My end-of-sabbatical project has been to reorganize my CanonLaw.info website and to get a Canon Law Facebook page set up for it. I’ll be putting on the Facebook page items that, while worthy of mention, I think, are not the stuff of which more formal blog posts are made. Today, for example, noting, with some demurral, the long-predicted papal pardon of Paolo Gabriele. Folks who want to follow the Canon Law Facebook page need to pop over there and LIKE it.

The website reorg and the new Facebook page are both part of the same project, namely, to make canon law better understood today and, from such better understanding, to make it more effective in its service to the Church.

I hope y’all find them helpful!

That we even have to go over this is . . . well . . . we have to go over it, so let’s.

The Archdiocese of Seattle has published four ‘policy refresher’ points regarding Catholic ministration in regard to “gay weddings”. Here are Seattle’s policies in bold and my suggestions as to underlying rationales for same in regular print.

1. No priest or deacon or lay minister may officiate at a same-sex “marriage.”

Before a wedding is conducted, “it must be evident that nothing stands in the way of its valid or licit celebration” (c. 1066).  Canon law defines marriage as the union of a man and a women (c. 1055 § 1). Because marriage cannot arise between two men or two women, something obviously “stands in the way” of the valid and licit performing a “gay wedding”. QED. By the way, Catholic officials who attempt nevertheless to perform such “weddings” are liable to punishment under Canon 1389 § 1 for abuse of office.

2. No church facility or school facility may be offered for such an event, even if it is to be witnessed by a non-Catholic minister or civil official.

This seems a sound application of, among other strictures, the moral prohibition against doing evil (CCC 1707), here, by rendering proximate material cooperation to objectively evil acts (by providing a venue for same sex couples specifically to hold themselves out as marrying).

3. No church facility or school facility may be used for a reception after such an event.

This seems to fall under, among other strictures, the moral prohibition against doing evil (CCC 1707), here, by rendering at-least remote, if not proximate, material cooperation to objectively evil acts (by providing a venue for same sex couples to celebrate specifically their holding themselves out as having married).

4. No church ministers, ordained or lay, may offer “wedding preparation” for such couples.

This seems to fall under, among other strictures, the moral prohibition against doing evil (CCC 1707), here, by rendering formal cooperation with objectively evil acts (namely, by instructing couples precisely in how to assume a status in the Church that they cannot assume, this by, in most instances moreover, their simulating a sacrament contrary to c. 1379).

Quid putatis, lectores?

Fr. Zuhlsdorf graciously reports that a priest-friend of his reports that Cdl. Burke says that Ed Peters is right in holding that attending one evening Mass does not suffice for two Mass attendance obligations. The cardinal’s remarks do not amount to an authentic interpretation of law, of course, and he prefaced them by saying that Fr. Z is “very good”, but that, as it happens, this time the canon lawyer is right. That’s no great compliment to me for, as I’ve said, the obligation to attend Mass is assessed canonically, while the choice of Mass texts, etc., is determined liturgically, and so we were, all along, playing by canonical rules, not liturgical.

Fr. Z was actually one of few the disputants to get that aspect of things right, it’s just that he just tripped over the canonical notion of favores ampliari. But others invoked it, too, and each time they did, I winced.

Remember the great flick Princess Bride, wherein Fezzini exclaims “Inconceivable!” several times, though never quite appropriately? Eventually his friend Inigo says “I don’t think that word means what you think it means.” That’s kinda the way I felt the last several days, watching folks invoke “Favores ampliari!” to bolster arguments holding one evening Mass on Immaculate Conception to satisfy both the requirements for Immaculate Conception and for the Second Sunday of Advent. Short story, I don’t think “Favores ampliari” means what some folks think it means, and I will set out why in due course.

Finally, while Cdl. Burke apparently thinks I am right, he also said of Fr. Z that “he’s very good”. Hmmm. Okay, I’ll settle for being “right”, but I’d rather be both “good” and “right”; so now I have to work on being “very good”.

Fortunately, I’ve got Fr. Z for a model.

This post will only be of interest to those following our discussions of the norms for satisfying back-to-back Mass obligations.

Two distinct questions have arisen here.

First Question. Can attendance at one Mass on the evening of Saturday, December 8, 2012, satisfy the obligation to attend Mass on Immaculate Conception and the Second Sunday of Advent? I say No.

Granted I am away from most of my go-to resources here, but from where I sit, I find one canonist (Waters) who says Yes (briefly, and for a reason I think demonstrably wrong) and one canonist (Huels) who says Maybe, for reasons one can take or leave.

Against them (again, I can only check some of my resources) stand yours truly, the GB & I Commentary, and now-Bp. Dunn for reasons I gave here and here, and then some. Dunn (and to some degree Huels) alert readers to replies given by the Cong. for the Clergy also seeming to answer the question with No, but I cannot put my hands on them from here, so I can do little more than mention them. Both Dunn and Huels note that such replies would not count as “authentic interpretations”. Still.

Now, I’m not counting noses (if I were, at this point it would be 3 straight-up No-s to one brief Yes and a Maybe) but I do want folks to know I take seriously the obligation to explore contrasting views, and will continue to do so, though not likely till next week at this point. One surprising thing: debates over this matter (well, not exactly this matter, but some very closely related ones) date back to the mid-1950s when these variations began to appear. Two of my favorite collections of British canonical Q’s-A’s (Mahoney and Conway) dealt with these things more than 60 years ago! One would have thought by now . . .
 

Second Question. To satisfy the obligation to attend Mass on Immaculate Conception, must the Mass one attends in satisfaction of the Immaculate Conception obligation be the Mass of the Immaculate Conception, celebrated before the evening of December 8, or, can it be any Mass celebrated at any time beginning on the evening of December 7 and running till 11:59 pm December 8? I say the Latter.

Among canonists (pace liturgists?), this one does not even seem close. I haven’t found any published canonist who holds that Mass at, say, 8 pm on Saturday would not count for Immaculate Conception if that is what how the individual wished to apply it. If you’ve got a CLD X: 190, you can check out a 1971 reply to this effect by Cong. Clergy for yourself. Sure, I’ve heard of plenty of folks who take the liturgical norm about celebrating only vigil masses from evening on, and who assume that such restriction prevents one from fulfilling a canonical obligation thereat (Huels really cautions against doing that), but, well, I’ve said all this before.

Still, as I say, I don’t have all my books right here, so maybe someone can find me a contrary canonist’s view, and send it along?

Best, edp.

Put pithy: ANY Mass satisfies one Mass attendance obligation. No Mass satisfies TWO Mass attendance obligations.

Well, as I’ve said before, there’s nothing like navigating the narrows of canon and liturgical law to get folks clicking. Some follow-ups to my post yesterday on Mass obligations.

First, some have asked for, beyond common sense and my personal charm, a citation in support of my claim that “two obligations means two satisfactions”. Happy to oblige: GB & I Comm. at 702.

Second—and my reply here is longer—a post over at Catholic Answers Forum thoughtfully disputes my interpretation of Canon 1248 (not me by name, just in substance). Let’s look at it.

The CAF writer grants that a day in canon law is calculated as being the 24-hour period from one midnight to the next midnight (c. 202 § 1), but points to the phrase “unless other provision is expressly made” in that norm. He asserts that because the Sunday obligation can be satisfied on Saturday evening (c. 1248 § 1), and liturgical law calls for Evening Prayer I of Sunday to be celebrated on Saturday evening, and various liturgical directives call for Masses of Anticipation to use the readings, etc., of the day being anticipated, an express alternate provision has been made to the effect that Saturday ends on Saturday evening and, so, a Mass obligation falling on a Saturday cannot be satisfied once Saturday evening starts (1). Ergo, Masses from Saturday evening onward, on holy days of obligation falling on Saturday, cannot be applied to the Saturday obligation, only to the Sunday one.

Thoughtful, but I’m afraid, still wrong. Here’s why.

Let’s walk through the Sunday obligation. Mutatis mutandis, what follows applies to feast days as well.

The Church imposes an obligation to attend Mass-on-Sunday (a phrasing I prefer because so many people take the requirement “to go to Sunday Mass” to mean “to go to Mass as celebrated on Sunday with the Sunday readings etc.”, which is to prejudice the very point in question) and recognizes the 24-hour period known as Sunday as being available for one to fulfill that obligation (2). In that respect, then, not only have we an obligation to attend Mass-on-Sunday, but we have a right to fulfill that obligation within a set 24-hour period (3). Now, just very recently in Church history, the Church has offered us the option of fulfilling our Mass-on-Sunday obligation during some hours on Saturday. We now have extra time in which to fulfill an obligation, but—and here’s the key—having the option of satisfying one’s Mass-on-Sunday obligation on a Saturday in no way deprives us of the right to fulfill our Mass-on-Sunday obligation anytime during the 24 hours of Sunday. Else, the granting of an option with one hand would be to deprive us of a right with the other. Canon law does not work that way (4).

Exceptions to law (and c. 202 § 1 alerts us to the possibility of exceptions to the midnight-to-midnight day in canon law) must not be expanded beyond their terms, per c. 18. That liturgical law calls for Sunday propers to be applied on Saturday evenings (assuming that even counts as an ‘exception’ to law, and I’m not sure it does), would not allow one to parlay said ‘exception’ in liturgical law into an exception in the canon law governing the satisfaction of Mass attendance obligations; they are, indisputably, different laws serving distinct purposes.

We don’t need to, but we can, carry this analysis further.

There are, in fact, two obligations imposed on Catholics with regard to Sunday and holy days, namely, to attend Mass and “to abstain from works and affairs that hinder the worship to be rendered to God” (c. 1247). Now, while the “rest” obligation is more honored in the breach than in the observance these days, nevertheless, it is clearly a part of the Sunday and holy day obligation. Thus, whatever exactly it is, the rest obligation applies on “Sunday”, and therefore, if the analysis I refuted above were correct, that should mean that the rest observance commences on Saturday evening, too, and ceases at some point on late Sunday afternoon, right?

Problem is, I’ve not found a single commentary that moves up the “rest” observance for one day to the afternoon of the preceding day. Because such a claim is based on a faulty assumption (that some days end in their late afternoon), few commentators would likely address the possibility, but one who does so expressly rejects it: CLSA New Comm. 1445 (and see note 5).

Finally (if only to illustrate the domino effect of a canonical points) suppose that the Solemnity of St Joseph (Mar 19) falls on a Saturday in Lent. If a feastday really starts the evening before, may Catholics simply appeal to Canon 1251 and chow down on those burgers on a Lenten Friday evening because the Friday abstinence would have been excused had Joseph’s solemnity come one day earlier that year? I haven’t found any authors who think so.

Well, okay, there’s more that can be said (some historical insights seem especially relevant), but at this point, I submit, my interpretation of Canon 1248 stands.

PS: While we’re here, I might as well say: I think the option of satisfying Mass obligations on preceding days has, frankly, been more trouble than it’s worth. I’d be happy to see it withdrawn [tune out anxiety howls here]. Indeed, if you think I’ve a good pastoral reason for making that suggestion, and that my pastoral suggestion might be needed in response to  yet another canonical problem lurking here’bouts—and my readers are pretty good at connecting such dots—all I can say is, you’d be right. But that topic’s for another day.

Notes

(1) His words were “in order to fulfill the obligation for the Immaculate Conception, one must attend Mass from Friday evening to Saturday afternoon (since Sunday begins at evening). Attending Mass on Saturday evening . . . does not fulfill the obligation for the Immaculate Conception. This is not (note the negative) because the readings are different . . . etc. It’s because the day of the Immaculate Conception will have ended. … Mass on Saturday evening is not a Mass on the Immaculate Conception.” (my bolding)

(2) “The precept of hearing Mass …prescribes a personal act for the performance of which a certain time is assigned ad finiendam obligationem . . . [T]he obligation binds only on the Sunday or Feastday itself and once the Sunday or Feastday has passed, the obligation ceases.” Guiniven, Precept of Hearing Mass (1942) at 77, my emphasis.

(3) The Church could, if she wanted to, require the Mass-on-Sunday obligation to be satisfied, say, before 1 pm on Sunday (by implication of 1917 CIC 821 § 1), but she doesn’t; the Church concedes all of Sunday (by implication of c. 931) as the period allowed to fulfill the Mass-on-Sunday attendance obligation.

(4) Recall that the first options for anticipating the Mass-on-Sunday obligation came by way of indults (that is, canonically speaking, they were favors). It is well settled that favors do not deprive one of rights.

(5) A suggestion that days of obligation be defined as starting on the prior evening was expressly made and rejected during the Code revision process  “quia secumferret non solum possibilitatem satisfaciendi vespere praecedenti praecepto missae assistendi, sed etiam obligationem abstinendi eodem vespere ab operibus et negotiis.” Communicationes XII: 359. Think about that: that this suggestion was made at that high level shows, I think, that our CAF writer is trying to think with the Church; it’s just that the view he offers was rejected by others who try to think with the Church, too. In short, he could use his arguments to call for change in the law, I suppose, but not to show what the law currently is.

Update 6 Dec 2012:  Third look at issue.

Saturday, Dec 8^th, 2012, the Feast of the Immaculate Conception (of Our Lady), is a holy day of obligation (1983 CIC 1246) observed in the United States. Now, every time an observed holy day of obligation falls on a Saturday or a Monday, some people think they’ve figured a cool way make one Mass count for two obligations, namely, by attending an evening Mass on the first of the two days and counting it toward both days—you know, as if evening Mass were some sort of “Super Rite! Able to slay two obligations with a single Mass!” Not.

Two Mass obligations require two Mass satisfactions. Period.

That said, a few folks who correctly remind others that there are two attendance obligations coming up seem also to assert that the type of Mass attended determines which attendance obligation can be satisfied thereat, as in, for example, a Mass of Anticipation for the Second of Advent, celebrated at 5 pm next Saturday, can only be applied toward one’s Sunday obligation, not toward Immaculate Conception. That’s an error arising from confusing the canonical obligation on people to attend Mass with the liturgical obligation on priests to celebrate the Mass called for by the rubrics.

The people’s canonical obligation to attend Mass is satisfied by their “assisting at a Mass celebrated anywhere in a Catholic rite on the [day required] or in the evening of the preceding day…” (c. 1248 § 2). The law says nothing about what type of Mass is celebrated, only, that it must be a Mass in a Catholic rite. Let’s consider a weird hypothetical.

One could attend a funeral Mass at 5 pm next Saturday and count it toward one’s obligation to attend Mass for the Immaculate Conception, and then at 7 pm attend a wedding Mass and count it toward one’s Sunday obligation—and yes, holy Communion could be taken at both Masses in accord with c. 917. See CLSA New Comm. at 1445 (for the principle at issue, not for my weird example!) Now, I’m not recommending such like, of course (important liturgical values are better served by worshiping in accord with the calendar) but, for canonical purposes—nothing to sneeze at, I need hardly say—such Masses unquestionably satisfy the obligations to attend.

In short, anyone who attends an evening Mass next Saturday, counting it toward the Immaculate Conception obligation, does so in accord with law even if said Mass is that of the Second Sunday of Advent.

Same day follow-up:

Okay, here’s an example of how confusion arises: the USCCB states (at p. 28): “The obligation [for Immaculate Conception] is fulfilled by attending a vigil Mass on Friday evening, December 7, or Mass during the day on Saturday morning.”

Now, strictly speaking, that’s right, the Immaculate Conception obligation is satisfied by attending Mass on Friday evening or Saturday morning of Dec 8^th. But here’s the problem: the obligation to attend Mass for the Immaculate Conception is also satisfied by attendance at any Mass in a Catholic rite on that Saturday afternoon, or that evening, or even up to midnight on that Saturday, regardless of the characterization of the Mass celebrated, if that is how a member of the faithful wishes to apply it. Satisfying the two Mass obligations for Immaculate Conception and for the Second Sunday in Advent is simply a matter of attending two Masses within the allotted time periods for each obligation, regardless of the characterization of the Masses one attends.

Update 4 Dec 2012: Want more discussion? Click here.

Update 6 Dec 2012:  Third look at issue.

I was taken aback by reports that Germany is now debating whether bestiality should be a crime; imagine my surprise when I learned that the debate is actually about re-criminalizing sex with animals—I had naively assumed that such conduct was, all this time, illegal (even if such laws were infrequently enforced.) Silly me. And the reason offered for reintroducing criminal consequences? That such practices are harmful to animals! I would have thought that the destruction wrought on human dignity by such acts and the de-moralizing effects that such practices have on society would be reason enough to criminalize the deed. Guess not. Still, I suppose that any right reason for doing the right thing works, so good luck to the reformers.

Anyway, all this set me to thinking about canonical angles to this story.

When discussing what sorts of evil actions are, or are not, criminalized in canon law, it is sometimes observed that evils deeds already criminalized by the State (e.g., arson or drug-trafficking ) are not usually additionally criminalized by canon law (the Church cannot be the world’s policeman), but that some evil actions in which the State has no interest, or at least no competence—such as the illicit consecration of bishops (c. 1382) or the simulation of the sacraments (c. 1379)—might be criminalized by the Church for the sake of protecting her good order.

Dueling, for example, was expressly criminalized under Pio-Benedictine law (1917 CIC 2351) because many States did not criminalize the conduct or at least did not enforce laws against it. But society now no longer tolerates duels, and so the 1983 Code no longer scores dueling by name in the law (c. 1397). Abortion, on the other hand—which always posed forensic problems to States trying to outlaw the practice—remains expressly criminalized under canon law largely because so many States have abandoned pre-born children to the abortionists’ fury. Occasionally, too, a crime might be punishable under both legal systems as when, say, the profanation of a sacred object (c. 1376) is also an act of vandalism under civil law, or when an abuse of ecclesiastical power (c. 1389) might also be the civil crime of embezzlement. Even here, though, canon law generally defers to State’s greater ability to punish crimes (c. 1344, 2º).

As a rule, codified canon law does not criminalize the sexual offenses of Catholics unless the canonical crime is “qualified” according to, usually, who committed it—especially a cleric, per c. 1395. Canon law does not criminalize, say, contraception or fornication among lay persons, though both acts are grievously sinful. Even bestiality, recognized by standard moralists as a particularly perverse sexual offense (see e.g. Davis, Grisez, Merkelbach, Prummer, Sabetti), was only criminalized under Pio-Benedictine law when the deed was done by a cleric (1917 CIC 2359). Even today, such conduct by a cleric would still be punishable under Canon 1395, of course, even though it is not expressly named in the canon. But bestiality is not a canonical crime for lay persons—any more than pimping or producing pornography is.

Should bestiality be formally criminalized under canon law? Well, given the affront that such conduct is to human dignity and to social integrity, and given that in at least some nations it appears that the Church cannot assume that the State is watching out for the best interests of their people in this regard, perhaps so. Seems worth thinking through, at least as an issue for particular law (per cc. 1315-1317), if not under universal law. Sadly, it wouldn’t be the first time the Church had to step in to uphold important values cast aside by the State.

Meanwhile, let’s see what happens in Germany next month.

Note: This post makes two points of possible interest to those following the debate over the clerical continence obligations set out in Canon 277.

1. I have thoroughly reorganized the webpage that I launched some years ago to keep track of my writings and other developments regarding the discussions of clerical continence and Canon 277. I hope that folks find the reorganized page more manageable.

2. The new Memorandum of Canon Law introduced by this blog post does not make the case that Canon 277 binds all clerics in the Roman Church, including those married, to perfect and perpetual continence. That argument is made here and more generally here. Rather, this Memorandum addresses a different audience and a different issue.

    Some of those who hold that Canon 277—and the unbroken tradition behind that canon—binds all Western clerics to complete continence nevertheless wonder whether widespread inadvertence to the continence obligation on the part of Roman married clergy might work to derogate from that obligation—put another way, some wonder whether “custom” is (or might be by, say, late January 2013) applicable against certain obligations set out in Canon 277. I believe the answer to that question to be No, but explaining that conclusion is no simple matter.

    In this context, “custom” is a canonical term of art which must be taken in its canonical—not popular—sense if it is to be invoked for canonical purposes, and no less an authority than Alphonsus Van Hove (1872-1947) dubbed “custom” the canonical topic “intricatissima”. But, anticipating that “custom” might be invoked against the obligations of Canon 277 by some unaware of what the term actually means canonically, I venture to explain here why, in my view, a “custom” argument does not avail those who hold against the obligation of perfect and perpetual continence for all clerics in the West.

