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Some problems with Cdl Scola’s ‘fourth suggestion’

Cdl. Angelo Scola of Milan (not a canon lawyer but appreciative of the connection between canon law and doctrine) is the latest high-ranking churchman to come out solidly against what Sandro Magister calls the Kasper-Bergoglio proposal in regard to Communion for divorced-and-remarried Catholics. Toward the end of his essay, however, Scola offers a ‘fourth suggestion’ for dealing with the annulment problem, namely, a non-judicial canonical process wherein bishops will decide on marriage nullity petitions. Scola’s idea, I suggest, underscores the point that the annulment process does not lend itself to easy reformation.

The main problem with Scola’s idea is not bishops serving as judges in marriage cases (such service is already authorized in cc. 1419 and 1425); the problem with Scola’s idea is something else. But before getting to the problems in Scola’s proposal, shouldn’t we first ask diocesan bishops how they might feel about being directed to decide marriage nullity cases?

Setting aside that most diocesan bishops have not looked at a canonical commentary or read a canon law article on marriage and annulments since they were seminarians, I strongly suspect that most bishops would strongly prefer not being required to choose between Mr. Smith (who is sure his marriage was null) and Ms. Smith (who is equally sure it was not); what prelate wants to be perceived as having been “pastoral” to the ex-Jones (who got their annulment) but “rigid” with the ex-Wilsons (who did not get theirs)? I’m serious, show of hands: how many bishops want to make those kinds of decisions, let alone make them on the scale that they will need to be made?

Comes now a rejoinder based on Scola’s proposal: let bishops appoint delegates for such a task. How convenient. But precisely here is the first of many reinventions of current tribunal practice that pervade Scola’s idea: tribunal judges already are episcopally-appointed annulment-deciding officers. Why should bishops invent new ones? And, speaking about these new annulment delegates: what kind of authority would they be exercising in the Church? It makes a difference (as we shall see). Would these delegates have to be clerics, degreed in canon law? If the answer to these latter questions is Yes, I must ask again, why simply reinvent the tribunal? If the answer is No, get ready for a whole new front on the power-of-orders vs. power-of-jurisdiction battle.

Turning to the actual process outlined by Scola, it recites (albeit tautologically) the importance of “fully respecting all the necessary procedures” and urges observing “formal methods of gathering and evaluating evidence”. It would make use of “qualified personnel like notaries as required by canon law”, demand written reports from the investigator and the defender of the bond, and let the petitioner (but not the respondent?!) make use of a canonical advocate. After the final decision either party could to appeal the decision to Rome. Is it not, however, obvious that this approach simply re-packages and re-markets the current tribunal process? Tribunals already use advocates, have evidence gathering techniques, employ assessor consultation, and rely on written briefs from parties and DOBs, they already have appointed decision-makers, require cases to be based on law and truth, and allow for appeals by either side. How does Scola’s proposal really change anything, except in failing to recognize the right of respondents to canonical assistance?

Could Scola’s new system serve the needs of justice? Well, I suppose, for it seems to have the basic requisites expected by natural law. But then, so does the tribunal. Why just re-label tribunal personnel and re-package tribunal procedures as some sort of “new and improved annulment process” when it’s not new, it’s not improved, and it might even be worse (in terms of respondent rights) than is the current system?

As I say, reforming annulment procedures, if reform is really what is desired, is not going to quick or easy.

Now, for the more technically inclined among my readers, let me note a few other problems with Scola’s idea.

First, it misses the fundamental orientation of the annulment process to questions of justice—an orientation inherent in nullity cases because they are investigating the validity of human contracts—when Scola points to what he thinks are parallel examples of streamlined, administrative (non-judicial) canonical procedures, namely, those “for the dissolution of a non-consummated marriage (canons 1697-1706) or for reasons of faith (canons 1143-50), or also the penal administrative procedures (canon 1720)” as if these show the soundness of administrative processes for marriage nullity petitions.

