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Cardinals in the Church have rights too

The

The rashest reaction to the “Four Cardinals’ Five Dubia” so far is that from Bp. Frangiskos Papamanolis, President of the Bishops’ Conference of Greece, whose railing against the questions posed by Cdls. Brandmüller, Burke, Caffarra, and Meisner in regard to Pope Francis’ Amoris laetitia must be read to be believed. The Greek prelate hurls epithets such as apostasy, sacrilege, heresy, schism, at four brothers in the episcopate (brothers making text-book use of their rights under Canon 212 § 3 to pose doctrinal and disciplinary questions that urgently need addressing in our day) giving little indication that he even knows what those canonical-theological terms mean. I’d like to think that even the staunchest defenders of Amoris cringed when they read Papamanolis. Perhaps I am naïve.

While other contenders for an over-reaction prize can be suggested, here I consider the speculations voiced by the Dean of the Roman Rota, Msgr. Pio Pinto, namely, that Pope Francis might strip the four cardinals of their cardinatial dignity. Setting aside how inappropriate it is for one of the Church’s highest judicial officers to speculate publicly on the possible legal liability of and canonical consequences against bishops as yet uncharged with any crime, let’s review a pope’s canonical authority over prelates holding the office of cardinal.

Eleven canons (1983 CIC 349-359) regulate the institution of cardinal in the Roman Church, including one norm, Canon 351 § 2, that states in pertinent part that “From the moment of the announcement [that the pope has created some cardinals,] they are bound by the duties and possess the rights defined by law.” And what might those rights be?

Though largely honorific in nature, “cardinal” is, at least for those under age 80, also an “office” in the Church (1983 CIC 145) authorizing, among other things, one’s voting in a papal conclave (Universi Dominci Gregis [1996] 33). Appointments to the office of cardinal are made for an “indefinite period”, meaning that one holding such an appointment can be “removed” from said office for “grave causes according to the manner of proceeding defined in law” (1983 CIC 193 § 1) or could be “deprived” of said office as punishment for a canonical crime duly alleged and proven (1983 CIC 196 § 1). The suggestion that Brandmüller, et al., have committed any canonical “crime” is risible, so that leaves only the possibility of Francis treating a cardinal’s asking questions about his document Amoris as constituting “grave cause” to remove four cardinals from office (and along the way eliminating two electors currently eligible for the next papal conclave). But Francis (who alone can judge a cardinal, 1983 CIC 1405 § 1, 2º) has not said word one about stripping the four cardinals of their dignities nor of banning any of them from a conclave; such speculation is, so far, entirely Pinto’s.

But assuming, against all precedent and common sense, that one’s publicly asking the pope to clarify important questions raised in the wake of his document amounts to canonical “grave cause” for stripping several prelates of their offices, it would still remain to honor at every stage of the removal process numerous canonical rights expressly guaranteed all the Christian faithful, including the ability to “defend the rights which they possess in the Church in the competent ecclesiastical forum”, the right to “be judged according to the prescripts of law applied with equity”, and the right “not to be punished with canonical penalties except according to the norms of law.” 1983 CIC 221. Note that depriving one of “a power, office, function, right, privilege, faculty, favor, title, or insignia, even merely honorary” is an expiatory penalty for crime under Canon 1336 § 1, 2º, so the standards of proof should be high indeed (1983 CIC 18). How anyone can conclude, then, based on the facts at hand, that the four cardinals are at risk for deprivation of their office, escapes me.

No one, least of all the four cardinals in question, challenges the special authority that a pope enjoys over the Church (1983 CIC 331) nor do they harbor any illusions that a pope could be forced to answer the questions they posed. My hunch is that four cardinals, while they would welcome a papal reply, are probably content with having formally preserved these vital questions for a day when a direct answer might be forthcoming—although they might yet exercise their own episcopal office as teachers of the faith (1983 CIC 375) and propose answers on their own authority. For that, these men are, I think, prepared to accept personal ridicule and to suffer misunderstanding and misrepresentation of their actions and motives.

But an actual assault against their offices and against their possible roles in a future papal election? No, I don’t see that happening.

The above post now available in Italian, here.

