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Mullarkey has it half right

Maureen Mullarkey’s recent post on Amoris laetita contains a line that bears nuancing not just because it is misleading, and not just because it is widely held, but because getting the principle that underlies it correct would reinforce Mullarkey’s mention of “a bugle call to the faithful to grapple with any pope who takes it upon himself to nullify the episcopate”.

Mullarkey writes: “The absolutist temper of a monarchial papacy, in which all authority flows downward from the Chair of Peter, is a cherished model among conservative Catholics.” Hmmm.

If by “conservative Catholics” Mullarkey means conservatives who are Catholic or Catholics who are conservative maybe she’s right. I wouldn’t know. But if by “conservative Catholics” Mullarkey means ‘Catholics who hold demonstrably orthodox views in doctrinal matters and accept the disciplinary consequences that flow from such views’ (which is what I think Mullarkey means), then her assertion that these Catholics ‘cherish’ a model of the papacy according to which “all authority flows down from the Chair of Peter” is seriously deficient.

“Conservative Catholics” are, to be sure, very comfortable with (though they might not be able to quote) Canon 331 as it sets out, among other things, the Roman Pontiff’s “supreme, full, immediate, and universal ordinary power in the Church”. They cherish papal power and thank Jesus that He left such authority to St. Peter and his successors. So far, so good.

But well-informed “conservative Catholics” will also know that, per Canon 336, the college of bishops “is also the subject of supreme and full power over the universal Church,” in other words, that there are two foci of “supreme and full power” in the Church, a pope (who can act alone) and a college of bishops (i.e., a pope and the bishops in communion with him who cooperate with each other in a magnificent and mysterious manner distinguishable from a pope acting on his own). It is this second focus of supreme and full power in the Church, one overlooked by Mullarkey but which Francis’ manner of governing is causing prelates and professors alike to begin to re-examine after several decades of post-conciliar quiescence, that bears closer examination—certainly closer than a blog post can offer.

In short, “conservative Catholics” are both ecclesial monarchists and they are ecclesial collegialists; noting the latter aspect of their ecclesiology (theirs, because it is the Church’s), instead of just noting the former, might help Mullarkey to demonstrate how Francis is setting lots of people to thinking about lots of things these days.

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A few thoughts on Pope Francis’ remarks on the centenary of codified canon law

Two brief articles by Cindy Wooden in Crux and America report on Pope Francis’ recent comments on the 100th anniversary of codified canon law in the Church. The comments seem pretty unremarkable.

Per Francis, canon law should promote “collegiality; synodality in the governance of the church; valuing particular churches; the responsibility of all the Christian faithful in the mission of the church; ecumenism; mercy and closeness as the primary pastoral principle; individual, collective and institutional religious freedom; a healthy and positive secularism; (and) healthy collaboration between the church and civil society in its various expressions.”

To the extent that the pope’s legal to-do list addresses things that law can-do, I suggest that canon law already does it. For example, collegiality is reflected in dozens of canons reaching to the highest levels of Church governance (see 1983 CIC 336); the responsibilities of the Christian faithful in the mission of the Church are spread throughout the Code, notably in Canons 208-231; ecumenism is already a hierarchic duty under Canon 755; and cooperation between Church and State is set out, simply and without fanfare, in Canon 22. One might, of course, want to modify how Church law regulates such matters but any suggestion that canon law does not already address such things would be mistaken.

As for the law’s promoting, say, “positive secularism”, the pope would need to spell out how, for example, one legislates things like “closeness” and, assuming that was possible, whether these are the sorts of things one should use the power of law on.

Those points being noted, however, one papal remark did strike me as odd. According to Francis, “after the Second Vatican Council [the Church] marked the passage from an ecclesiology modeled on canon law to a canon law conforming to ecclesiology”. As phrased, this comment can leave the wrong impression. Two wrong impressions, in fact.

Ecclesiology (itself a modern word, but denoting the study of the Church qua the Church and the application of such studies in her life) predates the emergence of canonistics and the first formal treatises on ecclesiology (e.g., Giles of Rome De potestate ecclesiastica, early 14th century) predate the rise of codified canon law by some 600 years. It is not right to assert that canon law—however much its practical clarity might have sharpened the theologians’ speculative discussions over the centuries—dictated ecclesiology. 