These examples cannot advance Scola’s proposal very far. A non-consummation case is a petition for a favor which of its nature is not owed in justice, this, in sharp contrast, as Pope St. John Paul II repeatedly pointed out, to an annulment petition in which nullity has been proven in accord with law. Privilege of the faith cases are based directly on divine (not natural) law have long been sui generis among matrimony related questions. They are, in any event, dissolution cases, not annulment cases, and so make questionable precedent for nullity cases. Penal cases, finally, which are actions in justice and which should correspond to natural justice, are (and have been for decades, fairly or otherwise) plagued with accusations of episcopal arbitrariness and lack of procedural transparency largely because they are not judicial in technique—hardly an impression I would think the Church wants to give in marriage cases (i.e., cases which impact tens of thousands of faithful).

Or again, as an example of imprecision that might escape the notice of non-canonists, Scola writes: “When the need presents itself and the spouses request an annulment, it becomes essential to verify rigorously whether the marriage was valid and therefore is indissoluble.” First, marriages are never, ever, ‘verified as valid’, and even if they could be so verified, mere validity does not make all marriages indissoluble—as the cases mentioned by Scola himself would show!—and finally, dissolubility and nullity are not the same things at all.

Or again, Scola thinks that aggrieved parties could appeal their cases to the Holy See. May I ask, exactly where to? If these are really administrative procedures, as Scola thinks, appeal would not be to the Rota (which mostly handles judicial appeals from tribunals), it would instead be cast as recourse to the bishop’s hierarchic superior, likely, the Congregation for Bishops. Does that overworked and understaffed office really want to be recipient of thousands of complaints against local bishop’s annulment decisions?

I hope these points suffice to show that genuine reform of the annulment process requires very careful study by very well-informed persons. My prayers go up for those charged with this task. + + +

Update, 23 SEP 2014: Cardinal Burke offers some similar thoughts especially toward the end of this interview.

The annulment argument: a quick guide to the two sides

There are basically two groups agitating for annulment reform, one saying that there are too many annulments, the other saying that there are too few. Let me suggest that (a) the first group is mistaken if it thinks the annulment problem lies in the annulment process (ie, Book VII of the 1983 Code and Dignitas connubii) and (b) the second group seeks not so much reform of the annulment process as its effective abolishment.

The first group (those holding that there are too many annulments), can scarcely suggest any procedural reforms (short of requiring tribunals to stamp DENIED on every annulment petition) for nothing about current canon and special law makes declaring marriage nullity easy. Under current ecclesiastical law, nullity must be proven, on specific grounds, based on sworn declarations and testimony, over the arguments of an independent officer, and confirmed on appeal. There are, that I can see, no gaps in the process through which marriage cases may slip quietly but wrongly into nullity. Not even the oft-reviled Canon 1095 (the “psychological” canon upon which most annulments around the world are based) can be written off as a mere legislative novelty for it articulates (as best positive law can) jurisprudence developed by the Roman Rota itself over the last 60 or 70 years.

No, the objections of the first group to the number of annulments being declared is, I suggest, not to the annulment process but to the people running that process. Tribunal officers are, it is alleged, too naive, too heterodox, or just too lazy to reach sound decisions on nullity petitions; they treat annulments as tickets to a second chance at happiness owed to people who care enough to fill out the forms. How exactly members of this first group can reach their conclusion without extended experience in tribunal work and without adverting to the cascade of evidence that five decades of social collapse in the West and a concomitant collapse of catechetical and canonical work in the Church is wreaking exactly the disastrous effects on real people trying to enter real marriages that the Church has always warned about, escapes me. Nevertheless that is essentially their claim: the process needs no major reform, processors do.

