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Taking it apart, one canon at a time

Ecclesiastical discipline has been slowly built up over many, many centuries, at times, in ways that could even be described as ‘canon-by-canon’. Lately that approach, ‘canon-by-canon’, seems to be a good way to dismantle Church order.

Divorced-and-remarried Catholics are not prohibited from attending Mass; indeed, they are required to attend Mass on Sundays and days of precept (c. 1247) just like everybody else. But divorced-and-remarried Catholics are not to approach for holy Communion and, if they do approach, ministers of holy Communion are required by Canon 915 and the unanimous tradition behind that norm to withhold the sacrament from them. The discomfort that they and the faith community feel at that exclusion is meant to spur those excluded to examine their conduct and to bring it into line with Christ’s fundamental expectations of his followers and to protect the community from the appearance of officially condoning the publicly contrarian conduct of some of its members.

Likewise, divorced-and-remarried Catholics are not prohibited from joining in many parish activities: prayer groups, service organizations, and fellowship activities come to mind. But as above, some roles, especially institutional and liturgical leadership roles, are, I suggest, prohibited to certain members of the faithful based on their public actions.

It is nonsense  to hold, as it seems an influential diocesan bishop just a few clicks from the shadows of St. Peter’s holds, that divorced-and-remarried Catholics, though ineligible for holy Communion, might nevertheless be “outstanding in … the witness of Christian life” (c. 804) such that they could be “ideal for the teaching of the Catholic religion”. The inescapable contradiction between the canonical expectations in such cases and the public status of some persons might explain, albeit ironically, why many are so feverishly working to undermine the plain meaning of Canon 915 and now, I guess, Canon 804.

But to the objection that Canon 804 raises against admitting as teachers of the Catholic faith persons living in public contradiction to several important Church teachings, I would note one more problem.

Canon 149 states that, in order to be named to an “ecclesiastical office”, one “must be in communion with the Church” (debet esse in Ecclesiae communione). I have long argued that persons performing many ecclesiastical services, such as teaching religion or serving on a parish council, should be recognized as holding an “ecclesiastical office” per Canon 145 § 1. Several interesting implications would follow from such recognition but these can be discussed in another context. My point here is simply that, if, say, teaching religion under the auspices of a Catholic parish or diocese is  a form of ecclesiastical office (as I think it is), then, the problems raised by a bishop promoting to such service those who are plainly not  in communion with the Church despite what Canon 149 says is even more obvious. Or at least it should be. And that’s how the list of canons (I can recite a dozen more without even thinking about it) that must be distorted, ignored, or simply broken in order to accommodate holy Communion for divorced-and-remarried Catholics gets ever longer and longer.

In short, Canon 915 might be in the front lines of this controversy but it, and the ecclesiastical values behind it, are not the only ones being assailed these days. + + +

1983 CIC 145. § 1. An ecclesiastical office is any function constituted in a stable manner by divine or ecclesiastical ordinance to be exercised for a spiritual purpose.


A demur on the AOW document implementing Amoris laetitia

A single sentence threatens to undercut the good presented in “Sharing in the Joy of Love”, the graphically-attractive, 55-page pastoral plan published by the Archdiocese of Washington (DC) to implement Pope Francis’ document Amoris laetitia

The problem sentence reads as follows: “Priests are called to respect the decisions made in conscience by individuals who act in good faith since no one can enter the soul of another and make that judgment for them.” SJL, p. 52.

This admonition can, of course, be appropriately applied in innumerable situations. But, if  the sentence means that priests must “respect the decision” of divorced-and-civilly-remarried Catholics, living as though married to each other, to approach for holy Communion, and administer the Sacrament to them, then the admonition fails for violating Canon 915 and the Eucharistic discipline which that canon has always represented.

I say “if”, however, because whether that is  what SJL calls for is not clear. The words “canon”, “law”, and “discipline”, for example, do not appear in SJL. Canon 915 is never mentioned—not attacked, mind, just never mentioned.