Those trying to figure out exactly what happened to a teenage Catholic scheduled for Confirmation consequent to his posting a pro ‘gay marriage’ photo of himself on Facebook will not, I fear, find in secular press reports (amid their hyperboles and irrelevancies) much useful information about the incident, but it seems like something along those lines happened in Minnesota. So let’s set out some points.

Catholics have a basic right to access the sacraments (Canon 213). The burden is on ministers to justify withholding sacraments from Catholics who seek them “at appropriate times, properly disposed, and not prohibited by law from receiving them” (Canon 843). Hmm . . . “properly disposed.” Canon 889 § 2 states that to receive Confirmation licitly one must, among other things, be “properly disposed” for the sacrament. Hmm.

Well, what about this “proper disposition” requirement?

Generally “proper disposition” is not a question of internal disposition (such as interior faith, fervor, or grace) but rather of external disposition (public demeanor, dress, and conduct). The state of a would-be recipient’s soul is not determinable, of course, but his or her attitudes and conduct are observable (we’re talking Facebook, no?), and potentially actionable. If a pastor, charged with the custody and celebration of the sacraments left to the Church by Christ, has solid reason to doubt the liceity of his conferral of a sacrament on a given individual, he is within his authority to delay, or even to deny, that sacrament for so long as that sad situation lasts. His decision is, of course, reviewable by ecclesiastical authority (not by the media) and such authority (with access to all the facts) might reach a different conclusion. But one starts any review with the above canons clearly in mind.

In another context I wrote about the risk of invalid (not just illicit) Confirmation on rebellious teenagers. See my “Invalid confirmation due to contrary intention of the recipient”, 2007 CLSA Advisory Opinions at 68-70. Such concerns should be assessed here as well.

There is nothing like a crisis to force one’s thinking through difficult issues, even though a crisis is perhaps the worst time imaginable for thinking through difficult issues. A crisis seems to be erupting in Australia regarding the seal of confession in cases of suspected child abuse. Let’s try to think through some of the issues.

1. The seal of confession is, by divine and canon law, absolutely inviolable (Canon 983 § 1) and any confessor who violates the seal is liable to excommunication (Canon 1388 § 1). There is no need to hoot and holler about this point. It need only be reiterated (especially in the face of an appalling declaration by Sydney ret. aux. Bp. Robinson that he would violate the seal in certain cases!) and then let the chips fall where they may. The Church will never change her discipline on this point and she will never grant a dispensation from it.

2. In the Catholic tradition—and without trying to parse how this might apply under Australian law on clergy confidentiality, of which I know little—not every private communication with a priest is a confession subject to the seal, and not everything learned on the occasion of a protected confession is subject to the seal. Determinations of the true parameters of the seal of confession must be left to experts in the area. An accurate understanding of the scope of the seal might obviate some Church-State conflicts; it will certainly clarify lines that the Church will not cross no matter what the State might demand.

3. While the seal of confession is central to this discussion, it is not the only issue raised in these cases. Additional restrictions on the use of confessional knowledge are set out in Canon 984, and moral theologians recognize that some communications with clergy might fall within protected categories of natural or entrusted secrets. Again, experts need to sort this out.

4. I think Cdl. Pell’s comment about some not taking the confessions of pedophile-priests (if that’s what he actually said) needs to be contextualized for readers.

     4. A) No sin, not even horrific ones such as the sexual abuse of minors by clerics, is unforgivable; any Catholic with this or any other grave sin on his or her conscience should confess it promptly. Indeed Catholics have, by divine and canon law, a right to approach the sacrament of confession (Canons 213, 843, 991), a positive obligation to confess grave sins (Canons 988, 989), and a basic right to absolution (Canon 980). All of this Pell takes for granted, of course, but it wasn’t said at the time.

     4. B) Now, I could imagine an ordinary like Pell announcing his practice of not hearing the confessions of his clergy and/or staff (to avoid the complications for diocesan governance that might arise for him under Canons 983 and 984), but—and here is the only point where Pell’s words might need clarifying—those kinds of governance considerations would not seem to apply to priests hearing the confessions of their brother priests. Thus, I can see no basis for priests to avoid hearing the confessions of priests—or of anyone else for that matter—even if child sexual abuse is or might be part of the confession.

Just so we’re clear, the seal of confession is absolutely inviolable (Canon 983 § 1) and any confessor who violates the seal is liable to excommunication (Canon 1388 § 1).

Retired Sydney auxiliary bishop Geoffrey Robinson, discussing some fact patterns that might—or might not—have fallen within the seal of confession, apparently obviated the need to consider what is actually covered by the seal by simply declaring “I would be prepared to break the seal of [the] confessional because you have to weigh up the greatest good, and here the greatest good is surely the protection of innocent people.” Assuming Robinson meant what he said, his remarks occasion a new and urgent question for Church law: how does one revoke the faculties of a bishop to hear confession?

Faculties for confession are required for validity (Canon 966 § 1). Even bishops need, but have by law (Canon 967 § 1), this faculty. Granting that no canon expressly covers the revocation of a bishop’s faculties for confession (the Code cannot anticipate every eventuality that might confront the Church in our bizarre times), ecclesiastical authority can, I suggest, respond coherently and effectively to utterances such as Robinson’s.

The pope has the authority (Canons 331, 1405 § 1, n. 3) to enjoin Robinson’s compliance with ecclesiastical (and indeed, divine) law (Canon 49), under pain of penalty (Canons 1319, 1339), in regard to confessions he has already heard. As the Legislator of the Code under which Robinson enjoys faculties for confession, the pope also has the authority (Canon 331) to revoke Robinson’s faculties and has, I believe, obvious cause to consider doing so (Canon 974 § 1).

While only the pope can take the above actions in regard to Robinson, other diocesan bishops can act to protect the faithful in their dioceses from approaching any cleric who has declared his willingness to violate the seal of confession by notifying Robinson, and the faithful, that Robinson does not have permission to celebrate the sacrament in their territory (Canon 967 § 1). Such a declaration does not go to the validity of any future confessions heard by Robinson, but it would tend to limit the harm caused by his startling readiness to violate fundamental law.

Finally, besides urging Robinson to reaffirm publicly his acceptance of the obligation to honor the sacramental seal because it’s the right thing to do, let me suggest that his comments, if left unretracted and unchallenged by higher authority, could, I fear, be construed as a waiver by Robinson of his civil rights to resist compelled testimony in any number of actions (not just those of his choosing); his words might even be used to attack the rights of other ecclesiastics to guard the confidences of those who come to them for spiritual advice and assistance.

In short, there is, I suggest, too much at stake to let Robinson’s words stand as the last ones in this matter.

George Weigel writes in a thought-provoking essay that we should, among other things, “accelerate a serious debate within American Catholicism on whether the Church ought not pre-emptively withdraw from the civil marriage business, its clergy declining to act as agents of government in witnessing marriages for purposes of state law.”

Okay, a few thoughts toward that acceleration.

First for precision: the Church is not in the civil marriage business, we are in the religious marriage business. Our clergy act fundamentally as ecclesiastical officers at our weddings. The few clerics who from time to time (notwithstanding 1983 CIC 285 § 3) attempt to act as purely civil agents at weddings do so with virtually no canonical support. See e.g., CLSA Advis. Op. 1984-55 Provost, CLSA Advis. Op. 1988-98 Wallace, and CLSA Advis. Op. 2005-76 Jorgensen (all rejecting civil-only agency) vs. CLSA Advis. Op. 1987-128 Cuneo (who leaves open a small possibility for such service).

Second and more important, it is not strictly speaking for the Church to “withdraw” from “civil marriage”, for the decision to accord civil recognition to ecclesiastical ceremonies like weddings is the State’s to make, not the Church’s. As Catholics we do what we do, namely, solemnize weddings as we think fit, while the State does what the State does, namely, accord civil recognition to those events (like, e.g., letting spouses file joint tax returns and inherit property) as it thinks fit. Now, I grant it’s very convenient for the State to recognize Catholic weddings, but if the State decides not to do so, well, okay.* Catholics are still going to marry in the eyes of the Church and ecclesiastical consequences will still flow from such religious acts—or not, as the case may be—but, in any event, independently from whether the State chooses to recognize that ceremony. In short, I’m not sure how the Church can “withdraw” civil recognition of its ceremonies or, for that matter, demand it.

It is painful, of course, to watch the State’s definition of marriage careen toward something unrecognizable under natural or ecclesiastical law, but eliminating true marriages from the pool of unions treated as marriage by the State is not the solution to the State’s errors. Moreover, if the day arrives wherein State power is turned against a pastor who refuses a “gay wedding”, we must and will refuse cooperation with that simulation of a sacrament (e.g. 1983 CIC 841, 1379) as best we can (e.g. 1983 CIC 1370 § 3, 1373). But, that day has not arrived yet and I see no need to surrender societal goods (such as the convenience, and even meetness, of civil recognition of Catholic weddings) that have not yet been demanded of us.

Third, the Church’s interest in marriage predates and transcends the State’s, obviously, but the Church nevertheless recognizes the legitimate interests of the State in marriage and tries, in a myriad of ways, to accommodate those interests (see e.g. 1983 CIC 1071 § 1, n. 2). Sorting through those modi vivendi is not something for individuals to take upon themselves and to accelerate this discussion is not to go pedal-to-the-metal, folks! (Weigel did not suggest that, but we are posting before a public that does not always observe his prudence).

Fourth . . . well, there are several other aspects of this matter that need to be discussed, but this is just a blog post, and one can’t cover everything. + + +

* The American State does not recognize ecclesiastical annulments (even those declared on grounds identical to the State’s) yet no one seem the worse off for it. Canonists disagree, by the way, about whether the Church should grant canonical recognition to civil annulments. See e.g. CLSA Advis. Op. 1995-84 Ingels and CLSA Advis. Op. 1988-100 Provost (arguing yes) vs. CLSA Advis. Op. 1995-86 McKenzie (arguing no); either way, though, the granting of ecclesiastical effects to civil actions is clearly the Church’s decision to make, not the State’s. Mutatis mutandis, I suggest it is for the State to decide whether to grant civil effects to Catholic weddings.

Update, 15 Nov:  Most of this post is now available in French, here.

Good morning class. Our canon law topic for today is irregularity for the exercise of orders arising from mutilation. As you know:

• Canon 1041 states “The following are irregular for receiving orders: . . . n. 5. A person who has mutilated himself or another gravely and maliciously or who has attempted suicide.”

• Canon 1044 § 1 says “The following are irregular for the exercise of orders received: . . . n. 3. A person who has committed a delict mentioned in can. 1041, nn. 3, 4, 5, 6.” and

• Canon 1397 reads “A person who commits a homicide or who kidnaps, detains, mutilates, or gravely wounds a person by force or fraud is to be punished . . . according to the gravity of the delict.”

Okay, let’s assume you’ve got two priests who get into a brawl and—why are they fighting? I dunno, let’s say they’re fighting over a parking space—anyway, while they are swinging away at each other, one bites an ear off the other. Clean off. Now, analyze the status of the biter and the bitee. Are either, neither, or both of them irregular for the exercise of orders due to mutilation? Cite the law, account for the facts, and explain your answers.

Got it? Okay, see you this afternoon.

Excuse me? Whaddya mean, you don’t like my goofy classroom hypotheticals? Would it be more believable for you if we said these two clerics were, say, tough old Aussies? Anyway, who says this is a made-up case? Just for that, I’m gonna call on you first, young man.

See y’all this afternoon. . .

+ + +

The text of the law clears our bitee of any canonical concerns, for no longer can the victims of mutilation be irregular per se (cf. 1917 CIC  984, n. 2, gone from the 1983 Code). Canon 1029 is no obstacle to continuation in ordained ministry. Our biter, however, raises a different question, one that sent me back to the books. Some really old books.

Setting aside whether a mutilation need be strictly “delictual” to qualify for irregularity, and granting canonically the gravity and maliciousness of such an attack, it turns out, nevertheless, that the severing of an ear is not considered a “mutilation” of a “member” of the body under canon law. No less an authority than Gasparri wrote: “[T]he ear and nose are not members, for, if these are removed, the function of hearing or smelling are not entirely prevented.” Pietro Gasparri (Italian prelate, 1852-1934), Tractatus Canonicus de Sacra Ordinatione, in 2 vols., (Delhomme et Briguet, 1893-1894) I: 254-255, my trans.; see also, e.g., Josephus Laurentius (German Jesuit, 1861-1927), Institutiones Iuris Ecclesiastici [1902], 2^nd ed., (Herder, 1908) at 69, n. 80, fn. 1. Given the strict interpretation that must be accorded alleged irregularities (CLSA New Comm at 1214; P. Palazzini, s.v. “Irregularitas” in DMC II: 806-809, at 807) it appears that not even our biter falls within the terms of the law on irregularity for mutilation.

Well, I’ll be a monkey’s uncle.

As for whether our elderly cleric gives evidence of, say, amentia (1983 CIC1044 § 2, n. 2) and on those grounds can be impeded from exercising orders, that’s a different question.

The ink was hardly dry on Paolo Gabriele’s conviction last month for stealing hundreds of confidential documents out of Pope Benedict XVI’s personal quarters when there was open curial speculation about the possibility (nay, probability) of a papal pardon being accorded the disgraced ex-butler. Fueling such speculation has been the pope’s sending of a book of psalms to Gabriele and, just a few days ago, reports that a commission of cardinals investigating the theft has “green lighted” a reprieve of Gabriele’s already reduced sentence.

Now, I have no idea whether Gabriele ought to be pardoned—only the pope knows for sure—but I can foresee, I think, some significant questions being raised about such a pardon if it comes to pass.

Consider: in the book-length interview he granted to journalist Peter Seewald, Benedict observed: “After the mid-sixties [punishment] was simply not applied any more. The prevailing mentality was that the Church must not be a Church of laws but, rather, a Church of love; she must not punish. Thus the awareness that punishment can be an act of love ceased to exist. This led to an odd darkening of the mind, even in very good people. Today we have to learn all over again that love for the sinner and love for the person who has been harmed are correctly balanced if I punish the sinner in the form that is possible and appropriate. In this respect there was in the past a change of mentality, in which the law and the need for punishment were obscured. Ultimately this also narrowed the concept of love, which in fact is not just being nice or courteous, but is found in the truth. And another component of truth is that I must punish the one who has sinned against real love.” Light of the World: A Conversation with Peter Seewald (Ignatius Press, 2010) 25-26.

To be sure, the gap between these papal words on the appropriateness of just punishment and a papal pardon of a serious crime against the governing authority of the Church is not unbridgeable but, should such a pardon be issued, a coherent reconciliation of these two views would certainly need to be provided.

Personally, I don’t see the pope’s sending a devotional book to Gabriele as a sign of coming leniency; I see it more as a sign of continuing love. Benedict was the victim of a very serious crime, but he still loves the offender. The pope seeks Gabriele’s personal good but, precisely as pope, Benedict also has the future of the papal office to consider; pardoning Gabriele could well make the next pope’s job that much harder to perform—and who knows better than Benedict how hard it already is to be pope?

Update, 22 Dec 2012: Gabriele was pardoned today.

Cardinal Tim Dolan just delivered an excellent address to the USCCB. It needs to be read, and even listened to, in its entirety. Here I’ll underscore just one of his points: “The work of our Conference during the coming year includes reflections on re-embracing Friday as a particular day of penance, including the possible re-institution of abstinence on all Fridays of the year, not just during Lent” (my emphasis).

For what it’s worth, I unequivocally endorse the re-institution of Friday abstinence in the US. This decision lies quite within the authority of the USCCB (see 1983 CIC 455, and 1249-1253) and, among other things, would render moot, once and for all, nagging questions about whether the episcopal conference ever really got around to substituting “other forms of penance” for abstinence from meat back in 1966, or 1983/1984, or whenever.
 

Still I can hear it now: “Okay, Peters, if you’re so gung-ho in Friday abstinence, do you abstain from meat on Fridays now, and even if you do, why should it be made a law for everybody?” Fair enough.

First, I don’t abstain on most Fridays now. Most times I simply forget; moreover, I’m pretty good at talking myself out of inconvenient observances if they are largely personal. I need the directives toward goods (like penance) and away from evils (like presumption) that law by its very nature offers. Second, abstaining from meat on Fridays would not be to introduce a new rule, but rather, to eliminate a variance on or exception to the common (and ancient*) rule of abstinence that is already set out in canon law, above. Third, the corporate example of all Catholics engaging in some sort of common religious exercise outside of Sunday morning is, I think, desperately needed in a world that wants to relegate religious observances to a six-hour window once a week.

Ex labiis Cardinalis Dolan ad aures episcoporum nostrorum!

* For a canonical look at just how far back ecclesiastical legislation on abstinence from meat goes see, e.g., Antonio Herrera, Legislacion Ecclesiastica sobra el Ayuno y la Abstinecia (1935) 65-68.

I really, really try to avoid hyperbole in my writing (the dinner table is occasionally something else)—and indeed some of the hyperbole of the past contributed to the crisis of today (by exaggerating how bad things were yesterday, it discouraged folks from trying to save tomorrow)—but, that said, the 2012 American elections were, I think, a watershed event that any moderately sapient adult should be able to read.

I have a dozen thoughts on the elections, of course, but few of mine are as articulate as those offered by these three veteran observers and clear Catholic thinkers: George Weigel, James Schall, Phil Lawler. Ninety-eight percent of what I think about the elections are found in their essays.

Oremus pro invicem.

Raymond Cdl. Burke, prefect of Apostolic Signatura, offered a terrific written intervention at the Synod of Bishops regarding the pastoral importance of law in the life of the Church. I offer here the Vatican’s translation of his Italian-language remarks (my bolding):

His Em. Rev. Cardinal Raymond Leo BURKE, Prefect of the Supreme Tribunal of the Apostolic Signatura (VATICAN CITY):

The Instrumentum Laboris reminds us that witness to the Christian faith is a valid response to the pressing problems of life in every age and culture, especially because that witness overcomes the false separation existing between the Gospel and life (cf. no. 118). However, so that witness to the faith will have a place, which today’s world urgently needs, cohesion is needed within the Church between life and faith.

Among the most serious wounds of society today is the separation of legal culture from its metaphysical objective, which is moral law. In recent times this separation has been much accentuated, manifesting itself as a real antinomianism, which claims to render actions which are intrinsically evil as legal, for example, abortion on demand, artificial conception of human life with the aim of carrying out experimentation on the life of a human embryo, the so-called euthanasia of those who have the right to our preferential assistance, legal recognition of same-sex unions as marriage, and the negation of the fundamental right to conscience and religious liberty.

This antinomianism embedded in civil society has unfortunately infected post-Council ecclesial life, associating itself, regrettably, with so-called cultural novelties. Excitement following the Council, linked to the establishment of a new Church which teaches freedom and love, has strongly encouraged an attitude of indifference towards Church discipline, if not even hostility. The reforms of ecclesial life which were hoped for by the Council Fathers were therefore, in a certain sense, hindered, if not betrayed.

Devoted to present-day new evangelization, we have the task of laying the foundation for awareness of the disciplinary tradition of the Church and respect of the law in the Church. An interest in the discipline of the Church is not to be equated with an idea contrary to the mission of the Church in the world, but to a correct attention to cohesively witnessing to faith in the world. This service, certainly humble, of Church Canon Law is also absolutely necessary. How indeed will we be able to witness our faith in the world if we ignore or neglect the demands of justice within the Church? Salvation of the soul, the primary goal of a new evangelization, must also always be in the Church “the supreme law” (can. 1752).  [00357-02.03] [IS007] [Original text: Italian]

An unexpected treat of attending the Synod in Rome was, by the way, the opportunity to share a lunch with Cdl. Burke and to get a copy of his canonical dissertation on marriage law. Among many insights, this line leapt off the page at me: “The too rapid growth of practice without a clear and solid theoretical foundation has its most serious consequences in the confusion regarding the very foundations of matrimonial law”. Burke, Lack of discretion of judgment (1986) at 85. Man, does that insight ever apply to a host of canonical-pastoral issues today.

Speaking of reading, I also came into a copy of Dr. Ralph Martin’s Will Many Be Saved? What Vatican II Actually Teaches and its Implications for the New Evangelization (Eerdmans 2012). Absolutely fascinating work, it kept me awake more nighttime hours than was prudent, perhaps, but I couldn’t help it. Ralph’s measured yet unrelenting focus on what Vatican II actually teaches (chiefly in Lumen gentium 16) about the diminished possibility of salvation outside the Church and the consequence of that teaching for the missionary mandate of every Catholic was, I felt, too important to put off.

