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Congrats to Bermuda

Last year a court, as happens so often these days, unilaterally imposed ‘same-sex marriage’ on Bermuda. That judicial fiat has now been legislatively reversed and, while “domestic partnerships” are recognized in Bermuda, some of which partnerships will make it legally easier for same-sex partners to carry on their common life, only one man and one woman can enter marriage in Bermuda. In short, Bermuda law again respects reality.

I have often said that, although “domestic partnerships”, even between persons of the same sex, are a proposition that could be considered on the merits (or lack thereof), the idea that marriage is a union other than one between a man and a woman cannot even be debated, let alone conceded. Ever.

Thus I have also argued that overly-scrupulous language in the otherwise sound Congregation for the Doctrine of the Faith 2003 declaration discouraged Catholics from considering the legal recognition of domestic partnerships (or “civil unions” to use CDF’s term), making the contest a winner-take-all wager that, especially in the face of massive main stream media bias, marriage was destined to lose. 

To be sure, Catholics can, of course, disagree with my views here (that domestic partnership legislation could be considered), chiefly by arguing that recognition of even domestic partnerships between persons of the same sex has the effect of indirectly encouraging objectively immoral behavior. And they are right. It does.

My question is, so?

A thousand, no, make that a million, things allowed under law have the effect of encouraging immoral behavior. This is so obvious that I don’t think it needs demonstration.

The real question is, whether the activity allowed under law is itself (a) objectively immoral (which would be a deal-breaker); and, assuming it is not immoral per se, (b) is a net contributor to or detractor from the common good. The first question here, then, is one of morality and I hold that domestic partnerships are not per se immoral. I need only demonstrate the goodness of one domestic partnership to carry that point and I can think of a dozen.

But the second question is, I think, one of prudence (practicality or politics, if one prefers) and hence, I hold that, precisely as a matter of practicality,  recognition of domestic partnerships is eligible for debate. But to treat a matter of prudence (domestic partnerships) as if it were a matter of principle is a serious mistake. Among other things, that kind of thinking has, I suggest, helped reduce a matter of principle (the definition of marriage) to a matter of politics.

And look where that approach has gotten us.

A last thought. I don’t know if this will help, but what comes to my mind here is that great (and historically accurate) scene in A Man for All Seasons where Sir Thomas More is asked whether he recognizes, and will swear that he recognizes, the children of Anne Boleyn as heirs to the throne. Such recognition would have the obvious effect of encouraging Henry VIII in his adultery against Catherine of Aragon and his repudiation of the Church’s authority over marriage.

Thomas More answers ‘Yes, and I will so swear, because the king in parliament tell me they are the heirs’. This is a crucial point.

Making the children of Anne heirs to the throne might have been a terrible idea but it was not per se an immoral idea (the king and parliament could have made the children of Bob Your Uncle heirs to the throne if they had felt like it) and so More could accept it even if he deeply disagreed with it.

But when a matter of principle arose (say, honoring the Church’s teaching on matrimonial indissolubility), More flatly refused to concede. That refusal cost him head, of course, and he now reigns with the angels and saints in heaven. But More went to his death for a point of principle and not over a matter of prudence.

A Catholic (well, any human being, but one audience at a time) can never agree that marriage is other than the union of one man and one woman. But a Catholic could support domestic partnerships per se, or not, as his or her prudential judgment directs.

Anyway, congrats again to Bermuda.

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About those Bloody 14

Cantwell (WA); Collins (ME); Durbin (IL); Gilibrand (NY); Heitkamp (ND); Kaine (VA); Leahy (VT); Markey (MA); Cortez Masto (NV); McCaskill (MO); Menendez (NJ); Murkowski (AK); Murray (WA); and Reed (RI).

Fr. Dwight Longenecker is right  that the fourteen Catholic senators named above who voted to prevent the government from protecting pre-born babies from the savagery of abortion have, by just this one vote (and not counting the long string of similar steps that most of these fourteen have taken before), committed a grievous moral offense. By any objective measure they have each placed their souls in mortal jeopardy.

Longenecker’s call for the fourteen to be named and held accountable by earthly means (if only to lessen the accounting they will surely owe at Judgment) is an exercise of his canonical right and probably even the duty as a member of the Christian faithful to make known his views on matters that pertain to the good of the Church—and the scandal given by prominent Catholics acting as they did here surely impacts the good of the Church (CCC 2284)—and to communicate his views to others in the Church (Canon 212 § 3).

Except to explicitate what Longenecker the priest takes for granted (but we laity need to be reminded of), that we should pray for each senator by name, we should pursue what steps the legal, political, and ecclesiastical system provides for such sad scenarios.

