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I agree, most Catholic theologians need more training in canon law (at least before they propound on it)

I applaud Massimo Faggioli’s recognition that “canon law is clearly an important part of the Catholic tradition” and join him in urging that “the curricula of Catholic theologians should include more” canon law. His own Commonweal essay on what he thinks are the canonical implications of the appearance of Pope Francis’ letter to the Argentine bishops in the Acta Apostolicae Sedis illustrates several of the ways that non-canonists can stumble over canonical issues while setting those faulty views before the public. Let me just comment on some of Faggioli’s assertions.

1. Faggioli: “Changes in canon law don’t come quickly, as the ongoing reception of Amoris Laetitia since its promulgation in April 2016 is currently reminding us.” Well, sure, especially when papal documents do not change, or even mention, the canonical norms at issue. It is not easy to change a canon by not talking about it.

2. Faggioli: “The news this week that Pope Francis has officially recognized the interpretation of Chapter VIII of the exhortation put forth by Argentine bishops indicates that change does nevertheless occur.” But this is old news; Francis “recognized” the Argentine document when he signed his name to a letter endorsing their document last year. The appearance of Francis’ letter in the Acta Apostolicae Sedis adds nothing to his act of last year.

3. The Argentine document “includes guidelines noting that there is no such thing as ‘unrestricted access to the sacraments,’ but that in some situations a process of discernment ‘opens the possibility’ to receipt of communion for divorced and remarried Catholics.” No one, I mean no one, ever seriously thought that a right to “unrestricted access to the sacraments” existed, and the constantly repeated, reassuring claims that such a danger has been firmly ruled out are vacuous.

4. Notwithstanding Faggioli’s exaggerated read of its significance, Francis’ placing the label “magisterial” on his letter to the Argentines (rather as he dubbed his recent remarks on the liturgical renewal movement as “magisterial”) is indeed unusual. I can think of several unquestionably magisterial statements being made by, say, Benedict XVI or St. John Paul II, but off hand, I do not recall either of them ever labeling their statements as “magisterial”. Papal statements, assessed in the light of criteria that Church law and tradition apply in such cases, either qualify as magisterial (a term whose import, by the way, is routinely exaggerated in common parlance) or they don’t so qualify. Labels attached do not, in my opinion, modify the nature of the assertion, but they do contribute to the mistaken view that papal “magisterium” is something that can be lightly turned on and off.

5. Of course, much of Faggioli’s (and others’) excited thinking about Amoris, the Argentine’s document, and the pope’s endorsement of it, assumes that Francis et al. have repudiated—to make a long story short—Canon 915 and the unbroken, divinely rooted, tradition behind it. To be sure, one could read Amoris and its progeny as doing exactly that, for the words in Amoris support that interpretation. But they also support exactly the opposite interpretation, namely, they can be read so that divorced-and-remarried Catholics are, as they have unquestionably always been, included among those regarded by Canon 915 as obstinately persevering in manifest grave sin (as each of those terms has been understood over the centuries, understandings that might not coincide exactly with how non-canonists might understand them) and thus are (outside of one well-defined situation) ineligible to present themselves for holy Communion thereby occasioning in ministers of that most august Sacrament the duty to withhold the Eucharist if such persons do present themselves. The plausibility of diametrically opposed interpretations of the text of Amoris is precisely why, in my view, the Dubia posed by four cardinals warrant a direct, clear, and authoritative response.

6. Faggioli’s invocation of the famous 1875 letter of Bl Pius IX to the German bishops endorsing their view of papal primacy against extra-ecclesial attacks, as if it were remotely comparable to Francis’ endorsement of the Argentine document, beggars belief.

I invite interested persons to examine an English translation of the German bishops’ statement, Pius’ response letter, and his later consistorial remarks on it, as found in Donald Logan, “The 1875 statement of the German bishops on episcopal powers”, The Jurist 21 (1961) 285-295, and ask themselves whether the detail, clarity, and precision used by the German bishops in describing the matters before them are in any way comparable to the “endlessly malleable considerations phrased in verbiage redolent of the 1970s” employed, as I have said, by the Argentines in addressing their topic. I note that Pius’ endorsement of the German document, undoubtedly sufficient to make their language his, was not, to my knowledge, ever labeled “magisterial” by that pope. It didn’t need to be so labeled, for magisterial statements speak magisterially according to their own nature.