Update, 9 Nov: Read Jeff Mirus’ take on Dr. Martin’s work here.

Note: This post will be of interest only to those following the debate over the clerical continence obligations set out in Canon 277.

The publication of now-Cdl. Francesco Coccopalmerio’s December 2011 letter denying the continence obligations of married deacons (see Roman Replies and CLSA Advisory Opinions 2012 at pp. 12-14) makes feasible, at last, the publication of my responses to those remarks (see no. 6 below). Before doing that, however, some background to, or perhaps better a recapitulation of, the basic history of this controversy might be helpful.

1. Over the last few decades, various theologians and Church historians (including Stickler, Heid, Cochini, Keefe, McGovern, and Levada) have concluded that complete sexual continence has been, from ancient days, an expectation for all clerics in the Western Church, even those clerics who are married.

2. About five years ago, I published an extensive canonical examination of the possibility that married clerics (specifically deacons) were bound to observe “perfect and perpetual continence” in accord with Canon 277. I concluded that modern canon law upholds this ancient obligation notwithstanding an almost universal inadvertence to this requirement among married Roman clerics today.

3. About three years ago folks with access to my canonical study began discussing it before more popular readerships (eventually bringing it to the internet) whereupon numerous representations (some accurate, some ludicrous, but most simply missing the point) of my views were aired. I responded to as many of these representations as I could.

4. In March 2011, then-Abp. Coccopalmerio, president of the Pontifical Council for Legislative Texts, published a very brief (as in, one phrase in one sentence) comment against the view that married deacons are bound by any canonical continence obligations. I replied to that brief remark here.

5. In December 2011, Abp. Coccopalmerio sent a much longer “clarification” to then-Abp. Timothy Dolan, president of USCCB, who in turn forwarded the letter to Abp. Robert Carlson (in light of his USCCB committee duties), who in turn circulated the Roman prelate’s letter to US bishops and their staffs under a short cover letter. I noted the appearance of the “clarification” and cover letter here (scroll to no. 12) and sent my extended replies to the original letter itself directly to those with access to its text. I refrained, however, from public commentary on the original letter until such time as the archbishop’s’ remarks became available to the public—even though it was professionally distressing for me to see it, in my view, being misapplied chiefly by those ascribing to it a canonical definitiveness that it neither claims nor has. I did offer here (see “Second”) two observations on points gleaned from summaries of the original letter, which points—though clear to specialists yet likely escape the notice of those not—were exacerbating confusion on this matter.

6. As now-Cdl. Coccopalmerio’s “clarification” of 17 Dec 2011 has become publicly accessible, a PDF of my reply Memorandum dated 16 Feb 2012 (alongside the original letter) is available here. As does the cardinal himself, of course, I stand ready to offer any additional observations that might be required for the accurate resolution of this controversy.

By way of post-script, let me elaborate on a point I’ve made elsewhere, but which is seldom acknowledged: the Church decides matters of significant moment in her own way, at her own time. It is not for experts to tell the Church what to do on a given matter, or even when to do it, but rather, in accord with their qualifications and studies of an issue, to say “here is what you have done in the past, and here is what you are doing now” and to ask in that light, “is this what you want to do?”

My position is, of course, that Western law and tradition expect, beyond any question, the observance of perfect and perpetual continence among all clerics, and that arguments from, say, silence and/or inadvertence (hallmarks, I suggest, of a hermeneutic of rupture) are insufficient to defeat that expectation. But that is not to say that the Church cannot choose to modify or abandon her clerical discipline in this regard; indeed, I suspect that the Church can change her expectations here, and that persons with deeper knowledge of, among other things, the theology of holy Orders, the sacred liturgy, and the nuptial imagery of the Eucharist should advise her on whether such change is a good idea or a bad. My only point is that the Church has not, contrary to common assumption, formally changed her expectation in regard to complete clerical continence, and that damage is being done to important ecclesiastical values by assuming otherwise. As for what the Church will decide to do in this matter, or when she will decide to do it, such things are not for me to say.

I can say, though, that this question is not going away. To the contrary, what was even a few years ago a question posed chiefly in regard to married deacons is suddenly relevant to hundreds, even thousands, of married priests coming in or perhaps coming into full communion and taking on ministry under current and/or proposed provisions. Now, however strong are the arguments for clerical continence among deacons—and they are very strong—those arguments are even stronger yet when applied to priests, men who are still more closely configured to Christ our High Priest and who are the very agents of his Eucharistic cult on earth.

More than 30 years ago, then Fr. Raymond Burke wrote in regard to certain questions on marriage law that “The too rapid growth of practice without a clear and solid theoretical foundation has its most serious consequences in the confusion regarding the very foundations of matrimonial law”. Burke, Lack of discretion of judgment (1986) 85. I think that now-Cdl. Burke’s wise words resonate in regard to the scope of clerical continence, the sudden and prominent rise of a married clerical state in the West, and an effectively bifurcated order of diaconate, as well.

My scholarship and my prayers, such as they are, are offered toward a fitting resolution of all of these issues.

A few weeks ago, while I was at the Synod of Bishops, it was widely reported that the bishops of Uruguay had announced the excommunication of all legislators who voted to legalize abortion in that nation.

I knew that couldn’t be right.

Either (A) the press had mistranslated and/or mischaracterized what the bishops actually said (which happens often) or (B) the bishops were mistaken in their canonical assessment of the situation (which happens sometimes), but either way, I knew—and say this, I suggest, in common with virtually very canonist who has considered this issue—that legislators cannot, under the 1983 Code as it reads now, be excommunicated for voting to legalize abortion.

Turns out to have been Option A—the Uruguayan bishops had not said “excommunicated”, they had said something more like “not in communion” to describe the state of legislators who commit the grave evil of exempting preborn babies from the protection of civil laws against murder. Mind, “not in communion” is a very serious situation (see, e.g., Canon 209 and Lumen gentium 14), but “not in communion” is not “excommunicated”.

Wish I could have saved folks the confusion this story generated for a time but, being in Rome and otherwise occupied, I just couldn’t get to it then. Anyway, we’re clear on things now and can get back to the task of educating civil legislators about their civil responsibilities to the defenseless and to the correct administration of ecclesiastical discipline.

Controversies over participation in holy Communion by Catholics publicly at odds with Church teaching cannot be usefully aired until the norms governing Catholic participation in holy Communion are first understood. The editors at First Things kindly gave me a chance to set out those norms for readers in their November 2012 issue. My essay, “Fencing the Altar”, is available on-line.

If I may quote myself:

Participation in Holy Communion is achieved by two related but distinct acts: the action of a member of the faithful in seeking Communion (reception) and the action of the minister in giving Communion (administration). These two actions are not only performed by different persons, they are governed by different canon laws. Virtually all confusion over Communion can be traced to the failure to keep these two actions distinct.

and,

[A] clear recognition of the fundamental differences between canon 916 on the reverent reception of the Eucharist and canon 915 on a minister’s withholding of Holy Communion is essential in assessing these cases. So too is recognizing that ambiguous cases must be decided in favor of reception of the Sacrament, even at the risk of sacrilege, while proven cases of public unworthiness as understood by Church law must result in withholding the Sacrament, even at the risk of public outcry. Both outcomes are required upon pain of dereliction of ministerial duties in regard to participation in the Eucharist.

+ + +

Heads up for ILOTL readers: a longer, but still ‘non-academic’, examination of this material is in the offing. Watch here for details.

I am just back from the Synod of Bishops and am busily sorting through various communications that arrived over the last month. It’s quite a stack, of course! For now, let me just say that I am very grateful for the many prayers offered during the Synod and that I look forward to getting back to several projects, including some canon law blogging, as soon as practicable.

This time, to attend the Synod of Bishops in Rome as a peritus.

The topic chosen by the Holy Father for this Synod is the New Evangelization, a subject of especially close personal and professional interest to us at Sacred Heart Seminary in Detroit. It will be very exciting to watch the Synod of Bishops, an institution of what I call ‘structured collegiality’ (see 1983 CIC 342-348), grapple with matters that impact every aspect of the Christian mission today, and more than a little humbling to have been asked to assist in that undertaking. Oremus pro invicem!

As she left for summer camp one year, my little sister once said “Don’t have any fun while I’m gone!” In something of that same spirit, may I say, “Don’t do anything interesting while I’m gone, or at least, don’t do anything requiring canonical sorting-out while I’m gone.” Else, it won’t be till November that I can get to it!

Kind regards, edp.

The post below narrates my reaction to a report on a fellow canonist’s comments in regard to women’s ordination to the diaconate. I hold against women’s ordination (and therefore, am opposed by the other canonist) but my opposition to women’s ordination does not rest on the grounds presented by the reporter to the other canon lawyer for reaction. I commented, therefore, on the other canonist’s views as an interested observer, but not as a direct, let alone as a named, participant in that exchange. That said, as soon as I saw the reporter’s by-line, I had a hunch that it might have been, after all, my (alleged) views that were being reacted to by the other canonist. Now I find, my hunch was right.

In regard to women’s ordination itself, my post below stands on its own merits, but I offer the following narration to illustrate the difficulties that interview subjects, reporters, and readers alike face when the press, especially the secular press, try to deal with religious topics.

Over many years of trying to respond to secular reporters’ questions about religious, especially canonical, topics, I have adopted the practice of responding, in writing, time-permitting, but in a timely manner, to specific questions about canon law and Church life. (I don’t answer questions like “What does canon law say about marriage?” Not any more, I don’t.) And, I keep copies of my answers. Occasionally, as now, they are useful.

So, the reporter above contacted me in a professional manner by email, asked for a few minutes by phone to discuss female deacons, whereupon I suggested his sending a few written questions, to which I would respond within 24 hours. He sent me two good questions, and I promised written answers within 1 hour. Which I did.

Here are his questions, and my answers:

1) What is your opinion of the suggestion to have women deacons in the Roman Catholic Church?

The suggestion has no merit. It rests on several misunderstandings of the nature of holy Orders in the Catholic Church. It is true that in recent decades the Magisterium has spoken with greater clarity in pronouncing against the possibility of ordaining women to the priesthood than in regard to deacons. Some people take from recent Roman statements on priesthood some wavering on the question of female deacons. But such language was, in my opinion, simply a showing of care not to preclude research into “deaconesses” of the ancient Church. But, whatever exactly ancient “deaconesses” were, they were not, I am convinced, clergy in the modern sense of the word, and thus appeal to them as precedents for female deacons today is bootless.

2) What are the chances in your opinion this could actually happen?

I see no possibility that women will ever be ordained to the diaconate. The ceremonies that one sees from time to time purporting to be such ordinations are, first, of zero sacramental effect in the Catholic Church and, second, subject to severe penalties because of the confusion and disruption they introduce into the lives of the faithful.

Notice: I was asked for opinions and I offered opinions; I grounded my opposition to female deacons in sacramental theology, not on canon law; I acknowledged the appearance of Roman wavering on these questions, suggested a more benign explanation for such language, and reminded people of the immediate nugatory and negative consequences of attempted female ordination. All in 179 words! Wow! Journalist gold. It didn’t even need retyping.

Unfortunately, here’s how I was presented: “But canon law expert Edward N. Peters, of the Sacred Heart Major Seminary in Detroit, sees ‘no possibility that women will ever be ordained to the diaconate’ because canon law forbids it.” Period. End of quotation.

Pffft. No nuance, none of my recognition that the other side has an argument, and, worst of all, the misrepresentation that my opposition to female clerics rests on positive canon law, instead of, as I expressly stated, in the theology of the sacrament of holy Orders. No wonder the other canonist had such an easy time refuting me—as named no less. What I said—correction, what I was reported as having said—was as shallow as it was rigid. My kids could have refuted it.

I frankly did not detect an ‘agenda’ in the reporter’s recasting of my views, just an over-confidence that interviewing lawyers about law is as easy as interviewing, well, just about anybody on just about anything. But it’s not. Law is precise and it uses words carefully. What do they say about rushing in where angels fear to tread?

Thank God that today we have blogs. Twenty years ago, when this sort of thing happened to me (and it would), all I could do was spout off at the dinner table about it. Well, at least my kids got some pretty lively examples of how to refute obviously shabby arguments. Even if they weren’t really dad’s arguments.

Update, 4 October: Get Religion gets it.

I saw the recent comments here and here of Msgr John Alesandro—an accomplished canonist—in support of ordaining women to the diaconate. I disagree with him on the prospects of women’s ordination but, because some of Alesandro’s comments were directed against a claim that sounds similar to mine, I write to make sure that his defeat of that claim is not parlayed by others into a refutation of mine.

Alesandro responded to the following claim: “There is no possibility that women will ever be ordained to the diaconate because canon law forbids it” (emphasis added). Of course he responded negatively to that claim: the fact that canon law forbids women’s ordination is—I won’t say irrelevant, but—certainly one of the weakest arguments against women’s ordination available. Canonical history is replete with examples of actions illegal in one generation, but legal in another. Rejection of what amounts to a purely positivistic argument against women’s ordination is sound.

But, three things need noting:

• canon law does not determine, but rather, upholds doctrine and theology; I base my rejection of the possibility of women’s ordination, even to the diaconate, on my understanding of the theology of Orders; Alesandro and I apparently disagree about that theology, but we agree that theology is ultimately where this issue must be settled;

• many canonical institutes have changed dramatically over the centuries, but the more closely institutes are tied to doctrinal points touching, say, the nature of a sacrament, the less they change; the enduring, strongly negative, even penal, stance of canon law against women’s ordination tends far more against the radical possibility of women’s ordination than for it;

• the current norms against women’s ordination (chiefly in c. 1024) mean that any current attempts at ordaining women—irrespective of women’s (alleged) ontological capacity for Orders—are utterly null, that is, they are of no sacramental effect in the Church.

Thus, Alesandro and I agree on the first point, I think that he would grant the plausibility of my second, and I am sure we agree on the third.

Update (2 October): As I thought, there is, literally, more to this story than meets than eye.

Abp. John Myers of Newark NJ is a pastor and his recent document on marriage is a pastoral exercise. But Myers is also a lawyer and, even in a pastoral statement, he writes with the care (though without most of the technical trappings) that one expects from a good canonist. For now I limit myself to remarks on just one passage of his letter; as it happens, this passage is attracting disproportionate attention from the secular press.

Myers writes: [B]elief about the permanence of marriage has been proposed infallibly by the ordinary universal Magisterium and defined by an Ecumenical Council and requires the assent of faith. It is my duty as your Archbishop to remind you that Catholics who do not accept the teaching of the Church on marriage and family (especially those who teach or act in private or public life contrary to the Church’s received tradition on marriage and family) by their own choice seriously harm their communion with Christ and His Church. I urge those not in communion with the Church regarding her teaching on marriage and family (or any other grave matter of faith) sincerely to re-examine their consciences, asking God for the grace of the Holy Spirit which “guides [us] to all truth” (John 16:13). If they continue to be unable to assent to or live the Church’s teaching in these matters, they must in all honesty and humility refrain from receiving Holy Communion until they can do so with integrity; to continue to receive Holy Communion while so dissenting would be objectively dishonest.

If anyone wants canonical trappings to be appended to these lines, they would be easy enough to supply: Catholics are required in all things to maintain communion with the Church (c. 209); denial or obstinate doubt regarding teachings requiring the assent of faith is heresy (cc. 750-751); rejection of doctrines embraced by Canon 750-752 is an ecclesiastical crime (cc. 1364, 1371); and so on. But Myers did not recite these kinds of technical considerations in a letter aimed more at conversion than at compliance.

Instead Myers has issued, in effect, a pastoral admonishment to observe Canon 916 of the Code of Canon Law. Canon 916 directs would-be recipients of holy Communion who are not in interior communion with the Church to refrain from receiving holy Communion. Indeed, not only is Myers not invoking penal canon law here, he is not even invoking Canon 915, a sacramental disciplinary norm that—among other differences between it and Canon 916—applies to ministers, not recipients. Basically, Myers is reminding Catholics that responsibility for worthy participation in the holy Communion begins with individual Catholics. Hopefully, people will read Myers’ letter with the same degree of care with which he wrote it and will recognize the spiritual seriousness of dissenting from Church teaching on the nature of marriage, leading them in turn to avoid actions that would make them ineligible for holy Communion.

Writing in America magazine, Bp. Emil Wcela (ret. aux. Rockville Center) is encouraging wider public debate on the ordination of women to the diaconate. Those not familiar with the arguments favoring female ordination to the diaconate can find them outlined in Wcela’s essay. Counter arguments—and they are many—are available in, e.g., Aimé Georges Martimort, Deaconesses: an historical study (Ignatius, 1986).

Some canonical observations occasioned by Wcela’s essay.

1. Canon 1024 declares invalid any attempt to ordain women (presumably, first to diaconate). While Canon 1024 does not address the question of a woman’s ontological capacity for ordination, it leaves no doubt that any attempt to ordain a woman to any level of holy Orders is of zero sacramental force in the Church today.

2. John Paul II’s ap. lit. Ordinatio sacerdotalis (1994) settles forever, negatively, and on ecclesiological grounds, the question of ordaining women to priesthood (and by logical necessity, to episcopate). Further agitation for the ordination of women to Catholic priesthood seems a violation of Canon 1371, 2º—Wcela does not do that. Ordinatio says nothing, however, at least in its dispositive paragraph 4, about ordaining women to diaconate nor, strictly speaking, does it address (at least not definitively) ontological questions about female ordination. In that regard, discussion may continue.

3. The Congregation for the Doctrine of the Faith’s 2008 visitation of a latae sententiae excommunication, however, on those attempting to ordain women to the diaconate represents, I suggest, something more than a temporary disciplinary measure against prematurely implementing a sacramental development that might, in fact, never come. That such a severe sanction is levied at all suggests to me that some very significant—if not yet formally defined—values are being protected thereby.

Consider: sanctions for the invalid and/or illicit conferral of sacraments are relatively few in number, at least when compared to the total number of ways that such conferrals can be abused. Specifically in regard to ordination, only the illicit conferral of episcopal orders contrary to Canon 1382 is punished with excommunication; other violations of law in the context of ordination (say, conferral of orders without proper dimissorial letters, per c. 1383) carry lesser penalties. The same lighter touch marked the Pio-Benedictine Code (see, e.g., 1917 CIC 2364).

Therefore, it seems to me that the CDF excommunication for attempted female ordination (especially in light of the roll-back that excommunication has undergone over the last 150 years) should be taken as a sign that ecclesiastical authority regards female ordination, even to diaconate, with at best grave reservations; the enactment of such a sanction certainly does not suggest that female diaconal ordination is coming, and that all we need is time to work out the details.

Updates (25 Sep): Some good follow-ups to this post include: Matthew Cantorino at First Things and Fr. Zuhlsdorf at his WDTPRS. Also, a sharp colleague sends me this great link to an interview with the future prefect of CDF.

(30 Sep): Msgr John Alesandro, a respected canonist, sees female deacons as possible, and supports ordaining them so. Can anyone point me to the article to which Alesandro is responding which, in turn, apparently contains the following line: “‘there is no possibility that women will ever be ordained to the diaconate’ because canon law forbids it.” I can’t imagine a good canonist expressing him/herself in such an easily refutable manner, so I ‘d like to see the original assertion.

(2 Oct): I responded to Alesandro’s comments here.

Skimming secular news reports on the recent decree by German bishops concerning Catholics paying, or not paying, the Church tax, I am sure only that the story is considerably more complex than reported. It won’t do to comment on such a story from afar armed only with secular journalists’ takes. So…

Can anyone send me, please: (1) the German bishops’ decree {I have this now, Thanks!} , (2) the actual wording on the tax form to be endorsed by a Catholic not wanting to pay the tax {I have this now, Thanks!}, and (3) the text of the Roman approval reported to have been given before the German decree came out? Auf Deutsch oder Englisch, bitte.

Many thanks!

Update Sep 27: Some first thoughts here.

Raymond Cdl. Burke’s latest address on canon law, delivered this week at a canon law conference in Kenya, builds on ideas he presented in 2011 at Seton Hall University, and forms the basis of an upcoming article by him in The Jurist. The Kenya address is vintage Burke: Understanding of and respect for canon law is vital to the Church’s overall pursuit of holiness.