But, about that ecclesiastical redress, two qualifications to Longenecker’s call need to be offered.

First, as has been explained many times, the hideous deed committed by the Bloody 14 is not, standing alone, a crime under canon law and, even if combined with other such acts as many of the Bloody 14 have taken, is not a crime for which excommunication is the penalty (Canon 1369). Specifically, voting pro-abortion is not ‘procuring an abortion’ for purposes of Canon 1398 and so no excommunication for procuring abortion applies in response to voting for it. Catholics contacting chanceries and demanding excommunications, therefore, will be noted on the “Uninformed Critics” list and comfortably ignored—this time, with some reason.

Second, a single act, again, no matter how objectively gravely sinful it is, does not trigger the duty of Catholic ministers to withhold holy Communion under Canon 915 which canon operates in the face of obstinate perseverance in manifest grave sin. Catholics contacting chanceries and demanding the withholding of holy Communion, therefore, will be noted on the “They Are on to Something but have Jumped the Gun” list and un-comfortably ignored—though again with some reason.

So, what to do?

Well, do exactly what Longenecker recommends in the legal and political sphere (for that matter, in the social sphere as well), lovingly shame the Bloody 14 into realizing what they have done and, please God, into personal and public repentance of it.

About excommunication, one may of course petition Rome (or local bishops) to designate political acts such as these as canonical crimes punishable by excommunication. I think there are major obstacles to such legislation but I (and other experts, I am sure) would certainly be willing to weigh in on the possibility.

About the withholding of holy Communion, this, I have said many times, urgently needs to implemented, but not in response to a single act (for that theory is canonically doomed to failure), but rather in response to a demonstrable string of such acts taken by most of the Bloody 14 (and several others, Nancy Pelosi leaping to mind). Here, unlike the excommunication idea above, the law is already in place (Canon 915), it just needs to be applied—correctly of course, but that is not a problem in many of these cases.

The Bloody 14 case might just trigger the long-overdue application of the law. 

Finally, a personal observation? The repeated, though for now misguided, calls for excommunication in these cases, and the repeated, but worth-considering, calls for withholding holy Communion in these cases share this: they spring almost completely from Catholic laity and are almost completely ignored by ecclesiastical leadership. This almost total, multi-decade disconnect between people and pastors is source of serious tension in the Church. Pray that such tension is relieved before it erupts into even more serious problems.

Fr. Alesandro’s honest call for revolution

In proposing thatthe [C]hurch should be open to the idea that sacramental marriages pass through varied stages apart from sexual intercourse before absolute indissolubility emerges”, Fr. John Alesandro, a respected American canonist, is calling for revolution.

Like all good revolutionaries Alesandro employs stirring rhetoric to attract adherents to the cause, claiming, for example, that “the Catholic Church has simplistically ‘canonized’ marriage, stripping down its sacred and sacramental character as a covenant and likening it to a secular contract. The time has come to liberate the sacrament of marriage from its austere identification with natural marriage by recognizing its sacramental uniqueness, the newness Christ gave it, and the fact that the fullness of this mystery comes about not in an instant but through a couple’s interpersonal growth into the ‘one flesh’ of Genesis…

Wow. Where do I sign up?

To be sure, unlike most of his co-revolutionaries, Alesandro is no patzer sprinkling canonical terms such as “internal forum” onto the mash of feelings being served up by some as a substitute for sound catechesis and faithful discipline. Even the amateurs’ favorite (though routinely botched) distinction between objective and subjective culpability is only mentioned once by Alesandro, and that, mostly as a distraction to be avoided by supporters of the cause.

Rather, in the wake of his tendentious depiction of the Church’s unswerving efforts to preserve Christ’s teaching on marriage and her progressive attempts over the centuries to understand that teaching better and articulate it more fully, Alesandro the canonist, with a professional dexterity and a personal honesty that cloaks the startling nature of his proposal, identifies two canonical-doctrinal points that must be confronted if the project to approve, in the short run, holy Communion for divorced-and-remarried Catholics, and, in the longer run, the mitigation of Church teaching on the complete indissolubility of consummated Christian marriage, is to succeed, namely: what is Christian (read: sacramental) about ‘Christian marriage’ and what does consummation mean in regard to Christian marriage?

While I think Alesandro’s more disturbing proposals for “renewal” turn on the consummation issue, his comments on the sacramentality of marriage warrant brief contextualization for readers, too, and I look at them first.

