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A license to sin

There is, I fear, no end in sight of the nonsensical nonsense being unleashed in the wake of various high-level ecclesiastic dalliances with doctrinal ambiguity and disciplinary confusion in regard to holy Communion for divorced-and-remarried Catholics. Call it Life in this Valley of Tears. Anyway, Pope Francis is going to do about this whatever he is going to about it and the Church will respond to whatever he does in due course. For now, I simply write to urge caution about some proposals to facilitate irregular reception of the Sacrament in these cases even if such proposals are couched in apparently sophisticated scholarly terms.

For example, an Australian theologian has proposed a rescript to be issued by a bishop in accord with norms supposedly to be devised by Pope Francis, granting permission for divorced-and-remarried Catholics to take holy Communion. The proposal includes impressive vocabulary such as “juridical” and “administrative” and “canons”; it sports footnotes to “assessors” and “salus animarum” and warns about “anomalies”; it underscores Church teaching on the permanence of marriage and assures readers that it offers no doctrinal or canonical changes to this teaching.

Balderdash. Pure, unadulterated, balderdash. This proposed rescript is really a license to sin.

More specifically, this rescript would (purport to) grant permission to ignore one sin (adultery) and to commit another (sacrilegious reception of holy Communion). It even manages to suggest a third sin (attempting sacramental Confession without firm purpose of amendment)! Couched in mellifluous pastoral, sacramental, and canonical language, to be issued on arch/diocesan letterhead, such a letter, expressly invoking Our Lord’s teaching on marriage and to be signed by a Successor of the Apostles in the name of Christ, who—I kid you not—congratulates the couple on their perseverance in allowing the Church to grant them this favor(!), would constitute, I suggest, a blasphemy (CCC 2148).

As I and many others have said from the outset of this mess, holy Communion for divorced-and-remarried Catholics—except for those committed to living as brother-and-sister, and besides some (vanishingly rare, if correctly understood) ‘internal forum’ cases—cannot legitimately be approved unless marriage is not what Jesus plainly said it was, and/or adultery is not what Jesus plainly said it was, and/or the Eucharist is not what Jesus plainly said it was. Every attempt I’ve seen so far to prove otherwise rests on doctrinal and disciplinary interpretations so tortured they would make a Pharisee blush.

If it matters, the article published in support of this proposed rescript is also a hodge-podge of amateur’s errors, including: claiming that mental instability (whatever exactly that is) is a “diriment impediment” to marriage; misreading Mitis to authorize its shorter process only in documentary cases; not realizing that “administrative” acts ARE “juridical” acts; dragging Canon 59 into a discussion of “privileges of the faith” cases; and so on. While some sentences are just funny (“Such administrative acts may address canonically irregular and practically messy situations in respect of which a moderated pastoral response is prudent”) others, such as the paragraph beginning “Such undesirable prospects…” are, well, I don’t know what they, except that most can mean a fantastically large number of things, and I don’t feel like guessing which points might be uppermost in the author’s mind. But it doesn’t really matter.

The bottom line remains the bottom line: anyone who claims that holy Communion may be approved for divorced-and-remarried Catholics without repudiating one of the three fundamental assertions above simply does not know, or care, what he is talking about. I do not know how many ways there are left to re-state this point. Personally, I’ve about run out.

Still, there is, I suppose, one way to secure holy Communion for divorced-and-remarried Catholics without attacking any of the fundamental assertions upon which the current prohibitory discipline rests: Simply refuse to defend the doctrine or, less obviously, just decline to enforce the discipline. Don’t change anything; just, you know, ignore certain things, like, say, Canons 915, 916, and 987 in light of, say, Canons 1055 and 1085.

That approach is greatly to be feared.

I agree with Dr. Feser 99.953%

Dr. Edward Feser’s recent post on papal infallibility will be required reading next time I take students through Book III of the Code, especially Canons 749-750. But in any post of 6,328 words dealing with papal infallibility (and, I might add, only with papal infallibility, that is, not with, say, collegial or ecclesial infallibility, but just papal infallibility), it should not be surprising if I find a few words with which to disagree. If Feser disagrees with Cdl. Dulles in regard to a technical point (as Feser does once, correctly in my view), then I may demur from Feser’s phrasing in one respect, too.

