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Cardinals in the Church have rights too

November 29, 2016

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The rashest reaction to the “Four Cardinals’ Five Dubia” so far is that from Bp. Frangiskos Papamanolis, President of the Bishops’ Conference of Greece, whose railing against the questions posed by Cdls. Brandmüller, Burke, Caffarra, and Meisner in regard to Pope Francis’ Amoris laetitia must be read to be believed. The Greek prelate hurls epithets such as apostasy, sacrilege, heresy, schism, at four brothers in the episcopate (brothers making text-book use of their rights under Canon 212 § 3 to pose doctrinal and disciplinary questions that urgently need addressing in our day) giving little indication that he even knows what those canonical-theological terms mean. I’d like to think that even the staunchest defenders of Amoris cringed when they read Papamanolis. Perhaps I am naïve.

While other contenders for an over-reaction prize can be suggested, here I consider the speculations voiced by the Dean of the Roman Rota, Msgr. Pio Pinto, namely, that Pope Francis might strip the four cardinals of their cardinatial dignity. Setting aside how inappropriate it is for one of the Church’s highest judicial officers to speculate publicly on the possible legal liability of and canonical consequences against bishops as yet uncharged with any crime, let’s review a pope’s canonical authority over prelates holding the office of cardinal.

Eleven canons (1983 CIC 349-359) regulate the institution of cardinal in the Roman Church, including one norm, Canon 351 § 2, that states in pertinent part that “From the moment of the announcement [that the pope has created some cardinals,] they are bound by the duties and possess the rights defined by law.” And what might those rights be?

Though largely honorific in nature, “cardinal” is, at least for those under age 80, also an “office” in the Church (1983 CIC 145) authorizing, among other things, one’s voting in a papal conclave (Universi Dominci Gregis [1996] 33). Appointments to the office of cardinal are made for an “indefinite period”, meaning that one holding such an appointment can be “removed” from said office for “grave causes according to the manner of proceeding defined in law” (1983 CIC 193 § 1) or could be “deprived” of said office as punishment for a canonical crime duly alleged and proven (1983 CIC 196 § 1). The suggestion that Brandmüller, et al., have committed any canonical “crime” is risible, so that leaves only the possibility of Francis treating a cardinal’s asking questions about his document Amoris as constituting “grave cause” to remove four cardinals from office (and along the way eliminating two electors currently eligible for the next papal conclave). But Francis (who alone can judge a cardinal, 1983 CIC 1405 § 1, 2º) has not said word one about stripping the four cardinals of their dignities nor of banning any of them from a conclave; such speculation is, so far, entirely Pinto’s.

But assuming, against all precedent and common sense, that one’s publicly asking the pope to clarify important questions raised in the wake of his document amounts to canonical “grave cause” for stripping several prelates of their offices, it would still remain to honor at every stage of the removal process numerous canonical rights expressly guaranteed all the Christian faithful, including the ability to “defend the rights which they possess in the Church in the competent ecclesiastical forum”, the right to “be judged according to the prescripts of law applied with equity”, and the right “not to be punished with canonical penalties except according to the norms of law.” 1983 CIC 221. Note that depriving one of “a power, office, function, right, privilege, faculty, favor, title, or insignia, even merely honorary” is an expiatory penalty for crime under Canon 1336 § 1, 2º, so the standards of proof should be high indeed (1983 CIC 18). How anyone can conclude, then, based on the facts at hand, that the four cardinals are at risk for deprivation of their office, escapes me.

No one, least of all the four cardinals in question, challenges the special authority that a pope enjoys over the Church (1983 CIC 331) nor do they harbor any illusions that a pope could be forced to answer the questions they posed. My hunch is that four cardinals, while they would welcome a papal reply, are probably content with having formally preserved these vital questions for a day when a direct answer might be forthcoming—although they might yet exercise their own episcopal office as teachers of the faith (1983 CIC 375) and propose answers on their own authority. For that, these men are, I think, prepared to accept personal ridicule and to suffer misunderstanding and misrepresentation of their actions and motives.

But an actual assault against their offices and against their possible roles in a future papal election? No, I don’t see that happening.

The above post now available in Italian, here.

Update, 1 December 2016: It is nigh on impossible to keep up with every comment being made by a Roman official these days, made, and then “clarified”, or “retracted”, or “abandoned”, or “deleted”, or whatever, but now it seems that Msgr. Pinto’s comments about Pope Francis removing Burke et al from the college of cardinals isn’t what he said and/or meant and/or wants-to-stand-by. Instead, it seems Pinto meant that OTHER popes could remove cardinals but Francis is not one of them. Huh? Either popes, all popes, can remove cardinals from office or they can’t. (I hold they can, I thought Pinto held so too.) Either popes, all popes, are morally bound to observe due process in such removals, or they aren’t (I hold they are, I could not tell whether Pinto thought so too). Anyway, the answer to such questions should not depend on the degree of controversy likely to be generated expressing them.

May I add an observation from a legal tradition different from Rome’s? In common law nations, our judges, especially our highest ranking judges, do not weigh in on the political or social controversies swirling around them. The rare times wherein such personal opinions are floated by our judges (e.g., Ruth Bader Ginsburg’s recent carping about Donald Trump), provokes storms of controversy. Why? Because in common law nations, the appearance of judicial impartiality is perceived as being weakened by judges who express extra-judicial opinions about controversial topics, especially topics that might end up being litigated at some point. Judges have a crucial role to play in administering objective justice, and we think that it is important that they be SEEN as objective in performing their duties.

My guess is, controversy over Pinto’s ominous remarks were the most intense among Catholics coming from common law nations, where the sight of judges speaking this way is foreign to our sensibilities about judges and justice. And I’m not sure that’s such a bad thing.

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