparent credibility of many of his accusers, this directive (an "invitation" from CDF being essentially indistinguishable from an order), stopping short of a trial and well short of a conviction (or, for that matter, exoneration), will strike some as an inadequate resolution of this case.

Several obstacles stand in the way of a formal canonical trial in Maciel's case. First, such accusations, by their very nature, are difficult to prove (that being one of the most enraging aspects of this scandal); second, the long period of time since the alleged acts raises serious questions (usually under the rubric of statutes of limitations) about the prudence of attempting to adjudicate such cases at all; third, the juridic problems associated with the excessively long list of "affirmative defenses" that defendants can use to resist canonical penalties (chiefly in 1983 CIC 1323-1324) are very difficult to address during a trial; finally, in every prosecution of the elderly (Maciel is 86), prosecutors ask cui bono?

Nevertheless, I think that the CDF directive that Maciel undertake prayerful "penance" might have greater canonical significance than meets the eye.

Under common law, one is either found guilty of a crime in a trial, or not; thus, the possibility of, and significance of, canon law's alternative to a formal guilty verdict and sentence is easy to miss, especially since it (penance) sounds like something all the faithful are called to anyway (1983 CIC 1249).

Canon 1312 § 3, setting out the basic categories of ecclesiastical sanctions, states "Penal remedies and penances are also used; the former especially to prevent delicts, the latter to substitute for or to increase a penalty." In other words, the same kinds of acts or omissions that could result in a canonical penalty can, for various reasons, result instead in what is called a "penance". The possibility that CDF's call here for penance is its response to canonical crime(s) increases when one notes that 1983 CIC 1339-1340 authorize penances for those "upon whom, after investigation, grave suspicion of having committed a delict has fallen."

Nothing here proves the accusations against Maciel, which he has repeatedly denied; nor does it force the conclusion that CDF believes the accusations; in fact, we do not even know whether CDF is using the word "penance" with a sanctions-connotation. As American lawyers would say, there is wiggle-room in the statement, and it is possible that today we see Maciel joining the sad list of holy men and women who, over the centuries, have been vilified by the world and mistreated by ecclesiastical authority.

On the other hand, Rome is not in the habit of publicly telling successful, high-profile Church leaders to go off and spend their lives in private penance. It is possible that CDF examined the Maciel case, found within it evidence of grave misconduct yet, like the farmer who discovered weeds growing amid the wheat (Matt XIII), decided that uprooting the evil now would harm the innocent; if so, it seems, CDF has directed Maciel to especially prepare, trusting in the infinite mercy of Christ, for the day when every deed, and every aspect of every deed, will be made plain to all.

In 2002, Brooklyn Bishop Thomas Daily refused to allow a funeral Mass for John "the Dapper Don" Gotti. At the time I thought, "That makes sense; it sounds like a pretty straight-forward Canon 1184 matter." and went on to other things.

Just last year, though, a civil lawyer published what purported to be an extensive canonical and theological criticism of Bp. Daily's decision: Patrick Gordon, "Gotti, Mob Funerals, and the Catholic Church", Journal of Catholic Legal Studies 44 (2005) 253-276. (Abstract here) When I saw the article, I turned to it with interest because I assumed it would deal competently with a legally and socially important topic. To my surprise and disappointment, however, the article was very poor. Gordon, using demonstrably shabby canonical analysis, visited severe criticism on a bishop who was acting squarely within the scope his authority. I decided a reply was in order.

My defense of Bp. Daily's funeral decision, "Lest amateurs argue canon law: a reply to Patrick Gordon's brief against Bp. Thomas Daily", has just been published by the Pontifical University of St. Thomas Aquinas (Rome), in its review Angelicum 86 (2006) 121-142. The article is now available on my website.

I had not intended to blog about canonical penalties, specifically 1983 CIC 1382 and its automatic excommunication, in my earlier remarks on the Communist ordinations, but the issue keeps coming up. Oh well, that often happens in a crisis; matters better left for discussion in calmer times are suddenly thrust into the limelight.

Briefly, there are two very complex and controverted canonical issues raised here: (1) what is the place of automatic (latae sententiae) penalties in a legal system; and, (2) do Canons 1323-1324 render practically unenforceable most of Book VI, Part II, of the 1983 Code? I will not suggest an answer to either question in this blog; I'm just alerting to folks to where the questions are.