Feser writes in regard to John Paul II’s ap. lit. Ordinatio sacerdotalis (1994) that “The reason [Ordinatio] is to be regarded as infallible is not that the papal document in question constituted an exercise of the extraordinary Magisterium, but rather because of the teaching’s status as part of the constant and universal doctrine of the Church.”

Hmmm. Of course documents aren’t infallible, acts are infallible (under certain circumstances, etc., etc.). But infallible acts can be, and usually are, performed through documents. Ordinatio is, I suggest, an example of extraordinary, papal infallibility being exercised through a document.

St. John Paul II wrote in Ordinatio: “Wherefore, in order that all doubt may be removed regarding a matter of great importance, a matter which pertains to the Church’s divine constitution itself, in virtue of my ministry of confirming the brethren (cf. Lk 22:32) I declare that the Church has no authority whatsoever to confer priestly ordination on women and that this judgment is to be definitively held by all the Church’s faithful.”

Now, if that language—language acknowledging that the assertion in question is already knowable by the ordinary infallible magisterium but is still in evident need of authoritative reiteration, language that states the matter in question to be doctrinal (specifically, ecclesiological) in nature, language that quotes Vatican II’s explanation of papal infallibility (Lumen gentium 25) and quotes the same foundational passage from Luke, language that asserts the ‘definitive’ (not prudential, not advisory) character of the assertion, and language that refers to the assertion as needing to be ‘held’ (as a secondary object of infallibility), not ‘believed” (as if it were a primary object),—if, I say, the language used by the pope in Ordinatio does not represent an infallible act papal magisterium, then one will never know what language does qualify as connoting such infallibility, not, that is, short of setting up ‘magic word’ criteria for infallibility precisely of the sort repeatedly rejected by all teachings on infallibility.

Yes, I know that then-Cdl. Ratzinger said he did not regard Ordinatio as infallible and there is language from John Paul II suggesting the same thing. What can I say? Ordinatio is infallible, Ratzinger was not; John Paul’s infallible teaching authority was engaged when he issued Ordinatio, not when he briefly commented on it.

As this post is, as mentioned above, simply a demurral from—and not a refutation of—Feser’s brief comment on Ordinatio, and is made mostly to preserve the argument for another day, I’ll not defend my views further, except to quote from a respected scholar of infallibility, Rev. James O’Connor, who, in discussing Ordinatio, said this: “It is clear that here the pope meets all the requirements set forth by Vatican I and explained by Gasser for an infallible papal definition. … Some have thought that the papal teaching in Ordinatio [s]acerdotalis was not itself infallible, but a ‘witness’ to the infallible teaching of the ordinary, universal Magisterium. Such was the personal theological opinion of Cardinal Ratzinger … However, the teaching of Ordinatio [s]acerdotalis is probably best viewed in light of what has been said above.” J. O’Connor, The Gift of Infallibility (Ignatius, 2008) 115-116.

Now, back to Feser.

Toward informed discussion of the ‘internal forum’

Some are suggesting that divorced-and-remarried Catholics may invoke the “internal forum” to justify their taking holy Communion despite their irregular marriage status (that is, notwithstanding their actual or apparent violation of Canon 1085 and in disregard of the provisions of Canons 915-916). Those suggesting the internal forum for these cases do so, I suggest, with an inadequate appreciation of the extensive reflections already made by the Church on the concept of the internal forum. May I suggest, then, that at least the following points be borne in mind during future discussions of the internal forum.

1. The primary canonical discussion of the internal forum occurs in the context of Canon 130, which canon references, however, not decisions of conscience, but rather, certain exercises of the “power of governance,” itself being an almost exclusively clerical and administrative activity, not a lay and spiritual one. Consider: “If the forum of conscience is ‘man’s most secret core, his sanctuary, [where] he is alone with God whose voice echoes in his depths (GS 16)’, the canonical internal forum certainly cannot simply be identified with the forum of conscience, because it is subject not only to the human intellect as making judgments in close and exclusive relationship with God, but is also subject to the power of governance of the Church.” Urrutia, “Internal forum / external forum”, in Latourelle, ed., Vatican II: Assessment and Perspectives I (1988) 637, my emphasis. Urrutia notes that the Code Revision Commission expressly rejected further treating of the ‘internal forum’ as tantamount to the ‘forum of conscience’, citing Communicationes 9: 235.

