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Some thoughts on COVID measures in regard to Confession and how such measures have illustrated a serious weakness in the administration of canon law

The COVID19 pandemic continues to occasion new canonical questions on a daily basis. But before examining a few more of these, here in regard to Confession, a crucial point should be made.

It is very difficult, but nigh-on essential, to avoid speculation on the motives behind various ecclesiastical actions (policies, rulings, etc.) and to focus instead on what the actions actually do. Whether a bishop, for example, wants to prohibit his priests from hearing confessions because he seeks to limit the social interactions entailed therein and thus slow the spread of disease or because he holds heretical views on sin or sacraments and sees a chance to slight Catholic truth, I don’t care. I only care about the canonical legality of what he purports to do. Whether a bishop attempts general absolution through the internet because the prospect of his people dying without sacramental reconciliation terrifies him or because he sees it as a way to encourage people to grow slack in their attention to divine duties, I don’t care. I only care about the canonical legality of what he purports to do. Others may speculate on motives and, for all I know, at least some such speculation might help the faith community to identify some deeper ecclesial issues lurking behind the polices. But I do not choose to engage in such speculations here.

Three specific topics on Confession. (For most of the following scenarios I can find a half-dozen factual-verbal variations so do not assume that every comment below applies to every version of the following.)

1. Some bishops think they can suspend the celebration of Confession in their diocese or otherwise forbid their priests from hearing confession and granting absolution because of the pandemic. I think this is wrong.

All pastors have “faculties” (i.e., necessary but, in all respects relevant here, sufficient authorization) for Confession by law (c. 968) and most other priests (e.g., associates) have faculties by formal grant of their bishop (c. 969); once acquired, moreover, such faculties remain effective unless, say, the pastor is removed from office (c. 975, which assumes the process for pastor removal outlined in cc. 1740-1747 has been applied) or the bishop has revoked the grant to a specific priest “for a grave cause” (c. 974, which assumes that “pandemic” satisfies as ‘grave cause’ to strip priests of their faculties for Confession, a claim for which I find zero evidence in the literature).

2. Some prelates think they can prohibit the in-person celebration of Confession when it is aided by electronic communications devices such as cell-phones. I think this is wrong.

As stated earlier, this doctrinally and canonically important yet complex matter cannot be adequately aired on-line and in the middle of a world-wide crisis, so, no matter how much I think the tradition itself would accept the use of cell-phones for in-person Confession, let me just put my objection to such purported prohibitions this way: any prelate prohibiting the use of electronic communications devices for in-person confession and absolution needs to explain why priests and penitents have long been allowed to use hearing aids and/or amplifiers in the confessional, both being, obviously, electronic communications devices. What is so categorically different about using a cell-phone for the same purpose and in the same way as a hearing aid?

3. Some bishops think they can confer general absolution (c. 961) in their local churches via the internet to persons not physically present before them. I do not know what to think about this, but I doubt the soundness of any quick “it’s certainly valid” or “it’s certainly invalid” verdict on the practice.

General absolution is new in codified law but not new in the canonical tradition (see the footnotes to Canons 961-962 or, for that matter, Abp. Turpin’s actions in The Song of Roland). These sources need urgently to be studied. Meanwhile, know that the current law is oddly phrased (e.g., it is perhaps the only canon in the Code to contain its own interpretation by an example) yet, unquestionably I think, it leaves the authorization for general absolution solely to the local bishop. The more controverted point would be how the faithful are “present” to the bishop absolving (again, that is not a simple assessment) and what, if any, such attempts at absolution would have on penitents who were not seeking the sacrament at the time.

A more general topic surfaced by these measures.

Canon law, compared with civil law, depends very heavily on voluntary compliance with its norms. But crucial to securing voluntary compliance with any law is the subjects’ sense that justice underlies its provisions and its application. Whenever the provisions of law are perceived as unjust or as arbitrarily applied, the community’s inclination to observe law suffers and, in a system as dependent on voluntary cooperation as is canon law, discipline and even morale breakdown in short order.

With that as background we can better appreciate one of the greatest systemic weaknesses in canon law, namely, its lack of a process for the speedy correction, or at least mitigation, of local real or perceived abuses of authority. Unlike civil law, which boasts the opportunity to seek, e.g., TROs (temporary restraining orders) or Preliminary Injunctions from independent officials against sudden and serious disturbances in the legal order, canon law offers only slow (e.g., up to three months of waiting in c. 57) rights of recourse, this, to usually to the same official behind the disturbance in the first place, and then often penalizes attempts to cooperate with local authority by demanding that recourse be taken against offending provisions in very short times (e.g., ten days in c. 1734), this, upon pain of losing the right of recourse itself. Finally, even if one adversely impacted by a novel law or decree gets recourse against it filed in time, such requests for juridic relief often languish in Rome for months or years before any action is taken on them.