Even the Pio-Benedictine Code of 1917, which certainly reflected the pyramidal ecclesiology operative in the Church at the beginning of the 20th century—itself a legacy left to the Church in part by the First Vatican Council, sadly suspended after it ratified Pastor Aeternus (on papal primacy) but before it could turn to the Schema constitutionis dogmaticae secundae de Ecclesia Christi (with, e.g., its more complete description of episcopal power)—is, I suggest, a model of how canon law does not get ahead of theology.

Unless one wants to claim that Cdl. Gasparri, architect of the 1917 Code, should have anticipated by nearly 50 years the developments regarding episcopal power in the Church that were made during the Second Vatican Council and should have written those developments into a Code then governing a Church that had not yet thought those things through for herself, it does not seem fair either to describe pre-Conciliar ecclesiology as having been the ward of canon law or post-Conciliar canon law as having only recently discovered ecclesiology.

That demur aside, the pope’s comments on canon law seem pretty straightforward to me.

Disregarding the divinely-rooted Canon 915 portends serious consequences for the Church and her faithful

For several years I and others have argued that the question of admitting divorced-and-remarried Catholics to holy Communion turns primarily on Canon 915 (which norm, against a backdrop of canons protecting the right of the faithful to access the sacraments, sets out a minister’s duty to refuse holy Communion under certain conditions). Asserting the importance of Canon 915 in this Communion discussion, however, has been an uphill battle as virtually none of the official documents central to this debate—including Amoris laetitia, the Buenos Aires letter, the Maltese directives, the German episcopal conference document, and several others—so much as mentions Canon 915, let alone do they recognize that this canon directly regulates the sacramental disciplinary question at hand.

Till now I have but briefly noted the obligatory force of Canon 915 in terms of its being part of a Code of canons which “by their very nature must be observed” especially in that they are “based on a solid juridical, canonical, and theological foundation.” John Paul II, Sacrae disciplinae leges (1983) [¶ 19]. Faithful Catholics should need little incentive to follow a canon beyond the fact that the Legislator has made it a part of his universal law. Discussions as to the proper interpretation of a law are to be expected, of course, but such discussions would always center on a canon that all sides recognized existed and was relevant.

In the wake of Amoris, however, something different is happening: Canon 915 is slowly becoming an Orwellian “uncanon”, its existence not mentioned in key official documents impacting the Communion debate, its relevance to the precise sacramental issue at hand not being acknowledged. This notable official silence concerning Canon 915 portends, I suggest, serious consequences for the debate over the admission of divorced-and-remarried Catholics to holy Communion, to be sure, but, unless checked, it will also negatively impact other looming issues wherein Catholic doctrine directly interfaces with canonical discipline.

In light of the foregoing, then, I want to develop a point about Canon 915 that, while implicit in my earlier discussions of the Communion admission issue, seems now must be more explicitly made, namely, that the obligation to observe the sacramental provisions set out in Canon 915 when considering the administration of holy Communion to divorced-and-remarried Catholics rests not only on that norm’s inclusion in a set of positive ecclesiastical laws but on its reflecting universally binding divine law itself.

Part One. The divine law roots of Canon 915.

The canonist in me would be content to note that the character of Canon 915, as a modern articulation of a divine law precept that dates back to St. Paul and/or that aims at preventing divinely-forbidden scandal, is expressly and resoundingly upheld in a declaration on Canon 915 issued by the Pontifical Council for Legislative Texts in 2000 and, further, is acknowledged by numerous canonical commentaries including the Exegetical Commentary (2004) III/1: 614-615; Code of Canon Law Annotated (2004) 709; and Codice di Diritto Canonico Commentato (2009) 767, to name just three. There being zero question among canon lawyers that Canon 915 deals directly with the question of admitting, here, divorced-and-remarried Catholics to holy Communion, I would turn promptly to Canon 915 for directions.

But additional, more theological, foundations for demonstrating the divine law basis of Canon 915 are available.

The Catechism of the Catholic Church 2284-2287, for example, outlining the respect owed to the immortal souls of others, identifies scandal as “an attitude or behavior which leads another to do evil”, teaches that scandal “takes on a particular gravity by reason of the authority of those who cause it”, notes that scandal can be given by policies “leading to the decline of morals and the corruption of religious practice”, and warns community leaders that using their power “in such a way that it leads others to do wrong” makes them “guilty of scandal and responsible for the evil that he has directly or indirectly encouraged.”

Per the Catechism, then, individuals giving personal scandal to others violate divine law; Church officials giving institutional scandal to the community (say, by countenancing the personal scandal given by certain individuals) violate divine law more gravely still.