7. Faggioli’s comments on “desuetude” (a canonical mechanism for letting obsolete laws fall from force) are far too superficial for him to be able to appeal to desuetude as a pretext to disregard the undoubted meaning of Canon 915. But to his comment that, from his “personal experience, the focus on canon 915 in the U.S. Catholic Church is an exception”, I would say two things: first, God bless the USA for still having enough well formed and committed Catholics to be aware that Canon 915 exists and that it is being disregarded by many to their spiritual detriment; second, my personal experience indicates that Canon 915 is not being discussed in some regions of the world because Catholics in those places have no doubt but that Canon 915 applies to, among others, divorced-and-remarried Catholics. No one debates what everyone acknowledges.

8. Faggioli writes: “The real issue is that there is and will be probably a situation in which the issue of allowing, in some circumstances, remarried divorcees to receive communion will receive different treatments in different parts of the world—even perhaps depending on the particular country, or diocese, or area of the diocese.”  Seriously? And this is a good thing, that, say, divorced-and-remarried Catholics in, I dunno, the Downriver Vicariate of the AOD are prohibited holy Communion while those in the Monroe Vicariate are permitted to receive? Does this make even the slightest pastoral or doctrinal sense?

Even to suggest such a situation—one wherein, as George Weigel put it, what is “a grave sin in Poland is a source of grace two kilometers across the border in Germany”—as being in any way acceptable suggests a lack of understanding of many things besides just canon law. Still, a better understanding of canon law might help forestall such bizarre scenarios before they gain traction.

And so end as I began, by recommending with Faggioli that theologians receive more education in canon law, at least before venturing too many opinions on it.

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On the appearance of the pope’s letter to the Argentine bishops in the Acta Apostolicae Sedis

Some three months ago I predicted that Pope Francis’ letter to the Argentine bishops, approving their implementation of Amoris laetitia, would make its way into the Acta Apostolicae Sedis. Now it has. An accompanying note from Cardinal Parolin states that the pope wishes the Argentine document to enjoy “magisterial authority” and that his endorsement thereof  has the status of an “apostolic letter”.

Fine. Let’s work through some points.

1. Canon 915. It is crucial to understand that, today, what actually prevents ministers of holy Communion from distributing the Eucharist to divorced-and-remarried Catholics is Canon 915 and the universal, unanimous interpretation which that legislative text, rooted as it is in divine law, has always received. Canon 915 and the fundamental sacramental and moral values behind it might be forgotten, ignored, or ridiculed, even by ranking officers in the Church, but unless and until that law is revoked or modified by papal legislative action or is effectively neutered by pontifically approved “authentic interpretation” (1983 CIC 16), Canon 915 stands and, so standing, binds ministers of holy Communion. 

Neither the pope’s letter to the Argentines, nor the Argentine bishops’ document, nor even Amoris laetitia so much as mentions Canon 915, let alone do these documents abrogate, obrogate, or authentically interpret this norm out of the Code of Canon Law. Granted, little or nothing in these documents endorses or reiterates Canon 915, either, and the apparently studied silence that Canon 915 suffers these days is cause for deep pastoral concern. But law does not wilt under the silent treatment.

2. Apostolic letter. An “apostolic letter” is a sort of mini-encyclical and, however much attention encyclicals get for their teaching or exhortational value, they are not (with rare exceptions) legislative texts used to formulate new legal norms. Typically “apostolic letters” are written to smaller groups within the Church and deal with more limited questions—not world-wide questions such as admitting divorced-and-remarried Catholics to holy Communion. Even where a special kind of “apostolic letter” is used to make changes to the law—such as John Paul II did in Ad tuendam fidem (1998), as Benedict did in Omnium in mentem (2009), or as Francis did in Magnum principium (2017)—the “apostolic letter” used in such cases carries the additional designation “motu proprio” (i.e., on the pope’s own initiative, and not in response to another’s action), and the changes made to the law thereby are expressly identified by canon number, not simply implied or surmised, especially not by silence. 

