Sunday, December 16,
2007
Hardt & O'Rourke err in minimizing the scope of the CDF Response
Bio-ethicist
Dr. John Hardt and canonist
Rev. Kevin O'Rourke are trying to use canon law against a Congregation for
the Doctrine of the Faith
Responsum
that upholds the basic right of patients in a "persistent vegetative state" to
nutrition and hydration. I think their arguments are flawed. Here I summarize
the events leading up to the CDF Response and then assess Hardt and O'Rourke's
attempt to minimize its impact.
1.
20 March 2004. Pope John Paul II tells an international medical-moral
congress that ". . . the administration of water and food, even when provided by
artificial means, always represents a natural means of preserving life, not a
medical act. Its use, furthermore, should be considered, in principle, ordinary
and proportionate, and as such morally obligatory. . . ." The qualifications
included in the pope's remarks and his citations to various Church documents
show that his statement is basically an application of well-established Catholic
moral principles to more specific types of medical situations.
2. 11 July 2005. The US bishops send two follow-up questions to the
Congregation for the Doctrine of the Faith. The bishops ask: (1) Is the
administration of food and water (whether by natural or artificial means) to a
patient in a "vegetative state" morally obligatory except when they cannot be
assimilated by the patient's body or cannot be administered to the patient
without causing significant physical discomfort?
and (2) When nutrition and
hydration are being supplied by artificial means to a patient in a "permanent
vegetative state", may they be discontinued when competent physicians judge with
moral certainty that the patient will never recover consciousness?
3.
16 September 2007. To the surprise of almost no one, CDF, with appropriate
qualifications and explanations, publishes its answers to the bishops'
questions, namely,
Yes
to the first question, meaning basically that nutrition and hydration may not be
withheld from patients who can still make use of same, and
No
to the second, meaning that even a very poor prognosis for recovery of
consciousness does not justify withholding nourishment and water from a patient.
Response with additional CDF commentary here.
4.
November-December 2007. Claiming to be putting this CDF Response "in
perspective", Hardt & O'Rourke assert that it "limits the free exercise of
rights [and thus] will only apply to a restricted number of cases, specifically
to patients with a firm diagnosis of PVS" and add that the Response only applies
in the United States. They further assert that had CDF wanted to make its
response more widely applicable, it would have used "another form of
communication, for example, an Apostolic Instruction." Hardt & O'Rourke claim
their conclusions are based on Pope Boniface VIII's
Regulae Iuris (Rules of
Law), which they say are applicable in "interpreting and applying the documents
of the Holy See", and on Canons
18 and
52 of the 1983 Code of Canon Law. I think these claims are wrong in several
respects.
Preliminary criticisms. Hardt & O'Rouke state that the
Liber Sextus
of Boniface VIII, wherein most of the Rules of Law are found, was published in
1300. Actually it was promulgated in 1298. An error of two years might be minor,
but imagine one's discomfort if a lecturer on American political theory claimed
that the Declaration of Independence was signed in 1778. Moreover, Hardt &
O'Rouke's suggestion that CDF could use a document known as an "apostolic
instruction" is perplexing. Amid the myriad of document styles employed
(sometimes inconsistently) by the Holy See, I have never encountered one called
an "apostolic instruction", nor is it a genre listed in Francis Morrisey,
Papal and
Curial Pronouncements, 2d ed (1995) or J. Huels, "A theory of
juridical documents based on canons 29-34",
Studia Canonica 32/2
(1998) 337-370. Or again, Hardt & O'Rouke's claim that "many of the [Rules of
Law] are repeated in one way or another in the present Code of Canon Law", seems
excessively broad. See E. Roelker, "An introduction to the Rules of Law",
The Jurist
10 (1950) 271-303, 417-436, an article replete with narrations of the pitfalls
awaiting those who invoke the
Regulae Iuris
without adequately understanding them. In short, almost every assertion by Hardt
& O'Rouke on the
Regulae Iuris
is contestable or wrong.
But a much more fundamental objection lies against Hardt & O'Rouke's claim that
canon law dictates a narrow reading of the CDF Response.
Primary criticism. Canons 18 and 52 and the Rules of Law upon
which they draw are, by their plain terms, meant to inform one's interpretation
of laws and
legal
directives. In issuing its Response on nutrition and hydration, however, CDF was
not
issuing a law, or an authentic interpretation of a law (1983
CIC 16), or indeed any other kind of juridic decree (administrative or
otherwise). Instead the dicastery is setting forth
moral
criteria for personal decision-making, a point reinforced by the CDF Response
being posted among the
dicastery's doctrinal statements, not its disciplinary ones. In other words,
by subjecting CDF's enunciation of
moral
principles to interpretive techniques that were developed for assessing
legal
norms, Hardt & O'Rouke are basically criticizing the CDF Response for not being
something it never claimed to be.
Even at that, Hardt & O'Rouke's critique seems poorly done. For example, their
claim that the Response is applicable only in the US is easy to refute. One need
simply observe that CDF published its Response in
French, German, Italian, Polish, Portuguese, Spanish, and Latin to show how
implausible is the assertion that it was intended only for America. Likewise
their claim that the CDF Response protects only to patients in a "persistent
vegetative state", and not necessarily those suffering from such conditions
Alzheimer's, is untenable. Logic dictates that persons similarly situated should
be treated similarly and, obviously, both Alzheimer's patients and persons in a
"persistent vegetative state" need food and water to survive. I cannot imagine
the grounds upon which Hardt & O'Rouke think that CDF might discriminate between
these two groups.
The moral principles set out in the CDF Response are meant to be applied
regardless of the fact pattern that lead to an individual's plight and
regardless of where his or her suffering is taking place. I urge persons
striving to understand and apply Catholic medico-moral principles in difficult
nutrition and hydration situations to consult directly the statements on this
matter offered by the organs of the Holy See, and not to be put off that inquiry
because of the canonical objections that Hardt & O'Rouke have tried to allege
against this important statement from the CDF.
+++
More analysis from
LifeSite, 21 December 2007.