In the case at hand, prescinding from several other worthy canonical defense arguments, 1983 CIC 1324 § 3 says that a latae sententiae penalty does not apply to one whose actions were coerced by grave fear (even if it is only grave in the perception of that person), even if the action tends to harm of souls. The Vatican's own statement asserts what others reasonably surmised: some of these men were coerced by Communist officials into acting as they did. Now, I like to think that laws mean what the words say; thus, I cannot think how automatic excommunications were incurred under these facts.

But notice, the Vatican has not claimed otherwise.

While Navarro-Valls' correctly referenced Canon 1382, he did not state that those involved in this case had incurred the sanction. He does not have that authority, and I frankly doubt that even the Vatican would have access yet to the kind of canonically relevant information necessary to form such a conclusion. Instead, the secular media has drawn that conclusion, though in this case it's hard to blame them for doing so. Canon 1382, the only norm cited by N-V, sure seems to support it.

The sacramental questions raised by Communist ordinations still seem more interesting to me, but if this crisis occasions a fresh look at the legal problems associated with latae sententiae penalties and the affirmative defenses in Canons 1323 and 1324, so be it.

Last thought: the more that factors such as external coercion tend to diminish penal liability, the more it seems that questions about sacramental validity can be raised; conversely, where there is less interference with freedom, the more likely it is that sacramental actions are valid and that penalties for illicit celebrations would apply.

The excommunications consequent to the illicit episcopal ordinations (1983 CIC 1382) staged by Chinese Communists are so obvious that few commentators have mentioned them. Here I raise a different question: In the face of some sacraments being so obviously celebrated with no discernible pastoral sense and, in fact, driven by little besides a "let's stick it to the Catholic Church" animus, has the time come to step back and ask some hard questions about the canonical validity of such sacraments?

I have suggested that the most theologically significant decision reached by CDF under Cdl. Ratzinger was its 2001 declaration that Mormon baptism is invalid, despite eligible ministers and recipients, and despite proper matter and form. Reopening a debate that seemed settled since the time of Sts. Augustine and Cyprian, Mormon baptisms are invalid apparently solely on the basis of intention, that fifth, and in many ways most elusive, of the factors impacting sacramental validity.

Is it too much to wonder, then, whether Communist episcopal ordinations have crossed a similar line? Just what is a Communist's understanding of and intention in conferring, of all things, holy orders? Remember, until a few decades ago, similar questions on Mormon baptism seemed unthinkable, and until a few years ago, everyone assumed they knew the answer.

Updates: May 4. Navarrao-Valls' statement. The comment about bishops and priests being "greatly pressured and threatened" ( I can imagine) to take part in the ordinations raises fresh concerns, I suggest, about their validity. See 1983 CIC 125, etc.

Note: The bases upon which one can raise validity questions about Communist episcopal ordinations without raising similar questions on, say, SSPX episcopal ordinations, are contained in the above post, but I don't like to spend time underscoring the already-obvious.

Analogy: Two Catholics free to marry, but under ecclesiastical precept not to marry each other (1983 CIC 1077), and neither of them wanting to marry the other, are forced by government officials to go through a wedding ceremony together. Any guesses as to how many ways such a sacramental "marriage" could be declared null? Can a similar analysis be applied to ordination, pace contract issues?

Related issue. The problematic nature of latae sententiae (or, automatic) excommunications is highlighted in this case. Navarro-Valls recites both the canon imposing the excommunication and numerous factors that would prevent the penalty from being imposed in this case (see 1983 CIC 1323-1324). That is different topic, however, except to mention that, in this case, the factors which mitigate one's culpability for crime seem similar to some that impact one's intentionality for sacramental celebration. Secular media reports about the Vatican having excommunicated those involved cite to N-V's statement which statement, however, standing alone, would be insufficient to declare the incurrence of a penalty in a particular case (1983 CIC 1341).

Jimmy Akin's thoughts on all of this here and Jimmy Akin's additional thoughts here.

Updates. May 10: 1) Tom Szyszkiewicz thoughts here. 2. ZENIT report of a decree from CDF (11 Feb. 2000) expressing concerns about validity of certain presbyteral and episcopal ordinations carried out under Communist persecution in the Czech Republic. The decree does not state what the concerns were, only that they should be resovled by ordination sub-conditione (see 1983 CIC 845).

Canon Law Discussions. Praecipue ad usum scholarum.

I. The Formal Act of Defection.

1. It is possible (c. 124), but highly unusual, to impose, for validity, on "rank-and-file" members of the Church, the specific obligation of writing when they wish to achieve an effect in the Church. Indeed, outside of a few cases involving higher-level ecclesiastical administration, it appears that a writing requirement for the validity of an action is virtually unheard of. Rest of post continued off-blog.

