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A couple of thoughts on a couple of comments

I do not know what the pope actually said in his in-flight comments about marriage (or even what language he spoke in) or what various listeners took his meanings to be, but a few thoughts on what was reported as having been said by the pope in the National Catholic Register might be useful for those trying to understand the deeper issues in play here.

In his response, Francis stressed that with [Mitis Iudex] he has closed the administrative path that could have led to divorce. “Those who think this is ‘Catholic divorce’ are wrong because this last document has closed the door to divorce by which it could have entered. It would have been easier with the administrative path,” he said.

I do not know what “administrative path” to divorce there was to close. The Church does not “do” divorces, administratively or otherwise, and annulments (even documentary cases) are judicial procedures. Also, civil divorce per se is not forbidden to Catholics. CCC 2383. Divorce followed by remarriage is what raises issues.

“[Mitis Iudex] facilitates the processes and the timing, but it is not divorce because marriage is indissoluble when it is a sacrament.”

Marriage is indissoluble by natural law itself (not by a ‘sacramental’ character). By this assertion canonists mean, in brief, that the parties cannot dissolve their marriage nor can the State. This stability is known (unhappily, in my opinion) as “intrinsic indissolubility”. There is still room, however, for some outside things to dissolve a merely intrinsically indissoluble marriage, notably, the Pauline Privilege and Petrine authority.

“And this the Church cannot change. It’s doctrine. It’s an indissoluble sacrament.”

The sacrament of matrimony enjoys the indissolubility of natural marriage and, in virtue of its sacramental character, it enjoys a “special firmness” (see Canon 1056). Thus, upon the exchange of consent to matrimony (here, marriage between two baptized people), that union is a sacrament and is not liable to, say, the Pauline Privilege, but it could still be dissolved by extraordinary papal intervention (a very rare occurrence). But, once a matrimonial union is “consummated” (something basically presumed after the wedding night, per Canon 1061), not even papal authority can dissolve it, a condition known as “extrinsic indissolubility.”

“There’s one [tribunal] sentence, then another sentence and after there’s an appeal, there’s the appeal then another appeal. It never ends,” [Francis] said.

A marriage thought to exist between two parties can currently be declared null after one trial and a confirmation of nullity by second instance. There are no required appeals after the one mandatory appeal, nor are there mandatory appeals after those appeals, etc. Parties do have a canonical right to appeal a second instance decision, and a few choose to exercise that right. A few examples of rare serial marriage appeals are analyzed in John Noonan, Power to Dissolve (1972), but the ‘never-ending marriage case’ is a myth used by some to ridicule the Church’s institutional efforts to defend marriage and reflects, moreover, an under-appreciation of what it means to say that “status of persons” cases are never res iudicata (Canon 1643-1644). Mitis does nothing, and could not do anything, to eliminate elective appeals of marriage cases beyond what canon law already does to stem pointless procedures (well, not without damaging the ability of canon law to function as a true legal system, it couldn’t.)

“The Pope noted that [mandatory appeal of first instance decisions is] not something essential to the process.”

The pope is correct and he eliminates mandatory second instance in Mitis. I, among others, have argued for this elimination for some time. Some impressive canonists hold otherwise.

Perhaps two points to take from the above might be that, whatever reforms to canon law of marriage are envisioned, reformers must understand that (a) canon law terminology reflects some profound doctrinal and juridical values, and (2) those discussing the canon law of marriage must know what those terms mean and don’t mean, as the case may be, for the discussion to be useful.

Automatic censures should be eliminated from Church law

Only two kinds of men publicly admit to doing evil: those who repent of their deeds and are willing to accept the consequences for having acted wrongly, and those who are comfortable with their conduct and believe that no serious consequences will come from divulging it.

Several reports based on Godfried Cdl. Danneels’ just-released, authorized biography indicate that the now-retired Belgian prelate helped lead a clique of cardinals directly opposed to Benedict XVI’s papacy. If true that suggests sin, but not crime. It seems, however, that some members of this clique, after Benedict resigned, engaged in pre-conclave politicking for then-Cdl. Bergoglio, politicking of the sort that is forbidden by conclave law (Universi 81). If true, that would be a sin and a crime. Danneels’ admissions, read in the light of other allegations and reports, suggests, then, that at least some cardinals committed at least some offenses for which they are at risk of the Church’s highest sanction, namely, excommunication, more precisely, latae sententiae (automatic) excommunication.

