The following observations represent my opinions. While I believe that the opinions expressed here are consistent with c. 212 § 3, I submit all to the ultimate judgment of the Catholic Church. The letter “c.” stands for “canon” of the 1983 Code of Canon Law. All translations are mine, even if they coincide at times with those of others. Dr. Edward N. Peters

In the Light of the Law:

a canon lawyer's blog on current issues

Blog Archives 2008

Is Fr. Bourgeois still a Maryknoll priest? Yes. For now.

It appears that Fr. Roy Bourgeois has been excommunicated for his role in the "ordination" of a woman, but until Bourgeois or CDF releases the decree, we won't know for sure. Even if Bourgeois is excommunicated, however, he is not thereby either dismissed from the clerical state or expelled from the Maryknoll Society (1983 CIC 290 and 694-704, neither of which sets of norms lists excommunication as grounds for automatic dismissal or expulsion). This is how it should be.

If excommunication achieves its medicinal purpose and Bourgeois repents of his anti-ecclesial conduct, his reconciliation with the Church would be prompt (1983 CIC 1358). In contrast, having also to formally readmit a reconciled priest or religious offender to the clerical state and/or to an institute of consecrated life, would only slow down that fundamental process of reconciliation, impeding the effectiveness of the excommunication in the first place. So in a situation like this, canon law does not call for dismissal or expulsion immediately, though the restrictions on Bourgeois' priestly and official society activities are probably severe (e.g., 1983 CIC 1331).

Make no mistake: if Bourgeois does not repent, additional consequences can flow from his contumacy (1983 CIC 1326 and 1393), including dismissal from the clerical state and expulsion from consecrated life. But there is time for that. Not much time, I have a hunch on this one, but some at least.

Till then, prayers for Bougeois' reconciliation are in order.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, December 10, 2008

Chapel veils, again

In the December 8 "Saint Louis Catholic" blog, a post went up on whether women are required by canon law to wear veils in Church. Responding in part to my post on this topic some two years ago, it's an interesting read, though I frankly think the author makes several errors. Thus I still hold that head coverings are not obligatory for women in church. Alas, the issue is not high enough on my "to-do" list to warrant writing more about it than I have, but I wanted to acknowledge reading the opinion with interest. I do wonder, though, why it had to be offered anonymously? Professionals who publish significant opinions in their field should sign their names. Or at least, that's my practice.

Update 12 December 2008. How interesting. May I make a couple of observations, not about chapel veils, but about some people who seem to think that chapel veils are among the most important issues the Church faces in these troubled times, and that I am remiss not to join their discussion of same?

A number of posters, not all of them, of course, but a number of them, at various blogs around the net see my declining further comment on chapel veils as some sort of tacit admission on my part that I now know I am wrong on veils, but I don't want to admit it.

Baloney. Why can't my stated reason for not replying further, that I have other things to do, be the honest and sufficient reason for my not revisiting this topic?

Where does it say that, once having posted an opinion on a topic (a considered opinion mind you, even if informally presented), I am somehow honor-bound to reply to any, let alone every, subsequent post that might be put up by someone else who disagrees with me? Many of my canon law posts generate scores of responses; I could not possibly reply to all of them. And I need not reply to any of them. I have a day job, and a part-time evening job, and I engage in all sorts of professional work on the side (including responding to some challenges of my canonical positions, both publicly and privately.) If people want to see my not responding to a given challenge as an admission that the "other side" must be right, well, such folks simply don't know how to think.

Moreover, it strikes me as odd that I am criticized for not posting more on a given canonical topic than I already have when, in fact, I post more canonical information for the free use of laity and ecclesiastics (and have done so for many years) than does any other canon lawyer in the world. In fact, if anyone can find ten canon lawyers who, put together, post as much as I do, I'd love to meet them.

Finally, if nothing else, has no one noticed that the post of mine to which the anonymous canonist is replying is over two years old? If he or she gets two years to reply to me, shouldn't I get at least that long to reply to him or her before people start dancing on the grave of my position? Or do people really think that canonical debate is an adult-form of "Tag! You're it! 1-2-3 no tag-backs! I win!"

So, no, I'm not going to invest more time in proving that chapel veils are not required by canon law. In response to an ad that claimed chapel veils were required by canon law (ridiculously citing a specific canon!) I posted my thoughts two years ago on why I thought that ad was wrong, I read the recent anonymous post opposing my position, I thought the post was interesting (and said so), I thought it was wrong (and said so), and I don't feel a need to, or perceive a significant purpose served by, my prolonging the matter further. What so exorcises some people about that? I don't know.

Oh well. Back to projects that I think warrant my poor attention, like the Bourgeois case, above.

posted by Dr. Edward Peters at This Permanent Link

Sunday, November 30, 2008

Time period for fulfilling the "Sunday obligation"

On 12 October 2008, Fr. Edward McNamara published answers to several questions regarding the "Sunday obligation". I would have largely disagreed with his comments but, before they were called to my attention, McNamara himself corrected (4 November 2008) those answers in several respects, and so I pass over them.

One issue remains, however: not a point on which I think McNamara is necessarily wrong, but rather, one for which the range of orthodox answers is, I suggest, wider than McNamara seems to realize. It regards the time period within which one may satisfy the Sunday obligation set out in 1983 CIC 1248.1: "A person who assists at a Mass celebrated anywhere in a Catholic rite either on the feast day itself or in the evening of the preceding day satisfies the obligation of participating in the Mass."

The leading British-Irish commentary on canon law reads as follows: "What is 'the evening of the previous day'? Despite the view of some commentators that this should be interpreted as beginning only at 1400 hours (2 pm) on that day, it is the firm view of this commentary that the evening of the previous day begins at midday (12 noon) on that day itself. In some dioceses there is a local regulation to the effect that the so-called vigil or anticipated Mass may not be celebrated before, say, 5 pm or 6 pm: this is normally for pastoral reasons, e.g. to facilitate weddings or funerals in the parish and other churches. Those regulations do not in any way concern the time prescribed for fulfilling the obligation to assist at Mass: thus, e.g., if . . . a person were to attend a nuptial Mass in the early afternoon on a Saturday, that person would thereby have fulfilled the [Sunday] obligation." (Fr.) Raymond Browne, Letter & Spirit (1995) 702, emphasis added. For a contrary view, see J. Huels, CLSA New Comm (2001) 1445.

For reasons that go beyond what I can present in a blog post, I hold the British-Irish position on this point, but, even if ours turned out to be minority view, it is, I suggest, more than sufficient (per 1983 CIC 14, among others) to defend the conscience of one who attends any Mass in a Catholic rite, beginning any time after 12 noon on Saturday but before midnight between Sunday and Monday, in fulfillment of one's Sunday obligation.

PS: Happy New Liturgical Year to my readers!

posted by Dr. Edward Peters at This Permanent Link

Sunday, November 23, 2008

Canonical options for dealing with Catholic legislative support for FOCA

The final wording of the Freedom of Choice Act (FOCA) has yet to be set, but there is every indication that it will be the most radical piece of pro-abortion legislation ever proposed at the federal level. The near certainty that FOCA will be re-introduced (compounded by the increased likelihood that it will pass and be signed into law) means that, ready or not, Catholic bishops will have to face squarely the problem of well-known Catholic legislators supporting a specifically and gravely evil bill. As I see it, bishops have four options for dealing with Catholic legislators who support FOCA:

1. Canon 915. Make plain, by public announcement and/or private contact, that a legislator's support for FOCA qualifies as (probably formal, but certainly proximate material) cooperation with objective grave evil and that such conduct, in this case, would render one ineligible for reception of holy Communion under Canon 915.

This option requires little or no technical groundwork to be laid, carries immediate, visible, and salutary consequences (withholding of holy Communion from the publically unworthy and protecting the faithful from classical scandal), and, because it is a sacramental disciplinary norm and not a canonical penalty, it requires no formal process for imposition; finally, it leaves open the possibility of speedy reconciliation by a suitable expression of repentance.

More information: Raymond Burke, "The discipline regarding the denial of holy Communion to those obstinately persevering in manifest grave sin", Periodica 96 (2007) 3-58; Edward Peters, "Denial of the Eucharist to pro-abortion politicians", Homiletic & Pastoral Review (October 1990) 28-32, 48-49; and generally Brian O'Neel, "Just punishment", Catholic World Report (February 2002).

2. Canon 1369. Warn Catholic legislators that their support for FOCA appears to be using "a public show or speech [or] published writing . . . [to] gravely injure good morals", and that as such they would be liable to "a just penalty" under Canon 1369. The sanction need not be specified in advance, and contempt for any earlier sanctions can result in escalating penalties under 1983 CIC 1393.

This option requires little or no technical groundwork to be laid (no prior warning is necessary, but it might be pastorally prudent to offer same), and it carries visible and salutary consequences (ones flexible in nature, but which could eventually include excommunication). Because Canon 1369 is a penal norm, it would require a formal process (1983 CIC 1314, 1342) for imposition of the penalty. Canon 1369 can also be enforced by penal precept (1983 CIC 49, 1319, 1339).

More information: O'Neel, above, and generally Edward Peters, Penal Procedural Law in the 1983 Code of Canon Law, Canon Law Studies No. 537, (Catholic University of America 1991) 393 pp.

3. Canon 455. Enact at the episcopal conference level (though individual bishops are free to act here as well, per 1983 CIC 1315 et seq.) a "general decree" (1983 CIC 29, 455) making legislative support for FOCA a canonical offense and specifying a penalty or range of penalties.

This option requires that considerable groundwork be laid and, even if Roman authorization were forthcoming for conference action (I suspect it would be), there is probably not enough time to enact specific penal legislation before FOCA becomes an issue.

4. Be content to reiterate the Church's opposition to abortion and to allow individual Catholic legislators to decide for themselves whether support for FOCA is in accord with Church teaching and whether they feel comfortable in approaching holy Communion under Canon 916.

This option is essentially a decision to do nothing special in regard to FOCA. Those who consider this response pastorally sufficient are free to make a case for it.

Some additional points.

1. I do not think that a Catholic legislator's support for pro-abortion bills can result in automatic excommunication for abortion under Canon 1398 and, as I have argued elsewhere, I know of no canonist who holds otherwise. Notwithstanding Francis Cdl. George's and Deal Hudson's recent remarks about the possibility of excommunicating Catholic legislators over support for FOCA, I'm afraid that George and Hudson, in slightly different ways, have confused the criteria for assessing the morality of an act (which criteria they correctly outlined) with the criteria for assessing the legality of an act. Conscience and law are not in conflict here, but they follow, for very sound reasons, rather different ways of evaluating actions. In canonical matters, especially in penal ones (1983 CIC 18, 221) it is canonical interpretation that must be followed, and canonical penalties for abortion under Canon 1398 and 1329 do not reach beyond those directly and necessarily involved in the procuring of a specific abortion.

2. Options 1, 2, and 3 are not mutually exclusive.

3. A Catholic legislator's support for FOCA might suffice for incurring canonical consequences, be they sacramental or penal as above, regardless of whether FOCA actually becomes law. Moreover, some prominent Catholics not in legislative office might, by their public efforts on behalf of FOCA, leave themselves liable to canonical consequences for such conduct.

Update, 4 December 2008: See also Christian Brugger, "Denying Pro-Abortion Politicians Holy Communion: Some Considerations"

posted by Dr. Edward Peters at This Permanent Link

Friday, November 21, 2008

Copernicus: Motor terrae, solisque Stator

Outside the first floor seminar room at Sacred Heart Major Seminary where I teach hangs a beautiful portrait of Nicolas Copernicus, the canon lawyer (JCD, University of Ferrara, 1504) who, among other interesting projects, helped reorient the world's thinking about the solar system. The title over the SHMS portrait reads "Motor terrae, solisque Stator", or "He stayed the sun, and freed the earth." Yes, canon lawyers do that sort of thing. :)

A news story today reports that Copernicus' remains have been identified in Frombork, Poland. I'm glad; I hope his grave becomes of place of private pilgrimage. In lieu of making that trip, though, might I suggest looking up at the moon some night and spotting, not the most prominent crater visible, but the second greatest: it's named for Dcn. Copernicus*, and it might help us to remember to offer a prayer for the great lawyer-astronomer's soul, and for all the Church's scholars who have advanced the world's authentic understanding of itself.

*If memory serves, Copernicus was ordained to the diaconate, not to the presbyterate, as reported in the above story. But I might be wrong on that.

posted by Dr. Edward Peters at This Permanent Link

"Same-sex marriage" in medieval canon law

Increasingly, it seems, the Church has to explain the most rudimentary things to people, things like, it is always wrong to deliberately kill an innocent human being (John Paul II, Evangelium vitae 57), or lately, that marriage can exist only between a man and a woman (1983 CIC 1055, CCC 1601 ff.) Sometimes, the world's penchant for mangling the truth leaves Church officials scrambling to find (among other things) an historical text on a controverted topic, not to demonstrate the veracity of the truth in question, but rather to show that the Church has always taught that truth, even if in times past there was little need to point out what folks already understood. As I watch bishops and others trying to respond to the sudden emergence of "same sex marriage", I sympathize with their bewilderment that they find themselves even having to explain the matter, and I've wondered, might historians be able to find a "paper trail" of Church teachings against "same sex marriage" that could be used for pedagogic purposes? Maybe so.

Recently I came across a passage in a medieval canonical treatise, the Summa Aurea by Hostiensis (d. 1270), wherein the great lawyer paused, as it happens, to point out (at the risk of preaching to an audience who took such a truth for granted) that marriage can only exist between a man and woman, and one of each at that. How ironic that words penned by a canonist 750 years ago are more helpful to us today than they were to their original audience! Of course, Hostiensis went on to discuss other canonical aspects of marriage, but his brief observations that marriage is possible only between one man and one woman are, I think, useful to us who, many centuries later, are defending marriage against an appalling redefinition.

Preserving the clipped prose typical of medieval canonistics and omitting citations, I here offer my rough rendering of Hostiensis' thirteenth century text on marriage.

"What marriage is. The conjoining of a man and a woman holding to an individual manner of life; a mutual sharing with divine and human aspects. Marriage is between a man and a woman; two of the same sex cannot be married. For, in the beginning they were not created two men nor two women, but first a man and then a woman. A wedding therefore that is not a commingling of the sexes would not have within itself a sacrament of Christ and the Church. Marriage is also spoken of as being between a man and a woman in the singular, and not of men and women in the plural, for no one man can wed several women, nor can one woman wed several men."

Henricus de Segusio (Cdl. Hostiensis, c. 1200-1270), Summa Aurae [1253] una cum summariis et adnotationibus Nicolai Superantii (Neudruck der Ausgabe Lyon, 1537 / Scientia Aalen, 1962) 194 bis (b).

posted by Dr. Edward Peters at This Permanent Link

Wednesday, November 12, 2008

Fr. Bourgeois might be facing more than excommunication

Original post: The Congregation for the Doctrine of the Faith has given activist Maryknoll priest, Rev. Roy Bourgeois, about a month to recant his support for women's ordination or suffer excommunication. Without seeing CDF's warning letter to Bourgeois, it is impossible for me to comment on the precise grounds upon which his excommunication looms, but a related thought occurs to me: given the attitude that Bourgeois showed in his reply to CDF, I suspect that a penal decree here will not only impose an excommunication, it will also lay the groundwork for a fairly expeditious dismissal from the clerical state. A couple of canons (e.g., 1983 CIC 1326.1.1 and 1393) make that additional penalty foreseeable, and the dicasterial decree could easily address any objections to administrative dismissal possible under, say, 1983 CIC 1319.1. So, we'll see.

Update, 14 Nov 2008: Vatican spokesman Rev. Federico Lombardi makes the perplexing statement that Bourgeois' "excommunication would likely be automatic, requiring no further action from the Holy See". I don't know what this means. "Automatic" excommunication occurs upon the commission of a canonical crime (1983 CIC 1314), not upon the expiration of a deadline. What CDF appears to be doing is fixing the date for the formal imposition (1983 CIC 1331.2) of an excommunication; there's nothing "automatic" about that. I haven't seen CDF's letter, so I can't say for sure, but then, Fr. Lombardi says he hasn't seen it either, so I wonder, should he guess at what it says?

Of course, none of this confusion would arise if Western canon law would simply do away with "automatic" penalties completely, as Eastern canon law did (CCEO 1402). Poenae latae sententiae delendae sunt.

posted by Dr. Edward Peters at This Permanent Link

Thursday, November 06, 2008

The ordination of Deaf men during the twentieth century

My article tracing the ordination of Deaf men during the twentieth century and outlining some factors that seminary personnel should bear in mind when helping Deaf men discern vocations to orders, is about to appear in the Josephinum Journal of Theology. I hope readers find it interesting and helpful.

Citation: Edward Peters, "Canonical and cultural developments culminating in the ordination of Deaf men during the twentieth century", Josephinum Journal of Theology 15 (2008) 427-443.

Abstract: After nearly two millennia of de facto and even de iure exclusion from holy orders, a handful of deaf men were ordained to priesthood, amid severe ministerial restrictions, in the early to mid twentieth century. Catholic academe took almost no notice of their presence, however, and most of these priests passed from the pastoral landscape before the start of the Second Vatican Council. Shortly after the Council, however, several canonical and cultural developments coalesced to result in a significant number of deaf men entering ordained ministry as permanent deacons and priests. This article outlines the ecclesiastical and social developments that contributed to the emergence of deaf clergy in the United States and abroad, and provides an orientation to clinical deafness in general and Catholic deaf culture in particular as an aid to seminary personnel who might assist in the discernment and development of clerical vocations among deaf Catholics.

For more discussion of canonical issues related to deafness and Catholic ministry, see my: American Sign Language as a Catholic pastoral language; To best 'accommodate the deaf', let's begin by getting to know them; American Sign Language in Catholic Liturgy I; American Sign Language in Catholic Liturgy II.

posted by Dr. Edward Peters at This Permanent Link

Thursday, October 30, 2008

Fr. Dresser's urgent invitation to be excommunicated and expelled from the clerical state

The more modernistic the liberal clerical cohort in Australia tries to become, the older are the heresies that they promote. Lately, one Fr Peter Dresser is promoting his own brand of Arianism, a heresy that basically denied the divinity of Christ, and which was solemnly rejected by the Council of Nicaea (325). "No human being can ever be God," writes Fr. Dresser in a booklet distributed to the faithful, "and Jesus was a human being. It is as simple as that."