All of this contributes to a widening contempt for law in the Church during a time when respect for law, at all levels of the Church, is already at historic lows, and it fuels the impulse (again, I judge no motives here) for everyone to do pretty much whatever he thinks best under the circumstances. Thus, as a practical matter, conscientious priests who want to respect Church authority and to serve their people sacramentally are placed in the extremely difficult position of having to choose, in times chock full of personal and social stress, between two great goods. But if canon law had an effective, quick, mechanism for ‘halting in place’ novel orders and policies until cooler heads could examine them more dispassionately, much of this conflict would be avoided.  I am aware of the serious ecclesiological concerns such legal institutions would raise, but I do not think those concerns are insurmountable. Of course, we are not likely to address this neuralgic dearth of speedy dispute resolution methods in the Church today, of all times, but I note it for consideration.

For now, all in the Church, but perhaps especially clergy, should remember, among many other things, that they, too, have the right to express their opinion on matters affecting the good of the Church (whose supreme law, of course, is the salvation of souls, per c. 1752) and to communicate their views to others (c. 212), and that they enjoy the right not to be judged or penalized except in accord with law (c. 221).

Pandemic does not trump any of those rights.

Canonical deep breath time

Since COVID19 left Communist China last month and began its rampage around the world a myriad of issues and problems have been confronting us all. Among these crisis items are a host of canonical questions, questions that arise on a daily, sometimes an hourly, basis and which take almost innumerable forms, often reformulating themselves before anything like coherent answers from informed persons or authorities can be formulated to their first instantiation. The internet, of course, magnifies and speeds the dissemination of canonical views and opinions, right ones as well as wrong. In short, folks, it’s deep breath time. Not everything is going to be sorted, let alone sorted correctly, within a few minutes of its popping up.

Here I offer a few observations on six matters, in no particular order.

1. Do not assume that some wrong, even stupid, policies being announced by various levels of Church government are necessarily canonically illegal policies. Christ, who foresaw COVID19, nevertheless gave considerable authority to his Church, specifically to his bishops and popes, to formulate how the Church would carry on his mission in these days. People should be very wary of concluding that a given a local Church policy is canonically illegal and can therefore simply be disregarded.

Consider, e.g., that for most of Church history the institution of “territorial interdict”, whereby Church authority could shut down access to sacraments for the innocent as well as the guilty in whole countries, was practiced. See most recently 1917 CIC 2268-2277. There were, of course, efforts over the centuries to mitigate the impact of territorial interdicts on the innocent but, in its heyday, though criticized on prudential grounds, interdicts were not attacked as illegal in themselves nor as somehow outside of the Church’s authority to implement. Today, what amounts to territorial interdicts are being imposed (rightly or wrongly, in terms of medical advice) as a way to protect the innocent. Even if such policies are wrong-headed (as some seem to me) that does not necessarily mean they are canonically illegal.

2. The use of communication devices (e.g., cell-phones, video devices) in sacramental Confession has been an interest of mine for some time and I published a peer-reviewed series of three articles exploring the validity and liceity of such practices.* While I far prefer such matters to be debated in the calm of academe some points apparently need to be made now.

The prevailing opinion against “remote” Confession or “technology-assists” in Confession (and people who know me know my great respect for prevailing opinion) is (a) rather more nuanced than is being presented these days and (b) rests heavily on doctrinal postulates concerning the role of the human voice in sacramental form. I have argued that the role of human voice might not be as determinative for sacramental form as it has been narrowly presented to date and that, even in schools holding for “voice”, technology-assisted Confessions in times of crisis were not uniformly ruled out, this, by canonists of impeccable credentials such as Felix Cappello. Moreover, legitimate concerns about eavesdropping on sacramental Confessions carried on by cell-phone are prudential in nature, not doctrinal. A Confession so violated is still valid and licit. Since 1998 an automatic excommunication threatens those who record the contents of a sacramental Confession, here.

Now, so far, the “guidelines” I have seen regarding the use of, say, cell-phones for in-person Confession are descriptive in nature, not directive (so I am not sure they even qualify as normative documents), but they certainly do not determine the validity of personal Confessions attempted with technology assistance. If some arch/bishop actually issues a precept against their use, we’ll deal with that then.

Speaking of precepts, and the lack thereof, let’s move to another point.

3. That a bishop could purport to authorize the enunciation of sacramental form for Anointing by a cleric and the execution of the sacramental matter by a hospital worker gives some insight into what kind of challenges confront sound pastors and canonists these days. But, while that bizarre idea was shot down in a few hours thanks to the internet, a new mess has taken its place, one whereby a bishop thinks he can “suspend” the celebration the sacrament of Anointing in times of greatest need!

Keeping this short, I know of no authority whereby an arch/bishop can “suspend” the operation of a sacrament itself so I can only conclude that whenever a proper, willing minister utters the correct form while applying the necessary matter to an eligible, willing, recipient, the sacrament occurs. All of the usual considerations for the administration of sacraments in time of serious danger apply, of course, and those factors lean heavily (not uniformly, but heavily) in favor of administration of the sacraments, especially to the gravely ill.  Again, if some bishop actually issues a precept against celebrating Anointing, it can be dealt with then.

