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On excommunicating Andrew Cuomo for heresy

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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Canon 915’s moment has arrived

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.

From Msgr Pope’s lips to the bishops’ ears

Msgr. Charles Pope, on no one’s Top Ten List of Catholic Hot-Heads, captures the sense of faithful Catholics everywhere when he writes, regarding the major role that New York Gov. Andrew Cuomo played in pushing, signing, and celebrating that state’s new, gruesome abortion law, that Cuomo-qua-Catholic must now face ecclesiastical consequences for his egregious actions. Pope acknowledges, though, that he is not a canon lawyer and seems implicitly to ask for input from those who are regarding possible consequences. My thoughts follow.

1. Cuomo is already barred from the reception of holy Communion per Canon 915 (a sacramental disciplinary norm, not a penalty) in light of his openly living with a woman to whom he is not married. This matter was widely discussed back in 2011. My understanding is that Cuomo, to his credit, has not approached for holy Communion since that matter was aired.

2. Regardless of Cuomo’s ineligibility for holy Communion on other grounds, his conduct in regard to New York’s new abortion law also suffices, in my view, to bar him from holy Communion per Canon 915. If information should reach ecclesiastical authority that Cuomo is, despite the foregoing, being given holy Communion by ministers under their authority, Church leaders should act immediately to prevent such administration. Canons 375, 381, and especially 392, among others.

3. Cuomo is not liable for excommunication for abortion under penal Canon 1398. I have made this argument many, many times and won’t repeat it here. Neither is he, in my view, liable for prosecution as an accomplice to abortion per Canon 1329.

4. Cuomo has, however, committed acts that, in my view, suffice to invoke penal Canon 1369 against him. That possibility occasions some observations for Catholics forming their expectations about exactly who in the Church could be doing exactly what in a case like this.

 4 A) Penal jurisdiction in this matter rests with the bishop of Albany (as the place where some or all of the canonically criminal conduct was committed, per Canon 1412) and/or with the archbishop of New York (as the place where Cuomo apparently has canonical domicile, per Canon 1408). They are authorized to initiate canonical penal procedures under Canons 1341 and 1717, among other norms. Neither the state nor national episcopal conference has jurisdiction here. 

 4 B) The 1983 Code prefers that penal matters be tried judicially but an administrative penal process is not precluded. Canon 1342. Either way various rights of canonical defense are owed to Cuomo and would doubtless be honored. Canon 221, among others.

 4 C) Canon 1369, as a penal law, must be strictly (i.e., narrowly) interpreted and applied. Canon 18. This means, among other things, prosecuting Cuomo only for acts that fall within the terms of the canon and not using a Canon 1369 prosecution as a pretext for punishing Cuomo for other acts, that, while offensive to the faith and to the faith community, are simply not embraced by its terms.

 4 D) Canon 1369 authorizes a “just penalty” against those who violate its terms. That broad (but not unlimited) phrase “just penalty” allows for tailoring the canonical consequences in specific cases to the wide variety of fact patterns that could be addressed in its light, here, everything from Cuomo’s speeches and comments in support of this abortion law to his ordering a ghoulish light show in celebration of its enactment. That said, while the notion of a “just penalty” is broad, there is some question as to whether it extends, at least immediately, to excommunication. Here is not the place to air that technical issue, but neither should its presence derail consideration of using Canon 1369 against Cuomo. Some justice is better than no justice and even if (I say, if) excommunication could not be imposed immediately on Cuomo, the Church could still impose some canonical sanctions for his conduct. If, moreover, such sanctions as could be imposed per Canon 1369 were ignored by Cuomo, Canon 1393 would allow for their augmentation, making the possibility of a “just penalty” reaching to excommunication stronger.