2. “The decision as to which forum is applicable in a given case should be guided by the following criteria: what is legally or factually known, or possibly going to be known, is to be decided in the external forum; what is secret and likely to remain secret may be decided in the internal forum.” Wijlens, in CLSA New Comm (2000) 186. But of course, a (canonical and civil) marriage, a subsequent civil divorce, and a later attempt at another (civil) marriage are “legally known” in virtue of their each being publicly recorded, and the majority of these situations are also “factually known” to the relatives, friends, etc., of those involved.

3. “A few examples of the exercise of power [in the internal forum are]: dispensation of certain occult impediments to marriage in special circumstances; [canonically] secret marriage; remission of reserved censures in certain cases.” Hill, in CLSA Comm (1985) 93-94; see likewise Viana, in Exeg. Comm (2004) I: 825. None of these classic examples of internal forum concerns looks to the reception of holy Communion by those remaining in irregular marriages; moreover, all require documentable intervention by ecclesiastical authority for their effectiveness; personal action on the part of the individuals concerned does not suffice.

4. “The consequences of this distinction [between the internal and external fora] are that, generally speaking, any decision for the internal forum has effect in that forum alone.” McGrath, GB&I Comm (1985) 77, original emphasis. Participating in holy Communion is, of course, an external act governed, in that respect, by the norms of the external forum (esp. Canons 915-916).

5. Re ‘hardship marriage’ situations (very common, when a first marriage is known, or at least presumed, valid, but it has undergone irretrievable breakdown): “The impossibility of accepting the so-called solution of the internal forum in the case of ‘hardship situations’ springs from the fact that it does not deal with the real problem even in the internal forum. The prior marriage is known to be valid and does not allow a new union (Canon 1085 § 1), and the new union remains invalid, and therefore inadmissible, not only in the external forum but also in the internal forum. The solution suggested in no way provides a solution to the defectiveness of the new union for any forum. It is merely palliative for the conscience of the persons involved, but an unlawful palliative because it clashes with principles that are valid for both the external forum and the internal forum.” Urrutia, 651-652.

6. Re ‘conflict marriage’ situations (very rare, where objective evidence makes the nullity of the first marriage certain, but there is no possibility of proving that nullity in a tribunal): There is a theoretical (“decidedly hypothetical”) possibility that an internal forum solution might make possible a valid ‘second’ marriage here, but “it cannot be recognized in the external forum, just as is laid down by Canon 130. And this is precisely why, even if the internal forum solution truly deals with the [second marriage], in such cases it can be applied [that is, recognized to the point of enabling, inter alia, reception of holy Communion] only where the fact of the prior union, and the fact that its nullity has not been declared, are not known by the ecclesial community.” Urrutia, 651-652. Urrutia goes on to explain the damage done to the community’s respect for marriage when a second marriage, valid in the internal forum but presumptively invalid in the external, becomes known. He concludes: “The internal forum solution cannot become an external forum solution unless there is certainty in the community as regards the nullity of the first union and [about] the valid celebration of the second—a certainty we cannot reasonably expect to be based on the subjective convictions of the persons involved…”

From the above, it seems to me that proponents of the “internal forum solution” for reception of holy Communion by divorced-and-remarried Catholics need, at a minimum, to account for (1) how individual lay persons can exercise a power of ecclesiastical governance on their own behalf; (2) how any internal forum solution is applicable to cases where the salient facts of the matter are legally, and usually practically, well-known to the faith community; (3) how persons in ‘hardship marriages’ situations can be encouraged to invoke any solution that is at best a false palliative; and (4) how even persons in rare ‘conflict marriages’ situations can be encouraged to invoke an internal forum solution when their situation is likely to be known in the community.

What does the devil get out of the Paris massacre?

(Some non-canonical thoughts, if I may, on the atrocity committed in Paris last week.)