4. Slightly distinguishable from the above case are the many arch/dioceses that are delaying the Easter administration of Baptism (and thus Confirmation, and first holy Communion) for catechumens (many of whom have been preparing for over a year) and the sacramental reception into full communion of many other already-baptized persons. I think such people have an acquired right to these sacraments and, while the Church has the authority to regulate the exercise of rights (see c. 223), every effort should be made to provide these sacraments in a timely manner, regardless of whether, say, “a fuller participation by the community” might be more feasible later. Consider, some bishops are allowing up to ten “technical assistants” to help priests broadcast their Masses on-line. Well, if ten tech aids can gather to hold lights and point cameras, surely a half dozen candidates and catechumens can kneel before their priest and be baptized, confirmed, and communicated.

5. Infants are to be baptized “in the first few weeks” after being born, even sooner, of course, if there is danger of death. I agree with the Exegetical Commentary which states that Canon 867 “protected the fundamental right of the parents to baptize their children within the first few weeks. This right shall not be limited or restricted by a particular law, at least not by a norm of lower rank than the [1983 Code] itself.” Exeg. Comm. III/1: 465. Commentaries on the old law (e.g., 1917 CIC 770) warned against parents trying more than a month to secure the service of a priest before acting on their own. See, e.g., Woywod, Practical Comm. n. 669. Parents, unable to secure the ministrations of a cleric during a pandemic, who baptize their own children, should simply report such baptisms to the pastor of the parish, per c. 878. May I suggest an audio-visual recording of the event, should the pastor later have any questions about matter, form, and so on. A later “incorporation” rite before the community may still be offered such children.

6. Canonical form for marriage need not be observed, even by two Roman Catholics, if it is foreseen that an official witness (typically, a priest) cannot be present for at least thirty days. 1983 CIC 1116. We are very near that time already. Such couples still need, of course, to observe state law for the civil effects of their marriage to arise, but canon law provides for lawful celebration of marriage without canonical form in surprisingly short order. Note, though I think canonical form itself needs to be repealed, I cite here, obviously, the plain text of the Code.

More, if I have time. A lot going on these days. Oremus pro invicem.

* See, e.g., Edward Peters, “Canonical and cultural developments culminating in the ordination of Deaf men during the twentieth century”, Josephinum Journal of Theology 15 (2008) 427-443; id., “The ordination of men bereft of speech and the celebration of sacraments in sign language”, Studia Canonica 42 (2008) 331-345; and id., “Video communications technology and the sacramental confessions of Deaf Catholics”, The Jurist 73 (2013) 513-537.

Thoughts on the obligation to attend Mass during times of pestilence

The obligation to attend Mass on Sundays and (locally observed) holy days of obligation set out in Canons 1246-1248 (see also CCC 2180-2183) is gravely binding in conscience. No reliable commentator disputes this. The Church does not, however, enforce this attendance obligation in the external forum (e.g., Church police do not take attendance at Mass and issue tickets to no-shows), but she has articulated guidance to assist observant Catholics in assessing their obligations under various circumstances.

Preliminary point.

Regular ILOTL readers know that, in discussing some questions regarding the Mass attendance obligation, I do not apply the “How much can I miss and Mass still counts?” analysis and instead prefer a “Why did I miss however much of Mass I missed?” assessment of one’s reasons and/or justifications for missing part or all of an obligatory Mass. That same approach—one that asks not How much of it did I miss, but Why did I miss it?—helps one assess, I suggest, the force of one’s Mass attendance obligations in times of pestilence.

Three factors can obviate one’s obligation to attend certain Masses, namely: impossibility, dispensation, or excuse.

Impossibility.

Since ancient times it has been recognized that no one is bound to the impossible. If Mass has been cancelled in one’s locale (and even though some effort to find a Mass outside of one’s usual locale is expected), one is not required to undertake burdensome efforts to find and attend a Mass somewhere else. Indeed, canon law anticipates that attendance at Mass, even obligatory Masses, might be impossible sometimes and recommends that the faithful engage in some other liturgical exercise (say, the Liturgy of the Hours, per Canon 1174) or otherwise spend an appropriate amount of time in prayer, per Canon 1248. Watching a televised Mass might be a good exercise but such exercises do not satisfy the Mass attendance obligation—that obligation having been obviated by impossibility—for only attendance at Mass satisfies a Mass attendance obligation.

Dispensation.

The obligation of weekly divine worship (and to some extent the holy day obligation) reflects divine law directives going back to the Decalogue but the modern Sunday obligation is a function of ecclesiastical law and is thus liable to diocesan-wide dispensation by the diocesan bishop per Canon 87. In addition Canon 1245 authorizes parish pastors (but not just any priest, etc, per Canon 89) to dispense those belonging to or present in his parish from this obligation. To be sure, Canon 90 urges executive authority figures to consider carefully the spiritual welfare of their subjects, the gravity of the law being dispensed, and other circumstances in deliberating about dispensing from a law. Nevertheless, doubts about the sufficiency of the reasons behind a dispensation are resolved in favor the dispensation.

Excuse.

This method of obviating the Mass attendance obligation is the one that most likely impacts individual Catholics and it takes more time to discuss.

Among the reasons long recognized as excusing (not technically ‘dispensing’) one from attending an obligatory Mass is one’s personal illness. Two points need to be made about illness.