What makes one fear, however, that the sentence might be intended to sway ministers of holy Communion toward administration of the Eucharist under gravely illicit conditions—besides the fact that ministers so inclined could easily invoke SJL’s phrasing here in support of precisely such administration—is that the rationale offered for such a stance, namely, that “no one can enter the soul of another and make [a conscience] judgment for them”, is repeatedly put forth these days as if a would-be communicant’s conscience preempted a minister’s application of Canon 915.

But the claim that Canon 915 yields to the conclusions of personal conscience as reached by a Catholic approaching for holy Communion is, as I have pointed out many, many times, completely wrong. Canon 915, and the tradition upon which it stands, operate in the face of observable behavior and not personal conscience. Civil marriage after divorce is observable behavior, behavior that is gravely contrary to Christ’s teaching on the permanence of marriage, to the Christian’s duty to avoid giving scandal, and to the Church’s law on reception of the sacraments.

In short, if encouraging ministers to give holy Communion to divorced-and-civilly-remarried Catholics is indeed what SJL intends by its wording here, then SJL is wrong; even if such is the use that some ministers intend to make of this passage in SJL, they are using the ambiguous wording of this sentence to avoid the clear directives of canon law and sacramental discipline.

About proposals to transfer Catholic grade schools away from pastors’ control, not so fast

Pardon my suspicious take on the line that eliminating priests’ responsibilities for Catholic schools in their parishes “will let priests focus on the pastoral and spiritual aspects of schools and parishes”—I can imagine Henry VIII’s henchmen sarcastically making similar comments to monks being expelled from their monasteries—but, admittedly from afar, this proposal has the potential to be a major Church property grab.

Those familiar with the facts Down Under can tell me whether my concerns are well-founded, but, in a nutshell: if Catholic grade schools in Australia are owned by Catholic parishes, then the establishment of self-perpetuating boards, independent from effective ecclesiastical governance, as owners and directors of those schools, is canonically an “alienation” (that is, a transfer of Church property rights) that must meet certain canonical criteria for liceity and even validity even if no money changes hands and even if the pastor is happy to rid himself of the parish school.

You see: Parishes are “juridic persons” (c. 515 § 3), juridically under the direction of pastors (c. 532) who are charged with, among many other things (e.g., cc. 528-530), correctly administering the property of the parish (e.g., c. 1282), which property includes all parish assets (c. 1256) which assets can be “alienated” (sold, leased, mortgaged, even given away) only in accord with canon law (mainly, Book V of the 1983 Code). The canonical consequences of not following the canons on alienation range from an episcopal “Tsk-tsk, don’t do that again”, through a valid-but-illicit act that occasions accusations of negligence in office (c. 1389), to invalid transfers that can result in civil lawsuits against the transfer and personal liability for restitution (cc. 1281, 1296).

Moreover, organizational actions (such as disposing of parish property) that do not follow internal rules (such as canon law) can ‘put a cloud on the title’ civilly, in turn impacting title insurance and civil registration of the deed.

So bottom line, there’s a lot to watch out for here.

Oh, if someone asks, no, Catholic schools, even those established by parishes and dioceses, are not themselves juridic persons absent a decree establishing them as juridic persons (c. 114).

 + + +

Perhaps the following sources and studies would be helpful.

[Pont. Council Leg. Texts] (Castillo Lara), Resp. ad dub. re Can. 1263 (20 mai 1989), AAS 81 (1989) 991. Latin on-line here. Summary: Schools administered by religious are not thereby juridic persons. Cites: 1263.

Pont. Council Leg. Texts (≠), nota, “La funzione dell-autorità ecclesiastica sui beni ecclesiastici” (12 feb 2004), Communicationes 36 (2004) 24-32. Summary: As titled, summary of ecclesiastical authority over temporal goods. Cites: CIC 0113, 0114, 0115, 0116, 0117, 0118, 0119, 0120, 0121, 0122, 0123, 0305, 0325, 0331, 0333, 0392, 0494, 1254, 1255, 1256, 1257, 1259, 1273, 1276, 1277, 1279, 1281, 1285, 1292, 1301, 1308, 1309, 1310.