Update, 1 December 2016: It is nigh on impossible to keep up with every comment being made by a Roman official these days, made, and then “clarified”, or “retracted”, or “abandoned”, or “deleted”, or whatever, but now it seems that Msgr. Pinto’s comments about Pope Francis removing Burke et al from the college of cardinals isn’t what he said and/or meant and/or wants-to-stand-by. Instead, it seems Pinto meant that OTHER popes could remove cardinals but Francis is not one of them. Huh? Either popes, all popes, can remove cardinals from office or they can’t. (I hold they can, I thought Pinto held so too.) Either popes, all popes, are morally bound to observe due process in such removals, or they aren’t (I hold they are, I could not tell whether Pinto thought so too). Anyway, the answer to such questions should not depend on the degree of controversy likely to be generated expressing them.

May I add an observation from a legal tradition different from Rome’s? In common law nations, our judges, especially our highest ranking judges, do not weigh in on the political or social controversies swirling around them. The rare times wherein such personal opinions are floated by our judges (e.g., Ruth Bader Ginsburg’s recent carping about Donald Trump), provokes storms of controversy. Why? Because in common law nations, the appearance of judicial impartiality is perceived as being weakened by judges who express extra-judicial opinions about controversial topics, especially topics that might end up being litigated at some point. Judges have a crucial role to play in administering objective justice, and we think that it is important that they be SEEN as objective in performing their duties.

My guess is, controversy over Pinto’s ominous remarks were the most intense among Catholics coming from common law nations, where the sight of judges speaking this way is foreign to our sensibilities about judges and justice. And I’m not sure that’s such a bad thing.

A canonical look at the Holy See – China issue regarding episcopal appointments

Those who, having read Joseph Cdl. Zen, George Weigel, or Yu Jie, are tracking with some trepidation reports on the Holy See’s negotiations with Communist China in regard to, among other things, the appointment of bishops in that land, might find the following points useful.

Paragraph 20 of the Second Vatican Council’s Decree on Bishops, Christus Dominus (1965), declared: “Since the apostolic office of bishops was instituted by Christ the Lord and pursues a spiritual and supernatural purpose, this sacred ecumenical synod declares that the right of nominating and appointing bishops belongs properly, peculiarly, and per se exclusively to the competent ecclesiastical authority. Therefore, for the purpose of duly protecting the freedom of the Church and of promoting more conveniently and efficiently the welfare of the faithful, this holy council desires that in future no more rights or privileges of election, nomination, presentation, or designation for the office of bishop be granted to civil authorities.”

Canon 377 § 5 of the Johanno-Pauline Code of Canon Law (1983) gives legal expression to this conciliar teaching in these words: “In the future, no rights and privileges of election, nomination, presentation, or designation of bishops are granted to civil authorities.” This norm, though new in the revised Code, was proposed very early in the post-conciliar revision process and, its good sense being evident to all, sailed through successive drafts of the law without controversy. Peters, Incrementa 334.

Hearkening to the Council’s invitation to surrender rights that, by concordat or custom, they might have enjoyed in regard to the appointment of bishops in their lands, several nations have renounced such rights (GB&I Comm. 216) and joined the many other States that allow the Church a free hand in the designation of Successors of the Apostles.

Although the canonical process for vetting candidates for bishops (see 1983 CIC 377 and Peters, “Confidential consultations in the selection of bishops: law and practice”, Fellowship of Catholic Scholars Quarterly 34/1 [Spring 2011] 59-63) should be able to identify potential social or political problems with episcopal candidates, a number of states nevertheless enjoy (usually by concordat) an additional right to advance notice of potential episcopal appointments, thereby facilitating communication of concerns, if any, about a given candidate. Exeg. Comm. II/1: 759.

What is at stake in the Holy See’s negotiations with China, however, seems to go beyond Beijing’s receiving advance notice of proposed Roman appointments, to something more like a right to nominate candidates itself and perhaps even to veto those proposed by the pope should the Communists find them unpalatable. Such arrangements, remnants of the old ‘patronage’ system, are observed now only in a tiny handful of locales (Exeg. Comm. II/1: 759)—not in a nation of a billion-plus souls comprising one fifth of the world’s population. Moreover, such a concession to China, if that is what is actually being proposed, would surely be demanded by other totalitarian states, recreating the messy entanglements of Church and State that marked and sometimes marred much of Church history.

