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On excommunicating Andrew Cuomo for heresy

January 30, 2019

Apologies for a long post. I don’t have time to write a short one.

Canonist Edward Condon has an essay at First Things wherein he calls for the excommunication of NY Gov. Andrew Cuomo, not on the ground of abortion (c. 1398) or cooperation therein (c. 1329)—theories I think Condon rightly regards as insufficient under canon law, however popular they might be among long-frustrated faithful—but rather, in light of Cuomo’s “consistent and vocal support for [New York’s latest abortion] legislation, his unique role in enacting it, and his flouting of the clear and public admonitions of two bishops”, on the ground of heresy (c. 1364). This sanction is feasible, says Condon, by a “straightforward application” of canon law.

Now as soon as anyone claims that under the 1983 Code the application of a sanction, let alone of excommunication, indeed a latae sententiae excommunication, is available by a “straightforward application” of the law, canonical warning bells should go off. Sharing, nevertheless, Condon’s conclusion that Cuomo is an egregiously offending Catholic public figure and his confidence that canon law should equip Catholic bishops to defend, among other things, good order in the Church by, among other ways, punishing egregiously offending Catholics, I think Condon’s theory of a heresy prosecution deserves a closer look, closer than I can manage in a blog post, of course, but close enough to suggest where some issues might be. 

Canon 1364 threatens an automatic excommunication for those committing, among other things, heresy. Granting the gravity of heresy and the appropriateness of excommunication for it, all ecclesiastical penal law is nevertheless subject to strict (i.e., narrow) interpretation (c. 18) and Church penalties may be applied only in accord with canon law (c. 221). These requirements generally go to the validity of a sanction, meaning that attempts to impose or declare penalties in disregard of these conditions are of no force; worse, failed prosecutions embarrass the Church’s efforts to enforce her own discipline.

Heresy is defined in Canon 751 as “the obstinate denial or obstinate doubt after reception of baptism of some truth which is to be believed by divine and Catholic faith”. Regarding the first of these three elements of this crime (post-baptismal, doubt-denial, of certain truths), Cuomo is of course baptized. Now, casting Condon as the promoter of justice prosecuting this case, he needs to prove (a) canonical doubt-denial (the distinction between those two acts is not crucial in this case) which is (b) directed against a certain kind of truth. Let’s look at the second point first.

Preliminary scholion: I can only allude here to at least three, very important points that any canonical prosecution for heresy must respect. First, ‘objects of belief’ and ‘objects to be definitely held’ differ in kind and in consequence. Denying the first goes to heresy (cc. 750 § 1, 751, and 1364) but denying the second goes only to anthistemia (my term for stands that are opposed to the secondary doctrines treated in cc. 750 § 2, and 1371 n. 1). Next, because the charism of infallibility protects both ‘objects of belief’ and ‘objects to be definitely held’, merely showing that the Church teaches something infallibly does not suffice to show that said something is an ‘object of belief’ (a point necessary for a heresy charge). Finally, assertions about the moral quality of certain acts, while capable of being made infallibly, do not necessarily involve assertions about belief, meaning that demonstrating whether a claim about the morality of an act is also a claim about belief (as required for a heresy prosecution) must be done.

An object of belief

The kind of truth that Cuomo must be proven to have doubted-denied is not just any sort of true statement, nor an important truth of natural law, nor even, strictly speaking, just any truth infallibly proclaimed by the Church, but, quite specifically, a truth that is proposed as being divinely revealed (see c. 750 § 1) and which must be believed by divine and Catholic faith. That definition of an ‘objectum credendum‘ (an assertion that must be believed) is, and is meant to be, very specific, lest the awesome power that Christ left to the Church to inform right faith be used to steer the believers toward some matters not part of divine revelation. Objecta credenda almost always turn on assertions of the intellect (not exercises of the will), but Condon’s describing these assertions as belonging mostly to “the rarified world of academic theology” does not do justice either to their importance in pastoral life nor to the considerable number of objecta credenda out there. (See, e.g., many passages in Ott’s Fundamentals or in Denzinger’s Enchiridion.)

Condon knows he must, and thinks he can, show that “the grave immorality of direct and voluntary killing of an innocent human being” is divinely revealed as an object of belief. Now notice! It is not sufficient that he show that the direct and voluntary killing of an innocent human being is gravely wrong (no right-minded person thinks otherwise), nor does it suffice for him to show that the Church teaches that the direct and voluntary of an innocent human being is gravely wrong (no literate Catholic thinks otherwise), nor even that the Church teaches as she does here infallibly (which I think she does); but rather, and quite specifically, Condon must show that the Church proclaims, with certitude, that it is a divinely revealed object of belief that the direct and voluntary killing of an innocent human being is gravely wrong. That represents a significant burden for anyone wanting to prosecute a heresy case.

Toward this burden Condon points to the 1998 CDF “Doctrinal Commentary” on the Profession of Faith as evidence that the Church holds the immorality of the killing of the innocent to be divinely revealed (with Cdl. Ratzinger using the term “primary object” of infallibility in this regard, which is another way of describing what we are looking at here). Condon says that with this statement, CDF “has made it clear” that the grave immorality of abortion, the deliberate killing of an innocent human being, is divinely revealed as an object of belief. I agree CDF does this. Until it seems not to.