Okay, here's my version of simple: "No Catholic priest may deny the divinity of Christ, and Dresser is a Catholic priest. It's as simple as that." If Fr. Dresser really denies the divinity of Christ (among several other things!), declare his formal excommunication and expel him from the clerical state. Do it quickly, do it cleanly, and do it without rancor. But do it.

Most everything one needs is in Canon 1364:

1. Without prejudice to the prescript of can. 194.1, n. 2, an apostate from the faith, a heretic, or a schismatic incurs a latae sententiae excommunication; in addition, a cleric can be punished with the penalties mentioned in can. 1336.1, nn. 1, 2, and 3.

2. If contumacy of long duration or the gravity of scandal demands it, other penalties can be added, including dismissal from the clerical state.

The gravity of the scandal given by Fr. Dresser's direct feeding of his heresies to innocent faithful, and the world-wide attention such heretics can command in modern times, dramatically shortens the time table that hitherto was available for Church authorities to think about how to react to these cases. Besides, it's not as if Dresser has come up with some new, highly nuanced, abstruse theory that takes years to tease out. His heresy is ancient, and worse, his public promotion of it, is an urgent invitation to the Church to do something about it.

I see precious little evidence that the forbearance the Church has shown toward egregious clerical offenders over the last 40 years has either won them back or spared the faithful untold sufferings in the meantime. The "ignore it till it goes away" approach just does not work anymore (my theories on why to be explained elsewhere) and I think the time has come to implement a "no more nonsense" approach when we are faced with blatant betrayals of fundamental Christian truths in the very ranks of the men ordained to preach it.

Talk about simple.

PS: If you are looking for silver lining to Fr. Dresser's cloud, check out Fr. Anthony Robbie's summation of Dresser's tract: "The Council of Nicaea settled the question that Christ was God in 325, so [Dresser] is 1,700 years out of date. The rest [of his tract] is a regurgitation of every discredited 19th century liberal Protestant German cliche in the book." Well put, that!

posted by Dr. Edward Peters at This Permanent Link

Sunday, October 26, 2008

Responses to Rex Pilger's comments on clerical continence

Brian Van Hove, SJ, and Dcn. Rex Pilger are debating in the Homiletic and Pastoral Review whether the obligation of clerical continence (1983 CIC 277) applies to married permanent deacons. Van Hove argues affirmatively, Pilger negatively. My 2005 article on this question has been cited approvingly by Van Hove, but I have not intervened in the HPR discussion because, until recently, my work had not been challenged by either side. Recently, however, Pilger attempted to refute several points that I made or accept concerning clerical continence.

My responses to Pilger are posted on my canon law website, here. I must caution, however, that the issues raised in this discussion are quite complex. Those not familiar with the broader discussion of clerical continence should avoid forming any conclusions based only on what appears there. +++

The HPR exchange unfolded thus: Rex Pilger, "Making sense of the ministry of the deacon", HPR November 2006 pp. 23-27; Brian Van Hove, Letter, HPR April 2007 p. 6; Richard Kosterman, Letter, and Fr. Vincent, Letter, HPR November 2007 pp. 3-4; Brian Van Hove, Letter, HPR March 2008 pp. 6-7; Mark Gross, Letter, HPR July 2008 pp. 5-6; and Rex Pilger, Letter, HPR October 2008 pp. 4-5. For all the letters posted sequentially, see R. Pilger's Deacon's Bench Weblog of October 2, 2008.

Updated, 1 December 2008. I see that Dcn. Pilger has responded to some of my assertions. Links to his reponses, and my reactions to his responses, can be found in the left parchment column of my original post, dated 30 November 2008.

posted by Dr. Edward Peters at This Permanent Link

Monday, October 20, 2008

Falling canonical dominoes: from matrimonial form to defection from the Church

Apparently the Polish bishops have just published a 22-point how-to pamphlet on committing ecclesiastical defection. Until I see a reliable translation of the guide I will refrain from commenting on it, but I will venture this much: this document is quite likely (1) an overly detailed attempt to apply (2) a skewered official notification concerning (3) a poorly drafted canon (4) that was designed to blunt a nagging problem in the Code of Canon Law. I suggest the canonical dominoes fall out thus:

The first domino in this line of anomalies is Canon 1108 by which "canonical form" (i.e., a wedding in the presence of an authorized cleric and two witnesses) is still required for valid Catholic marriage, even though the form part of canonical form has long since ceased to serve its original purpose. Today, the requirement of canonical form actually allows tens of thousands of Catholics each year to walk away from marriages that we would consider Protestants and non-Christians obliged to honor. (Long defense of that contentious assertion omitted.)

The second domino, Canon 1117 on "formal defection from the Church", was placed in the 1983 Code in an effort to hold at least some Catholics who pervasively act like non-Catholics to the marriages which they contract outside the Church (that is, in disregard for canonical form), lest they walk away from obligations that, according to sound natural law and sacramental principles, they were perfectly capable of and seemed willing to enter and by all appearances did enter. The problem with Canon 1117 (besides its not dealing directly with the real problem of obligatory canonical form) is that the canon suggests that Catholic identity can be turned-on and turned-off like a light switch. (Long explanation of that over-simplification omitted.)

The third domino tipped when the Pontifical Council for Legislative Texts, faced with the flaws of Canon 1117 (and perhaps still wishing to defend indirectly obligatory matrimonial form) issued in March/April 2006 a "notification" on the future implementation of Canon 1117, whereby some technical requirements for defection were imposed that far exceeded anything canon law had previously demanded in defection (and canonically parallel) cases, making it extremely unlikely that anyone who wanted to leave the Church would bother to comply with the steps. The notification thus effectively stops Canon 1117 from holding at least some Catholics to marriages that they certainly seemed to have entered while away from the Church. (Moderately long analysis of that interpretation found here.)

And the fourth domino is, it seems, the Polish bishops' 22-point guide to formal defection from the Church which, I am guessing, is an attempt to come to grips with the 2006 notification.

In short: If canonical form were not still required for matrimonial validity, Canon 1117 would not be needed; if a poorly-drafted Canon 1117 were not on the books, it would not have been open to the extreme interpretation it underwent in 2006; and if the excessive requirements for proving ecclesiastical defection had not become part of the law in 2006, episcopal conferences would not feel the need to publish lengthy how-to-leave-the-Church guides today.

In any case, while all this gets (hopefully) sorted out, keep in mind the following points: despite its Tridentine roots, canonical form was not universally required until well into the 20th century (1917 CIC 1094); within 50 short years of canonical form being universally required, reputable canonists were doubting the wisdom of retaining it (see below); if canonical form were not the sole way that Catholics had to exercise their right to marry, the bar for getting a 'church wedding' could be significantly raised and pastors would not be forced to witness so many weddings of persons who know little and care even less about the Faith; some defenses of retaining canonical form have been made not only by scholars (see below), but by the Congregation for the Doctrine of the Faith in 1994 (Letter concerning reception of holy Commuion, para 9); most importantly, canonical form is still the certain law of the Roman Church, and Catholic marriages attempted in violation of matrimonial form are invalid. Period. . . . for now anyway.

Salvo sapientiorum iudicio.

Some representative pre-conciliar (!) debates on canonical form include: J. Barry, "The Tridentine form of marriage: is the law unreasonable?" The Jurist 20 (1960) 159-178, response in W. Cahill, "Change the marriage law?" Homiletic and Pastoral Review 64 (1963-1964) 115-129; G. Gallen, "Proposal for a modification in the juridical form of marriage" The Australasian Catholic Record 38 (1961) 314-328; J. Abbo, "A change in the form of marriage" The Priest 19 (1963) 670-674; L. Orsy, "De forma canonica in matrimoniis mixtae religionis," Periodica 52 (1963) 320-347; and J. O'Connor, "Should the present canonical form be retained for the validity of marriage?" The Jurist 25 (1965) 66-81. There are many more studies on both sides of this issue in several languages.

Link to Polish memorandum original.

posted by Dr. Edward Peters at This Permanent Link

Tuesday, October 14, 2008

Bp. Kicanas on Catholic pro-abortion politicians

Bp. Gerald Kicanas of Tucson, now vice-president of the USCCB, gave an interview to the National Catholic Reporter's John Allen on, among other things, the situation of pro-abortion Catholic politicians. While I hesitate to read too much into Kicanas' answers (they seemed off-the-cuff, understandably so), and while I recognize that some of Allen's questions were oddly phrased, what the future USCCB president says about this issue is important, and I think a few remarks are in order.

Allen: At the fall meeting . . . the U.S. bishops plan to discuss abortion and politics. What's that discussion about?

Kicanas: I think there are several issues. One is, what is the level of cooperation involved in a legislator voting for legislation that encourages, or allows, intrinsically evil acts? Is that formal cooperation, or isn't it? That's a critical question, because if it is formal cooperation, then serious consequences flow from it.

Allen: You mean automatic excommunication?

Kicanas: Right. That's one question that has not been answered.

Peters: I don't know of any canonist who thinks that a Catholic voting for pro-abortion legislation has committed an act of formal cooperation with abortion and is liable to excommunication for it. Indeed, the authors who take a position on the question seem unanimously opposed to that interpretation. So, short of an authentic interpretation from Rome asserting an actionable relationship between 1983 CIC 1329 and 1398 on these facts, I think that question has been answered, and the answer is No.

Allen: Do you think there's a consensus in the conference on whether a pro-choice vote, in itself, amounts to formal cooperation?

Kicanas: No, I'm sure there isn't.

Peters: That's my point. Legislative support for abortion is gravely wrong for several reasons, but not because it amounts to formal cooperation with abortion under Canon 1398, because it doesn't.

Kicanas: . . . Another question is, what should be the response of a bishop who has dialogued with a politician who holds intrinsically evil positions in terms of voting?

Peters: Yes, that is a different and more pressing question. It is possible to sin gravely by supporting evil "enabling" legislation even if concrete evil acts are never actually committed in virtue of the law. Some Catholic legislators are casting votes that endorse the evil of abortion, and on those grounds make themselves liable to sacramental discipline under Canon 915, that is, even if their votes were not necessary to specific acts of abortion being committed.

Kicanas: . . . What should be the response? As you know, some bishops are saying that communion should be withheld from those politicians.

Peters: The bishops I've read parse their position carefully, namely, that anyone who obstinately persists in manifest grave sin should be denied access to Holy Communion per Canon 915. Granted, the cases now in the limelight happen to involve certain pro-abortion Catholic politicians, but that's not what's required for invoking the canon, rather, obstinate perseverance in [any] manifest grave sin is what's required. Another c. 915 example would be, I suggest, the prohibition against Catholics divorced and remarried outside the Church approaching Holy Communion.

Kicanas: . . . The bishops as whole left that question open, and it's still a question that is left to the prudential judgment of the bishop in the local area.

Peters: That is as it should be; an episcopal conference is not authorized to tell bishops how to apply Canon 915 in the local churches entrusted to their care. Bp. Kicanas himself makes this very same point later.

Kicanas: . . . I think what gets confusing for people is that the bishops aren't of one mind on these questions. . .

Peters: Agreed, that is confusing.

Allen: On this second point, about the denial of communion, do you see a growing consensus?

Kicanas: What's still the normative document of the conference is that it's a matter for the judgment of each local bishop. . .

Peters: Again, okay, but I would not put it that way; the USCCB document is not "normative" at all, for it merely restates the obvious, namely, that bishops, not episcopal conferences, are charged with protection of the Eucharist in their dioceses.

Allen: So you're having this discussion to see where things stand now among the bishops?

Kicanas: Yes, and I think it's important that the discussion is taking place after the elections. If we did it beforehand, it could only be misused. That's one of the difficulties, which is trying to state our teaching in a way that is not misused, or used in a partisan way, in a way that's not intended by the teaching . . .

Peters: Well, okay, but that's true of virtually any statement the bishops might put out. At a certain point, one makes a statement as accurately as possible, and then lets the chips fall where they may. But again, Canon 915 is not about Catholic pro-abortion legislators, it's about one who is obstinately persevering in manifest grave sin being offered the Eucharist; that has nothing to do with politics, and it's an important question regardless of where in the election cycle we find ourselves.

Allen: It does seem there is one relevant difference between '08 and '04 on this question. . . . This time around, it seems the question is more: Does following Catholic teaching automatically mean overturning Roe v. Wade . . . . ?

Kicanas: . . .We may find ourselves hamstrung in terms of our capacity to change legislation, or the thinking of legislators. . .

Peters: Both the question and the answer show, I think, a misunderstanding of the fact that abortion was imposed on states by federal judicial fiat, not by state or federal legislative action. Short of a constitutional amendment, there is no way for federal or state legislators to "overturn" Roe and Doe.

Ironically, though, precisely when some Catholic thinkers like Doug Kmiec and Nick Cafardi are throwing in the towel on getting Roe and Doe reversed, we actually see more justices on the Supreme Court with deep misgivings about the legalization of abortion than ever before! Chances are increasingly good that abortion will be returned to the states, whereupon state-based legislative activity would erupt on this topic.

Allen: Some argue that you can be genuinely opposed to abortion, yet as a matter of prudential judgment believe that it would be counter-productive to try to make abortion illegal. Do you think it's possible to reconcile that with the teaching of the church?

Kicanas: It depends on how the person is thinking through that as a legislator. It's complicated . . .

Peters: Yes. Not every immoral action should be, or can be, rendered civilly illegal. Moreover, legislation being what it is, it's not always clear what a given vote for or against a specific bill means. These are areas where ecclesiastical consultation with lay legal experts is essential. But one would think, though, that in deciding which evils to punish under civil law, we'd consider beginning by punishing the most heinous acts against the most innocent victims first. [A friend reminds me that John Paul II, in Evangelium vitae, no. 71, nails this exact point. Thx!]

posted by Dr. Edward Peters at This Permanent Link

Monday, October 13, 2008

American Sign Language as a Catholic pastoral language

Many theology and philosophy programs in Catholic colleges, universities, and seminaries call for students to study a "pastoral language" (in contrast to a "research language") for 2 or 4 semesters. This is a terrific idea, of course, instilling as it does an appreciation among young people of the importance of acquiring the language skills necessary for communicating the fruits of their studies to the wider community. Probably the most common "pastoral language" recommended to American students is, of course, Spanish, for obviously good reasons.

Here, I want to suggest, however, another language option, one with extensive pastoral applications, namely, American Sign Language (ASL). Consider:

* ASL is the first language of over 500,000 Deaf Americans; some two to three million more persons use ASL regularly, making ASL the most common foreign language in America after Spanish.

* Fewer than 5% of Deaf Americans regularly attend a church (let alone a Catholic church) primarily because language barriers inhibit evangelization, catechesis, and liturgical participation.

* Recent advances in ASL linguistics and modern communications technologies make learning ASL easier than ever; Deaf ministry programs are now available to train hearing persons with competence in ASL for effective collaboration with the Deaf.

* College level ASL classes are offered throughout the United States and much of Canada. ASL is recognized as a foreign language by well over 200 American colleges and universities, and opportunities for face-to-face and on-line tutorial assistance are plentiful.

I hope more hearing students will give ASL some consideration when it's time to decide on their "pastoral language". The need is great; the rewards are amazing!

posted by Dr. Edward Peters at This Permanent Link

Tuesday, October 07, 2008

Hesburgh on women's "ordination"

Fr. Theodore Hesburgh's recent interview with the Wall Street Journal is getting some attention in the Catholic blogosphere (e.g., Diogenes, InsightScoop, Steve Greydanus), and it should: the WSJ article presents a casus classicus of how priestly ministry disappeared under the allure of social activism for the last 50 years or so. In any case, it is Hesburgh's assertion that "I have no problem with females . . . as priests, but I realize that the majority of the leadership in the Church would" that deserves a canonical comment.

People have this idea that "heresy" (boo! hiss! hate-speech alert!) must consist of some sort of denial of a Catholic truth, as in "Jesus is not divine" or "Mary was not assumed into Heaven" and so on. That's understandable. Most heretical assertions do consist of denials of Catholic truth.

But the Code of Canon Law describes heresy more broadly: "Heresy is the obstinate denial or obstinate doubt . . . about some truth which is to be believed by divine and Catholic faith." 1983 CIC 751. Notice? Obstinate doubt about matters requiring assent is also heresy.

Now, what would we make of a prominent priest who says "I have no problem with Jesus being just a man, but I realize that the majority of the leadership in the Church would" or "I have no problem with Mary's bones resting comfortably in the dirt of Asia Minor, but I realize that the majority of the leadership in the Church would"? Granted, neither assertion actually denies a Catholic truth, but do not both plainly express a doubt about a Catholic truth? Would not both comments thus savor of heresy?

In 1994, Pope John Paul II wrote: "Although the teaching that priestly ordination is to be reserved to men alone has been preserved by the constant and universal Tradition of the Church and firmly taught by the Magisterium in its more recent documents, at the present time in some places it is nonetheless considered still open to debate, or the Church's judgment that women are not to be admitted to ordination is considered to have a merely disciplinary force. Wherefore, in order that all doubt may be removed regarding a matter of great importance, a matter which pertains to the Church's divine constitution itself, in virtue of my ministry of confirming the brethren (cf. Lk 22:32) I declare that the Church has no authority whatsoever to confer priestly ordination on women and that this judgment is to be definitively held by all the Church's faithful." Ordinatio sacerdotalis 4.

This is the Church teaching that Hesburgh "has no problem" chucking.

I think that to dismiss, with evident contempt, any part of Catholic truth is wrong, but for a famous priest to do so in regard to the very point that has metastasized into more formal excommunications than any other modern misdeed is disgraceful.