Alesandro raises a question long familiar to canonists and sacramental theologians but unnerving perhaps to newcomers, namely, how can (indeed must) every marriage between two baptized people (i.e., not necessarily Catholics, not even necessarily ‘religious’ folks) automatically be a sacrament? It is a fair question (Benedict XVI asked it back in 2005) to which a comprehensive answer has not yet been offered by the Church. But upon appreciating the importance of this question readers can easily slip into a wrong concern, namely, suspecting that maybe marriage between two baptized persons could exist without its being a sacrament and therefore, like other non-sacramental marriages, could be dissolved for the spiritual benefit of either or both parties, paving the way for one or more subsequent marriages presumably each more ‘faith-filled’ than the previous.

My response to that concern is simple: while the Church has not yet comprehensively explained how all marriages between baptized parties are necessarily sacramental, that sacramentality is precisely what she proclaims about such marriages and does so with, I suggest, the infallible certainty of her ordinary magisterium. Now, if the sacramentality of all marriages between the baptized is being infallibly taught then the fact that important questions remain about that teaching in no way allows one to question the assertion itself. The task of canonists and theologians is to discover such truths as might flow from the assertion not to dispute their foundation.

More could be said about some of Alesandro’s observations on the sacramentality of marriage—for example, do any informed observers really think that “natural marriage and sacramental marriage are identical” or hold, contrary to Canon 1099, that “they are sacramentally and indissolubly married [who] deny that very sacramentality”?—but his comments about the canonical consequences of consummation are more radical and more worrisome. So, on to them.

First, Pope Alexander III did indeed reconcile two theories about what made marriage (consent vs. consummation) but he did not—as one might surmise from reading Alesandro’s description of the decision without his background—come up with those theories out of thin air; both theories had many, many centuries of support behind them.

That said, the notion of consummation has passed through various attempts at identifying what the act was that rendered Christian, i.e., sacramental, marriage impervious even to a pope’s considerable power over sacraments. A chuckle-stifled “well, you’d know it if you saw it” test would not suffice, for sexual relations between two people, let alone between spouses, speak at many levels.

Some attempts to identify consummation as, say, that which follows from the “exchange of rights to the body” (1917 CIC 1015, 1081), would strike some today as excessively legalistic, but they were at least attempts to identify reliably what this discussion is about. The Second Vatican Council’s development of a wider personalist understanding of marriage as the coming together of the whole of life (consortium totius vitae) of two persons is another advance, but must one conclude that such broadening of horizons on marriage demands abandonment of earlier insights about consummation? The Code revision commission was clear that, for example, the richer “covenant” imagery for marriage in law did not replace, but rather assumed, earlier “contract” language.  Communicationes 15: 221-222. May we not conclude something similar here, that this conjugal ‘sharing of the whole person’ includes those acts that are reserved for the married, even if marriage certainly means more than that? Or does “renewal” in one area of law require repudiation of another?

As is the case with the automatic sacramentality of Christian marriage, I think that the basic understanding of consummation as a specific act that confers (extrinsic) indissolubility on Christian marriage is a truth taught with infallible certainty by the Church’s ordinary magisterium. But unlike the questions one hears about the sacramentality of marriage no one has seriously challenged the understanding of the nature of the conjugal act or its canonical-doctrinal implications for centuries. That fact alone should put the brakes on public ruminations toward redefining consummation and/or reconsidering its impact on Christian marriage until it is carefully sorted.

But if prudent caution in the face of possible doctrinal certainty is not enough to quell speculation herein, let this point serve: Alesandro is suggesting substituting for a concrete, verifiable act carrying crucial canonical and doctrinal consequences, a criterion-less, ever-evolving, quasi-intuition about what consummation is (a process wherein “the actuation of true interpersonal self-giving” occurs … no, really?) and about when (if ever, for “hindsight may be the only way to determine whether such completion occurred”) consummation confers on Christian marriage the fullness of indissolubility that God placed in marriage. Alesandro’s amorphous test does not even qualify as the proverbial “hard case” that makes bad law for it is not a discernible case or test at all.

In sum, even if the notions of sacramentality and/or consummation need reform, that is, if we need to refine our understanding of the two things that render marriage completely indissoluble per Our Lord’s teaching, then criteria such as Alesandro seems to have in mind are not the way to go, for they introduce deep and unresolvable uncertainty into an institution that millions upon millions of people need confidence in here and now.

And that’s not a call for reform and it’s not a call for “renewal”. That’s a call for revolution.

Sometimes one side is simply right and the other side is simply wrong

That’s the situation here.

It doesn’t matter what reasons might be offered by the storied Archdiocese of Braga for its plan to authorize the administering of holy Communion to basic divorced-and-remarried Catholics. If that is, as reported in the Catholic Herald, their plan, they are wrong. Patently and gravely wrong. Just like the Maltese. Just like the Germans. And just like a few others if only in terms of the wiggle room they allow themselves in these cases, as do, say, the Argentinians.

