I am sorry to have written a long post on this matter. I did not have time to write a short one.
Abortion has long sat in the middle of a three-street ecclesial intersection, namely, those of Sin, Crime, and Sanction. The meeting of any two of these factors would make for a perilous perch but the confluence of all three is fraught with opportunities for confusion. At the risk of serious over-simplification, let me sketch the basic situation and then address Pope Francis’ comments thereon.
1. Abortion has always been recognized as a sin and a grave sin at that. Like other grave sins the path to reconciliation is basically by sacramental Confession.
2. Like some (but not all) sins, abortion has long been treated as a crime under canon law. As is true of other crimes, however, a host of legal factors must be considered in determining whether one who has become involved in the sin of abortion is also guilty of the crime of abortion. Not all persons sinning in this regard are guilty of the crime.
3. The canonical sanction levied against those canonically guilty of the crime of abortion has long been excommunication (a surprisingly complex institute), and latae sententiae (or, automatic) excommunication at that (ironically, a complex procedure for incurring and living under certain censures). I have long held that the automatic character of certain sanctions in the Church does more juridic and pastoral harm than good these days, but I won’t debate that matter here.
This already-complex intersection of sin, crime, and sanction has, I am sorry to say (sorry, because I think the canon law on abortion is too complex to meet some urgent pastoral needs facing us), been further complicated by at least two factors: first, an easy-to-overlook procedural change in the abortion crime norm itself, namely from 1917 CIC 2350 to 1983 CIC 1398, whereby the former express limitation that only “ordinaries” could lift the excommunication for the crime of abortion was dropped, introducing confusion as to whether and if so how the sin of abortion (which was too casually identified with the crime) could also be absolved by priests; and second, due to another easy-to-overlook change in the abortion canon (matre non excepta), a powerful argument exists (to which I subscribe*) that excommunication for the crime of abortion cannot be automatically incurred by pregnant women (as opposed to abortionists themselves) if the penal law of the Church is applied according to its express terms. Thus, upon noting that there are zero examples of women being formally excommunicated for their abortion, this second factor, if correct (and I think it is) means that no women (again, as distinguished from blood-soaked abortionists) have been excommunicated for abortion at least since the 1983 Code went into effect.
Now, given the inherent complexity of the law itself in this area, the disputes about that law among qualified experts, and the pervasive ignorance of canon law among rank-and-file faithful brought about by 50 years of ecclesiastical antinomianism, no wonder people are confused about what Pope Francis’ recent statement means. I’m confused, if perhaps less so than some others.
Francis writes: “For this reason too, I have decided, notwithstanding anything to the contrary, to concede to all priests for the Jubilee Year the discretion to absolve of the sin of abortion those who have procured it and who, with contrite heart, seek forgiveness for it.” Canon law is not mentioned and we must parse such implications as best we can.
A) I think the pope’s statement reflects a mistaken assumption, common among those who were trained under the 1917 Code, that priests with normal faculties for Confession still cannot absolve from the sin (let alone from the crime) of abortion. I and others, however, hold that all priests with faculties can absolve from this sin. The pope’s comments resolve this debate admirably (at least for the period of the Jubilee Year) as I happen to think it should be resolved.
B) The pope’s statement seems to assume that the sin of abortion and the crime of abortion are concomitant realities. I, however, and I’ll wager nearly all other experts, hold sin to be distinguishable from crime, and that this crime is rarely, if ever, committed by women (again, as opposed to abortionists). Now, nothing in the pope’s comments addresses the crime of abortion though maybe he intended to address the crime as well as the sin (I cannot imagine that Francis meant to leave women in peril of excommunication for their abortions—though I stress again that I do not think women are excommunicated for undergoing abortion). But, plainly, the pope’s text itself does not address the crime of abortion or its canonical consequences and so I see no change in canonical discipline in this regard. If, by the way, the pope’s text does address the crime of abortion, then it seems to allow abortionists to have their excommunications—sanctions much more likely to have been incurred under current canon law—addressed as well. Maybe Francis intends that outcome though he speaks exclusively of women suffering in this regard and not of abortion profiteers. Perhaps Rome will clarify this point.
Et poenae latae sententiae delendae sunt.
* See my “Canon 1324: exemption from a penalty” and “Canon 1398: Excommunication for procured abortion” in 2010 CLSA Advisory Opinions 169-174 and 178-182 respectively.
The first Station of the Cross, “Jesus is condemned to death”, recalls one of Western history’s most iconic acts of antinomianism, Pontius Pilate washing his hands of Jesus’ blood (Matthew 27: 24). Pilate’s cowardly and contemptuous abandonment of an innocent man to death stands—and will stand till the end of time—as a warning about how easily officers of the State can betray their duty to uphold fundamental justice. Well, the specter of Pontius Pilate walks again, this time, though law enforcement offices with jurisdiction over Planned Parenthood abortion clinics.
The first appalling videos of Planned Parenthood personnel marketing dead baby parts to fund their lust for Lamborghinis embarrassed some abortion supporters into silence and provoked others into stammering, incoherent defenses of PP’s naked barbarity. At present, only abortion ideologues like Obama and Clinton, people who long ago hardened their hearts against truth, still stand with Planned Parenthood. But the most recent PP videos indicate that a new low has been reached and that a line of unquestionable illegality has been crossed. We are talking now about credible audio-visual evidence that statutorily defined, common law recognized cases of murder have been committed in PP “abortion” clinics.