5) Canon 1399, known as the general penal norm, is also available for canonical use against seriously bad acts but only, in my view, if those acts are not otherwise addressed in penal law. Thus, for example, using Canon 1399 as a backdoor way to prosecute Cuomo for abortion (notwithstanding that Canon 1398 does not reach him) would not be correct. Identifying adequately what divine or canon law was supposed to have been violated by Cuomo in acting as he did, and identifying that law in such a way that nearly every other sinner would not be liable to criminal prosecution for violating it, is a difficult task. Not an impossible one, perhaps, but difficult. I say this, by the way, as a canonist who thinks Canon 1399 to be applicable against Uncle Ted.

6) Canon 1339 authorizes “rebuke” against one “whose behavior causes scandal”. That Cuomo’s conduct here causes classical scandal (CCC 2284) seems to me beyond question. Whether canonical rebuke adequately serves, however, the needs of the faith community for good order or Cuomo’s need for personal correction I leave to others to consider.

7) Much of the above analysis would apply to Catholic legislators supporting abortion laws, but the canonical case against Cuomo is, in my view, so much the stronger that, if ecclesiastical action were not feasible, or taken, against him, it would be harder to see it being taken or succeeding against lesser figures.

8) Two final notes for other prelates concerned about similar actions and actors in their territories.

 8 A) Canon 915 is a sacramental disciplinary norm, not a penal canon, and its application requires no penal process. It is, and has long been, applicable to many prominent pro-abortion/euthanasia Catholic politicos and it has been correctly invoked by a few clear-thinking bishops. It at least cauterizes the wound inflicted on the Body of Christ by prominent Catholics acting in open disregard of fundamental Church teaching. It is not a cure-all, but it is a serious step toward healing.

 8 B) In terms of penal canon law the best time to move against a Cuomo-type crisis is, of course, before it happens, i.e., pro-actively instead of re-actively. Because this post deals with what can still be done now, and not what should have been done before, I will simply observe that a penal precept could have, in my view, been issued against Cuomo on these facts (specifically against, say, his promoting or signing this death-dealing legislation) and in turn that precept could have been enforceable by canonical penalties up to and including excommunication. Canon 1319. The canonical prerequisites to such a penal precept could have been satisfied in this case, facilitating the Church in acting justly and in being seen to act justly. Cuomo’s conscience would have been confronted and the values of the Catholic community would have been protected. Again, this observation does not detract from assessing what can be done canonically, even now, in regard to Cuomo, but it does suggest that other bishops looking at similar problems arising in their Churches would do well to consider acting sooner than later.

Msgr. Pope ends his essay thus: “It is time to end the charade, even the lie, that Andrew Cuomo and others like him are Catholics in good standing. They are not, and this must be made plain to them and to others. Join me in praying that Bishop Scharfenberger and other bishops in New York with jurisdiction will do what is right and necessary.”

I join him in so praying.

Why Detroit’s plan for parishes is in accord with canon law and sound theology

The Archdiocese of Detroit’s plan to bring the civil status of parishes and their properties into line with Catholic canon law (and for that matter, with sound ecclesiology) is unusual only in that too few arch/bishops have undertaken to do likewise in their respective churches. Let’s recall the example of one bishop who did.

Back in 2003, Bp. Robert Vasa, then of the Diocese of Baker OR, undertook a tedious task.

Knowing canon law (which regarded parish property as belonging to parishes, not to dioceses, and certainly not to bishops, per Canons 515 § 3 and 1256), aware of Roman directives dating back a century (see Canon Law Digest II: 444-445) to avoid confusion in this regard, and alert to the post-conciliar ecclesiology of the parish community (Lumen gentium 26, Christus Dominus 30, and Canon 515 § 1) which respected parishes as legitimate churches, Vasa carefully set about distinguishing parishes and their assets from the diocese and its bishop (which Oregon’s old ‘corporation sole’ model for handling parishes and dioceses struggled to do), by separately incorporating all of the parishes of the Baker diocese and re-registering the properties already canonically assigned to parishes as properties civilly belonging to each parish.