Of course, one more post here won’t convince the Lusitanians of this point, so I shan’t bother to make all the arguments that I (among many others) have already offered on this matter. We are right about this point and they are wrong about this point and that’s that.

I suppose, though, I could reiterate for others what “the point” is in its tedious but crucial substantial specifics:

Per Canon 915 (papally issued law, resting on divine law foundations, and, till the current crisis, uncontested by pastoral and canonical tradition in this regard), ministers of holy Communion may not offer that Sacrament (similar problems arise in regard to offering absolution in Confession, but one crisis at a time) to Catholics (who are generally the only ones eligible for holy Communion in the first place, per c. 844) who, having entered a marriage that enjoys the presumption of validity (c. 1060), then civilly divorce (or are divorced, in other words, regardless of whose ‘fault’ the divorce is), and, failing to obtain (because they never applied for or were refused) an ecclesiastical declaration of nullity (or a variant on the uncommon dissolutions of marriage as discussed chiefly here and here), purport to enter a new marriage (civilly or by some other mechanism, even one that looks religious, but which, as long as the first spouse is alive, of course, isn’t a “marriage”, but we call it that for convenience, and yes this applies also to single Catholics who purport to enter marriages with divorced persons as described above), but decline to live as brother-and-sister (as befits all people who are not married and which is necessary for them even to approach for holy Communion in accord with Canon 916) and, even if they do live continently (may God bless them), are nevertheless known (always if ‘actually’, and usually even if ‘legally’) to be divorced and remarried outside the Church and so (notwithstanding their arguable eligibility for the Sacrament in conscience) give objective scandal to the faith community (even if no one is surprised by divorce and remarriage these days, and they thereby occasion, moreover, the giving of scandal by ecclesiastical ministers who are thus tempted to disregard their certain obligations under Canon 915).

I think that’s everything. 

The sacramental baby in the canonical bathwater

Figuring as best one can from the various versions of the story, Pope Francis met two civilly married, Catholic flight attendants during his Chilean trip, learned of the long delay in their being married “in the Church”, concluded from a brief conversation with them (and with others?) that they were adequately prepared for marriage, and, more or less on the spot, invited them to marry before him. The pope then told the couple to join hands, said some inspirational words about marriage, blessed their rings, called for a witness at some point, and pronounced the couple married in the name of God. They thanked the pope, made some happy remarks to the press, and returned to their duties.

Whether this was pastorally prudent of the pope (or “crazy”, to use his word) is not for me to say. I wasn’t there. Whether the pope could by-pass numerous canons regarding things like celebrating weddings in churches and using the liturgical books (cc. 1118 and 1119)*, however, is not even a question, for of course he could (c. 331). And whether he could disregard or, at least implicitly, dispense from the observation of canonical form for marriage (c. 1108), though a more significant question because those laws go to the validity of a wedding and not just to its liceity, yields the same answer—yes, a pope (but only a pope) can dispense from the canon law of form where two Catholics wish to marry.** Thus, commentators proving that popes can prescind from canonical norms ‘because they are popes for crying out loud!’, are ably proving what no one disputes. But those who go on to conclude that, because popes can prescind from certain canonical rules on sacraments, they can do pretty much whatever they want in regard to the sacraments protected by those rules (which I do not think is Francis’ view, though it seems to be that of some others), are missing a vital distinction, one that the mid-air marriage invites the rest of us to consider. Shall we?

In the bathwater of canonical form for marriage—excuse the comparison, but I hold that canonical form has become a hindrance to Church’s message on marriage (and it is certainly the first domino that led to this confusing event)—sits the baby of sacramental form for marriage. (Yes, same word, “form”, with two different meanings. We just have to deal with it.) Now, the Church’s authority over things sacramental is not as broad as is her authority over things canonical and a pope’s undoubted authority to modify or disregard most canonical regulations does not necessarily mean that he can modify or disregard every sacramental requirement protected by those regulations. Put another way, and speaking as one opposed to throwing babies out with bathwater, even though I think that canonical form should be abrogated I agree that we need to make sure that sacramental form is not inadvertently tossed out as well.

What am I talking about?

To make a very long, quite complex, and utterly fascinating story short, since the twelfth century (i.e., long before “canonical form” was mandated), the Church has firmly recognized that the manifestation of consent by each of the two parties to presently marrying the other, is what makes marriage (c. 1057). “Consent … is the total cause of matrimony, as both matter and form of the contract and sacrament, constituting formally the contract and effectively the bond or state.” Halligan, 428. Consent is, therefore, if we may put it this way, doubly essential as both the matter and the form of the sacrament of matrimony.