First, people experience the symptoms of personal illnesses in different ways such that what one person might find to be an inconvenience (say, a headache) another might find to be a dolor seriously impacting one’s ability to act, think, pray, etc. Each member of the faithful is accountable to God, and not to others, for how he assesses the experience of his symptoms against the obligation to attend certain Masses. As far as the faith community is concerned the individual’s assessment of the effects of his illness is what counts. If one feels too ill to attend Mass one is excused from the obligation of attending.

Second, personal illnesses can present different degrees and kinds of risks to others. Many serious illnesses pose no risk to others (e.g., cancer) while some minor or moderate ails are highly contagious (e.g., colds and flu). Beyond, then, the personal experience of illness relevant to assessing the obligation to attend Mass, one must also weigh the risk that one’s illness poses to others by attending a Mass (obligatory or otherwise), this consideration, moreover, not undertaken as an expression of charity toward others but as an exercise of justice toward them. So, to take an easy case, if one knew that one was contagious with a serious illness then, even if one personally felt just fine, I think one would be obligated not to attend Mass, even one obligatory.

In sum, those suffering from serious illnesses are excused from the grave obligation of attending Mass under either, and perhpas both, headings above, namely, they might feel too ill to attend Mass and/or they might pose a serious risk of infection to others.

But a more difficult question is presented by coronavirus, it seems, in that one is contagious with this very serious virus for a considerable period of time before one is even aware of being infected. In terms of assessing the obligation to attend Mass, this scenario fits under neither the first scenario above (for one does not feel ill, but is only, albeit not unreasonably, afraid of becoming ill), nor is one aware of being especially contagious to others. What to do, then, about assessing one’s Mass attendance obligation during times of serious pandemic when (a) it is feasible to find a Mass; (b) one has not been dispensed from the obligation of attending Mass; and (c) one does not feel ill, although many in the community are falling ill after a considerable time without showing symptoms.

I propose the following approach. Because these considerations are largely prudential (and I use that word in its good sense, and not as cover for doing what I what I find convenient), be aware that even small changes in facts could greatly change how my advice plays out in practice.

A) If one is simply, however understandably, afraid of being infected by others, I do not see sufficient excuse obviating fulfillment of a serious religious obligation such as Sunday Mass attendance. The more one’s fears over being infected are, however, augmented by factors such as, say, one’s advanced age or underlying medical complications (e.g., diabetes or pregnancy), the more likely sufficient excuse from the obligation to attend Mass can be found, even though one feels fine.

B) If one has no special reason to think that one is contagious for others, I do not see sufficient excuse obviating fulfillment of a serious religious obligation such as Sunday Mass attendance. Factors that increase the chances that one is contagious for others (e.g., someone in one’s household has fallen ill, or one works with or around ill persons) will more likely result in excuse of the obligation to attend certain Masses, again, even though one feels fine.

Recall, again, that in the both of the above scenarios the Church does not attempt to police one’s self-assessment of the satisfaction or avoidance of the obligation to attend Mass on Sundays and certain holy days. As a matter of conscience, one is accountable to the Lord for one’s decision, and the Lord can neither deceive nor be deceived.

Ignoring law is not remedied by ignoring it even more

I have read with profit many columns by Dr. Adam DeVille but in his latest essay, “Relieving Rome’s burdens: A proposal for handling abuse cases” (CWR, 10 feb 2020), wherein DeVille suggests “diocesan synods” as the key to addressing clergy sexual misconduct cases, I see several problems. In brief they come down to this: DeVille seems wholly unaware that canon law exists, that it already has norms directly relevant to his proposals, and that those canons reflect deep doctrinal values ignored only with peril for the Church.

At the level of theory DeVille holds that “there must be this foundational principle in place: no human being, or group of people, should ever be given a monopoly on power in any organization for any reason. This is always to invite disaster.”

Such unnuanced, absolutist language, begs for rebuttal. So …

According to canon law, the Roman Pontiff (nb: a human being) “possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.” 1983 CIC 331. Surely some indication from DeVille that he is aware of this law, and of the doctrinal values behind it, is owed lest he seem to imply that, in establishing Peter as the one Rock, Our Lord invited disaster upon his Church.

Further according to canon law, the College of Bishops (nb: a small group of people) “is also the subject of supreme and full power over the universal Church.” 1983 CIC 336. Again, no indication is given that DeVille sees how Our Lord’s vesting supreme and full power in this tiny group of believers passes muster under DeVille’s supposedly foundational maxim.

As the practical solution to the clergy sexual abuse crisis (specifically, to the resolution of accusations thereof), DeVille suggests reviving “the ancient institution of the diocesan synod” to superintend cases of clergy sexual misconduct. The casualness-approaching-glibness with which DeVille invokes “the ancient institution of the diocesan synod”, as if everyone knew what that was and how it supposedly functioned in ancient days, is startling, but let me provide some perspectives thereon in default of DeVille’s offering any sources for his understanding of synods.

First, diocesan synods are already part of canon law (1983 CIC 460-468) so they do not need to be “revived”. Indeed, though they remain substantially clerical assemblies, modern canon law already makes provision for lay participation in synods. But, fatal for DeVille’s proposal, diocesan synods are fundamentally legislative in nature, not judicial, and they have only a consultative (not deliberative) voice and then on only such matters the bishop chooses to present to them. That is not remotely how DeVille seems to imagine diocesan synods.

