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Some correctives to Mary McAleese’s Trinity College remarks

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

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

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thinks should be “overtaken by” secular authority are “the imposition of life long Church membership which can never be rescinded, becoming subject to Church laws from the age of seven” and the general incurring of “many onerous obligations”.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brief note on Canonist Weishaupt’s essay

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

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

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

More, as circumstances warrant and permit.

Alison’s claim binds no one

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

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

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

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

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

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

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

A look at the Brebeuf appeal

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

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

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

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

So, a few scenarios.

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

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

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

So, we’ll see, won’t we.

Canon law might not be ideal, but it is certainly more than ‘an’ ideal

John Allen, amid some interesting thoughts on the recent batch of cardinals soon to be created by Pope Francis, makes a couple of observations on things canonical that deserve a brief response.

The 120 papal elector limit established by Pope Paul VI (not “informally” as suggested by Allen, see ap. con. Romano Pontifici 33) and renewed by Pope John Paul II (per ap. con. Universi Dominici 33), who often disregarded the limit, is about to be ignored by Francis. I agree with Allen that it’s time to abrogate that law but not because the limit itself is a bad idea but because legislating such a limit is bad idea. Popes should not pretend to bind themselves to laws that they are free to, and do, disregard because their disregard of law gives bad example to the faith community about the place of law in the Church—a bad example that Allen (along with many others) gives voice to.

Papal disregard of canon law is, per Allen, “a good reminder of the way law tends to work in Catholicism – often more of an ideal, really, than an actual expectation.” Balderdash.

Law in the Church is, among other things, an ordinance of reason, that is, canon law is an ordering, an establishment, a rule, and not simply an “ideal”, an inspiring goal, or a nice idea.

Granted the mechanisms for the enforcement of law in the Church often differ from those applied in secular law and such differences can sometimes make canon law appear to be something more akin to a list of “ideals” or suggestions, but that understanding fosters a very wrong conclusion about the nature of law in the Church. Add to the confusion based on appearances the scandal of canon law being disregarded or patently violated by some in Church governance over recent decades and, yes, I can see why Allen can echo what so many in Church life seem to think, namely, that Church law isn’t really law.

But they are wrong in assuming that canon law is not really law. Worse, the importance of law in the Church, the goods to be achieved by understanding those laws, and the benefits of applying good law correctly are being lost to the community for which canon law has been, and is, so carefully organized.

Rev. Sosa’s remarks on the devil warrant official response

The existence of the devil as a personal reality, and not merely as a symbol of evil, is an article of faith (Ott, Fundamentals 126-131; CCC 395, 2851). Denial of an article of faith is an element of the canonical crime of heresy (1983 CIC 751), an act punishable by measures up to and including excommunication, dismissal from the clerical state, and/or loss of ecclesiastical office (1983 CIC 1364, 194).

Rev. Arturo Sosa, sj, superior general of the Society of Jesus, denies the personal reality of the devil, describes him instead as a symbol of evil, and has expressed such views before (CNA article here, Catholic Herald article here). Protestations of Sosa’s orthodoxy by Jesuit spokesmen notwithstanding, Sosa speaks for himself, and clearly. I think his remarks warrant response, not just from bloggers and scholars, but from those placed in authority over such matters.

There are, I grant, some practical problems: the term “heresy” has been thrown around too loosely for some decades (perhaps for some centuries), the sanctions of excommunication and removal from office are themselves very weighty, and the latae sententiae (automatic) procedures by which such consequences are supposedly visited upon offenders are controversial in theory and practice, such that few in ecclesiastical leadership (including most orthodox members thereof!) wish to “pull the trigger” in such cases and, as a result, utterances such as Sosa’s provoke little, usually no, response from Church leaders with inevitable harm to the faithful.

What to do?

The Pio-Benedictine Code, perhaps alert to the dilemma that all-or-nothing penal canons posed for authority, had an interesting provision that allowed bishops and superiors to take action in likely heresy cases without invoking the full rigors of an excommunication process: 1917 CIC 2315 (see below) established the distinct criminal category of “suspicion of heresy” (my emphasis) that allowed Church authorities to demand formal clarifications and/or retractions from those whose utterances smacked of heresy without immediately requiring them to move to a full prosecution for heresy. If these formal requests for amendment were not heeded, of course, a full heresy case could then be undertaken. There are good discussions of “suspicion of heresy” in the standard commentators. Unfortunately, Canon 2315 of the 1917 Code did not survive into the 1983 Code. Pity, it would have been useful, I think, in a case like Sosa’s.

Even so, the elimination of “suspicion of heresy” as a penal category does not absolve today’s bishops of their duty “to propose and explain to the faithful the truths of the faith which are to be believed” and “to protect the integrity and unity of the faith to be believed” (1983 CIC 386). Indeed bishops are “to exercise vigilance so that abuses do not creep into ecclesiastical discipline, especially regarding the ministry of the word” (1983 CIC 392). It is commonly recognized that the phrase “ministry of the word” is code, if you will, for Church teaching, including her teaching of the personal existence of angels good and bad. An authoritative, direct contradiction of Sosa’s personal, direct errors is warranted, nay, I think required, from those principally responsible for the ministry of the word in their jurisdictions. They are two.

The bishop of the Diocese of Rimini (where Sosa’s made his latest remarks) should by now have “knowledge, which at least seems true, of a delict” namely, heresy, whereupon “he is carefully to inquire personally or though another suitable person about the facts” (1983 CIC 1412, 1717). Failure to act on such information as is available in the public forum would constitute, in my view, a dereliction of governing duty (see 1983 CIC 392, 1389). In addition, the bishop of Sosa’s place of residence is also competent to inquire into the Jesuit’s remarks denying the personal existence of the devil and, for that matter, on some other other topics (1983 CIC 1408). My understanding is that Sosa’s place of residence is Rome.

+ + +

1917 CIC 2315. One suspected of heresy, who, having been warned, does not remove the cause of suspicion, is prohibited from legitimate acts, if he is a cleric, moreover, the warning having been repeated without effect, he is suspended from things divine; but if within six months from contracting the penalty, the one suspected of heresy does not completely amend himself, let him be considered as a heretic, and liable to the penalties for heretics. (My trans.)