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Canon 915’s moment has arrived

January 25, 2019

Gov. Andrew Cuomo’s blatant promotion of New York’s horrid abortion law seems to have been a tipping point.

Demands, demands, that Catholic leaders do something serious to confront unbridled abortionism in the ranks of Catholic politicos are being published like I’ve never seen them urged in four decades of watching such things. To that authentic Catholic sense, right at so many levels, I give nothing but an Amen. Here’s my only concern: Catholics at various stations in the Church, most largely untrained in canon law (no shame in that, that’s what five decades of pervasive ecclesial antinomianism will get you), are making, whether they know it or not, demands for canonical actions in Cuomo’s regard, which actions might or (more likely) might not be possible under current canon law and, having missed their mark, will wrongly conclude that canon law offers no remedies in the face of Cuomo-like conduct. I refer specifically to calls for the formal excommunication of Andrew Cuomo, but the issues in this case are applicable to other cases on the near horizon.

So, first and foremost, and setting aside Richard Burton’s Abp. Becket stentoriously excommunicating enemies of the Church from the cathedral high altar, excommunication is today what it has always essentially been, a canonical penalty that can be meted out only in accord with canon law. As a canonical sanction, the application of excommunication requires, at a minimum, (1) a law in place that prohibits, under pain of excommunication, a given action, (2) accessibility to facts sufficient to demonstrate the guilt of an individual accused of doing such an act, and (3) an independent process to interpret the law and apply it correctly to the facts at hand. See Canons 18 and 221, and most of Books VI and VII of the 1983 Code.

Those who think that Andrew Cuomo should be excommunicated for signing New York’s appalling abortion law need no invitation to make their case for that canonical sanction in accord with the canon law. Thomas Becket could make his case for excommunication (the curious and Latin-literate can verify that claim by checking, say, Gasparri’s footnotes to 1917 CIC 2343 § 4, provisions that took a dim view of murdering priests). But, if moderns cannot make the case for Cuomo’s excommunication (and I, among many others trained in canon law, do not think they can), they should cease calling for the (presently) impossible and focus instead on what can (and I, along with some notable others, think should) be done in the face of a Cuomo-like affront to Church teaching and basic human dignity.

Fine, but what?

Consider: the single most publicly-observable aspect of excommunication (hardly surprising, given the very name of this sanction) is, of course, exclusion from holy Communion. Whatever other sacramental and disciplinary consequences are visited upon an excommunicate (and those consequences are several and significant, per Canon 1331), what is most obvious to the individual, to the faith community, and to the general public, is that an excommunicate is barred from participating in the Church’s greatest sacrament, holy Communion (Canons 915 and 1331). This public barring prevents sacrilege from being committed against the Sacrament, mitigates the scandal inflicted on the faith community when patently unworthy Catholics pretend to a communion in faith belied by their deeply contrarian actions, and alerts the world that the Church is serious about securing upright witness in her own ranks.

Now, here’s the point: all of the personal, community, and even secular values served by barring an excommunicate from holy Communion as part of the sanction of excommunication are immediately available simply by applying Canon 915, a sacramental disciplinary norm in Book IV of the Code (and not a penal norm from Book VI), which canon requires ministers of holy Communion to withhold the Sacrament, not just from those under formal sanction, of course, but also from those who ‘obstinately persevere in manifest grave sin’. Let that phrasing sink in.

Applying Canon 915, moreover, is not constrained by narrowly-drawn definitions of crimes and/or cooperation therein, it does not rely on loophole-ridden latae sententiae procedures (a canonical relic that today is mostly useful for letting bishops avoid making hard decisions), and it does not continue the rampant disregard for the rule of law in the Church seen over the last 50 years (mostly by figures, I grant, themselves none too concerned about human conduct and the rightful role of the Church in shaping it, and so, in that respect, distinguishable from those lately calling for Cuomo’s excommunication).

Instead, Canon 915 enables, indeed requires, prompt (not precipitous, but prompt) action by ministers to protect the Most August Sacrament from abuse, to alert an individual about his or her morally gravely dangerous public conduct, to protect the faith community from scandal, and to give serious witness to the world about the importance of Church teaching to Church members. Are these not the key goals sought by those calling for Cuomo’s (and some others’) excommunication? If so, why try to purse those goals with a cumbersome penal institute such as excommunication when Canon 915 is sitting right in front of us?

In short, has not Canon 915’s moment, at last, arrived?

Its timing, I grant, could hardly be worse: the Church’s prestige (in the good sense of prestige) is battered; ignorance of how basic canon law works (seasoned with antinomian attitudes among Church leadership) are common; and Catholics in the public sphere have grown thoroughly accustomed to doing Catholicism as they see fit and show little inclination to be told otherwise. Pretty much any cleric who attempts to apply Canon 915 in any noticeable way should expect to be called a pedophile and ignored.

But all of these are precisely reasons why I think Canon 915’s moment has arrived. The Church’s profane power is unlikely to bring about internal reform in this area today; but the divine witness of laity and clergy faithful to her teachings, can.

As I and others have treated Canon 915 many, many times I will not repeat those points here. But a few matters bear emphasizing:

 A) Canon 915 is relevant to a wide variety of crises in the Church today, including public involvement by Catholics in: abortion and euthanasia (contrary to Canons 1397 and 1398); civil divorce and remarriage outside the Church (contrary to Canons 1059, 1085, and 1141); ‘same-sex marriage’ (contrary to Canon 1055); and female ‘ordinations’ (contrary to Canon 1024). Indeed the widespread disregard of Canon 915 is itself a grave scandal. Such disregard is not likely to be corrected overnight, of course, but the scale of reform required is not a reason to shirk it.

 B) A few Catholic politicians have been notified of their exclusion from holy Communion by bishops ably applying Canon 915. While many other Catholic politicos should, in my view, be barred from holy Communion based on facts already known, determining what suffices for, say, one’s being “pro-abortion” to the point that Canon 915 needs to be invoked is not always easy. In most cases, ministers should seek direction from their bishops, i.e., those primarily charged with maintaining ecclesiastical discipline (Canon 392), rather than making such decisions on their own. Bishops, in turn, should set about looking at the most likely cases in their territories and start thinking things through canonically and pastorally—keeping in mind that Canon 915 is obligatory, not suggestive.

 C) Andrew Cuomo is already barred from holy Communion and seems to be refraining from approaching for it.

 D) Persons interested in proposing reforms of canon law itself whereby actions such as Cuomo’s would be treated as excommunicable canonical crimes, and bishops interested in using penal precepts to address pro-actively specific, Cuomo-like actions threatened in their local Church, should consult with canonists lest errors made in the pursuit of these goals distract from addressing the underlying problems.

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