One need not invoke the devil to explain most moral evils in the world. Mankind is perfectly capable of wreaking horrible evil anytime it chooses. But that does not imply that the devil is uninterested in human evil or that he derives no perverse pleasure from it. Evil deeds echo his original Non serviam and render him (in his mind at least) a twisted homage. Three things about the massacre in Paris, I think, the devil finds agreeable.

First, the terrorists died by their own hands. Because suicide is gravely evil, and because this form of suicide (vest-bombs) leaves no time for possible repentance between one’s final willed act and resultant physical death, suicide bombers die, by definition, in an state of unrepented, objectively grave, sin. Granting that psychological disturbances, etc., might diminish one’s subjective culpability for self-murder (CCC 2282-22283), nevertheless, death in unrepented grave sin means eternity in hell (CCC 1033-1037). The devil would welcome more humans to his eternal misery; suicide bombers seem high on the list of prospects.

That said, though, I caution against hoping that damnation is ever, however justly, visited on a human being—and not just because I want everybody to be happy forever (although I do want that). No, my dissuasion from wishing for anyone’s eternal damnation, even for that of suicide bombers, arises differently.

Consider: in his Passion, Christ paid fully the debt of every human sin. Included in his suffering was, therefore, the price of the very sins to be committed by suicide bombers in Paris some 2,000 years after Calvary. Now, Christ cannot “unsuffer” the pain he felt for those offenses and he cannot retroactively slake the anguish he experienced for those sins. Instead, the only question now is whether the suffering that he underwent for these sins will be rewarded by the sinners seeking and accepting his forgiveness. If they do, Christ will rejoice in their return. But if they do not, his suffering for them will be, in a sense, forever wasted. To wish, therefore, that another person to go to Hell is effectively to wish, I think, that, in regard to that particular person, Christ suffered for nothing. And who wants that?

Second, most of the victims of this sort of terrorism die what the Catholic tradition calls an “unprovided death” or an “unforeseen death”. None of the 130+ people who died in Paris last week planned to die at dinner or at a sporting event or a concert, but dozens in these venues were dead before they even knew a terrorist attack was underway, and many others must have been physically or emotionally unable to turn their thoughts toward the Particular Judgment that was just seconds or minutes away (CCC 1021-1022). Everyone will die someday and we should strive to live each day in a state ready to meet God; still, the Church prays that, when death is at hand, we actually be able to avail ourselves of the sacraments—at the very least, that we have sufficient awareness and time to offer a prayer of contrition and an appeal to the mercy of God (CCC 1014, and numerous provisions making sacraments, blessings, and indulgences available as death approaches). Terrorist attacks make unprovided deaths more likely, not less, and anything that keeps people from turning to God in times of greatest need is, as above, fine by the devil.

Third, the Paris terrorists loudly and repeatedly invoked God’s name in their slaughter even though, as is well-known, God is a God of life, not death. To use God’s name while performing grave evil is, therefore, to mock him. Insults take nothing away from God’s glory or holiness, of course, and Jesus has already defeated sin and death forever. Still I suppose that, in his impotent way, the devil enjoys hearing God’s name invoked by murderers. In my mind, it’s a sort of “I hate you!” being forever shouted by Satan as he plummets to Hell. He might feel better screaming it, but his words change nothing.

There are other things about the Paris massacre that I suspect the devil finds agreeable (say, the disorder these attacks introduced into society, for the devil is a spirit of disorder) but these three—suicide by those committing grave evils, death sprung unexpectedly on scores of persons, and mocking the divine name—seem uppermost.

Compassion has nothing to do with it

A batch of recent articles by solid Catholic writers assures worried readers that Pope Francis has not changed Church doctrine on the permanence of marriage—which he has not, of course, though I guess some rattled Catholics are comforted to hear that; instead, these writers claim, Francis’ changes to the annulment process reflect his desire to inject “compassion” into the process. Now, that latter claim—that Mitis Iudex brings ‘compassion’ to the annulment process—is debatable, but here I pose a preliminary question: What exactly does ‘compassion’ have to do with the annulment process in the first place?