There is, of course, nothing intrinsically evil about granting State authorities a lesser or even a greater voice in the appointment of Catholic bishops, saving of course the Church’s ultimate right to make such appointments herself, but history has taught us that the greater the role played by secular power in ecclesiastical appointments, the greater the chances of abuse are.

Let’s pray these are not lessons that will need to be relearned.

Taking a page from the Proportionalist Playbook?

Apropos of nothing in particular—but I suppose of several things in general, like the continuing turmoil over Amoris laetitia, the Buenos Aires directives, the Roman diocesan protocol, and a torrent of commentary (including some by orthodox writers), that, in my view, just doesn’t get it yet—may I offer the following take?

You know how—long story made short—the “proportionalist school” of moral theologians took the Fourth Criterion from the traditional “Principle of Double Effect”* (the criterion that calls for weighing the good to be accomplished by a given choice against the concomitant harm to be caused by the choice) and basically presented said ‘proportionality’ as if it were the sole criterion for upright moral decision-making? Pernicious stuff in that proportionalism, using terms admittedly found in orthodox decision-making schemes and seemingly simple to apply in concrete cases, justifies choices being made that are directly opposed to the good.

Well, I think a similar ploy, that of pulling one consideration from a rule book and presenting it as if it were the only consideration relevant to a certain choice, is being used to justify admitting typical divorced-and-remarried Catholics to holy Communion. By invoking a phrase redolent with ecclesiastical tradition, the “internal forum”, one criterion among several that, in a few cases among many, might contribute to making possible the reception of holy Communion by someone in an irregular marriage situation, Kasper et al present the “internal forum” as if it could be, at least in some cases, the sole criterion authorizing one’s being given holy Communion. As I and others have argued many times, however, there is considerably more to it than that.

In a way, though, this presenting of the “internal forum” as if it could be, even sometimes, the ultimate dispositive factor in whether holy Communion should be given to an individual is actually worse than what the proportionalists do above, because, while ‘proportionality’ is almost always a factor to be considered in making moral choices, the “internal forum” is almost never a factor to be considered in making Communion-distribution decisions!

A recipient’s assessment of his or her own situation in the “internal forum” IS relevant in his or her deciding about whether to approach for holy Communion (see c. 916); but a minister’s decision about giving the Sacrament to an individual is NOT controlled by the recipient’s subjective conscience (well-formed or otherwise); instead, a minister’s decision to distribute is controlled by—again, long story made short—Canon 912 (that sets out a general obligation to administer the Sacrament) and Canon 915 that requires a particular withholding of the Sacrament from people who are known to fall within certain OBJECTIVELY established conditions. It is a simple, but absolutely crucial distinction, this distinction between a recipient’s approaching and a minister’s distributing which, however often the two acts happily coincide, sometimes must be painfully honored, which is being blurred by the pious invocation of the “internal forum” in a context in which it has virtually zero relevance.

I say again, the minister of holy Communion is always bound by law and is never bound by a recipient’s conscience.

*On the “Principle of Double Effect” see e.g.: Judie Brown (citing John Hardon) or the New Revised Catholic Encyclopedia.

Yes, religious women “marrying” each other is against canon law

Western society’s understanding of elemental, foundational concepts like “male” and “female” (Gen I: 27) is disintegrating, and I fear we will see more manifestations of this disintegration even within those ranks so precious to our celibate and chaste Lord Jesus Christ, that is, in religious life. A few weeks ago two religious women entered a “civil union” near Turin, Italy. I have neither Italian family law nor the original news stories before me, but it seems that the women entered what Italy currently calls (and what ecclesial leadership there holds tantamount to) “marriage”.

First, a deep breath. — Okay, now, shall we look at the situation canonically?

Setting aside that “same-sex marriage” is an absurdity under natural law, under canon law, any attempt at marriage undertaken by two people of the same sex is invalid (1983 CIC 1055), any attempt at marriage undertaken by one, let alone two, persons bound by religious vows of chastity is invalid (1983 CIC 1088), and any attempt at marriage undertaken by one, let alone, two, Catholics in violation of canonical form is invalid (1983 CIC 1059, 1108). So this civil “marriage” between two religious women is null in at least three ‘open-and-shut’ ways.