The pope’s letter to the Argentines appears simply as an “apostolic letter”, not as an “apostolic letter motu proprio”, and it references no canons.

3. Authentic magisterium. Many people use the term “magisterium” as if it were tantamount to “Church governing authority”, but in its canonical sense “magisterium” generally refers to the Church’s authority to issue teachings on faith and morals, not to the Church’s authority to enforce discipline related to matters of faith and morals.

While Francis—albeit about as indirectly as is possible (through a memo to a dicastery official concerning a letter written by an episcopal conference)—has indicated that his letter to the Argentines and even the Argentine conference letter itself are “magisterial”, the fact remains that the content of any Church document, in order to bear most properly the label “magisterial”, must deal with assertions about faith and morals, not provisions for disciplinary issues related to faith and morals. Church documents can have both “magisterial” and “disciplinary” passages, of course, but generally only those teaching parts of such a document are canonically considered “magisterial” while normative parts of such a document are canonically considered “disciplinary”.

Francis has, in my opinion, too loosely designated others of his views as bearing “magisterial authority” (recall his comments about the liturgical movement), and he is not alone in making, from time to time, odd comments about the use of papal power (recall John Paul II invoking “the fullness of [his] Apostolic authority” to update the by-laws of a pontifical think-tank in 1999).

But that inconsistent usage only underscores that the rest of us must try to read such documents in accord with how the Church herself usually (I wish always, but I’ll content myself with “usually”) writes them, and ask, here, are there “magisterial” assertions in Amoris, the Buenos Aires document, and Francis’ endorsement letter? Yes. Plenty, running the gamut from obviously true, through true-but-oddly-or-incompletely phrased, to a few that, while capable of being understood in an orthodox sense, are formulated in ways that lend themselves to heterodox understandings (and for that reason should be clarified for the sake of the common ecclesial good).

In any case, such teaching statements, to the extent they make assertions about faith or morals and come from bishops and/or popes acting as bishops or popes, already enjoy thereby at least some (relatively little) level of ordinary magisterial value, a value not augmented by sticking the label “magisterial” on them.

And, are there “disciplinary” assertions in Amoris, the Buenos Aires document, and Francis’ endorsement letter? Yes, a few. But as I have said before, in my view, none of those rather few disciplinary assertions, even those ambiguous and capable therefore of leaving the door open to unacceptable practices, suffices to revoke, modify, or otherwise obviate Canon 915 which, as noted above, prevents the administration of holy Communion to divorced-and-remarried Catholics.

Conclusion. I wish that Canon 915 were not the sole bulwark against the abandonment of the Eucharist to the vagaries of individual, often malformed, consciences. I wish that a lively, pastorally-driven sense of the liberating permanence of Christian marriage, the universal need for Confession to reconcile those in grave sin, the power of the Eucharist to feed souls in the state of grace and to condemn those who receive irreverently, sufficed to make invocation of Canon 915 unnecessary in pastoral practice. But apparently, in much of the Catholic world these days, such is not the case and Canon 915 must be pointed to as if it were the only reason to bar reception of holy Communion in these situations.

But what can one say? Unless Canon 915 itself is directly revoked, gutted, or neutered, it binds ministers of holy Communion to withhold that most august sacrament from, among others, divorced-and-remarried Catholics except where such couples live as brother-sister and without scandal to the community.

Nothing I have seen to date, including the appearance of the pope’s and Argentine bishops’ letters in the Acta Apostolicae Sedis, makes me think that Canon 915 has suffered such a fate. + + +

This post now available in Portuguese, here.

This post now available in Spanish, here.

This post now available in Croatian, here.

This post is accurately paraphrased in German, here.

Canceling Sunday Masses before Christmas

Apparently this is a thing now: arch/bishops canceling all Sunday morning Masses in their arch/dioceses on Dec 24 (the Fourth Sunday of Advent) and directing priests to offer only the Christmas Mass of anticipation on Sunday evening. While the faithful could still attend Mass on Saturday evening, Dec 23, in anticipation of Sunday, those who usually attend Sunday Mass on Sunday morning will arrive to find locked doors and lights out.

This is a bad idea.