Of those matters we know anything about (an important qualification when discussing papal activities), Benedict XVI's letter to the Congregation for the Causes of Saints seems to me to be one of the most important things he's done to date. It certainly shows the clearest difference between him and John Paul II to emerge so far. Benedict XVI could have communicated his concerns about the beatification and canonization process in a simple telephone call; instead he wrote a short treatise on the topic. The world was meant to take notice.

John Paul II, both legally and by force of his personality, improved the Church's ability to recognize contemporary examples of holiness. But, by canonizing over 450 saints (more than all the popes since Trent combined) and by beatifying more than 1,300 men and women besides, John Paul's vital message that the "universal call to holiness" (Lumen gentium V) could be lived in modern times was (in the opinion of many) being steadily diluted by an avalanche of names that, with few exceptions, would never be recognized beyond small circles of compatriots.

Moreover, most of the examples of those living the universal call to holiness seemed less than universal: while they came from many places around the world, the vast majority of canonizations and beatifications under John Paul II were of clergy and religious; of those laity lifted to the altars, almost all of them were martyrs. But how many examples of how to be a good nun, even in the twentieth century, does one need? Is there really, for all practical purposes, no way for laity to become saints except by martyrdom?

Beyond these pastoral questions, Benedict XVI's letter also communicates some important theological points. I'll mention just one: martyrdom must be carefully distinguished from other instances of religious persecution and murder, even those committed against Christians, by this crucial fact: a martyr accepts death delivered out of hatred for the Faith. A drive-by shooting victim, shot outside of a church because the killer hates Catholics, is not a martyr (for lack of acceptance of the death by the unaware victim). A Catholic priest thrown into a concentration camp because he is a priest, is a victim of religious hatred, but not a martyr (for lack of the witness ending in death). A pious Catholic girl who flees soldiers intent on raping the women of a village, during which flight she is shot, is not a martyr (for lack of the soldier's hatred of the Faith).

Yes, we all know there are a few close cases such as Maximilian Kolbe and Gianna Beretta Molla; a blog is not the place to analyze them. Moreover, note that each of the above examples might well describe a saint (if not a martyr). Finally, bear in mind that once the Church canonizes someone, we have the assurance that they are now with God in Paradise--no matter what procedural rules were being applied at the time.

Nevertheless, Benedict XVI's letter to the Congregation enables us to ask some probing questions about the canonization and beatification process without appearing disrespectful of the worthy goals that John Paul II was, by his lights, trying to serve.

Wow. Regular readers know that I don't do book or magazine promos in my blog, but the current issue of Homiletic and Pastoral Review is too good to let pass without comment.

To highlight just a few items: Rev. Mark Pilon, though not a canonist, offers a canonically sound look at the advantages that might accrue if we started leaving pastors in parishes for more than a few years at a time. Msgr. John Burke brings out catechetical imperatives in the New Evangelization (a topic very dear to us here at Sacred Heart Major Seminary), and the redoubtable Fr. Anthony Zimmerman helps us unpack pastoral issues raised by the 1997 Vademecum for Confessors regarding contraception. Passing over Dominican Fr. Girard's homilies (I'm just a layman, so what do I know about preaching?) and Nancy Cross' critique of the New American Bible (I'm a cradle Catholic, so what do I know about the Bible?), Mary Gillman (a former graduate student of yours truly) writes a trenchant expose of the latent anti-Catholicism behind the perennial attacks on Pius XII in regard to the Holocaust, and there's an engaging reply by Chuff and Kathenborn to an earlier HPR article on the ordination of homosexuals (confirming that the really interesting debates occur within orthodoxy, not outside of it). All Detroit-area Catholics know about the "Grotto", but others might enjoy automotive engineer (!) Diane Korzeniewski's personal, but not idiosyncratic, look at the liturgies celebrated at Assumption Parish. There's an in-depth book review of a new text on the Catholic Church and economics (outside of my area, but I'm glad we have people on this) and several other useful notices, including a very helpful look at the recent release of St. Raymond's Summa on Marriage in English and a short overview by Fr. Leonard Kennedy (csb) of Judge John Noonan's controversial exploration of (alleged?) changes in Catholic moral teaching. Fr. Baker's editorial is a combination report/analysis on the 2005 Synod as it impacts the clergy shortage. The QA column (rats!) and "My Favorite Priest" are missing, but the space saved thereby this month was obviously devoted to some of the solid articles and reviews above.

If only for breadth of topics, not to mention fidelity of treatment, the April 2006 HPR is going to be one tough act to follow.