Okay, and how is that consent to be expressed? Again, long story made short, and recalling that marriage is a contract, consent to marriage must be expressly exchanged between the two parties to it.

“[Pope Alexander III] ultimately regarded only the mutual consent of the parties to the marriage as necessary and sufficient, according to then current formula … I take thee to be my husbandI take thee to be my wife.” Schillebeeckx, 294-295, citing also Hugh of St. Victor and Peter Lombard.

“[T]he essential form of marriage is the exchange of consent by the spouses …” Beal, CLSA New Comm 1338. Again, “The essential element of the [wedding] ritual is the exchange of consent.” Doyle CLSA Comm 798. Again, “[E]ntrance into [marriage] is effected not by a purely private exchange of consent, but by a public ceremony involving certain legal or customary formalities.” Kelly, GB&I Comm 575, all my emph.

This exchange of consent is not only a requirement of Church sacramental-canonical doctrine but is elemental to the human law contracts.

“It is essential that there should be an expression on both sides. This is necessary because a [marriage] contract is not valid unless the parties manifest their agreement the one to the other.” Joyce, 67 (my emph). And again, “Marriage is always by its very nature a contract, even when it is not a sacrament. Now, a contract can be effected in no other way than by the consent of the parties, or, as English law is fond of saying, by ‘the meeting of the minds.’” Bouscaren-Ellis, 565.

Ironically, the invention of canonical form for marriage at Trent came about  precisely in order to combat abuses (chiefly, clandestine marriages) that could only have arisen because marriage was brought about by two people simply conferring on the other, and accepting the other’s, present consent to marriage, regardless of who, if anyone, knew of it. What canonical form basically did (at first usefully, but now to the detriment of marriage, I fear) was to place stringent canonical conditions on the Church’s recognition of what must, before anything else, qualify as the contract-sacrament of Matrimony.

Of course, by using the Church’s Rite of Marriage (Rome 1990, USA 2016), it is clear to the faith community, beyond any question, that this sacramentally essential expression of consent by both parties to marriage here and now was indeed made. In the Rite, in fact, the reciprocal expression of the consent that actually makes the marriage (RM 62) takes place after the “joining of the hands” (RM 61) and is distinct from the earlier general questions directed to the parties about their desire to be married and readiness to undertake its responsibilities (RM 60). In the Rite of Marriage, following preparatory questions about the couple wanting to be married, comes the bi-lateral, here-and-now, sacrament-effecting, manifestation of matrimonial consent between the parties.

Of course the pope’s decision not to use the Rite—a decision quite within his authority, I need hardly say—does not doom this wedding to sacramental invalidity, but it does deprive the faith community of the ready confidence it would otherwise have had about that consent’s being exchanged had the Church’s text for it been used. As a result of this decision observers must look harder to discern this couple’s effective consent to marriage.

I see, in brief, three ways to approach the question, none of which has anything to do with whether the pope satisfied canonical form in this case; the question is whether this event, as described, fulfilled the core requirements for sacramental form for marriage, namely, reciprocal consent to marry, then and there.

First, further inquiry might reveal that the pope did, using the time-honored words of, or close enough to those provided in, the Rite, elicit from each party his and her consent to marrying the other party then and there—even though every single report about the event forgot to mention it. Such a discovery would answer the sacramental question instantly and affirmatively. The event would have unquestionably been a wedding. An odd wedding, granted, but nevertheless a wedding.

Second, further inquiry might disclose that, in his eagerness to use the teaching moment which he saw in this case (toward, say, encouraging other Catholics long in irregular unions finally to enter sacramental marriage), the pope simply forgot to solicit adequate sacramental consent from each party to marrying the other here and now. Such a discovery would also answer the sacramental question, but this time, negatively. This possibility, however, could itself be turned into a teaching moment about making sure that marriage itself, the central goal of the event, is accomplished even under unusual circumstances.

Third, and rife with sacramental, canonical, liturgical, and pastoral implications, it is possible that the kind of conversation that the pope reportedly had with this couple before inviting them to marry sufficed as the bi-lateral manifestation of consent by which a Catholic bride and groom confer on each other the sacrament of Matrimony. We would all need considerably more time, I suggest, to think through that possibility.

Of course, a sober inquiry into this matter would not be easy.

