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Just a short note to my readers: a heavy consult/project schedule this summer, some extended traveling, and more than the usual share of computer problems have combined to reduce my blogging presence lately. I plan to remedy that forthwith. Thanks for your patience. Dr. P.

A correct, if unusual, ruling provoked incorrect, if typical, responses

The canon law under which Indianapolis Archbishop Charles Thompson has prohibited Brebeuf Jesuit Preparatory School from holding itself out as “Catholic” is relatively straight-forward. More interesting, if wholly predictable, were the Jesuits’ attempt to redefine the dispute and CNN’s choice simply to lie about it.

Long story made short, BJPS has in its employ a teacher who entered a civil ‘same-sex marriage’ about two years ago. That teacher’s contract expired recently and the archdiocese requested that BJPS not offer him a new one. The Jesuits refused this request, which refusal triggered a broader discussion about whether BJPS wished to retain its identity as a Catholic school at all and, if so, whether it would take the administrative steps deemed necessary by Thompson to help assure the integrity of the Catholic witness offered by it faculty. Upon the Jesuits’ refusal to bring their personnel policies into line with archdiocesan expectations for employees/ministers (such as their not living in open contradiction to fundamental Church teaching on marriage and indeed of natural law) and specifically their renewal, it seems, of the contract of the teacher in a ‘same-sex marriage’, Thompson issued his decree revoking the status of the BJPS as a Catholic school.

In his decree Thompson invoked Canon 803 of the 1983 Code which states, among other things, that Catholic school “teachers are to be outstanding in correct doctrine and integrity of life” and that “no school is to bear the name Catholic school without the consent of the competent ecclesiastical authority”. Other provisions of Church law augment Thompson’s authority here (Canons 300 and 806 come to mind).

The Jesuits, meanwhile, through their Midwest Provincial Rev. Brian Paulson, vacillate between casting the archdiocesan request as being one for “dismissal” of the teacher in a ‘same-sex marriage’ (which, I think, the archdiocese could have, but did not, request) or one to decline offering a new a contract to the teacher (which is what the archdiocese did request and, in my view, would have been canonically negligent not to have requested).

Paulson repeatedly describes Thompson’s ruling as being one of prudence (convenient, for on prudential matters reasonable men may disagree) instead of recognizing Thompson’s ruling for what it is, an authoritative, binding ruling by the ecclesiastical officer responsible for such matters. Paulson regards the Jesuits’ stance here as an exercise of “conscience” (a claim that can be made by anyone intent on acting as he pleases, of course) and expresses concerns about “future interference in the school’s operations and other matters that have historically been the right and privilege of Brebeuf Jesuit officials” (as if, one supposes, hiring high school teachers who live in open contradiction to Church teaching has long been a right and privilege of Brebeuf Jesuit officials).

Paulson’s observation that “the direct insertion by a diocese into an employment matter of a school governed by a religious order is rare, with few, if any, precedents” is plausible enough, but one wonders whether, historically, there have been all that many Catholic high school teachers living in a ‘same-sex marriage’ to begin with and, in any case, whether there have been all that many bishops who cared much about stark contradictions between Catholic teaching and the witness to that teaching being given in Catholic schools. But however one assess those questions they are irrelevant to Thompson’s ecclesiastical authority to act as he did in this case at this time.

Most crucially, though, Paulson regards this matter as essentially turning on the unfortunate fact that “at times some people who are associated with our mission make personal moral decisions at variance with Church doctrine”. What balderdash. Everybody associated with the mission of the Church at times makes “moral decisions at variance with Church doctrine”. It’s called sin, and the response to others’ sin is, as Paulson notes, “to help them grow in holiness”. But the BJPS matter goes far beyond a ‘personal moral decision at variance with Church doctrine’. Here the Jesuits are, among other things, defending a teacher’s public act of defiance against fundamental Church teaching on the nature of marriage, an act taken in the face of the entire faith community and especially before its young boys and their families seeking to receive a Catholic education in word and deed. That is not just personal sin, that is classical scandal (CCC 2284), itself always a grave offense against the common good, and an even graver one when it is perpetrated before youth (CCC 2285).

Thus, if Paulson and the directors of BJPS want to hold themselves out as “Jesuit” (as regrettable as I find such a representation) that is their prerogative; but, as of now, while their canonical recourse against the archbishop’s ruling proceeds, they cannot hold themselves out as “Catholic” except in defiance of the lawful determination of the competent ecclesiastical authority.

Finally, CNN, in contrast to the Jesuits’ attempt to rationalize their decision, simply blared a double-barreled lie: “An Archbishop told a Jesuit school to fire [false: his contract had expired, the question was whether a new one should be offered] a gay [false: sexual orientation was not the issue, entering a civilly-recognized ‘same-sex marriage’ was] teacher”. And CNN wasn’t alone, of course. Lying, I suppose, saves time.

PS: I am seeing some social media speculation as to whether BJPS is in “schism” or at least has broken communion with the Church. I do not see either on these facts but, in any case, one issue at a time, okay?

Update (22 June): The above post has prompted a number of follow-up questions, most being reasonable, but with a few implying that I overlooked this key point or that in my remarks. So far, though, all the points mentioned are in fact matters I am aware of but simply can’t deal with in a blog post, as opposed to say, in a canonical brief. Let me say, many of you will find your answer in Canon 803.3, which admittedly requires some unpacking. For the rest, let me just say: If canon law does not support a bishop in declaring as non-Catholic a school run by religious that does not require its personnel to adhere to Church doctrine and that knowingly engages some as teachers who live in open contradiction to Church teaching, then — [fill in your own things-are-even-worse-than-we-thought conclusion here].