Furthermore, by prohibiting ministers of holy Communion from giving that “most august Sacrament” (1983 CIC 897) to any Catholic who “obstinately perseveres in manifest grave sin” (understanding those terms as they have long been understood in canon law), Canon 915 serves the common ecclesial good in, I suggest, at least three ways:

▪ first, it supports to some extent the faithful’s personal obligation under Canon 916 to examine their consciences (perhaps with the guidance of a confessor) prior to approaching for holy Communion;

▪ second, it reduces, though it does not eliminate, the chances that sacrilegious Communions will be made by the faithful;

▪ third—and most importantly, I suggest—it directly prevents ministers of the Church from giving institutional scandal to the faith community (and indeed to the wider watching world) such as would inevitably arise if the Church’s greatest sacrament were administered to Catholics whose observable conduct or status (such as, say, living together with another as if a spouse although at least one person in the relationship already was already married) contradicts core values of the faith (here, Christ’s repeated proclamations against divorce and remarriage).

In short, Canon 915 blunts the individual scandal given by the faithful who live lives openly contrary to fundamental Christian values and it prevents Church officials from giving institutional scandal by engaging in ministerial actions that would appear to treat such contrarian behavior as compatible with Church teaching.

But the problem of disregarding Canon 915 goes deeper still, I fear.

Into the void created by ignoring Canon 915, a canon fashioned over many centuries as a community defense against scandal and specifically against scandal given by ecclesiastical leaders, there has rushed in the contrary idea that the private judgement of individuals (perhaps reached with priestly advice) concerning their taking of the Sacrament, whenever they consider themselves fit for it and regardless of how inconsistent their public conduct or status might be with the teachings of Christ and his Church, is to be preferred to the common ecclesial good of protecting the faith community from the harm of public bad example. In other words, personal conscience is being urged as a substitute for public conduct as a key criterion controlling certain questions of ecclesiastical governance.

Moreover, this abandonment of the faith community to the dangers of scandal contrary to the divine law protections reflected in Canon 915 is presently being pushed in regard to Catholics living in “public and permanent adultery” (CCC 2384) but the logic of substituting personal conscience for public conduct in regard to ecclesial governance issues does not and will not stop at marriage questions.

Part Two. How the problem took hold and is spreading.

That the question of admitting divorced-and-remarried Catholics to holy Communion should henceforth turn largely on an individual’s perception of (diminished or even absent) personal culpability for sin as that might be discerned in personal conscience, and need not honor primarily the divine law prohibition against giving personal and institutional scandal to others, is a proposal so startling in its novelty and so shocking in its implications that it seems to have taken over, almost invisibly, the very framing of the question of admitting divorced-and-remarried Catholics to holy Communion. It is as if the world of sacramental discipline groaned and awoke to find itself subjectivized.

Now, this erosion of the canonical protection of the faith community against scandal is not being achieved by a frontal attack on Church teaching (indeed Church teaching is often verbally honored) nor so much by turning a blind eye toward disciplinary abuses (as has always been with us), but rather, first, by the simple expedient of pervasively ignoring Canon 915 and its scandal-prevention orientation, and second, by treating the norm (if it must be mentioned at all, and which must, one supposes, deal with something) as if it dealt with the Church’s (in itself, quite legitimate) pastoral concern for sin, as follows:

First, as noted above, mention of Canon 915 itself has been almost completely absent from the most important documents dealing with the question of admitting divorced-and-remarried Catholics to holy Communion. But, realizing that admitting divorced-and-remarried Catholics to holy Communion is somehow “not okay” canonically, some mechanism for addressing that “not okay-ness” needed to be developed.

That mechanism is, I suggest, the constant repetition of certain tropes or themes according to which Canon 915 (or at least some unnamed law dealing with the faithful going to Communion), deals largely with questions of personal sin, not scandal. Once the conversation about Canon 915 (or some unnamed restrictive norm) has, by the steady repetition of nearly invariable refrains, been shifted away from this norm’s primary task of protecting the community against scandal and toward its allegedly being a response to personal sin, the rest proceeds easily:

Upon correctly pointing out, say, that divorced-and-remarried Catholics are often in situations of reduced moral culpability and after rightly stressing the pastoral importance of weighing case-by-case factors in pastoral accompaniment—and being careful to avoid acknowledging that such considerations have basically nothing to do with the operation of Canon 915, a norm concerned with the prevention of objective scandal, not internal assessments of conscience—the conclusion comes gradually to be accepted that, as no law or human being can judge another’s culpability for sin, so no law or human being may prohibit another from taking Communion based on that other’s “culpability” for conduct. Ministers of holy Communion thus become sacramental ATMs. To the minister’s prompt “Body of Christ” a Catholic responds with the password “Amen”, and the Eucharist is disbursed. Scandal is ignored; Canon 915 is diverted; and the community is left to deal with the effects of the bad example of others and of their ministers as best it can.