A few weeks ago, Fr. Donald McGuire, SJ, age 75, was convicted on five counts of indecent acts with a minor. The accusations, dating back nearly 40 years, were made by two men using a quirk of Wisconsin law whereby, it seems, some statutes of limitations do not run against non-Wisconsin citizens. But, however we got to this point, Fr. McGuire's situation raises some difficult questions for the rest of us.

Consider: either Fr. McGuire committed these acts, or he didn't.

If Fr. McGuire did not commit these acts, we have a textbook illustration of why statutes of limitations are vital: the innocent have a much harder time defending themselves against older accusations than against newer, especially when the wider community is awash with examples of similar accusations being independently confirmed or admitted. We also see a serious gap in 1983 CIC 1390, which treats false accusations and testimony against a priest in civil courts as, at most, simply another kind of "injury to the good reputation of another", a description that scarcely does justice to the viciousness of this particular form of injury to a reputation.

But if Fr. McGuire did commit these acts, we confront an even deeper reality: we see, do we not?, how Christ, Who makes all things new (Rev. 21:5), can draw immense good even from people who have done evil things. I knew Fr. McGuire briefly in the mid 1980s when he was a portrait of priestly piety and good sense in the cesspool that was Hollywood. About that time, moreover, Mother Teresa, no mean judge of men, had selected Fr. McGuire as one of the very, very few priests whom she would allow to give spiritual direction to her sisters. So, if his accusers are telling the truth (something we will all know with certainty on the Last Day, CCC 1038-1040), then it seems that Fr. McGuire had, by the time I knew him 15 years later, drawn deeply on the graces that Christ continually offers us all--in this case, to go from sexual miscreant to profound instrument of God's love. All I can say to that is, there must truly be hope for any of us.

I don't know which scenario is true, and I've learned that opining about the truth in these kinds of cases is pointless, or worse. But can we not say at least this much: If Fr. McGuire goes to prison for crimes he did not commit, he certainly (a) won't be the first priest in Church history to do so, and (b) will minister faithfully to whomever he meets. And if Fr. McGuire goes to prison for crimes he did commit, he (a) will doubtless apply his suffering under this world's rough justice against whatever he might owe before God's terrible tribunal, and (b) will minister faithfully to whomever he meets.

Either way, I want to be in his prayers.

Update July 29: Fr. McGuire has been sentenced to seven years in prison and a long period of probation. His conviction is under appeal. His commented at his sentencing "Your Honor, you are looking at an innocent man, innocent of the heinous crimes of which I was accused."

If you read only one essay on the injustice being perpetrated against the Catholic Church by certain states rolling back their statutes of limitations in cases of alleged clergy sexual abuse, read Bp. Charles Chaput, "Suing the Church" in First Things (May 2006) 13-14. It's devastating. And he's not even a lawyer.

I have long argued that the statutes of limitations in canonical criminal cases (see 1983 CIC 1362-1363) were too short, but I have never supported changing them to enable prosecution of past canonical crimes; too many innocent people are required to defend themselves under circumstances where their ability to do so is seriously weakened.

By the way, those who manage to hide their crimes until a statute of limitations has run do not escape punishment. They merely transfer it to a realm wherein mercy has no power to mitigate justice.

The Pontifical Commission for Legislative Texts has just issued a "Notification" that makes it more difficult to conclude that a given person has "defected by a formal act" from the Catholic Church. The Notification raises some thorny questions for canonists which need to be, and will be, addressed elsewhere; here, I only point to a strength in the Notification that rank-and-file Catholics are likely to overlook.

The Notification (para. 2) rejects an understanding of "formal defection" that would accept as proof of formal defection those curious documents that dioceses around the world get from time to time (in my experience, they were all from Germany) whereby the local bishop is duly informed that so-and-so, baptized in his diocese, has renounced before a government official his or her Catholic identity--and thereby gets a religious tax break.

St. Paul, I suspect, will have some rather strict things to say to such folks on Judgment Day, but personally I hesitated to read these documents as anything more than money-saving schemes filled out by lazy and/or badly catechized Catholics. That hunch (and I think it was widely shared) now seems verified by the Pontifical Commission, which clearly views formal defection from the Church as an action much closer in character to apostasy, heresy, or schism, than one comparable to a "fill-out-the-form-and-save-a-few-euros" gimmick. I think that's good.

