Dcn Greg Kandra calls attention to a question floating around out there, namely, should Catholic justices who voted to impose “same-sex marriage” on America be excommunicated? We can deal with most of that question pretty quickly.
Excommunication can impact any Catholic (there are no exemptions for those in high civil office), but it can be incurred only for twelve specifically delineated crimes (CLSA Comm. 932, not counting a couple of excommunicable crimes listed outside the Code). Now, voting to impose “same-sex marriage” on a nation (or, taken more broadly, gravely damaging the common good) is not among the canonical crimes punished by excommunication, and even Canon 1399 (sometimes derided, if unfairly, as a “catch-‘em-all” penal norm) would not suffice for so-called automatic excommunication (a canonical institution that presents its own legal complications, but let that pass). In short, I see no excommunication readily imposable on Catholic justices who voted to impose “same-sex marriage” on America.
But, two points remain for Catholics to consider.
1. For reasons outlined here (chiefly that—aside from the compelling natural law demonstration that marriage is possible only between a man and woman, a demonstration that should be understandable as a matter of human reason—the Church teaches with infallible certainty that marriage is possible only between a man and woman) I think that some Catholic justices have, indeed, manifested their opposition to Church doctrine (Canons 750 § 2 and 1371, 1°), doing so, moreover, “in published writing” and in a way that “gravely injures good morals” (Canon 1369). The canonical sanctions referenced for such offenses are, however, ‘indeterminate’ (justa poena) and, I would hold, do not extend to excommunication. To be sure, a number of very important procedural steps would need to be observed before moving on these norms (and the track record of thinking-through, let alone enforcing, penal canon law has not been strong in our day) but, at the very least, the fact that such an argument can even be made suggests a basis for some kind of pastoral intervention toward those Catholic justices who hold that “law can recognize as marriage whatever sexual attachments and living arrangements it wishes”, let alone toward those who voted to impose “same-sex marriage” on America.
2. If, as seems likely, Church teaching that marriage can exist only between a man and woman is taught not just infallibly (as a ‘secondary object’ of infallibility) but as being divinely revealed (making it a ‘primary object’ of infallibility), then, a Catholic’s obstinate denial of such a truth is canonically “heresy” (Canon 751) punishable by excommunication (Canon 1364 § 1), an automatic one at that—and is not just ‘opposition to Church teaching’ punishable by a ‘just penalty’. I leave it to theologians to hammer out whether Church teaching on the male-female foundation of marriage is simply, but infallibly, Church doctrine (I am sure it is at least that) or whether it is part of divine revelation (I am strongly inclined to say that it is), but either way, prominent Catholics asserting that marriage is whatever the State wants to make it, is a grave ecclesiastical problem.
Back in the 1980s, when my law degree was the primary credential under which I tried to serve ecclesial and civil society, I followed US Supreme Court cases with care. I read histories of the Court and biographies of the justices. I could competently discuss lines of cases in certain areas of constitutional law and had a working knowledge of what was coming before the Court and how the circuit courts below it were divided. Since earning my canon law degrees, however, and moving predominately into canonistics, the common law colors under which I sallied forth into American high court jurisprudence have slowly faded. Some friends and colleagues are, God bless them, experts on Supreme Court matters and from them I can learn who’s who and what’s what with the Supremes. But these days, I attend only to canonical and wider ecclesiastical issues that may surface at One First and Maryland.
Unfortunately, in the aftermath of Obergefell, several such issues loom. Here I point to just one.
Justice Antonin Scalia (who has always caught my attention—I favorably reviewed his Federal Courts and the Law some fifteen years ago) is a lifelong, intellectually sophisticated, unabashedly Catholic, Catholic. Though often relegated to dissent, no one exposes the nakedness of the Supreme Court’s (especially, Justice Anthony Kennedy’s) legislative and literary pretentiousness better than does Antonin Scalia. He has blasted, for example, Obergefell as resting on “the mystical aphorisms of the fortune cookie” cobbled out of “mummeries and straining-to-be-memorable passages.” It’s rollicking good stuff, the kind of trenchant writing that 3Ls would memorize and throw at each other in law school lounges back when law school lounges were always hazy with cigarette smoke.
But here’s the problem: Scalia’s dissenting opinion, while correctly arguing that Congress, and not the Courts, is the law-making branch of government in America, opens with this line: “The law can recognize as marriage whatever sexual attachments and living arrangements it wishes … It is not of special importance to me what the law says about marriage.”
Good grief! I say it again, good grief!
If someone of Scalia’s life in the faith, off-the-charts intelligence, and central responsibility for the role of law in the world’s leading democracy, really thinks that “law can recognize as marriage whatever sexual attachments and living arrangements it wishes”, then, what is there for the rest of us to say but, All is lost? Yes, Scalia disagrees with Obergefell, but only on process grounds, not on the merits of the issue—had the legislatures of all 50 states and the federal government chosen to “recognize as marriage whatever sexual attachments and living arrangements” they wished, Scalia, by his own words (and these, reiterated!) would have agreed.