First, as a “head-question”, the ecclesiastical literature on marriage is truly immense because the questions involved in it are complex. Doubtless impressive arguments pro and con could be adduced regarding what happened, or did not happen, on this now-famous flight, and the sources I cite below don’t even qualify as the tip of the proverbial iceberg. Assuming that option one cannot be verified and that option two cannot be tolerated, exploring option three competently would take experts quite, quite some time.

Second, as a “heart-question”, c’mon, everyone knows that this lovely couple seemed like they wanted to marry, and there is no question but that the pope, of all people, wanted to bring that about. In the words of Moonstruck’s Mrs. Cappomaggi:  “Marriage is happy news, right?” Of course right. Who wants even to imagine the possibility that this marriage wasn’t? No one, I’m guessing.

So, marriage is happy news, but marriage is more than ‘happy news’. Marriage is also a real thing and an important thing, a thing brought about by certain acts by certain people and not by other acts by other people. At some point, I think, some hard questions about this event will need to be asked and important lessons drawn from the answers.

No matter which way they point. 

+ + +

* “Christian marriage, like all the sacraments, is a liturgical act glorifying God in Christ and in the Church. For this reason, the magisterium has insisted that Christian marriage normally demands a liturgical celebration that expresses the ecclesial and sacramental nature of the conjugal covenant.” Vega, Exeg. Comm (2004) III/2: 1482.

** In 1985 Pontifical Code Commission rejected the till-then, theoretically-plausible authority of a bishop to dispense two Catholics from the observance of canonical form. See [PCLT] (Castillo Lara), resp. ad dub. re Can. 87 § 1 (05 jul 1985), AAS 77 (1985) 771, Latin on-line here. Basically, then, outside of danger of death (c. 1116), not even a bishop can dispense two Catholics from observing canonical form, so, if the pope was dispensing from canonical form in this case, his example cannot be followed by others. That said, I do not think the pope thought he had dispensed from canonical form, because he is quoted as saying “We need a witness” and the document he signed recites a witness and asserts that he took the consent of the parties. Of course, canonical form requires two independent witnesses (c. 1108, even for ‘convalidations’ per c. 1160) whose presence “has to be simultaneous with the official witness, morally and physically” (Navarro-Valls, Exeg. Comm III/2: 1454), and the name of a second witness is appended to the bottom of the sheet. But, whatever the anomalies of the witness issue, it appears that the pope felt he needed to comply with canonical form and was sincerely trying to do so. (He certainly did not think he was doing a ‘radical sanation’ per c. 1161, something that requires no witnesses and needs no acceptance of a present consent that is not called for anyway.)

Cited above:

Marzoa, et al., eds., Exegetical Commentary on the Code of Canon Law, in 5 vols. bound as 8, (Wilson & Lafleur, 2004), based on the Comentario Exegético al Código de Derecho Canónico (University of Navarra, 1996/2002).

Beal, et al., eds., New Commentary on the Code of Canon Law (Paulist Press, 2000) 1952 pp.

Sheehy, et al., eds., Canon Law: Letter and Spirit (Liturgical Press, 1995) 1060 pp.

Coriden, et al., eds., The Code of Canon Law: A Text and Commentary (Paulist Press, 1985) 1152 pp.

Lincoln Bouscaren (American Jesuit, 1884-1971) and Adam Ellis (American Jesuit, 1889-1961), Canon Law: A Text and Commentary [1946], 4th ed. by F. Korth, (Bruce, 1966) 1011 pp.

Edward Schillebeeckx (Belgian Dominican, 1914-2009), Marriage: Human Reality and Saving Mystery, in two vols. as one (Sheed and Ward, 1965), anon. trans. of Schillebeeckx’s Het Huwelijk: aardse werkelijkheid en heilsmysterie (1963).

Nicholas Halligan (American Dominican, 1917-1997), The Administration of the Sacraments (Alba House, 1962) 585 pp.

George Joyce (English Jesuit, 1864-1943), Christian Marriage: an historical and doctrinal study (Sheed & Ward, 1933) 632 pp.

My earlier posts of 18 JAN 2018 and 19 JAN 2018.

The mid-air marriage gets muddier

Popes on planes aren’t supposed to be a setting from which to draw fodder for canon law essay exams, but as far back as Pope Benedict XVI, such flights have occasioned more than their fair share of papal words or actions carrying canonical implications but undertaken with little apparent advertence to canon law.

Let’s start with some fact questions in regard to the mid-air marriage recently officiated by Pope Francis. It is emerging that maybe the wedding wasn’t as spontaneous as reported, that maybe the happy couple were not “astonished” at the pope’s allegedly sudden idea, and that maybe the ‘Here?!’ and ‘It was a great surprise’ portrayals were expected.