Neither can the second group (those holding that there are too few annulments) credibly point to specific reforms of the annulment process for (with two exceptions noted below) every phase of the current annulment process is required by natural law to serve the ends of justice (and, as Pope St. John Paul II repeatedly reminded us, the annulment process is about justice—not mercy, not charity, not warm fuzzy feelings, but justice); to eliminate any of these steps would be to gut the unavoidably juridic nature of the annulment process. Natural law requires that presumptions (here, of validity) be overturned only for specific reasons (here, grounds) demonstrated by objective information (here, declarations and testimony) weighed by independent minds (here, judges) subject to review by superiors (here, appeal). Remove any of these steps and, whatever ‘process’ one is left with, it’s not a legal one. Thus I say, push proponents of the second school to be clear, and what most of them must admit seeking is the “de-juridicization” of the annulment process. It’s their right, of course, to make such a proposal, but one should not confuse calls tantamount to elimination of a process with calls for reform of a process. More about that call, below.

First, though, it must be acknowledged that two aspects of the current annulment process are not required by natural law to achieve justice, namely, the defender of the bond (c. 1432) and mandatory appeal (c. 1682). These two requirements could be dropped without altering the juridic nature of the annulment process to the point of unrecognizability and, if adopted, would likely speed up the process and raise the number of affirmative results. But the defender of the bond was instituted by a pope (Benedict XIV) with decades of legal experience dealing with real human beings gained within a Church drawing on centuries of pastoral experience dealing with real human beings. I would be loath to see that office abolished. Mandatory appeal (of affirmative results only, not negatives) seems a different matter. Such a requirement, though sharing a pedigree with the defender of the bond, seldom results in reversing affirmative decisions made in first instance and amounts therefore in a many-month delay in completing cases for no obvious reason. Besides, if one does not trust the officers of first instance to reach a sound result, why should one trust the officers of second? While they sit on different cases they are often the very same people. In any case, while one could eliminate DOBs and mandatory appeal without destroying the juridic nature of the annulment process, no one really thinks that those two institutes are the behind the annulment problem or thinks that members of the second group would be satisfied with two such ancillary reforms.

No, what the second group really wants, I think, is to eliminate the annulment process precisely as a juridic process. Their proposal comes in different guises: let the couple make the determination about whether they are married (you know, because divorced couples are so good at agreeing on things), or let their pastor decide for them, or their (presumably Catholic?) marriage counselor, and so on. Inescapably, though, such a proposal requires this: dropping the canonical presumption that when people wed they marry validly, so we don’t need a canonical process to determine whether that presumption withstands objective scrutiny; alternatively if more brazenly, dropping the idea that Jesus meant everything he said about marriage, divorce, fornication, and adultery (and, I might add, about sharing in his Body and Blood), so that the annulment issue disappears overnight.

But take, on the other hand, all of the Lord’s teachings seriously and grant that people who wed should be accorded the presumption that they are married, and—no matter what one finally calls it—a juridic process to test that presumption and, in turn, to respect those teachings, is going to be required. Personally, I think the process currently in place largely (not perfectly, but largely) does both.

A final note: one is going to hear all sorts of other matters being raised in discussions supposedly dealing with annulments and the annulment process: but be warned, if someone starts talking about, say, the sacramentality of marriage, or ex opere operato, or canonical form, or marriages entered without Faith—all of which are very important topics—know that the topic has shifted from annulments and the annulment process to one of marriage and marriage law. Related matters, I need hardly say, but quite distinct ones.

Bp. Tobin’s thoughtful column deserves some thoughtful replies

Bp. Thomas Tobin (Providence RI) has written a thoughtful column on the debate surrounding the admission of divorced and remarried Catholics to holy Communion. The column deserves a careful reading and, too, I think, some careful responses. In the interest of space, I will not comment on the many passages I agree with, nor on all of those I disagree with. The bishop’s words are in italics, my responses in plain font.

The challenge for the Church, of course, is how to maintain and proclaim the irrefutable teaching of our Lord Jesus that marriage entails a sacred and permanent bond between husband and wife, while also providing spiritual care for those Catholics who have fallen short of the ideal.

