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Clarifying what we can

August 23, 2017

According to Archbishop Víctor Manuel Fernández, or perhaps Austen Ivereigh who was reporting on the prelate’s position: “In the case of norms forbidding killing and stealing, for example, the norms are absolute, admitting of no exceptions; yet it is questionable … whether taking life in self-defense is killing, or taking food to feed a hungry child is stealing.”

However such confused formulations of moral principles came to be offered as examples of critical thinking in the Church, one can’t respond to every misstatement of Church teaching floating around these days and so I limit myself to commenting only on some assertions made by Fernández/Ivereigh about what canon law supposedly held and holds in regard to divorce, remarriage, and admission to the sacraments and sacramentals.

“Over the past century alone,” Fernández per Ivereigh claims, “there have been important changes even in the area of the discipline concerning the divorced and remarried, [such as] the example of their being denied a church burial, which was one of the effects of excommunication of the divorced and remarried that was possible under the 1917 Code. The lifting of that ban was opposed … with the same arguments against their receiving Communion now.”

Okay, two problems: (1) Catholics were not excommunicated under the 1917 Code for being divorced and remarried; and (2) divorced and ‘remarried’ Catholics are still recognized as figuring among those to whom ecclesiastical burial may be denied.

Re the first problem. In a blog post some three years ago, I noted that, contrary to common perception, the 1917 Code did not excommunicate divorced-and-remarried Catholics; in fact, the closest that universal law came to doing so was to excommunicate Catholics who violated canonical form in marrying and, given that most divorced Catholics who ‘remarried’ did so in violation of canonical form, divorced and ‘remarried’ Catholics could be excommunicated but—again, to be clear—such Catholics, like all who married ‘outside the Church’ (which is lots of Catholics), risked excommunication for violating form and not for being divorced and ‘remarried’. I further noted that while bigamy was a crime under the Pio-Benedictine Code, the penalty for bigamy was “infamy” and only if later combined with obduracy, might it result in excommunication or not. Finally I noted that divorced and ‘remarried’ American Catholics could be excommunicated for being divorced and ‘remarried’, but only under American legislation. Why the Argentine Fernández or the Briton Ivereigh should be concerned about that local possibility in their discussion of the universal law of the Code escapes me.

In any case, Pope Paul VI abrogated the old Code’s excommunication for Catholics violating canonical form in 1970, and he lifted the particular American excommunication for divorce and ‘remarriage’ in 1977. Thus, both sanctions went off the books while the 1917 Code was still in effect and, whatever factors led to these changes, they were not changes to the status of divorced-and-remarried Catholics excommunicated under some canon of the 1917 Code because divorced-and-remarried Catholics per se were not excommunicated by the 1917 Code.

Re the second problem. The 1983 Code does not, and the 1917 Code did not, deprive divorced-and-remarried Catholics per se of ecclesiastical funeral rites. Rather the new law (1983 CIC 1184 § 1 n. 3) and the old law (1917 CIC 1240 § 1 n. 6) both call/ed for public and manifest sinners to be deprived of ecclesiastical funeral and Mass. Pio-Benedictine commentators regularly cited divorced-and-remarried Catholics as examples of ‘public and manifest sinners’, and few Johanno-Pauline commentators dispute that example (how could they, given CCC 2384?), although they do rightly underscore what, in fact, both codes called for, namely, pastoral discernment by local ordinaries in concrete cases which, in turn, means that, as a practical matter, cases of denial of ecclesiastical burial for ‘public sin’ will be very few. In short, canon law in this area has always had more flexibility built into its application than most non-canonists would have spotted.

But finally, beyond the fact that the canon law on funerals which Fernández/Ivereigh seem to think has greatly changed has basically remained the same, and besides the fact that the law on funerals law has always been more flexible than Fernández/Ivereigh seem to realize, there are serious difficulties in trying to parlay changes in laws regarding sacramentals (such as burial, over which the Church has great authority) into arguments for changing laws regarding sacraments (such as the Eucharist, over which the Church has much less authority). But, while discussions of these difficulties are worth having, if only for their ability to clarify wider issues, little clarity can be expected when inaccuracies about and muddled formulations of basic moral and canonical categories plague their presentation from the outset.


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