Indeed, their “marriage” is soooo null that one could hardly, with a straight face, cite Canon 694 § 1, 2° and simply eject these two women from their religious communities, even though the immediate expulsion from religious life of those who “contract civil marriage or attempt it” is called for therein. Mind, it’s not the result (expulsion) I disagree with, it’s entertaining even the possibility that a “marriage” between two nuns could enjoy the slightest shadow of canonical plausibility (such that an inquiry into whether they did “attempt marriage” would be appropriate at all) that I shrink from. I mean, c’mon, seriously?

No, the canonical solution to this array of insults against human nature, the holiness of celibate chastity, and ecclesiastical authority over the sacraments (to name just some of the goods impugned by these two women) lies, I suggest, in Canon 696 § 1, which authorizes the dismissal of a member who provokes “grave scandal arising from culpable behavior”. Religious procedural law provides, of course, for notice of charges, opportunities to repent, and a reliable gathering of evidence (including, I would think, psychological evidence about whether an offender can still tell the difference between right and wrong).

A canonical process of this sort, one which should not take unduly long to pursue, would (in the sad event that one or both women refuse to repudiate their deed) provide the communities in question a chance to reiterate, accurately and charitably, the Church’s beautiful teaching on, say, marriage, sexual morality, the outstanding witness that religious men and women are supposed to offer to secular and Christian society, and soon. A canonical process could, I suggest, help redress the terrible scandal given to the Catholic community by the acts of these two women.

Well, let’s see what happens in this case.

Time to head off confusion in Canada

Regarding the Christian burial of suicides the Pio-Benedictine Code differed from the Johanno-Pauline Code in that the former law expressly listed suicides as among those “public and manifest sinners” ineligible for ecclesiastical burial (1917 CIC 1240) while the current law refers, in pertinent part, only to “manifest sinners who cannot be granted ecclesiastical funerals without public scandal of the faithful” (1983 CIC 1184). Because, however, Catholic tradition has long recognized self-murder as objectively gravely evil (CCC 22802281), there is no doubt that Catholics who kill themselves risk deprivation of ecclesiastical funeral rites (including a funeral Mass, per c. 1185) even though suicide is not expressly mentioned in the new law.

That said, something has changed in the Church’s approach to pastoral issues raised by suicide. Her recognition of the depravity of self-murder remains, but her awareness of the impact that various psychological factors, including a sense of loneliness, isolation, abandonment, and so on, might play in diminishing one’s personal, subjective culpability for having committed suicide (CCC 2282) is at work, too. I know of no canonist or moralist who holds that a Catholic who, on his own and often with little warning to others, simply and suddenly kills himself, should be deprived of ecclesiastical funeral rites. To the contrary, such persons should be prayed for (CCC 2283) and a Mass intention for such a one may be accepted (c. 901).

Nevertheless, not everyone who kills himself does so under conditions that would permit him to be accorded ecclesiastical funeral rites and I suggest at least two sets of suicides who, under canon law as it currently reads, should be denied ecclesiastical burial.

The first are those (usually) men whom science describes as “family annihilators”, men who murder their families and then kill themselves. I have written about these kinds of cases before and hold today the views I expressed in 2008: murdering-suicides should be refused ecclesiastical burial.

Second are those who commit suicide in accord with evil civil legislation and/or court rulings that provide a legal process for killing oneself while providing exculpatory protection to those assist in such suicides. Self-murder committed in accord with civil law differs plainly and significantly from the isolated individual who kills himself.

As I noted in some detail in 2009, persons who kill themselves in accord with civil law perform a number of public, verifiable steps that—if the laws are being applied as they are written—all but eliminate any ‘pious presumption’ of diminished culpability for one’s self-murder. The ‘benefits of the doubt’ that we want to accord to ‘traditional suicides’ can hardly be offered to those who kill themselves under civilly-approved circumstances. To accord to such persons ecclesiastical funeral rites indistinguishable from the liturgies the Church grants to the faithful who die natural (sometimes even heroic!) deaths cannot but give scandal to the faithful. Indeed, to use the sacred rites of the Church for such ends is, I suggest, to commit a grave liturgical abuse, one savoring of sacrilege (CCC 2120).