Imprecision in speech always hampers discussion, but all the more so in controversial and technical matters. In this context we are not talking about Catholics who have “fallen short of the ideal”—such a phrase describes every Catholic on earth!—but rather about Catholics who, in choosing to civilly remarry after divorce, have acted directly contrarily to “the irrefutable teaching of our Lord Jesus” and against the discipline of his holy Church. This language is not to judge persons but to describe their actions accurately.

I turn to the incident in the Gospels in which Jesus and His followers were walking through a field of grain on the Sabbath and because they were hungry, began to pick and eat the grain, a clear violation of an important Mosaic Law. … But in response, Jesus said, “The Sabbath was made for man, not man for the Sabbath” (Mk 2:23-28). In other words, while not denying the validity of the law, our Lord clearly placed it in a “pastoral context,” exempting its enforcement due to the human needs of the moment.

I am uncomfortable when proponents of controversial positions take a Scripture passage and invoke it talismanically. I always wonder, why were not other equally relevant passages noted, say, verses about not one jot or tittle of the law being abolished or about the need for disciples to be faithful in all things great or small, not to mention passages describing spouses who divorce and marry others as adulterers? At the same time, one wonders if this verse or that supports disregard of a given law, might it also support disregard of other laws? Does Mark II let us disregard, say, the Fourth Commandment or the Eighth? If not, why not?

I understand completely the arguments against taking a more “pastoral approach” to this topic, primarily that to do so would betray the sacred teaching of Christ we are obliged to uphold.

Several parts of his column leave me unconvinced of the bishop’s “complete” understanding of this matter, if only because there is scarcely any allusion to the fact that this issue turns not simply on the laws of marriage (which no one with a straight face disputes) but also on various sacramental laws surrounding the Eucharist, which laws many are, whether they know it or not, directly challenging.

But at the same time, the Church has taught the pre-eminent value of receiving the Holy Eucharist, and I keep hearing the words of Jesus about the Eucharist, words that are just as valid and important as His words about marriage: “Unless you eat the flesh of the Son of Man and drink his blood, you do not have life within you.” (Jn 6:53).

Agreed. See also I Corinthians XI: 27-30.

I often think about, and truly agonize over, the many divorced Catholics who have “dropped-out” of the Church completely, as well as those who attend Mass faithfully every Sunday, sometimes for years, without receiving the consolation and joy of the Holy Eucharist.

See what I mean about imprecision in speech hampering discussion? Divorced Catholics are not prohibited the Eucharist. Divorced and civilly remarried Catholics are prohibited the Eucharist. Time and again, defenders of traditional discipline in this matter are wrongly portrayed as wanting to see holy Communion withheld from divorced Catholics.

And I know that I would much rather give Holy Communion to these long-suffering souls than to pseudo-Catholic politicians who parade up the aisle every Sunday for Holy Communion and then return to their legislative chambers to defy the teachings of the Church by championing same-sex marriage and abortion.

Bp. Tobin speaks with real credibility here, being a bishop who takes a dim view of reception of holy Communion by Catholics “who persist in manifest grave sin” (Canon 915), having in mind pro-abortion legislators, etc. What he misses, though, is that divorced and remarried Catholics are prohibited holy Communion under exactly the same law as are pro-abortion legislators! Exactly the same. See what I mean about wider questions of Eucharistic law being inescapably involved in this marriage and divorce debate?

Can we at least think about simplifying the annulment process … Can we eliminate the necessity of having detailed personal interviews, hefty fees, testimony from witnesses, psychological exams, and automatic appeals to other tribunals?

Sure. A few thoughts toward thinking those things through: (1) personal interviews are not required under canon law, but they are offered as a help to advance petitions that would otherwise surely fail for lack of clarity in written answers; (2) “hefty fees” are not charged, not even in Providence, which makes annulment fees optional and, even if collected, cover only one-sixth* of that tribunal’s expenses; (3) testimony from witnesses is not required, but most petitions will fail for lack of evidence without them; (4) psychological exams are not required by canon law; and (5) automatic appeals are required by Rome, and I for one would welcome Tobin’s weighing in against them, as have many canon lawyers over the decades.