Last month, in an interview published in emol.com, Podest and Ciuffardi, picked to serve on the cabin crew for the papal visit, talked about their civil marriage from some eight years ago (which they had been too busy to convalidate), and stated that they “both hope that in January this delayed [wedding] plan can finally take place on the plane and be officiated over by none other than Pope Francis himself. ‘We would like it. This is our place, our second home, it is where we feel secure.’” *

C’mon, someone was obviously planning something. It would be interesting to know who and what.

In any event, a slurry of canon law exam questions can be drawn from this event in light of other facts, assuming they are facts (see my D&A no. 3 to the right), as discussed here, including:

— Defend the assertion that “convalidation” in a lack of form situation differs from a “wedding” only in regard to accidentals. Be sure to discuss Canon 1160.

— Discuss whether the official minister at a Catholic wedding can serve as one of the two other “witnesses” for purposes of canonical form (Canon 1108).

— Explain how the manifestation of consent to marriage is be “asked for and received” per Canon 1108 and the Rite of Marriage.

— Discuss how attention to various norms for the liceity of weddings/marriages contribute to the Church’s pastoral responsibility teach the faithful about the importance of marriage. Include at least three examples.

— Discuss the difference between “convalidation” and “radical sanation”. Include in your answer whether witnesses are required for sanations and whether consent is renewed and accepted in sanations.

— Discuss the canonical and pastoral differences between an ecclesiastical authority figure’s disregarding of the law versus one’s dispensing from the law. Give indicators by which the two actions might be distinguished. You may assume a Canon 91 actor.

— Challenge or defend the continuation of the requirement of canonical form for marriage. If you challenge form, account for Cdl. Ratinger’s 1994 remarks on same; if you defend form, account for its being the first step in the sequence that led to the ‘mid-air marriage’ case of 2018.

You have one hour. Good luck. + + +

* Ambos esperan que en enero próximo este postergado plan pueda finalmente concretarse sobre el avión y dirigido nada menos que por el mismísimo Papa Francisco. “Nos encantaría. Es nuestro lugar, es nuestra segunda casa, es donde nos sentimos seguros”. (My trans.)

The question in Lincoln

This is an odd one.

(Yes, a lot of my blogs could start that way. But this is an odd one, nonetheless.)

Back in 1996 then Bp. Fabian Bruskewitz of Lincoln levied an automatic interdict (which after one month automatically escalated into an excommunication) against a long list of suspected canonical offenders, including members of Nebraska “Call to Action”. His action struck me at the time as a mostly-rightly-intentioned (for who can doubt that Catholics belonging to, say, Planned Parenthood deserve excommunication?), but partly-wrongly-implemented (for how can pre-teen girls in a service club suffer excommunication for anything?), exercise in episcopal authority on behalf of Catholic truth. Reconstructing, however, the specifics of what happened to whom in that case, who defended the action (at what level and on what grounds), and who criticized it (with what degree of persuasiveness) is not an easy task and I will not attempt it here.

But now it seems that the current bishop of Lincoln, James Conley—a prelate with a reputation for doing things right—has “extended an offer to lift the excommunication of [Lincoln area CTA] members on an individual basis while leaving the decree in place against membership in the organization.”

This is where things start getting odd.

In an apparently leaked letter, Conley writes: “I have been clear from the beginning that no Catholic should become a member of Call to Action. I believe it poses a danger to the faith. However, I am willing to consider rescinding the excommunication in individual instances where members, currently not prepared to leave CTA, reaffirm their commitment to the full teachings of the Catholic Church.” Hmm.

Conley has apparently proposed that “those who wished to remain in the organization but have the excommunication rescinded would together, along with the bishop, profess the Nicene Creed and the Easter Vigil affirmation of faith.” Conley would accept that profession as “thereby affirming the Catholic faith as received by the Catholic Church and rejecting positions held by Call to Action that are contrary to received Catholic doctrine.” At the same time, however, “there was mutual understanding that no one would be required to reject certain [CTA] positions [contrary to Church doctrine].”  Hmmmm.

The inevitable conclusion to these premises is directly asserted: “Leaving the censure in place means that new members of Call to Action Nebraska will still be excommunicated upon joining. Conley [said] that in those cases, the person could meet with him and go through a similar process to the communal experience.”

As I said, odd.

Is it not the case that, assuming the Call to Action excommunications were actually incurred (a neuralgic question every time automatic sanctions are involved), that they were incurred precisely for membership in CTA? Now, remission of censures such as excommunication requires, not surprisingly, repenting of the delict [here, membership in CTA] and making some suitable reparation for the scandal caused by one’s membership (cc. 1347, 1358). So, how does retaining a penal law against membership in an organization, but remitting the penalties incurred thereunder despite not resigning membership, square with common sense?