And sad. +++

Update, October 12: Enough people have asked a question that I see can be fairly raised about my comments to make me think a short follow-up is in order. In the interest of time, I only post below a brief reply I made to pseudonimic comboxer over at Jimmy Akin's blog:

X wrote: "Peters erred in assuming everything to which we must give assent is also of 'divine and Catholic faith.'"

Dear X, as a lawyer I certainly don't mind my words being closely parsed, :), but please parse what I wrote in its immediate context, not what you think I wrote, or what you think I should have written. What I said was: "But the Code of Canon Law describes heresy more broadly: 'Heresy is the obstinate denial or obstinate doubt . . . about some truth which is to be believed by divine and Catholic faith.' 1983 CIC 751. Notice? Obstinate doubt about matters requiring assent is also heresy."

My statements, in the paragraph in question, make the exact point you think I should have made, albeit only once, and not (redundantly) twice. Maybe next time I will say it twice. Pedagogically, that might have been sounder, I admit.

Anyway, though it was not the occasion or point of my post, fwiw, I do think JP2 avoided deciding (w/o deciding against) publishing OS to be 'credenda definitive', and settled for 'tenenda definitive', which [insert numerous points here] makes one denying the teaching contained in OS liable to "a just penalty", as opposed to excommunication for heresy. For now. Okay? Kindest regards, edp.

posted by Dr. Edward Peters at This Permanent Link

Monday, September 29, 2008

Priestless Sundays and the Sunday obligation

A news story out of the Diocese of Fairbanks in Alaska describes an upcoming "priestless Sunday" wherein priests will be away from their parishes to serve remote missions, leaving their parishioners without Sunday Mass that weekend. I can see arguments for and against this unusual action and I don't think that outsiders are in a position to conclusively support or reject the basic idea.

One point in the news article, however, needs to be corrected: After noting that Communion services will be celebrated in most parishes left without pastors, the article asserts that such services are "not Mass but will satisfy the Catholic obligation to attend Mass."

That's wrong.

Only Mass satisfies the Sunday obligation (1983 CIC 1247-1248) under Roman Catholic canon law.* If a member of the faithful cannot attend Mass on Sunday, that impossibility excuses the obligation. Boniface VIII, De Regulis Iuris, no. 8, "Nemo potest ad impossibile obligari." Indeed, Canon 1248.2 of the 1983 Code, placed in the Code by John Paul II himself (Peters, Incrementa in Progressu, 1082), expressly notes that "If participation in the Eucharistic celebration becomes impossible because of the absence of a sacred minister . . . it is strongly recommended that the faithful take part in a liturgy of the Word if such a liturgy is celebrated in a parish church . . . " (emphasis added). Note, participation in a Word service is recommended, not required, and there is nothing in the canon about Word celebrations counting as Eucharistic celebrations.

Those of us lucky enough to attend Mass in our own parishes next Sunday should especially remember Catholics in Alaska who are not so fortunate. That said, while severe shortages of priests should move us to redouble our efforts to encourage vocations to the priesthood, they are not occasions for changing the understanding of Sunday Mass or its obligation.

* I say under Roman canon law, because there is some provision under Eastern canon law for something besides Mass to count toward the Sunday obligation. See CCEO 881.1.

posted by Dr. Edward Peters at This Permanent Link

Friday, September 26, 2008

Well, since you asked, here's what's wrong with assisting at the invalid marriages of AWOL priests

Monsignor Robert Reardon, the Vicar General of the Archdiocese of Cardiff, is apparently slated to be the next bishop of Menevia in Wales. But there's a hitch; word is getting out that, in 1979, Reardon officially participated in the civil wedding of an AWOL priest (my term for a priest who abandons ministry without obtaining dispensation from the obligations of the clerical state, including celibacy).

Reardon apparently admits the deed, but adds "If someone can show me the church law I am supposed to have broken, I would be interested, but I'm not aware of it." Does the archdiocesan vicar general really not know what church laws would have been broken by such conduct?

Well, okay, here's two for starters.

Catholic clergy are impeded from marriage (1983 CIC 1087, olim 1917 CIC 1072) meaning that an AWOL priest who attempts marriage does so invalidly and illicitly. Reardon directly facilitated a brother priest's violation of this sacramental canon.

A cleric who attempts marriage, even a civil marriage, incurs an automatic penalty. 1983 CIC 1394.1 (suspension), olim 1917 CIC 2388.1 (excommunication). Reardon directly facilitated a brother priest's violation of this penal canon.

Other church laws (e.g., those leveling penalties against accomplices in ecclesiastical crimes or those regarding the good conduct of clerics in general) could be cited, but these two should be enough to answer Reardon's request for illumination.

Now, here's what I don't understand: How can the vicar general of an archdiocese, even after thirty years of ministerial and administrative experience, still not be able to figure out what is so wrong about a priest's assisting at the civil wedding of an AWOL brother priest?

Update, 16 October 2008: Reardon is not being named bishop of Menevia, instead an auxiliary is being named to take over the diocese.

posted by Dr. Edward Peters at This Permanent Link

Friday, September 19, 2008

Sacramento vs. the Dominicans: why St. Paul would approve

The Diocese of Sacramento is suing the Western Province of the Dominicans for payment of what the diocese asserts is the religious order's fair share of a civil judgment entered against the diocese in regard to a sexual misconduct case involving a Dominican priest then working in the diocese.

What's unusual here is that the diocese is not suing the province in a civil court, but rather, in an ecclesiastical tribunal. One need not know anything about the merits of the case to say, this is a good move.

St. Paul was infuriated by the spectacle of Christians hauling one another before civil courts for judgment (1 Corinthians 6). Rightly so. Assuming forgiveness, forbearance, or compromise do not resolve concrete disputes among Christians, there should be an alternative to our suing each other civilly and thereby inviting the state to intervene in conflicts among believers.

And there is.

Canon law, the oldest continually functioning legal system in the western world, has long been a forum for the adjudication of complex disputes between Christians, and it remains so now. That canon law is turned to for such service so seldom is truly regrettable.

Here is not the place for a mini-course in canonical procedural law, but I would call attention to 1983 CIC 1400.1, 1: "The object of a trial is: the pursuit or vindication of the rights of physical or juridic persons. . . " and 1491, making rights, not "causes of actions", the key to invoking tribunal authority over given controversies. These two canons support the diocese's decision to turn to Church law for hearing this dispute.

As for precedents for such cases, while pre-codified law is rife with examples, even codified law has seen many such petitions being adjudicated up to the highest levels of the Church judiciary. To verify this, one could simply leaf through the indices of the Roman Rota's annual sentences, or consult directories such as:

Carolus Holbock, Tractatus de Jurisprudentia Sacrae Romanae Rotae juxta decisiones quae hoc sacrum tribunal edidit ab anno 1909 usque ad annum 1946 et publicavit in voluminibus i-xxxviii (Styria, 1957) 400 pp., or Augustine Mendonca, Rotal Anthology, An Annotated Index of Rotal Decisions from 1971 to 1988 (Canon Law Society of America, 1992) 771 pp.

Naturally, to file a case is not to win it; and to be sued is not to be liable. But both parties to this unfortunate dispute can be confident of receiving a fair hearing, and even complimented for setting a good example for the rest of us.

posted by Dr. Edward Peters at This Permanent Link

Tuesday, September 09, 2008

Tweaking Dr. Ray

I like Dr. Ray. If I'm on the road when he's on the air, I usually tune in. Today, I heard Dr. Ray handle tactfully a hard question about telling young children about the suicide death of a close relative. I felt myself in general agreement with his approach, but toward the end of his extended comments, two points caught my attention.

First, Dr. Ray seemed to think that decisions on ecclesiastical burial (1983 CIC 1184) reflect a pastor's assessment of the state of the deceased person's soul. Not. But, Dr. Ray did not dwell on the point, so I won't either. His second comment was more worrisome.

Dr. Ray indicated that folks used to have "to wonder" about what happened to someone's soul after a suicide, and he seemed to imply that such "wondering" was an unfortunate thing. Hmmm.

Actually, I think we should wonder about what happens to the souls of suicides.

If we don't need to wonder, it can only be because we are sure (or think we are sure) that we know what happened to their souls. Now, only two things can ultimately happen to any soul under Catholic theology: either a soul goes to Heaven or it goes to Hell.

Granted, no one can say with certainty that "All suicides go to Hell" (because they died committing an objective mortal sin), anymore than one can say with certainty that "All suicides go to Heaven", (because they were terribly psycho-emotionally stressed at the time). And maybe that was Dr. Ray's point, albeit phrased oddly. In any case, the simple fact is, we don't know what happens to most souls at death, and when we don't know what happens in a case, we're free to wonder about it. In fact, wondering (and praying) is all we can do!

Recall: laws (whether God's and man's) against suicide imply that, to some degree at least, the act of suicide is a choice, and human choices have moral implications. God did not make death "illegal", but he did forbid killing one's self. So, if psychology is telling us that such-and-such factors always effectively eliminate a suicide's free will (and I don't think Dr. Ray holds that view), then psychology has some explaining to do to God.

Dr. Ray said that ultimately God is the only judge here, and he's right. I just want to be clear that folks are free "to wonder" about what happens to the souls of suicides precisely because there's substantial evidence for both outcomes in these sad cases.

posted by Dr. Edward Peters at This Permanent Link

Sunday, September 07, 2008

Honk if You've Had It with Milingo

In 2006 Abp. Emmanuel Milingo was excommunicated for illicitly ordaining married men to the episcopate. Now, Abp. Milingo is traipsing through his native Zambia trying to get Catholic priests to agitate for an end to priestly celibacy in the Roman Church (Catholic World Report, Aug-Sep 2008, p. 15). The excommunicated archbishop assures clergy not to worry about ecclesiastical repercussions because "excommunication does not exist."

Folks, I've had it with Abp. Milingo's incessant eye-pokes against priestly celibacy. If you have, too, read on.

Fernando Lugo's recent departure from the ranks of the clergy with ecclesiastical permission (per 1983 CIC 290) answers an open question, namely, whether Rome would actually dismiss a bishop from the clerical state if he were bent on violating certain ecclesiastical laws.* With the Lugo case having demonstrated Roman willingness to protect the clerical state against episcopal exploitation, it's time to move against Abp. Milingo. Here's how.

Abp. Milingo's excommunication for illegal ordinations got the headlines, but before that, he faced "suspension" for attempting civil marriage; for the last two years, it appears that the unrepentant archbishop has lived in daily violation of Canon 1394.1. The prelate's protracted contempt for the prohibition against priests (let alone bishops!) attempting marriage leaves him liable not only to the penalty of suspension, but to dismissal from the clerical state. Support for imposing this stiffer penalty on Milingo builds when one recalls that Canon 1326.1.1 allows judges to punish more gravely those who, after a lesser penalty was imposed, demonstrate their "obstinate ill will" (see also 1983 CIC 1393). If Abp. Milingo is not a man of obstinate ill will, who is?

I could cite several other penal norms against the archbishop, but we don't really need them. What we need is for Rome to step in and protect the faithful from the neuralgic scandal of this obviously recalcitrant, civilly married and suspended, and later excommunicated, bishop by dismissing him, once and for all, from the ranks of the clergy.

I'd be happy to help with the paperwork. + + +

* A few historical examples of episcopal expulsions from the ranks of clergy have been suggested: Cesare Cdl. Borgia in 1498 (nope, Borgia was only a deacon); Charles Maurice de Talleyrand in the early 1800s (possibly, but the case would pre-date codified canon law by a century); and auxiliary bishop James Shannon in 1968 (maybe, but the available documentation on his status is inconclusive). Doesn't matter: Lugo's case, arising cleanly under the 1983 Code, makes the search for older precedents irrelevant.

posted by Dr. Edward Peters at This Permanent Link

Monday, September 01, 2008

Sarah Palin's RC baptism, and some notes on Bristol's situation

Sarah Palin's probable Roman Catholic baptism and her life spent outside the Church is of little import in assessing her character. Unlike the case of Gov. Tim Pawlenty, who seems to have left the Church as an adult, Palin's parents apparently took her out of the practice of the Faith while she was yet a child, so Palin cannot be said to have decided against her Catholic identity, nor can anything be concluded about her remaining outside of full communion. Her "re-baptism" at age 12 or so, if that's what it was, would not however be recognized by the Church (1983 CIC 845.1)

Ironically, the only thing that Palin's Catholic baptism and her life-time spent in good faith outside the Church does, I must say, is underscore again how unsustainable is the interpretation of "formal act of defection" that was handed down in April 2006. How so? Well, if "formal defection" per 1983 CIC 1117 can only be accomplished in writing (a completely new requirement, and one unattested, as far as I can tell, in canonical history!), then Palin never formally defected, which means that she is still bound by canonical form per 1983 CIC 1108, and that therefore her marriage cannot recognized by the Church!

Don't get me wrong: I think that Palin's marriage (based on what is publically known about it at this time, of course) is valid (and sacramental if Todd is baptized), and that it is this novel interpretation of "formal defection" that needs urgently to be corrected, not Palin's matrimonial status. It's just that I don't like it when law and life seem to be out of step with each other and, for a change, it looks like the law's fault.

But even beyond the question of "formal defection", the continued requirement of canonical form for the validity of marriage needs reexamination. There's nothing new in my saying that: many canonists of the first order have been suggesting for 50 years now.

Bristol Palin's situation. I suppose this is already about as public as private things can get, and I offer my few remarks on accordingly.

1. Of course I am glad that Bristol decided in favor of the life of her preborn child. Bristol could have had an abortion, and Sarah would have been the last to know. 2. A wedding is supposed to be the way two adults start a life together, not the way two kids try to rectify their mistakes. If couples who become parents before they become spouses want to marry, fine, there's plenty of time for that; but they should wait until well after the baby arrives, and make the marriage decision independently of pregnancy pressures. Which in turn might raise point 3. Deciding to keep the child is a good decision, but it might not be the best decision: babies need a mom and a dad, not a mom and two terrific grandparents. Adoption gives babies their best shot in life.

Bottom line, I hope the Palins don't rush into any decisions.

posted by Dr. Edward Peters at This Permanent Link

Friday, August 29, 2008

Dr. Barr's startlingly simple question

Over at First Things, Dr. Stephen Barr, a theoretical physicist at the University of Delaware who also knows his way around the Catechism, has posted a very interesting idea occasioned by House Speaker Nancy Pelosi's "mind-blowingly incompetent" (AmericanPapist) remarks on abortion and innocent human life.

Barr, drawing on John Paul II's encyclical Evangelium vitae (1995) and m.p. Ad Tuendam Fidem (1998), suggests that Pelosi has, completely on her own, forced the bishops, for the good of the Church and the welfare of souls (my phrase, but I think Barr would agree with it), to clarify whether she believes the "direct and voluntary killing of an innocent human being" to be gravely immoral.

This being the final weekend before my own Fall teaching starts, I will resist (for now) the temptation to assess Barr's post and some interesting issues it raises, but it seems to be much too intriguing an idea to let pass without at least a brief mention of it here. I'll only say, leave it to a renowned astrophysicist to suggest a startlingly simple question.

Related note: Be sure to catch also Fr. Thomas Williams', lc, fine post on the bishops and pro-life over at National Review On-line. Together these two posts make a nice wrap-up for the work week!

posted by Dr. Edward Peters at This Permanent Link

In case it comes up: Tim Pawlenty's religious status

There is nothing like real life to demonstrate, once again, that canon law is meant to address it.

1. Apparently Minnesota Gov. Tim Pawlenty was raised Roman Catholic, but defected to Lutheranism and then to Evangelical Christianity some years ago. That would not make him an apostate, but it would make him a schismatic (1983 CIC 751). Schismatics are liable to automatic sanction under 1983 CIC 1364, but a wide variety of factors (see e.g. 1983 CIC 1324-1324) can, and usually do, prevent the application of automatic sanctions except in very rare cases.

2. According to the extremely narrow interpretation of "act of formal defection" mentioned in 1983 CIC 1117 that was handed down in April 2006, Pawlenty's marriage (which I assume was not conducted in accord with canonical form) would not be recognized by the Church. I will not repeat here my serious misgivings about that interpretation, except to say that if my understanding of formal defection (one shared by most American canonists) were correct, Pawlenty's marriage would be recognized like that of any other Protestant free to marry.

In light of Pawlenty's public and formal adherence to a non-Catholic Christian denomination and/or the probability that his marriage is not recognized by the Church, should Pawlenty present himself for holy Communion (which is not likely, of course), he would not be eligible to receive per 1983 CIC 915.

A personal observation: Tim Pawlenty seems a very decent and thoughtful man. How someone like him could have been lost to the Catholic Church for all these years is grounds for serious reflection by those of us graced to remain. Nor is Pawlenty alone; hundreds of thousands of people in his generation left the practice of the Faith. I only hope they know what a serious matter that is for them, and how willing the Church is to help them come back.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, August 27, 2008

Randall Terry's dumb stunt

Would someone explain to me how blocking traffic saves human lives?

We're not talking about a protest sit-in at a lunch counter where blacks are being refused service; we're not even talking about a rescue sit-in at the doors of an abortion clinic, which sort of non-violent direct action, for as long as it continues, keeps actual babies away from the suction machines. Those kinds of sit-ins I can make a case for; indeed, I have made a case for them.*

What Randall Terry is doing here, however, is quite different: he's blocking legal access to a public thoroughfare. But folks, there simply is no connection between some guy's decision to drive along a given street and another guy's decision to vacuum the brains out of babies. No connection whatsoever. Consequently, Terry's blocking legal access to public thoroughfares does not save lives or even "raise public conscientiousness"; it just makes pro-lifers look like dopes who, being unable to distinguish between social goods (like freedom of travel and respect for public order) on the one hand, and social evils (like abortion) on the other, attack the former as if it were the latter.

Here's hoping Terry goes back quickly to projects that made sense, and might have even made a difference.

+++

* Edward Peters, "The 'Doctrine of Necessity' as a Defense for Pro-Life Abortion Clinic Sit-Ins", Senior Synthesis (Political Science), St. Louis University, May 1979.

posted by Dr. Edward Peters at This Permanent Link

Sunday, August 24, 2008

The Economist is Jolly well right

2 August 2008. The Economist asserts that the dispensation of Bp. Fernando Lugo of Paraguay from the clerical state was the first time a bishop had been dispensed from the clerical state.