Burke’s entire address should be read rather than just summarized here. Afterward, for those wishing to see more discussion of the many connections between the New Evangelization and canon law, may I suggest my “Introduction to the canonical achievements of John Paul II”, Ave Maria Law Review 5 (2007) 1-33, wherein, for example:

“So what is the fire that drove the pastoral focus of the Second Vatican Council, that took root during the reign of Pope Paul VI, and that, I think, animated John Paul II’s papacy? What … explains more than any other single factor the kind and quality of changes we see in the 1983 Code of Canon Law? It is the summons to a New Evangelization.”

and

“[T]he Church faces not so much a non-Christian culture but a de-Christianized one … It is this situation, never before faced by the Church—certainly not on a large scale—that I suggest underlies most of the startling summons to a New Evangelization … The elimination of institutes from the Pio-Benedictine Code and the introduction of new structures into the 1983 Code correlate strongly with the need to provide the Church with a legal system effective to the overriding missiological goal of New Evangelization.”

Charging an impoverished 11 year-old Down’s Syndrome girl with any crime—let alone with the crime of blasphemy for perhaps having made a cooking fire out of trash that might have included some pages of the Koran—is not an act of reason, so there is no point in showing how un-reasonable such a scenario is. But this episode might occasion two questions for Catholics: is blasphemy a crime under canon law, and can children be charged with committing it? Let’s deal with the second first.

1. An 11 year-old child cannot be charged with any canonical crime whatsoever (1983 CIC 1323, 1º). A host of other reasonable objections to charging (let alone convicting) this girl for anything (e.g., c. 1323, 2º on ignorance, or c. 1323, 6º on lack of reason) are not needed.

2. As for whether the gravely evil deed of blasphemy (CCC 2148) is a crime under canon law, some careful reading is required per 1983 CIC 18 and Reg. Iur. 49 in VIº, In poenis benignior est interpretatio facienda.

No canon directly criminalizes “blasphemy” and indeed only one canon even mentions it, Canon 1369, which criminalizes, among other things, the dissemination of blasphemy especially through social media. Canon law seems, then, to regard blasphemy as assertions (that is, as utterances, not actions) against God, including “language against Christ’s Church, the saints, and sacred things” (CCC 2148). Moreover, canon law regards blasphemy as primarily a moral issue, except, as noted above, where blasphemy is carried out by means intended to impact society. Now, this girl is reported to have made no utterances against God, etc., and certainly made none via the public media, so the very elements of a crime of blasphemy are not even alleged here.

As for whether a Catholic who deliberately burns the Scriptures might have committed a canonical crime thereby (say, profanation of a sacred object per 1983 CIC 1376), we can talk about that if, Deus vetat, it ever happens.

But we would not be talking about blasphemy.

Catching up on some more developments in the clerical continence discussions that occurred while I was away, I note that in November 2011, William Cdl. Levada, then prefect of the Congregation for the Doctrine of the Faith, addressed a clergy conference in Belo Horizonte, Brazil, on the subject of clerical celibacy. I only spotted his text on the Vatican’s website as I was leaving for Vienna, however, so I could not comment on it then, but several of the prelate’s observations, especially those on clerical continence, bear underscoring.

Levada noted that he spoke out of “personal conviction, and not on behalf of the Congregation for the Doctrine of the Faith” when he proposed “celibacy and continence as a tradition going back to apostolic times.”

I highlight the following excerpts (rearranged, sans footnotes):

1. In general, many of the Church Fathers in the Patristic period engaged in speculative theories about the possible marriage of one or other Apostle. But the Fathers are unanimous in saying that those Apostles who might have been married gave up their marital lives and practiced perfect continence. Cochini calls this “common opinion” of the Fathers an authoritative hermeneutic of the scriptural texts in which reference is made to the detachment practiced by Christ’s disciples, especially Matthew 19: 27 and Luke 18: 28-30.

2. Peter … says to Jesus, “Look, we have left our homes and followed you.” And here is Jesus’ reply: “Truly I tell you, there is no one who has left house or wife or brothers or parents or children, for the sake of the kingdom of God, who will not get back very much more in this age, and in the age to come eternal life.” Cochini comments that the common opinion of the Fathers that the “giving up everything” meant that the Apostles left their wives (if they indeed had been married). This common opinion was the official preaching of the early centuries in major Christian centers, beginning with Clement in Alexandria and Tertullian in Africa. Cochini calls it “the expression of the collective memory of the apostolic Churches with regard to the example left by the apostles for future generations – an argument from Tradition that cannot be overlooked.”

3. Perhaps the most suitable conclusion to this section would be that of Father Cochini, whose meticulous studies allowed him to “conclude that the obligation demanded from married deacons, priests, and bishops to observe perfect continence with their wives is not, in the Church, the fruit of a belated development, but on the contrary, in the full meaning of the term, an unwritten tradition of apostolic origin that, so far as we know, found its first canonical expression in the 4^th century.”

The cardinal’s thoughtful appeal to history, notably his citations to the Jesuit historian Cochini (along with Alfons Stickler and Peter Brown), are very interesting, but it occasions me saying something that has occurred to me several times in this debate and needs to be said.

Briefly, my canonical arguments for clerical continence as binding married clerics do not, repeat not, depend on my ability to prove the “apostolic origins” of clerical continence. My arguments for clerical continence rest on what the law requires today. Yes I have, I suggest, proven that what the 1983 Code requires today is exactly what the 1917 Code required in its day, and my own studies (as yet unpublished) have found that identical requirement in the Ius Decretalium (dating to the 13^th century), while others, like Liotta, have found it in Gratian (12^th century). For that matter, the canonical expressions of the clerical continence obligation seem to me amply demonstrated by Cochini, et al., back to the Fourth Century and, having read Stickler, Heid, and others, my personal opinion is that the obligation of continence is, in fact, of apostolic origin. But, I say again, one need not prove the apostolic origin of Canon 277—or of any other canon in the 1983 Code—in order to find the canon clear and its force binding.

Many, probably the majority, of opponents to clerical continence ultimately base their arguments on practices alleged to have obtained in ancient times. As a matter of history, I find their arguments unpersuasive at best, but as a matter of law I find their arguments irrelevant. By claiming, as almost their sole objection to the modern law of clerical continence, the (alleged) witness of the ancient of Church, these persons commit, I think, the error of “primitivism” confronted by Pope Pius XII in his great encyclical on the liturgy, Mediator Dei (1947) n. 61.

The pontiff wrote: “[S]ome persons [seem] bent on the restoration of all the ancient rites and ceremonies indiscriminately. The liturgy of the early ages is most certainly worthy of all veneration. But ancient usage must not be esteemed more suitable and proper, either in its own right or in its significance for later times and new situations, on the simple ground that it carries the savor and aroma of antiquity. The more recent liturgical rites likewise deserve reverence and respect. They, too, owe their inspiration to the Holy Spirit, who assists the Church in every age even to the consummation of the world. They are equally the resources used by the majestic Spouse of Jesus Christ to promote and procure the sanctity of man.”

Exactly the same thing may be said in regard to canon law. Even if (I say if) one could prove that married deacons, priests, and bishops, were allowed in ancient times to continue conjugal relations with their wives after ordination, that would prove nothing about what canon law expects of them under the 1983 Code, or indeed what it unquestionably expected of them under 1917 Code, or about what it has certainly expected of them for at least 1,000 years. The most that one could do with such a historical finding would be to appeal to it for a change in the modern law, chiefly in Canon 277. But one would not have proven that the canons in question mean something other than what they plainly say.

Which is my sole point.

There were a couple of developments on the clerical continence debate while I was busy overseas (May-July 2012). I plan to address these developments in time, and begin by replying to a lengthy post on this matter offered by Dcn. James Russell of St. Louis.

Dcn. Russell graciously sent me a draft of his remarks back in May, but circumstances allowed me then only to suggest that he be more precise in his terminology. His final version was published on his website, “The Body Guard”, back on May 19. I find his remarks thoughtfully and charitably offered. They are, however, mistaken, I think, in several respects.  Those interested in this matter can read both Russell’s text and my replies here. His original post is quite long so I have placed my red interlinear replies directly in Russell’s text.

So quipped Richard Porson (1759-1808), a famous English classicist. Some 100 million native speakers of German would disagree, of course, and in any case, German is one of the five principal research languages of canon law (after Latin, the most important modern languages for canonistics are English, French, German, Italian, and Spanish—though one could make a good case for adding Dutch, Polish, and/or Portuguese to that list). Remedying my lack of German has been on my to-do list for some years, and the opportunity to do something about it (namely, spending the three months in Vienna at a language school) came up this summer, in the company of my two college age kids, no less. So, that’s where I’ve been. We have all just returned, tired but happy,  Gott sei dank.

Amid the piles of correspondence awaiting me I see several notes from readers wondering, in light of the lack of updates to my blog and website, whether all is well. I thank them for their concern, and say only, Yes, all is quite well! I’ll just be a couple weeks getting caught up on things.

Bis dann!

Hello ITLOTL Readers! For the next several weeks I am engaged in several pressing projects, which means I’ll have to forgo blogging on current events (or any other events for that matter), until my schedule clears a bit. Please keep me in your prayers and be assured of a place in mine. It’s the best way to stay in touch! Sts. Raymond & Thomas, pray for us. Dr. Edward Peters

When an ecclesiastic like Washington’s Cdl. Wuerl is attacked so meanly and repeatedly by a writer like George Neumayr, the prelate needs no friends to rush to his defense. Instead, it suffices that folks simply read what Neumayr wrote, a la:

• The word ‘pastoral’ dribbles from the lips of a bishop like Wuerl;
• who regularly exposes his flock to wolves;
• while wallowing in a worldly game of ring-kissing;
• and leaves the Church’s gates open to her fiercest enemies;
• and uses ‘clericalist tentacles’ (what a phrase!) to menace Neumayr, so on.

Most of this reads like something out of a 19^th century Nativist tract! Seriously, does any of this language satisfy the laxest interpretation of Canon 212 § 3? Does Neumayr think that screeds like this are going to win him a hearing in Rome? I thought him more savvy than that.

Neumayr seems better at reacting than he does at reading. For example, he still taunts Wuerl for approving the admission of a “self-described practicing lesbian and Buddhist” to holy Communion, when anyone with eyes to read knows I have amply demonstrated that the first factor is totally irrelevant to the reception of Communion,* and that the second characterization flatly fails under canon law of this case.

Having difficulty with arguments, Neumayr resorts to labeling those who criticize his treatment of Wuerl as being Wuerl’s “surrogates” and chums. How funny. I’ve met Wuerl twice in 30 years (doubtless he would recall neither brief exchange) and I have disagreed, publicly and repeatedly, with Wuerl’s general position on Canon 915. If I am a surrogate or chum of Wuerl’s, it’s only in Neumayr’s imagination.

That said, though, I will cut Neumayr a little slack and grieve with him that the word “pastoral” was hijacked by the heterodox in the decades after Vatican II. When I read what nonsense sometimes gets excused under the cover of “pastoral”, I cast an apologetic glace at my well-worn set of Henry Davis’ pre-conciliar Moral and Pastoral Theology and sigh to myself that some of these guys would not recognize “pastoral” if it walked up to them and punched them in the nose (which, I have a feeling, is exactly what a 1940s British Jesuit would do).

But to dismiss the word “pastoral” from the Church’s lexicon? No, don’t dismiss it! I say, reclaim it. The Church’s mission on earth is fundamentally “pastoral” and Neumayr’s likening “pastoral” to spittle dribbling from an old man’s lips is not to help us reclaim it, but to help others trash it.

Finally, as I have noted many times, canon lawyers (qua canon lawyers) do not enforce law, but they do explain it, often, to an audience that has no idea what it says. Some canon lawyers sign their names to their views, others laugh anonymously with journalists who seem primed and looking for more jibes at bishops. But it doesn’t change what the law says and, one of these days, my repeated calls for bishops to take in hand, say, Canons 1369 and 1373 will, Deo volente, be acted upon. Neumayr and his chuckling confreres should read those norms. Any Catholic who writes what Neumayr writes, and who proudly “apologize[s] for nothing”, and loudly proclaims that “the faithful have not only a right but a duty to resist heterodox [sic] bishops”, seems to be asking for it. + + +

* I understand how this point sticks in the craw of Catholics who take Church teaching on, first, sexuality, and second, the Eucharist, seriously. Really, I do understand. I have tried to explain the point in several earlier posts on this matter, and I will be addressing it more comprehensively in another forum. In the meantime, I can only say, folks must understand that personal disclosure of a sin, even an unrepented grave sin, to a priest does not allow him to withhold holy Communion from that person if s/he approaches for it publicly. And it has never sufficed under Church law. But this is only to repeat myself.

PS: (Tuesday eve): I just winced as I re-read part of the line above (now a few hours after it went it up), but I’ll leave my unhappy phrasing in place as a reminder of what can happen when one restates the same point so many times in so many places: one is bound to misstate it at least once! Obviously, being a “practicing lesbian” is relevant to one’s receiving Communion (per c. 916, etc.), but not, as I have explained many times, to having Communion withheld (per c. 915, etc.) from one under the circumstances generally being treated in this discussion. I have pointed out that difference between “reception” and “administration” of holy Communion many times in many places, and apologize for any confusion arising from my having misstated it this time.

It appears that a small parish in the small town of Stützenhofen (Archdiocese of Vienna) elected an openly-homosexual man (one Stangl), currently living in a civilly-registered partnership, to the parish council. For reasons unknown, none of the candidates for parish council signed statements attesting to acceptance of Church teaching prior to standing for election. The pastor of the parish refused to seat Stangl (who had been elected by a large margin), and things went viral from there. The final position of the AOV is not clear yet, though it has indicated that it will not challenge the parish election on “formal grounds” (probably referring to the failure of candidates to have signed the proper attestations before the election).

Some points of canon law: Membership on a parish council (c. 536) seems to qualify as holding “ecclesiastical office” (c. 145). Holding ecclesiastical office (as opposed, say, to participation in the sacraments) is not a fundamental right of the faithful, and ecclesiastical authority has considerable leeway in setting out the qualifications for holding Church office (cc. 145, 148, and 223). To be eligible for ecclesiastical office, one must be “in the communion of the Church” (c. 149 § 1). Full communion with the Church is defined, for juridic purposes, as one’s being “joined with Christ in [the Church’s] visible structure by the bonds of the profession of faith, the sacraments, and ecclesiastical governance.” One’s assumption or retention of ecclesiastical office can be declared invalid only for reasons “expressly required” by law for valid assumption or retention (c. 149 § 2). Reading the state of an ecclesiastical officer’s soul is not required by canon law (or indeed, by anything in the Catholic tradition), and so cannot serve as the basis for declaring one’s ineligibility for ecclesiastical office.

Now, canon law has been around a long time, but not every institute in canon law has a long tradition of interpretation behind it, nor are the social conditions under which canon law functions always well anticipated in the law. Parish councils, for example, are very new in canon law, and the theoretical bases on which they rest (such as, degrees of lay participation in ecclesiastical governance) are but recent objects of increased doctrinal and juridic study. Meanwhile, militant homosexual activism in general, and the civil recognition of various forms of homosexual unions in particular, are entirely new in Western law and society. How these (and other) factors come together in Church life need careful sorting out. To some degree this sorting out can come about only on a case-by-case basis, and mistakes will inevitably be made, even by people of good will. Mistakes need to be fixed, of course, but, in the meantime, I suggest that, when they occur in novel cases (or seem to have occurred), corrections be offered (c. 212 § 3), not hyperbolic condemnations.

In the present case, cries of Götterdämmerung from the Right (and for that matter, triumphalist shouts from the Left) are premature. + + +

Update: Cdl Schoenborn’s letter of April 5 is [not] here, but I’ll try to find a link that works.

Update: 24 April. Dr. Josef Seifert has an excellent analysis of what’s at issue here, offered in the manner that I hoped to see such advice offered (more evidence, by the way, that thought requires time, more time than the blogosphere is content to offer real issues). I have little to add to Seifert’s remarks, excerpt perhaps to say that the analogy Seifert offers from diocesan pastoral councils (c. 511) is useful, but the requirement of “full communion” for ecclesiastical officer holders (c. 149) which I outlined above is directly on point. I’d use both arguments.

It’s one thing to feel angry. But it’s another thing to write angry. And George Neumayr is writing angry.

Last week Neumayr fired off a sustained and mean attack on Cdl. Wuerl (my response here). To no one’s great surprise, Wuerl’s people complained (albeit privately) to Neumayr’s boss—you know, sorta kinda exactly the way people complain to Wuerl’s boss in Rome. All the time. Now, it might not be my way of doing things, and it might not even be Neumayr’s, but, c’mon, complaints to editors about their writers’ opinions are as old as the press itself. Writers who work, by their own choice, in the public eye, should account complaints about their writing as a fact of life. At the very least, they shouldn’t respond with a follow-up diatribe about, of all things, how “notoriously thin-skinned” other people are!

Dark days (like the ones we live in now) occasion hard cases (like the Guarnizo case, which set off this conflagration), and hard cases, in turn, make bad law (like what defenders of Guarnizo’s decision would erect to justify his action, paying little heed to how their rules would impact other cases). But I think that dark days, hard cases, and the threat of bad laws, call for greater clarity of analysis, not less. And anger does not lend itself to clarity of anything.

But enough with the fraternal correction.

Neumayr has now publicly and repeatedly accused the archbishop of Washington of, among other things, “pandering to the enemies of the Church”, of “expos[ing] the Holy Eucharist to sacrilege”, of “hand[ing] a propaganda victory to forces of secularism that seek to destroy the Church in America”, and of “capitulati[ng] to … the atheistic agitprop artists of the age.” I think such words run plainly afoul of Canon 1373 which threatens censure against “a person who publicly incites among subjects animosities or hatred against … an ordinary because of some act of power or ecclesiastical ministry….” So.

Neumayr’s made his point. Not in a way that is a credit to him, I regret to conclude, but, he’s made it. For that matter, everything that can be intelligently said about the Guarnizo case, based on what was known at the time, has been said, and unless and until some new hard facts, if any, come to light, further discussion of this case serves no purpose. + + +

Update, 29 March 2012: The Catholic League, too, takes a pretty dim view of Neumayr’s writing here.
 

Weclome musingsofacanonist

A brief word of welcome (even if it’s more like ‘Welcome to the Fray!’) to Fr. Stuart MacDonald, JCL, and his new blog musingsofacanonist. Like almost everyone else whose opinions on things canonical are worth attending to, MacDonald is very busy with many other things, so we’ll have to see how his blog develops over time, what topics he can address, how often, in what detail (even in terms of a blog, mind), but, having seen a few of his essays and his first post or two, I know he’ll be worth following. I’ve already signed up.

Sante Raymunde, ora pro nobis et omnibus.

George Neumayr is a terrific observer of things Catholic, and an excellent writer to boot. But everybody has a bad day from time to time, and today must have been Neumayr’s. Unfortunately, the object of his ire is not just a brother in the Lord but a major prelate governing a very important American see. Little, (frankly, nothing) in Neumayr’s on-line editorial today for American Spectator will help Cdl Donald Wuerl do a better job for the Catholic Church in Washington DC.

Amid his obvious anger, sacrcasm, and numerous ad hominem shots, Neumayr blasts Wuerl’s stance on Rep Nancy Pelosi with the same trigger pull by which he blasts Wuerl’s (sic: so far, Wuerl’s subordinates) response to the Barbara Johnson case. But the two cases differ markedly and, in going after an episcopal p.o.v. that deserves informed criticism, Neumayr took out a stance that deserves our support.

There is hardly a higher-profile Catholic in America who, more often than Pelosi does, expressly invokes the Catholic faith to defend the most consistently anti-…, anti-…, anti-almost everything that Catholics in public life should oppose about the culture of death. I have repeatedly called for Canon 915 to be invoked against Pelosi (for starters) to deny her holy Communion for so long as she falls afoul of what I think is every canonical aspect of “obstinate perseverance in manifest grave sin”, this call being made for her welfare and for that of the wider Church. Moreover, I have expressly argued that Wuerl’s interpretation of Canon 915 and his subsequent reticence to invoke Canon 915 as I think it should be invoked against Pelosi, is wrong.*

Now, if Neumayr had made only that point—and had he written in a tone consistent with the admonition in Canon 212 § 3 to express views in the Church “with reverence for pastors and … attentive to the dignity of persons”, I would be applauding his words (as I usually do when I read Neumayr). Instead, Neumayr drew the same bead on Wuerl for his inaction in the Pelosi matter that he drew on Wuerl (or his subordinates’) for his actions in the Johnson matter. To repeat: in re Pelosi, I think Wuerl’s thinking is remiss and that holy Communion should be withheld from her; but in re Johnson, I think the Archdiocese of Washington is right and holy Communion should not have been withheld from her that day.