Second, and worse for DeVille’s idea, diocesan synods under earlier law (say, the Pio-Benedictine Code) were exclusively clerical institutions, operated completely under episcopal control, and met, at best, once every ten years  (1917 CIC 356-362). Again, this form of diocesan synod can’t be what DeVille would want to revive. And even if, in the hazy memory of a few readers, one recalls the old office of “synodal examiner” or “synodal judge” (both roles eliminated or subsumed into other offices now), such priests, though appointed in a synod, were bound, in hearing certain disciplinary cases, to follow the procedural law set out in Book IV of the 1917 Code and not some newly fashioned scheme whereby “misconduct cases” are supposedly assembled by one diocesan synod and sent to another diocesan synod for review that in turn sends it back to the first bishop for decision who then (only then?) informs the accused of his fate. None of this resonates with anything in the penal or procedural books of the 1983 Code of Canon Law, and Canon 221 § 3, among numerous other norms, takes a dim view of ignoring canon law in meting out consequences for behavior, even reprehensible behavior.

Third, as for whatever “ancient diocesan synods” supposedly looked like, if DeVille would like to share examples of such institutions, especially ones wherein laity passed (or even advised on) judgment on specifically accused and criminous clerics, I would be happy to examine such sources. My own quick look through, say, the Dictionnaire de Droit Canonique and the Dictionarium Morale et Canonicum does not seem to suggest such examples, nor does Benedict XIV’s famous listing of synodal topics include adjudicating specific accusations of misconduct as a synodal prerogative. Perhaps I am reading too quickly.

There are, in fine, many canon and civil laws on the books right now for dealing with canonical and civil crimes. Those laws were developed by their respective societies over a long time, in the light of experience (including some experiences of failure), and more often than not came about with sound reasons behind them. At least some of those norms rest on divine mandates for the governance of the Church while others reflect natural law requisites for basic justice. If DeVille wants to lament the ignoring of these laws by some Church officers, and for that matter by some civil officials, he has my hearty support.

But the solution to unenforced canon and civil law is not the further and complete ignoring of those laws and the fashioning of new, institutionally unsound procedures resting on fantastical histories and flimsy logic. The solution is the enforcement of laws by Church and State officials and the visitation of harsh penalties on the perpetrators of wicked crimes.

Canon Law and Catholic common sense

My thoughts on the recent controversy over the planned use of a Catholic church for an Episcopal ordination of a bishop are available over at First Things, here.

Some correctives to Mary McAleese’s Trinity College remarks

Dr. Mary McAleese, former president of Ireland and recently minted doctor of canon law (Gregorian, 2018), delivered a speech at Trinity College in Dublin a few weeks back accusing the Catholic Church, per canon law, of ‘at best limiting and at worst eliminating [children’s] fundamental rights to freedom of religion, thought, and conscience.’ McAleese’s theme was apparently developed in her doctoral dissertation, a work reportedly weighing in at 500,000 words for which she won the 2019 Alfons Auer Theology Award valued at € 25,000. It would be interesting to know what the competition for the prize was.

Much of McAleese’s speech deals with matters outside my area (e.g., Irish law, Brexit, and so on), but her comments on canon law, to the extent they supposedly support her criticisms of the Church, especially the inflammatory claim that canon law “flatly contradicts” a child’s “freedom of belief, thought, expression and action”, warrant some reply.

McAleese presents the sacrament of Baptism as having “two quite distinct sets of consequences, one theological the other juridic” and pits the ‘theological’ consequences of baptism, such as cleansing the soul from Original Sin and obtaining sacramental grace—effects that, McAleese assures us, she does not dispute—against the ‘juridic’ consequences of baptism which she claims have been “bolted on to” (there’s a pleasant image) baptism by man-made rules but which, McAleese argues, should now be made subservient to national and international law. Among the supposedly merely ‘juridic’ consequences of baptism that McAleese thinks should be “overtaken by” secular authority are “the imposition of life long Church membership which can never be rescinded, becoming subject to Church laws from the age of seven” and the general incurring of “many onerous obligations”. All of these specific claims are distortions or are simply wrong but they all spring from a single mischaracterization of baptism and its effects.

McAleese skews the central issue by presenting what one might call the distinguishable consequences of baptism as if they were radically distinct consequences of baptism, as if one could, say, be (theologically?) cleansed of Original Sin in baptism but not (juridically?) incorporated into the Church (c. 849)—implying, one supposes, that someone could be incorporated into the Church without having been baptized!—or, again, that one could be baptized into the society that is Church of Christ but not automatically enjoy various ecclesial rights and duties in keeping with one’s condition (c. 96).

In reality, both sorts of effects, whether viewed as ‘theological’ or ‘juridic’, arise simultaneously and inseparably from a single sacramental action. That some consequences of baptism are juridically worded does not mean that they were “bolted on to” the sacrament by canon law but instead are canon law’s attempt to acknowledge and respect the divinely-rooted implications of baptism. McAleese’s attempt to drive a wedge between the ‘theological’ consequences of a sacrament and the ‘juridic’ is fraught, therefore, not simply with canonical problems (as we shall see) but with doctrinal truths concerning matters far beyond her, or Ireland’s, or the United Nation’s authority.