16 August 2008. John Jolly asserts in a letter to the editor that The Economist is mistaken, for the 1498 resignation of Cesare Borgia from his bishopric(s) and cardinalate preceded Lugo's dispensation.

I think The Economist is correct.

The disgrace that the Borgias brought on the papacy, coupled with incomplete records and marked variations in terminological usage, make drawing conclusions about that time tenuous but, that said, it seems clear that Cesare Borgia was ordained only to diaconate, and that his other offices were, under the law and, worse, the practices, of the times, graspingly administrative in nature, not sacerdotal. (See, e.g., Salvador Miranda's "Cardinals of the Holy Roman Church").

Well into the 19th century, some prominent cardinals were only deacons (e.g., Giacomo Antonelli, Pius IX's Secretary of State) and even today, a few cardinals are but priests (e.g., Avery Dulles). For that matter, the current classifications of cardinals as "cardinal-bishops", "cardinal-priests", and "cardinal-deacons" (1983 CIC 350-351) are not indicative of the kind of ordination these men have received.

Nothing, it seems, was beneath the Borgia curialistas, and one always hesitates to try to prove a negative, but at this point I agree with The Economist and can point to no dispensation of a bishop from the clerical state prior to Fernando Lugo's in June 2008.

posted by Dr. Edward Peters at This Permanent Link

Saturday, August 23, 2008

About Biden, let's ask the right questions well

One need not be a Catholic in good standing to be President or Vice President of the United States, but one must be a Catholic in good standing to receive holy Communion from the Catholic Church.

Sen. Joseph Biden, a left-of-center politician who generally earns high marks from liberal watchdog groups, is not the extremist that Sen. Barack Obama is proving to be, and he has incomparably more experience in government than does Obama. But, while Biden's positions on public policy issues can and will be attacked and defended by Catholics (particularly, I hope, by informed lay Catholics whose expertise is the temporal order as recognized by 1983 CIC 225.2 and 227), Biden-qua-politician should not be the object of special attention by ecclesiastical leadership. Rather, Biden-qua-Catholic should be. And he will be.

Canon 916 directs Catholics who are conscious of being in grave sin, regardless of whether that grave sin is known publicly, to refrain from taking holy Communion. Biden, like any other Catholic, is expected to examine his conscience in light of Church teaching prior to approaching the Eucharist and, if he finds himself wanting, to reform his behavior accordingly. He can be sure that the grace of Christ would be offered abundantly to him in that effort.

But Canon 915 looks at a different issue. Unlike Canon 916 which impacts individual Catholics, Canon 915 directs ministers of holy Communion to withhold the Eucharist from Catholics "obstinately persevering in manifest grave sin".

Any Catholic whose public behavior, in one or more respects, is so at odds with Catholic moral teaching(s) as to constitute his or her "obstinately persevering in manifest grave sin", is subject to consequences under Canon 915. There's no fine-print exception for Catholic politicians. Biden-qua-Catholic is subject to the same rules as is every other Catholic.

To be sure, the public profile of Catholics in political office is considerably higher than that of ordinary Catholics; consequently their actions will receive closer attention than that accorded to pew Catholics. But so what? Citizens aspiring to major public office are subject to markedly higher scrutiny under civil law, and few have a problem with that. Should Catholics seeking a major role in the service of the common good suddenly be allowed to claim immunity from their responsibility as Catholics "to imbue and perfect the temporal order of things with the spirit of the Gospel"? I think not.

In regard to the Catholic Joseph Biden's eligibility to receive holy Communion, then, the right questions will seek to answer whether certain of his public actions (chiefly legislative actions and public advocacy efforts) constitute obstinate perseverance in manifest grave sin. Answering those questions well will require (1) accurate assemblage of the facts (an area for which expert lay Catholic observers of American politics should be consulted), and (2) accurate inquiry into the requirements of Church law and moral teaching (an area for which bishops are chiefly responsible).

Here's hoping that the right questions in this important matter are asked well.

posted by Dr. Edward Peters at This Permanent Link

Friday, June 27, 2008

First thoughts on Abp. Burke's promotion to the Signatura

The Roman Rota is the Church's highest judicial court, but because so much law in the Church is administrative, the Apostolic Signatura, which sits atop that administrative system, is effectively the Church's highest adjudicatory body. Throw in that the Signatura resolves disputes that arise over Rota cases, and the preeminence of the Signatura is clear. Pastor Bonus 121-125; 1983 CIC 1445.

Abp. Burke, as the new head of the Signatura, will undoubtedly be made a cardinal (my guess, at the very next consistory) and so will be eligible to vote for the next pope. He already serves on Clergy and Legislative Texts, and is sure to be named to other key Roman dicasteries (likely Bishops, probably CDF and Education, among others), and making him, with William Cdl. Levada at CDF, the most influential American in Rome. James Cdl. Stafford (formerly of Denver) also serves on several dicasteries, but his main work on the Apostolic Penitentiary is by its nature not high-profile.

I am frankly a little sad at this one. Abp. Burke is a vital presence in the Church in America; but if the pope says that his abilities are needed at the universal level, then who can complain? Let's just pray that a worthy successor in St. Louis is named. Quickly.

See also: Whispers in the Loggia, John Allen (though Allen still thinks that Burke's "second place" finish in the election of the USCCB's head of Canonical Affairs was a rebuke to Burke!)

Abp. Burke's announcement text:

Today, at noon in Rome (5 a.m. CDT), it was announced that His Holiness, Pope Benedict XVI, has named me prefect of the Supreme Tribunal of the Apostolic Signatura, effective immediately. With the announcement, I ceased to be the Archbishop of St. Louis.

I am deeply humbled by the trust which His Holiness has placed in me, and, in priestly obedience, I have pledged to serve our Holy Father to the best of my abilities. Although you will no longer pray for me as your archbishop, especially during the celebration of the Holy Mass, I ask your prayers for me, that I may faithfully and generously cooperate with God's grace in fulfilling my new responsibilities.

Leaving the service of the Church in the Archdiocese of St. Louis is most sad for me. It has been an honor and gift for me to serve the archdiocese over the past four years and five months. It had been my hope to serve here for a long time, but, as the bishop who called me to priestly ordination often remarked, "Man proposes, but God disposes." I trust that doing what our Holy Father has asked me to do will bring blessings to the Archdiocese of St. Louis and to me. St. Louis is a great archdiocese which will always have a treasured place in my heart.

In a particular way, I am saddened to leave my fellow priests, whom I have so much grown to esteem and love. Often, I have spoken about the remarkable unity and loyalty of our presbyterate. For me, it has been a special grace to work with them in the service of God's flock in the archdiocese. I thank them for the priestly fraternity which they have always shown me, and for the generous obedience with which they have responded to my pastoral care and governance of our beloved archdiocese.

With regard to the governance of the archdiocese, the College of Consultors will meet to elect an archdiocesan administrator who, with the help of the consultors, will govern the archdiocese, until the new archbishop is appointed and installed. Please pray for the College of Consultors and for the archdiocesan administrator whom they will elect.

Again, I ask your prayers. You can count upon my daily prayers for the Archdiocese of St. Louis, always.

posted by Dr. Edward Peters at This Permanent Link

Thursday, June 26, 2008

Proposal: Extend the Communion fast

I have just published a short article proposing that the Communion fast (1983 CIC 919) be calculated from the start of Mass (instead of from the reception of Communion) and that the fast be extended to three hours (instead of the current one hour). See Edward Peters, "The Communion Fast: a Reconsideration", Antiphon 11 (2007) 234-244. Briefly, my reasons are:

1. A one hour "fast" is physically insufficient to bring the human body into a fasting state, meaning that the spiritual benefits long associated with corporal preparation for Communion are lost.

2. Making reception of Communion relevant to calculating the fast leads to distracting cogitations about the liturgy itself (e.g., worrying about whether the length of the homily or sung responses or angling to the end of the Communion line might allow one to complete the fast in time).

3. Calculating the fast from reception of Communion reinforces the assumption of many that "going to Communion" is the only important thing about Mass (rather than helping them see, e.g., the Sunday obligation as a liturgical one fundamentally oriented to worship).

4. A fast oriented only to reception of Communion diminishes the faithful's appreciation for the Liturgy of the Word as an encounter with Christ worthy of preparation in its own right (see Mk VI: 34-42 on Jesus' example of teaching hungry people before He fed them).

5. The brevity of the current fast means that Catholics with guilty or doubtful consciences have no discrete way to refrain from going up to Communion without attracting attention, resulting in pressure on them to approach the Eucharist under conditions that risk profanation.

6. Imposing as a requirement of law what is scarcely impossible to avoid doing anyway (how many people really eat and drink on their way to Mass?) makes legal norms seem like empty exercises, in turn fostering a diminished respect for the role of law in ecclesiastical society.

My article outlines these problems in light of the history of the Communion fast and demonstrates, I think, that reforming the Communion fast as proposed above would resolve each of these issues quickly and completely.

We'll see who might agree.

PS: If you don't already know the Society for Catholic Liturgy, publisher of Antiphon, check it out today!

Update: I'll be talking about various issues related to Holy Communion with Drew Mariani today (June 26) about 6:20 pm Eastern.

I'll be talking about various issues related to the Communion fast with Kresta in the Afternoon today (June 30) about 4:20 pm Eastern .

posted by Dr. Edward Peters at This Permanent Link

Monday, June 02, 2008

Autism and the Sunday Mass obligation

Knowing nothing about the dispute between a Minnesota parish and the mother of an autistic boy beyond what I've seen on the net, I offer no opinion on the merits of the case. Some quotes attributed to the boy's mother, however, show some misunderstandings of Church law that, if clarified, might make resolution of this case easier.

1. Mother rejected an offer to let her son watch a video feed in the church basement, saying that watching televised Mass "does not have the same status as attending Mass." She's right. Watching Mass on TV is fine, but it is a purely devotional exercise which does not qualify as liturgically "assisting" at Mass; thus, watching TV does not satisfy the Sunday and holy day obligation set out in 1983 CIC 1247-1248.*

2. Mother continued: "Otherwise we could all just sit home and watch it on TV and not bother to come in." Well, okay, if the premise were true, the conclusion would be true, too. But the premise here is admittedly false, so the conclusion is obviously false as well. Mother can't show, however, the parish stance to be wrong by showing that a mis-application of the rules would also be wrong.

3. Mother concluded: "It's considered a sin in the Catholic church not to attend Mass on Sundays and every holy day of obligation." Not quite.

The general obligation to attend Mass is a grave one, but like most grave obligations, it can be mitigated in particular circumstances. If one's child became ill on Sunday morning, no one would accuse the child or his mother of committing grave sin by not showing up for Mass that day. There are, obviously, all sorts of conditions that, whether for a short time or a long one, prevent one from attending Mass without incurring guilt. Canon 1248.2, placed in the 1983 Code by John Paul II himself (Peters, Incrementa, 1082) expressly addresses this. I imagine that a plausible, if not at times a strong, case could be made that this boy is excused from the Mass obligation, as would be those directly responsible for his care.

As I said above, one needs more access to the facts of this case to make a prudential judgment about how to resolve this conflict, but caricatures of another's position never make for quick resolution of disputes. Allegations that the Church is imposing an obligation on this boy and his mother and then preventing from them from fulfilling that obligation are logically and pastorally absurd. +++

* I'm responding to what the mother said here and in her next sentence. I have no doubt but that folks in a Church basement watching a closed video feed of the Mass being celebrated upstairs, which they can't enter because of overcrowding, are liturgically assisting at that Mass. Still, the mother's comments are about televised Masses, which are far more common and about which people need clarification.

Updates: June 4. Autism campaigners contact pope

posted by Dr. Edward Peters at This Permanent Link

Friday, May 30, 2008

Excommunication for female 'ordination'

As I pointed out some time ago (scroll to 6 July 2005), the 1983 Code does not levy excommunication on those who simulate the conferral and reception of holy orders on women. Canon 1378 excommunicates non-priests who simulate Eucharist and confession, and Canon 1379 imposes "a just penalty" on those who simulate the other sacraments (such as holy Orders), but neither canon directly excommunicates those who simulate holy Orders. The excommunications that have been applied in some cases of female 'ordination' have been imposed in virtue of a combination of other canons (e.g., Abp. Burke's model action in March 2008), which works fine of course, but it seems somewhat cumbersome to those who do not know canon law well.

As of today, though, all of that has changed: The Congregation for the Doctrine of the Faith has just decreed that those who attempt to confer holy Orders on women are excommunicated, as are the women who attempt to receive holy Orders. Latin-Italian text here, Latin-English text here. The decree goes into effect immediately.

Let's look more closely.

1. CDF looked at Canon 1378, which already contained an automatic excommunication penalty, and decided to add a crime, simulating of holy Orders, to it. CDF could have just as easily decided to specify an excommunication penalty for simulating of holy Orders within Canon 1379, which already punishes such actions with "a just penalty". Either way works, however, and CDF choose the former. Note that simulation of holy Orders on a male is not penalized according to CDF's decree, so such actions, while gravely sinful, remain punishable basically only under Canon 1379.

2. CDF's action increases by two the number of actions punishable by "latae sententiae", or automatic, penalties. The trend over the last 150 years in ecclesiastical penal law has been away from automatic penalties (1983 CIC 1314). For legal theory reasons, I would have preferred to see that trend reinforced: make simulation of holy orders on women an excommunicable offense, yes, but make the process for incurring the penalty ferendae sententiae, not latae sententiae. That said, the factors that so often complicate the operation of latae sententiae penalties in the Roman Church (see, e.g., cc. 1323-1325) are, as it happens, virtually non-existent in female 'ordination' scenarios, so it's not a big deal here.

3. Interestingly, when CDF turned to the consequences of female 'ordination' among Eastern Catholics (I have heard of no such cases yet), the dicastery respected the Eastern Code's elimination of latae sententiae penalties (CCEO 1402.1) and stated that excommunication should be imposed (puniatur) for such offenses, and then reserved absolution from the censure to the Holy See.

4. It does not appear that the excommunication for the female 'ordination' is a reserved offense under the 1983 Code, but it is reserved by the CDF decree among Roman Catholics.

5. Nothing in the decree suggests that it is retroactive, so given 1983 CIC 9, 18, and 1313, those who participated in past simulated 'ordinations' of women, but were not excommunciated under another operation of law (and they would know if they have), are not excommunicated by this CDF action.

My guess is that we will see personal precepts (cc. 1319, but perhaps also 1326) being issued over time to those involved in past female 'ordinations' to repent of their actions or fall under the same sanction as those already excommunicated under under other canons or as those subject to punishment for any future simulated ordinations.

6. The automatic excommunication already in Canon 1378.2.1 against those who simulate the Eucharist, which some of these women have done since their 'ordinations', remains in place. Yes, you can be excommunicated twice, just as you can be sent to prison for two felonies, or be sent to Hell for two mortal sins.

Summation: Presbyteral 'ordination' of women is invalid (Ordinatio sacerdotalis, n. 4); it has always been a canonical crime punishable under Canon 1379 and/or certain combinations of other canons; as of today it is directly punished with automatic excommunication under Canon 1378.

Sounds like three strikes to me.

Later notes: The attempted ordination of a man by a female 'bishop' is not sanctioned in the CDF decree (until last week, it had apparently not been tried) so that act remains punishable basically under Canon 1379, as before.

Some good posts by others on this: Fr. John Zuhlsdorf,

posted by Dr. Edward Peters at This Permanent Link

Friday, May 16, 2008

Was Prof Douglas Kmiec really denied Communion?

He certainly says he was, by a chaplain irate over Kmiec's endorsement of Obama for president. Now I am as nonplused as the next guy about Kmiec's backing of the unborn's worst enemy (ok, technically he's tied with Hilary for a 100% NARAL approval rating), and I was quietly hoping that Kmiec would remain an anomalous singularity. That hope was dashed, however, when Nicholas Cafardi, a prominent lay canonist and retired dean of Duquesne Law School, lent his name to Obama's Catholic advisor list. Good grief. Oh well, they don't move me: I'd rather watch televised soccer than cast a vote for either Obama or Clinton.

But to deny Kmiec holy Communion for his actions to date? No way. In the face of Canons 18, 213, 843, and 912, Canon 915 indeed authorizes withholding Communion from those who (a) obstinately, (b) persevere in (c) manifest (d') grave (d'') sin. But about the only thing Kmiec is (so far) is manifest.

I have been urging for years that greater respect for Our Lord in the Eucharist be shown by, among other ways, withholding holy Communion from certain figures who fail to meet the requirements set out in canon law. I suppose it's inevitable that, with steps finally being taken toward the enforcement of Canon 915, some hotheads are going to misapply the law. But that's not the law's fault; that's bad catechesis, something over which even priests can stumble.

In short, by my read, Prof. Kmiec is owed an apology.

Same day update: I'm always struck by how many more people can write than can read. I've been getting several notes and links criticizing me, saying that I have denied the right of ministers to make Communion-distribution decisions. Where, oh where, have I ever said that? Indeed, against some who argue plausibly that a Communion-withholding decision can only be made by the bishop, I have always upheld, alebit on the narrowest grounds, the authority of the minister to make an immediate decision (even though in the majority of cases I think they are wise to wait for directions from higher up) in order to deal with flagrant, urgent cases (e.g., drunken skin-head Neo-Nazis marching up to take Communion). What I said in the Kmiec case was that, imho, the minister of Communion was quite wrong to withhold the Eucharist from Kmiec, not that he as ordinary minister was unauthorized to make such determinations.

Which let's me comment on second point: some have said that I feel the Church owes Kmiec an apology. Nope. The minister owes Kmiec an apology. I don't think "the Church" has to run around apologizing for every misapplication of her laws by an intemperate official.

Being the minister of Communion is a heavy responsibility; misuse that authority, and expect to bear some consequences for it.