Sunday is “by apostolic tradition … the primordial holy day” and participation in Mass on Sunday is the signature act of worship rendered to God by Roman Catholics around the world, indeed, it is the very “foundation and confirmation of all Christian practice.” CCC 2182. Depriving the faithful of the opportunity to perform their grave Sunday obligation (1983 CIC 1246-1247), or forbidding priests from offering Mass for Sunday, is usually associated with the civil persecution of the Church. That it comes about by way of a Catholic bishop’s mandate should be unthinkable.

The reason behind these novel directives is, one surmises, the inconvenience posed by having back-to-back holy days of obligation such as occurs every few years—and as has occurred every few years for a long, long time. But apparently we moderns face serious logistical problems getting to Mass that our forefathers never encountered.

In any case, canon law anticipates this very problem and allows, per Canon 1246 § 2, episcopal conferences, with the prior approval of the Apostolic See, to suppress or transfer to Sunday some or several of the ten universal holy days of obligation. Most episcopal conferences have, in fact, after deliberation and with the approval of the Apostolic See, reduced the number of holy days in their territories and have often added further mechanisms whereby, should a remaining holy day of obligation fall on Saturday or a Monday, the obligation for the holy day (not for Sunday!) is dispensed that year.

But what we see sprouting up in some arch/dioceses is different: first, given Rome’s practice of demanding that Christmas be preserved, these bishops are acting against Sunday, not the holy day; second, it is individual bishops acting, not episcopal conferences; third, there is no sign that these bishops have approval from the Apostolic See to cancel Sunday.

Worse, this bad idea is being baldly implemented.

Regarding the faithful. Cancelling all Sunday Masses in an arch/diocese does nothing, repeat nothing, to obviate the grave canonical obligation of the faithful there “to participate in the Mass” per Canon 1247. Yes, it becomes more difficult for Catholics to satisfy their obligation (and, yes, I can imagine some scenarios wherein such episcopally-mandated measures push these difficulties over the line into ‘impossibility’), but, absent ‘moral impossibility’ or, better, lawful dispensation, Catholics in these territories are still obliged to attend Sunday Mass.

(Note to Catholic faithful in these territories: You may satisfy your Sunday obligation either at a Saturday evening Mass or at the Christmas anticipation Mass on Sunday evening, and you may satisfy your Christmas obligation either at the Christmas anticipation Mass on Sunday evening or at any Mass on Christmas day. You may not, however—in case these directives prompt the question, and they likely will—satisfy both the Sunday obligation and the Christmas obligation at a single Mass on Sunday evening, as if there were such a thing as “Super Mass”, able to satisfy two Mass obligations in a single liturgy. Two Mass obligations means, and has always meant, participation in two Masses.)

Regarding priests. Telling priests not to offer Mass (of all things!) on Sunday (of all days!) smacks of a precept and, to the extent that such a precept interferes with the rights of priests in good standing to exercise their ministry, it needs to meet several criteria beyond the bishop’s feelings about extra busy-ness for two very holy days in the year. Priests whose see their rights being curtailed by these directives or who are concerned for the spiritual and canonical well-being of their people have ample grounds, I think, upon which to challenge these unheard-of orders.

Some final thoughts.

Requiring, under pain of grave sin, Mass attendance on holy days of obligation (other than Sundays) is a real burden on the faithful and on priests—a burden not liable to pietistic retorts such as “We should all want to go to Mass every day!” Of course we should, but we can’t. I am content to let ecclesiastical authority decide how many such additional days of precept there should be, especially because the Holy See allows episcopal conferences to mitigate those extra observances locally. But Sunday itself should not be touched. Especially not by individual bishops (or priests) who think that Sunday should suffer because a holy day happens to fall just before or after it. Even the Code anticipates mitigating holy days, not Sundays!

That said, I do think that a bishop (or better, a pastor) is a good judge of exactly how many liturgies can be prudently offered in a short time. Should a bishop or pastor decide to offer, instead of, say, three Sunday morning Masses, just two or even one on the day before a major holy Day, it would be hard to criticize the decision.

But a unilateral decision from on high to cancel all Sunday Masses in a diocese, apparently without episcopal conference action, without approval by the Apostolic See, and/or without an accompanying dispensation (deliberately granted in accord with law), with little public notice, and with no gesture of accommodation for those faithful who try to keep Sunday as the primordial holy day that it has been since the time of the Apostles? No.