In lieu of this formal court-like process … can we rely more on the conscientious personal judgment of spouses about the history of their marriage (after all, they are the ministers and recipients of the sacrament!) and their worthiness to receive Holy Communion?

Several issues are confused in this passage, but to take only one, let’s agree that when men may be trusted to be knowledgeable and unbiased judges of their own cases, we may trust them to make judgments about the binding character of their wedding ceremonies. Till then …

And don’t we already offer Holy Communion to other individuals whose relationship with the Church is impaired, such as Orthodox Christians?

Everyone’s relationship with the Church is “impaired”, so ‘impaired relationship’ is not, standing alone, a bar to holy Communion. The Orthodox can be admitted to holy Communion under Canon 844 § 3, a norm wholly irrelevant to the situation of divorced and civilly remarried Catholics; if, however, a Catholic minister knew an Orthodox Christian to be ineligible for Communion under Canon 915 (say, because he or she was a notorious pro-abortion legislator or were divorced and civilly remarried), it would be wrong to administer holy Communion.

It is important that any “pastoral approach” to divorced and remarried Catholics be adopted by the Universal Church and not attempted at the level of national, diocesan or parish churches. To impose local solutions to this widespread problem would be completely dishonest and misleading, causing only confusion and division.

Amen to that.

There are many other Church leaders, including our Pope and bishops and theologians, who are a whole lot smarter and holier than I am, wrestling with this issue. We should pray fervently that the Holy Spirit will guide their discernment.

Amen to that too. + + +

* The 2012 CLSA Proceedings reports, at p. 414, that Providence collected $ 58,000 in tribunal fees against incurring $ 307,000 in expenses. So, I guess that’s more like one-fifth, eh?

Cohabitation and canonical form

The latest tizzy is over Pope Francis’ plans to preside at the weddings of several Roman couples, including some couples who have been cohabiting for lengthy periods. There are two perspectives from which to look at this news, one canonical, one pastoral.

Canonically, this is a non-issue. No divine, natural, or canon law impedes a wedding between cohabiting persons (cc. 1083-1094) and therefore the fundamental right of the faithful to the sacraments in general (cc. 213, 843) and to marriage particular (c. 1058) should prevail in such cases. Unquestionably, these couples can, and must be allowed to, wed.

Pastorally, however, this might be a bigger deal.

Many parishes and dioceses have developed practices (even formal policies) against offering weddings to cohabiting couples. While, as one should conclude from the above, such approaches have always rested on canonically thin ice (cc. 838, 843), they seemed, in some cases at least, to have been pastorally successful in getting couples to realize that marriage (as opposed to concubinage or even just regular pre-marital sex) is a momentous step to be undertaken by those with more than a passing awareness of what it means. Whether the pope’s action will make it more difficult for priests and bishops to persuade cohabiting couples to approach their wedding as a life (including life-style) changing event remains to be seen.

Of course, if canonical form were not required for the validity of Catholic weddings (cc. 1059, 1108), then cohabiting Catholic couples could be invited to enter marriage—presumptively valid, sacramental, indissoluble marriage—by any public act, whereupon the Church would simply record that fact and recognize, as she should, such couples as married; meanwhile, those couples desiring a “church wedding” could be expected to demonstrate a higher level of commitment to preparing for that wedding appropriately. A no-cohabiting prerequisite could easily be made part of such preparation and no one’s rights to the sacraments or to marriage would be impinged thereby.

If canonical form were not required for validity.

Confusing validity and sacramentality in marriage

Confusion among Catholics concerning annulments is not helped when “experts” featured in the Catholic press are themselves confused about annulments.