Updates: NR Online, 16 June 2008; Mirror of Justice, 16 June 2008; Fumare, 17 June 2008; The substance of this post was accurately conveyed by Our Sunday Visitor, 15 June 2008, p. 17.

posted by Dr. Edward Peters at This Permanent Link

Saturday, May 10, 2008

Staunching the wound of Bleeding Kansas

A century and a half ago, "Bleeding Kansas" referred to the violence through which Kansans suffered as a presage to the full-scale war that engulfed the United States just a few years later. Today, "Bleeding Kansas" more aptly describes that beautiful state's reputation as a haven for late-term abortions.

The governor of Kansas, Kathleen Sebelius, firmly aligned with the abortion lobby, just vetoed the Kansas Comprehensive Abortion Reform Act, meaning that Jayhawk abortion profiteers need not so much as mention to women, specifically mothers, that alternatives exist to the violence they are about to undergo. May the governor pay the price for that incomprehensible veto (however small that price compares to what a single baby pays for it) at the polls.

In the meantime, though, Gov. Sebelius is also a personally-opposed-to-abortion-but-yaddah-yaddah-yaddah Catholic. Unlike many other personally-opposed-to-abortion-but-yaddah-yaddah-yaddah Catholics, however, Gov. Sebelius falls under the jurisdiction of a bishop who cares (as would any bishop) about the abortion havoc being wrought on his people and about the state of the souls of those who foment that carnage, but also of a bishop who will act (as do too few bishops), publicly, prudently, but firmly in response to the care.

Kansas City (KS) Abp. Joseph Naumann has met with Gov. Sebelius many times to dissuade her from machinating against the preborn; failing to move her, and after consulting his suffragans, he wrote to her in August 2007 "requesting that she refrain from presenting herself for reception of the Eucharist until she had acknowledged the error of her past positions, made a worthy sacramental confession and taken the necessary steps for amendment of her life which would include a public repudiation of her previous efforts and actions in support of laws and policies sanctioning abortion."

Abp. Naumann's statement is model of pastoral sollicitude and political savoir faire. I think it required reading for any one who wishes to discuss this topic seriously, along with, say, Abp. Raymond Burke's "Canon 915: The discipline regarding denial of holy Communion to those obstinately perservering in manifest grave sin", Periodica 96 (2007) 3-58, and my own "Denial of the Eucharist to pro-abortion Catholic politicans: a canonical case study", Homiletic & Pastoral Review (Oct. 1990) 28-32, 48-49.

Now, however, confronted with evidence that Gov. Sebelius has ignored his request, Abp. Naumann has privately and publically called upon the governor to desist from receiving Holy Communion, reiterating his desire that the governor accept his "previous request and not require from [him] any additional pastoral actions." Hmmm. Additional pastoral actions.

Abp. Naumann has applied Canon 915 as a tourniquet to staunch the wound that Gov. Sebelius has inflicted on the Mystical Body of Christ. But Canon 915 is only designed to keep a bad situation from getting worse; what is ultimately necessary here is repentance by a prominent Catholic of her grave pro-abortion activities. In the meantime, if Canon 915 doesn't stop the bleeding, the archbishop's only alternative would be surgery under Book Six of the Code of Canon Law, "Sanctions in the Church."

And no one should want that. +++

Additional blog commentary: Fr. John Zuhlsdorf, AmericanPapist,

posted by Dr. Edward Peters at This Permanent Link

Tuesday, May 06, 2008

I like this: Abps. Myers and Burke to pontifical councils

The Vatican Information Service (VISnews 080506) announced today that Benedict XVI just appointed several new members to the Pontifical Council for Legislative Texts, the Roman dicastery that, under 1983 CIC 16 and Pastor Bonus 154-158, provides binding interpretations of ecclesiastical law. The PCLT is a very important office for canonistics; in some repects, it is more important than the Roman Rota (long explanation omitted). Papal appointments to the PCLT are worth watching.

Granted that some prelates are named to the PCLT because, well, they couldn't not be appointed given their importance in other Roman curial offices, among the 'personal' appointments announced today, two American archbishops standout: John Myers of Newark and Raymond Burke of Saint Louis. Abp. Myers, an expert in property law, has been serving as a consultor to the PCLT for over 10 years; Abp. Burke, an expert in procedures and penal law, and who was also appointed to the influential Congregation for the Clergy, has considerable experience in the Signatura. Both appointments are very good news for clear thinkers.

Last November, I dismissed theories that the USCCB election for the head of its Canonical Affairs committee was in any way a referendum on the firm approach adopted by Abp. Burke in regard to pro-abortion Catholic politicians. Folks who tried to parlay the bishops' choice of the excellent Chicago auxiliary Bp. Paprocki into an endorsement of a 'kinder, gentler' approach to ecclesiastical law should be glad I did: Else, how will they account, without blushing, for Rome's naming of Abp. Burke to two posts wherein his approach to canon law is going to get a serious hearing at the highest levels?

If one will permit me a bit of button busting, I'm thrilled that three prelates who graciously wrote forwards to my various books (Myers for Annulments and the Catholic Church and The 1917 Code of Canon Law in English Translation, Burke for the Incrementa in Progressu 1983 Codicis Iuris Canonici, and Paprocki for Excommunication and the Catholic Church) are serving the Church's legal system in such prominent ways. Makes me wanna work harder, too.

posted by Dr. Edward Peters at This Permanent Link

Thursday, May 01, 2008

Autumn Kelly: making the wrong choice for the wrong reason

Barring Catholics from the throne of England, for no other reason than that they are Catholics, sounds more ominous than it is. I mean, who would want to be the king or queen of England anymore? Still religious bigotry is religious bigotry, and the ban prohibiting Catholics, or those married to Catholics, from ascending British throne, should be dropped.

In the meantime, making even less sense than desiring to be the monarch of England, is giving up one's Catholic faith so that one's future husband can stay ---what is it? --- 11th in line to succeed to that throne! But that's exactly what Catholic Autumn Kelly has done, she's joined the Church of England so that, when she marries Peter Phillips later this month, he can cling to odds of ascending even slimmer than those held by "Louis Mazzini" in the Alec Guinness comedy classic Kind Hearts and Coronets (1949)! Really, it's too, too bizzare.

But amid the surrealism, there is an important canonical issue: On 13 March 2006, a "notification" (a very problematic notification, in my opinion) as to what constitutes a "formal act of defection from the Catholic Church" was handed down by the Pontifical Council for Legislative Texts. I've always thought there were problems with that interpretation, but I sure don't see how it's up to handling this case.

As public and as unambiguous as Kelly's abandonment of the Catholic Church seems to be, it is not clear that it satisfies the (extremely rarified) definition of "formal act of defection" that is supposed to guide canonical thinking these days, leaving us on the horns of a dilemma: if Kelly's abandonment of the Catholic faith is not a "formal act of defection", what besides a rank exercise in legalism keeps it from being so? Alternatively, if Kelly's act of abandonment is an act of defection, how does she meet the requirements set forth in the interpretation when presumably most others will not?

As one who thinks that law should be able meet situations encountered in real life, I'll be curious to see this problem resolved. In the meantime, besides praying that Kelly returns to the Church (we'll take back her even if she isn't the queen of England), I am left wondering how the validity of her soon-to-be-attempted marriage will fare in light of what appears to be a sure defect of form (1983 CIC 1108 vs 1117). Unless 10 people up and die, she's not going to be queen, and besides that, she's either not going to be Catholic, or not going to be validly married. What a mess.

posted by Dr. Edward Peters at This Permanent Link

Monday, April 28, 2008

Four cheers for New York's Cardinal Egan

Four cheers, not three.

Three for telling Rudy Giuliani, a notorious supporter of legalized abortion, that Canon 915 means what it says, that those who obstinately persist in manifest grave sin are subject to the withholding of Holy Communion. Chronic promotion of abortion, in which Rudy engages, is a grave sin. See Cdl. Ratzinger's letter of June 2004.

And an extra cheer for holding in reserve the slam-dunk norm prohibiting Rudy from committing objective sacrilege against the Eucharist, namely, the 1994 Congregation for the Doctrine of the Faith LETTER TO THE BISHOPS OF THE CATHOLIC CHURCH CONCERNING THE RECEPTION OF HOLY COMMUNION BY THE DIVORCED AND REMARRIED MEMBERS OF THE FAITHFUL, esp. para. 4: "If the divorced are remarried civilly, they find themselves in a situation that objectively contravenes God's law. Consequently, they cannot receive Holy Communion as long as this situation persists." Rudy is divorced and remarried outside the Church.

Under either heading, then, whether for pro-abortion activism or for divorce and remarriage, to say nothing of both, Rudy is barred from receiving Communion. Period. His very, very public act of defiance in taking Communion at the papal Mass deserves swift and firm condemnation.

Related post: 15 March 2007. Since when is Rudy Giuliani excommunicated?
Related article: Denial of the Eucharist to pro-abortion Catholic politicians (1990)
Read Phil Lawler's excellent analysis.

posted by Dr. Edward Peters at This Permanent Link

Thursday, April 24, 2008

Rome's four options in regard to Bp. Fernando Lugo

Who is not happy to see Paraguay's junta finally voted out of office? That the election was peaceful and, so far, seems to be accepted by the old guard is even better. But that is not the issue in regard to Paraguay's new president, Bp. Fernando Lugo.

The issue here is canonical (and by implication, theological and pastoral): Lugo was ordained to the fullness of holy orders for the spiritual service of God's people. By all accounts, he was doing good work in that task when, at some point (and it does not appear to have been very long ago), he saw an opportunity to substitute another good (and yes, serving the people in civil office is a good) for the one he originally accepted. The new good that Lugo is pursuing, however, civil governance, is not only incompatible with his many duties as bishop, it is flatly prohibited to clerics (c. 285.3). But Lugo took it notwithstanding.

To his credit, Lugo attempted to give up his clerical status by petitioning a return to the lay state. But, to its credit, Rome said no, observing that clerical status at the episcopal level is not something that can be surrendered. Lugo refused to stand down for election, but even then Rome did not respond with its heaviest censure, excommunication; instead, Rome suspended Lugo from ministry, leaving his status as a member of the clergy intact. For now.

The recent apology from Lugo (again he seems to be desirous of minimizing the ecclesiastical harm his actions have caused) is not yet sufficient for this problem, though a superficial reading of Canon 1347.2 might suggest otherwise: Lugo's apology amounts to "I am truly sorry that I have caused scandal by gravely violating ecclesiastical law; I will continue to violate it." That, folks, is simply not an apology. However "sincerely" it is said.

So Rome has, as I see it, four options here.

1. Excommunicate Lugo (there are a couple-three ways that could come about on these facts), and leave him in the same state as a Milingo. Except that Lugo is clearly not a Milingo.

2. Lift the penalty of suspension (in recognition of Lugo's sincere desire to avoid harming others), impose a salutary penance under Canons 1339-1340 for his actions inconsistent with Canon 285.3 (invoking if necessary c. 1399), and dismiss Lugo from the clerical state ex offico (and not as a favor that one can request).

3. Dispense Lugo from c. 285.3 (it is subject to dispensation and a case for that under cc. 85, 88, 90 can be argued here). Then live with the consequences that such a precedent (in life, not in law, per c. 16.3) will unavoidably establish for a long, long time.

4. Do nothing, and hope that Lugo will resign the presidency (yeah, right), or do nothing till his term expires and then "reconcile" him (which will send a strong message that Canon 285 is pointless), or just do nothing, period.

No one wants option # 1 (though it is on the table). I think # 2 is the prudent choice, but my guess is that Rome is looking hard at # 3, despite a chronic curialista predilection to follow # 4. As I've had occasion to say before, I'm glad it's not my call to make.

In the meantime, though, I can't help noticing that Lugo's political career is being launched by doing what politicians do best: disregarding one promise in order to make another. Too bad. He seems a better man than that. +++

Note: See also this Rite of Dismissal for a Bishop from the 1895 Roman Pontifical, and my comments in "Permission given to priest to run for political office", 2007 CLSA Advisory Opinions 60-62.

Update 05 May 2008: A thoughtful look at the issues from NCReps' John Allen.

Update 30 July 2008: Rome granted Lugo's request to return to the lay state.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, April 23, 2008

After decades of disinterest, suddenly two Canon 1405 cases?

POST ONE: Pope Benedict XVI is believed to be mulling over the possibility of expelling a bishop, Fernando Lugo, from the clerical state. That would certainly be a first under the 1983 Code (the Jacques Gaillot case in 1995 was not a precedent; Gaillot was removed from office, but not from the clerical state), and I'm pretty sure it never happened under the 1917 Code.

Lugo, though suspended and removed from ecclesiastical office, remains a cleric, but his election under a reformist banner to Paraguay's presidency upped the ante. Clergy are forbidden to assume civil governing offices (see 1983 CIC 285.3 and my negative conclusions about "Permission given to priest to run for political office", 2007 CLSA Advisory Opinions 60-62) and bishops in political office are at odds with, oh, about a dozen other norms.

Canon 290,3 says that removal from the clerical state can be granted (or imposed, if it comes to that) on deacons for "grave cause" or presbyters for "most grave cause". But the canon doesn't even mention dismissal of a bishop from the clerical state. It's as if no one could imagine it ever happening.

Lugo has reportedly offered to "resign" but it is unclear exactly what he meant by that, or he could face a penal process with the pope as judge per 1983 CIC 1405, 1. Ironically the pope could hear this matter as a case of judging "those who hold the highest civil office of a state" or he could hear it as a case of judging "bishops in penal matters." But regardless of which kind of case he considers, removal of a bishop from the clerical state, and not just from office, is an extremely serious action, something that hasn't happened for centuries.

Okay, so, maybe it's time it did.

Update, same day: A number of readers have asked about the import of the letter of Giovanni Battista Re asserting, among other things, that the removal of a bishop from the clerical state is impossible. This letter, standing alone, is insufficient to prove that point, however, if only because it was written in response to Bp. Lugo's petition for voluntary removal from the clerical state; Re's letter would not preclude the pope from imposing dismissal, in poena or otherwise.

As for folks confusing the clerical state, which can be lost, with the indelible character of holy orders, which can't be lost, consulite auctores probatos.

Hey, who wants to see a concise video report on this case that gets almost every technical term correct? Check out http://www.h2onews.org/_page_videoview.php?id_news=609&lang=en.

+++

POST TWO: How utterly ironic.

I had intended the above title, about the "two Canon 1405 cases" to refer to two possible applications of Canon 1405 in the one case of Bp. Fernando Lugo. But now I see another news item that would involve, of all things, Canon 1405 for a second, completely separate, time.

I refer to Richard Sipe's denunciation of, among others, Theodore Cdl. McCarrick (ret. Washington) on the grounds of sexual misconduct. I know next to nothing about Sipe, but his statement leaves little room for nuance: "I know the names of at least four priests who have had sexual encounters with Cardinal McCarrick. I have documents and letters that record the first hand testimony and eye witness accounts of McCarrick, then archbishop of Newark, New Jersey actually having sex with a priest, and at other times subjecting a priest to unwanted sexual advances."

The same Canon 1405 I referenced above reserves solely to the Roman Pontiff the right to judge all cases involving cardinals and, in penal matters, bishops. Under either heading, let alone both, the only person authorized to investigate, and if warranted judge, Sipe's allegations, is the pope. No ecclesiastical authority may move on this matter without the consent of the Roman Pontiff.

I do think, however, that in conscience, (though not by canon law given the abrogation of 1917 CIC 1935.2), Sipe is bound to send to the Holy See all the information he has about these matters, and not wait to be asked for it.

posted by Dr. Edward Peters at This Permanent Link

Sunday, April 13, 2008

My parents' gift to my children

Yesterday my children received a very unusual gift: their grandparents (on my wife's side) celebrated 50 years of marriage. Two years ago, my own parents marked their 50th wedding anniversary, meaning that my kids can now boast something very few in their generation will ever know: the good fortune having both sets of grandparents married for over 50 years.

Grandparental death or divorce deprive most children today of seeing Golden Anniversaries celebrated in their families, that is, of knowing two people who made it through five decades together. My kids now know two couples who did so.

Neither my parents nor Ang's would claim that every day was wine and roses, or that they never faced difficulties, or that they never wondered at times how they'd get through even one more day. But that's precisely the key to understanding the example, the legacy, they have left us: They've showed us that things don't have to be perfect to be good. Very good.

For the goodness that Nade & Nancy and Anthony & Joan have shown my children, I am grateful. And I can't help noticing that, in celebrating their lives together, they couldn't help giving us all something to celebrate as well. Why?

Because that's the way real Love is. It just can't help sharing.

posted by Dr. Edward Peters at This Permanent Link

Thursday, April 10, 2008

Screamingly bad Latin, not to mention bad reporting, from The VOA

The Voice of America boasts of being "A trusted source of news and information since 1942". Oh, really?

VOA's Jeff Swicord drew an admittedly crummy assignment: reporting on the latest shenanigans put on by the "woman priest" crowd. But what should have been a routine serving of empty drivel went l.o.l. funny when Swicord attributed to an Opus Dei priest the following comment on the maleness and the priesthood: "'The church teaches that he [the priest] does this in what is called insomnia nomini Christa, that he does this in the name and the person of Jesus,' says [Fr. Arne] Panula. Jesus was male."

A priest acts "insomnia nomini Christa"? That is screamingly funny. It doesn't mean a thing, folks. The closest I can get is "lack of sleep to/for the name Christina".

But apparently it's not just Opus Dei priests who don't know Latin, it's lady priestettes too: Writes Swicord: "Meehan disagrees. 'A priest is suppose to be in personi Christa,' she says. 'That does not mean taking on male identity.'"

Okay, maybe Father Bridget Mary meant to say "in gobbledy-gook Christina" but I'll bet she didn't; she knows the Latin phrase here is "in persona Christi", which correctly translates as "in the person of Christ."

Maybe Swicord never heard the phrase before (making one wonder how he was assigned to this story in the first place). But since when are reporters, after hearing a technical expression from two interviewees, allowed to simply guess at its spelling? And then to guess it into oblivion? Sheesh.