If you had to choose, would you want a compassionate doctor or a competent one, a compassionate accountant or a reliable one, a compassionate airline pilot or a skilled one? Don’t misunderstand: I am all in favor of polite physicians, accounts who care about how my day is going, and pilots who smile and thank me for flying with them. But what I really need is a physician who monitors my cholesterol competently, an accountant who knows whether kids’ braces are deductible, and a pilot who lands us safely at our destination. Compassion, it seems, ain’t always everything; oft times, it’s next to nothing.

Back in canon law school, Dr. James Provost († 2000), an amazing lawyer and teacher, once told us soon-to-be-canonists that “Compassion without competence is a cruel hoax.” He was spot on. People do not turn to physicians, to accountants, to pilots, or to lawyers (civil or canonical) for ‘sympathy’; they turn to these professionals for skilled service and accurate information. Specifically, people do not come to tribunals for ‘compassion’, they come—as pope after pope has taught—to know the truth of their (matrimonial) status in the Church. If some faithful do not understand that point (and frankly some don’t) then it is up to Church leaders and opinion-shapers to remind them that Church tribunals are, first and foremost, in the truth (about the specific marriage before them) business, and that only in the truth is one free to live in the Lord. When various prelates and columnists talk, however, as if they never met a lawyer they didn’t dislike, it is left for canonists themselves to try to explain, albeit to an increasingly biased audience, how canon law serves our religious society—and meanwhile, to bear with the incessant Pharisee jibes.

So let me say it once again: Christ teaches that marriage by its nature is permanent, that remarriage after divorce is adultery, that most things that look like marriage are marriage, but that some things that look like marriage aren’t. Canon law accepts all of these truths and, under the governing power that Christ left to his Church, it defends them, in season and out. Now, in an annulment case, the tribunal asks a single fundamental question: are the two people before it, who appear to be married, really married? The answer to that question has, of course, huge pastoral implications (and helping people to process the answer to that question might well require considerable charity, compassion, and sympathy), but, at its core, this sole question before the tribunal admits only of a yes-no answer: the two people before a tribunal are either (as far as human knowledge can determine) married or they aren’t married. That can be known only by examining the relevant facts of a specific case in light of the applicable law in that case. Law is rarely simple, and human lives never are, but Christ knew all of that when He set before his Church what marriage really is, and what it sometimes isn’t, and charged us to live in accord with that Truth. 

In regard to marriage, there is no substitute for the truth, and in regard to annulments, there is no other path to the truth except that one paved with law and fact. Compassion, quite simply, has nothing to do with it.

A glance back at a forgotten canonical category

“Suspicion of heresy” was an odd institute of penal canon law under the Pio-Benedictine Code of Canon Law. Heresy itself, of course, was a crime under the old Code and still is one under the new (1917 CIC 2314, 1983 CIC 1364), and anyone suspected of being a heretic might, in that sense, be ‘suspected’ of heresy. But, under the 1917 Code, “suspicion of heresy” was something else: under certain circumstances, being suspected of heresy could itself, under certain circumstances, be a crime.

Now before anyone has a conniption fit and accuses the Pio-Benedictine Code of criminalizing thought, let me make two observations: first, the Pio-Benedictine law on “suspicion of heresy” represented a roll-back on the Decretal crime of “suspicion of heresy” (Woywod, Practical Comm., 2160), so give Cdl Gasparri credit for curbing an odd institute, not establishing one; and second, for practical purposes, only acts, not thoughts per se, could be adjudicated as “suspicion of heresy”. In any case the fact patterns that could give rise to “suspicion of heresy” were complicated (See, e.g., Cloran, P & P Cases 56) and, it seems, lent themselves more to canon law essay exams than to trials, and so the penal institute “suspicion of heresy” did not survive into the Johanno-Pauline Code. Given that even straight-up heresy prosecutions are almost unheard of under the 1983 Code the removal of “suspicion of heresy” as distinct offense from penal canon law has gone utterly unnoticed. That’s probably for the best, with one caveat.