While one ruminates on that one, let me observe that reciting the Nicene Creed does not really seem to address the serious doctrinal-disciplinary problems associated with CTA.

Consider: the Nicene Creed  is not a complete statement of all that Catholics must believe and hold precisely as Catholics. For example that Creed nowhere requires belief in the Real Presence of the Eucharist or in the Assumption of our Lady, so a Catholic in heresy on those points could still recite the Creed with, if not a sincere heart, at least with a straight face. Similarly, the Creed does not require a Catholic to hold definitively that, say, the Church has “no authority whatsoever to confer priestly ordination on women“, so a CTA member could well recite the Creed without running afoul of CTA’s call “to discard the medieval discipline of mandatory priestly celibacy and to open the priesthood to women”, even though such a stance places one in opposition to Catholic Church doctrine (cc. 750, 1371).

Perhaps if the Creed were supplemented by the three additional paragraphs* associated with the Profession of Faith and Canon 833, it would be more able to achieve the sign value that Conley seems to have in mind for it. But without those additional paragraphs? I don’t see it.

Of course the simplest thing to do here, canonically, would be to drop the automatic excommunication associated with CTA membership. There are precedents (happy or otherwise) for doing just that. For example, the excommunications levied since the end of the 19th century against divorced and remarried American Catholics were remitted en masse in 1977 even though most excommunicates had not repented of their civil marriages.** And when it was clear that the Index of Prohibited Books was no longer practicable, the severe sanctions levied by the 1917 Code in this area were abrogated and anyone laboring under penalties associated with those norms was rehabilitated.***

One can make the case that, today, membership in organizations, as a rule, does not carry the same personal and social connotations that organizational membership carried even a generation, let alone two or three generations, ago. At least, a bishop could, I think, reasonably reach that conclusion (okay, maybe not with regard to Planned Parenthood or Catholics for a Free Choice, but the general point stands).

But, here’s the problem: a bishop could also conclude that CTA membership indeed “poses a danger to the faith”, and that it should be punished, as Bruskewitz ruled and as Conley seems to agree, which of course makes it hard to sustain the idea that recitation of the Creed, as prayed by faithful practicing Catholics every Sunday at Mass, is a sufficient antidote to such serious dangers.

Like I said, this is an odd one. + + +

* With firm faith, I also believe everything contained in the word of God, whether written or handed down in Tradition, which the Church, either by a solemn judgment or by the ordinary and universal Magisterium, sets forth to be believed as divinely revealed.

I also firmly accept and hold each and everything definitively proposed by the Church regarding teaching on faith and morals.

Moreover, I adhere with religious submission of will and intellect to the teachings which either the Roman Pontiff or the College of Bishops enunciate when they exercise their authentic Magisterium, even if they do not intend to proclaim these teachings by a definitive act.

** Cong. for Bishops, private reply to NCCB petition of 4 May 1977 (22 oct 1977), CLD VIII: 1213-1214, lifting the automatic excommunication of those who, contrary to the Third Plenary Council of Baltimore (1884) n. 124, attempted civil marriage after divorce.

*** Paul VI (reg. 1963-1978), m.p. Integrae servandae (7 dec 1965), AAS 57 (1965) 952-955, Eng. trans., (dispositive parts only) CLD VI: 358-359, renaming and redefining the competence of the Congregation for the Doctrine of the Faith; Cong. for the Doctrine of the Faith, notif. Post litteras apostolicas (14 jun 1966), AAS 58 (1966) 455, Eng. trans., CLD VI: 814-815, confirming the revocation of the “Index of Forbidden Books”; and Cong. for the Doctrine of the Faith, decr. Post editam (15 nov 1966), AAS 58 (1966) 1186, Eng. trans., CLD VI: 817-818, abrogating 1917 CIC 1399 and 2318.

Post-script (a few hours later): A couple of readers have asked whether the “Easter affirmation” mentioned above might be that text used (as I recall) only for the reception into full communion of those already baptized, with the following wording: “I believe and profess all that the holy Catholic Church believes, teaches, and proclaims to be revealed by God.” Possibly so. It’s not clear from the above-linked article. In any case, while such wording would get one closer to the language I suggested from the three additional paragraph associated with the canonical profession of faith, it still seems limited to objects of belief and, to that extent, would not reach, adequately or otherwise, questions such as the ordination of women, not to mention other important issues addressed in the extra paragraphs. In any case, even this better language does not address the central problem, namely, that the law at issue here criminalizes membership in a group while the rehabilitation gesture, as envisioned, does not address that membership.