The bishops of western Canada (acting as bishops are supposed to act under, among other norms, c. 392 § 2) showed true pastoral solicitude for their faithful when they upheld and re-explained, in these terribly confused times, the Church’s doctrine and discipline concerning (among other things) ecclesiastical funeral rites. Some bishops in eastern Canada, in contrast, have said only that they “don’t plan specific directives aimed at refusing … the celebration of funerals.” Now on the one hand, refusing “specific directives” leaves, one would think, the universal law intact, so, no ecclesiastical funeral rites in the wake of one’s assisted suicide; on the other hand, confusion over the moral and canonical impact of killing oneself ‘legally’ seems every bit as troublesome in eastern Canada it is in western, so a more forceful reiteration of Church teaching and a pastoral explanation of canon law might be needed lest episcopal silence be misunderstood or ambiguous comments misconstrued.

Finally, ‘assisted suicide’ is, along with ‘legal abortion’ and ‘compassionate infanticide’, one of the three heads of that cerberus known as the Culture of Death. Precisely insofar as the modern death cult is cultural, it permeates everything and can appear anywhere. It must be quickly recognized for what it is and confronted wherever it manifests itself. If that means, in part, invoking the salutary admonitions of canonical discipline against manifest sinners and protecting the faithful community from the danger of scandal, so be it.

That’s what the law is there for.

Update, 6 Oct 2016: George Weigel on the March of Euthanasia, here.

About the Catholic effect of Catholic baptism

Canon 868 of the Johanno-Pauline Code regulates the administration of baptism to infants (basically, kids up to about age seven). Currently the law restricts the Catholic ministration of baptism to infants for whom there is a “founded hope” of being raised Catholic. Most Catholic couples presenting their children for baptism satisfy this requirement, but requests from non-Catholic couples for their children to be baptized occasion questions. Notwithstanding the profound benefits of baptism, it seems counter-productive to impose Catholic obligations on a child (e.g., Sunday Mass attendance, annual confession of grave sins, observance of canonical form when marrying, and so on) if there is little hope that the child will be raised in a Catholic environment where such observances can be explained and supported.

Now, both the current Canon 868 and its Pio-Benedictine predecessors, Canons 750-751, allow Catholic ministers (even outside danger of death, where the rules support administration of baptism over the objections of parents) to baptize the infants of non-Catholic Christians (e.g., Orthodox, Protestants, and so on), if the Catholic raising of the child would somehow be provided for. So if, say, a Methodist-Baptist couple approached a Catholic priest to baptize their child, the priest is allowed to baptize the child if the parents (or even just one of them) offered a reasonable plan whereby the child would be raised Catholic. This is settled matter among canonists.

Henry Davis, Moral and Pastoral Theology III: 52, “It is contrary to the mind of the Church to baptize a child who will not be brought up Catholic.” Abbo-Hannan, Sacred Canons I: 754, “If [a Protestant] parent asks for the Catholic baptism of his child, before his request can be granted, there must be moral certainty from the circumstances that he intends to bring it up Catholic”. And this whole line of thought seemed upheld by a 1941 reply from the Holy Office [now, CDF] which stated “Children who are presented by schismatical parents for baptism, except in danger of death, should generally not be baptized by a Catholic priest unless there is probable hope of their Catholic education.” CLD III: 300.

That these baptisms, when performed by Catholic ministers with (or even, strictly speaking, without, in danger of death) parental consent, were considered baptisms into the Catholic Church seemed conclusively proven in 1948 when Pius XII revoked (on unrelated grounds) an exemption from the requirement of canonical form that had previously been granted to “this class of persons baptized into the Catholic Church”. CLD III: 463. In short (and regardless of whatever “ritual Church” one might be ascribed to according to other canons) baptism by a Catholic minister is, and always has been, regarded as baptism into the Catholic Church.