Monday, November 12,
2007
The choice between Abp. Burke and Bp. Paprocki
Before finding out which candidate, Abp. Raymond Burke of St. Louis or Chicago
auxiliary bishop Thomas Paprocki, has been elected to chair the
USCCB Committee on Canonical Affairs, I write to say only that both
candidates are highly qualified and widely recognized among American bishops for
credentials, competence, and orthodoxy. Each one has a doctorate in canon law
(both from the
Gregorian), and while
Burke has extensive Roman judicial experience,
Paprocki is a licensed civil lawyer. It's a happy day, folks, when the
choice is between two such excellent lawyers.
There is, though, I regret to note,
some speculation out there that the choice between Burke and Paprocki might
shed light on the USCCB attitude toward
Burke's stand on Canon 915, a stand resulting in withholding Holy Communion
from certain notoriously pro-abortion politicians. But I wonder how it could
show any such thing.
To my knowledge, Paprocki has made no statements on Canon 915 (nor need he
have), so just what is there to compare with Burke here? But, if anyone thinks
Paprocki is one to shy away from straight talk, I need only point them to his
recent Red Mass homily in Grand Rapids MI, where he says bluntly that, amid
the proper use of civil law to pursue justice for the victims of clergy sexual
abuse, the force of American law is being also used a club to punish the wrong
people (chiefly, faithful Catholics in the pew) in some of those cases.
Predictably,
he's been vilified in some quarters for it.
I'd be happy see either man elected, if only both because both bishops have
shown considerable savvy in agreeing to write forewords to some
recent canon law books. Abp. Burke wrote the foreword to Edward Peters,
Incrementa in
Progressu 1983 Codicis Iuris Canoici (2005), and Bp. Paprocki did
likewise for Edward Peters,
Excommunication and the Catholic Church (2006).
What more can I say?
+++
PS: I should say, some critics of Bp. Paprocki's homily have much more
credibility than the
LA Times,
including
Catholic World News and
Gerald Augustinus. Still, I think both have missed the bishop's main point,
but that discussion needs to wait a bit.
Update 13 November:
Bp. Paprocki was elected.
Thursday, November
08, 2007
Civility, yes, but fairness and accuracy too
I have nothing against platitudes. Though simplistic, platitudes tend to be
true, and these days many people need to have simple truths reiterated. To the
extent that the
Catholics in Alliance for the Common Good statement,
A Catholic Call to Observe Civility in Political Debate, simply
reiterates some obvious truths about needing to observe "civility" in public
discourse, I say fine. But there is more to the CACG statement than that.
Despite their genteel demeanor and above-the-fray tone, I suggest that the CACG
is firmly supporting one side in a crucial "partisan" debate (the wrong side, at
that) and that they are discouraging Catholics from exercising some fundamental
canonical rights.
Consider their principle no. 2: "As lay Catholics we should not exhort the
Church to condemn our political opponents by publicly denying them Holy
Communion based on public dissent from Church teachings. An individual's fitness
to receive communion is his or her personal responsibility. And it is a bishop's
responsibility to set for his diocese the guidelines for administering
communion."
First, I wonder why the CACG aims this advice only at lay Catholics? Does the
CACG consider priests and religious not bound by the rules of civility? Or, do
they think that priests and religious have
more
rights than laity to express their views in this area? If so, I suggest the CACG
consult, to choose only one of about a dozen relevant norms here,
Canon 212 upholding the right of
all
the faithful to express their views on matters affecting the good of the Church.
Supposing, though, that the CACG does not hold with either conclusion, one
wonders why they expressed themselves so clumsily as to even raise the question.
Still, there is more wrong here than poor phrasing.
It is a common ploy of political discourse to distort another's position and
then demolish the caricature hoping that observers will conclude that, whatever
the other side held, it must have been wrong. The CACG does this when it
portrays those who support the withholding of Communion from certain politicians
as if they support the Eucharist being withheld from "political opponents"
per se,
instead of, as is really the case, from those who "obstinately persist in
manifest grave sin" (1983
CIC 915). The CACG wants readers to conclude that, because no one should
support withholding the Eucharist based only on political differences, the
practice of withholding the Eucharist from political figures must be wrong.
Indeed, the CACG describes this action as "condemning" political adversaries,
making those who support some withholding of Communion appear especially
ruthless. These are, I think, grave distortions of the real issues and, if I may
say so, they constitute very uncivil ways to portray those who disagree with the
CACG.
The CACG seems completely unaware of the important distinction between public
and private responsibility in the administration and reception of Communion when
it asserts: "An individual's fitness to receive communion is his or her personal
responsibility." But, as so many writers in so many
fora
have noted (e.g.,
here,
here,
here) the observance of
Canon 915 (that binds ministers in the public arena) is at issue here, not
Canon 916 (that binds individual members of the faithful in conscience). I
cannot imagine a group that claims to be making a credible contribution to this
vital discussion not even alluding to, let alone reckoning with, this key
distinction. The CACG does neither.
Finally, despite having stated (more or less accurately) that "it is a bishop's
responsibility to set for his diocese the guidelines for administering [C]ommunion",
cannot the CACG see that some bishops
have
concluded that certain people's activities (albeit in the political sphere)
constitute, under Canon 915, a disqualification for reception of the Eucharist
in their diocese (that is, as far as these bishops' responsibility for the
Eucharist extends)? What exactly, then, is the CACG's complaint against these
bishops, except that that the CACG (resting on shoddy argumentation) disagrees
with their decision?
There are, I'm afraid, additional problems with other CACG assertions, but the
above comments should suffice to show that one's laudable willingness to urge
the observance of civility in public debate is not necessarily a measure of
one's impartiality in that debate, or even of one's ability to discuss the
issues raised in those debates accurately.
+ + +
Other
reactions:
Catholic World News,
Mark Brumley,
Catholic Family and Human Rights Institute,
Carl Olson,
Robert Miller
Monday, October 15,
2007
In re the Eucharist: Cdl. McCarrick vs. Abp. Burke
Recently Cardinal Theodore McCarrick expressed his opinion on an important point
of pastoral practice, namely, whether to withhold Holy Communion from
notoriously pro-abortion Catholic politicians. McCarrick specifically expressed
disagreement with Abp. Raymond Burke, who holds that the Eucharist should not be
administered to certain pro-abortion Catholic politicians. But in disagreeing
with Burke, I think that McCarrick mischaracterized the question and
Burke's compelling answer to it.