Which means they are at risk for—not much, really. Shall I elaborate?

The canonical consequences of “excommunication” are set out in Canon 1331. A cursory glance at that canon shows these consequences to be very serious, including: prohibiting individuals from celebrating Mass, participating in sacraments, or exercising ecclesiastical roles, offices, and functions, and so on. Besides suffering the spiritual consequences of having engaged in whatever gravely sinful conduct underlies the crime in question (and note: consignment to hell has never been a consequence of excommunication, though it could be one of unrepented sin), any Catholic automatically excommunicated is in deep trouble.

But that same cursory glance at Canon 1331 will not show (unless one is trained in canon law) that most consequences of excommunication become relevant in the external forum only if the excommunication is “imposed or declared”. That short, technical phrase means that, while one who is “automatically” excommunicated labors under the personal burdens of this sanction, it is only when an excommunication is “formal” that actions performed by canonical criminals raise questions for Church life and governance.

The canonically untutored do not (and should not be expected to) understand that the consequences of excommunication for public Church life differ dramatically based on whether the excommunication is “automatic” or “formal”, that most of the ‘bite’ that people attribute to excommunication (like not being able to function in Church offices) comes only with formal excommunication, and that formal excommunication has practically disappeared from modern Church life because (1) a host of canonical defenses unnecessarily burdens prosecution of excommunicable crimes, and (2) ecclesiastical authority apparently feels that, as long as latae sententiae excommunication is on the books (and most folks think it does what “excommunication” does anyway) why bother with a complex, portentous process for turning an automatic excommunication into a formal one? Whatever the reasons, Roman prosecutions of “formal” excommunication cases are rare; those involving prelates are very rare; those involving cardinals are essentially unheard of.

Thus, it is hard to see what canonical consequences a cardinal would have to fear if he were to admit to a canonical crime punishable by latae sententiae excommunication. If it turns out that one or more cardinals violated, say, Universi 81, they might (and I stress, might) be “automatically” excommunicated, but “automatic” excommunication impacts—I hate to put it this way—only the liceity of ecclesiastical acts, not their validity. So, while it might be distressing to see appointed to synodal service some cardinals who could be “automatically excommunicated”, whatever acts such men might place at a synod would be, by the plain text of canon law, valid. And no one seems especially incentivized to inquire further than that.

All of which re-occasions my call, then, for the simple elimination of latae sententiae censures from Western canon law.

Every time conduct carrying the possibility of automatic excommunication comes in for public discussion (whether it be umpteen variations on procuring abortion, renegade episcopal ordinations, ‘women’s ordination’, violations of the seal, a range of heresies, violation of conclave secrecy, politicking for papal candidates, etc., etc.) every single time, the discussion of these cases inevitably turns away from the underlying sins/crimes toward the technicalities of penal procedural law. The whole focus changes from how sinful and offensive conduct should be assessed among believers to how Book Six of the Code is parsed by canonists. Automatic excommunication allows Church leaders and commentators to substitute platitudes about how so-and-so actually only ‘excommunicated himself’ when what needs to be upheld is ecclesiastical authority’s role in defending the doctrines and practices of the faith community against malfeasants.

I have, it should be obvious, no problem with the penalty of excommunication itself. Excommunication is deeply rooted in Biblical precedent and, when properly imposed for serious ecclesiastical offenses, it has been used to great good throughout Church history. But automatic excommunication, whatever useful role it might have played in the past, is a distracting anachronism in modern canon law. It confuses the eschatological consequences of sin with the ecclesiastical consequences of crime. It requires criminals to be their own prosecutors and judges. It provokes crises of conscience for some who conclude that they are excommunicated when they are not, but helps others to avoid confronting their consciences when they correctly conclude that they are not, technically speaking, excommunicated.