Because, however, the Baker diocese also faced, about that time, more in clergy sexual abuse claims than the diocese was financially worth, Vasa’s project, which gave the appearance of reducing the number and worth of Church assets that till then had been perceived (understandably, but wrongly) as being diocesan property, was lambasted by plaintiff’s attorneys who suspected Vasa’s move was some kind of ‘asset hiding’ or a ploy to dodge payments to abuse victims. It was, of course, no such thing, and in one of my earliest blogs (here, scroll to February 5), I said so.

Anyway, plaintiff’s lawyers obtained (to no one’s great surprise) a temporary restraining order against Vasa’s incorporation and property registration plans but, upon demonstration that his project was supported by factors having nothing to do with avoiding responsibility to abuse victims, that TRO was soon lifted and the reorganization was completed.

Fast forward to 2018, wherein Abp. Allen Vigneron is undertaking a similarly tedious task, i.e., separately incorporating AOD parishes and civilly re-registering, as parochial, properties that canonically belong to those parishes. Predictably, his move is being blasted in various outlets as ‘asset hiding’, including by quoting some plaintiffs’ lawyers who dismiss this sound application of canon law as mere “club rules”. Such contempt from American attorneys for the canon laws by which the Catholic Church carries on her mission is nothing new, of course. Canon lawyers have seen such disparagement of Church law for, oh, about a thousand years before there even was this thing called American law. It will doubtless be repeated by others equally ill-informed. 

Meanwhile, ironically, it is Vigneron who, like Vasa before him, respecting Church law and heeding the ecclesiology of parish and diocese, is being criticized for acting after his predecessors had done little or nothing to address this serious disconnect between the canon and civil laws regarding the basic structure of parishes and the registration of their property.

God bless Fr. LaCuesta

If the text recently sent to me really was the homily that Fr. Don LaCuesta preached at the funeral Mass of a young man who suddenly killed himself a few days ago, for which homily LaCuesta has been savaged in the print and electronic media and even (temporarily, I assume, while the facts are sorted) deprived of faculties for preaching, all I can say is, God bless Fr. LaCuesta.

Note, first, how short this homily is. Perfectly in line with canonical and liturgical norms for such cases.

More importantly, and flatly contrary to how LaCuesta’s homily has been portrayed in the media, I don’t see Hell mentioned anywhere, anywhere, nor any language that relegates this poor young man thereto, and instead I see clarion reminders of the mercy of Christ recited at least half-a-dozen times. I see, too, the moral gravity of suicide—itself approaching epidemic proportions among Americans today—directly acknowledged and fears about its eternal consequences candidly admitted, but I also see consoling references to how much more God knows about one’s life than do those even closest to him and how much that deeper, likely mitigating, divine knowledge leaves the rest of us mortals, grieving a suicide, room for real hope. And I see sincere sympathy for the powerless, abject suffering visited on those left behind by a suicide, on people who would have moved heaven and earth to help a child seriously considering self-destruction, but who are now forever bereft of that chance (save for their prayers for the departed, of course).

And yet these few, balanced, honest, words were twice interrupted by family members for their failure ‘to celebrate the life of the deceased’, and the secular media, always ready to encourage a ‘Let’s you and him fight’ scenario when it comes to Catholics and the Church, fomented a picture of this priest as a heartless thug without citing so much as a single independently-reported word of his homily? Crimeny.

So here’s my suggestion: when the perfect homily for funeral Masses of those who kill themselves is composed we’ll send it right off to all priests ever called upon to deliver one. Till then, parish priests might want to look at Fr. LaCuesta’s homily for some good thoughts and ideas.