That, I think, is a bad idea, and one badly implemented. + + +

Some points for priests and pastors to consider include: Unless impeded by canon law priests celebrate Mass licitly (not to mention validly). 1983 CIC 900 § 2. A priest in good standing is generally permitted to celebrate Mass. 1983 CIC 903. Priests are encouraged to celebrate Mass frequently fulfilling thereby their “principal function”. 1983 CIC 276, 904. Pastors are “to see to it that the Most Holy Eucharist is the center of the parish” and that their people “frequently approach the sacraments of the Most Holy Eucharist and penance”. 1983 CIC 528 § 2. Pastors are diligently to lead their people in expressing love and devotion to the Eucharist. 1983 CIC 898.

Some points for all the faithful to consider include: You have the fundamental right to worship God according to the prescripts of the Church. 1983 CIC 214. It not possible to imagine a more fundamental exercise of the right of worship God than participating in Sunday Mass. CCC 347 and large tracts of the second part of the Catechism of the Catholic Church. You are “to hold the Most Holy Eucharist in highest honor, taking an active part in the celebration of the most august sacrifice, receiving this sacrament most devoutly and frequently, and worshiping it with the highest adoration”. 1983 CIC 898. You are to bear in mind that “The Eucharistic sacrifice, the memorial of the death and resurrection of the Lord, in which the sacrifice of the cross is perpetuated through the ages, is the summit and source of all worship and Christian life, which signifies and effects the unity of the People of God and brings about the building up of the body of Christ.” 1983 CIC 897.

What an invalid dispensation looks like

Christmas falls on a Monday this year, so the bis-septennial angst over back-to-back Mass attendance obligations is upon us. The US bishops could have suppressed the Christmas obligation under Canon 1246 § 2 (as they did with Solemnity of Mary, Jan 1) but they chose instead to let it stand. Most practicing Catholics will say, “Fine, two Masses on two days. No big deal.”

Not a pastor in Pennsylvania, however, who is attempting to dispense his parishioners from the obligation of attending Sunday Mass the day before Christmas, via a bulletin notice no less:

“Therefore, by my authority as pastor, I hereby grant a dispensation from the obligation for the Fourth Sunday of Advent in individual cases that meet the following conditions: 1. You are reading this dispensation as an individual right now; 2. You are my canonical parishioner, either by geography or by registration; 3. You place ALL the envelops for BOTH celebrations in the collection basket at whatever Mass you attend.”

I think “Fr. Penn’s” scheme fails utterly as a dispensation. Let’s see why.

The canonical obligation to attend Mass on Sunday and holy days, including Christmas, is set out in Canon 1246.

Generally priests (even pastors) do not have authority to dispense from canon law (1983 CIC 89) but, under Canon 1245, pastors (which Penn is) can dispense from the obligation to attend Mass under three specified conditions (themselves to be narrowly read per Canon 92), namely: (1) the presentation of a “just and reasonable cause” for dispensation; (2) compliance with the prescripts of the diocesan bishop regarding dispensations; and (3) that dispensations be granted individually.

Does Penn’s so-called dispensation meet any of these requirements, let alone all of them?

Just and reasonable cause?

Penn seems to think that the mere fact that Canon 1246 imposes an obligation (to attend Mass) is itself justification for dispensing that obligation. That’s absurd, of course, unless one holds that every legal obligation gives sufficient cause for its own dispensation. Canon law, however, requires that something ‘external’ to the obligation itself ground any request for a dispensation from the obligation.

For example, when a pastor dispenses wedding guests from the requirement of abstaining from meat on a day of penance, the reason for his dispensing is the desire to support the special festivities associated with a wedding, not because abstinence itself is a chore. Or, when the bishops debated suppressing various holy day obligations, part of their conversation turned on the special problems that back-to-back obligations placed on priests having to provide numerous liturgical services in a short time.

Penn, in contrast, does not require those wishing to use his “dispensation” to offer any reason or cause for their request.

Compliance with diocesan policy?