Just a bit later in that same CDF document, Ratzinger, treating of euthanasia, seems to place the Church’s sure condemnation of that example of the deliberate killing of an innocent human being in the category of a “secondary object” of infallibility and not a “primary object”. Now, opposition to a “secondary object” assertion surely brands one as being in serious conflict with Church teaching (see cc. 750 § 2 and 1371 n. 1), but it is not, theologically or canonically, heresy—and it is heresy that Condon must prove in a heresy case. The mixed signals here, especially in light of other complications associated with assessing (even infallible) assertions on morals as also being objects of belief, raise serious questions as to whether heresy is even at issue in Cuomo-like facts.

Of course, CDF’s 1998 enumeration of examples of primary and secondary objects of infallibility, while counting for much among faithful theologians and canonists, is not itself infallible, meaning that some assertions and examples therein are subject to revision (if only by way of clarification) over time. And, mind, we are still just talking theology at this point; applying these tests in a criminal prosecution (recall Canon 18!) is more demanding still.

Doubt or denial

Assuming that one could prove (with the ‘moral certitude’ required in a penal prosecution per cc. 18, 223, 1608, etc.) that the grave immorality of intentionally killing the innocent is a divinely-revealed object of belief, Condon must also prove that Cuomo has, in the eyes of the law, doubted-denied that truth.

It does not suffice to show that Cuomo disregards this assertion or that his words or actions are inconsistent with it (though of course they surely are). Rather Condon must show that Cuomo’s words and/or actions canonically suffice to prove his doubt or denial of an object of belief.

Now consider, people say and do all sorts of despicable things without necessarily doubting or denying the principles against which they act. Has a murderer ever said “I knew it was wrong to kill my wife but she made me so angry I just had to shoot her”? If so, we see how people can violate laws they admit to be right. Or again, a Catholic who deliberately kills a bank teller during a robbery could be canonically prosecuted under Canon 1397 for murder, but would anyone think that heresy charges were in order? And if a Catholic politico says “I accept the Church’s teaching on the sanctity of human life, but in hard cases abortion is the only answer”, then we see how pro-abortion actions do not necessarily involve a doubt-denial about the underlying truth so much as they show a reprehensible disregard for it.

Condon alleges Cuomo’s “consistent and vocal support for [New York’s latest abortion] legislation, his unique role in enacting it, and his flouting of the clear and public admonitions of two bishops” as evidence of Cuomo’s heresy (i.e., his doubt-denial of some truth that must be believed with divine and Catholic faith). But is it not patent that none of these activities suffices on its face to show heresy? Such deeds are, beyond dispute, evil, scandalous, and canonically criminal (at least in regard to Canon 1369). They far exceed what is required to bar Cuomo from holy Communion per Canon 915. But do they prove heresy?

Which brings us to Condon’s view that sometimes actions can be used to prove heresy. I generally agree, but would note that actions, to be taken as assertions of heresy, almost always require a context for their proper interpretation. Consider a Catholic man who takes Hosts from the tabernacle and throws them on the floor. Is such an act heresy (undertaken to show that he does not believe in the Real Presence) or is it aggravated sacrilege (because he does believe in the Real Presence but is angry at Jesus)? Without a context tying bad actions to a heretical assertion, it is very difficult (not impossible, but difficult) to prove heresy by deeds. Aside: Condon’s invocation of the 1949 Holy Office reply that Catholics joining the Communist party were liable to excommunication under then 1917 CIC 2314 works to some degree as an example of assertions being ascertainable through deeds, but, if only because the canonical crime in question there was not heresy but apostasy, and because joining the Communist party required certain recitals that would have obviously counted as heresy, I would be cautious about applying this dated reply on apostasy too easily to modern heresy cases.

These things being said, I suppose one with access to all of Cuomo’s speeches on this matter might be able to find him expressing some doubt or denial regarding what Condon must have already proven is a divinely-revealed object of belief in this area, but that project hardly lends itself to being described as a “straightforward application” of the law. In short, prosecution for heresy vis-a-vis moral (instead of doctrinal) assertions is not a simple matter, all less so to the extent it depends on actions for proof and not just words.

Beyond even all this, one must also prove that Cuomo’s doubt-denial was made obstinately. While I agree with Condon that some evidence along those lines is at hand, given the serious doctrinal questions about whether the assertion of the illiceity of deliberately killing the innocent even is an ‘object of belief’ to begin with, making a penal case for obstinacy in effectively denying that categorization to the point of committing heresy is, well, problematic.

Here I must pause lest I give the impression that heresy trials are basically impossible. That is not true and I do not hold that position. Heresy trials are quite feasible for cases of intelligible assertions of doubt or denial regarding objects of belief. But, making heresy trials turn on matters of immoral conduct (rather than on doctrinal assertions), and having to rely on evidence based significantly on actions rather than words, render heresy cases much more difficult.