Now do you see why we never tire of telling Catholics, and the world, that the secular press is laughably incompetent at religious news reporting?

+++

According to the standards above, don't be surprised if the VOA reports the Marine motto "Semper fidelis" to be "Simper fiddles", or if the US Seal "E pluribus unum" comes out "Deploribus moon'em", or if the Olympic motto "Citius, Altius, Fortius" comes out "Citrus, insomnia, forceps."

posted by Dr. Edward Peters at This Permanent Link

Thursday, March 27, 2008

Proposal: Impose excommunication for euthanasia

For some months I have been researching and writing an article on euthanasia in canon law. I hoped against hope that it might remain an academic exercise, but (to judge from, say, this report on the practice of euthanasia in Belgium) the speed with which the Western, specifically Christian, protection of innocent life is collapsing suggests that one of my projected canonical recommendations deserves an earlier hearing than appearance in a peer-reviewed journal can afford.

Simply put, I recommend that euthanasia be made an excommunicable offense under the 1983 Code of Canon Law.

Briefly, my article will demonstrate, among other things, the following points:

1. Euthanasia, correctly understood, is unquestionably repudiated by the Catholic moral tradition (CCC 2324 and 2377) and is regarded by the canonical scholarly tradition as a species of homicide.

2. Canon 1397, which subjects those committing "homicide" to "a just penalty", can be invoked against euthanasia, but both the definition of the delict and the scope of the penalty require specific elaboration for each particular case.

3. The contrast between the canonical treatment of abortion (which is explicitly condemned and made punishable by excommunication under 1983 CIC 1398) and that accorded euthanasia (only implicitly condemned and punishable but indeterminately), can no longer be supported: the same factors that lead to the canonical criminalization of abortion (namely, widespread abandonment by states of their duty to protect innocent human life before birth which occurred in the 1970s and 1980s, when the new penal canons were being formulated) are presently underway in regard to innocent human life at other stages. The Church therefore must proclaim and, within the limits of her authority, must protect what the State has forgotten and repudiated, namely, the inherent value of innocent human life regardless of age.

4. Eastern canon law already expressly makes homicide an excommunicable offense (CCEO 1450.1). Besides showing that the excommunication of murderers is plausible, this canon suggests that Western Christians (among whom euthanasia is more widespread) should not be treated more leniently than their Eastern brethren for the same offense.

Note that Eastern canon law has done away with latae sententiae (automatic) sanctions (CCEO 1402). I completely agree with this trend, and recommend that the excommunication proposed for euthanasia under western law be imposable only ferendae sententiae, that is, by a formal process only (1983 CIC 1314, 1342, and 1425).

Excommunication is the gravest sanction in Church's legal system. It is reserved for the most grievous offenses, but especially, I suggest, for those wherein the aid of the state in upholding important values cannot, for whatever reason, be secured. Euthanasia in every way fits the description of an offense that warrants excommunication, and Eastern Catholics already face excommunication for it. It's time Western Catholics were treated with the same kind of tough-love, and time once again that Church law, as it has done so often in the past, show state law what's really important. +++

Read more about it: Edward Peters, Excommunciation and the Catholic Church (2006) esp. pp. 33-35; Interview with Dr. Peters on excommunication by Carl Olson (November 2006); E. Peters, "Church law and euthansia: time to oil a rusty canon?" Lay Witness (Jan-Feb 1997) 13, 27; and E. Peters, "Excommunication: wave of the future?" National Catholic Register (July 1996) 6.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, March 26, 2008

Steven Sueppel should not be granted an ecclesiastical funeral

One of the reasons we have rules is to help us guide our decision-making when circumstances make it difficult to think clearly. The horrific murder of the Sueppel family by their husband-father Steven, who then finally succeeded in killing himself, is nothing if not a difficult circumstance. My read, in any case, of 1983 CIC 1184.1.3, in light of the gruesome facts of this case, leads me to conclude that Steven Sueppel should be denied ecclesiastical funeral rites.

Assuming the accuracy of the press reports, there is no doubt that Steven Sueppel offered no "sign of repentance" (as opposed perhaps to expressing some regrets in a note) for having just murdered, barbarically, his wife and four young children. There is no doubt whatsoever that Steven Sueppel offered no "sign of repentance" before killing himself (on the third try). Because Canon 1184 does not require us 'to read the soul' of someone, but instead focuses our attention on observable actions, there is, in my opinion, no doubt but that Steven Sueppel's actions qualify him as "a manifest sinner" who in turn "cannot be granted [an] ecclesiastical funeral without scandal for the faithful."

It is common place to observe that the 1983 Code no longer automatically denies ecclesiastical funerals to those who commit suicide (See, e.g., Cox & Griffin, "Canon 1184", 1997 Roman Replies & CLSA Advisory Opinions at 85-86, and 1917 CIC 1240.1.3); this approach makes good sense, for suicide typically seems to involve some form of grave mental or emotional deficit which can be seen as mitigating the culpability one might otherwise incur for murdering oneself.

But murder-suicide, indeed as here, mass murder-suicide, seems different to me. On the last day of this life, the embezzler Steven Sueppel became a mass murderer. If such behavior is not "manifest sin", what behavior would be?

We can, and should, pray for Steven Sueppel; indeed, Mass can be offered for him (1983 CIC 901). But he should not be accorded the Church's final liturgical and sacramental commendations; not, I think, if the canons on ecclesiastical funerals mean anything close to what they seem to say. +++

1. Read an extended study of Canon 1184 by Dr. Peters. 2. Who is the final authority over the funeral question? The ordinary of the diocese concerned (1983 CIC 1184.2). Could one reach a conclusion different from mine? Sure, but on the facts as known by me, I would have to disagree.

Update: Erin Jordan, "Faithful question church funeral for killer", Des Moines Register (5 May 2008).

posted by Dr. Edward Peters at This Permanent Link

Monday, March 24, 2008

Canon 277: "celibacy" and "continence" are different things

The sad case of Zimbabwe Archbishop Pius Ncube, who was the only credible opponent of Thug-in-Chief Robert Mugabe, is the occasion to try to remind people that Canon 277 of the Johanno-Pauline Code establishes two related but distinct obligations for clerics in the Western Church, namely, celibacy and continence. As an archbishop, Ncube was bound both to refrain marriage (celibacy) and to refrain from sexual relations with anyone (continence). Ncube has admitted to having sex with a woman (a married woman, as it happens); therefore he has admitted to violating the law of continence; he has not attempted marriage with this woman, and therefore he has not violated his promise of celibacy.

Nevertheless, every single press report I have seen on this case alleges that Ncube violated his promise of celibacy! Not one of them claims he violated the law of continence. This is the opposite of what they should be saying.

posted by Dr. Edward Peters at This Permanent Link

Sunday, March 16, 2008

Consider Latin as an avocation, if not a career. Really.

This from Tore Janson, A Natural History of Latin (Oxford, 2004) at 122: "Thanks to the work of many generations of paleographers and textual critics we now have all the ancient texts in printed editions which are both easy to read and more correct than any of the surviving manuscripts. This is not, however, the case with texts from the Middle Ages, since there are many more of them [i.e., 100,000s] and they have attracted much less interest from Latin specialists. Many of them, even ones that are well worth reading, have been published using only one manuscript that happened to be to hand, even though much better manuscripts may exist. Many more texts have not been published at all, but are waiting in libraries for someone to read them and prepare an edition. There is a limitless amount of valuable work waiting to be done by those who would like to devote themselves to Latin and the Middle Ages."

Think about it. +++

Read more about it: Dr. Peters' Ecclesiastical Latin pages

posted by Dr. Edward Peters at This Permanent Link

Friday, March 14, 2008

Abp. Burke's excommunication of the "women priests"

I would like to say that Abp. Raymond Burke's excommunication of three women who recently participated in a pseudo-ordination in Saint Louis is a "text-book illustration" of how (non-judicial) excommunication is supposed to be applied in the Church today, but I can't say that: Why not? Because Abp. Burke's attention to juridic details and his provisions for the pastoral care of the people entrusted to his care so exceed what the textbooks teach, that it is the textbooks that must copy from him, not him from the textbooks.

The four-page decree of excommunication deserves to be read in its entirety, but I'll summarize the sanctions themselves, for they are quite interesting.

1. All three women (Fresen, Hudson, & McGrath) are declared to have incurred latae sententiae (automatic) excommunication under Canon 1364.1 for schism. The consequences of excommunication are set out in Canon 1331.2.

2. All three women are also declared to have incurred ferendae sententiae (formally imposed) interdict under Canon 1371.1 for pertinaciously rejecting a definitive truth of the Faith (namely, that women cannot be ordained priests) subsequent to a specific warning to avoid such conduct. The consequences of interdict are set out in Canon 1332.

3. One of the women (Fresen) is declared to have incurred ferendae sententiae excommunication under Canon 1379 for simulating a sacrament other than the Eucharist or confession (here, holy orders). The consequences of excommunication are set out in Canon 1331.2.

Some observations:

A) Burke avoided a one-penalty-fits-all-crimes approach; different offenses (schism, pertinacious rejection, and simulation) were punished differently (excommunication, interdict, and excommunication respectively). His hands were basically tied in regard to the penalty for schism, but for pertinacious rejection he chose a sanction less severe than excommunication, namely interdict; he went back to excommunication, however, on Fresen for simulation, I'm thinking because she pretended to be a bishop conferring holy orders instead of, say, pretending to be a priest conferring anointing of the sick.

B) Each of the women is free to repent without the cooperation of the others; indeed it even seems possible, however unlikely, for them to repent of just one or two of the crimes and be reconciled in regard to that/them only. How so? Well, for example, Fresen could say "I still believe that woman can be ordained, but I sincerely regret taking the issue into my own hands and conferring what I think are holy orders, and I promise not to do it ever again." She would have a good chance of being reconciled at least on that charge, I would think.

C) If the women take recourse against the penalties (my guess is they will, as others have done before them) the enforcement of the sanctions will be suspended per Canon 1353. I personally think this is an overly generous provision of canon law (indeed, an innovation over 1917 CIC 2243.1) in regard to those who have already been found guilty of grave crimes, but Abp. Burke would certainly honor it.

D) While Abp. Burke's specific notification not to distribute Holy Communion to the three women was only published in Saint Louis (the limits of his jurisdiction), it applies throughout the world to anyone who comes into knowledge of the excommunications and interdict. Canon 915.

Burke's action also indicates, by the way, where he stands on an interesting canonical dispute, namely, whether canons that authorize "a just penalty" (e.g., cc. 1371 and 1379) can be enforced by censure (e.g., excommunication). I've always held that they could. Nice to know I'm in good company.

I need hardly add that the faithful may, and in charity should, join Abp. Burke in praying for the reconciliation of all three women. Might I suggest, in that vein, seeking the intercession of St. Hippolytus, the some-time antipope who later reconciled with the Church and died a martyr's death for her about 235. Miracles happen. +++

Read more about it: Excommunication and the Catholic Church (Ascension 2006)
See also Dr. Peters' Excommunication Blotter

A few other points.

1. Abp. Burke's line about "any of the Sacraments attempted to be celebrated by [these women] are utterly null and void" should be understood as applying to sacraments whose celebration is reserved to the priesthood which these women wrongly claim to possess; as these women are still lay persons, of course, they could still, strictly speaking, validly perform baptism, and for that matter enter marriage, albeit gravely illicitly.

2. The use Abp. Burke made of Canon 747.2 I thought was very insightful. That provision is usually understood to be oriented ad extra as a defense of the Church's right to speak out on social affairs. Abp. Burke's invocation of it in this case reminds us that Church leadership must also look to their own houses and not neglect their charges to comment on others'. Part of Abp. Burke's credibility when he speaks on social issues arises, I think, precisely from his willingness to make hard decisions within his own community.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, March 12, 2008

Letter to the Ottawa Citizen re Abp. Prendergast

Newspapers can't run every letter to the editor they get, but thanks to the internet, rejected missives have a second chance to see the light of day.

On Saturday, March 8, 2008, the Ottawa Citizen ran a story about Abp. Terrence Prendergast's statement concering pro-abortion politicians and reception of the Eucharist. As is typical of the secular press, however, the newspaper gave nearly as much time to the negative opinions of one Rosemary Ganley, coordinator of Canada's Catholics for a Free Choice, as if this lady knew enough about Church law and moral theology even to have an opinions worth pitting against those of the archbishop. Pace 1983 CIC 212.3.

Anyway, I sent a letter to the editor of the Ottawa Citizen and, three days having passed without its appearing it seems, I imagine it was not chosen for publication. Whatever. For those who might like to see it, I post it below.

Dear Editor:

Rosemary Ganley's ignorance of canon law seems no obstacle to her lecturing Ottawa's Archbishop Terrence Prendergast on it. No sooner does Abp. Prendergast announce, in some of the most measured language imaginable, that Catholic politicians who support abortion must be aware of the canonical consequences for their contrarian behavior, than does Ganley pronounce the prelate "to be on very shaky ground," allegedly because "There's nothing in [canon law] saying he could deny communion to people who are pro-choice."

Ms. Ganley is wrong.

Canon 915 states that Catholics who "obstinately persevere in manifest grave sin are not to be admitted to holy communion." Abp. Prendergast's statement shows that he is quite familiar not only with this canon, but with Church teaching on the inviolability of innocent human life and the responsibility of governments to protect the weak. Abp. Prendergast is simply moving to apply Church law in defense of principles that the Church proclaims.

Ms. Ganley's shallow claim that canonical consequences should only arise for things expressly reprobated in the Code of Canon Law cannot be taken seriously. Consider: selling drugs, running prostitution rings, or distributing pornography are not expressly scored in the Code, but I doubt that Ms. Ganley would come rushing to the defense of any Catholics excluded from holy Communion for publicly engaging in or advocating such activities.

That's because Ms. Ganley does not really care what canon law says about most things, she cares about promoting abortion. Unfortunately, she also knows that her views on abortion will garner at least as much attention as will those of a man whose education and office make him immeasurably more knowledgeable about Church teaching than Ganley will ever be, so she has little incentive to educate herself.

Edward N. Peters, JD, JCD
Detroit, MI, USA

posted by Dr. Edward Peters at This Permanent Link

Wednesday, March 12, 2008

Canonical conundrum no. 1

I thought I might, from time to time, post some interesting (well, to me anyway) hypothetical questions against which folks could test their canonical acumen.

FACTS: A Roman Catholic man wants to present himself for ordination to the permanent diaconate. He tells you that many years ago, he civilly married a divorced woman. They remained together for some years until she died of natural causes. He has not remarried, in the Church or out, since. He asks whether, in respect of his marital status, he is eligible for the permanent diaconate.

Q. 1. Do you need additional information to answer his immediate question?

Q. 2. If you do not need additional information, is he eligible for orders?

Q. 3. If he is not eligible, what option(s), if any, might he have to address that fact?

No hints, so don't ask. Answer in about a week. Good luck!

+++

R. 1. Lawyers are generally happy to have more information on cases, but here, everything one needs to know in order to respond accurately to the question has been presented.

R. 2. As things stand now, this man is ineligible for holy orders, including the permanent diaconate. Although not every invalid attempt at marriage renders a man "irregular" for orders under 1983 CIC 1041.4, an attempt at marriage (even a civil marriage, which is why one does not need to know whether the wedding was in the Church) with a woman who is already married validly renders the man "irregular" for orders. It does not matter that the wife is now dead; it is this kind of attempt at marriage that triggers an impediment, not the state.

R. 3. There is something the man could try. Notice that the irregularity for orders arises only if, inter alia, the woman is in a valid marriage. So, how does one try the validity of a marriage after the death of either spouse? One has resort to 1983 CIC 1675.1 which provides for the impugnment of marriage after the death of either (or both, for that matter) spouse if the question of its validity is important for the resolution of another controversy. Such is obviously the case here with regard to the man's eligibility for holy orders, and either the man or the promoter of justice could present the libellus (1983 CIC 1674). Naturally, all the requirements of law would still have to be met in adjudicating the case, but it could be filed.

As I have said many times before, the answer to a canonical question is seldom found within a single canon. Thus, it pays to know the whole Code.

posted by Dr. Edward Peters at This Permanent Link

Thursday, March 06, 2008

Repairing Fr. Bozek's sacramental blunders

Abp. Burke, once again, is showing us all how it's supposed to be done.

In a remarkable gesture of pastoral concern for his people, St. Louis Abp. Raymond Burke, who for some three years has been trying to effect the reconciliation of a renegade Polish priest named Fr. Marek Bozek, has alerted the faithful who might be approaching Fr. Bozek for sacramental services, that any attempts by Fr. Bozek to celebrate the sacraments of Confession (1983 CIC 966) or Confirmation (1983 CIC 882-883), or to witness the weddings of Catholics bound by form (1983 CIC 1108), are invalid, and that such Catholics may contact his office directly for assistance in securing these sacraments validly and licitly.

I'll be discussing Fr. Bozek's situation, who as of today is officially careening toward dismissal from the clerical state, with Al Kresta today, starting about 4:20 pm Eastern, on WDEO AM 990 in Detroit / Ann Arbor, or listen live here. Related posts: 20 December 2005; Blog Archives 2006, scroll to December 26; Te Deum Laudamus, 19 March 2008.

posted by Dr. Edward Peters at This Permanent Link

Tuesday, March 04, 2008

Seton Hospital must vigorously resist mutilation surgery

Seton Hospital in Daly City CA, administered by the Daughters of Charity, is being intimidated into performing immoral surgery. This Catholic hospital, in the face of civil litigation, appears to have backed down from its originally correct refusal to allow "breast-implant" surgery to be performed on a male. It must now, upon deeper reflection, reverse its faulty decision and refuse the surgery.

Catholic moral teaching generally condemns mutilation where it is intentionally performed against otherwise healthy body parts. CCC 2297, J. Lynch, "Mutilation", New Catholic Encyclopedia 10: 145-146 (1967), and P. Palazzini, "Mutilatio", Dictionarium Morale et Canonicum III: 334-335 (1966).