In his const. Apostolicae Sedis (1869), Bl. Pius IX took the first modern steps toward bringing the by-then terribly-overgrown system of automatic censures into some kind of order. Cdl. Gasparri helped further reduce latae sententiae penalties in the 1917 Code. St. John Paul II promulgated the 1983 Code with even fewer automatic sanctions still and in 1990 he issued the Eastern Code of Canon Law with none at all! Notwithstanding a slight uptick in the number of crimes punishable by automatic excommunication under Benedict XVI, the clear trend is toward eliminating automatic sanctions from Western canon law.

May that trend be continued. Nay hastened.

A note on convicts as witnesses at Catholic weddings

It’s not clear to me what exactly has happened here but it appears that the bishops of a region in Italy, one hard-pressed by the Mafia, have forbidden certain classes of criminals from serving in various ecclesiastical roles. Fine by me, of course, with one caveat.

It seems that some criminals are no longer allowed to serve as “witnesses” at Catholic weddings. That might be a problem.

The notion of “witness” has been confused by an intrusion into canon law of excessive ‘pastoral sensitivity’ (see, e.g., the novel, so-called “Christian witness” at baptism, an ersatz office critiqued by me in the 2008 CLSA Advisory Opinions 94-95), but the fact is that the designation of a “witness” is not about honoring the witness, but about his or her ability to verify a claim made by a third party. If there is reason to think that a given witness is mistaken or lying about what he or she saw, that testimony may be challenged, but basically, anyone over age seven and not stoned at the time can give canonical testimony about what he or she saw, or didn’t see, as the case may be. Whether “witnesses” to Catholic weddings should have a liturgical role is a different question, but it does not turn on whether convicted criminals per se can perceive and report on what words were exchanged between two people.

Of course, all of this is yet another complication of retaining canonical form for marriage, but that discussion is for another day.

Note: Avoiding the requirements of Mitis would not be easy for bishops

If Pope Francis’ Mitis Iudex becomes law it will require, among other things, that arch/bishops personally assess, and in some cases adjudicate, certain kinds of marriage nullity petitions. Now obviously some, perhaps many, prelates will feel (based on their lack of advanced canonical training, and/or their personal indisposition toward juridic work, and/or their concerns for negative implications to their wider pastoral work that having to choose between types of petitions and individual parties in annulment cases will inevitably provoke) inadequate to this task. Already I am hearing, however, that arch/bishops looking to avoid their looming judicial and procedural responsibilities under Mitis may simply dispense themselves from it and/or delegate their responsibilities to others.

I am not so sure.

First, the new duties to be imposed on arch/bishops under Mitis seem plainly judicial (as opposed to legislative or executive) in nature. As a general rule, however, judicial duties in the Church may not be delegated to others. Canon 135 § 3. Note, for example, that tribunal judges are appointed to office and therefore judge cases by ‘proper’, not delegated, authority. Canons 1420-1421. Bishops who are used to delegating executive power in the Church (Canons 136 et seq.) might overestimate their ability to delegate these new judicial responsibilities to others.

Second, Mitis seems plainly to establish a procedure for arch/bishops to follow in regard to processing certain nullity cases. But procedural laws in the Church are generally not susceptible to dispensation. Canon 87 § 1. In light of, moreover, Francis’ express and repeated calls in Mitis that bishops take a direct role in judicial matters, arch/bishops dispensing themselves from the requirements of Mitis would be, to say the least, anomalous.

Third, the Christian faithful have a fundamental right to have their cases judged in accord with law. Canon 221 § 2. It would be difficult, I suggest, to reconcile an arch/bishop’s refusal to accept and judge petitions qualified for same under Mitis with the plain provisions of Mitis itself and with the principles of judicial and procedural canon law reflected in the Code of Canon Law.

As for the expedient to which some prelates loath to act under Mitis might be tempted (namely, that of not ‘feeling’ that this case or that meets the substantive or procedural requirements of Mitis even though, by any honest reading of Mitis, they would so qualify), well that’s a constant problem for the administration of justice in a Church that largely depends on human beings performing their ecclesiastical duties with integrity. I can only respond that Mitis might be flawed law but, as things stand now, it will soon become real law and will bind in the way that real law binds.

All of which boils down to, again: a delay in implementing Mitis must be secured until a much wider pool of qualified and experienced voices are allowed to discuss these and many other issues raised by it.

Who is satisfied with Mitis Iudex?

