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Some canonical thoughts VP Biden’s recent deed

August 3, 2016

To officiate at the “same-sex wedding” of two White House staffers Monday, Vice-President Joseph Biden obtained special authorization from the District of Columbia wherein he resides and the event took place. Unlike, therefore, some Catholic civil officials whose duties require them to preside at all “weddings” regardless of religious ramifications (and who thus might—I say might—be able to excuse their material cooperation with objectively evil acts on technical moral analysis grounds), Biden, a Roman Catholic, went out of his way to act with contempt for infallible Church teaching that marriage (everybody’s marriage, not just Catholics’ marriages) can only exist between one man and one woman.

In short, Biden is daring the Church to do anything about it. I say, Fine, but let’s begin with what the Church cannot, at present, do about it.

Excommunication (Canon 1331) is a canonical sanction that can be imposed only for certain types of canonically criminous conduct. Not all offensive behavior in the Church is a crime and not all Church crimes are punishable by excommunication. No canon excommunicates a Catholic for officiating at a “same-sex wedding” but Pope Francis or (long story made short) Cardinal Wuerl could issue legislation making such officiating an excommunicable crime. Canon law has long responded to changing pastoral needs with new legislation, and this seems to be one more example of where new law might assist the Church in dealing with a new and grave problem.

Even Canon 1364 (providing a latae sententiae excommunication for heresy), is not applicable here (at least, not yet), this, not because Church teaching on the man-woman requirement for marriage is not taught infallibly (it most certainly is taught infallibly), but because this Church teaching might (again I say, might) only be a teaching to be definitively “held” as opposed to one to be “believed”, and it is only the contradiction of objects of belief that trigger heresy canons, not matters to be held (Canons 750, 752, 1371). A scholarly consensus, on the other hand, that Church teaching on the man-woman requirement for marriage is “divinely revealed” (which view I think has much the stronger argument), or a formal declaration by Pope Francis to that effect, would settle this preliminary doctrinal question, raising the canonical issue to the level of heresy. But even then, one would still have to confront all the usual problems besetting other latae sententiae penalty cases. And they are many.

Canon 1369, a penal norm I think vastly underused in an age when Catholics routinely bash Church leaders and teaching in the main stream media, would be a stretch on the facts of this case, and canonical criminal law does not like stretches. Breaking the law/doctrine does not prove that one was attacking the law/doctrine itself. And the penalty envisioned by Canon 1369 is not excommunication anyway.

Canon 1379 on sacramental simulation (to which two Catholics attempting to enter a “same-sex marriage” would be, I think, susceptible) would not apply to the official witness (as Biden pretended to be) of such an act and, again, the penalty for violating Canon 1379 is not excommunication.

Aside, then, from the so-called general penal norm of Canon 1399 (the special invocation of which would likely require as much work as would developing more a comprehensive reply to a Bidenesque offense itself), there remains in canonical criminal law (pace c. 1339 § 2, which is not a penalty) only the option of the particular “penal precept” as outlined in Canon 1319. But even that approach, while certainly worth talking about, looks to future conduct, not past.

But if canonical criminal law as found in Book Six of the Code is not (at least not immediately) useful against Biden’s affront to Christ’s and the Church’s teaching on marriage, canonical sacramental law as found in Book Four of the Code, especially Canon 915 therein, could be useful against Biden’s scandal. Canon 915, recall, directs ministers of holy Communion to withhold that most August sacrament from those who “obstinately persevere in manifest grave sin”.

Let’s be clear: Canon 915 is a sacramental disciplinary norm. As such, Canon 915 is not a response to canonically criminal behavior but rather it looks primarily to address the classical scandal (CCC 2284-2287) given by one’s on-going, public, objectively evil conduct. Now, standing alone, a single, albeit grave, affront to Church teaching (such as voluntarily assisting at one “same-sex wedding”) would not suffice to trigger Canon 915 (which looks for, among other things, perseverance in evil conduct), but it would certainly qualify as an especially egregious manifestation of one’s general contempt for Church teaching, a contempt that might have been demonstrated in other behaviors such as, say, on-going political support for “same-sex marriage”, and, for that matter, for legalized abortion, and so on.

Now, setting aside a very few 915 cases that could be decided on the spot (see my discussion of Canons 230/915, here), before being visited with the consequences of Canon 915, a Catholic should be formally confronted by the competent ecclesiastical authority about why holy Communion is going to be henceforth withheld and the steps required for readmission to the Sacrament explained.  I am not aware, however, of any Catholic official with canonical-pastoral authority over Biden who has ever made such contact with him. Still, whatever pastoral failing that past lack of formal contact might represent, it does not preclude their discussing his situation with him now.

And Joseph Biden, I would say, stands in obvious need of such outreach.

Update, 6 Aug 2016: Perhaps the outreach has begun?

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