According to the
October 12 Catholic News Agency article, McCarrick seems to think there are
only two ways to deal with the scandal of pro-abortion Catholic politicians:
either
withhold the Eucharist from them
or
work to persuade them of the error of their ways. McCarrick regards Burke as
having chosen the first of these two supposedly mutually exclusive options,
whereas he, McCarrick, supports the latter. This needs sorting out.
Burke fully supports engaging politicians with the truth of Church teaching on
the humanity of the unborn child, on the responsibility of all public servants
to protect the innocent, and on the specific duties of Catholic leaders to imbue
the temporal order with the message of the Gospel (CIC
225.2). What Burke does
not
countenance is offering, in the meantime, the Body, Blood, Soul, and Divinity of
Our Lord and Savior Jesus Christ (CCC 1413) to Catholics whose public record is
one of chronic contempt for any (let alone all!) of those truths.
Burke knows that Catholics are obligated to examine their conscience before
approaching the Eucharist (CIC
916); but he also knows that ministers are obligated to withhold Holy
Communion from those who "obstinately persist in manifest grave sin" (CIC
915). Furthermore, he believes that the failure to observe Canon 915 has
grave repercussions for those receiving,
and for those
administering, the Eucharist. What is there to disagree with, here?
To be sure, important questions such as the point at which one's pro-abortion
voting record constitutes objective grave sin, or exactly which ministers of
Holy Communion are charged with assessing public conduct, must be addressed. But
how can such questions even be broached when the most fundamental points of
Eucharistic discipline have become so muddled?
We are living through
a terrible, perhaps unprecedented, unraveling of respect for Jesus in the
Eucharist. Such a crisis compels all of us, I think, to examine our
consciences for how our sins might have contributed to this disaster. But in the
meantime (and though he might cringe to hear such praise) let me suggest that
Abp. Raymond Burke has emerged as the most articulate defender of our
Eucharistic Lord among our bishops, and that his leadership is valued more
widely than he can possibly imagine.
+++
Read more about this issue:
Edward Peters, "Denial of the Eucharist to pro-abortion politicians",
Homiletic & Pastoral Review (Oct 1990) pp. 28-32, 48-49.
Wednesday, October
10, 2007
Computer woes and College rankings
1. No, I have not given up the ghost. My computer has, for the second time this
year. I am trying to assemble a servicable computer package, but times being
what they (always) are around here
. . .
well, we'll do the best we can.
2. The
Cardinal Newman Society has published a
Guide to Choosing an [American] Catholic College. As is true of so much the
CNS does, the Guide is well thought-out. With my computer access limited as it
is (see above), I pause to make only three quick points:
a) The Guide missed a very good call by
not
including the
University of St. Thomas in St. Paul Minnesota. The
Catholic Studies program there is first class, and the wider university
seems to be undergoing a striking metamorphosis at the graduate and
undergraduate levels.
b) The Guide should have flagged the unaccredited or only-provisionally
accredited schools. Such places can be good, of course, but they entail some
special risks for students.
c) The Guide might consider expanding its criteria to include non-Catholic
colleges that offer a warm welcome (plus a good education!) to Catholics. This
is a bit tricky, I understand, but there are several such places out there.
I wish there had been something like this available when I went to college, but
I'm glad it's here now. Thanks, CNS.
Tuesday, September
25, 2007
My review of "Medieval Church Law" posted by JLR
I recently had the pleasure of reading and reviewing (for Hamline University's
Journal of Law and Religion) a fine work,
Medieval Church Law and Origins of the Western Legal Tradition
(2006), edited by Drs.
Wolfgang Muller (Fordham University) and
Mary Sommar (Kuttner Institute). A collection of some two dozen articles in
four languages, this book is a festschrift in honor of the esteemed legal
historian
Dr. Kenneth Pennington, long of Syracuse Univeristy and lately of Catholic
University in Washington DC. Practicing canonists need to set aside more time to
appreciate the
discoveries and insights being offered by researchers in allied disciplines,
and this handsome volume from CUA Press is a fine place to start. You can read
my review of
Medieval Church Law here.
Monday, September
10, 2007
Abp. Raymond Burke on Canon 915
Is this cool or what?
One of America's sharpest canon lawyer bishops (Abp.
Raymond Burke of St. Louis), has just published a terrific article in
perhaps the world's most prestigious canon law journal (Periodica
de re Canonica in Rome), on a topic of vital interest to the
Church in the world (the correct application of
Canon 915 on denial of Holy Communion). Best of all, it's
available on-line here.
Like I say, it's just too cool.
Back in 2004, Abp. Burke was one of handful of bishops who understood and
enforced
Canon 915 against certain pro-abortion Catholic politicians who were
attempting to receive Holy Communion despite their patent non-compliance with
Church discipline. He suffered more than his share of slings and arrows over the
months that followed, including some
tsk-tsks
from certain folks who really should have thought twice before putting their
canonical acumen up against Burke's. In any case his article, "Canon 915: The
discipline regarding the denial of Holy Communion to those obstinately
persisting in manifest grave sin"
Periodica
96 (2007) 3-58, demonstrates just how much law and sound pastoral theology Burke
had, and has, behind him.
Periodica
does not publish articles for beginners and Burke assumes that his audience
knows, e.g., what the
Decree of Gratian and the
Decretals of Gregory are, and why
Eastern canon law and the
Pio-Benedictine Code are important for contemporary Roman canonical
analysis. But even if you don't know these things, you can still read Burke's
article with profit; it only means taking my word for it that arguments built on
such foundations are very important and lend mighty support to the position
Burke took with regard to recalcitrant politicians. Which they do.
Some of my favorite points? Burke's obvious understanding of the importance of
legal history, his demolishing of the confusion in some minds that Canons 915
and 916 are just two ways of saying the same thing (not!), and his
underscoring the fact that the scandal of unworthy reception can be assessed
objectively, not just subjectively.