In short, once people think that Canon 915 (the few times it is mentioned) is mostly about assessing the sacramental consequences of the personal sins of the faithful and is not concerned with preventing institutional scandal by ministers, then anything that mitigates one’s culpability for personal sin (and many things do mitigate such culpability) necessarily mitigates the force of Canon 915. The subversion of the Communion debate concerns over scandal is complete and its resolution in favor of a highly subjective determination of eligibility for holy Communion is achieved.

A final note.

There is, alas, another consequence of wrongly framing the question regarding the admission of divorced-and-remarried Catholics to holy Communion as if it were a question of culpability for sin instead of it turning on the community’s right to be protected from personal and institutional scandal.

It is this: in consequence of the urgent need to reorient the debate over Canon 915 back toward protecting the faith community against scandal as required by divine law, the discussion of many other pressing pastoral questions on marriage (such as the terrible ill-preparedness of so many people to enter marriage, the inadequacies of certain canonical formulations of various points of marriage doctrine, the correct operation of the ‘internal forum solution’, the worsening anomalies of requiring canonical form for valid marriage, the procedural problems of the older canon law on annulments and of Francis’ newer norms, and a dozen points besides) is repeatedly delayed. Because of the need to respond to the deeper threat to ecclesial order that ignoring and misrepresenting Canon 915 poses to the Church, people calling attention to Canon 915 are dismissed as legalists for their harping on esoteric laws while there are real people with real marriage problems to be tended.

As if we didn’t know that, and as if we didn’t prefer to make positive contributions to the pastoral advancement of canon law instead of having, nearly constantly these days, to take time out to defend norms such as Canon 915, and the very important values they represent, against destruction by those unaware of, or not concerned with, what such canons mean “in the life both of the ecclesial society and of the individual persons who belong to it.” John Paul II, Sacrae disciplinae leges (1983) [¶ 16].

 

A corrective to some of Prof. Buttiglione’s recent assertions about canon law

It is simply not possible for me to re-explain, every time I address the latest canonical misstatements proffered by some writer or another, the whole canon law on the reception of holy Communion and the administration of that Sacrament by ministers. Further information on those crucial topics is available elsewhere. Here I comment only to caution others that some of Prof. Rocco Buttiglione’s recent comments on the administration and reception of holy Communion are not canonically sound.

Readers might recall that a year or so ago Buttiglione authored an essay alleging that divorced-and-remarried Catholics had been excommunicated until John Paul II courageously eliminated that supposed sanction from the 1983 Code. I showed that no such excommunication existed in universal law (searching back more than 100 years) and suggested then that Buttiglione was not a reliable historian of canon law. To my knowledge he did not modify his claims. Oh well.

Now Buttiglione has authored another essay, this time against the Correctio Filialis.  As stated earlier I have no position on the Correctio itself but I pause to suggest that, once again, Buttiglione has misunderstood and/or misrepresented some important, if this time more subtle, canonical points. Our discussion is hampered by Buttiglione’s failure to specify exactly which disciplinary norms he has in mind at various stages of his essay. Sorry, we’ll proceed as best we can.

For example, Buttiglione writes:

There is an absolute impossibility of giving Eucharist to those who are in mortal sin (and this rule is of Divine law and therefore imperative) but if, due to the lack of full knowledge and full consent, there is no mortal sin, communion can be given, from the point of view of moral theology, also to a remarried-and-divorced. There is also another prohibition, not moral but legal. Extra-marital coexistence clearly contradicts the law of God and generates scandal. In order to protect the faith of the people and strengthen the conscience of the indissolubility of marriage, legitimate authority may decide not to give communion to remarried-and-divorced even if they are not in mortal sin. However, this rule is a human law and the legitimate authority can allow exceptions for good reason.

There are many canonical mistakes in the above passage though I will deal with only three at present. Also I will rephrase some of Buttiglione’s words because I think bad translations might have interfered with his message.

(1) There is an absolute impermissibility of giving the Eucharist to those who are in mortal sin.