So, Neumayr rants “The latest episode isn’t even a close call. If Cardinal Wuerl doesn’t have the guts to deny Communion to an agitprop lesbian Buddhist, he should close up shop and hand the keys to his chancery over to Obama.” Does anyone think that does not qualify as a rant? Before I say anything else, let me say, such invective directed against a sitting bishop is inexcusable.

Now, taking in reverse order Neumayr’s three reasons for denying holy Communion to Johnson:

First, Johnson is not a Buddhist, she is canonically a Catholic; if Neumayr is not happy with that conclusion, he should direct his complaints first to the Pontifical Council for Legislative Texts for their 2006 Notification in this area (which I questioned at the time), and then to Benedict XVI for his 2009 motu proprio virtually eliminating the possibility of defecting from the Church in any manner other than as a canonical criminal (which change in the law I of course accept because it is the law).

Second, although Johnson is a lesbian, being a lesbian does not disqualify one from being admitted to holy Communion any more than being divorced disqualifies one from receiving holy Communion—even though the Church takes a pretty dim view of both lesbianism and divorce; if Neumayr is not happy with that conclusion, he should direct his complaints to the Congregation for the Doctrine of the Faith for, say, its 1986 letter on the pastoral care of homosexual persons and its 1994 letter on the admission of divorced and remarried Catholics to the Eucharist.

Third, whatever Neumayr means by his allegation of  “agitprop” by Johnson prior to her being denied holy Communion, and assuming we have the right Barbara Johnson (see the question raised by J. K. McPortland over at Mark Shea’s), and discounting as canonically irrelevant to this matter whatever activity Johnson has engaged in after being publicly denied Communion by Guarnizo, the minister of Communion must still have satisfied all of the elements of Canon 915 before withholding holy Communion publicly from a member of the faithful, lest the rights of the faithful be violated. I have argued that, reading the facts most favorably to Guarnizo, such could not have been done here, but, at a minimum, I have raised serious questions that it could have been done, and Canon 18 says that Canon 915 must be strictly satisfied, not just plausibly invoked.

In short, Neumayr’s blast of Wuerl flatly fails on two of his three points and it begs the central question being debated in his third. In Neumayr’s words, “this … isn’t even a close call.” I think, for its many failures in substance and for its egregious failures in form, Neumayr should retract his essay.
 

That said, if Neumayr is angry that too many bishops have for too long neglected the care they owe the Eucharist, he should say so. Prudently and without rancor. Others would listen. If Neumayr is angry that too many bishops have for too long neglected the care they owe clergy and faithful alike in matters of sacramental discipline, he should say so. Prudently and without rancor. Others would listen. If Neumayr is angry that too many bishops have for too long neglected to defend Church teaching against open and obvious assaults from a hostile world, he should say so. Prudently and without rancor. Others would listen. But he should not let his anger at these failings heat up in a closed heart until they explode one day against a bishop who, as it happened, got the case at hand correct.

If someone of Neumayr’s “cred” does so, others might imitate him, engendering more unmeasured intra-ecclesial invective at what is shaping up to be an absolutely critical time in Church history. + + +

* I can’t reparse all of Wuerl’s comments on Canon 915 here, but in regard to Pelosi, he holds not that she is eligible for holy Communion despite Canon 915, but rather, that a decision on her eligibility should come from her local ordinary (Abp. Neiderauer of San Francisco). As I say, I cannot respond to that argument here, but I can say that I have criticized Neiderauer’s actions under Canon 915 as well.

British Catholic blogger Damien Thompson recently remarked “For Roman Catholics the prospect [of Britain legalizing same-sex marriage] is a very bleak one. Even if a liberal priest wanted to do the honours, he’d incur automatic excommunication and be out of a job. The ‘wedding’ would be a parody of the sacrament. So a legal ban would save a lot of awkwardness.” Of course, there is no such thing as ‘same-sex marriage’ and civil law should not pretend that there is. But that’s not what I respond to here. My focus is on canon law.

As canon law reads right now, officiating at a ‘same-sex wedding’ does not result in latae sententiae excommunication. Green, “Table 1”, in CLSA Comm (1985) at 932. To the extent, however, that such action on a cleric’s part might constitute, say, “abuse of ecclesiastical power or function”—and I think that such an act would constitute abuse of Church office—he might well face punishment “according to the gravity of the act” and even loss of office. Canon 1389. Whether that punishment could, in turn, in the face of, say, clerical recalcitrance or repeat offenses, lay the foundations for later excommunication (Canons 1393, 1399, and/or by particular legislation under Canon 1315) remains to be seen.

Individual Catholics attempting such marriages seem generally susceptible to a “just penalty” for simulation of a sacrament under Canon 1379. + + +

As I prepared for Confirmation (back when the sacrament was conferred on second graders) I spent considerable time ruminating about my choice of patron saint (‘twas the biggest decision I had yet been trusted with). So I asked Sr. Marie, “Who’s a good saint for being in charge of a family?” Not that I had the faintest idea of what ‘being in charge of a family’ entailed, it’s just that I kept seeing an image of a husband/father in my future. “Saint Joseph,” came her answer. Soror locuta, causa finita.
 

Dcn. Greg Kandra posted some fine thoughts today on “St. Joseph and the Age of Anxiety” that expressed my now middle-aged mind almost perfectly. So often, when facing some family situation or another, I sense that (besides God, of course) only St. Joseph (or St. Thomas More) really understand what’s at stake. I turn to him (well, both of them) often, and encourage other men responsible for a wife and children to do the same.

Sicut pater taciter stat Faber supra nos, et dicit nobis suaviter ‘Defendo quoque vos.’

From time to time I see the following thought expressed on Catholic websites or in their comboxes: “I appreciate Dr. Peters’ views on canon law, I really do. But he’s just one canon lawyer. I’d like to hear the views of some other canonists from time to time.” Thoughtful remark, that.
 

In days of yore (and I mean, way yore) it was not unusual for canonists to debate topics before the public (or at any rate, before folks who weren’t working dawn to dusk just to put food on the table). Occasionally, some of these debates turned rambunctious (John the Monk’s 1301 lecture on the Sixth Book of Decretals was said to have caused a riot in Paris). In any event, public canonical debates served to remind those outside of strictly ecclesiastical circles that canon law was a vibrant legal system and that it dealt with real, if sometimes controverted, issues in the Church. It still is, and it still does.

As a canonist, I hear from other canonists about canonical issues all the time, so I don’t experience the dearth of public commentary on canon law topics quite as the public would, but some thoughts occur to me as to why there is, in fact, so little popular, let alone well-informed, debate about canon law these days, especially on-line. Three factors figure prominently, I think.

First, canon law is many things, but one of the main things it is, is no place for guessing. While the Code is largely effective at offering concrete direction to Catholics regarding their rights and duties in the Church, answering controverted questions about matters not immediately answered in the Code or in a commentary or two usually requires, besides graduate training, some fairly advanced scholarly resources (e.g., lots of old books in Latin and professional journals from around the world). Because canonists, like other good lawyers, don’t like to guess at answers, their discussions and debates about canonical controversies indeed take place, but inter peritos.

Second, many fine canonists, the kinds of men and women I turn to for insight on canonical matters, currently hold governing offices in the Church. As a practical matter, such offices prevent them from expressing personal views on various issues that might someday come before them officially. I was a diocesan canonist for more than a decade; now I teach in a seminary. As an academic I have considerably more freedom to opine on matters canonical (responsibly, I trust) than I ever enjoyed as a diocesan staffer.

Third, keeping in mind that canon lawyers make up only a tiny fraction of the number of Catholics in society, and discounting many fine canonists who hold positions of authority in the Church that curb their freedom to comment, and discounting others who don’t have easy access to the latest tools in canonistics, one is left with precious few folks situated to offer public commentary on things canonic at all.

And what of those few? Well, perhaps not all of them have the compulsion to educate (as I do, since that day in first grade when I impatiently took over the reading class) nor might they have a willingness to take a good share of slings and arrows for their efforts (as I do, within reason.)* Instead, these other canonists, I suspect, simply do their good quietly rather than take time to do it publicly.

Proverbs XV reminds us that there is wisdom in the counsel of many. So does Canon 19. I’ve been blogging on canonical topics for just shy of ten years, and I’ve had the field pretty much to myself, but other canonists don’t need my permission to start a blog, and more than one of them has received encouragement from me to join the work. So, we’ll see what might happen.

Of course, I don’t promise we won’t start a riot. + + +

* I’ll never forget Cdl. Burke’s quip to a beginning canon law student who asked the prelate for some words of advice: “Well, the first thing I would say is, canon law is not for the faint of heart!”

As I look through the continuing blogosphere commentary on the lesbian/Communion case, I see many people confusing the concept of “manifest sin” in Canon 915 with the notion of, I dunno, something like “manifestly sinful”. Those two phrases mean different things*, I suggest, and Canon 915 speaks only in terms of the former, not the latter.

In 2008 I published a CLSA advisory opinion on Canon 915 and two years later posted it on my Canon 915 resource page. I paraphrase part of that opinion for use today:

     Manifest. The additional requirement that gravely sinful behavior be manifest prior to withholding the Eucharist helps distinguish Canon 915, which operates in realm of public order, from Canon 916, which informs one’s personal responsibility to receive the Eucharist worthily. Reception of Communion at Mass is a public action in service to rendering liturgical worship to God; it is not the place for the proclamation of another’s private behavior. However sinful it might be, conduct that is not already widely known in the community is not manifest as canon law understands that term in this context. In something of a parallel to Canon 1340 § 2 (which prohibits imposing public penances for occult transgressions) and Canon 1330 (which prohibits any penalties in cases where no one has perceived the offense) the public withholding of the Eucharist for little-known sins, even though they might well be grave, is not permitted under canon law.

Some folks seem to get the canonical distinction between public and private conduct but think the Church is being too lenient in dealing with grave-but-as-yet-private sin. They’re free to make that case, though I think the Church’s wisdom is more than canon-law deep here. Anyway, though they disagree with the law, they understand it, so my job is done in their regard. + + +

* Example: I keep saying that a would-be Communion recipient’s brief disclosure to a minister a few minutes before Mass that she has a female “lover” does not suffice to verify, among other things, that the sin apparently being admitted to is canonically manifest in the community; others say, c’mon, lesbian sexual activity is manifestly sinful. See? I’m talking about what Canon 915 actually says, while they are talking about what they think Canon 915 says.

Fr. Marcel Guarnizo’s statement evidences misunderstandings of several aspects of Catholic law on the administration of holy Communion and confirms my sense that Guarnizo erred in withholding holy Communion in this case. Regarding those errors, I believe that he, and those inclined to support or even imitate him, need correction.

Preliminary points

I offer here canonical commentary, and that, only for those who are interested in the operation of canon law in the Church and are aware of (or willing to take direction on) how this venerable legal system serves the Christian community. Those suffering, regardless of their doctrinal views, from various kinds of ecclesiastical antinomianism are invited to address their more basic concerns about the role of law in the Church in another context.

I comment here only on Guarnizo’s decision to withhold holy Communion from Barbara Johnson on Feb 25, except briefly to correct one parenthetical remark by Guarnizo: he apparently thinks that Cdl. Wuerl does not have the authority to “suspend” him. I have stated all along that Guarnizo is not suspended, but there is no question that Wuerl could suspend Guarnizo, or apply any other appropriate penalty, if things come to that (cc. 1408, 1412).

This is a blog post (if a longish one), so I can’t include as much scholarly apparatus (e.g., footnotes, in-text citations) as befits a study of this matter. Likewise, I must leave some useful but secondary points of law unstated here; none of those points, however, in my opinion, would rehabilitate Guarnizo’s decision in this case.

Summary of pertinent facts

Guarnizo admits that he only met Johnson a few minutes before her mother’s funeral Mass, admits that he had no knowledge whatsoever about the Johnson family, and offers no indication that he knew anything about the congregation gathered for Mass that day.

Guarnizo says that, a few minutes before Mass started, Johnson appeared in the sacristy and introduced another woman as her “lover”; further conversation was prevented by the “lover” standing in a doorway. There was apparently no mention of Johnson’s possible lesbian activism, her cohabitation status (if any), her degree of ‘alienation’ from the Church, or her possible involvement in Buddhism.

There is no reason to doubt but that Johnson was baptized Catholic and there is no evidence that she ever proffered an “act of formal defection” (when such were possible) or has been found guilty of a canonical crime such as apostasy (c. 751, 1364).

Primary applicable canons

Notwithstanding some unguarded talk about no one having the right to receive holy Communion, canon law provides a complex of norms that upholds the faithful’s fundamental rights—rights ultimately conferred by Christ through His Church—to receive the sacraments. Cappello, DE SACRAMENTIS (1945) I: 361.

Canon 213 asserts the right of the faithful “to receive assistance from the sacred pastors out of the spiritual goods of the Church, especially the word of God and the sacraments”; Canon 843 § 1 forbids ministers from withholding sacraments from those “who seek them at appropriate times, are properly disposed, and are not prohibited by law from receiving them;” and Canon 912 states that “any baptized person not prohibited by law can and must be admitted to holy communion.” Moreover, Canon 18 requires that any law restricting the exercise of rights (as Canon 915 certainly does) be strictly interpreted, that is, that the restrictions in Canon 915 be construed as narrowly as reasonably possible. Considered individually or as a group, these canons are strongly pro-reception.

The chief norm requiring the faithful to prepare well for the worthy reception of holy Communion is Canon 916. Of its nature, however, Canon 916, dealing essentially with internal forum matters, does not (any more than do several other canons in the Code) lend itself to exterior enforcement by ecclesiastical authority. Canon 916 binds gravely in conscience and an accounting to God of one’s conduct under that canon (or at any rate, under the values it protects) will be owed by each Catholic at Judgment. But Canon 916 itself is not regarded as an object of external-forum enforcement by ministers of holy Communion.

In contrast, Canon 915 binds ministers, not recipients. Prescinding from rarely encountered excommunication and interdict situations, Canon 915 lays out several distinct conditions that must be simultaneously satisfied before a minister of Holy Communion may (and indeed, should) withhold the Eucharist from a member of the faithful. To justify withholding the Eucharist under Canon 915 according to its plain terms, the conduct in which a communicant perseveres must be obstinate, manifest, grave, and sinful. These conditions must be understood and assessed according to the Church’s canonical tradition, else, one is no longer talking about the law of the Catholic Church.

Given the very strong canonical presumptions accorded the faithful in regard to reception of the sacraments, and given the strict interpretative hermeneutic set out in Canon 18, the burden is, without question, on the minister of holy Communion to verify that all of the conditions listed in canon 915 are satisfied before he withholds holy Communion from a member of the faithful who approaches for it publicly.* Put another way, the burden is not on Guarnizo’s critics to prove that he should not have acted as he did in this case, rather, the burden is on Guarnizo to prove that he acted in accord with Church discipline.

Summary argument on Canon 915 in light of Guarnizo’s admissions

Guarnizo did not know, and could not have verified, whether Johnson’s sin (speaking objectively), which could be grave (a conclusion I think a Catholic could reach based on the words used here) was also manifest, as well as obstinate and perseverating. Yet such factors, according to a host of respected commentators writing over many decades, must be verified before withholding holy Communion from a member of the faithful. Consider:

“If the priest … doubts the publicity or notoriety of the crime, it would certainly be safer to give the Holy Eucharist to one who publically asks for it.” Dom Augustine, COMMENTARY (1920) IV: 230.

“Occulto peccatori qui publice accedit ad sacram Mensam administranda vero est sacra communio … si fideles, quippe cum eis indignitas non sit nota, timore afficiantur, ne et ipsi infamentur, si sacerdos ob … ignoratiam, errorem, etc, eos praetereat.” Jone, COMMENTARIUM (1954) II: 100.

“If there is doubt about the notoriety of the sin, the communicant is to be favored in public.” Abbo-Hannan, SACRED CANONS (1960) I: 854.

“Before a minister can lawfully refuse the Eucharist, he must be certain that the person obstinately persists in a sinful situation or in sinful behavior that is manifest (i.e. public) and objectively grave.” Kelly, in GB& I COMM (1995) 503.

“The minister of holy communion should not publicly deny communion to a person who, being afflicted by grave sin and/or subject to a non-declared penalty latae sententiae [e.g., for apostasy] is not notoriously under those situations.” Gramunt, in EXEGETICAL COMM (2004) III/1: 615-616.

I know of no commentator who disputes these views. In terms of Canon 915, and given Guarnizo’s factual admissions above, I conclude that Guarnizo erred in withholding Communion.

Interestingly, some language in Guarnizo’s statement suggests that not even he thinks that Canon 915 provides cover for his decision, and we now turn to other factors that he thinks might justify his withholding Communion from a member of the faithful who asks for it publicly. We must determine whether these grounds (a) would support him in principle and, if so, (b) whether they would do so in fact.

Guarnizo’s appeal to other grounds

G: If a Quaker, a Lutheran or a Buddhist, desiring communion had introduced himself as such, before Mass, a priest would be obligated to withhold communion.

In principle, Canon 844 § 1 directs Catholic ministers not to administer most sacraments to non-Catholics (though for somewhat different reasons and with somewhat different implications depending on baptismal status of the petitioner). Baptized Catholics, however, are presumed to be Catholics until death (absent satisfaction of some very rarified conditions), and therefore, notwithstanding their possible self-description as non-Catholic, they continue to enjoy the benefits of the strong pro-reception canons outlined above. Canon 844 does not support withholding the sacraments from baptized Catholics, and indeed, it adds to the norms supporting reception of same. Guarnizo’s implicit appeal to Canon 844 fails as a matter of law.

Moreover, there is no evidence that Johnson identified herself as Buddhist before approaching for holy Communion and, even if she had so claimed, there is no way that Guarnizo could have confirmed her new status (essentially, as an apostate) based on a few words before Mass. Guarnizo’s implicit appeal to Canon 844 fails as a matter of fact.

G: If someone had shown up in my sacristy drunk, or high on drugs, no communion would have been possible either.

In principle, intoxication would be a good example of not  being properly “disposed” for the reception of the sacrament under Canon 843 § 1. Guarnizo does not, however, claim that Johnson was intoxicated or high on drugs, so, his implicit appeal to Canon 843 fails on the facts.

That said, what Guarnizo might have meant that his awareness that Johnson had a female “lover” sufficed for him to conclude that she was not properly “disposed” to receive holy Communion. If so, there are several problems with that claim.

Most traditional canonical and sacramental authors who discuss “disposition” for sacraments divide their analysis of “disposition” into ‘objective’ factors (such as being obviously drunk) and ‘subjective’ factors (such as being in the state of grace, or motivated by right intention, etc). Cappello, DE SACRAMENTIS (1945) I: 401-407, 444-450; Halligan, ADMINISTRATION (1963) 111-113.

Guarnizo alleges none of traditional ‘objective’ factors by which commentators could conclude for indisposition (e.g., eating food in the Communion line, or cursing at the minister, gravely immodest dress, having communicated twice that day, and so on), so, he can only be impugning Johnson’s ‘subjective’ state. That kind of discernment, however, is impossible for human ministers to make, and is another reason why Canon 916 (which operates in the realm of conscience) is distinct from Canon 915 (which operates only in the realm of verified conduct).

G: If a Catholic, divorced and remarried (without an annulment) would make that known in my sacristy, they too according to Catholic doctrine, would be impeded from receiving communion. This has nothing to do with Canon 915.

For reasons I can develop elsewhere, I think that withholding holy Communion from those divorced and remarried outside the Church is an application of Canon 915 (see, e.g., Kelly, in GB&I COMM [1995] 503), but I need not prove that point to show that withholding the Eucharist from divorced-and-remarrieds, that is, those who status is de iure public, is appropriate under, among other things, the 1994 CDF Letter on Communion for Divorced and Remarried Catholics, n. 6. Of course, as Johnson is apparently not divorced and remarried outside the Church, and because Guarnizo did not suspect her of being so, his implicit appeal to the CDF letter and/or c. 915, fails in law and in fact.

In brief, I find none of the additional arguments which Guarnizo offers for his conduct sufficing to justify it.

Some other brief points made by Guarnizo

G: Ms. Johnson’s circumstances are precisely one of those relations which impede her access to communion according to Catholic teaching.

The syntax of this sentence is not clear, but it amounts to a gratuitous assertion, resting on a continuing confusion between a recipient’s duties under Canon 916, and the minister’s duties under Canon 915. To grasp the difference between these two norms is grasp the essence of the thing.