Oh, how I wish someone would give a prize for "Most Important Canonical Article
Published in a Peer-Reviewed Journal". I know what I would nominate for 2007.
Wednesday, September
05, 2007
NEWS FLASH: Catholic Church expects faithful to follow her rules!
Did you hear the shocking story about the man who got arrested for walking home?
Well, it happened. This guy broke out of prison, see, and there he was, walking
down the street toward his home, not bothering anybody, and the cops drive up
and arrest him.
That's
shocking? Says who?
A spate of stories this summer (maybe the same few stories recycling themselves
on slow news days) describes folks bringing wrongful termination actions against
Catholic employers (usually schools).
Today's features a man who claims he was terminated "for not getting an
annulment." I doubt it.
I don't know who said exactly what to whom (that's what courts are there to sort
out), but I do know this: there is no canon law that requires people to "get an
annulment", so the failure to get an annulment
can't
be the basis for a termination. My guess is, though, it wasn't.
Analogy time: There is, pretty obviously, no civil law that requires people to
go out and get nursing licenses. Rather, the law says "If
you want to work as a nurse, get a nursing license". If one works as
a nurse without a license, there will be negative consequences, but that is
not
the same thing as saying the law requires people to get nursing licenses. The
law does not punish the failure to get a license (else, almost every citizen
would be in violation of it!); rather the law punishes people
working as
nurses without a license.
Similarly, there is no canon law that requires Catholics to go out and get
annulments (else, virtually every Catholic would be in violation of it). Rather,
the law punishes those attempting marriage in violation of Church teaching. One
way to run afoul of Church teaching on marriage is to violate
Canon 1085 which basically says "If you have been previously married, and
your ex-spouse is still alive, the nullity of your earlier marriage must be
proven before you attempt a marriage." If you try to get married against Canon
1085, there will be a variety of negative consequences, beginning with
Canon 915. Okay, well, what's so wrong about that?
The negative consequences relevant to employment with Catholic institutions are
typically found under "morals" or "Church teaching" clauses of employment
contracts, but they are amply reflected in a wide variety of authoritative
Church documents (e.g,
here,
here, and even
Precept 6 here). Notice, the negative consequences would be imposed for
attempting marriage outside the Church,
not
for something like "not getting an annulment". Just as people don't get arrested
for walking home, they don't get terminated for not getting annulments.
When someone says "I got fired for not getting an annulment", I think what they
probably mean is, "I got fired for attempting something as publicly wrong as
marriage in violation of Church teaching, and I don't like it when the Catholic
Church expects Catholics to live by her rules."
Shocking, eh?
Tuesday, August 28,
2007
Tom Monaghan and the art of pointless provocation
In the midst of ceremonies celebrating the latest stage of his Ave Maria dreams
in Florida, Tom Monaghan made his own, or repeated without rejecting,
the hate-phrase "academic terrorists" to describe those in Michigan who,
three or four years ago, resisted his sudden dismantling of a fine Catholic
college there. Monaghan added that his Michigan opponents "did everything they
could to stop" him (which resistance he took as proof of God's approval of his
actions) and opined that his obviously incendiary remarks "dramatized" the
recent Florida festivities.
Assuming the truth of those sad days matters anymore, let me say one more time
that I did not see faculty and staff of Ave Maria College in Michigan doing
"everything they could" to stop Ave Maria in Florida: instead, I saw them doing
what little they could within the law and their meager resources
to save
Ave Maria College in Michigan. Such a simple distinction, and so many can't or
won't see it. Anyway, it's moot now. The Michigan people lost.
Perhaps businessmen don't get to be billionaires thinking this way, but it seems
to me that in politics, sports, and so on, victors take one of two stances
toward those they defeat: either they say something vaguely complementary about
their opponents (here, something as simple as "Well, they thought they were
doing the right thing, and I can respect that, but they were wrong"), or at the
very least say nothing at all.
Not Tom Monaghan. Instead, he feels free to label those upright men and women as
"terrorists", a particularly vile thing to say or even to repeat today. But
beyond being mean, his remarks strike me as pointless. What
good
did he think it would to do?
As many know, I stood up for the Michigan faculty and staff who opposed the
abrupt destruction of Ave Maria College and, like others before me and others
after, I was duly shown the door by the Ave Maria empire. Maybe I should have
seen that as evidence of God's approval of my actions, but it's hard to be
poetic when one suddenly has to find a new way to meet the mortgage in the
Michigan economy.
In any case, when, not long after, the college's defenders lost their court
case, I withdrew from the fray. I removed my posted exchanges with Nick Healy
and Fr. Fessio and stopped writing to the Ave Maria boards. In the years since,
I've turned down various requests for media interviews and have not commented on
the latest Ave Maria debacles, in particular, the on-going implosion of the Ave
Maria School of Law.
Tom Monaghan, in contrast, seems to think that his
paterfamilias style of
philanthropy permits him to show continual scorn for the vanquished, those who
dared to question his judgment about various projects, projects to which they,
often as much and sometimes
more
than he, contributed, but in which he allowed them little or no voice.
In his latest round of self-congratulatory revels, Monaghan justifies his recent
gloating thus: "It makes the moment bigger when people know what you've been
through to get here." Gee, that's
just what Tom Monaghan
needs, another bigger moment. Really, it's beyond parody.
Still, may I suggest that what Tom Monaghan needs is not another "bigger
moment", but rather a little one: one wherein, instead of recalling what
he
went through to get where he is, he tries to imagine what he has
put
other people through getting himself there.
Friday, August 24,
2007
Spouses should not attempt joint sacramental confession
The practice of spouses jointly celebrating the sacrament of confession recently
garnered
support from Catholic News Service veteran columnist Fr. John Deitzen.
Provided that couples "approve and consider it helpful for their marriage",
Deitzen holds that spouses may confess their sins in each other's presence and
receive absolution. He notes only that each spouse would be bound by the seal of
confession in regard to what he or she learned about the other.
I believe, however, that there are formidable canonical and practical objections
to joint sacramental confession, and I set them out for consideration.