Now, a few days ago, Pope Francis issued a motu proprio De concordia inter Codices, dealing with, among several things (some of which are routine, some of which need to be talked about, but not now), the baptism of the children of “non-Catholic Christians” under Canon 868. He added a new section to the current canon, as follows:

§ 3. Infants of non-Catholic Christians are licitly baptized if their parents or at least one of them or the person who legitimately takes their place request it and if it is physically or morally impossible for them to approach their own minister.

Hmmm.

Given that the canonical tradition behind Canon 868 has always recognized that Catholic ministers may baptize the children of non-Catholic Christians upon parental request, provided that provision was made for the child’s Catholic up-bringing, what does this new language add?

Is it a restriction on the authority of Catholic ministers to baptize such children as long as their parents’ minister is somehow deemed ‘available’? Perhaps so, though I suppose one may ask, first, if the desire of the non-Catholic parents is to provide a Catholic up-bringing for their child, would a non-Catholic minister want to go forward with the rite, and, second, why would the Church not want a Catholic minister to perform the sacrament under those happy conditions?

Or (respecting the implications of Canon 21) do non-Catholic parents understand that, in seeking baptism from a Catholic minister, they are seeking what has long been recognized as entrance into the Catholic Church? I am guessing that many such parents do not understand that.

Or does the assumption about the Catholicity of baptism by Catholic ministers somehow no longer hold; might Catholic ministers risk being asked to perform a rite of baptism that some at least perceive as being into (objective) heresy or schism? Perish the thought, of course, but it seems to me that either the new language does rather little or it risks doing quite a lot.

Numerous experts were consulted over a long period of time in the run up to De Concordia so I am confident these questions were asked and answered. It would be useful, though, for the rest of us to know whether this passage of De Concordia simply amounts to a minor restriction on the interfaith conferral of baptism, one that preserves the Catholic effect of baptism performed by Catholic ministers (and occasions the need to explain this effect very clearly to non-Catholic petitioners), or whether it steps back from a well-established canonical understanding about the Catholic effects of baptism at the hands of Catholic ministers.

May I demur re Mirus this once?

Pretty much everything Dr. Jeff Mirus writes is worth reading, but his latest column, correctly defending Pope Francis against charges of heresy based on his endorsement of the Buenos Aires Directive, overstates the argument in one small, technical regard and, I think, misses a larger, more important point in another. I basically agree with everything Mirus wrote, except as follows.

1. Mirus writes: “It is impossible to prove that advocacy of any disciplinary approach indicates heresy in the mind of the advocate.” That is not correct. A classic example pointed to a man whose refusal to abide by disciplinary norms such as genuflecting before the tabernacle might show a wordless, but clearly heretical, denial of the Real Presence. This is a small, technical point, perhaps, but it reminds us all to be wary of universal assertions. My second concern is larger.

2. Most of Mirus’ column is spent trying to show how the objectively grave sin of remarriage after divorce (with all necessary caveats & conditions included) might in a specific case be rendered subjectively venial at least for one partner. As holy Communion may be (and perhaps even should be, assuming sorrow for sin, CCC 1393) taken by one in venial sin, Mirus argues that some divorced-and-remarried Catholics should feel free to approach for holy Communion. Now, everything Mirus says so far is at least arguably, and much of it is actually, true.

But it misses the crucial point: One’s approaching for holy Communion is a matter of personal conscience chiefly guided by Canon 916 (which Mirus does not cite, but would have cited had he adverted to it); but distribution of Communion by a minister is a matter of objective status chiefly under Canon 915, which Mirus does not cite, but should have considered.

As has been explained many times, in certain cases ministers of holy Communion are bound not by the would-be recipient’s assessment of conscience, but by the demands of canon law responding to one’s external, objective status. Long story made short, Catholics who have entered marriages subsequent to mere divorce are objectively disqualified from being given holy Communion (CCC 1650, 2384), whatever might be their subjectively reduced culpability for their state. This is a crucial point: two canons (and the values behind two canons) come into play every time a minister and recipient meet over the Host. Yes, Amoris seems to miss this point and the Buenos Aires Directive clearly misses it. Still.

To be sure, more goes into these cases than what I just outlined, but this should suffice to show that, even if Mirus’ theory of venial sin for some divorced-and-remarried Catholics is correct, it does not answer the question about their being admitted to holy Communion.