Turning briefly to McAleese’s specific complaints against canon law’s impact on children, that concerning the alleged baptismal burden of life-long membership in the Church requires considerably more analysis than she offered in her remarks or than I can offer in rebuttal here: let’s just say that there is, in my view, confusion in some Church circles over the difference between the maxim Semel baptizatus semper baptizatus (once baptized, forever baptized), a doctrinally sound assertion, and Semel catholicus semper catholicus (once Catholic, always Catholic), as invoked by McAleese, a canonically contestable claim as evidenced by, if nothing else, the fact that we have canons on schism and apostasy (cc. 751, 1364), and by recent norms on formal defection from the Church—norms too narrowly drafted, in my view but, even so, constituting evidence that a mechanism for a Catholic’s official departure from the Church does exist, contrary to McAleese’s claim.

As for a Catholic becoming “subject to” Church law at age seven, that unbalanced description fails to mention that several of those laws actually enumerate canonical rights that a Catholic child enjoys at or even before age seven, e.g., rights to Christian education, to additional sacraments and sacramentals under certain conditions, to effectively full immunity to ecclesiastical sanctions, and to the incalculable graces of full communion with the wider Church.

And as for the supposedly “onerous” impositions of Church law, pray, which canons are so onerous? Against the backdrop of Christ’s words that ‘My burden is easy and my yoke is light’ (Mt XI: 30), can McAleese show us a Church obligation that is enforced with anything like the rigor behind a wide array of State-mandated obligations? Would, say, a Catholic child’s failure to show up for Mass on Sunday (c. 1247) result in the dispatch of Church officials to the home to inquire what sort of religious upbringing the child is receiving along the lines of a state truant officer investigating a child’s absence from school? Does a Catholic child’s failure “to assist with the needs of the Church” (c. 222) or to “support the Church by responding to appeals” (c. 1262) obligate a child to payments as does the state’s enforcement of income tax liabilities against working minors? Whatever ecclesial and/or moral obligations are incumbent upon Catholics, including children, they utterly pale in comparison with the civil and/or legal obligations that states routinely impose on citizens, including children.

{As an aside, lest readers fear I see no canonical obligations on Catholics that visit (in my view) unfair burdens on believers, I think that the obligation of Catholics to marry in accord with canonical form or not at all (cc. 1059, 1108) is an unfair burden on many Catholics unaware that such a religious requirement exists. But I must immediately add that this canonical-sacramental burden is purely an ecclesiastical concern because, for all practical purposes, western States do not demand compliance with religious observances in order to enter a marriage recognizable by the State. While many States accommodate a religious wedding observance, they do not demand one, so McAleese can hardly point to the Church’s canonical form requirement for marriage as a concern worthy of State intervention in religious practice. In any case, canonical form is a problem related to Catholic marriage law, not baptismal.}

Sadly, McAleese’s blithe invocation of a disparaging remark made against canon law by a former Irish attorney general (“Canon law has the same status as golf club rules”) is frankly embarrassing coming from a woman who, one is forced to conclude, spent four years earning a doctorate in what amounts to golf club rules, but the rudeness of the remark (to say nothing of the laughable ignorance it displays) was apparently no bar to McAleese quoting it in advancement of her express goal of making Catholic canon law answerable to national law and international convention. Readers might wish to consult, however, Canon 22 (and CCEO 1504), and the important traditions behind such canons, for a better introduction to the Church’s more nuanced approach to Church-State relations.

Concluding these remarks it should be obvious that, in limiting myself to short correctives to McAleese’s canonical assertions against the exercise of Church law related to Catholic children, I have only hinted at the grave spiritual, pastoral, and cultural implications of a statist attempt to wrench the authority of a religious society over its members away from the leaders of that society. The wider social consequences of such an invasive move would make, I suspect, the canonical complications of McAleese’s agenda seem minor.

Whatever that was, it wasn’t a ‘stunt’

A few days ago men removed some female figurines (centerpieces for several weird ceremonies in Rome the last few weeks) from a church and tossed them into the Tiber River. Vatican spokesman Paolo Ruffini dismissed the act as a “stunt”. Regardless of how one assess this act, however, I think it not accurate to describe it as a mere “stunt”.

A “stunt” is a gesture that calls attention to a problem but does not itself solve the problem. For example, chaining oneself to a lamppost could call attention to the plight of the unjustly imprisoned but does not itself free the imprisoned. Standing on the corner with one’s mouth duct-taped might call attention to the suffering of the voiceless but does not itself give them a voice. Such acts are stunts, good stunts or bad, but in the end, stunts. What the Tiber men did was different.

Removing these figures from a church and tossing them into the Tiber does not simply call attention to the problem of setting up such objects in a church it also removes the statues from the church and thus solves the problem of having them set up in a sacred place. Such an act, good act or bad, is more than a “stunt”, it is form of direct action against a problem.

