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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.


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.

On the Buenos Aires directive

Canon 915, the modern (yet resting on ancient roots) norm that prohibits ministers of holy Communion from giving that sacrament to Catholics who “obstinately persevere in manifest grave sin” does not expressly name divorced Catholics living in their second (or third, or fourth, or fifth…) ‘marriages’ as examples of persons ineligible for holy Communion, but they have long been the ‘go-to’ example of those covered by the canon. Even its harshest critics generally conceded that Canon 915 applies to divorced-and-remarried Catholics—the emotional hardships associated with such cases being, in some critics’ minds, a good argument for abandoning the norm.

Now, in his unequivocal endorsement (“There are no other interpretations possible” [!]) of a leaked draft of some Argentine bishops’ plan for implementing his document Amoris laetitia, Pope Francis has neither ‘abrogated’ Canon 915 nor ‘interpreted’ it out of existence (both being the sort of technical operations the pope shows little interest in). Nevertheless, his action will likely make it harder for Catholic ministers, who remain bound by canon law even in stressful cases, to observe Canon 915 at the practical level.

Basically, the Argentine draft (assuming it is still a ‘draft’) directs ministers of holy Communion (chiefly parish priests) to work through concrete cases impacting access to at least three sacraments (Matrimony, Penance, and the Eucharist), guided not by the Church’s accumulated pastoral wisdom as summed up in norms like Canon 915 (which seem not even not to be mentioned!), but instead by a line of endlessly malleable considerations phrased in verbiage redolent of the 1970s. If some pastors after the publication Amoris were already being told by irate parishioners that ‘Pope Francis says you have to give me Communion’, what might they expect in the wake of his sweeping approval of this Argentine interpretation of Amoris?

Fundamentally the Argentine draft stumbles, I suggest, in the same way as does Amoris, namely, in thinking that an individual’s subjective, albeit sincere, conclusions about his or her eligibility for Communion per Canon 916 trumps the Church’s authority, nay her obligation, to withhold the sacrament in the face of certain objective, externally verifiable conditions per Canon 915. I shall not rehash that argument here, but we should be clear: compromising the well-established interpretation of Canon 915 in the case of divorced-and-remarried Catholics necessarily calls into question the law’s applicability to cases of, say, ‘loving’ couples cohabitating outside of marriage, the ‘compassionate’ promotion of abortion or euthanasia, ‘honest’ persons entering “same-sex marriages”, and so on.

Where from here?

1. It is hard to see how the Argentine bishops can tone-down a document that Francis has already warmly endorsed, but, who knows?, maybe they might “clarify” it in some way that lets Rome in turn “clarify” its endorsement.

2. The Argentine document itself has some supposedly restricting language which might be invoked, but frankly, I don’t think that will be much help to pastors. Consider, for example, the requirement that one must, among other things, be “unable” to obtain a declaration of nullity before being allowed holy Communion. But think about this—what if one is “unable” to obtain an annulment precisely because there is no proof of nullity? Does losing one’s bid for a declaration of nullity suddenly make one eligible for holy Communion despite remarriage? Most of the rest of the allegedly cautionary language, such as that to “avoid understanding this possibility as an unrestricted access to the sacraments”, is platitudinous—no one seriously thinks that the Church approves “unrestricted access to the sacraments” so an admonition against such access is pointless.

3. As hard as it might be to follow, my basic advice to ministers of holy Communion in the context of divorced-and-remarried Catholics is to ignore the coming furor over the pope’s endorsement of an ambiguously worded document from some local bishops, and just follow the law of the Church, which is quite clear, unless and until that law is formally changed, at which point (if it comes to that) we will sit down and figure out what the new law directs.

Updates: (1) Robert Royal raises many of these same concerns, here. (2) My comments on Jeff Mirus and the confusion between Canon 915 and 916 may be useful to others.

Good grief, if even Protestants think the time has come…

“I am not a Roman Catholic, let alone a canon lawyer,” writes First Things contributor Carl Trueman, “but I am reliably informed that the bishop of the diocese to which [Vice President Joseph Biden] belongs does have certain powers in regard [to Biden’s brazen officiating at a ‘same-sex wedding’].” Well, I am a Roman Catholic, and I am a canon lawyer, and I can reliably inform others that the bishops of the dioceses to which Biden belongs do indeed have certain powers in this regard. In my view, moreover, it’s time for bishops to use those powers. Gracious, even some Protestants think it’s time!

Yes, I cautioned here against a canonical over-reaction to Biden’s stunt (over-reactions always being more likely in the wake of decades of mostly inaction), and so I pointed not to excommunication but instead to the invocation of Canon 915, this, in response not so much to Biden’s one-off as a special officiant at a ‘same-sex wedding’, but in view of his long string of effective repudiations of fundamental Church teaching on the nature of marriage itself, the inviolability of innocent human life, and so on, such serial repudiations now being publicly crowned by his voluntary, formal cooperation with an objectively gravely evil act against marriage last week.

The wider Canon 915 story I have laid out many times in many fora and so won’t repeat it here. I raise but one caveat to Trueman’s honest call for acknowledging the great gulf that exists between public stands such as Biden’s (and Pelosi’s, to name another, and several others’) on the one hand, and settled Church teaching on certain fundamental issues on the other, namely, that the response to Biden-ites is not to preclude, or even to discourage, their Mass attendance, for all Catholics are required by divine and canon law to attend Mass on Sundays and certain holy days per c. 1247. Rather, the issue is whether they should take the Sacrament at Mass (per Canons 915 and 916). Still, as Trueman noted, he is not a Catholic and not a canonist, so he may be forgiven for conflating these two issues.

A few days ago, three notable bishops issued a statement critical of (obviously) Biden’s act. I readily grant, the statement was not “much”, but it was something, and it was a something that would not have been done at all even a few years ago—while there was still some hope that the US Supreme Court would, in the end, at least get the definition of marriage right. They did not get it right, of course, and, in so spectacularly not getting it right, the Court crossed a line that human nature itself says may not be crossed; thus, however small might have been the Kurtz-Malone-Wenski statement, it was not nothing.

Whether we are on the cusp of the long-awaited, major pushback by bishops in the social and political sphere (toward which approach Trueman seems inclined) or are approaching something more radical yet such as the so-called “[St.] Benedict Option” provocatively urged by Rod Dreher (who, I shall not tire of saying, needs to come back to the Catholic Church), I cannot tell. But something is going on. Something has to go on. We simply can’t keep going on as we have been going on up to this point.

We just can’t. + + +

Updates: This from the excellent David Mills a couple days ago, and this today from Phil Lawler, whose taste in canon lawyers is excellent, by the way.