Lost on Scalia the high judge and legal philosopher, it seems, is the whole of the natural law tradition, a tradition that holds law to be, among other things, an ordinance of reason—and not simply a matter of the will, legislative or otherwise. Right reason should lead one to conclude that the human institution we call “marriage” is only one thing, the permanent union of a man and woman. Scalia expressly rejects this conclusion. But also lost on Scalia the active and educated Catholic, it seems, is the Church’s unbroken teaching that marriage can only exist between a man and woman, and that to hold otherwise is to be in plain contradiction of infallible Church teaching (Canon 750 § 2). Indeed, if, as seems all but sure, Church teaching that ‘marriage is the permanent union of a man and a woman’ is not just a truth knowable by natural reason but is revealed by God then Scalia’s assertion that we can call “marriage” any sexual combination of people (or things?) we wish (provided only that we do so through a legislature) would be objectively heretical (Canon 750 § 1)! No matter how one reads him, then, whether as a judge charged to reason or as a Catholic charged to believe, Scalia has made an astoundingly wrong and harmful assertion in a hugely public way.
Which highlights, I am afraid, a deeper problem yet.
Scalia’s generation of Catholics was supposed to be that which still recognized that a Catholic’s faith must animate a Catholic’s whole life, that, to paraphrase Canon 209 (which has no fine print exempting Catholics who happen to be Supreme Court justices), Catholics are supposed to act like Catholics 24/7. Now, because a Catholic may never, under any circumstances, say that marriage is not the permanent union of a man and woman (let alone may a Catholic say that marriage can be whatever a civil government feels like making it!) we must ask, If an Antonin Scalia doesn’t get it, Lord, who does?
The bishops in America, who are today trying to repair a catechetical crisis largely not of their making, should see Scalia’s dissent in Obergefell not as a springboard from which to organize opposition to “same-sex marriage” but as a measure of just how much repair work needs to be done if Catholics in America are ever to learn again what it means to think with the Church.
This is not a canon law post, so if you’re looking for canon law issues, this post does not deal with any.
Yesterday The Patriot News of Harrisburg PA, within minutes of the Supreme Court decision in Obergefell, banned all op-eds and public letters in opposition to the high court’s ruling. You need to read it to believe it: As a result of Friday’s ruling, PennLive/The Patriot-News will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to same-sex marriage.
In a later tweet, Patriot-News editor John Micek doubled-down on his thought-policing and expressly likened such opposition to expressions of racism, sexism and anti-Semitism. “Pretty simple”, Micek said.
I wonder, have Micek and The Patriot-News ever banned expressions of opposition to any other Supreme Court case? Please, do name even one. […Cue crickets chirping…] I do not know how long The Patriot-News has been in business, and frankly I have never been convinced by the analogies that gay activists try to draw between “same-sex marriage” and the Civil Rights Movement, but I wonder how might Micek have applied that very analogy to, say, expressions of disagreement with the Dred Scott decision in 1857 (which, btw, came down on a Friday). Maybe something like? … As a result of Friday’s ruling, PennLive/The Patriot-News will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to slavery.
This might come as a shock to Micek, but according to the US Constitution, there are legal ways to overturn Supreme Court rulings, but these ways depend largely on the free and public exchange of ideas in a democracy. Micek’s either going to provide a forum for the expression of those ideas in central Pennsylvania, or he isn’t.
Wow. Micek is actually channeling Big Brother!
Incredibly, Micek is now MIS-quoting himself in an attempt to fend off what must have been an avalanche of criticism. Consider his line: “I came up with three sentences which currently read like this”, and read it again.
One marvels at the Orwellian syntax of Micek’s sentence: “I came up with [past tense] three sentences which currently read [present tense] like this”. But Micek has changed what he originally wrote! He now claims that his outright ban (was? is?) only a “strict limitation” and that the immediate character of his ban takes effect only after a brief interval. Micek still will not accept letters in opposition to “same-sex marriage”, but The Patriot-News will allow, for a brief time and under strict control, criticism of the high court’s decision and its legal merits.
How very open-minded of Micek. One can’t criticize “same-sex marriage” in his house, but one may, I suppose, make ancillary remarks about, say, the difficulties on the merits caused by Ruth Bader Ginsburg voting in a 5-4 case legalizing “same-sex marriage” after she had officiated at such a rite, a la … Poor form, that, what-what, tut-tut. Indeed, poor form, Ms. Ginsburg. Tsk-tsk. Pass the sherry.