Peter Smith, writing in the National Catholic Register (21 jul 2014), interviewed two experts about the annulment process. The quotes from one of them, Benedict Nguyen (a canonist for the Diocese of Venice FL) are reliable; but the other expert, Dcn. Patrick O’Toole (actually featured in the article) is confused about the central question in every annulment case. According to O’Toole, “We know a valid civil marriage occurred. The only question is whether a valid sacramental marriage occurred” (original emphasis). O’Toole repeats his phrasing later: “What we’re looking for is: Was everything that is required for a sacramental marriage there from the very beginning?” O’Toole is mistaken.

Not only is the sacramentality of a marriage NOT determined in an annulment case, the question of its sacramentality is not even RAISED in the process. The annulment process is about the validity of marriage and only about validity; a successful petition results in a “declaration of nullity”, not in a declaration of non-sacramentality. Experts must know and consistently present these distinctions if they are ever to help pew Catholics to understand first the fundamental juridic nature of all marriage and then the sacramentality of specifically Christian marriage.

Consider: if tribunals really regarded as null all marriages that were not “sacramental”, then no marriage between Jews, or between Muslims, or between Hindus, would be valid, for none of those marriages are sacramental. For that matter, no marriage between a Catholic and any non-baptized person would be valid, for such marriages are not regarded as sacramental, even when they are entered into in accord with canon law! This is nonsense, of course, but it’s the kind of nonsense that gains traction when an “expert” describes the central question in annulment cases to be about sacramentality instead of about validity.

There are, I’m afraid, several other problems in the article but the above should suffice to caution readers.

Update, 25 jul 2014: I’m happy to note that several of the more serious errors have been removed and/or corrected in the revised version of the article.

Three topics for the 2014 Synod on Marriage

The project to justify holy Communion for divorced-and-remarried Catholics seems to be losing steam. That’s good. As I have said many times, unless one is willing to countenance the administration of the Eucharist to those obstinately persisting in manifest grave sin (pace Canon 915), or is willing to say that typical remarriage after divorce is not the grave sin of adultery (pace CCC 2384), or is willing to say that Christ was wrong about marriage lasting till death and about remarriage after divorce being adultery (pace the New Testament!), then that project was doomed from the start. It’s now time to consider ideas that would strengthen the Church’s witness to marriage, not weaken it.

Leaving aside some important (but not urgent) ecclesiological questions about the ultimate future of the Synod of Bishops, the assembly convoked for October 2014 will not be legislative in nature and it will not make policies; instead the synod will be tasked with discussing, in an informed manner, natural and Christian marriage from pastoral and canonical perspectives. That sort of discussion requires study (general impressions and opinions about marriage are no longer adequate bases from which to respond to the crisis in marriage), and real study is hard work.

May I suggest (or re-suggest as the case may be) three marriage-related topics that need significant advance prepping if they are to be competently treated by the synodal Fathers.

1. Canonical Form for Marriage. The requirement that Catholics wed before clergy has always been an imposition on the natural and sacramental reality of marriage, and the societal conditions that supported its imposition a few centuries ago have all but disappeared today. Instead of defending marriage, the requirement of form now permits tens of thousands of Catholics annually to walk away from marital unions that we demand all others honor, deprives Catholics in such unions the graces specific to Matrimony, and relegates such unions to the status of concubinage. Further, the pastoral need to blunt the ecclesial consequences for disregarding canonical form has led to the elaboration and/or invocation of several juridically dubious “work-arounds” in such areas as jurisdiction, dispensation, and sanation. The question is: does the requirement of canonical form do more harm than good to the Church’s proclamation of marriage today?