Yes, the ghost of Pontius Pilate hovers over Planned Parenthood. The only question is whether that ghoul will be honored by law enforcement officials who wash their hands of responsibility for the innocent being handed over to a tortuous death, or, will it be repudiated by men and women who know that fundamental laws against murder should be enforced.
That question is not hypothetical.
Last week in Hammond, Indiana, the pastor of St. Casimir Parish, Fr. William O’Toole, was confronted by police while walking around naked in the parish school. No kids were present. Thank God. The Diocese of Gary has apparently accepted O’Toole’s resignation as pastor and has referred him for a psychological evaluation. That’s good. Finding out whether O’Toole is insane (or was drunk, or was on drugs, or whatever) should be near the top of the to-do list here.
But looking down the road a bit, what plausible scenario exists, I wonder, whereby a pastor who walks around naked in his grade school (please, do re-read those words a few times) could ever be assigned to pastoral ministry—indeed, not just to ministry with kids, but with people? Okay, maybe if, say, O’Toole had been mugged by Satanists, injected with drugs, stripped naked, and locked in the school building where concerned passers-by noticed him and called authorities, maybe then I’d reconsider. But short of something like that? Sorry. I’m not seeing it.
I understand, I think, the sacramental and canonical implications of “Tu es sacerdos in aeternum” including the fact that priests who are mentally ill need—and have a canonical right to—professional care. But included in a priest’s right to support is not the right to engage in public ministry. That is a very different question.
In any case, suppose this stunt was not the result of mental illness? Suppose O’Toole is (as his own words about his “regrettable lack of judgment” seem to indicate), to a significant degree, responsible for his actions. What then?
Well, for starters, Canon 284 § 1 states that “Clerics are to refrain completely from all those things which are unbecoming to their state …” while § 2 adds that “Clerics are to avoid those things which, although not unbecoming, are nevertheless foreign to the clerical state.” Surely walking around naked in a grade school falls under these strictures.
Next, Canon 1389 § 1 states that “A person who abuses an ecclesiastical power or function is to be punished according to the gravity of the act or omission, not excluding privation of office …” Think about this: had a civilian walked around after hours in a Catholic grade school, nakedly or otherwise, he would have been arrested for trespass. But O’Toole was not arrested because he was a parish official. In other words, his ecclesiastical office gave him access to the school and protected him from civil arrest for being present therein (again, naked or otherwise). Does that not make a prima facie case against O’Toole case for abuse of office?
Finally, Canon 1395 § 2 states (with my emphasis): “A cleric who in another way has committed an offense against the sixth commandment of the Decalogue, if the delict was committed by force or threats or publicly or with a minor below the age of sixteen years, is to be punished with just penalties, not excluding dismissal from the clerical state if the case so warrants.” The Catholic tradition holds the Sixth Commandment to be the centerpiece of the prohibitions against unchaste acts. CCC 2351, 2392-2400. If I have to say it, I will: I think a prima facie case for dismissal from the clerical state can be made against priests who walk around naked in elementary schools.
Of course, if this naked stroll through the school had been committed by the principal, a teacher, or a janitor, termination would have occurred immediately as would likely arrest. But while priests cannot be “fired” in the sense that that word means in most contexts, the legitimate canonical protections that sacramental ordination confers on clergy must not be the pretext by which a wholesome respect for the clerical state degenerates into virtual immunity from real consequences for reprehensible behavior.
I sorta get that keeping personal notes helps some people work through their feelings, but what does publishing personal stuff add to the process? Except to make private feelings public and thus liable to response from others? I don’t journal, if I did I would not publish it, and if others do and publish it, I usually skip to the next item. But when that personal-and-published stuff (a) involves the Catholic Faith and (b) gets picked up by Catholic websites, as did Rita Davis’ remarks on being a pastor’s wife, I feel free to respond. Davis’ essay—and I know about her only what’s in her essay—occasions two points on matters that might cause confusion among Catholics.
1. Everything about Davis’ column tends toward “I grew up Catholic, but …”. It’s become a tired refrain. But the fact that something is common does not make it trivial. Part of the New Evangelization is, I think, going to be a more direct affirmation that membership in the Church is important. Yes, we’ll trip over ourselves immediately adding that membership in the Church is not everything; but we can’t continue to be shy about stating, plainly and firmly, that membership in the Church is a something, and that it’s a pretty important something. Here’s hoping that Davis has, all along, maintained her communion with the Church (Canon 209, Lumen gentium 14) or that she will quickly repair it.
2. Nothing in Davis’ column indicates that she married in the Catholic Church. Now, Canon Law Blog readers will know that this point really bugs me, because I hold that it shouldn’t matter how a Catholic marries (provided only that some provable exchange of consent between eligible parties took place). But the requirement of canonical form, which binds Catholics to marry in accord with form (or be dispensed from it) does not let me conclude that a Catholic is married when, as seems likely here, they observed a non-Catholic rite. Here’s hoping that Davis married according to form, or was dispensed from it, or will take the few steps necessary to convalidate what seems like a happy marriage—and that the outdated requirement of canonical form be dropped at the earliest practicable time.
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.