Deitzen's basic argument runs thus: there is no express canonical or liturgical
prohibition against spouses confessing sacramentally in each other's presence,
so "couple's confession" is licit. But even if,
pro arguendo,
no norm expressly prohibits joint confession, one may still ask, So what? There
is no canon against the faithful attending Mass drunk or naked, but surely we
cannot read the law's "silence" as approval, qualified or otherwise, for such
practices. The Church could not possibly identify in advance and prohibit every
illicit practice that the faithful might think of. Inclined though I am to give
wide play in canon law to the legal maxim
Libertas
praesumitur (Freedom is presumed), joint confession is an instance
where that worthy principle must yield to weightier considerations.
Indeed, I suggest that it is clearly discernible from several canonical norms
that joint confession should be avoided. Ironically, Deitzen identifies these
norms but seems to miss their obvious (to me, anyway) implications.
1. Deitzen acknowledges that
Canon 960 holds that "Individual and integral confession and absolution
constitute the only ordinary means" of celebrating the sacrament of confession,
but he fails to include the next clause of the canon: "only physical or moral
impossibility excuses from confession of this type." The phrase Deitzen omits
seems fatal for his argument: Standing alone, I think it defeats the liceity of
"couple's confession" on Deitzen's facts: one cannot plausibly suggest, let
alone prove, that it is morally impossible for one spouse to confess his or her
sins except in the presence of the other spouse.
2. Deitzen also appeals to
Canon 990 (authorizing an interpreter to assist one confessing sins) to show
that one's confession can be made in the presence of another. But again, so
what? The very existence of a canon
permitting
a penitent to use
a translator
reinforces the prior canonical expectation that sacramental confession is to be
celebrated
privately,
a third party being authorized only to make someone's confession
possible in the first place! If I may be pardoned a drift toward the ridiculous,
interpreted confessions are not analogous to joint confessions for another
reason: having interpreted the confession of a penitent into the language of the
priest, the interpreter does not then confess his or her
own
sins in the presence of the penitent!
3. Deitzen misconstrues
Canons 961 and 962 (on the absolution of multiple penitents in urgent cases)
in wrongly stating that general absolution authorizes "general
confession
and absolution" for multiple penitents (my emphasis). These canons do no such
thing; plainly, they provide for general absolution
without
confession of sins; individual confession is performed later.
There are additional problems with Dietzen's description of the "seal" that
might arise from joint confession, and frankly I see no way to limit this
practice, once admitted, only to married couples, but by way of conclusion, I
would add a practical point: the modern practice of individual confession is
designed to foster freedom and candor. Joint confession would undermine these
values.
It takes no imagination to see that "couple's confession", while it might at
first seem like an intimate, bonding experience, can quickly become an occasion
to avoid revealing important details about the species and numbers of one's
grave sins (Canon
988); this in turn can deteriorate into an excuse to avoid confessing at
all, or it can spark spousal suspicions as to why going to confession together
was okay
last time, but not
this
time. Worst of all, "couple's confession" can result in the coercion of an
unwilling spouse, which coercion might not be apparent to the confessor at the
time. But guess who will later be blamed for having celebrated the joint
confession?
In sum, I see no legal or pastoral support for the practice of joint confession,
spousal or otherwise. The faithful should be dissuaded from attempting to
celebrate the sacrament under these circumstances, and I would strongly
discourage priests from becoming enmeshed in such an improvident practice.
+++
Some
additional thoughts: (1) My analysis does not address the
validity
of joint confessions/absolutions but, as is well known, sacraments are hard to
break; they might well be celebrated illicitly, but still validly. (2) Joint
confession introduces the novel prospect of one penitent being sufficiently
disposed for absolution (Canon
980) but the other not. (3) While in common parlance the concepts of
"privately" and "individually" are distinguishable, in the pastoral practice of
confession, they have been viewed as interchangeable. This is, of course,
Deitzen's point, that perhaps they should
not
be so viewed and that confession need not be "private" to be "individual". But
aside from the fact that Canons 990, 961, and 962, among others, seem to assume
that "individual" confession
is
"private", and in light of my practical concerns above, I think Deitzen has the
burden of demonstrating
why
two terms that have been assumed as interchangeable for centuries should
sudddenly no longer be understood that way before passing on pastoral changes
that could have grave repercusssions for individuals seeking this sacrament.
Something stronger than "There's no rule expressly prohibiting it" seems in
order. (4) If one admits any third party, not a translator (and, okay, not a
small child who cannot be left unattended for the time it takes to make
confession) to be present at confession, why limit that concession to third
parties (of any sort) making confessions? Why not permit attendance by other
non-confessing
parties who in turn might have any number of motives (known to the priest or
not) for wanting to be present? This scenario offers its own host of serious
pastoral (and for that matter, civil law immunity) questions.
Update: November 3, 2007.
Fr. Deitzen, after communication with the Congregation for Divine Worship and
Sacraments, has basically withdrawn his assertion that couples may receive the
sacrament of confession together.
Friday, August 10,
2007
A canonical response to a murderous priest
The story out of Mexico (English
version,
Spanish version) that a priest has been sentenced to 55 years in prison for
the murder of his own son (committed to prevent detection of the priest's sexual
misconduct and his possible expulsion from the clerical state) leaves one pretty
much speechless. In the 18 months since this story broke, it appears that the
Mexican hierarchy, appalled by the discovery, cooperated with state prosecutors
pursuing the matter in secular court. That's all to the good, of course; but I
think it important that the canonical consequences for such loathsome conduct be
pursued as well.
There are arguments under the current criminal law of the Church (Book VI of the
1983 Code) whereby a priest who, in a one-time act, sires a child with a
consenting adult, could escape dismissal from the clerical state for the deed,
notwithstanding the other penalties that might be imposed on him (a careful
reading of CIC
18 and
1394-1395 demonstrates this). I don't know whether the facts in this case
would have allowed such an argument to go forward; my hunch is, the odds are
against it.
But in murdering the progeny of his misconduct, a priest renders any such
arguments moot and makes his expulsion from ordained ministry a simple matter.