This claim is wrong. Setting aside the impossibility of one human being knowing for sure whether any other human being is “in mortal sin”—why do so many people think that reading souls is part of a canon lawyer’s stock-in-trade?—it is quite possible, indeed, canonically required, to administer holy Communion publicly to members of the Christian faithful whom a minister suspects (perhaps on excellent evidence) to be “in mortal sin” unless all five elements of Canon 915 (obstinate perseverance in manifest grave sin) are simultaneously satisfied. This is standard sacramental law, yet Buttiglione seems unaware of this norm and unaware that Canon 18 requires its strict interpretation such that, doubtless and sadly, sacrilegious Communions can be made in accord with Church law—something hardly possible if divine law absolutely prohibited it. This botching of a crucial point in his argument does not instill confidence that Buttiglione will handle other points reliably.

(2) Extra-marital cohabitation clearly contradicts the law of God and generates scandal.

Sometimes false. I am aware of no divine law that prohibits “extra-marital cohabitation” per se (let one alone “clearly” prohibiting it) and can imagine situations wherein such “cohabitation” (not extra-marital sex, but cohabitation), strictly speaking, could be prudently countenanced, at least for a time (complex discussion omitted). Rather I suspect that Buttiglione is, wittingly or not, confusing “cohabitation” with “divorce-and-remarriage” and thereby substituting what the Catechism of the Catholic Church 2384 describes as “a situation of public and permanent adultery” for something that might be morally acceptable. Again, such an assertion hardly exhibits the level of precision that discussion of these points requires.

(3) To protect the faith of the people and to strengthen the respect for the indissolubility of marriage, legitimate authority may decide not to give communion to remarried-and-divorced even if they are not in mortal sin. However, this rule is a human law and the legitimate authority can allow exceptions for good reason.

Again Buttiglione assumes that ministers and canonists know who is “in mortal sin” and who isn’t. For the last time, that’s balderdash. But more to the point, Buttiglione’s earlier erroneous assertion that divine law always prohibits ministers from giving holy Communion to persons “in mortal sin” (assuming we even know who they are), returns now to create new confusion between canons resting on divine law (as some do) and canons supposedly resting on mere human law (such as, one surmises, Buttiglione believes Canon 915 does when it prohibits administration of holy Communion to divorced-and-remarried Catholics) which law, because it is ‘just a law’, and not ‘morals’, can supposedly be changed.

But, as has been explained numerous times, Canon 915, operating in the face of obstinate perseverance in manifest grave sin (here, the sin of contradicting the permanence of marriage by purporting to marry again while a prior spouse is yet alive), prohibits ministers from giving holy Communion to certain persons when such administration causes scandal to others, scandal being defined by the Catechism as “a grave offense” which is worsened “when given by those who by nature or office are obliged to teach and educate others”. CCC 2284-2287. In other words, Canon 915 rests at least in part on divine law, the divine law that prohibits, among other things, anyone (especially ministers of the Church!) from giving scandal to others. Buttiglione seems unaware of this aspect of Canon 915.

Canon 915 is not about withholding holy Communion from a couple that one thinks is illicitly “doing it”; it is about withholding holy Communion when its administration would lead the community to, here, doubt the gravity of the contradiction that civil divorce-and-remarriage gives to marriage as proclaimed by Christ and his Church. Even the much-invoked and usually misunderstood “brother-sister” accommodation is to be considered only if the couple’s status as divorced-and-remarried outside the Church is not known in the community (and if the couple promises continence which, obviously, ministers cannot monitor). But at this point, I must repeat that these wider matters are explained elsewhere, and my focus now is on Buttiglione’s latest essay, which essay, I think I have shown, is not a reliable guide to the canonistics in question here.

 

On arguments that may be, and sometimes must be, made

I have taken no position on the Correctio Filialis. I know and respect some of its signatories as I do some of its critics but, as the document itself seems to fall within the boundaries of Canon 212, I say, ‘Have at it folks and may the better arguments prevail’. That said, some recent arguments against the Correctio are, in my view, subtly deficient and, time permitting, I will reply to them.

But even before that, I wish to reply to an attitude I perceive emerging against the Correctio, one that attempts to dissuade Correctio supporters from their position by alleging a disastrous—but supposedly logical—consequence of their being right, something along these lines: If Amoris laetita and/or Pope Francis and/or his Vatican allies are really as bad as the authors of the Correctio seem to believe, then all petitions, Dubia, and corrections will do no good. Prayer and fasting would be more advisable.

Hmmm.

Setting aside that several of these scenarios are not asserted in the Correctio and that the evidence concerning some others is not yet in, underlying this doomsday-like retort of the Correctio is, I think, a certain despair about the importance of argument itself in this matter. At the very least, such a bleak conclusion disregards the duty of certain Catholics precisely to engage in such debates.