G: Ms. Johnson was a guest in our parish, not the arbitrer [sic] of how sacraments are dispensed in the Catholic Church.

First, canon law does not require parish membership for admission to holy Communion in a parish; second, it is very inappropriate to refer to any baptized Catholic as a “guest” in a parish church (cc. 1214, 1221); and third, the Church is the arbiter of how sacraments are to be dispensed (c. 840), and she does so through her canon and liturgical law. Ministers of the sacraments are bound to observe those laws faithfully (cc. 838, 841, 846).

G: In all of the above circumstances, I would have been placed in a similar uncomfortable position.

The minister’s comfort level is irrelevant to his duty under the law. I believe some priests perform private acts of reparation for sacrilegious Communions which they fear might have been committed with their material cooperation.**

G: Under these circumstances, I quietly withheld communion, so quietly that even the Eucharistic Minister standing four feet from me was not aware I had done so.

The lack of immediate commotion associated with Guarnizo’s action is irrelevant to whether he withheld holy Communion from a would-be recipient, and if so, whether he acted rightly. In any case, the commotion that his action provoked in its wake has been enormous.

G: But I am going to defend my conduct in these instances, because what happened I believe contains a warning to the church.

I, too, believe that this case is warning to the Church, a warning to make sure that ministers of the Eucharist understand and observe the Church’s sacramental law. The Church can best defend herself from a hateful world seeking her harm when she follows her own rules; but when she, or hers, fail to do so, the problems become legion.

Final remark

I have long believed that the express terms of Canon 915 support its much wider application against certain prominent scandal-giving Catholics, and I have labored to advance the application of Canon 915 ad bonum Ecclesiae et salutem animarum. Serious misapplications of the values underlying Canon 915, however, undertaken by ill-informed ministers and touted by grossly ill-formed partisans, only set back the cause of seeing Canon 915 applied correctly today.

* There is no doubt but that one approaching holy Communion at Mass in a parish church, as Johnson did, is approaching the sacrament publicly. Note that the ability (indeed, duty) to withhold holy Communion from persons approaching privately (an uncommon scenario these days) but believed by the minister to be unworthy, is wider. Abbo-Hannan, SACRED CANONS (1960) I: 854; Jone, COMMENTARIUM (1954) II: 100, etc.

** Here are a few words for priests grieved by having to administer holy Communion to persons whom they strongly suspect are unworthy: Jone, COMMENTARIUM (1954) II: 100, wherein “Huiusmodi damnum publicum vitandum autem sufficiens est causa, quae cooperationem materialem ad peccatum alterius permittit.” and Cappello, DE SACRAMENTIS (1945) I: 476, wherein “Quidam scriptores, praesertim rerum asceticarum, exaggerant gravitatem peccati Communionis sacrilegae. Cavendum est ab omni excessu, ne fideles, rudes praesertim et pueri, in desperationem coniiciantur.” These words, coming as they do from priest-authors who were pastors as well as scholars, might offer some consolation to ministers grieved by seeing fresh wounds inflicted on the Body of Christ.

I get paid to explain canon law in the calm context of the graduate classroom, where things like definitions, nuance, history, and values can be reflected upon by well-informed peers (or at least by students who do the readings!) But I never let my students forget that canon law is fundamentally a legal system, and that legal systems deal with real people, and that real people can make a sorry mess of their lives and the lives of others in pretty short order. So, if the recent lesbian/Communion controversy affords us an unlooked-for opportunity, perhaps even a necessity, to explain some of the working of canon law, so be it. I’m game.

Here, I consider the three common questions about this case. Sometimes, yes, the questions are rhetorical and seem designed more to taunt than to inquire, but to the degree they nevertheless help surface issues that others might find instructive, let’s look at them.

Isn’t it just splitting hairs to describe Fr. Guarnizo as being on “administrative leave” when everyone knows he is suspended?

We are talking canon law, right? Well, canon law is an ancient legal system that, over many centuries, has developed numerous terms of art. Canon law is not secret, but neither is it simple. Those who want to discuss canon law intelligently must understand and observe canonical definitions, or risk talking nonsense. In any case, it is not incumbent on canon lawyers to run around explaining their terms to everyone under the sun who wants to express an opinion about this canonical issue or that. Instead, it is incumbent on those many others to find out (or at least to take some guidance on) how canon law uses certain words before pronouncing judgment.

The word “suspension” denotes a canonical penalty imposed only upon guilt for a canonical crime (c. 1333). In the not-too-distant past, some ecclesiastical officials, including bishops, misused the word “suspension” to describe what may be more accurately described as “administrative leave” (more about that in a sec), but when they did so, canonists, publicly and privately, corrected that misuse of terms and, for some time now, the mistaken use of “suspension” seems to have faded out among ecclesiastical leadership. Deo gratias. Only to reappear now among some bloggers. Sigh.

But: if you are talking canon law, and you describe a cleric as “suspended”, you have described him as being guilty of a canonical crime. Therefore, those describing Fr. Guarnizo as “suspended” are canonically defaming him. Whether they know it or not.

Now, about “administrative leave”. Canon law, a living legal system serving a living Church, is trying to catch up to some recent developments in, among other things, the theology of holy Orders, which developments have brought about, among things, the eclipse of the Pio-Benedictine category of “simplex priest”, leaving a hole in the law, or at least in its terminology, to describe a priest who is not under a penalty (c.o.), nor irregular for orders (c. 1044), nor restricted pursuant to a penal process (c. 1722). This category of priest undoubtedly exists (because faculties for preaching, confessions, sacramental acts, and so on, can undoubtedly be restricted or taken away without any suggestion of guilt, etc.), but the 1983 Code does not give us a neat term to denote such priests. Until such time, if any, as the Legislator chooses to give us such a term, the phrase “administrative leave” seems to cover that gap fairly well, or at least, it does so among people who know what they are talking about.

In short, the phrase “administrative leave” protects the reputation of the cleric in question; the term “suspension” marks him as a canonical criminal.

So, are priests supposed to help lesbian Buddhists commit sacrilege against Our Lord by giving them holy Communion?

Deep breath, Ed….Okay. Let’s break this down.

Lesbian. First, the Church regards the homosexual/lesbian condition as “disordered” in somewhat the same way that one may regard alcoholism as a “disorder”. According to our tradition, one may not deny holy Communion to an individual suffering from a “disorder”, so, those Catholics calling for the banning of “a lesbian” from Communion are violating our tradition (not to mention our canon law). That said, however, it is possible to deprive one of holy Communion who engages in conduct that amounts to canonically verified “obstinate perseverance in manifest grave sin” (c. 915), as canon law uses each of those terms. I have said from the beginning of this mess, verifiable conduct, not asserted status, is the only question relevant here. Now, if someone wants to make the case that all five (per c. 18) of those banning conditions were canonically satisfied a few minutes before Mass one day, they are free to try. I think they would fail in the attempt, but that’s just my opinion. In any case, at least such persons would be talking about what is relevant here, the law on holy Communion, and not just using rhetorical questions as cudgels.

Buddhists. Buddhists have no right to holy Communion; baptized persons, in accord with law, have the right to holy Communion (c. 912, etc.). This woman was baptized Catholic. The presumption is, therefore, that she had a right to Communion, and the burden is on those who would deny her same to prove that she is no longer permitted by law to receive holy Communion, here, on the grounds that she is a Buddhist. That is a heavy burden of proof, of course, and one not likely sustainable in a short conversation before Mass one day, and one made even more difficult in the wake of a Notification handed down in April 2006 regarding the “formal act of defection” and its relation to, among other things, the canonical crime of apostasy (cc. 751, 1364), and in turn its impact on the application of wider canon law to such individuals. In short, canonists know that a Catholic’s claim to be a Buddhist, and a Catholic’s being canonically recognized as being a Buddhist, are very distinct things. Those who are not canonists may be excused not being aware of the difference, but not for ignoring it once it is pointed out to them.

Given all the hoopla this lady has generated about herself, wouldn’t it be fair to say that if she presents herself for Communion again, she should be denied?

Yes. With one caveat common among the doctors who have discussed these situations for several centuries—in contrast to most bloggers who have been aware of these questions for maybe several days.

Notoriety (of the type needed for denial of the Eucharist) in one place is not necessarily notoriety in another. Like other human communities, the cyber-community exaggerates how widely known are matters of interest to it. I would not want to see a priest unaware of this woman’s profile, etc., and giving her Communion, being torn to shreds by Catholic hotheads for desecrating the Eucharist. This is one more reason why Canon 915 (and a half-dozen other relevant norms) are so narrowly drawn: the primary responsibility for approaching holy Communion worthily rests with the individual (c. 916).

This, mind, from someone who has labored for years, and who will continue to do so, to get Canon 915 enforced properly. + + +

See also Phil Lawler, The removal of Father Guarnizo—what we still don’t know (13 March 2012)

Ha! That’s the second time the “s” in “controversy” has dropped out of my title! How funny.

Most of the lesbian/Communion controversy has been a dis-edifying parade of misleading commentary being proffered about misapplied laws. I don’t write here to correct these many errors, as their partisans (whether ‘left’ or ‘right’) don’t seem especially interested in what the law actually says, but I am happy to offer some observations on Bp. Knestout’s letter of March 9 for those who are trying to understand what is, and is not, at work in this matter.

1. Fr. Guarnizo has not been suspended (suspension is a canonical penalty levied only upon guilt for crimes, per c. 1333), but he has been placed on “administrative leave”, a term not found in the Code, but nevertheless serving as a practical description of a situation in which, usually, one is not permitted to function as a cleric for so long as a wider situation requires resolution. A priest’s faculties for confession, preaching (homilies), witnessing weddings, etc. can be restricted a couple of different ways, and there is no reason to think that those ways were not satisfied in this action (although direct discussion of them is lacking).

From the text of the letter, I cannot tell whether Guarnizo is prohibited from celebrating Mass even in private (he is certainly prohibited from public celebration), although the trend in such cases is to allow for private celebration. This question could easily be addressed between Knestout and Guarnizo, and probably has already been answered.

2. A vicar general almost certainly has sufficient authority to issue such a letter (c. 479 § 1); one may expect the Cardinal to be informed of this action in a timely manner (c. 480).

3. As a parochial vicar, Guarnizo has considerably fewer procedural rights to office than would a pastor. Compare a pastor’s rights under c. 522, etc., and c. 1740 etc., with those of a parochial vicar, per c. 552. All associate pastors know this.

4. Guarnizo is not “incardinated” in the Archdiocese of Washington (c. 265 etc.); the situation of an “extern” priest is inherently more tenuous than is the situation of locally incardinated clergy, it being a function more of contract (express or implied) than of law. All extern priests know this.

5. Little in Knestout’s letter suggests that this action is being taken in response to the lesbian/Communion controversy (though one may be sure that the pro-lesbian camp will claim victory, and the pro-Guarnizo camp will decry the ‘mistreatment’ of the priest).

The allegations of “intimidating behavior” by Guarnizo are not recited in Knestout’s letter, but three questions would occur to me: (a) is this just a pile-on by people looking to kick Guarnizo while he is down?, or (b) are there long-standing legitimate complaints against Guarnizo that the recent controversy made more likely to surface? , or (c) did Guarnizo’s post-controversy conduct in the parish render him intemperate with others, provoking what are really recent complaints? Such are the things that an investigation is designed to, well, investigate.

6. The letter expresses the hope that Guarnizo will be able to return to priestly ministry. + + +

So, I noticed some hits coming from WaPo, and I clicked back to see what was sending readers my way. Now, I’m confused.

A Washington Post news blog by one Michelle Boorstein states that “Specific details about why the Rev. Marcel Guarnizo was barred from ministry – a severe penalty – were not immediately available.” The words “a severe penalty” are hot-linked to my post above.

But, the very first point of my post above is that Guarnizo is NOT under a penalty (let alone, a severe one, a description of suspension that I never used).

Ever wonder why so few professionals try to blog complex current events? It’s because we usually end up wondering, how on earth can our crystal clear statements be so completely misunderstood and/or misrepresented? Sigh.

Perhaps this thought exercise might help folks to think through the lesbian/Communion controversy better. Imagine we’re looking at the line of those approaching for holy Communion one Sunday morning at Mass.

I see ten men approaching. One of them is dressed in Neo-Nazi gear. Quick, which one (in my view) is ineligible for holy Communion per c. 915? Would pretty much everyone there know why I turned him away?

I see ten people approaching. It’s Gay Pride Week and two of them are wearing Rainbow Sashes. Quick, which two (in my view) are ineligible for holy Communion per c. 915? Would pretty much everyone there know why I turned them away?

I see ten people approaching. One of them is Nancy Pelosi. Quick, which one (in my view) is ineligible for holy Communion per c. 915? Would pretty much everyone there know why I turned her away (even if they disagreed with my decision)?

Okay, now, I see ten women approaching. One of them is a lesbian. Quick, which one (according to some) is ineligible for holy Communion per c. 915? And how would anyone there know why I turned her away?

See the problem? Everyone knows what Neo-Nazis, and Rainbow Sashers, and Nancy Pelosi look like, but what does a lesbian look like?

Canon 915 (unlike Canon 916!) is about public consequences for public behavior. But “public” must be taken here as understood by canon law, and not necessarily as assumed from casual parlance.

Some evil conduct is so open, protracted, and well-known in the community (whether locally or nationally) that consequences at Communion time should (in a well-ordered body ecclesiastic) come as no surprise to the faith community. But other conduct, even though it is gravely wrong (one element of Canon 915) is not so open, protracted, or well-known (another element of Canon 915) so as to allow the community in question to understand what is happening to the individual in question.

If Nancy Pelosi is turned away from Communion, no one is going to wonder whether it is because she is, say, carrying on a torrid affair against her husband; if Rainbow Sashers are turned away from Communion, no one is going to suspect that, I dunno, they’ve embezzled money from their employers; and if a Neo-Nazi is turned away from Communion, no one is really going to wonder why. But if a some normal-looking woman in line for holy Communion is tuned away from the Sacrament, even politely, how are people supposed to know why? Did she kill maybe someone? Is she a porno queen or a prostitute? Maybe she runs that abortion clinic. Is she cheating on her husband or taking bribes at work? What?

Unless a substantial majority of the community in question (I’m assuming them to be adults, reasonably aware of Catholic life around them, etc.) knows at the time why a given individual is being denied holy Communion, that’s a pretty good sign that Canon 915 has not been satisfied, and that Canon 912 (and some others norms) has been violated.

Now, sure, over time, and under certain circumstances, any of the behaviors described above can become so well-known in the community that those involved in such activities should be denied holy Communion, provided the other elements of c. 915—like, say, “obstinacy”— are also satisfied.

A few years ago, Bp. Ricken made exactly this kind of determination about, in fact, two Catholic lesbians who had repeatedly proclaimed their aberrant lifestyle in the local media. He contacted them and told them they were not permitted to approach for holy Communion. He acted entirely appropriately, in accord with canon law (and sound sacramental theology), and his action won support from neutral observers. But, notice, his conduct was a far cry from a quick decision regarding ALL elements of c. 915 (not just one or two of them) made a few minutes before Mass one day.

And the fallout from the two cases has been night-and-day different. + + +

The story of the lesbian being denied holy Communion at her mother’s funeral has several versions and layers to it (no reason to think any one of them is especially complete or accurate), but, based on what seems to have occurred, I’ll say this:

This is what happens when bizarre events (like an admitted practicing lesbian presenting herself for holy Communion in the first place), happen on the watch of priests whose love for the Eucharist probably exceeds their knowledge of the law on reception of holy Communion (through no fault of their own, doubtless), before a well-wired-world that can broadcast misinformation and even flatly wrong interpretations of an event with nary a care for correcting itself later. No matter who gets hurt along the way. And plenty of people have been hurt in this one.

I have expended no little effort over many years (like about 22) trying to get Canon 915 correctly understood and properly applied in ecclesiastical life. In the last few years, some signs of progress have appeared. Now, out of nowhere, Canon 915 is being invoked by some as justification for an action that, reading the facts as alleged in the light most favorable to the minister, would not have justified his withholding holy Communion from the woman in question. Specifically, a few minutes conversation (if that’s what happened), mostly with a third party (if that’s what happened), would not suffice, in the face of numerous canons protecting the right of the faithful to receive the sacraments, to verify either the notoriety of the (objectively) sinful situation, or to verify the obstinacy of the would-be recipient, both of which elements, among others in Canon 915, must be demonstrated before withholding holy Communion.

What else is there to say? I offer no opinions on the rest of this mess (e.g., did she perhaps approach for the Sacrament in part to make a point? is the archdiocesan letter of apology prudent?), and would advise those who really wish to understand Canon 915 and its proper, even vital, role in ecclesiastical life to study the materials gathered here.

PS: for another case of Canon 915 being applied in regard to a lesbian couple, see my post here. + + +

There’s some good commentary over at Fr. Z’s blog.

Pope Benedict XVI’s Aristotelian ability to entertain a thought without accepting it occasions more than a few observers to leap to their own conclusions about what the pope holds, but then, when it is pointed out that the pope has not committed himself to a view which he might have articulated here or there, to sputter about with “But, but, but, the pope said it!”, as if a quondam university professor could express no viewpoints besides those he believes.

The latest in a long line of calls for divorced and remarried (outside the Church) Catholics to be formally readmitted to holy Communion, this one from Austria, is an example of the proclivity of some to take the pope’s thinking-out-loud about a topic as some sort of papal ipse dixit on that topic. Here, the pope is portrayed as having opened the door (twice in fact) to Catholics in irregular marriages being formally admitted to holy Communion—first in his remarks to the priests of the diocese of Aosta (2005) and again in one of his annual addresses to the Roman Rota (2006).

We may dispatch with the Rota claim forthwith: It’s not there. At all. The pope’s comments to priests in Aosta are more complex, I grant, but they do not, I think, signal a papal rethinking of Eucharistic discipline; rather, they show his interesting openness to rethinking an aspect of matrimonial law.

In his Aosta comments the pope recognized the pain of Catholics disallowed reception of holy Communion based on their irregular marriage situation, but his ideas toward alleviating that pain did not run toward changing the rules on admission to holy Communion. When he was Cardinal Ratzinger, the pope “wrote the book” (actually, it was a letter) on the admission of divorced and remarried Catholics to holy Communion. His letter was a beautiful tapestry of pastoral solicitude, fidelity to Church teaching on marriage and the Eucharist, and appreciation for how canon law serves the Church and her members. Nothing in it suggests that any good comes from winking at the truth for, as everyone knows, the truth cannot set us free if it is not the truth. Parlaying papal remarks to diocesan priests into an abrogation of that dicasterial latter would be, to put it mildly, a stretch.

Rather the pope’s remarks in Aosta turned, I think, toward rethinking canonical jurisprudence (itself based on matrimonial theology, of course) that all marriages between baptized parties, even those demonstrably bereft of living faith, are, notwithstanding that grave defect, presumptively valid. The pope’s question is entirely distinct from whether divorced and remarried Catholics may go to Communion, though eventually his question about marriage law could impact the issue of Communion reception, as follows: If certain marriages now presumed valid and sacramental (cit. omm.) turn out not to deserve that presumption, then their canonical nullity might be more easily proven, meaning that the convalidation of certain marriages outside the Church might be more easily accomplished, meaning that couples in such unions could return to Communion. There are, obviously, several steps in that sequence, and the pope is just suggesting that the first one be given a look, but who could disagree with his suggestion to study the matter? Marriage law is in need of reform in several respects, and for one I say, have at it. Prudently, to be sure.

But in the meantime, those who claim Benedict XVI as a proponent of formally admitting Catholics in irregular marriages to holy Communion need, I suggest, to parse more carefully what the pope actually said about this matter on various occasions, and to identify more carefully what he actually holds regarding this important question. + + +

See also Cdl. Ratzinger’s remarks from 1998, here.

The protracted angst over the supposed “future” of the Legion of Christ and its affiliated organizations has been difficult to watch these past years, but with other matters pressing me, I have offered little commentary on the process. Today’s news that a number of consecrated women are leaving the Legion to live under the authority of local bishops is, I think, good news for them. Even better, it occasioned these remarks from Fr. Thomas Berg, a priest whom I hold in the highest regard.