Penn cites no diocesan prescripts (as contained in, say, a Pagella of Faculties) on dispensation, so it is impossible to tell whether he has complied with diocesan regulations. I would be stunned, however, stunned, if anything in diocesan policy allowed pastors to dispense up to all parishioners from the Sunday obligation via, of all things, a bulletin notice. Which brings us to the next point.

Granted only for individual cases?

Penn knows that he has power to dispense only in “individual cases”, but he wants to dispense basically everyone in the parish from the Sunday obligation on Dec 24. So he plays a word game: anyone who reads his public notice “individually” is dispensed “individually”. Good grief, how else on earth could a bulletin notice be read other than “individually”? Penn’s requirement is too comical to merit even the appellation “legalistic”, but in any case it will not stand.

Canon law itself stretches the notion of “individual case” so that it can apply, say, to one person over a period of time, or to a somewhat larger group (within a community) facing an unusual situation (recall the wedding party example above). CLSA New Comm (2000) 1443. But it is ridiculous to treat a whole parish as simply a bunch of “individuals”, provided they “individually” read a document. Nor does it say much for Penn’s understanding of his parish as “a certain community of the Christian faithful … entrusted to a pastor as its proper pastor” (1983 CIC 515) and not as “a conglomeration of the faithful … entrusted to a pastor as their pastor”.

In short, I do not think Penn’s “dispensation” meets any of dispensation criteria set out in Canon 1245, let alone all of them. But there are more problems still.

Oddly, Penn purports to dispense not from the Christmas holy day obligation but rather from the Sunday obligation the day before! While dispensation from a Sunday obligation is conceivable under law, dispensing from it, rather than from the holy day, is inconsistent with the law’s treatment of Sunday as the primordial obligation observed in the universal Church by apostolic tradition. 1983 CIC 1246 § 1. This I think puts Penn afoul of Canon 90 § 1 which requires that dispensations to take account of the “gravity of the law from which dispensation is” sought. Nor does Penn seem to have considered all the “circumstances of the case”, circumstances that certainly include the fact that the US episcopal conference chose to suppress neither the Sunday obligation nor the Christmas obligation this year although it certainly had authority to do so.

Next, and very oddly, Penn places a startling requirement on those wishing to qualify for his dispensation: they must place collection envelops for both Sunday and Christmas in the collection plate. I say it again, good grief!

First, there is no requirement that any of the faithful place any collection envelops in any collection at any Mass; and second, to demand that collection envelops be given in exchange for the spiritual favor of a dispensation smacks of simony! CCC 2121; 1917 CIC 727. One is tempted to suggest that, per Penn’s directions, parishioners place envelops, empty of cash or checks, in the collection, as Penn only demands that “envelops”, not “envelops with money”, be given by those wishing to claim his dispensation.

Finally, Penn confuses things when he states “The [Sunday] morning Masses fulfill the Sunday obligation, the [Sunday] evening Masses fulfill the [Christmas Monday] Holyday obligation.” To be clear, an obligation to attend Mass is satisfied by one’s attending any Mass during the relevant time, regardless of what ‘kind’ of Mass it is. GB&I Comm (1985) 702.

Canon law detests invalidity (1983 CIC 10) and it takes a lot to render a pastor’s action toward his subjects invalid, but I think that Fr. Penn’s purported dispensation from the Sunday obligation, of up to all of his parishioners, needing to claim no cause, upon condition that they place two envelops in the collection plate, is, per Canon 90 § 1 and 92, invalid.

Come to Mass, dear Pennsylvanians, with all the rest of us, on Sunday Dec 24 and on Christmas Monday.

Update: The Diocese of Pittsburgh has just overruled this purported dispensation in an email to its clergy. … Reported here on Dec 1.

Canon 844 is not a snag on which Canon 915 might unravel

My friend and colleague Robert Fastiggi writes again at Vatican Insider (28 nov 2017) to defend Amoris laetita against assertions that it contains serious ambiguities. To that debate I have little to add. Along the way, however, Robert makes a claim about canon law: “As is well-known, the separated Eastern Churches allow divorce and remarriage. What would happen if a divorced and remarried Eastern Orthodox man or woman sought to receive Holy Communion in a Catholic Church?” Interesting question. Robert answers it: “According to canon 844 § 3, Holy Communion could be licitly given to them.”