Canon 212 § 3 has been invoked by those supporting the Correctio to point out that the Church herself recognizes the right of certain persons “to manifest to sacred pastors their opinion on matters which pertain to the good of the Church and to make their opinion known to the rest of the Christian faithful”, namely, those persons who possess “knowledge, competence, and prestige” in regard to the matter under discussion. Indeed. But Canon 212 § 3 says something more.

Canon 212 § 3 states in regard to persons with special knowledge, competence, and prestige in regard to ecclesiastical matters, that they “have the right and even at times the duty” to express their views on matters impacting the well-being of the Church (my emphasis). The duty. Not just the right.

Thus to the extent that some qualified signatories and/or supporters of the Correctio have realized a duty (expressed in law) to address these matters, they are not simply acting under the protection of law (as are those exercising a right), they are acting in accord with its directives (as do those under an obligation). Now, to be sure, Canon 212 is not self-interpreting and several prudential considerations must be considered when applying it. But in its very terms is the expression of a duty incumbent upon certain Catholics who are qualified by their education, experience, and Church positions to make serious arguments on matters impacting the Church. And I see no exception in the law for those whose positions might imply the existence of other problems for the Church or for those who arguments seem unlikely to be acted upon.

Cdl. Caffarra said “only a blind man could deny there’s great confusion, uncertainty, and insecurity in the Church.” Much of that confusion turns, obviously, on the meaning of technical terms and on the content of intellectual assertions. Those blessed with advanced training in such technical terms and intellectual assertions may be, and at times should be, at the forefront of these debates. 

And, yes, all participants in these debates should be engaged in extra prayer and fasting.

Further remarks re Fr. Martin

Two important essays, one by Janet Smith at Catholic World Report (29 sep 2017) and the other by Dan Hitchens at First Things (2 oct 2017), along with their links to and quotes from Fr James Martin’s own words (and sometimes, as Smith and Hitchens note, to Martin’s refusal to say certain words), occasion these comments on Martin’s recent complaints (21 sep 2017) that he has “been accused of heresy, ridiculously, by some critics (I’m not contradicting any revealed truths).” There are several issues to sort out here.

First, yes, I am very sure that some of the accusations of heresy made against Martin are, indeed, ridiculous. As are some of Martin’s accusations that, for example, among his critics: “Heresy” is a word they use as frequently as “and” and “the.” Apparently there is plenty of ridiculousness floating around out there. All purveyors of the ridiculous should cease spouting it.

To my canonical observations.

Martin’s rebuff of heresy accusations above (“I’m not contradicting any revealed truths”) suggests that either he does not know or does not wish to acknowledge that “heresy” is not limited to the actual contradiction of revealed truths. Canon 751 defines heresy as “the obstinate denial or obstinate doubt” of certain truths (my emphasis). Thus one’s “obstinate doubt” concerning revealed truths, and not just one’s outright contradiction of such truths, can, upon proof, result in a finding of heresy.

Next, when speaking to a male questioner recently, Martin expressed the “hope [that] in 10 years you will be able to kiss your partner or, you know, soon to be your husband”. Any reasonable listener will conclude that Martin not only hopes that a man may someday marry a man with the Church’s blessing, but that Martin believes “same-sex marriage” to be radically possible under Church teaching and that it is a matter of regret that such Church recognition is not yet available.

Here, I suggest, Martin effectively denies infallible Church doctrine that marriage can exist only between a man and a woman. I see only two canonical issues in the wake of his statement:

(A) Whether the infallible Church teaching on the absolute impossibility of marriage between two persons of the same sex is itself a “revealed truth” (in which case the issue is indeed one of heresy) or whether it is a “proposition … to be held definitely” (in which case the issue is opposition to the doctrine of the Catholic Church, but not heresy strictly speaking), with the weight of scholarly opinion, however, favoring the view that Church teaching on the male-female aspect of marriage is divinely revealed, meaning that one’s “obstinate denial or obstinate doubt” concerning that teaching would be heresy; and,

(B) Whether Martin’s comment, coming as it did during a public Q-and-A session, accurately reflects his actual position on marriage—an important point because both heresy (per cc. 751, 1364, etc.) and opposition to definitive Church teaching (per c. 1371, etc.) require a demonstration of one’s deliberateness in so holding before any penal consequences could be levied.

Either way, Martin’s shocking (as coming from a priest) comment, uttered against the backdrop of his frequent refusal to state his own positions directly (as opposed to his practice of characterizing his positions as sound, etc.) make the pursuit of clarity here very important.