Canon
1397 states that anyone who commits homicide can be punished in accord with
Canon
1336, a norm that in turn authorizes "dismissal from the clerical state" as
a penalty for certain offenses. As if that weren't sufficient basis for
dismissing a homicidal priest from the clerical state, a canonical judge is
permitted to augment penalties on those who have been "established in some
dignity" (CIC
1326).
Priesthood is surely such a dignity. It should be canonically vindicated against
such dastardly conduct.
Saturday, July 14,
2007
CDF's "Responses to Some Questions"
If you're wondering why all the shouting about CDF's "Responses
to some questions regarding certain aspects of the doctrine of the Church"
(official version:
Ad catholicam profundius), all I can say is, I'm wondering too.
I see nothing new in the document. Not that it hasn't stirred up
the usual hysterical reactions, particularly to Question Five. But so what
else is new?
Maybe "complaint" would be too strong a word, but I was hoping that the CDF
document would offer something
more
than any decent student of ecclesiology could have already told us. For example,
the response to Question Three (why the expression
subsistit in
[subsists in] was used in
Lumen gentium 8 rather than the verb
est
[is]) doesn't really, it seems to me, answer the question posed. Maybe I missed
it; wouldn't be the first time.
For my money, the more interesting remarks occur not in the CDF document itself,
but rather in an unsigned "Commentary"
on the Responses (oddly,
not
linked on the Responses pages, and
not
posted in Latin). For example, the commentary on
subsistit in Question
Three seems to offer two different impressions: one, that the Council Fathers
asserted no difference between
subsistit
and est
(as in, the "rivers of ink" spilt on this matter have been much ado about
nothing); and two, that "subsistence" can be seen as what "substance" --how to
put this?--
does
or has.
On which point, though, I would defer to my friends in philosophy.
Anyway, all I'm saying is, the canonist in me sees, so far at least, nothing new
in the Responses. Lawyers should read them, and move on.
Notes:
for a good set of posts and links on this matter in general, scroll through
Carl Olson's multiple posts at Insight Scoop; for some canons of the 1983
Code that quietly but clearly assume the distinction between "Churches" and
"ecclesial communities" discussed in Question Five, see 1983 CIC
364 n. 6,
908, and
1183.3.
Sunday, July 01,
2007
Remarks on the Lawler-Risch US Catholic article
Michael Lawler and Gail Risch (U.S.
Catholic on-line) propose to treat certain co-habiting couples
essentially as married. This bad idea should, and will, go nowhere (Abps.
Charles Chaput and
Elden Curtiss and folks like
Carl Olson see numerous problems with it), so I won't comment much on it. I
should point out, though, that L&R's presentation of the canon law on marriage
is problematic in
several
respects.
I was confused, for example, by L&R's portrayal of the disputants in the
marriage debate that gripped the Church from the 9th to 12th centuries: "In the
12th century," L&R claim, "Gratian, the master of the school of law at the
Catholic University of Bologna, introduced a compromise in the debate between
the Romans and the northern Europeans over what brought about marriage." That
doesn't sound right. For starters, Gratian
lost
this one.
Omitting Hugh of St. Victor (who constituted a third front all by himself), the
two sides in the medieval marriage debate were as follows:
Theologians
from the University of Paris who championed (perhaps ironically) a maxim from
ancient Roman law that spousal consent alone makes a marriage, versus
canonists
from the University of Bologna, led by Gratian, who argued for a 'Germanic'
cultural model whereby marriage arose from a sequence of actions, one of which
was spousal consent; the actual "Romans", meanwhile, as scholars and canonists
at least, were not major players until the papacy stepped in and resolved the
debate in
favor of the Parisians, not Gratian, in the 13th century.
Gratian did advance the marriage debate by upholding
consent
and
intercourse as events with juridic significance. But in the end, he
assigned greater legal consequences to intercourse than the nature of marriage
required, and he hedged in distinguishing between, of all things, "betrothal"
and "marriage". Against him, the Parisians (Peter Lombard
et al.),
cleanly argued that spousal consent to be
married
now
was necessary and sufficient for marriage,
and paved the way for recognizing that sexual relations following present
matrimonial consent was indeed, as Gratian held, significant,
but not for
making
marriage, but rather for according to it a property canonists now recognize as
"extrinsic indissolubility" (1983
CIC 1056, 1061).
The Parisian school held that betrothed couples were canonically free to marry
others (even if they had had pre-marital sex in the meantime, which is still the
law today). But I wonder whether Gratian really had a problem with that holding?
As Theodore Mackin (What
is Marriage?, 160) put it, "One consequence of his ambiguous use of
desponsatio that Gratian almost certainly did
not
intend was the possibility that the act of
betrothal followed by
intercourse could create marriage equally with the
wedding
vows followed by intercourse" (my emphasis). In short, pretty much L&R's idea.
Gratian as a sort of patron saint for those shacking-up? I don't see it.
Thursday, June 28,
2007
Fake priests (version 2007)
Though the problem seems to be more acute in Europe and the Third World, when I
was still in (American) diocesan work, I encountered a few cases of "fake
clergy", with most of these charlatans appearing to be small time con-men.
I've blogged on this problem before, and am not surprised to see it popping
up again.
In the most recent case reported here, the administration of the baptism
would have been valid (though gravely illicit, 1983 CIC 861 and 1381).
Still, let this episode serve as a warning. If you have an uneasy feeling about
whether some man is
really
a priest or deacon, contact your local arch/diocese. There are accurate lists of
clergy for the United States, the best-known being the
Official Catholic Directory, published annually by Kenedy & Sons.
Better safe than sorry.
Wednesday, June 27,
2007
A suicide priest
The Pio-Benedictine Code prohibited ecclesiastical funeral rites for those who
"killed themselves by deliberate counsel." 1917 CIC 1240.1.3. Phrased to protect
those who might have killed themselves unintentionally (even if recklessly),
this canon would nevertheless have probably prevented Catholic funeral rites for
Fr. William Rosensteel, who jumped from a bridge shortly before sex abuse
allegations against him were to be investigated by civil authorities. The
Johanno-Pauline Code, however, contains no such restriction (1983
CIC 1184), so an ecclesiastical funeral can be permitted this suicide priest
- - -
notwithstanding that he has left a host of innocent people to deal with the
consequences of his actions.