Some other important issues raised by the Notification are best discussed elsewhere, but perhaps one more quick observation is in order: Because it is now clearly harder to prove that a given Catholic has defected formally from ecclesiastical communion, that means that the number of Catholics still bound by the requirement of canonical form (1983 CIC 1108 and 1117) for marriage is higher than some might have thought, which in turn means that more "marriages outside the Church" can be found null for violating canonical form. My impression is that US tribunals had already adopted a narrow reading of "formal defection" to begin with, so the actual impact of this Notification on raw numbers in US marriage cases will be small, but to the degree the Notification has any effect in this area, it would be to increase, not decrease, the number of annulments.

April 18: Jimmy Akin points out some practical problems associated with this surprising interpretation of the law.

Here's another question: Catholics have a "proper pastor" in their bishop (1983 CIC 369) and in their parish priest (1983 CIC 515 § 1). It is not clear to me, then, how at least two distinct men, who obviously need not agree in their reading of the facts in a specific case, are simultaneously "uniquely qualified" to decide whether a given act counts as a "formal defection" (Notif. para. 5). Moreover, the use of the word "Ordinary" in para. 5 still has the feel of "diocesan bishop" about it, despite 1983 CIC 134 underscoring that when canon law means bishop, it will say "bishop".

As I suggested above, there are several other questions occasioned by this Notification, and time will doubtless help us sort them out. In the meantime, here's one for the dogmaticians: Is the phrase "Semel baptizatus, semper baptizatus" (which the Notif. para. 7 clearly and correctly upholds) identical in meaning to "Semel Catholicus, semper Catholicus"?; and another for the Church historians: "Would most (indeed, would any?) of the 16th-century Reformers have been considered to have "formally defected" from the Church under this interpretation?

April 27: Further discussion off-blog.

Back in Lent of 2003, Bp. John Botean, Romanian Catholic Eparch of Saint George in Canton OH, issued a startlingly specific condemnation of Catholic participation in the Iraq War. I thought then, and still think, that such a statement could not simply be issued and forgotten. The eparch's letter raised too many important issues for that to be its fate. I blogged to this effect on March 18, 2003 (updated March 20) calling attention to, and expressing serious reservations about, Bp. Botean's statement. Unfortunately, it appears that his letter, despite provoking serious questions on the use of canonical and moral authority, has been--at least at the hierarchical level--ignored.

Some time later, John Sharpe began assembling an impressive array of thinkers opposed to the Iraq War and, for obvious reasons, included Bp. Botean's letter in his collection. Despite my clear reservations about Bp. Botean's comments, Sharpe contacted me and asked permission to include my critique of Bp. Botean's comments in the book he edited, Neo-Conned! Just War Principles: a Condemnation of the War in Iraq (HIS Press, 2005). Happy to cooperate with those trying to make a serious contribution to public discourse, notwithstanding my disagreement with some of their positions, I gave that permission, and my essay on Bp. Botean's letter appears in Neo-Conned.

Since then, various promotional notices of Neo-Conned and some early (perhaps necessarily superficial) reviews of the book have, quite correctly, listed me as a contributor to Neo-Conned, but in a way that makes me feel like an usurper of the praise that those who agree with the book's major premise want to give its contributors, while simultaneously being presumed guilty by those opposed to the book's argument in that I published in Neo-Conned. Oh well, over time people will read Neo-Conned itself and form their own conclusions about what I did, and didn't, write.

Having said this much, though, and for what it might be worth, on the Iraq War I fall, if anywhere, in a very narrow no-man's-land. I say "if anywhere" because I have not really "taken a position" (whatever that exactly means) on the war for the simple reason that ordinary citizens (and I am unusually ordinary) generally do not have the information necessary to form persuasive opinions on such matters. Specifically, I think that Just War principles are primarily intended to inform governmental leaders in their decision-making (CCC 2309); the criteria by which we citizens relate to the government are distinguishable in a number of respects.

In any case, here in no-man's-land, we happy few think that a plausible case can be made for the United States to have invaded Iraq to rid that people of their mass-murdering, war-mongering, terrorist-abetting, eco-terrorist dictator Saddam Hussein, but that our staying there to try to establish a parliamentary democracy in a land with no 'democratic infra-structure' is, well, less plausible. I admit to being surprised that this reasoning finds so little resonance with others; it makes me wonder whether I/we have missed something important, but, there it is.

In any case, my comments about Bp. Botean, on my blog and in Neo-Conned, are only about the eparch's canonical and moral reasoning, on which topics I have some special qualifications to speak, and not about US participation in the Iraq War, on which matter I have no special qualifications with which to opine.

April 11: To my knowledge, Mark Brumley's criticism of Bp. Botean's letter has never been answered either.