Per the article linked above, “The Rev. Thomas Berg, an American who left the Legion in 2009 [and who was promptly incardinated into the Archdiocese of New York, lucky them], said the only way forward for the Legion is for groups like these to emerge and ‘step outside the Legion shell and propose a renewed form of religious life.’ He noted that there are historical precedents: ‘Franciscan reform groups have emerged from within the Franciscan family time and again to ‘reform’ the order and constitute a new kind of Franciscan community,’ he said in an email. He said the difference was that the Legion itself wouldn’t survive the formation of such groups. ‘But that is precisely what must happen: the Legion of Christ as we knew it needs to disappear. And a purified, new religious family needs to emerge,’” emphasis added.

Fr. Berg’s words reflect exactly my own opinion regarding the Legion of Christ. It needs to disappear. + + +

Melbourne Archbishop Denis Hart has published a brief statement asserting that Fr. Ian Waters, JCD, is being misrepresented by the secular media (and by some others?) as highly critical of the pope’s actions in the Bp. Morris case. Having read, now, Fr. Waters’ “Reflections”, I think Hart’s corrective regarding Waters, if I understand him, is right.

In my opinion, Waters’ canonical reflections fall within the bounds of Canon 212 § 3. I agree with some of his remarks, I am unpersuaded by several others, and I disagree with some. But that is hardly cause for alarm; lawyers are like that. Still, in general, it seems—and with Abp. Hart I think—my impression is that there is rather less in Waters’ remarks than meets the eye, by which I mean, supporters of Bp. Morris seem to be taking Waters to be saying considerably more (to their liking) than in fact he actually says.

For example, Waters writes “many canonists would certainly have questioned whether a bishop in such a situation [as Morris] would be capable of the personal freedom necessary to make an informed decision.” That phrasing might comfort Morris’ supporters, but they should know (and I suspect that Waters would agree) that many canonists would reply that other men making important life decisions under circumstances similar to those faced by Bp. Morris are certainly canonically and naturally sufficiently free to make those decisions.

Or again, Waters writes “If the process for removing a parish priest were adapted for the case of Bishop Morris, it would involve [following several objectively determinable steps].” That is quite true. But of course, the dynamic between bishops and pope is, from a half dozen points of view, not comparable to the dynamic between pastors and bishop, and papal-episcopal relations are not susceptible to being neatly circumscribed by a check-list of sequential steps. Similarly, I think Waters’ suggested appeal to Canon 19 is reasonable, even if it eventually proves bootless, as I think it would, because the very rarity of papal interventions in cases like this one leaves the Roman Curia without a substantial praxis to draw upon for guidance.

I agree with Waters that nothing in the public record of this case suggests that it was a penal deprivation matter (cc. 196, 419), but, if this had been a penal case, that would not have implied, pace Waters, that Morris’ “good name [could] not be called into question”. One has the right not have one’s good name not called into question only during the preliminary penal investigation (c. 1717 § 2) and more generally, to be free only of illegitimate harm to one’s reputation (c. 220). If one’s name suffers legitimately during a case, so be it.

As for the Waters’ interesting discussion of prior cases of Australian bishops apparently removed by Rome, I have not the background to determine their relevance to the Morris situation, but I would note that none of cases occurred under the 1983 Code, only one occurred under Pio-Benedictine law, and three occurred under late Decretal law. Analogies can be drawn from them, therefore, but with considerable caution.

In the end, Waters concurs with [Judge] Carter’s conclusion that “Bishop Morris was denied procedural fairness and natural justice.” Notice, first, what this statement does not say: it does not say that Morris should have been left in office; it does not say that, had Morris been canonically prosecuted, he would have been vindicated; it does not say that popes have no authority to remove bishops from office except upon conviction of ecclesiastical crimes. My impression is that Morris supporters have assumed all three points to be Waters’ position.

Instead, Waters only says, I suggest, that, assuming the accuracy of the narration provided by Judge Carter,* in Waters’ canonical opinion, Morris was “denied procedural fairness and natural justice.”** Time will tell, of course, but given that the removal of bishops from office (and I repeat that I am not convinced that happened here), outside of the parameters established in Canon 416, is so unusual, one should hardly expect immediate agreement among canonists as to manner and results of individual cases. + + +

* Time permitting, I’ll try to read through Judge Carter’s ‘canonical’ critique but, having read more than my share of attempts by common lawyers to parse canon law over the years, it’s not at the top of my to-do list. Sorry, it just isn’t.

** Might one suggest that the greatest injustice done to Morris was treating him with such excessive, and perhaps misleading, deference for ten-plus years when what all sides really deserved was a direct confrontation on the facts and a prompt resolution of this neuralgic case?

It seems that much ado is being done about a “report” issued by retired Queensland Supreme Court Judge William J. Carter to the effect that Bp. William Morris, formerly of Toowoomba, suffered major violations of his rights under Roman Catholic canon law when he was “removed” from office by Pope Benedict XVI in May 2011. I’ll come back to this word “removed” shortly. But, first, I have to wonder about Judge Carter’s qualifications to pronounce upon canon law at all.

Judge Carter’s credentials as a canonist are not apparent. Did the secular press simply fail to mention them? I dunno, but, if anyone thinks that Carter’s credentials as an expert in Australian common law afford him any expertise over Catholic canon law—not to mention the degree of expertise needed to declare that Morris’ treatment was “offensive” in light of both [Australian] and canon (church) law—they need to think again.

Judge Carter’s expertise in Australian common law no more qualifies him to parse canons than my doctorate in canon law (or for that matter, my degree in American common law) qualifies me to practice before Australian courts. Oddly, however, this kind of casually-assumed expertise over canon law persists among some common lawyers. I’ve dealt with it before,* but every time I encounter it, it strikes me as inexplicably presumptuous for professionals in one legal tradition to so easily assume that they can master a radically different legal system with a few read-throughs and maybe a dictionary.  If that’s what happened here, and, as I take pains to point out, I only know what I see reported in the press; but the press here suggests no reason to think that Carter has any training in canon law. By the way, although it seems that Carter brings no canonical expertise to this discussion, my claim is not that whatever he writes about canon law must be wrong, rather, it is that there’s no reason to accord his opinions on canon law any special weight.

That said, I understand that Fr. Ian Waters, a well-qualified canonist in East Melbourne, apparently agrees with Judge Carter. Now, Waters’ views on canon law would be worth considering and I will do so as soon as I can locate a copy of his remarks (I’ve not yet been able to do so yet—update: just got it, comments here).

In the meantime, about this alleged “removal” of Bp. Morris from office: I, for one, still do not know what actually happened in this case.

Yes, the departure of Morris from office is widely described in the press as a “removal” and yes, the Vatican Information Service apparently used that word at the time, and yes, there have arguably been a “removal” or two of bishops from office under Benedict XVI (indeed, even one under John Paul II). But Morris himself describes his departure as being one of “early retirement” and the Apostolic Nuncio to Australia said the pope had “accepted the retirement” of Morris. So exactly what happened in this case is not clear from the sources available to me.

Now, maybe, “early retirement” is a new canonical institute that none of us extra Urbem has ever heard of, but I doubt it. My guess is that “early retirement” is some kind of  ‘avoidance-talk’ from an office-holder who winces at the word “resignation”—even though resignation is exactly what this seems to be—and Rome, prudently or otherwise, let him have his way. Personally, I don’t like it when ecclesiastical officials countenance new words being used to describe what seem to be well-defined types of actions, but, whatever, the situation seems resolved.

Or is it?

More than semantics, I suggest, are at issue here. Consider: If a bishop resigns his office (c. 401 § 2), under Roman pressure or otherwise, it is fundamentally his decision, not the pope’s; if a bishop is deprived of office (c. 416), it’s fundamentally the pope’s decision (c. 1405 § 1, 3º), to be reached in accord with seldom-consulted, but nevertheless identifiable, canons; and if a bishop is removed from office (cc. 192? 331? 333?), well, that’s a whole new set of questions for modern ecclesiology and canonistics. Thus, labeling this departure from episcopal office as an “early retirement” only masks whatever is going on, delays qualified analysis of the case, and encourages destructive chatter and dark insinuations. None of which I find helpful.

Anyway, it looks to me like, whatever word he wants to use, the fifth bishop of Toowoomba, in the end, resigned his office. Which would make it End of Story. + + +

* See, e.g., Edward Peters, “Lest amateurs argue canon law: a reply to Patrick Gordon’s brief against Bp. Thomas Daily“, Angelicum 83 (2006) 121-142. (Pontifical University of St. Thomas Aquinas, Rome)

In March 2010, I expressed the view that Nancy Pelosi’s protracted and public anti-life conduct, which she repeatedly justifies with (twisted takes on) the Catholic faith, sufficed, in my view, to bring about her debarment from the reception of holy Communion under Canon 915. If Pelosi’s “prolonged public conduct does not qualify as obstinate perseverance in manifest grave sin,” I wrote two years ago, “then, in all sincerity, I must admit to not knowing what would constitute obstinate perseverance in manifest grave sin.”

It’s now February of 2012, and nothing in Pelosi’s conduct over the last 23 months suggests any emendation of her attitudes toward killing unborn babies, etc., etc., etc. Indeed her recent call for Catholics qua Catholics to unite behind, of all things!, President Obama’s plan to impose immoral policies on private medical insurance plans—which call provoked this moving cri de coeur from Fr. Zuhlsdorf—suggests that Pelosi’s views, like Pharaoh’s heart, have only hardened with time.

Canon 915, as I and others have explained many times, is not about impositions on individual conscience, it’s about public consequences for public behavior. It’s about taking people at their word and acknowledging the character of their actions. It’s about not pretending that people don’t really mean what they repeatedly say and what they repeatedly do.

Nancy Pelosi obviously means exactly what she says, and she regularly backs up her words with deeds. She deserves to be taken seriously. Very seriously.

As a canon lawyer, my view is that Nancy Pelosi deserves to be deprived of holy Communion as the just consequence of her public actions; as her fellow Catholic, my view is that Nancy Pelosi deserves to be deprived of holy Communion to bring home to her and to the wider faith community the gravity of her conduct and the need to avoid such conduct altogether or, that failing, at least to repent of it. Quickly.

Update, 8 feb 2012: HHS Secretary Kathleen Sebelius, a major proponent of the Obama administration’s push to mandate contraceptive coverage regardless of religious conviction, is already barred from holy Communion as a result of her pro-abortion activities while governor of Kansas. Bishops in the Washington DC area declared their intention to honor Bp. Naumann’s 2008 directive, and I’ve not heard of any change in the situation. In other words, no reasonably well-informed Catholic believes that, in conducting herself as she does, Sebelius is acting as a Catholic entrusted with high public office ought to act. Thus, the scandal that Sebelius gives is significantly reduced.

The same cannot be said of Pelosi.

I think Planned Parenthood is evil, but I don’t need to vindicate that claim for what follows to, well, follow.

Planned Parenthood is a non-profit corporation capable of, among other things, receiving donations from others. The Komen ‘Race for the Cure’ Foundation is a non-profit corporation capable of, among other things, making donations to others. For many years, Komen has made donations to Planned Parenthood, which Planned Parenthood happily accepted. Okay, fine.

But this year, Komen said that it would not make a donation to Planned Parenthood, and an unbelievable outcry erupted. Why? Because one non-profit, Komen, said it did not choose to donate to another non-profit, Planned Parenthood. What condemnations Komen suffered! What contemptuous scoldings! What hatred! And all because it, as an independent non-profit, decided that it did not want to make what was supposed to be a free gift to another independent non-profit. Now we read that Komen’s leadership has yielded to the fury and basically decided to make other “free” gifts to Planned Parenthood.

May I ask, where is it written that, once someone donates to a cause, one must forever donate to that cause?

I’ll tell you where I think it’s written: in Planned Parenthood’s mentality and that of many of its allies, for whom funding is seen not just as more money to pursue chosen ends, but as concrete reaffirmation that, in the final analysis, what they are doing is a good—this, against any fairly offered arguments to the contrary. Wrong craves reassurance that it’s right. Funding does not just help Planned Parenthood leadership to balance the books; it also helps them sleep at night.

I feel sorry for Komen, they seem like a nice bunch of people pursuing a worthy goal. But now Komen stands as an object lesson for other non-profits: run with the likes of Planned Parenthood for a spell, and just see what happens when you try to go your own way. +++

With regard to the civil law suit apparently filed by some members of San Juan Batista Parish in the Diocese of El Paso—and looking only at this aspect of a considerably wider controversy impacting that local Church—the canon law governing special donations to parishes is clear:

• ownership of goods belongs to the “juridic person” that lawfully acquired them (c. 1256);
• offerings given to administrators of juridic persons are presumed given to the juridic person itself (c. 1267 § 1);* and,
• offerings given by the faithful for a certain purpose can be used only for that purpose (c. 1267 § 3, and many other canons).

Now, because parishes are “juridic persons” distinct from dioceses (see cc. 373 and 515 § 3), and because a pastor is the administrator of the goods of a parish (c. 532), any specially-designated donations made to a pastor/parish can be used by that parish only for the purpose expressed.** If the donations truly cannot be used for the purpose collected, the prudent course would seem to be to consult the donors about a redesignation of their gift (GB&I Comm 716) or, that failing, even to return the gifts.***

But if the canon law in such matters is fairly straightforward, the facts of such cases tend to get very blurry, very quickly. Some of the questions that occurred to me as I read the above news story included: Were the funds solicited, and if so, by whom and how? What stipulations, if any, were actually attached to these gifts? To whom or what were the donations actually made? Where are the funds now, how did they get there, and why?

Now, I don’t know what jurisdiction Texas law gives its courts over internal ecclesiastical disputes, but I am very sure that canon law has the authority to adjudicate this matter (c. 1400, etc.). Moreover, St. Paul’s injunction (I Cor. 6) to avoid civil litigation among ourselves, especially when the controversy is ecclesiastical, bears repeating, no matter who is filing a suit or countersuit.****

All sides to an ecclesiastical matter may have access to canonical advice and representation (c. 1481 § 1); here’s hoping that both sides proceed with a clear understanding of canon law here and an accurate presentation of the facts toward a just resolution of this matter.

Even if it is just one part of a wider controversy. + + +

* A rule that implies, by the way, that such donations should be entered in the parish books and processed through normal parochial accounts.

** There are some mechanisms by which a small percentage of a donation, even an ‘ear-marked’ donation, to a parish might be payable to a diocese, but that seems not to be at issue here; rather, a ‘confiscation’ of the entire donated amount is alleged.

*** If the difficulty or impossibility of honoring donor intentions were apparent at the time the gifts were accepted, I would consider it grounds to question the conduct of the officer accepting the gifts.

**** The canonical penalty for laity suing certain ecclesiastical officials in civil court (see 1917 CIC 120, 2341) is not found in the 1983 Code.

Just over a month has passed since the AOD – Voris/RCTV matter unleashed a flash flood of cyber-commentary. Much of that commentary struck me as thinly reasoned and off-point (and occasionally, ad hominem), but amid it all some reasonable questions surfaced, too. While debates attempted without agreed-upon rules or recognized referees (i.e., internet debates!), can never be ‘won’ or ‘lost’, good can nevertheless come from assisting others to think through certain issues rather than watching them simply react to them. To that end, my personal observations on this matter, now that things have calmed down a bit, follow.

Canon 216 states that “no undertaking is to claim the name Catholic without the consent of the competent ecclesiastical authority.” Now, among the many reacting to the AOD statements on Voris/RCTV and Canon 216, no one, it seems, seriously questions that canon law prohibits any undertaking from assuming the name “Catholic” without prior ecclesiastical authorization, and no one, it seems, suggests that Voris/RCTV have such permission from the AOD or, apparently, from anyone else.

So what, exactly, has the flurry of commentary been about?

As far as I can tell, it’s been about nearly everything except what canon law requires of the Christian faithful before claiming the name “Catholic” for their undertakings: ecclesiastical permission. Against the AOD statements have been arrayed protestations of Voris/RCTV’s orthodoxy, counters that heterodox groups use the name “Catholic” with impunity, complaints that dissident groups known to be Catholic are not being corrected, objections that the AOD had no ‘jurisdiction’ to issue its statements about Voris/RCTV, consternation that many small Catholic initiatives will have to change their names, insinuations that a cabal of curial hold-outs from the 1970s have it in for Voris personally, that the AOD is bankrupt, that some critics of Voris/RCTV are tools of the Evil One, and so on. As I said, everything seems relevant, except what canon law actually says about this situation, namely, that no undertaking is to assume the name Catholic without the prior consent of ecclesiastical authority.

So, again, even though I think the clarity of Canon 216 puts everything else in shadow, as noted above, it might be instructive for some if we look at these reactions more closely.

The rest of my remarks are available here.

The US Supreme Court has just decided the most important religious liberty case it has considered in some decades. And it decided the case correctly. And unanimously.

Hosanna-Tabor concerned the right of religious bodies to determine who qualifies as “ministers” in such bodies and to engage or dismiss such ministers substantially in accord with internal religious discipline, not secular employment law. The potential of this case, if wrongly decided, to curtail the freedom of religious groups to govern themselves was enormous. Now, Deo gratias, scenarios of what things could have looked like had the Court ruled the other way can be filed under “academic exercises” instead of “contingency plans”.

Now comes the proud papa part. Yours truly had a very small hand in it.

Last June (just when my computer crashed!) I was asked to contribute to an amicus brief of Religious Tribunal Experts on behalf of plaintiffs. Trying to write in Notepad (the only program that still worked on my machine), I wrote the RTE section on Catholic canon law over several days, while others contributed sections from their faith traditions. In turn, the RTE brief joined many other filings in the case.  It was a very rewarding experience, and again, my congrats to the folks at Wiley Rein (Washington DC) who developed the brief and, by the way, won a “Brief of the Week” commendation from the National Law Journal for their fine work.

Te Deum laudamus!

From among the cornucopia of tangents down which so many have dashed in the AOD – Voris/RCTV matter, let me track just one, namely, that I did not disclose (which I did) that I work for the AOD (which I don’t). Yes, I found the point confusing, too.

At the upper right of my blog it states:

        Dr. Peters received his degree in (American common) law from the University of Missouri at Columbia in 1982 and his doctoral degree in Roman Catholic canon law from the Catholic University of America in 1991. Since 2005 he has held the Edmund Cdl. Szoka Chair at Sacred Heart Major Seminary in Detroit MI . . .

The first paragraph on my website reads:

        This is the homepage and resource center of Dr. Edward Peters, an American lay canon lawyer. Dr. Peters teaches, writes, speaks, and provides consultation and advocacy on a wide variety of canonical issues impacting the Church in the United States and around the world. Since 2005 he has held the Edmund Cdl. Szoka Chair at Sacred Heart Major Seminary in Detroit, MI . . .

If someone does not know that I work for the Detroit archdiocesan seminary, it is because he or she has zero curiosity about me (which is fine!) and/or has never heard of Google. But for their convenience, every post on my blog should be made to look like a step-ladder plastered with disclaimers and warning labels and drawings of stick-people getting electrocuted by low-hanging wires? That’s too funny.

Sacred Heart Major Seminary directly serves the mission of the Archdiocese of Detroit, of course, and through it the wider Church, but SHMS is canonically (c. 238) and civilly distinct from the AOD (c. 373). My employment contract is with the seminary, not the archdiocese, a point I nevertheless would have thought hardly worth mentioning, except that it is being roundly mis-construed and then mis-proclaimed against my canonical commentary as if t’were masking some shocking deception. As I say, rank silliness, and doubly so, since, as I routinely state, my canonical analysis of this or another matter stands or falls on its own merits. Folks can, I need hardly say, reach their own conclusions about canon law by, I suppose, whatever divines they think best. I wish them well.

Speaking more generally, now, I often explain and defend in my blog legitimate exercises of ecclesiastical authority. I do this because we live in an age that distrusts exercises of authority in general and ecclesiastical authority in particular. Even within the Church, exercises of ecclesiastical authority are often suspect, nay guilty, till proven otherwise. Part of me understands that suspicion, at least when it arises from ‘the right’: I grew up with happy-clappy catechesis, suffered through clown Masses, watched the devastation wrought on religious life, mourned the closing of one Catholic school after another, etc, etc, etc. In short, I grew up waiting for somebody to do something besides, as Fr. Z so wonderfully put it, blowing more happy gas. And I was often disappointed.

But, by the grace of God, I never let my disappointment ossify into distrust. As a result, I do not cling to my opinions about how things should be done in the Church (however sound my views might be) in the face of legitimate ecclesiastical determinations otherwise. I know all about Canon 212 § 3. It’s Canon 223 I’m concerned with now.