Thursday, June 21,
2007
Annulment? What annulment? Really, what annulment?
UPDATE:
June 27.
Hunch
confirmed. Sheila Rauch Kennedy, in her oddly organized book,
Shattered Faith, at p.
215, quotes her letter to the Tribunal of Boston: ". . . in accordance with
canon law, I am appealing your affirmative decision to the [Roman] Rota as the
Court of
Second Instance . . ." My emphasis. Thus we must conclude that,
because he had only
one
of the
two necessary affirmative decisions (as explained below), Joseph
Kennedy never received an annulment from the Catholic Church; the Roman Rota did
not overturn an American annulment in this case for the simple reason that there
was
no annulment to overturn.
ORIGINAL POST:
Canon 1682 requires that every "sentence which first declare[s] the nullity
of marriage to be transmitted
ex officio
to the appellate tribunal" and
Canon 1684 states that only "after the sentence which first declared the
nullity of the marriage has been confirmed at the appellate level. . .[can] the
persons whose marriage has been declared null contract a new marriage . . ."
In other words, "an annulment" (which sounds as if it's a single thing) actually
requires
two
distinct, affirmative decisions. It's not like in American law, where winning at
trial is sufficient to establish one's rights. In canonical matrimonial cases, a
petitioner who proves his case for nullity at trial ("first instance") does
not
yet "have" an annulment: a petitioner must to receive
two
concurring affirmative sentences in order to have
an
annulment. Persons involved in the annulment process are repeatedly cautioned
about this point of canon law.
Now, as near as we can figure (oh, how
I hate relying on the secular media here), Joseph Kennedy
petitioned for, and received, at first instance a declaration of nullity
regarding his marriage to Sheila Rauch. But Rauch apparently exercised her right
under
1983 CIC 1417 to appeal directly to the
Roman Rota, which would mean that the Kennedy-Rauch annulment case
was not
completed when it went to Rome. Thus the Rota sat as a tribunal of
"second instance" (JPII,
Pastor bonus, a. 128, 1) in which capacity it rejected Kennedy's
petition. This annulment, then, was not so much "reversed" by the Rota, as it
failed to win completion therein. Granted, the effect is the same, no second
marriage is permitted Kennedy (or Rauch), but it's not as if Kennedy "had" his
annulment for ten years, and then mean old Rome took away.
Kennedy, it
seems, never had his annulment in the first place. (Not that that
technicality prevented him from marrying civilly, but, hey, he had already done
that
before Boston reached its first instance decision!)
But all of this raises an interesting question. Personal opinions of Kennedys
aside, it seems unfair to make someone wait for 10 years to find out what his
matrimonial status in the Church really is. But canon law already recognizes
this:
Canon 1453 urges (but does not strictly require) that "first instance" cases
be resolved in one year, and that "second instance" cases be decided within six
months. When the Roman Rota accepted Rauch's appeal, it took on the task of
sitting as a
second
(not as a third, but as a
second)
instance court. Thus, why the Rota took (not six months, which would clearly be
unreasonable, but 8 or even)
10 years
to decide what was only a
second
instance case is, well, not clear. Were the facts alleged so difficult to
determine? Were there novel legal questions raised? I wonder.
In his
Rotal address of 1984, and even more strongly in his 1996 remarks, Pope John
Paul II reminded Rotal judges that annulment petitions are petitions
in justice that impact the
status of persons in the Church; as such, said the pope, the faithful
have a right to a timely answer
(whether affirmative or negative) to their questions, yes, even if those persons
are rich and famous and regard Church teaching on marriage as a bunch of
Catholic gobbledygook that no one believes anymore (Sheila Rauch Kennedy,
Shattered
Faith, 10-11, quoting Joe Kennedy).
Wednesday, June 20,
2007
What we don't know about the Kennedy-Rauch case
UPDATE:
June 21. I'll be discussing this news with
Al Kresta today at 4 pm Eastern; and
Jimmy Akin did a good fisking of the
Time article, which was, need I say it?, laughably bad in some
places.
ORIGINAL POST:
Canon law is not only much older than common law, but in many respects, it
operates very differently from the legal system we Americans live in. Try to
keep this in mind (I know it's hard, but really try) as a multitude of pundits
weigh in on
the most recent development in the Kennedy-Rauch annulment case. In brief,
what we
don't know about this case vastly outweighs what we do know, and
that should give thoughtful people pause.
We don't know, for example, what evidence was put before
the Boston tribunal by which it found for nullity in this case.
I reviewed Sheila Rauch's book
Shattered Faith back in 1997, and noted then how little hard
information about the case itself was contained therein.
I've worked on enough marriage cases to know that what outsiders, even
closely related outsiders, know about a marriage, and what tribunals know about
a marriage, can be at times stunningly disparate.
Moreover, we don't yet know what the
Roman Rota sentence even says, whether, for example, it reversed Boston on
procedural grounds that can be fairly easily corrected, or on evidentiary
grounds that can be supplemented and resubmitted, or on substantive grounds that
offer little hope of reconsideration (that last category being, for many
reasons, by far the least likely).
Now, I could stop right here and say, "Anyone who (like me) doesn't know the
answers to these questions has absolutely no business commenting on the case (so
I won't, either)", but I can raise a few more questions for the interested.
For example, will Kennedy refile in Boston (as is his right per
1983 CIC 1643
et c.),
or will he appeal this decision within the Rota itself? Rota decisions are
indeed, I won't say frequently, but certainly not rarely, appealed within the
Rota, and sometimes reversed. That this can happen
at all
should give pause to those who will cast this Rota decision as the voice of God
pronouncing judgment. Or, passing over why the sentence sat in Rome for two
years, will it be published in five or so years as is now typical of Rota cases?