2. The Annulment Process. In the popular mind (including many bishops’), the annulment process is a pastoral mechanism that “works” when it allows Catholics in failed marriages the chance to marry someone else. Correcting this massive misunderstanding about the vital juridic nature of the annulment process is of the utmost importance. Beyond that, however, the annulment process, being established and administered by human beings, is in need of reform especially regarding: (a) appreciating the canonical impact of widespread societal and familial dysfunction on young persons attempting to enter marriage as Christ and his Church proclaim it; (b) the actual or perceived disconnect between the interpretation accorded norms on consent as given in Rome versus that in many other tribunals around the world; (c) the real burdens and benefits associated with mandatory appeal; and (d) the feasibility of allowing third instance tribunals to function in nations that actually need them.

3. Same-sex unions vs. ‘same-sex marriage’. If there is a philosophically, juridically, and pastorally defensible distinction between same-sex unions and ‘same-sex marriage’, the time to articulate that distinction is now. Earlier ecclesiastical documents on this issue, striving (correctly!) to avoid any semblance of support for the idea of ‘same-sex marriage’, rejected same-sex unions in terms that admit of no toleration in the secular arena and indeed, if taken literally, demand sacrifices by Catholics that the Church should, in any age, be loathe to impose. Besides this important clarification of categories, the practical issues occasioned by having faithful in same-sex unions or ‘marriages’ (chiefly in regard to their admission to the sacraments and participation in Catholic public affairs) need systematic elucidation.

Some lay experts at the 2012 Synod of Bishops

A special charism is at work within synodal assemblies. Their maddening inefficiencies notwithstanding, synods can produce real insights into pressing pastoral questions and can refocus papal-episcopal leadership in regard to important matters. But it is presumption to assume that, because the Holy Spirit guides the Church, we all can just sit back and enjoy the show. Protection from error (such as officially treating typical remarriage after divorce as anything other than adultery) is one thing, but assessing and adequately responding to the pastoral exigencies of the day is something else. The 2014 Synod is all about the latter.

The best defense is no offense

Athletes often quip that “the best defense is a good offense” meaning that, if one scores more points than does the other side, what does it matter how many points the other side scores? I’d like to offer a canonical variant on that: “the best defense is no offense” meaning that, if ecclesiastical authority fails to prosecute wrong-doers, what does it matter how guilty they are?

Sr. Jeannine Gramick, a chronically controversial Loretto religious, has signed a public letter to President Obama expressly urging him (as if he needed urging) to fund abortion overseas. In her letter Gramick claims the mantle of ‘leader of a faith-based organization’, declares it “immoral” not to pay for overseas abortions, asserts that paying for abortions is a “moral imperative”, and signs the letter “In Faith.”

Canon 1369 of the Johanno-Pauline Code states: “A person who in a public show or speech, in published writing, or in other uses of the instruments of social communication utters blasphemy, gravely injures good morals, expresses insults, or excites hatred or contempt against religion or the Church is to be punished with a just penalty” (emp. added). Gramick’s open letter urging, as a moral imperative no less, the funding of deliberate pre-natal homicide, satisfies, in my opinion, the elements of this canonical crime and suffices to launch a criminal investigation of her under Canon 1717. As I have noted in many similar cases, Gramick has not, on these facts, violated Canon 1398 (on abortion) and the question of her (in)eligibility for holy Communion under Canon 915 is not a criminal matter. At the same time, though, besides her egregious letter to Obama, Gramick’s other public writings on Church doctrine and discipline can, and should, be examined in light of Canon 1369.

As a religious, Gramick is immediately answerable to her superiors, of course, but the diocesan bishop of her place of domicile or quasi-domicile (c. 102) has jurisdiction over her in regard to penal matters (c. 1408, and see c. 1412). The “just penalty” envisioned under Canon 1369 is intentionally flexible so as to enable its application under a variety of circumstances but, in my opinion, that penalty could not be excommunication; obstinance, however, in the face of earlier sanctions could be used to increase subsequent penalties (cc. 1326 § 1, 1°, and 1393).

Of course, if Gramick is not called to account for her pro-abortion, etc., writings, what matters how canonically guilty she might be for them? Who needs a good defense when confronted by no offense?

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