Ross Douthat’s speculations on Pope Francis’ “marriage endgame” are interesting (as usual) and in some respects I agree with them. But in one major respect, I disagree.

Douthat writes: “Fast-tracking annulments weakens the credibility of Catholic doctrine, in both implication and effect. But it does not formally reverse the church’s teaching about the nature of marriage and communion.” Two, maybe three, times Douthat implies that Francis’ strategy (chiefly, that shown by his rewriting of annulments procedures in Mitis Iudex) is a victory (if a small one) for Church teaching on marriage, divorce-and-remarriage, and reception of Communion. I say No, Francis’ strategy is not a victory for Church teaching on these issues for the simple reason that Church teaching on these issues was never at risk.

I grant that, whether with express papal encouragement or simply in the churning wake of Francis’ governing style, some weighty ecclesiastics have argued for changes in formal Church teaching on the permanence of marriage, etc., and that in turn a few observers of things ecclesiastical have been provoked into speculation of schism should such changes be approved. But all such efforts to change doctrine are nonsense and any speculations of schism are absurd.

Popes cannot (not may not, not should not, not aren’t likely to, but cannot) change fundamental Church teaching on these matters, and—even granting an impossible premise—not once have I heard a Catholic defender of marriage ruminate about going into schism if the impossible happens. That is not to say that the likes of Cdls. Kasper and Marx, to name but two, have not done serious damage to the clarity of Church teaching on these issues; they have done damage, and to things besides marriage theory, notably Kasper to sacramental theology and Marx to ecclesiology. But the chances of a formal reversal of fundamental Church teaching on marriage (or on anything else that the Church holds from Christ) are and forever will be zero. Thus, as there was no real risk of impossible changes to doctrine here, the pope’s new annulment norms cannot reckoned a ‘victory’ for doctrine. Anyone who thinks otherwise feared a harm that could not come to pass.

But while some sigh in relief that Church doctrine dodged a bullet (one that could never have hit home), I suggest that Church discipline (that small, vital place where doctrinal rubber hits the pastoral road) is seriously threatened by parts of Mitis Iudex and that a major stepping-back from implementation of its most radical norms (especially the fast-track annulment option) needs urgently to be requested by bishops. Given, I might add, the divinely-imposed hierarchic structure of the Church, if bishops do not act here, there is precious little any one else can do.

Let me be clear, the current annulment process, like any deliberative process devised by human beings, is not perfect. Some things in it (e.g., mandatory review of trial court affirmatives) could be reformed and, if eliminated (as Mitis directs), would speed things up. But most of the rest of the annulment process is, purely as a matter of natural law, required for the reasonably reliable pursuit of justice. What tribunal critic after critic after critic cannot see or refuses to admit is that the annulment process is a legal (not a theological, not a pastoral, but a legal process) designed to answer an important legal (not a theological, not a pastoral, but a legal) question, namely: did two capable people offer correctly their consent to marriage. It’s a Yes-No question on which everything, and I mean everything, else that annulments are and mean in the Church, flows. Get the answer to that question wrong, and everything that follows from it will be wrong.

Now, Mitis does not change one jot or tittle of Church teaching on marriage. It recites the unchangeable nature of Church teaching on marriage and the importance of having an ecclesiastical procedure to investigate the character of marriages entered into by the faithful. But, the fast-track annulment option offered in Mitis removes a significant (and inevitably widening) number of marriages from the real protection that is offered not by heart-warming recitations of Church teaching, but by the practical discipline exercised in formal tribunal annulment cases. Indeed, Mitis so obviously deprives a wide swath of marriages from this sort of dull, demanding, but effective (well, about as effective as men-not-angels can make it), procedural protection, that Francis himself admits the risk to marriage inherent in fast-track annulments and simply appeals to diocesan bishops to make sure that the almost-inevitable doesn’t actually happen—bishops, who, as far as one can tell, were not asked whether they wanted, let alone could carry out, such a task. But in less than three months, unless Mitis is significantly modified or better postponed, all diocesan bishops are going to be tasked with personally processing numerous marriage nullity cases. The implications of this change beggar my poor imagination.