Criminal defense

Most of the above discussion focuses on a promoter of justice making a prima facie case regarding the three main elements of a heresy charge. One may expect all the weaknesses of such pleadings to be argued by a good defense advocate. But beyond a lawyer’s poking proverbial holes in the prosecution’s case itself, various ‘affirmative defenses’ against a heresy charge are also available to Cuomo, many located in Canon 1324 which I frankly thinks reads too leniently. Here I underscore only one implication of Canon 1324 for Cuomo, namely, that if even one of the circumstances described in the first section of Canon 1324 can be found present in Cuomo’s case, he is, per the third section of Canon 1324, expressly not bound by the latae sententiae penalty set forth in Canon 1364—yet another reason why automatic penalties are a needlessly complicating anachronism that should be dropped from modern canon law. By the way, nearly all of these procedural complications go away if Cuomo is prosecuted under Canon 1369, a less exciting case than heresy, I grant, but, under the law as it stands now, one more likely to result in a sanction, I think. Aside: Condon’s discussion of the former difference between excommuncati vitandi and excommuncati tolerati adds nothing to his discussion of today’s canon law; that distinction, dead-letter almost from the time the 1917 Code was promulgated, was dropped from the 1983 Code. Why get into it?

The wider picture

Heresy is a grievous offense and canonical prosecutions for heresy have been too few, in my view, over the last fifty years. But, while in some unusual cases heresy can overlap with other forms of criminal behavior (such as apostasy), heresy has not been used as the vehicle to punish offensive behavior in the Church, no matter how egregious such behavior is, unless that behavior involved a notably clear denial of some assertion that the Church sets forth for belief. I have seen in recent years, for example, demands that clerical pedophiles be excommunicated for heresy. Those demands are non-starters; pedophilia is not heresy any more than arson is heresy or embezzlement is heresy. The rule of law, so battered in the Church during my lifetime, will not be served by trying to frame as heresy all sorts of evil conduct that ecclesiastical negligence has allowed to take root in the ranks of Catholic public figures. Use heresy trials to go after heresy. There is work enough to be done on that front.

For that matter, while the Cuomo case seems rather simple in this regard (the content of his legislation was very specific), most political acts by legislators and governors are not made in the context of a single topic allowing a sole issue to be debated. What do we do, then, with legislators who vote to fund abortion as part of a complex appropriations bill that mixes dozens of projects, or with governors signing multi-faceted legislation, only some of which is immoral? Pointing out such real world complications is not to discourage the use of Church teaching to illuminate public life or even applying canon law to assess at least some acts by Catholic politicos, but rather, it goes to show that casting moral matters as heresy issues is fraught with problems that should not be lightly introduced into an already complex world.

Moreover—and strictly speaking this not something Condon-qua-prosecutor need concern himself with, though it would certainly be of concern to bishops authorizing such cases and judges hearing them—framing seriously evil political activity re abortion as heresy will inevitably force the question as to what other seriously evil political activity must needs be heresy—promotion of euthanasia? contraception? “same-sex marriage”? funded sterilizations? orchestrated regime changes?, exploitative monetary policy?, discriminatory policies in a host of areas? The list is almost endless if one admits the principle that promotion of abortion is not just evil, not just scandalous, not just criminally damaging to good morals (c. 1369), but is heresy.

Final thoughts

1. Andrew Cuomo apparently refrains from holy Communion. If he were to approach, he should be denied the sacrament, per Canon 915, based on, among other things, his living arrangements (discussed at length in 2011) and his rabid support for this ghoulish abortion law. The bishops of New York may wish to reiterate that ban publicly, but on the facts now obtaining, they are not required to do so.

2. A prosecution of Cuomo based on heresy would face numerous canonical obstacles (though perhaps fewer than were the obstacles presented in a similar case I treated back in 2004 regarding John Kerry). If such a prosecution were tried and failed (or even if it succeeded but under conditions that made it appear to have been ‘rigged’) the damage to the Church’s efforts to enforce her own discipline would be considerable. That said, though, most of the reasons I have heard for not trying to excommunicate Cuomo (he would not heed the ruling, it would make him a martyr, he would use it as PR against the Church) are speculative and irrelevant. In my view, the only reason not to excommunicate Cuomo is that no canon law seems to authorize an excommunication against him on the facts as they stand today. 

3. Cuomo could be prosecuted, right now, for violating Canon 1369 (using public shows or speeches to seriously damage good morals) and a “just penalty” (probably not excommunication at first, but that’s just my view) could be imposed. If Cuomo spurned that sanction, it could be augmented, up to and including excommunication.

4. Under canon law as it stands, the best approach for bishops facing these foul acts by Catholic politicos seems to be, besides invoking Canon 915, the preemptive issuance of a particular penal precept enforced by canonical sanctions including, at least by way of augmentation, excommunication. To my knowledge none has been tried in these cases, but nothing else seems to be working.

5. As for possible local legislation being drafted by bishops to address such cases, I am all ears, but as a rule, law is not written to address only one person, while framing law so as to address multiple persons is not as easy as many seem to believe. Still, I am open to suggestions. In the meantime, penal precepts against Cuomo-like acts are the canonically better way to go, I think.

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