What, I think, the concept of “suspicion of heresy” was trying to get at—albeit in a clunky way—was that certain actions (many wrong in themselves, but some others not quite wrong), if repeated over long-enough a period of time, could indicate that, behind such actions, there was heresy (a doubt or denial of some truth to be believed, per 1917 CIC 1325, 1983 CIC 751) at work. In an ironic way, “suspicion of heresy” credited Catholics with acting in accord with their beliefs, even if such beliefs were objectively wrong and, at least in part, held unconsciously. The idea that one can really believe X,Y, and Z, and yet consistently act quite contrary to X, Y, and Z, did not sit well with ecclesiastical leadership a generation or so ago. Perhaps they were naïve.

It is not fashionable these days to speak of “heresy”, let alone to “suspect” someone of heresy, but a glance at Church history suffices to show how dangerous heresy can be to a faith community, and how some conduct can, under certain circumstances, evidence not just wrong-doing per se but wrong-doing motivated by wrong-believing. At the same time, however, we know that wrong-doing unadmonished long enough, and wrong-believing uncorrected long enough, can trigger over-reactions in those who, at last, will finally exercise their responsibilities toward to common good.

My suggestion? Deal with doctrinal discord, and its concomitant disciplinary manifestations, forthrightly, instead of waiting to see if it will all just go away on its own—which it never does—and before either side takes stands it will regret.

Canon law has never been ‘the frame of reference’ for the Church

When prelates of the erudition and experience of a Donald Cdl. Wuerl (Washington DC) can say things like this, the rest of us can be in no doubt as to just how deeply and widely a fundamental misunderstanding of law in the Catholic Church has taken hold. Speaking about the future of the Church, Wuerl, who is recognized as one of Pope Francis’ most esteemed advisors, said that, in the wake of the 2015 Synod and the Francis’ papacy, “The frame of reference now is no longer the Code of Canon Law. The frame of reference is now going to be, ‘What does the Gospel really say here?’”

I hardly know where to start, but here goes.

The “frame of reference” for the mission of the Catholic Church has never, ever been the Code of Canon Law, and no canon lawyer I know of has ever, ever claimed otherwise. The “frame of reference” for the Catholic Church has always been, and has only been, Christ the Lord. For the cardinal archbishop of a major Western capital to talk as if the Code of Canon Law, for so much as one second, ever fancied itself as the “frame of reference” for the Catholic Church—well, it confirms the stranglehold that antinomian attitudes have secured over ecclesiastical thought in the space of one lifetime, to the point that today, many in the highest circles of ecclesiastical leadership can scarcely even talk about canon law without caricaturing it. But if Wuerl avoids offering some of the more insulting depictions of canon law and canon lawyers being tossed around recently, he nevertheless sees canon law largely as an obstacle to the saving truths proclaimed by Jesus and he gives urbane cover to others who find certain Gospel truths, as enunciated in concise legal terminology, too inconvenient.

Twice, maybe three times, in her history, the Catholic Church has suffered though waves of antinomianism. Each time, of course, law—as natural to human society as a skeleton is to the human body—eventually regained its place in ecclesial life, but only after much needless waste. Our current wave of disdain for canon law started in the early 1960s, it grew enormously throughout that decade and into the 1970s (fed in part by the disastrously long period that the Church went effectively without canon law and aggravated by similar anti-order shocks to civil society), it seemed to recede a bit in the 1980s and 1990s, only to erupt again in the wake of the clergy sex abuse disasters ten or fifteen years ago. Today, whether because Francis actually dislikes canon law or because he is simply uninterested in it, the aging antinomians of the 1960s and 1970s see an opening to resume their attacks on law and lawyers in the Church, and they are seizing that opportunity.

I am not going to use a blog post to try to educate antinomians (whether they are “hard core” canon law haters, or, as I rather think Wuerl to be, gentler “Amator Si, Legislator No” types) as to the many and vital connections between Catholic doctrine and canon law, though I have raised such issues several times, say, here and here. Rather, I’ll just say this: canon law has always seen itself in service to the Church, huge tracts of canon law rest directly on biblical foundations and doctrinal assertions made by the Magisterium over the centuries, canon law is always in need of reform (just ask any canon lawyer), and finally, that some people railing against canon law need to ask themselves whether it is law they don’t like, or the truths such laws defend.


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