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. + + +

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?

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)

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.

• 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.

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!

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.

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.