Canon law makes it a crime for Catholics to commit mutilation. 1983 CIC 1397. See also 1983 CIC 1041, n. 5. Accomplices to canonical crime are liable to punishment under 1983 CIC 1329.

In my opinion, "breast-implant" surgery performed on one born a male constitutes mutilation. If my opinion is correct (and it is, but others will want to verity that for themselves) Seton Hospital should vigorously defend against its being forced to perform or facilitate this immoral surgery. Free exercise and freedom of conscience arguments seem applicable here.

Related post: Ashley's treatment was a travesty (5 Jan 2007).

posted by Dr. Edward Peters at This Permanent Link

Monday, March 03, 2008

Asserting a canonical defense is one thing; proving it another

Dennis Riccitelli, a priest* from Arizona, is facing state prosecution for alleged theft and/or fraud against his former parish, Holy Cross (Mesa). But Riccitelli is trying to raise canon law (specifically, norms on the administration of ecclesiastical property) as a defense to his state prosecution. His canonical argument got the trial judge's attention, as it should. It also has prosecutors worried; but it shouldn't.

Riccitelli's case might not be an ideal one through which to encourage, even on a small scale, civil law to recognize, where appropriate, the relevance of canon law in American law and society, but it's preferable, I think, to its serving as an occasion to repudiate entirely civil consideration of canonical arguments. With all the usual caveats about commenting on stories reported in the secular press, let's see why.

Defendants in state criminal cases sometimes raise what are called "affirmative defenses", that is, arguments that their conduct, though apparently in violation of criminal law, was justified by something not mentioned in the law. A common example would be that a speeding ticket should be dismissed because a father was rushing his pregnant wife to the hospital. There is no "pregnant wife" exception in the motor vehicle code, but a defendant would probably be allowed to offer those facts as an affirmative defense (here, "necessity") to avoid a speeding conviction. A judge/jury might or might not accept the argument (the burden usually lies on the defendant to prove affirmative defenses), but generally a defendant is allowed to raise it.

Similarly, an officer of XYZ Corp who makes expenditures that appear to be in violation of, say, state laws about fiduciary duties to the corporation, could argue that, under the by-laws of XYZ corporation, such odd expenditures were in fact permitted. Again, he might fail to prove his claim, but it's a plausible defense and generally should be heard. So in this case, Riccitelli is claiming that canon law authorized him as then-pastor to spend parish money in ways that appear to prosecutors (and to the Diocese of Phoenix, for that matter) to be criminal.

It seems to me that Riccitelli should be allowed to raise canon law as a possible defense, for indeed, he was supposed to be administering parish property in accord with canon law (1983 CIC 532). For a judge to allow a canonical affirmative defense is clearly not tantamount to opening the door to prosecuting people for violating canon law or sharia or anything else; Riccitelli is being charged with violating Arizona law, not canon law. The judge, Hon. Silvia Arellano, seems to understand this, as do the appellate courts of Arizona.

At the same time, though, if the facts alleged in the media are borne out, prosecutor Barnett Lotstein probably has little to fear from this defense: no matter what Riccitelli might claim, canon law does not allow pastors to treat parish assets as their own property (1983 CIC 1256, 1281-1289) nor to enrich themselves at parochial expense. Canons 282 and 285-286 instruct clerics to shun ostentatious lifestyles and to avoid engaging in personal business transactions without the permission of the ordinary. And Canon 1344, n. 2, takes for granted that some canonical crimes are also civil crimes for which offenders might be prosecuted and punished by the state. In short, my guess is that a canonical expert would have an easy time refuting Riccitelli's apparent claim that canon law let him spend parish money any way he wanted, leaving a state prosecution of Riccitelli to stand or fall on the merits of the case. Plus, the possibility of examining canonical issues in other state cases where it might be relevant, nay possibly vital, would be neatly served.

The respect that canon law accords civil law (e.g., 1983 CIC 22) should be reciprocated. I am aware of the pitfalls awaiting those who venture the path between Church and State, but history has shown the passage to be possible. When properly followed, it can be of great benefit to the subjects of both legal systems.

*Some media sources describe Riccitelli as a "former pastor" others as a "former priest". Riccitelli's canonical status is not relevant to this topic of this post.

posted by Dr. Edward Peters at This Permanent Link

Friday, February 29, 2008

The rules on baptism are meant to be followed

When, back on 2 December 2004, I blogged about "Brisbane's Bad Baptisms", I got an unusual number of nasty notes from folks who (assuming they agreed with my point that baptism in the name of the Creator, and of the Redeemer, and of the Sanctifier was invalid, and many did not agree), nevertheless took umbrage at my conclusion that those undergoing such rituals were not, in fact, any kind of Christian (pace the archbishop there), and that such persons, to be Christian, let alone Catholic, needed to be absolutely (not conditionally, pace 1983 CIC 869.1) baptized anew. "It wasn't their fault they were baptized invalidly," wrote one unhappy reader, "how can you deny them the grace of God because of something they didn't do?" Like, you know, I decide who gets God's grace and who doesn't.

Today, the Congregation for the Doctrine of the Faith announced its ruling that any 'baptism' attempted "in the name of the Creator, and of the Redeemer, and of the Sanctifier" (or, to take another silly variation, "in the name of the Creator, and of the Liberator, and of the Sustainer") is invalid, and that persons who received such 'baptisms' . . . "have, in reality, not been baptised [and must] . . . be treated for all canonical and pastoral purposes with the same juridical criteria as people whom the Code of Canon Law places in the general category of non-baptised."

I won't say that it feels good being shown right by an "authentic doctrinal declaration" from CDF, but it sure beats being shown wrong.

Anyway, sacraments are pretty tough things, designed by Christ to be administered even by fallen people. But sacraments have rules, instilled by the Lord, that must be followed. When his rules aren't followed, real people miss out. So let's get these folks baptized as Christ directed, and get back about the task of spreading his Good News as Jesus would have it spread.

Update: 07 March 2008. Neil Hickey's on-line article about this topic for couriermail.com.au is full of errors, some of which appear attributable to Brisbane Chancellor Fr. Jim Spence. First, these baptisms were not just "illicit" or "illegitimate", they were invalid; second, that means these baptisms did not happen; third invalid baptism renders null any subsequent attempt to receive a sacrament. How these repeated errors can still be in circulation utterly escapes me.

posted by Dr. Edward Peters at This Permanent Link

Thursday, February 28, 2008

What's with all this "defrocking" lingo?

Suddenly, it seems, "defrock" is the in-word.

Karoun Demirjian writes that the Rev. Donald Maguire, sj, has been "defrocked" by the Vatican. Jeannette Cooper writes that Fr. Marek Bozek faces "defrocking" for disobedience to Abp. Raymond Burke. Erin Jordan writes that the bishop of Davenport wants to "defrock" Fr. Gerald Stouvenel. What with all this "defrocking" going on, one might even start to think that the word means something. Well, it doesn't; at least, it sure doesn't mean what these journalists think it means.

Notwithstanding that it can be found in some secular dictionaries to describe removing an ordained man from the clerical state, the word "defrock" is not correct usage in Catholic circles; Catholic writers, if no else, should know that.

Under the Pio-Benedictine Code there was a penalty called "deprivation of ecclesiastical habit" that could be imposed on a cleric and which, besides prohibiting him from dressing as a cleric, could also cost him certain other clerical rights (1917 CIC 2298). But this penalty, sometimes loosely called "defrocking", was distinct from, and obviously less serious than, dismissal from the clerical state (technically known in those days as "degradation"). And dismissal, I assume, is what these journalists think they are discussing, no?

In their English-language dictionaries of canon law, Taunton (1905), Trudel (1919), and Lydon (1934) did not use the word "defrock" even to describe deprivation of clerical garb, let alone to mean dismissal from the clerical state, nor is "defrock" used in either sense by the Catholic Encyclopedia (1912-1917) or the New Catholic Encyclopedia (1967). Indeed the only Catholic encyclopedia I know of that has an entry for "Defrocking" is the excellent one published by Our Sunday Visitor (1991, 1998) wherein the word is scored as "a common but incorrect term that often refers to the reduction of a cleric to the lay state."

Since the advent of the Johanno-Pauline Code in 1983, the correct phrase to denote the most severe expiatory penalty the Church can impose on a deacon, priest, or bishop is "dismissal from the clerical state" (1983 CIC 1336.1, n. 5). Even the term "laicization", used for a while after Vatican II to soften the harsh rendering of Latin's degradatio as "degradation", is generally avoided today as it seems to imply that the lay state itself is some sort of punishment.

In short, enough with this "defrocking" lingo. These men are facing, or have already undergone, dismissal from the clerical state. Catholics know what that means.

Read more about it: There is a good dissertation on this topic, Joseph Shields, Deprivation of the Clerical Garb, Canon Law Studies No. 334, (Catholic University of America, 1958) that will help one sort out, say, temporary versus permanent deprivation of clerical garb, and how both sanctions were assumed, or not, in various related clergy penalties such as "deposition" and "degradation".

And this I have to see: "Le defroque" (Joannon, 1954). (Thanks to a long-time Canon Law Blog reader!)

posted by Dr. Edward Peters at This Permanent Link

Tuesday, February 26, 2008

Feuerherd's curse cannot be ignored

To wish damnation on an individual or a group is to wish on them the absolutely worst fate conceivable: separation from God forever. CCC 1035. Catholics possessed of even a rudimentary catechesis know that one cannot invoke upon a human being any greater calamity than damnation, and that it is never licit, for any reason, to wish that another person be damned.

On February 24, National Catholic Reporter correspondent Joe Feuerherd, writing in the Washington Post, expressed his desire to see the bishops (of the United States) literally damned before he would fail to vote Democratic this Fall.

Feuerherd's words of contempt were not shouted in a heated argument wherein, say, a lack of time for reflection or "anger hormones" might mitigate one's culpability for uttering invectives. No, Feuerherd's curse, "the bishops be damned", was expressed in cold, deliberate, prose intended for maximum effect in a prominent national publication.

Now, Canon 1369 of the 1983 Code of Canon Law states that "a person who . . . in published writing . . . expresses insults or excites hatred or contempt against religion or the Church is to be punished with a just penalty." Canon 1373 states that "a person who publicly incites among subjects animosities or hatred against the Apostolic See or an ordinary because of some act of power or ecclesiastical ministry . . . is to be punished by an interdict or other just penalties."

I believe Feuerherd has gravely violated both of these canons.

The penalties for violating either canon are preceptive (puniatur); Feuerherd's public expression of contempt for the souls of the bishops occurred in the Archdiocese of Washington, although other venues afford jurisdiction for the case (CIC 1408, 1412); and every potential penal case begins with preliminary investigation (CIC 1717). However much American bishops as individuals might willing to forgive Feuerherd on a personal level, they must also assess this terrible incident as Successors of the Apostles, that is, as men entrusted with a precious and holy office not of their making, but in their care.

I hope these matters will be considered with alacrity; in the meantime, we can pray that Feuerherd retracts the surpassing invective which he has directed toward the bishops of America.

Updates: Catholic News Agency, 27 Feb 2008; USCCB's Sr. Mary Ann Walsh, 27 Feb 2008;

posted by Dr. Edward Peters at This Permanent Link

Friday, February 01, 2008

Caveat lector: Fr. Maciel was not "suspended"

The death of Fr. Marcial Maciel Degollado occasions revisiting the numerous accusations of sexual misconduct made against founder of the Legionaries of Christ over the years. These accusations culminated in a 2006 investigation by the Congregation for the Doctrine of the Faith, which dicastery declined, however, to subject the elderly Maciel to a canonical trial and instead decided "to invite [Maciel] to a reserved life of prayer and penance, renouncing every public ministry." The analysis I offered at the time of that unusual directive from CDF still stands.

Precisely in light of that analysis, I would caution against describing Maciel having been "suspended" or "penalized" by the Holy See. Under canon law, and in contrast with civil usage, suspension is a penalty imposed on those found guilty of certain crimes (1983 CIC 221, 1319, 1333, 1400-1401). Make of CDF's directive what one will, but Maciel was not tried and was not found guilty of any crimes; it is, therefore, not accurate to describe him as "suspended" or "penalized".

posted by Dr. Edward Peters at This Permanent Link

Wednesday, January 30, 2008

Brazilian excommunication warning

LifeSite News reports that: "Brazilian Archbishop Jose Cardoso Sobrinho has condemned a plan by Recife city officials to distribute the morning-after pill during the upcoming Carnival festival and has warned that those who use the pill are subject to excommunication. 'This policy is wicked and immoral, and in this case, both those who use it and those who incite its use are committing a crime punishable by excommunication,' Archbishop Cardoso said."

The city policy is, in my opinion, unquestionably wicked and immoral (CCC 1910, 2273, 2377). But whether those who use, or incite the use of, this pill are committing an excommunicable offense depends on, among other things (e.g., 1983 CIC 1323-1324, 1329), whether an abortion is actually procured thereby (1983 CIC 1398).

If the 'morning after pill' works by preventing ovulation, it is contraceptive; if it works by preventing implantation, it is abortifacient. Only the latter, but certainly the latter, provides a basis in canon law for excommunication. See my blog post "Excommunication for deliberate embryo destruction" (29 June 2006). +++

See also my Excommunication Blotter, updated regularly.

posted by Dr. Edward Peters at This Permanent Link

Monday, January 28, 2008

Sports writers: a parallel magisterium?

For many like me, the term "sports writer" conjures up the image of a high school athletics star who, after playing so-so in college and never making it to the pros, parleyed a certain facility with words into getting paid to watch other people (most of whom would never make it to the pros either) play games. What we never realized, it seems, was just how many sports writers apparently spend all their free time studying moral theology, canon law, and the history of religion in public life. Yet, just look at how many sports writers feel qualified to publish opinions applauding the abortionism that St. Louis University basketball Coach Rick Majerus is publicly and defiantly maintaining against his Archbishop Raymond Burke.

But folks, after reading a raft of pep rallies published for Coach Majerus over the weekend, I've reached a conclusion: if sports writers are really qualified to parse Catholic moral theology and ecclesiastical discipline against a world class theologian and canonist like Abp. Burke, then I'm more than qualified to coach college ball. Hey, I've watched some NBA All-Star videos, I saw "Hoosiers" (which, okay, wasn't about college basketball, but so what?),and people still talk about that right hand hook shot I made in the eighth grade basketball camp.

Laugh if you want, but that's about the level of ecclesiastical sophistication that sports writers are bringing to bear against Abp. Burke for his reaction to Majerus' support for abortion and experimentation on embryonic human beings. But let's be very clear about something here: Coach Majerus, not Abp. Burke, violated the wall of separation between Church and Sport, and now it's up to Majerus to repair the damage he did. In the meantime, the more his allies in the sports media try to defend the coach's blunder, the more they show themselves to be way, way out of their league.

One pernicious line being pushed by the sports media machine runs thus: It's unfair to rag on poor Majerus cuz, after all, he's just a hoops coach who was caught off guard with a trick question by the media. That's total baloney. Rick Majerus touts his Catholic education whenever it suits him, and he has dealt with, and even worked for, the media for many years. Though "just a coach", Majerus is probably the highest paid official at St. Louis University (good grief!), and he soon will be, if he is not already, the most nationally recognized name the university has.

If, therefore, anyone at a Jesuit educational institution needs to be called for reiterating public dissent from Church moral teaching, for supporting the canonically criminal acts of abortion and experimentation on embryonic humans, and for stiff-arming an archbishop who has called for a retraction, it's SLU basketball coach Rick Majerus.

Unless, that is, you also think that Abp. Burke is qualified to coach NCAA Men's Division I basketball. You know, just like I am.

+++

Some good sense from CWR's George Neumayr.

posted by Dr. Edward Peters at This Permanent Link

Friday, January 25, 2008

Does Coach Majerus really think he can out play Abp. Burke?

I'm not making this up.

Jesuit-run St. Louis University's basketball coach Rick Majerus (yes, a basketball coach) is telling St. Louis Archbishop Raymond Burke (yes, the canonist archbishop), to mind his own business regarding Majerus' outspoken support for (get ready for it) abortion and experimentation on embryonic humans! If it weren't that expressing support for such deeply offensive conduct is so deadly serious, I'd be laughing.

Majerus boasts a long career in lefty politics going back to the 1960s, so maybe that's why he apparently never noticed that the Second Vatican Council, in its only display of anger, denounced abortion as an "unspeakable crime" (GS 51). An unspeakable crime, folks, for which Catholics are liable to excommunication (1983 CIC 1398), which St. Louis University official Rick Majerus publically and repeatedly supports.

Majerus' claim that the "First Amendment right to free speech supersedes anything that the archbishop would order me to do" rated (sorry, I couldn't help it) an 8.5 on the laugh-out-loud scale. SLU's basketball coach should walk across the quad to SLU's law school and ask any second year student to explain the notion of "state action" before he asserts any more grandiloquently wrong theories about the law of Church and state.

And if Majerus thinks that the Post-Dispatch is on his side, he should think again. News reporter Bernie Miklasz opined "If Burke is expecting an apology or silence from Majerus, it won't happen" and "If Burke hopes Majerus will fall in line with the Roman Catholic church's official positions on these two issues, it won't happen." That's not reporting news, that's fanning the flames of conflict. The secular press loves to play "Let's you and him fight", especially when the 'him' is a faithful Catholic bishop. Majerus is walking right into it.

I'm going to assume that Majerus knows even less about canon law than he apparently does about Church teaching, constitutional law, and media management, and offer the following thoughts.

Update: Culling a variety of sources, it appears that Abp. Burke has said that he is prepared to withhold Communion from Majerus. Denial of Communion is not a sign that the archbishop doesn't like Majerus or that he disagrees with his political views. Rather, it would be a determination by a highly-educated, deeply-dedicated successor to the apostles of Jesus Christ that the coach's conduct is tantamount to obstinate perseverance in manifest grave sin per 1983 CIC 915. Such a serious situation would require immediate attention.