Scholion on Pio-Benedictine law and the Eastern Code.

Martin’s frequent, often seemingly studied, ambiguities regarding Church teaching on various doctrinal and moral issues would have been more directly cognizable under the Pio-Benedictine Code of 1917 than they are under the Johanno-Pauline Code of 1983, notwithstanding 1983 CIC 209. The old Code squarely stated: “The faithful of Christ are bound to profess their faith whenever their silence, evasiveness, or manner of acting encompasses an implied denial of the faith, contempt for religion, injury to God, or scandal for a neighbor.” 1917 CIC 1325 § 1. Of course, giving scandal (CCC 2284-2287) to one’s neighbor, even if not directly scored in the new Code, is still a grave evil against which all should be on guard. Similarly, Canon 10 of the Code of Canon Law of the Eastern Churches (1990) makes ‘adherence to the authentic living magisterium of the Church’ and the ‘open profession of the Faith’ matters of law. Interesting, eh?

Francis was never pope? Call me unpersuaded.

(Note: I am giving this one shot. If it sways some adherents of the ‘Francis-was-never-pope’ group, great; but if it only reassures observers who, regardless of what they think about how Francis is governing, are disquieted by the suggestion that his papacy itself is a chimera, that satisfies me as well.)

Two small but persistent arguments attack the very foundation of Francis’ papacy: first, Benedict XVI’s resignation was invalid (take your pick as to reasons why, but mostly because of pressure allegedly brought on Benedict, as supposedly evidenced by his resignation wording), so there was no vacant Holy See to fill, and so a conclave could not elect a pope; or, second, various irregularities were committed before or during the conclave itself, so the election of Francis was invalid.

Both sets of arguments are offered in inexcusable ignorance of Canon 10 (which sets a high standard indeed for declaring any kind of ecclesiastical acts invalid, etc.), but the arguments alleging the invalidity of Benedict’s resignation are so vacuous that no time will be spent refuting them here. On the other hand, some (okay, basically one) of the claims that irregularities allegedly committed in the conclave itself resulted in an invalid election do have a modicum of plausibility and deserve at least a brief hearing. So here goes.

These latter arguments seem to fall out along three lines, two of which are patently groundless:

Contrary to Universi Dominici Gregis 78, before or during the conclave some electors might have entered into simoniacal agreements to vote for Bergoglio subjecting themselves to latae sententiae excommunication and rendering, under older law, the election of the pope invalid. But, in that same ¶ 78, John Paul II (for the peace of the Church) expressly provided for the validity of a papal election achieved in simony—even if it involved the new pope himself. So much for that argument.

Contrary to Universi Dominici Gregis 79, 81, before or during the conclave some electors pretty clearly entered into gratuitous agreements to vote for Bergoglio subjecting themselves to latae sententiae excommunication and, in contrast to the simony provision, no rehabilitation clause is offered for electors so stained. But the reason a ¶ 78 type rehabilitation is not offered them is simple: no rehabilitation is needed. People who might labor under an undeclared latae sententiae excommunication place ecclesiastical acts (such as voting and/or accepting election) illicitly but validly. See 1983 CIC 1331. So much for that argument. Et poenae latae sententiae delendae sunt!

Finally, some hold that other plausibly alleged conclave anomalies, especially in the balloting itself, resulted in an invalid election per Universi Dominici Gregis 76, which states: Should the election take place in a way other than that prescribed in the present Constitution, or should the conditions laid down here not be observed, the election is for this very reason null and void, without any need for a declaration on the matter; consequently, it confers no right on the one elected.

There is some initial plausibility to this argument.

As I understand things—and beyond that some voting pacts were illegally entered into—because, supposedly, a ballot that elected another candidate was vacated on an ambiguous technicality and/or the ballot that elected Bergoglio was an illegal fifth on a day limited to four, the election of Bergoglio “[took] place in a way other than that prescribed” by UDG and so is invalid. There are doubtless more theories of invalidity out there, but I can only address these two.

Now, as noted above, I can see why a few people would think that UDG 76 means that a papal election which takes place in ‘any other way’, as alleged here, is invalid, and I think such concerns for the good of the Church deserve a response. But in proposing a conclusion of “invalidity” one has already, wittingly or not, offered a canonical interpretation of what the phrase “[took] place in a way other than that prescribed” means and, if that interpretation is canonically disputable, so too is a conclusion that rests on it.

