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Are we reading the same Code?

September 14, 2017

Mary McAleese, a former president of Ireland who, like many Catholic politicians these days, seems to maintain a rambunctious relationship with Church, recently gave a speech alleging hypocrisy by the Holy See concerning its commitment to the rights of children. I have not read the Vatican statements that attracted McAleese’s ire, but I am acquainted with the 1983 Code of Canon Law, including its canons on “legitimacy” (in regard to children born in or out of wedlock), on which canons McAleese commented. I fear, though, that McAleese, who claims credentials in canon law herself, misrepresented Church law in this area during her remarks.

Although from this report it is not clear what McAleese actually said about whatever the Vatican actually said, if the Vatican claimed that the word “illegitimate” does not appear in the Catechism of the Catholic Church, the Vatican would have been correct (yawn); if the Vatican claimed that the word “illegitimate” does not appear in the 1983 Code, any high-schooler with internet access could have disproven the claim—making me think that someone, somewhere does not have this part of the story straight.

But whatever might be the case about that point, McAleese’s bald claim that “canon law does not acknowledge the equality of legitimate and illegitimate children” arrests my attention. How can a legally astute, former president of an important country, equipped with a graduate degree in canon law, make such a completely wrong claim about canon law?

More than thirty years ago the Johanno-Pauline Code removed all, repeat all, of the canonical disabilities that being born out of wedlock had carried under the 1917 Code—things such as restrictions on entering seminary or being named a religious superior or bishop. Today, codified canon law, which does indeed reference legitimacy and illegitimacy in a few canons, imposes no restrictions whatsoever on those born out of wedlock. The splendid canonical commentary prepared by the Canon Law Society of Great Britain and Ireland expressly makes this point (Letter & Spirit, 1985, p. 641). McAleese surely knows this work, so how did she arrive at exactly the opposite conclusion? 

One could, I suppose, ask why “legitimacy” is even mentioned in modern canon law; indeed, the whole topic was nearly dropped from the revised law.

But I would suggest that various considerations might well warrant the Code giving some directions to pastors about, say, entering names in baptismal registers when the children being christened were not born to married parents (as does, e.g., 1983 CIC 877). Moreover, other canonical commentaries (e.g., the American text of 2001 at p. 1358) note that some states might, perhaps in virtue of concordats with the Holy See, accord civil consequences to canonical marriage law and so such questions issues needed to be addressed somewhere. But in such cases, would not the example of the equal treatment accorded by canon law to all children, whether born inside or outside of wedlock, redound to their civil benefit as well?

But perhaps McAleese’s main point is that illegitimacy is an opprobrious term and that children should be spared as much as possible the negative consequences of their parents’ actions. If so, fine. That’s what I said in my book, Annulments and the Catholic Church, a dozen years ago at pp. 90-91 and I am hardly a revolutionary for making that point. But then, neither is McAleese.

In short, someone decrying discrimination against children based on the circumstances of their birth is making a good point, but he or she cannot plausibly accuse modern canon law of fomenting said discrimination.

Not when exactly the opposite is true.

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