Moreover, Majerus had better not provoke Abp. Burke into ordering him by penal precept (1983 CIC 1319) to retract his public support for experimenting on and killing pre-born human beings. Should Majerus receive and refuse such a precept, sanctions up to and including formal excommunication are possible against the St. Louis University official. A busload of First Amendment citations won't protect Majerus against that kind of canonical sanction.

For that matter, Abp. Burke doesn't even need to resort to a penal precept if he doesn't want to, because Majerus' public advocacy of gravely immoral behavior and his use of the press to reiterate his horrible views have already placed him at risk for sanctions under 1983 CIC 1369.

Majerus still has time to get out of this mess, but probably not much time. Abp. Burke has considerably more experience defending Church teaching and enforcing ecclesiastical discipline than Majerus has experience dealing with principled stands by conscientious bishops. The last thing a SLU basketball coach should want is a certified letter from a determined archbishop whose office is just six blocks west of SLU's campus.

So I wonder, how far will things have to go before Majerus admits that maybe, just maybe, a 2,000-year-old Church founded by Jesus Christ knows more about the dignity of innocent human life than does Hillary Clinton?

How far? Only Majerus knows.

Edward Peters
SLU Class of 1979

posted by Dr. Edward Peters at This Permanent Link

Friday, January 25, 2008

The Code of Canon Law turns 25

The psalmist sings "Happy is the man . . . whose delight is the law of the Lord; on his law he meditates day and night." (I: 1,3). The Psalmist is right.

Twenty-five years ago today, Pope John Paul II signed the apostolic constitution Sacrae disciplinae leges promulgating the revised Code of Canon Law for the Roman Catholic Church. It is a marvelous achievement, all the more so, I suggest, because it was developed during one of the most intense periods of antinomianism the Church ever suffered.

Canonical experts gathered in Rome this week to explore the impact of the revised Code. I look forward to reading their presentations. For my part, in honor of the 1983 Code's birthday, I'm posting a dozen canonical questions that I would like to see addressed over the coming years. Not that there aren't cogent answers to these questions now. But, as any first-year canon or civil law student knows, all laws undergo a gradual but constant process of re-examination. Sometimes that process results in the reformulation of laws, sometimes it results in their reiteration. But either way, one usually comes away with a better sense of the values behind the law, and a better appreciation of how laws help us attain to those values.

My list:

1. Is canon law essentially a juridic or theological discipline? SDL 18.
2. How might tribunal sentences be accorded precedential value? cc. 16, 1608.
3. Can laity hold office in the Church? c. 129, 145.
4. Was Ordinatio sacerdotalis an exercise of the extraordinary magisterium? c. 749.
5. How is defection from the Church distinct from schism? cc. 751, 1117.
6. Can penitents release confessors from the seal? cc. 983, 1388.
7. Can deacons perform anointing of the sick? c. 1003.
8. Is every marriage of two baptized persons necessarily a sacrament? c. 1055.
9. Should canonical form be required for the validity of Catholic marriage? c. 1108.
10. Should latae sententiae penalties be eliminated from canon law? c. 1314.
11. Is retroactive obrogation of a statute of limitations a violation of justice? c. 1362.
12. Should canonists have to pass an independent exam prior to practicing? c. 1483.

These are some of the things I'll be thinking about in the future. Here's hoping I come to understand them better.

PS: The next time you pray the Fifth Joyful Mystery of the Rosary, where Mary & Joseph find the boy Jesus teaching the scholars what Law really means (Luke II: 46-47), please remember us canon lawyers in your prayers. Thanks!

posted by Dr. Edward Peters at This Permanent Link

Thursday, January 24, 2008

Argumentum pro: Laity can preside at certain liturgies

In the course of answering some questions about "presiders" at liturgies, Fr. Edward McNamara, LC, made an interesting, but I think controvertible, statement: "Only an ordained minister can, strictly speaking, preside at any liturgical act." That sounds inconsistent with the language used in several authoritative sources.

For example, the General Introduction to the Book of Blessings states "Blessings are part of the liturgy of the Church." (n.16). Now the Book of Blessings is replete with rites that may be conducted by lay ministers without the assistance of the ordained. Are these various rites of blessing "liturgical acts" when they are performed by the ordained, but not "liturgical acts" when they are performed by laity? The Catechism of the Catholic Church states "lay people may preside at certain blessings." CCC 1669, emphasis added.

The Catechism also states "The whole liturgical life of the Church revolves around the Eucharistic sacrifice and the sacraments." (CCC 1113). But if, say, a baptism licitly performed by an ordained man is a liturgical action over which he presides, would not a baptism licitly performed by a lay person also be a liturgical act (if perhaps one of lesser solemnity) over which he or she presides? 1983 CIC 230.3 states ". . . lay persons can also . . . exercise the ministry of the word . . . preside over liturgical prayers . . . confer baptism . . . ". Emphasis added.

Or again, recalling that the sacrament of marriage is celebrated by the spouses, is not the Rite of Marriage itself (not to be confused with a wedding Mass) a very common liturgical action presided over by laity? And even if we were to focus on the official witness of a wedding (who is typically an ordained man per 1983 CIC 1108), are weddings officially witnessed by ordained men liturgies, while those officially witnessed by lay persons per 1983 CIC 1112 are not liturgies?

Obviously, certain liturgies can only be presided over by the ordained. Even in those liturgies that can be led by laity, however, ordained presiders, being more closely configured to Christ the High Priest, bring to their role a greater disposition for liturgical ministry, they offer a more perfect sign of our communion with one another under a hierarchic governance, and they are usually permitted a greater degree of solemnity in the celebration of the liturgy than are lay celebrants.

But I don't see how any of those considerations require one to hold that only the ordained can preside at any liturgy, unless, that is, the term "presider" is being understood tautologically as "an ordained leader of a liturgy", in which case, though, it adds nothing to our understanding of liturgical leadership, and risks blurring recent recognitions of legitimate lay leadership roles in certain liturgical actions.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, January 23, 2008

Uta Ranke-Heinemann's alleged excommunication

Uta Ranke-Heinemann, the German theologian who in 1985 became the first woman to receive, and in 1987 the first to forfeit, a major chair in Catholic theology, is in the news again, this time using Cdl. Lehmann's announcement that he will step down as chairman of the German episcopal conference as the occasion to remind folks that she was a classmate of famous figures like Lehmann and Ratzinger. There's nothing new in her remarks; they are assessed elsewhere.

But I paused over Ranke-Heinemann's claim (at times, it sounds more like a boast) to have been excommunicated. I wonder, when exactly was that?

Granted that some of Ranke-Heinemann's views seem heretical per 1983 CIC 750-751, making her susceptible to automatic censure under 1983 CIC 1364, I find no record (cf. Acta Apostolicae Sedis, La Documentation Catholique, Canon Law Digest, etc.) that the Church's gravest penalty was formally declared or imposed against Ranke-Heinemann during her academic troubles. Given that the effects of automatic (latae sententiae) excommunication are lighter than are those for formal (ferendae sententiae) excommunication (1983 CIC 1331.2), one should not assume that Ranke-Heinemann labors under the latter when it's not even clear that she incurred the former.

Maybe Ranke-Heinemann should have been formally excommunicated (excommunication is, after all, a medicinal penalty per 1983 CIC 1312); and it's possible, but not very likely, that her bishop did so in an act to which the world was not privy. But, anyone who sees Ranke-Heinemann's loss of a theology chair as tantamount to an excommunication needs correction in that regard. Excommunication is a far more serious penalty.

But all of this underscores, I think, a deeper point still.

There are several legal and pastoral anomalies associated with "automatic" penalties in the Church, and prominent among them is that the operation of automatic sanctions in the Church inevitably focuses attention on the intricacies of canon law, instead of on the fundamental Christian values that canon law is meant to serve. That is rarely helpful. Formal penal procedures (preferably judicial, but even administrative, per 1983 CIC 1342) not only serve justice better in the Church, they give the appearance of serving justice better than do automatic sanctions. And that's an important good.

Happily, the modern trend (modern, though it started with Bl. Pius IX's ap. con. Apostolicae Sedis moderationi in 1869) against automatic canonical sanctions is gaining ground (see 1983 CIC 1314, and note that Eastern Catholic canon law has dropped automatic sanctions entirely per CCEO 1402). I suggest that we see in Ranke-Heinemann's touting of an excommunication that she might not have even incurred one more reason why formal penal processes, with published results, should be standard practice throughout the Church.

Read more about these issues: Edward Peters, EXCOMMUNICATION AND THE CATHOLIC CHURCH: STRAIGHT ANSWERS TO TOUGH QUESTIONS, Foreword by Bp. Thomas Paprocki (Ascension Press, 2006), ISBN: 1932645454.

posted by Dr. Edward Peters at This Permanent Link

Wednesday, January 16, 2008

Caveat lector: there really is no "functional laicization"

The Diocese of Phoenix is dealing with an unfortunate situation brought on by one Msgr. Dale Fushek. I know nothing about the case beyond what I've seen on-line, but the steps taken by the bishop seem reasonable to me. Still, a comment by diocesan spokesman Jim Dwyer concerning an associate of Flushek, one Fr. Mark Dippre, who abandoned ministry and married civilly a few years ago, caught my eye: "Dippre has never been formally laicized, Dwyer said, but the diocese considers him 'functionally laicized' because he has not been in ministry and has had no ties to the diocese for several years."

I think that kind of description is going to confuse people. Describing AWOL priests as "functionally laicized" or as "permanently inactive" or as "resigned from ministry", and so on, might seem more palatable to the public, but it masks a serious problem: none of those categories exist canonically, and easy resort to such labels, in my opinion, just puts off dealing with the problems.

There's only one way to enter the clerical state, namely, by reception of diaconal orders per 1983 CIC 266.1 which rite results in the "incardination" of cleric to a specific diocese or institute of consecrated life. If one has not received diaconal orders (need I say, validly?), then one is not a cleric. But once a man has entered the clerical state, there are only two ways out: by dismissal per 1983 CIC 290, 2, or by (voluntary or imposed) laicization under 1983 CIC 290, 3, either of which process results in the complete removal of the cleric from the diocesan or institute rolls.

Meanwhile, the alleged grey zone of "functionally laicized", etc., is not a zone at all; if a cleric has not been dismissed or formally returned to the lay state, he's still a cleric, with all the rights and duties of a cleric. Granted, those rights can be, and in problem cases increasingly are these days, restricted (per 1983 CIC 273, 1044, 1333, and 1722, to name some) but, as Rome has made clear, such restrictions do not alter the status of a cleric as a cleric. Even the emerging notion of clergy "administrative leave" needs to comply with, if not in name, at least the relevant substantive requirements of canon law lest a new category of clergy appear outside the normal parameters of Church law and discipline.

Besides plenty of good canonical reasons to treat clerics in accord with ecclesiastical law, civil law affords some others: when, for example, questions of negligent supervision of clergy arise, civil law can look to the canonical institute of incardination to connect a specific cleric to a specific diocese or institute. If, therefore, due to the recalcitrant behavior of a cleric, such supervision is not really being exercised, ecclesiastical superiors should consider whether it is wise to leave the impression that it is.

It's a case by case call, of course, but in the meantime, I don't see how labeling a problematic clergy situation as something it is not (indeed, as something by canon law that it cannot be) helps much. Instead, using more accurate terminology today will generally help us avoid confusion tomorrow.

Read more about these issues: Griffin, "Canon 1722", in 1988 CLSA Adv. Opin., 103 (favoring the more ambiguous status), versus Ingels, "Canon 1722", 2002 CLSA Adv. Opin. at 161, and Daly, "Canon 1722", 2003 CLSA Adv. Opin. at 104, (against ambiguous status).

posted by Dr. Edward Peters at This Permanent Link

Friday, January 11, 2008

Book notes: James Coriden, The Rights of Catholics

Dr. James Coriden, professor of canon law at Washington Theological Union, is a prominent American canonist. His publications address many topics in Church law and I have invoked his authority often in support of points I wished to carry. Having just read, however, his 2007 monograph The Rights of Catholics in the Church (a work intended for a popular audience), I think some comments are in order. While Coriden's treatment of several topics raises questions in my mind, I'll limit these remarks to two with special interest to me, annulments and pro-life.

Annulments

Coriden discusses a woman's plausible but faltering annulment case and wonders how the failure to secure a nullity declaration would impact her plans to marry another man (90-92). After noting that petitions can still be proven against uncooperative respondents, Coriden puts forward only one option in case the woman's petition fails: "She may be able to find a priest who will concur with her judgment that her marriage . . . was not valid, and who will witness her marriage even though she does not obtain an annulment from a tribunal." I think this is a terrible suggestion.

Canon 1066 states that "Before a marriage is celebrated, it must be evident that nothing stands in the way of its valid and licit celebration." Now, if an existing, presumptively valid marriage does not stand in the way of a subsequent valid or licit celebration of marriage, what does? Furthermore, Canon 1085.2 expressly forbids weddings "even if the prior marriage is invalid . . . before the nullity or dissolution of the prior marriage is established legitimately and certainly." If the kind of wedding being suggested by Coriden on these facts would not violate Canon 1085, what kind would?

That there are priests willing to collude in these certainly illicit and probably invalid weddings is scandal enough. But how a prominent canonist, in a popular treatise, could float that idea before the faithful without rejecting it or without at least warning them about its canonical and pastoral dangers, I cannot fathom.

Pro-Life

In his introduction, Coriden termed the right to life "the most fundamental right of all" (xii), but his actual treatment of several pro-life issues seems less robust.

1. Coriden describes a certain woman as "a lifelong and staunch Catholic but at the same time . . . strongly pro-choice" (96). At a minimum, using the terms "staunch Catholic" and "strongly pro-choice" to describe the same person requires, I think, some qualifications, perhaps along the lines of the failure of catechesis or the mystery of sin. Coriden suggests neither. But his ambivalent treatment of pro-abortion Catholics is not limited to parenthetical comments.

2. Coriden relates Agnes Mansour's rationalization for administering public funding of abortions in Michigan from 1983 to 1987, namely, that "even greater harm [would follow] if the funding was not available to the poor" (104). Of course, elemental moral theology on the obligation to form one's conscience correctly (e.g., CCC 1750-1756) could have refuted Mansour's attempt to defend her direct positive cooperation in objective grave evil, but Coriden did not offer it. Instead, writing as if Mansour were some sort of role model for women religious following their conscience, he concludes that, in eventually resigning from the Sisters of Mercy, Mansour "stood by her conscience, but at great cost" (104). What an odd lesson to draw from the Mansour episode. Coriden might have asked what cost the aborted babies of Medicaid mothers in Michigan bore for Mansour's conscience, but he didn't.

3. Coriden begins his discussion of Catholic lawmakers and embryonic stem cell research by noting that a wide range of opinions may be held by conscientious Catholics on many political issues, and by urging that differences be discussed in charity and with concern for the common good (84). He then turns to the issue of embryonic stem cell experimentation: "The Church opposes the destruction of innocent human life and the process of in vitro fertilization . . ." he writes. So far, so good.

But then we read: ". . . but there are genuine differences of opinion when it comes to the legitimacy and the wisdom of using federal funds for experiments on human embryos donated by couples who no longer need them for their fertility treatments." There are numerous problems here.

Who, I ask, within the pale of orthodoxy holds that it is ever permitted to "experiment" on embryonic humans? Assuming parents "need" embryonic children in the first place, how does their later not "needing" them render those children liable to experimentation? And since when are parents ever authorized to "donate" their children of any age for any purpose?

Coriden continues, "The embryos in question were obtained in efforts to conceive . . ." (what possible conclusion can flow from this premise? however they came to be, they are human beings now) ". . . and those not used will be destroyed in any event." This sounds like Katie Couric moral theology: because someone can, and probably will, destroy embryonic humans "for nothing", others may, and probably should, destroy them "for something".

"The embryos are human. . ." writes Coriden (though it would be better to say the embryos are humans), ". . . but were never implanted." Again, so what? How does one's place of residence or degree of dependence affect one's right to be treated as a human being?

Coriden asks "Is it permissible or prudent to use them in a search for cures for several serious diseases?" but does not answer his own question. So I will answer it: No, it is not permissible (and therefore it cannot be prudent) to experiment on embryonic humans unto death in a search for a cure to anything. In fact, the deliberate destruction of an embryonic human being places one at risk for excommunication for abortion under 1983 CIC 1398 and the authentic interpretation thereof dated 23 May 1988; see Canon Law Blog and scroll to 29 June 2006. Surely this major canonical aspect of embryo destruction should have been mentioned in a canonical discussion of the topic.

Some might call these criticisms of Coriden unfair; after all, they think, he is only asking questions. But even if I were to grant that Coriden is only asking questions (which I don't), I submit that it is irresponsible to ask certain kinds of questions today and not give them an immediate and correct answer.

Suppose, for example, that someone were to say, "Condemned prisoners are going to be executed anyway, so why not run experiments on them if it might help find cures for several deadly diseases?" but then not give an answer to that question. Surely, even to suggest that such a superficially intriguing, but ultimately gruesome, position is worthy of consideration, is to challenge the right of a class of human beings to not be treated as means to someone else's ends.

At some point, hypothetical formulations and rhetorical questions cease serving as attractive ways to introduce topics for consideration, and become instead vehicles for promoting the opinions of those placing them in conversation. It is the responsibility of those who such literary devices to make very sure that they are not misleading their audiences thereby.

Back in 1994, Russell Shaw, not a canonist of course, published a very good introduction to personal rights in the Church entitled Understanding Your Rights: Your Rights and Responsibilities in the Catholic Church. It is not listed in Coriden's short guide to further studies on rights (137-139), but I think Shaw's book is still well worth reading today. Meanwhile, despite his mastery of canonical sources, and notwithstanding his solid presentation of some topics (e.g., admitting homeschooled children to the sacraments at 105-107), the kinds of weaknesses in Coriden's latest work outlined above should be carefully weighed by those wishing to consult it.

Note: This review also appeared in Christifidelis 26/1 (15 March 2008) 3, 8.

posted by Dr. Edward Peters at This Permanent Link

Thursday, January 03, 2008

To best "accommodate the deaf", let's begin by getting to know them

posted by Dr. Edward Peters at This Permanent Link