As to Micek’s three substantive points (in their current version, we’ll have to see how they read tomorrow):
- “No one at PennLive and The Patriot-News is an opponent of the First Amendment.” That’s nice, but it’s also easy to say. No one at PL/PN can violate the First Amendment because the First Amendment only applies to state action. Micek can, and clearly will, run his paper pretty much any way he sees fit.
- “More than once yesterday I was referred to as ‘f****t-lover,’ among other slurs.” I am very sorry Micek suffered such personal attacks. And I’m sure he feels very sorry for the vicious personal attacks routinely poured out on defenders of traditional marriage.
- Micek (channeling Henry Ford’s quip that car buyers can have any color they want, so long as it’s black) declares that opponents of the court’s decision “are, and always will be, welcome in these pages”—albeit for a limited time, under strict controls, and provided they don’t criticize “same-sex marriage” itself.
Thanks for nothing, Patriot-News. We have the internet.
I use WordPress, a free program, to post this blog. My editing screen is mostly dull shades of grey; it’s boring to look at, but the program works pretty well. Plus it’s free.
Today, though, when I went to post my blog on the Supreme Court case, there was suddenly blazoned across the editing screen a marquis style Gay Pride Rainbow flag. Atop my usual shades of grey, the multiple colors veritably screamed ‘Gay Marriage! Gay Marriage! Gay Marriage!’. Unless WordPress got hacked or something, it looks like they (with all the lately-found bravery of one who jumps on a bandwagon after someone else has won a fight) wants folks to celebrate this Supreme Court decision. Mind, WordPress has never, in my three or so years of using it, marked its tool pages with any political logos or symbols of any kind. But today there is an in-your-face gloat over the Supreme Court decision in Obergefell.
Makes me wonder how WordPress (assuming it was them who ran the Rainbow marquis) might have celebrated the Supreme Court’s Dred Scott decision back in the day. Perhaps a marquis featuring chains and shackles? Or how about the Supreme Court’s ruling in Plessy vs. Ferguson? Maybe back-to-back rows of chairs? Weren’t these both Supreme Court cases thought to have settled once and for all major questions of their day?
Yes, a lot of people are happy about Obergefell. I get it. But assuming everyone wants to celebrate it?
PS: I wonder whether WordPress’ paying customers were greeted with a political banner today. Or was it just us charity cases?
So, the US Supreme Court, relying on what Justice Scalia has called “the mystical aphorisms of the fortune cookie”, has ruled that two persons of the same sex can marry. The only relationship on earth limited to two people of the opposite sex has been gutted of its core identity by our highest judicial body. Words fail. Of course, the Court has not yet reached the end of its marriage line, for yet to come are “marriages” between siblings, parents and children, groups of people, and so on, but come they will, for the corner was turned today, much like the corner was turned on abortion back in 1973—in another ruling never righted. The Court might, of course, from time to time, get some other cases correct, but it clearly cannot be relied upon as a repository of judicial, or even logical, good sense in tumultuous times. The loss is a grievous one for the American body politic. Anyway, I make here two points especially for Catholics.
First, we need to recall that the State has long recognized as married some persons who are not married, namely, when the State allows divorced persons simply to remarry. We have lived with persons in pseudo-marriage for many decades; so now the pool of such people is larger. The pastoral challenges in consequence of this latest decision are greater as will be the sacrifices needed to meet them. But so far—and this is a key point—State power has not been applied to try to force Churches or their faithful to treat as married those who, by doctrine or discipline, are not married. This brings me to my next point.
Second, Catholic doctrine and discipline can never, ever, recognize as married two persons of the same sex, and any Catholic who regards “same-sex marriage” as marriage is, beyond question, “opposed to the doctrine of the Church” (Canon 750 § 2). I am sorry so many Catholics apparently think otherwise and I recognize that many who think that Church teaching on marriage can and should change, do so in good faith. But they are still wrong and their error leads them, among other things, to underestimate how non-negotiable is the Church’s opposition to the recognition of same-sex unions as marriage. The Church (and for that matter our nation) will have great need of Catholics who understand and accept the teaching of Christ and his Church on marriage if the damage done by the Supreme Court today is ever to be repaired. Appreciating the infallible character of this teaching on marriage is the first step.
As for whether we succeed in righting this wrong, that’s not our concern. The question we will be asked at Judgment will be, Did we try?
Granting that Pope Francis has made some imprudent statements (e.g., mentioning Catholic families and rabbits breeding in the same breath) and some imprecise ones (e.g., asserting that air-conditioning is a ‘clear example’ of consumerist disregard for the common good), and granting that such comments comfort those trying to make the Church look incoherent while distressing those who value prudence and precision in ecclesiastical commentary, nevertheless, Francis’ recent comments about the need, at times, for married couples to separate are neither imprudent nor imprecise and they should provide no solace to foes of right thinking nor occasion concern among the faithful. Francis is, I suggest, simply re-stating standard moral theology and indeed canon law in his remarks on marriage. I’ll draw chiefly on canon law in showing how this is true (for moral theology see, e.g. Davis, Moral and Pastoral Theology, IV: 228-230, or Häring, Law of Christ, III: 319-320, or Palazzini, “Separatio coniugum”, DMC IV: 263-266).