I think the conclusion of election invalidity as arising from either or both of these alleged balloting irregularities rests on a misreading of the special conclave law that UDG is and of the wider canon law of which UDG is a part—which brings me to the first point.

Notice that I have already cited two canons (cc. 10, 1331) from the 1983 Code in discussing a papal election. I do this because I know that all of canon law works together to direct Church affairs and, while UDG is special law for a special event, it is not independent of the rest of canon law. UDG must be read in light of canon law generally and the 1983 Code specifically.

For these alleged balloting anomalies (assuming they can be factually proven) to have any canonical consequences, they must fall within what UDG 76 means by an election “tak[ing] place in a way other than that prescribed in this constitution” and not just what common English parlance might mean by the phrase. Interpreting what the words in UDG 76 mean requires finding a meaning that canon law, and not simply conventional vernacular usage, would support.

That is not as easy as it might at first seem.

Consider: UDG requires (among many, many things) the use of paper ballots with the words “Eligo in Summum Pontificem” across the top. Now suppose some, but only some, ballots read “Eligo in Summum Pontficem”, but this mistake is not noticed until after a winner is announced in the Sistine Chapel. Has the election taken place “in a way other than that prescribed”? Yes. Suppose the electors run out of paper ballots and start using card stock. Has the election taken place “in a way other than that prescribed”? Sure. Suppose some electors cannot spell a candidate’s name correctly and so either badly guess at its spelling or identify him by his city or country? Has the election taken place “in a way other than that prescribed”? Indeed. Suppose Rome is hit with a heat wave and the Sistine Chapel AC breaks down, so, to save aging electors dangerous misery (such as actually happened during the election of Benedict XIV), the afternoon ballots are shifted to take place in the morning. Has the election taken place “in a way other than that prescribed”? Certainly. A thousand variations on the ‘prescribed way’ of electing seem possible, some trivial (like typos on a ballot), others gravely sinful (like simony), such that, in some cases at least, the words in UDG 76, “in a way other than that prescribed”, could not reasonably connote in Church law everything they could well connote in common parlance.

So, recognizing that a canonical understanding of this phrasing is needed, a canonist would likely turn to Canon 17 which states “if the meaning [of a law, and UDG is a law] remains doubtful and obscure, recourse must be made to parallel places” and so on. The pope certainly knew about Canon 17 when he wrote UDG and he expects people who claim to interpret UDG to know when Canon 17 should be applied.

I think, after looking at some “parallel places” (and what places can be more parallel here than other papal conclave provisions?), that what John Paul II meant when he scored as null any papal election that took place “in a way other than that prescribed” was basically this: if a papal election purported to take place other than by two-thirds majority of ballots directly cast by individual electors present in conclave—that is, if, say, any one attempted to revive older, long acceptable, but now discarded, means of papal election such as “acclamation”, or “compromise by committee”, or drawing lots, or leaning out a window and asking the crowd outside St. Peter’s who should be pope—that such an election would be invalid.

But almost all the other variations in conduct that invariably take place in human activity, and likely all the responses to procedural questions that cannot be guessed in advance but that really will happen (such as what to do upon finding a stray blank ballot in the stack only after they have been counted and the result announced!) are left by UDG 5 (whose very existence proves that the pope knew that ambiguities in and unforeseen questions about UDG could arise!) to the wisdom and authority of the College of Cardinals to decide. Deus eos adjuvet.

Would I have vacated a papal election just because one blank ballot (probably inadvertently included by some septuagenarian’s fumbling fingers) was found in the stack? No. But the College apparently thought otherwise and that question was theirs to decide. Having vacated the results of that ballot, would I have allowed another round of voting to take place that same day? Yes, and the College decided that way, too. But in neither case, and no matter which way the rulings went, would I have left the conclave worried that a pope had been invalidly elected simply because the way the election actually proceeded was “other than that prescribed” in UDG. I would have been canonically confident that those kinds of variations were not what John Paul II was worried about when he drafted UDG 76.

The broader point is this: No matter how many theories of canonical disaster are floating around these days, persons actually trained in canon law know that the answer to any canonical question (such as, what counts as “in a way other than that prescribed” so as to result in conclave invalidity?) will seldom be found in a single norm because canon law is a system in which many parts must work together in order to serve the common ecclesiastical order.

Thus, taking one canon of the Code or a paragraph of a law and trying to make everything turn on it, instead of reading that canon or passage as part of a wide and complex reality, is rarely (rarely, not never, but rarely) the right way to go.

nb: a bad link above was fixed, same evening.