The Vatican having ruled out the possibility that the nude statues might represent the Virgin Mary or ‘Our Lady of the Amazon’, it is disputed whether the figurines portray the Amazon pagan goddess Pachamama or (at least per a handful of Vaticanisti) merely some vague “life force”. It is not for me to opine on who or what the objects actually represent and if someone wants to argue that chanting to and bowing before figurines of naked women does not count as worshiping strange gods, well, who am I to say?

But a fuller assessment of the act of these two men does not rest solely on whether the figures are demonic or merely faddish. Canon 1210, addressing the dignity of Catholic holy places in general, states: “Only those things which serve the exercise or promotion of worship, piety, or religion are permitted in a sacred place; anything not consonant with the holiness of the place is forbidden…” And Canon 1220 § 1, addressing churches specifically, states: “All those responsible are to take care that in churches such cleanliness and beauty are preserved as befit a house of God and that whatever is inappropriate to the holiness of the place is excluded.”

These canons, in my view, do not simply preclude the placement of obviously demonic or pagan artifacts in our churches, but rather, require those in charge of sacred places to set up objects that are positively conducive to Christian prayer and worship. If, as the Congregation for Divine worship stated in 1987(*), the mere fact that that some music is admittedly beautiful does not justify its performance in churches, then all the more so should church authorities be on guard against setting up objects widely and reasonably seen as representing pagan deities in Catholic sacred spaces. I suggest (and more to the point, the Code of Canon Law understands in, say, Canon 214), that the faithful have the right to trust that what they see in Catholic sacred places is actually there in service to the sacred and is not simply a gesture toward some form of political correctness or the latest cause du jour, to say nothing of it possibly being simply evil. Ignoring concerns about the proper use of sacred space with a shrug and a ‘we don’t really know what it is’ is to ignore the positive duties that Church leadership owes to the faithful.

As a man of law I am also a man of order and, as a rule, I hold that removing objects from private property is not an act of good order. But then, neither is setting up idols (whether to demons or to secular causes) in Catholic churches an act of good order. Over time the disregard of law by those in charge eventually brings about disregard of law by those subject to it. And that in turn can result in acts that are much more than mere “stunts”.

* See Cong. for Divine Worship (Mayer), excerpt from let. “Qua in mentem quaedam normae quoad ‘Concerti nelle chiesa’ revocantur” (05 nov 1987), Communicationes 19 (1987) 179-181.

Brief note on Canonist Weishaupt’s essay

I have just read Rev. Gero Weishaupt’s essay over at kathnews and a report on that essay at Lifesitenews. I find Weishaupt’s assertions quite soundly argued.

In particular, I agree with Weishaupt that the exclusion of women from priestly ordination was declared infallibly by Pope St. John Paul II in Ordinatio sacerdotalis (1994), that such a ruling must be definitively held by all the faithful as a “secondary object of infallibility” (1983 CIC 750 § 2), and that opposition to this ruling makes one liable to sanction under Canon 1371 n. 1. A canonical warning to the German bishops on this point is therefore canonically, and pastorally (bishops have souls, too), in order.

In my view, the ordination of women to the diaconate is also excluded by Sacred Tradition, but I grant that such exclusion was not expressly addressed in the pivotal passage of Ordinatio. Thus, discussion of female ordination, as if it were doctrinally feasible, strikes me as at best theologically temerarious, though not canonically criminal, at this point. Meanwhile any actually attempted ordination of a woman is an excommunicable offense.

More, as circumstances warrant and permit.

Alison’s claim binds no one

I had never heard of James Alison until I saw claims about his possessing “the power of the keys” (in virtue of a phone call he allegedly received from Pope Francis) in news feeds and, though I know nothing about his canonical situation beyond what I read in a wiki page dedicated to him (a page insufficient for reliable analysis of his situation), I can offer a few words on his claim in regard to its implications for the celebration of Confession.

Assuming Alison’s ordination was valid (Alison seems to dispute that point and Rome has not ruled on it), and assuming Alison has no ecclesiastical office to which faculties for confession are attached (1983 CIC 967-968), the only way Alison could have faculties for confession (unless a penitent is in danger of death per Canon 976) would be if he was granted them by Francis.

Now a pope could grant ‘universal faculties’ for confession to an (ex-)priest over the phone (1983 CIC 331), however disruptive such an act might be to the needs of good governance in the Church, if he found the priest “suitable” for service as a confessor (1983 CIC 970), however such a conclusion might strike others as imprudent. But I question whether any bishop or religious superior is bound to recognize any priest’s claim to have such faculties. My argument runs as follows.

Alison’s claim of faculties amounts to a claim that Francis basically undertook “an administrative act … in which a provision is made for a particular case” (1983 CIC 48), here, that Francis gave Alison faculties for confession. But such an act, effectively a ‘singular administrative decree’, is “to be issued in writing” (1983 CIC 51) and “to be enforced … must be made known by a legitimate document” (1983 CIC 54 § 2). A written document whereby faculties for confession were allegedly conferred on him (as envisioned by Canon 973) is not claimed by Alison. Moreover, even in cases where “a very grave reason prevents the handing over of the written text of a decree, the decree is considered to have been made known if it is read to the person to whom it is destined in the presence of a notary or two witnesses” (1983 CIC 55, emphasis added). Again, Alison makes no claim that such communication was done.