And by the way, why did the case go directly to Rome in the first place, instead
of passing through normal second instance (I'm just curious about that, there's
nothing untoward in such a move, per
1983 CIC 1417, though it is unusual).
Sheila Rauch, an Episcopalian who filed for the divorce, seems like a perfectly
nice lady, while Joe Kennedy, a Catholic who remarried (civilly) before even
Boston had reached its decision, strikes me as just another shallow Kennedy
climber. But Rauch's account of this case (which now might be rushed to
re-release with a gloating banner across the cover), when not putting forth
assertions that are simply wrong, usually resorts to the same old feminist
critiques of the Church that we have heard for decades, and Kennedy, yes, even a
Kennedy, deserves a judgment based on the facts.
Maybe he just got one. But we'll
all
have to wait and see.
+++
* Read a
sample Rota sentence here.
* Read my
discussion of American annulment statistics here.
* For a look at several famous Roman Rota cases, including some that were
reversed within the Rota itself, see John Noonan,
Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia
(1972).
Monday, June 18,
2007
Possible apostasy by a cleric: why we have Canon 1364
However rarely one hopes such rules will be needed, the 1983 Code of Canon Law
makes provision for things like apostasy and schism, loss of ecclesiastical
office, and penal procedure precisely because our divinely founded Church is
inhabited by people like you and me. In any case, "canonical norms by their very
nature are meant to be applied" (John Paul II,
Sacrae disciplinae leges, 25) and there's nothing like a real
case to consider how law should illumine life.
According to a statement apparently issued by a Midwestern bishop
(you can see it here, but the names are irrelevant), a permanent deacon
notified the bishop that he had become a Mormon. The bishop in turn stated that
the deacon had, among other things, lost the clerical state. Hmmm. Just like
that? I wonder.
Granting the bishop's document is six months old (perhaps it has been
supplemented since), bears no signature (unsigned statements introduce pointless
uncertainties), and does not relate some important facts (though several
passages praise the work of the deacon), what
is
contained in the statement provokes questions about the application of canon law
in the Church. Here are some that occur to me.
1. Given the determination by the Congregation for the Doctrine of the Faith
that
Mormon baptism is invalid, meaning that Mormons
qua
Mormons are
not
Christians, a Catholic who becomes Mormon has, it seems, not simply "left the
Catholic Church" (sadly, many people do that), but arguably has
apostatized
from the Christian Faith (1983 CIC
751). Now, whatever else apostasy might be, it's a crime under canon law
(1983 CIC
1364).
2. There is an automatic penalty for the crime of apostasy:
latae
sententiae
excommunication. Notwithstanding the numerous complications associated with
l. s.
penalties, the facts alleged in this case might well satisfy the requirements
for such a penalty. Oddly, however, excommunication is not even mentioned in the
bishop's statement.
3. Instead, the statement indicates that the deacon has, apparently
automatically (judging by the dates therein), lost the clerical state. But has
he? What canon of the 1983 Code imposes automatic loss of the clerical state for
any
offense, apostasy or otherwise?
Besides excommunication, there are other automatic consequences for apostasy,
chiefly here, loss of ecclesiastical offices (1983 CIC
194). Thus, if a deacon were, say, a parochial assistant or a member of a
parish council, he would lose those offices upon apostasy; but he would
not
automatically be removed from the clerical state.
That penalty (obviously
appropriate, and envisioned in c. 1364) needs to be "legitimately" imposed (1983
CIC
18, 194,
221,
290); however, penal dismissal from the clerical state can only be imposed
after a formal process, typically a trial (1983 CIC
1314, 1317,
1425).
In short, assuming the facts alleged were and still are accurate, and assuming
the deacon has not in the meantime either repented of his decision or petitioned
for laicization, then, it seems to me, there's an excommunicated deacon out
there who has not been informed of his status, and a diocese that still has an
incardinated cleric on its rolls whom it thought was gone. For obvious pastoral
and juridic reasons, neither situation should be allowed to drag on.
+++
Some other thoughts: (a) the bishop's statement does, I think, effectively
remove the deacon from active ministry while his status is addressed, but that
fact would be clearer if the document had been worded differently from the
outset; (b) one must wonder how the recent,
and I think problematic, official interpretation accorded the notion of
"formal defection from the Catholic Church" should be applied to a case like
this; (c)
An excellent book,
When Mormons Call, written by a former Catholic priest (since
reconciled), might be of interest to this deacon.
Saturday, June 16,
2007
Peter Meade should resign the cardinal's commission, or be removed
Boston politicos Peter & Rosanne Meade woke up one summer morning, saw the
sun shining brightly, and concluded that God must have changed his mind about
the travesty called "homosexual marriage". The Meades think that because the
world did not come to an end when Massachusetts legalized "same-sex marriage",
those ignorant Bible-thumpers were wrong about the consequences for societies
that continually invent new ways to flout, well, just about everything.
But a pretty sunrise over Boston Harbor is not, in the slightest, a sign that
God approves of what the chronically bizarre government of Massachusetts does in
regard to "homosexual marriage", or anything else for that matter. Not at all.
The Meades need to read their Bible---no, not the parts about the earth opening
up and swallowing sinners or raging floods wiping away the evil, as instructive
as those passages might be---but rather, the places where Holy Writ reminds us
that, in his wisdom, God lets the sun shine on the good and the bad alike, and
that weeds will grow up alongside the wheat until, that is, the Day of Harvest,
when the wheat will be gathered into barns, and the weeds torn out and burned.
But the Meades' opinion column, as bad as it is (consider here provisions such
as 1983 CIC
225, 227, and
747), provokes a deeper problem for the Church in Boston:
Peter Meade is co-chair of the commission advising Cdl. O'Malley about the
complex and crucial issue of parish-closings in the archdiocese.
Now, if one cannot think clearly about something as simple, and as obvious, and
as anciently and universally honored as the fact that marriage is a "covenant by
which
a man and a
woman establish between themselves a partnership of the whole of
life" (1983
CIC 1055), then how can he or she can be taken seriously as an advisor to
ecclesiastical leaders on
any
topic requiring the exercise of prudent judgment?
By their own words, the Meades have proclaimed themselves unfit to hold a
position of influence in any particular Church, let alone one as prominent as
Boston. If he won't resign, Peter Meade should be removed from the cardinal's
advisory commission.
Friday, June 15,
2007
Divorce mentality among Catholics: a case from the Roman Rota