Canon 1151 directly states that “spouses have the duty and the right to preserve conjugal living”. Canon 1135 underscores that “each spouse has an equal duty and right to those things which belong the partnership of the conjugal life”. And the foundational Canon 1055 defines marriage as, among other things, “a partnership of the whole of life”. In these norms the 1983 Code is setting out what common sense and human nature already tend toward, namely, valuing the cohabitation of married couples.
But, that said, neither canon law nor human nature demand the impossible. If, under certain circumstances, it becomes impossible (physically or morally) for a couple to cohabit, they are permitted to separate. Canon 1151, cited above as directing cohabitation, includes the proviso “unless a legitimate cause excuses them”, and Canon 1153 (capping a canonical tradition that reaches back at least to Gratian) expressly acknowledges the risk of “grave mental or physical danger to [a] spouse or children” as justifying the separation of spouses. Thus, Francis’ comments on the need, at times, for separation in marriage fall squarely within the parameters of canon law.
Of course, say “separation” these days and the world hears “divorce”; mention “divorce” and the world immediately assumes a “right to remarriage”. Francis, however, mentions neither divorce nor remarriage. He could have, if he so chose, reminded his audience that even civil divorce (which does not destroy a natural marriage bond, let alone a sacramental one!) is a morally licit option under certain circumstances (see, e.g., CCC 2383), but he would never have suggested a divorced person’s simply proceeding to remarriage, for such would be contrary to the plain teaching of Christ. But civil divorce and remarriage are complex topics that do not lend themselves to adequate presentation to a crowd of pilgrims standing under the hot summer sun.
In short, when Francis says “separation” he means separation, not necessarily civil divorce (though it might be licit under some circumstances) and certainly not simple “remarriage” (which is not an option for Catholics). Persons reading apocalyptic divorce and remarriage overtones into the pope’s comments on separation are, well, going apocalyptic. + + +
That 40% of Irish voters bucked some of their own priests and bishops and nearly all of their politicians and major media to side with a true-marriage campaign that mustered hardly one euro for every ten spent by its opponents says something about the resiliency of natural law and Church teaching on marriage. But, silver linings aside, the outcome of the constitutional referendum on marriage in Ireland is a disaster.
“Same-sex marriage” has usually been imposed by activist judges; in Ireland it won by popular vote. “Same-sex marriage” is often insinuated into the legal landscape by blurring distinctions between it and “same-sex unions”; in Ireland marriage itself was expressly on the line. “Same-sex marriage” in most places set in only after decades of relentless secular media promotion; in Ireland it seems to have come about almost overnight.
But as the Church now tries to figure out how, for the umpteenth time in her history, she must go about teaching people how to be human, she must also explain to Catholics what it means to be Catholic. Specifically, she must be clear that some public actions carry personal consequences for Catholics especially when we are talking about Catholics who play a part in bringing about a repudiation of perennial natural law and a rejection of irrefutable Catholic doctrine. Obviously—and without reading souls, but considering things objectively—degrees of personal culpability for such acts will vary depending on two main factors: the specific actions taken by individuals and their places in the social or ecclesiastical order.
At the lower end of the responsibility scale are, I suppose, rank-and-file Catholics who cast a personal ballot securing, not just passage of the amendment, but its passage by a higher margin than would have occurred without their vote. At the higher end of the responsibility scale are, of course, Catholics who, from positions of political, social, or ecclesiastical prestige, lent their influence to the cause of “same-sex marriage”. But any Catholic who directly helped to bring about Ireland’s decision to treat as marriage unions of two persons of the same sex has, at a minimum, arrayed himself against the infallible doctrine of the Church and, quite possibly, has committed an act of heresy. (See my Primer of 27.III.2013). In either event, the technical term for such an action is “sin”; the consequences of sin are always spiritual and sometimes canonical; and the solution for sin is repentance and Confession.
May all Catholics, whether contributing to this disaster or grieving it (even from afar), set ourselves to righting it as soon as possible.
Note: As we sort out this latest mess, I urge Catholics to avoid running down the rabbit hole of wondering whether this supporter or that of “same-sex marriage” has been excommunicated for such support. Latae sententiae sanctions must be, in my opinion, eliminated from canon law but, in the meantime, debating latae sententiae penalties shifts attention away from the real problem at hand (the legalization of “same-sex marriage”) which all must address, and toward the intricacies of penal canon law which precious few are qualified to talk about.