Hmmm. I question my friend’s interpretation of Canon 844.

In pertinent part Canon 844 § 3 simply says: “Catholic ministers administer the sacraments of penance, Eucharist, and anointing of the sick licitly to members of Eastern Churches which do not have full communion with the Catholic Church if they seek such on their own accord and are properly disposed.” This is obviously a broad assertion of law which, like other broad assertions of law, could be tempered by specific exceptions gleaned from other provisions.

While Robert invokes no experts in support of his conclusion that Canon 844 authorizes reception of holy Communion by divorced-and-remarried Orthodox (I know of none whom he could invoke), he seems to argue that insofar as “divorced and remarried Eastern Orthodox Christians believe they are properly disposed because they have been remarried in their Church and with Church approval”, this good faith error on their part authorizes their being given holy Communion by Catholic ministers.

Ahhh. I think I see the problem.

Most discussants in this matter routinely but incorrectly assume that one’s “proper disposition” for a sacrament is determined by the conclusions of one’s personal conscience. But, as I have pointed out before, qualified commentators distinguish between “internal disposition” (which are indeed largely matters of personal faith, conscience, and so on) and “external dispositions” (such as one’s demeanor and public status) and hold that one’s “proper disposition” for a sacrament depends on both sets of factors being verified, not just one. See, e.g., Halligan, Administration of the Sacraments (1962) 110-113; Regatillo, Ius Sacramentarium (1964) 205-211. Thus, Orthodox faithful might be in good faith about the gravity of the disorder that is divorce-and-remarriage (as might many Catholics after decades of thin or bad catechesis), but such an arguably sufficient internal disposition does not exempt ministers of holy Communion from assessing, as best they can, the question of external disposition as well and, where it is found wanting, to withhold holy Communion on those grounds.

Support for withholding holy Communion from divorced and remarried Orthodox who would otherwise be eligible for the sacrament per Canon 844 § 3 seems present in, for example, the British-Irish commentary, Letter & Spirit (1985) 465, which states: “The requirement regarding disposition would be the same as for a catholic with whom the [Orthodox] is presumed to share a common faith in the sacraments.” Or again, the Code of Canon Law Annotated (2004) 668 states that “whoever requests the sacraments should be duly prepared, which implies that their faith must conform to that of the Catholic Church regarding the sacraments they are to receive.” Similar is the Exegetical Commentary (2004) III/1 at 414. This focus on sacramental (as opposed to broader dogmatic) beliefs is important.

Consider: Roman Catholics believe not simply that the Eucharist is the Body, Blood, Soul, and Divinity of Christ, but also that reception of that most august sacrament demands suitable internal and external dispositions in accord with a tradition that dates back to St. Paul’s letter to the Corinthians. See 1983 CIC 915 and 916. So, Canon 844 might tolerate discrepancies in an Orthodox Christian’s doctrinal beliefs about, say, papal primacy, but about sacramental issues such as reception of the Eucharist in the face of, here, “public and permanent adultery” (CCC 2384)? That seems a much harder claim to defend. At the least, such observations should prompt pause before simply asserting that “according to canon 844 § 3, Holy Communion could be licitly given” even to divorced-and-remarried Orthodox.

Now truth to tell, Robert himself is ambiguous about the certainty of his claim. He introduces his theory as but a “possible exception” to the general prohibition of holy Communion for divorced-and-remarried persons and concludes his remarks by saying “I only mention this as a possible exception to the general rule.” I am tempted to say that if even scholars with Robert’s sterling reputation for accuracy can slip into ambiguities here, I am not sure why others find so unpalatable the suggestion that prelates lacking such credentials could also have written ambiguously, but, as I said above, that is not my concern now. I write simply to challenge the overly-confident assertion that “according to canon 844 § 3, Holy Communion could be licitly given” to any divorced-and-remarried persons, Orthodox or otherwise, outside the very narrow norms discussed amply elsewhere. + + +

PS: In support of his claim, Robert invokes the 1996 USCCB “Guidelines for the Reception of Communion” that advises separated Christians “to respect the discipline of their own churches”. I take this occasion to say that that line, in an otherwise sound conference document, is problematic. It is one thing, I grant, to decline seizing every opportunity to urge those in schism to disregard “the discipline of their own Churches” and to return to full communion with the Catholic Church forthwith; but it is quite another for Roman prelates officially to advise those outside of full communion “to respect the discipline of their own churches.” That advice should, in my view, be dropped from the Guidelines, leaving in place the simple and correct assertion that “According to Roman Catholic discipline, the Code of Canon Law does not object to the reception of Communion by Christians of these Churches (canon 844 § 3).”