About that funeral Mass homily, some points

I do not know Fr. Don LaCuesta or the Hullibarger family nor do I know what LaCuesta said in his homily at last week’s funeral for 18-year-old Maison Hullibarger (who had killed himself some days before) or how LaCuesta said what he said (reports here and here). Such caveats, however, in light of my treatments of other issues related to the canon law on Church funerals, might qualify me to make some objective comments on the controversy erupting in the wake of LaCuesta’s funeral homily wherein, it seems, Maison’s ‘life was not celebrated’ and doubts about his entry into heaven were expressed. Three points need to inform discussion of this controversy.

First, until just a generation ago and for many centuries before, controversy over homilies delivered at the Catholic funerals of suicides was unheard of for the simple reason that Church law forbade all funerals for suicides, so, no funeral homilies on suicide could have been preached. See 1917 CIC 1240 § 1, n. 3. With the appearance of the Johanno-Pauline Code, however, the prohibition of funerals for suicides was dropped (see 1983 CIC 1184). True, a qualified restriction on funerals for those who die in “manifest sin” remains (and suicide is unquestionably a grievous sin, see CCC 2280-2281), but the nearly-universal pastoral practice is to accord funerals to suicides in light of legitimate questions about, among other things, the likely-diminished psychological freedom enjoyed by someone who suddenly kills himself (CCC 2282) and in deference to the doctrinally-sound hope that, in ways unknown to us, God may save such persons (CCC 2283).

Second, nothing in liturgical or canon law suggests that Catholic funerals are intended to serve as ‘celebrations of one’s life.’ Instead the primary focus of funeral rites is on “the paschal mystery of Christ”. Rite of Funerals, Intro., n. 1. Per the USCCB, “At the funeral liturgy, the Church gathers with the family and friends of the deceased to give praise and thanks to God for Christ’s victory over sin and death, to commend the deceased to God’s tender mercy and compassion, and to seek strength in the proclamation of the Paschal Mystery. The funeral liturgy, therefore, is an act of worship, and not merely an expression of grief.” Some brief “words of remembrance” of the deceased are permitted (usually just before the end of the funeral Mass) but these are to be brief and nothing like a eulogy or ‘celebration of a life’ now sadly gone.

Third, while every Catholic should die in hope of salvation, none (absent private revelation) dies with the certainty of salvation, a fact that, in turn, obliges the family, friends, and the wider Christian community of the deceased to pray for the departed—no matter how they died—and to avoid attitudes that discourage prayers for the dead such as happens with the modern mindset that, basically, everybody’s good and we all go to heaven. This sort of thinking, a species of presumption (CCC 2092), has become common among clergy and laity and has impacted attitudes toward death, judgment, and the meaning of funerals. For example, a cleric of the Archdiocese of Chicago holds that “For a priest to even hint that the person [who kills himself] might not be in heaven is grossly wrong.” This priest’s claim, of course, is precisely what is “grossly wrong”, but it is consistent with his condemnation of others “who view suicide as a mortal sin,” supposedly because “That [assessment] has been categorically denied by church leadership.” Again, this cleric’s claim is rubbish but years of such sloppy talk has seduced many into a superficially comfortable, but doctrinally indefensible and pastorally dangerous, way of thinking about death—whether by suicide or otherwise.

At this point, though, without specific knowledge of what LaCuesta actually said, my citing to canons on homilies in general (including those norms that call for the doctrine of the Church to be preached therein, such as Canons 769-769) and to rubrics that call for funeral homilies to be brief and phrased so as to avoid “offending those who mourn”, per the Rite), would be of little avail. The Archdiocese of Detroit has restricted LaCuesta’s faculties for preaching at funerals (I imagine, per Canon 764) and one trusts that, in taking such action against LaCuesta, they had access to more specific information about his homily than was available in main stream media reports. If LaCuesta said the right thing the right way, he should be defended; if he said the right thing the wrong way, he should be corrected; if he said the wrong thing the wrong way, he should be chastised.

Meanwhile, those seizing upon this young man’s devastating choice, his family’s unimaginable grief, and the as-yet uncertain remarks of a homilist, to misrepresent Christian teaching against self-murder, to presume the salvation of anyone, and to minimize the need to assist the dead with our prayers, should cease their harmful talk.