It is a staple of sound law and good governance that the burden is on the one making the claim (1983 CIC 1526 § 1), here, Alison’s claiming that he has been given “the power of keys” by the pope, specifically, faculties for confession. But based on the above, it seems that Alison has not satisfied, and has not claimed to satisfy, either of the mechanisms established by canon law for demonstrating that he has faculties for confession at all, let alone faculties on par with those accorded cardinals of the Roman Church (1983 CIC 967) and therefore I hold no Catholic official bound to credit his claim. To be clear, I neither deny nor concede that Francis actually made the call attributed to him, I question whether the claim by Alison would be binding on anyone.

If Francis indeed wishes Alison to have faculties for confession and to be able to exercise those faculties over the reasonable objections of local authorities, he could: (1) issue the faculties in writing; (2) issue the faculties orally but in the presence of an ecclesiastical notary or two witnesses; or (3) derogate from Canons 51, 54, 55, 973, a/o 1526.

Any of these measures would suffice; but absent all of them, well, Quod gratis asseritur, gratis negatur.

A look at the Brebeuf appeal

The ‘recourse’ (a kind of canonical appeal) taken by Brebeuf Jesuit Prep School against Indianapolis Abp. Charles Thompson’s decree last summer (discussed here), revoking recognition of BJPS as a “Catholic school”, indicates that the Indy Jesuits think being recognized as running a Catholic school is still important. Unfortunately, Pope John Paul II’s now-disheveled apostolic constitution Pastor Bonus (1988) by which the Roman Curia supposedly operates—a document that has undergone considerable tinkering by John Paul II, Benedict XVI, and Francis, and which is now slated for complete replacement—makes identifying what is being appealed to whom and on what basis difficult. A few points may be suggested.

The Roman suspension of Thompson’s decree is not a final resolution of the dispute. Rev. Bill Verbryke, sj, makes this clear in his recent letter announcing Rome’s accepting the recourse for consideration. Unfortunately Verbryke avoids mentioning what the whole dispute is about (namely, that BJPS refused the request of Thompson to allow the lapse of an employment contract by which a man who had entered a ‘same-sex marriage’ was being allowed to teach Catholic high school students), leaving the impression that Thompson simply revoked the school’s claim to be Catholic and occasioning an appeal by the Jesuits, but let that pass.

PB artt 112-116 set out the authority of the Congregation for Catholic Education over Catholic schools. None of those provisions, in my view, directly authorizes that dicastery to over-rule a bishop’s determination regarding a school’s Catholic identity, but then, neither do any of those provisions expressly exclude that authority. For that matter, as the dispute concerns “the correct exercise of the pastoral function of [a] bishop” (PB art 79), I might have thought the Congregation for Bishops would have been approached, and perhaps it will be consulted. In any case both offices ultimately work for the pope so a decision should be forthcoming.

Thompson invoked Canon 803 in his decree revoking the claim of BJPS to be “Catholic”. I think that canon (along with some others) supports the archbishop’s ruling here, but then, I am notorious for thinking that canons usually mean what they say. Briefly, even accepting a BJPS claim per 1983 CIC 803 § 1 to be Catholic because it is directed by “a public ecclesiastical juridic person” (which the Jesuits certainly are), the final provision of that very canon states that “even if it is in fact Catholic, no school is to bear the name Catholic school without the consent of the competent ecclesiastical authority”. That local bishops are the competent ecclesiastical authority in such matters, even though they are subject to recourse as here, is not doubted.

So, a few scenarios.

Rome decides that employing, as teachers of children in Catholic schools, persons who choose to live in open contradiction to fundamental Church teaching on marriage (here, in a ‘same-sex marriage’, but it could be a civil marriage following divorce), is consistent with the Church’s understanding of “true education” as the “complete formation of the human person that looks to his or her final end” (1984 CIC 795), that persons choosing so to live are “outstanding in doctrine and integrity of life” (1983 CIC 803 § 3), that they ably assist parents in seeing to “the physical, social, cultural, moral, and religious education of their offspring” (1983 CIC 1136), and that they are suited to assisting parents in “the Christian education of their children according to the doctrine handed on by the Church” (1983 CIC 226 § 2), among other norms, and thus a bishop is wrong to say otherwise. Or,

Rome decides that employing, as teachers of children in Catholic schools, persons who choose to live in open contradiction to fundamental Church teaching on marriage is not consistent with the Church’s mission of education and thus bishops, “who by divine institution succeed to the place of the Apostles through the Holy Spirit” (1983 CIC 375 § 1), are right to say so. Or,

Rome decides that BJPS does not use the name “Catholic” in its name and therefore it has not run afoul of Canon 803 § 3, leaving its claim to Catholic identity technically intact according to Canon 803 § 1. Of course, in that case, one wonders how the hundreds, likely thousands, of other Catholic schools around the world not using the word “Catholic” in their name (however much they might claim the label Catholic in their public relations, fund-raising, etc.), would be subject to Church authority.

So, we’ll see, won’t we.