Patsy James Gonsorcik (American religious, 1943-), The canonical status of separately incorporated healthcare apostolates in the United States: current status and future possibilities for the public and private juridic person, (SPU/USP doctoral diss., 2001) 298 pp. Abstract and/or dissertation here.

Bernard Waters (New Zealand priest, ≈), The canonical status of diocesan and parish schools in New Zealand, with particular reference to the Diocese of Auckland, in the light of the Private Schools Conditional Integration Act 1975, (SPU/USP doctoral diss., 1999) 336 pp. Abstract and/or dissertation here.

Brian Dunn (Canadian priest, 1955-), The Catholic schools in Newfoundland: an investigation into their nature according to the Code of canon law, (SPU/USP doctoral diss., 1991) 356 pp. Abstract and/or dissertation here.


An important week for Eucharistic discipline–or lack thereof

Three items on the discipline of holy Communion round out the week. Two are simple but diametrically opposed, a third is licit but ill-advised.

1. This is simply right. Bp. Thomas Paprocki of Springfield IL, no stranger to my readers, has reiterated that Catholic Illinois Senator Dick Durbin, one of the Bloody 14, may not, in view of Durbin’s longstanding support for abortionism as seen in the light of Canon 915, be given holy Communion. Paprocki’s statement is clear and, besides being canonically correct, is pastorally sensitive to the spiritual dangers into which Durbin has placed himself. May Paprocki’s prayers for Durbin’s return to his earlier respect for innocent human life bear fruit. As for Paprocki himself, no worries there—an accomplished amateur hockey player and goalie, he is used to taking hard shots while defending what is important.

2. This is simply wrong. The German bishops as a whole (and not just an executive committee thereof) have approved the administration of holy Communion to divorced-and-remarried Catholics under the malleable conditions typical of these times. Think Malta. The only mildly remarkable thing here is that this latest degradation of sacramental discipline has caused so few ripples in Catholic media. But I suppose that no one really expected the German hierarchy to act other than to authorize disobedience to an inconvenient canon law, regardless of how unanimous the tradition behind that canon might be.

3. This one is licit, strictly speaking, but such a bad idea that the canon allowing it probably needs to reformed. Once again, the German bishops are acting, but the law was convenient so it was respected.

Canon 844 § 4 allows baptized non-Catholics to receive holy Communion if “grave necessity urges” the local bishop or (here) the conference of bishops to allow such reception, provided further only that those seeking holy Communion claim (as most can) to satisfy some practical and minimal credal criteria. Effectively, then, the canon expects the “grave necessity” requirement to keep the Communion rite at Mass from turning into a free samples line.

The problem, obviously, is about when (besides, one might concede, at the time of death, an option already allowed under a different part of the canon) is it ever gravely necessary for non-Catholics to receive holy Communion? Not, when might it be helpful or decorous or embarrassment-squelching to receive holy Communion, but when is it necessary for them to receive, and gravely necessary to boot?

I suggest, Never. Even Catholics are required to receive holy Communion only once a year (c.  920). 

But, unless the canon is establishing a criterion that can never be satisfied, what does the clause “grave necessity” mean? Apparently, pretty much whatever a bishop or (here) conference of bishops decides it means, including, as the Germans have decided, non-Catholic spouses who assert “serious spiritual distress” and a “longing to satisfy hunger for the Eucharist”—albeit, exactly the kind of healthy spiritual ferment that has occasioned countless baptized persons over the centuries to seek full communion with the Catholic Church. So much for that motivation.

Nevertheless this ruling falls narrowly within the law, I think, suggesting that maybe the law’s desire to legislate on an admittedly “hard case” has resulted in a bad law. As hard cases usually do. Other “hard cases” will doubtless follow. Just watch.

A last thought. How the Germans’ ruling on non-Catholic spouses receiving holy Communion will combine with their recent provisions for divorced-and-remarried Catholics receiving holy Communion—well, it makes the head spin.


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.


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.