Update: 17 Dec 2018.

Excommunicated Catholics are still Catholic

An essay published some five years ago purporting “to clear up confusion about excommunication” recently popped up again and sowed anew confusion on several aspects of excommunication. I don’t recall responding to the original publication but I will briefly respond now.

Preliminarily, there are, of course, several good points made in the essay, such as noting that excommunication is rarely imposed these days and that the sanction is primarily aimed at the reform of the offender. But at least two hot-button issues related to excommunication were wrongly presented in the essay and warrant correction.

The first is the mistaken idea that, upon excommunication, a “person is no longer a member of the Catholic Church.” Actually an excommunicated Catholic is still a Catholic in rather the same way that a convicted felon is still a citizen. An excommunicated Catholic is simply (sadly, but simply) a Catholic who is excommunicated.

Canon 205 recognizes as Catholic any baptized person who is joined with the Church “in its visible structure by the bonds of profession of faith, of the sacraments, and of ecclesiastical governance.” Now a priest who, say, violates the seal of confession (an excommunicable offense under 1983 CIC 1388) might well believe everything Catholics believe, share in the seven sacraments to the extent allowed by canon law (and, mind, all Catholics are restricted from certain sacraments under certain conditions), and acknowledge the governance of the Church in the very act of accepting the excommunication and in working diligently to have it lifted—as happens from time to time. Such a priest, regretting his act and distressed by his excommunication, does not need to make a ‘profession of faith’ (as if he were coming into full communion from some other religious body) but rather admits his specific fault and seeks the lifting of the Church sanction.

If the foregoing does not suffice to show that excommunicated Catholics are still Catholics (albeit excommunicated ones), consider: excommunicated Catholics are still bound to attend Mass on Sundays and holy days of obligation (1983 CIC 1247), something non-Catholics are not required to do; excommunicated Catholics are still bound to observe the Church’s laws on marriage (1983 CIC 1059) something non-Catholics are not required to do; and excommunicated Catholics are still bound to contribute to the material needs of the Church (1983 CIC 222, 1262), something non-Catholics are not required to do. I could list another score of canons that excommunicated Catholics are bound to observe in ways that non-Catholics are not so bound, again, in rather the same way that felons are still bound by the laws of the state while in prison (e.g., prisoners are still subject to income taxes and might have to file tax returns from behind bars). All of these serve to demonstrate that excommunicated Catholics are still Catholic.

In short, while there are some ways for a Catholic to cease juridically being a Catholic (e.g., “defection” from the Church, a topic too far afield from ours), excommunication is not such a way. Excommunicated Catholics are still Catholic. Bad Catholics, sure; but Catholics.

Second is the mistaken idea that “legislators who promote abortion and make it possible … surely must incur the penalty” of excommunication. No, they don’t, but I have made this point in so many venues that I see little use in making it again. Those interested in seeing why those reprehensible Catholics who vote to legalize abortion are, for all that, not excommunicated for abortion, or for anything else, (as if, you know, merely dodging excommunication for one’s evil deeds suffices to show the goodness of such deeds) can look here or more generally here for more information. 

There are still other problems in the recirculated essay—such as its uncritical reference to the lifting of Lefebvrite excommunications and to the subsequently regretted lifting of Williamson’s sanction, both matters I consider to have been canonically botched, as discussed here: Edward Peters, “Benedict XVI’s remission of the Lefebvrite excommunications: an analysis and alternative explanation”, Studia Canonica 45 (2011) 165-189; reprinted in Canon Law Society of Great Britain & Ireland Newsletter 172 (Dec 2012) 1, 8-29—but let the above two examples suffice to show that, in dealing with matters of canon law, especially penal canon law, and most especially with matters of excommunication, readers should beware.

Ceterum, poenae latae sententiae delendae sunt.