A note on the “spiritual” reception of sacraments

Had it not made repeated appearances on the website of the always-thoughtful New Oxford Review, Prof. Ines Angeli Murzaku’s essay suggesting “spiritual communion” for Catholics denied sacramental holy Communion (usually per Canon 915, and usually because of a civil marriage following divorce) would not have occasioned my comments. But in light of Murzaku’s repeated assertions that all the sacraments she has received were received “spiritually” I think some clarifications are in order.

First, of course, I cannot imagine the hardships faced by Catholics who lived under the Communist government of Albania. Those who kept the faith under that regime have my admiration; those who fell away from it have my sympathetic prayers.

Now, on to Murzaku’s personal narration.

Murzaku writes: For our wedding [in Albania, my grandmother] invited me and my husband to the kitchen/altar to bless our union, which, due to political circumstances, could not be a sacramental-canonical marriage celebrated in a church. Our marriage was a spiritual marriage. The same was true for the other sacraments I received: baptism (which was a baptism of desire), confirmation (or chrismation), and the [E]ucharist, which came in the form of spiritual communion. Murzaku later repeats: As a Byzantine Catholic who received baptism, confirmation, communion, penance, and matrimony spiritually due to the extraordinary circumstances of persecution in my homeland, I can say that receiving the sacraments spiritually was enormously beneficial.

From the above passages one cannot tell whether Murzaku is, in fact, baptized, confirmed, communicated, confessed, or sacramentally married.

So-called “baptism of desire” is a term of art used to describe not baptism (fervently received or otherwise) but rather the assurance of salvation accorded those who, intending to be baptized, die before they can receive that desired sacrament. CCC 1259. The phrase “baptism of desire” is thus a this-world term for an other-world phenomenon. No one walking around today is considered “baptized by desire” or even “baptized”.

But, if Murzaku is not sacramentally baptized, then she cannot have been confirmed (Canon 842) either; moreover even if she had been sacramentally baptized at some point, if her Confirmation was merely “spiritual”, as she said, then again she has not received that sacrament. The same must be said about her reception(s) of the Eucharist and Confessions.

There is not enough information in Murzaku’s essay to assess the canonical status of her marriage but, whatever “work-arounds” were available to her in terms of the (imho, now out-dated) requirement of canonical form for marriage (and yes, Church law offers some alternatives to form in Canons 1112 and 1116, etc.), if Murzaku was not baptized, then her marriage, even to a baptized person, cannot be a sacrament for her or for her spouse, even if he is Catholic. Again, without sacramental baptism no other sacraments are even possible.

All of this boils down to: if Murzaku’s baptism really was, as she repeatedly states, merely a “baptism of desire”, then none of the other sacraments she claims took effect. Now my personal guess (and hope) is that some heart-felt emotions became mixed up in Murzaku’s description of her sacramental history, and that at some point she really did receive these sacraments, but, even so, the ambiguities in her story should be clarified as they have now appeared, more than once, before a very wide electronic audience that can be confused by how she has repeatedly expressed herself.

Canon Law History: Canon 920

Roman Catholics are generally required to receive holy Communion at least once per year especially during the Easter season (1983 CIC 920). This same obligation was contained in the Pio-Benedictine Code (1917 CIC 859) and in turn rested on legislation going back several centuries at least to the Fourth Lateran Council in 1215. Clinton, Paschal Precept (CUA canon law diss. 73, 1932) 8-40.

While certificates for “First Communion” are common today, formal certification of one’s annual Communion duty has disappeared–although, as noted above, the obligation of receiving remains in force.

I recently came across a certificate of annual Communion reception issued, as it happens, by a parish church that still serves in Pittsburgh,  and I thought y’all might like to see it.