In short:

Those (a fair number, it seems) who want to change Church teaching on marriage (and/or on divorce-and-remarriage, the necessity of repentance from sin for reconciliation, withholding holy Communion from those persisting in objective grave sin, etc.) are not satisfied with Mitis because Mitis changes none of those things.

Those (a few, I suspect) who think no reforms of the annulment process itself are needed, are not satisfied with Mitis because Mitis offers some genuine reforms.

Those (many, I am sure) who want some reform of the annulment process, but not reforms that provide an obvious way to circumvent the deliberate process, are not satisfied with Mitis because Mitis reforms the tribunal process while simultaneously offering a way for many to circumvent it.

In short, I don’t know who is, or could be, satisfied with Mitis as it stands.

Update: This post now available in Italian, here.

A linguistic concern occasioned by an important debate over synodal proposals

On the Church’s short list of “Crucial Concepts to be Taught Right”, the relationship between personal conscience and objective moral norms ranks pretty near the top.

Among instantiations of chronic confusion regarding the relationship between conscience and doctrine, that which infuses the debate surrounding contraception has become, I am sorry to say, a classic. Add that Humanae vitae is to be addressed (if briefly) by the upcoming Synod of Bishops (itself already mired in controversy) and one may be tempered to despair that anything useful will come on these matters at this time from that institution. But try one must to teach the truth clearly no matter what the circumstances, and so I pause to remind that clear teaching requires, first, clear language. Literally.

First Things has just published “An Appeal” to the approaching Synod for clear teaching on conscience formation. The authors of the appeal and an impressive list of co-signatories raise serious questions about certain expressions being proposed by synodal authorities to set out Church teaching on conscience. Meanwhile other leading thinkers in this area (e.g., Dr. Janet Smith) question their questions. So far, this is the stuff of which great debates in the Church consist. I am not qualified to weigh in on this one and so refrain from even trying.

But I can’t help noticing, with regret, that both sides are debating points being made (or not?) in an English translation (accurately rendered?) of an Italian original (is it ‘the original’?). And I wonder, since when has Italian become the international language of Catholic doctrine?

It is one thing to accept the practical necessity of Italian for running the Vatican bureaucracy (or not running it, as the case may be). But it is quite another to have Italian serve as the vehicle for proposals officially expressing Catholic doctrine, doctrines that are, by their very nature, not national or ethnic, but Catholic and therefore, to recall the etymology of the very word “Catholic”, universal. If the relationship between conscience and moral norms really ranks near the top of topics to be taught correctly in and by and to the Church, then should debates about the written expressions of such a topic turn on appreciating the Italian way of phrasing such teachings? I trust the answer to that question is self-evident.

Without getting into whether Latin is the “official language” of the Church (I happen to think it is not and will defend that thesis in an upcoming article), Latin is unquestionably the primary language of the Catholic Church and, for well over a millennium, it has been the international language of formal Church teaching. The doctrinal clarity and ecclesiastical stability that comes with the use of Latin must never be surrendered. Fundamental assertions about fundamental aspects of Church teaching should be made solely in the one language that is fundamental to the Catholic Church, Latin, on which assertions, I say, let vernacular debates blossom with fruitful abandon.

Nah, that twern’t no smear

Always good when Fr. Z has your back, but I don’t think the AP and US News & World Report are trying to “smear” me over my critiques of Mitis Iudex, esp. this one. Yes, their article reporting on (some of) my views is too short (I deserve much more attention—not), but I don’t think it unfair. Or did I miss something?

I do have one concern, though. The article says that I have warned that “Pope Francis’ new reform of the church’s marriage annulment process … could lead to ‘crises of conscience’ for even happily-married Catholics.” Not quite.

I did not specify “happily” married couples. There was a reason.

Since it has come up, yes, I do think the list of fast-track annulment factors might negatively impact some happily married couples by sowing doubts about the validity of their marriage where previously there was none, but I am more concerned about the impact the pope’s list might have on ‘sort-of-happily’ married couples, for those are more prone to self-doubts, worries, anxieties, or suspicions than are “happily-married” couples. I fear that some of these struggling couples, knowing their marriage would be eligible for expedited nullity processing (given the presence of one of more of the factors listed in Mitis) might yield to attitudes and actions that can, over time, like a self-fulfilling prophecy, lead to despair for their marriage.

And that’s a pity.


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