Widespread, knee-jerk distrust of ecclesiastical authority is perhaps the most crippling legacy left to the John Paul II generation of Church leaders by the past. This distrust is, of course, unfair to that new generation—who have done nothing to deserve it—but it is also increasingly incongruous to them. They didn’t grow up with the wackiness that many of us remember, and so they don’t understand the animus that is often directed by some otherwise orthodox Catholics against Church leaders just because they happen to be, well, leaders in the Church. Occasionally, when I see a solid young priest or seminarian suffer such prejudice, I call him aside and explain what things were like back in the day, and why patience is called for in this case or that. He listens, nods his head, and says, “Yes, I see what you mean, it must have been terrible. Well, time to get over it.” These guys are great.

Anyway, here’s hoping my blogging on the Voris/RCTV matter—regardless of whether I sort-of-do-but-really-don’t, or not, work for the AOD—helps at least some others to Get over their it.

Updated, 12 jan 2012: This kindness was much appreciated.

Part One

Further to the “jurisdiction” questions being raised about two public statements made by the Archdiocese of Detroit concerning Michael Voris and Real Catholic TV, and with the same provisos in place regarding my earlier posts (here and here) on this matter, it seems to me that some people (a) are unaware that I addressed this question in my earlier blogs; or (b) know of my answer but don’t follow the point I made; or (c) know of and understand my answer, but disagree with it.

Group A, of course, I may simply refer to my original post.

For Group B, perhaps I can rephrase things this way: every time someone asks what “jurisdiction” the AOD has over Voris/RCTV to make the statements it made, they imply, without stating, that the AOD needs “jurisdiction” (however that is to be understood) in order to make the statements it has made. I reject that unstated assumption: the AOD does not need “jurisdiction” over Voris/RCTV in order to make the public statements it has made, most recently, that it “does not regard [Voris/RCTV] as being authorized to use the word ‘Catholic’ to identify or promote their public activities.” Indeed, as declarations of fact, the statements could have been made by anyone with adequate knowledge of the situation; had those persons direct responsibility for the welfare of the Church in their area, their statements would carry all the more weight. In any case, given that Voris resides there and that RCTV programming is produced there, coupled with the fact that AOD is frequently asked about Voris/RCTV, the right of the AOD to make the statements on them, is obvious, I think—this, without any need to find and prove “jurisdiction”.

Group C offers several variations on a theme, but I’ll address them jointly.

Let’s suppose, pro arguendo, that some canonical “jurisdiction” is, now or later, needed in order for the AOD to take cognizance of the activities of Voris/RCTV. Okay, well, the jurisdiction of the AOD over Voris, as an individual residing in the archdiocese, would be clear; most of the “jurisdiction” discussion so far, however, seems to be whether the AOD has jurisdiction over the internet project(s) called “RCTV”. It is claimed by some that RCTV is not owned (or controlled, or registered, or etc) by/to anyone residing in the AOD, and therefore, the AOD has no authority over it.

Notice, once again, however, that an implicit assumption is being made, namely, that ownership (or control or registration, etc.) of an internet operation is not just a basis for canonical jurisdiction over a cyber-undertaking, it is the sole basis for the exercise of ecclesiastical jurisdiction, to the exclusion of all others (save Rome, of course). That, folks, is quite a claim, and one not even expressly stated. But it’s there, subtly shaping an answer before the question is fully grasped.

Setting aside factual disputes over who exactly owns/controls what in this matter and where, may I ask, what canon do people propose as granting exclusive competence over an internet undertaking only to the ecclesiastical leadership in the territory in which the operation is, say, commercially registered? Absent such an exclusivist canon, however—one precluding canonical jurisdiction over internet operations to any diocese except that one wherein a human owner lives who registered the subject website—the argument being alleged against AOD jurisdiction fails.

Now, I’d be happy to save folks the trouble of looking for that canon, but some might not want to take my word that it’s not there. That’s fine; while they go look, I’ll just say that discussions about “canonical jurisdiction” (1) assume as necessary something that is, so far anyway, not necessary; (2) assume the accuracy and completeness of one version of the ownership-control aspect of this matter; (3) assume as being obviously settled by law some issues that are not expressly treated in the law; and (4) assume that canonical jurisdiction over an internet undertaking can be based only on the civil ownership/registration of a website, to the exclusion of any other factual or canonical basis for jurisdiction.

That’s four pretty big assumptions. In a row. None of which, as I have mentioned earlier, are going to be settled in blogosphere, but all of which suggests that this matter is more complex than some are making it out to be.

Part Two

Speaking of more complex, while the above should suffice to contextualize the “jurisdiction” challenges being raised so far, for the more speculatively inclined among my readers, let me add a few points.

Personally, I am open to canonical arguments (and they would necessarily be arguments by analogy, as the 1983 Code does not deal specifically with internet questions) whereby, say, registration of a web address by a human being residing in diocese X accords the ecclesiastical officials in diocese X some jurisdiction over the canonically relevant activities of that website and the persons associated with it. Open to, I say, not necessarily advocating for, at least not here.

But surely it’s not hard to see that construing such jurisdiction as being necessarily exclusive would be disastrous of good ecclesial order in regard to activities claiming the name “Catholic” on the internet. Consider: ownership of a website can be divided among several entities, it can be masked (not necessarily for nefarious reasons), it can changed almost at will, it can be re-registered across diocesan lines or across oceans, it need not be held directly by Catholics, or for that matter by human beings (at least not immediately). Even if, therefore, something as ephemeral as, say, a domain registration were found to confer a degree of jurisdiction over an undertaking regulated by canon law, making such a slender reed the sole and exclusive basis of canonical jurisdiction would be to surrender, in very short order, any effective ecclesiastical authority over certain undertakings by Catholics on the internet, no matter how much said activity impacted the welfare of the Church and the salvation of souls. Couple that with the fact that civil protection for the name “Catholic” is slim to none, and one sees that the interest of the Catholic Church in canonically protecting her name against being misappropriated on the internet, especially by those known to be her own sons and daughters, is quite high.

As the public begins to consider certain questions that some canonists have been thinking about for quite a while, let me just say for now that, although the Code of Canon Law came out before the internet was a pervasive fact of life and a powerful tool for the proclamation, or distortion, of the Gospel, that does not mean that canon law is bereft of ways to approach new jurisdictional matters. Canon law has dealt with novel questions of jurisdiction over many, many centuries. It has sophisticated jurisprudence for determining such things as personal and territorial jurisdiction, shared and exclusive competence, preemption, prorogation, and so on. And these questions, however rarified they might seem, are ultimately driven by the pastoral responsibilities of the Church.

Put another way, if the Church has an interest in what happens on the internet, then canon law has an interest in what happens on the internet. The task before us, then, is to apply those laws in such a way that, while respecting the rights of Catholics to share in the mission of the Church, we carefully preserve the freedom of the Church to proclaim as she decides best the Good News that Christ left in her care.

Here’s hoping these thoughts help make that goal clearer. + + +

To paraphrase Mark Twain, I didn’t have time to write a short post, so I wrote a long one instead. Sorry.

PS: some thoughts on related matters occur to me, but for now I must plead pressing prior commitments. I’ll try to return to them soon.

Several weeks ago I saw a short article in Mosaic, our alumni magazine, about a recently deceased deacon.* It seemed to be one of those pleasant, human-interest kinds of stories, the sort of thing alumni magazines specialize in, until I reached, near the end, a paragraph describing, supposedly, the dying deacon’s last act—the baptism of his grandbaby.

Except, it wasn’t the dying deacon’s last act. It was something quite else.

What happened was: as the unconscious deacon lay near death, his bereft wife and daughter brought his grandchild into the hospital room, found some devotional objects (like a crucifix, which they placed on the cleric’s chest), cupped the man’s hand, filled it with holy water (retrieved from the hospital chapel), and poured the water over the grandbaby’s head while pronouncing the baptismal formula.

Now, I’ve been full-time in ecclesiastical work for more than 25 years, and I regularly use “grandma baptism” stories to walk my students through discussions of canonical validity and liceity (c. 841), and I can say without hesitation that this is the oddest grandma baptism story I’ve ever come across. It is certainly stranger than any example I’ve ever made up for class, confirming the dictum that truth is always stranger than fiction.

Naturally, my mind went first to canon law and, checking my sense of things against standard authorities like Cappello and Regatillo, I verified that, objectively speaking, grandma’s act was, at a minimum, illicit (starting with c. 861, but there’s more to it than that); indeed, the whole episode, however pathetic (in the old sense of that word) it was, made little sense at any level. How, one might ask, would a civil court have viewed grandma’s placing of a pen in her unconscious husband’s hand and tracing out his signature on a legal document? Not very benignly, I suggest.

As real people were involved in the episode, however, and as the story had appeared in our magazine, I passed my thoughts on to seminary administration more than a month ago, and (not to anticipate their own addressing of the matter) they responded promptly and correctly. Moreover, I confirmed a fact implied in the article—that grandma herself poured the water and pronounced the form—which means the baptism was, per the weighty authorities consulted above, certainly valid. Illicit, yes, but quite valid.

Anyway, there the matter rested until a website called “Acts of the Apostasy” reported on grandma’s baptism and, with the phrase “Pardon my French, but, like, wtf ?”, purported to analyze the episode in some detail. May I ask, first, what does the abbreviation “ wtf ” stand for? Is it a phrase that befits the discussion of Catholic sacraments? Is it a phrase that should be used in regard to a grieving widow’s sad gesture? Are these terms to be used to share the truth in charity, or are they instead the crude phrases of derision? Yes, a Catholic widow acted suddenly and strangely out of grief and love, and yes the paragraph describing this embarrassing deed escaped adequate notice by an editor. But is that proof that the “invalid practice of sacraments is proudly publicized [b]y the freakin’ seminary”? Does the incident justify the schadenfreude being exhibited over it? These questions answer themselves, I think.

Let me close with a couple wider points.

1. Christ made sacraments powerful things, and baptism, in light of its ability to be conferred by virtually anyone, is perhaps the most powerful of all. But when Christ instituted Baptism, He surely knew it would be misadministered countless times. Such misuses should spur correction, not insult.

2. This baptism was not the last act of an AOD deacon (it was the act of a woman watching her husband die), and so the episode reveals absolutely nothing about the quality of the education that the deacon received at Sacred Heart Major Seminary nor about the sacramental policy of the Archdiocese of Detroit. Claims to the contrary are recklessly false.

3. The larger the organization or group, the more members there will be who can do something (wittingly or otherwise) to embarrass that community. That’s always been true, of course, but our electronic information age gives instant prominence to the bizarre, casting it as representative of the whole, when it is no such thing. It’s time people start remembering that.

4. The internet has one huge advantage over print media: the internet reaches people instantly, while print requires time. The Mosaic editorial statement that, as a matter of fact, will address the grandma baptism story won’t appear for two more months; in the meantime, this sad episode will be used by some as another stick with which to beat a local Church.

What else can I say? Personally, I support using the internet more forcefully to defend the Church against her cyberspace detractors. Not that every misrepresentation can be corrected or every thrust parried, of course—there are far too many to deal with—but at least some sort of qualified, reasonable, fact-based response should, I think, be made to such attacks when circumstances allow.

As I have done here. + + +

* The article was J. Sanders, “Judy, We’re Home!” (Mosaic, Fall 2011) at p. 24; it has since been removed.

Update, same day: The author of the offending AoA post has, I am pleased to see, retracted the rude language of his original. That is to the good, quite. He continues, however, to ask, rhetorically I guess, whether anything is going to be done about the article itself. I said plainly that something was done about it one month ago, but that it takes time to see it in the context of the print world. Bureaucracies, especially Church bureaucracies, simply do not move at the pace accustomed in cyberspace. Perhaps he, like me, has some Missouri ‘Show Me’ blood in him. I respect that. But the correction is coming.

The resignation of Los Angeles auxiliary Bp. Gabino Zavala amid disclosures that he has fathered two children by a woman living out of state is provoking, of course, all the usual chatter about the Church needing to rethink its rules on clerical celibacy. The Zavala case, however, would be a doubly unsound beachhead from which to further that campaign.

First, by all reports (and notwithstanding the chronic confusion of these two terms), Zavala has not violated the clerical obligation of celibacy (precluding marriage, per cc. 277 and 1087), but rather the clerical obligation of continence (precluding sexual intercourse, per c. 277 and basic Catholic morality). Second, whatever one makes of married deacons and priests, there is zero tradition of married bishops in East or West (certainly past the Apostolic Age, wherein the evidence regarding their matrimonial status is controverted); here, the evidence suggests that Zavala’s children were sired post episcopatum.

In short, opponents of mandatory priestly celibacy need to find a different standard bearer than Bp. Zavala (assuming he wishes to be a standard bearer at all in this, for which there is no evidence so far.)

Further to my first posting on this matter, and with the same provisos, I offer a few words on two aspects of the Voris/RCTV situation generating many questions.

A) The AOD, some claim, does not have jurisdiction over Voris/RCTV.

1. Jurisdiction is a quintessentially canonical issue (!), but I have yet to see the “lack of jurisdiction” claim being made by anyone who knows how canon law actually determines jurisdiction over persons and projects. As a blog is not the place for me to attempt a pre-emptive tutorial on canonical jurisdiction, I’ll just say that, to the extent that jurisdiction is or might be an issue in this matter, I believe the AOD to be on firm ground.

2. I can add, though, that the “lack of jurisdiction” claim implies that the AOD needed “jurisdiction” to state that it “does not regard [Voris/RCTV] as being authorized to use the word ‘Catholic’ to identify or promote their public activities (Dec 2011)” or that “the catechetical presentations and the interpretations of Catholic teachings or positions presented by St. Michael’s Media and/or RealCatholicTV—be they audio, video, or exclusively Web-based—cannot be approved or endorsed by the archdiocese at this time (Oct 2008).”

Since when, I ask, does the AOD need “jurisdiction” to reply to inquiries made to it by third-parties regarding Voris/RCTV or to anticipate the need to respond to more such inquiries in the future? Are the pervasive claims by Voris/RCTV that they are producing “Real Catholic TV”, and running a “Catholic Investigative Agency”, and publishing the “Catholic Critic”, etc., immune from any reply by the ecclesiastical institution headquartered just a few miles from the Voris/RCTV facilities and directly responsible for the identity and mission of the Catholic Church in this region?

B) What about every other use of the word ‘Catholic’ out there?

The question rests on a multitude of scenarios, of course, and I can’t address them all, but here are a few preliminary points.

1. Like her Founder, the Catholic Church has precious few “tools” with which to carry on her mission, but among those tools is her very name, Catholic. True, Catholics in every land and in every age have misused the name “Catholic”—not always with evil intentions, of course, yet often enough with bad (sometimes, very bad) consequences for the Church. But, notwithstanding the frequency of such misappropriations of her name, the Catholic Church has the right to take whatever steps she can to protect her name from being appropriated by those who think they have the authority to wrap themselves up in it.

2. The canon law regarding use of the word “Catholic” binds Catholics regardless of the degree of protection accorded, or not, the word “Catholic” under civil law. The alternative view effectively holds that the Church may enforce only those canons that the State lets her enforce. Perish that thought.

3. The canon law on use of the word “Catholic” and on certain types of public activities carried on by Catholics is considerably broader and more complex than any descriptions I have yet seen accorded it in the blogosphere. Folks who look up a canon or two and purport to explain their meaning risk doing a disservice to both the law and the community that law is meant to serve.

4. People are basically correct, I think, to note that ecclesiastical efforts to protect the word “Catholic” have been deficient over the last several decades. They are incorrect to hold that nothing (or practically nothing) was done to protect the word “Catholic” during those years, and I invite them to do some basic research to see for themselves. And they are certainly wrong to imply that the regrettable failures of the past to protect the name “Catholic” from misappropriation effectively bars Church leadership today from acting to protect that name (as if the solution to the ills of past disregard for law were—of all things—continued disregard for law!)

5. An archdiocese, like any governing/serving organization, has limited resources (financial, personnel, etc.) with which to respond to a virtually unlimited number of situations, opportunities, and problems. The priority accorded any specific matter is, therefore, always a function of the prominence of the issue (itself to be assessed in different ways), the clarity of the potential resolution(s), the present availability of resources to address the issue, and so on. Assuming that the AOD is acting within its authority—and it is—those who assert that it should deal with X, Y, and Z before saying anything about Voris/RCTV are entitled to their opinion, of course, but, in the end, they can only be saying that the AOD’s list of priorities is not identical to theirs.

I must repeat, this matter turns essentially on canon law, and will finally be decided not by webmasters or combox jockeys, but by ecclesiastical officials acting in accord with the substantive and procedural provisions of canon law, provisions to which all parties in this matter have rightful access.

In the meantime, I hope that these posts will help defuse some of the more distracting chatter floating around out there.

The first thing to understand about the dispute between the Archdiocese of Detroit and Michael Voris and/or RealCatholicTV is that the dispute turns essentially on canon law. As a canonical dispute, it will not be decided by seeing who musters more or louder supporters in the blogosphere; it will be decided by recognizing what Church law says about such matters and then abiding by that finding.

With this being firmly understood, however, we may still use the dispute to set out some aspects of Church discipline for those wishing to understand such things better. I comment here not as an advisor to the AOD, but as an established observer on public canonical issues, and I reiterate what is noted to the right of every ITLOTL post, namely, that this blog represents my opinions only.

Canon 216 of the 1983 Code of Canon Law contains two sentences, the first of which is not at issue: “Since they participate in the mission of the Church, all the Christian faithful have the right to promote or sustain apostolic action even by their own undertakings, according to their own state and condition.” As far as this part of c. 216 is concerned, Voris/RCTV may disseminate whatever they want, whenever they wish, about whatever they please. Whether Voris/RCTV speak correctly or mistakenly on a given matter, or whether they show appropriate prudence and charity in expressing their positions, is their responsibility. Catholics are free to reach differing opinions about those questions.

But sentence two of Canon 216 is another matter: “Nevertheless, no undertaking is to claim the name ‘Catholic’ without the consent of competent ecclesiastical authority.” The plain text of this canon unquestionably puts the burden on those behind an undertaking to secure consent from the competent ecclesiastical authority before claiming the name “Catholic” for their project(s). Voris/RCTV expressly (indeed, pervasively) use the word “Catholic” to name their undertakings. They repeatedly proclaim that theirs is “Real Catholic TV”, that theirs is a “Catholic Investigative Agency”, and that theirs is “The Catholic Critic”.

The Archdiocese of Detroit demurs, whence the dispute.

Let me suggest an analogy.

Say that I’m a pretty smart lawyer, that my legal advice is usually right, that it secures for folks a better situation than they had before, and that it saves them lots of time and tons of money. All of this would mean zilch if, along the way, I held myself out to be licensed for the practice of law in some state where I was not authorized to practice. The state would not have to prove that I don’t have a law degree (in fact I do) or that my advice was unsound (it might be sound or not, depending on the issue) or that I am profiting by my work (perhaps I don’t). The state would simply have to show that I am claiming to be something I am not, namely, someone authorized to act as an attorney. I would be lucky if I got-off with just a Cease-and-Desist order.

Similarly, the AOD does not have to prove that Voris does not have a degree in theology (in fact he does), and/or that Real Catholic TV, and/or the Catholic Investigative Agency, and/or The Catholic Critic, etc., is wrong about something they said (frankly, much of what they say is sound), and so on; instead, the AOD simply has to show that one or more Voris/RCTV undertakings claim the title “Catholic” without having secured canonical authorization to make that claim.

Some people apparently don’t like how Canon 216 reads; they are free (per c. 212 § 3 no less) to make their complaints to the competent ecclesiastical authority (postage for first class letters to Rome starts at 98 cents). I can even think of some arguments they might offer (just as I can think of some counter-arguments they would need to anticipate) but, in the meantime, Canon 216 means what it plainly says: as long as Voris/RCTV claim for their undertakings the title “Catholic”, Canon 216 is applicable; but drop appropriation of the name “Catholic” for these undertakings, and Canon 216 has nothing more to say.

Surveying the blogosphere, I see a number of secondary or tangential issues (some reasonable, and some ridiculous) being raised in this matter. Most of these, however, seem resolvable by looking at what Canon 216 actually says—and doesn’t say. Perhaps I will address these issues in another post.

For now, I simply encourage Catholics to do here what I have encouraged them to do in many other contexts: pay attention to what canon law actually says when what is at issue is the operation of canon law.

Update, 5 Jan 2012: A few more things to keep in mind about the AOD and Voris/RCTV