I, for my part, think canon law handily supports the bishop here.

A comment on a cardinal’s tweet re capital punishment

Earlier today Cdl. Dolan of New York tweeted: “With the clear and cogent clarification of the successor of St. Peter, there now exists no loophole to morally justify capital punishment.”

The supposedly clear and cogent clarification that Dolan has in mind must be Pope Francis’ 2018 modification of the Catechism of the Catholic Church to assert that the death penalty is “inadmissible”. But, while it is likely that Francis meant what Dolan said, the pope did not quite claim what the cardinal clearly did. Francis (or his handlers) left just enough wiggle room (by using “inadmissible”, an ambiguous term in magisterial-moral discourse) to avoid flatly declaring the DP “immoral” and setting off thereby a magisterial firestorm such as has not been seen for some centuries.

Dolan, in contrast, tweeting in terms well-known to tradition, plainly stated that the DP is immoral, thus going beyond what Francis was willing to say. That’s a problem. Indeed, it’s two problems.

1. Numerous serious studies argue (convincingly, in my view) that the liceity of the DP in certain cases is taught by the Church’s infallible magisterium (specifically, as “secondary object” thereof); at the very least, such studies make a prima facie case for the liceity of the death penalty under the infallible magisterium. Therefore, Church leaders contradicting that position must, simply must, deal with the possibility that infallibility is in play here, and, at a minimum, they should refrain from unnuanced declarations that might, in the end, be shown as “opposed to the doctrine of the Catholic Church” per Canon 750 § 2. See also Canon 1371 n. 1.

But the stakes might be higher still.

2. Many of the sources invoked for the liceity of the DP as a secondary object of infallibility (Scripture, Patristics, etc.) are those commonly associated with infallible assertions of primary objects of infallibility, that is, with matters of revelation. Now, while contradicting infallible assertions regarding secondary objects is, as stated above, to make one opposed to the doctrine of the Church, contradicting primary objects of the Church’s infallible magisterium is a specific element of heresy per Canons 750 § 1 and 751. See also Canon 1364. Obviously, this characterization risks even greater harm to the Church.

Am I saying that Dolan has committed heresy in his tweet or that he has expressed opposition to the teaching of the Church? No, but I am saying that declaring the DP as immoral per se puts one at risk of asserting something that many qualified scholars argue powerfully is opposed to infallible Church teaching, and possibly even to contradicting something divinely revealed. The real possibility of so offending the truth should, I think, trigger more respectful caution by those in positions of authority when speaking on these matters.

Think of it this way: A hunter shooting toward something moving in the underbrush can’t defend his accidental killing of a human being by saying “I did not know it was a man, I thought it was a deer.” The hunter has a duty to verify the status of his target before he shoots. Likewise, popes and bishops taking shots at the long-recognized moral liceity of the DP have a duty to verify the magisterial status of that teaching lest they accidentally hit something they had no business aiming at in the first place.

Cdl. Cupich’s rationales for not taking canonical action against prominent pro-abortion Catholic politicos are as unconvincing as ever

No one thought that Chicago’s Blase Cdl. Cupich would follow Springfield’s Bp. Thomas Paprocki’s example in calling upon Catholic state legislators, who had supported Illinois’ express attack on the basic rights of pre-born babies, to refrain from holy Communion until they repented of their evil deed (Canon 916), further directing that his ministers withhold holy Communion from two specific legislators based on their protracted and public support of such measures (Canon 915), so no one was surprised when Cupich didn’t. But, if only ‘for the record’, some replies to Cupich’s rationales for not following Paprocki’s example are in order.

1. Cupich claims that “it would be counterproductive to impose sanctions”. This misrepresents a crucial point: withholding holy Communion under Canon 915 is not the application of canonical sanction but rather the observance of a sacramental disciplinary norm. Casting the operation of Canon 915 as a sanction (implying thereby proof of canonical crimes upon the observance of special penal procedures) is a straw-man frequently posed by prelates skirting the plain provisions of Eucharistic discipline.

2. Cupich claims that “sanctions [sic] … don’t change anybody’s minds”. This misrepresents the two-fold purpose of withholding holy Communion, namely to prevent the scandal to the faith community that arises from the administration of holy Communion to Catholics who obstinately persist in manifest grave sin (say, by their formally depriving innocent human beings of any protection under civil law) and to prevent sacrilege from being committed against the august Sacrament. ‘Changing people’s minds’ has nothing to do with either goal.

3. Cupich claims that, when confronted with prominent Catholics who formally and actively cooperate in depriving innocent human beings of their right to life, his “primary responsibility is to teach”. This misrepresents the fact that bishops have not one but three primary responsibilities, namely, to teach, to sanctify, and to govern the People of God (Canon 375, emphasis added). Preserving sacramental discipline in the Church entrusted to him is a crucial part of a bishop’s governing duty (Canon 392). A bishop cannot therefore point to his admittedly sound teaching in regard to the right to life as if that satisfies his duty of governing his Church in support of that teaching, any more than a father can excuse sitting by while members of his household act against the common good, by saying, “Well, I told them what was right and wrong.”

4. Cupich might (it is not clear from the CNA article) claim that Paprocki’s action was taken in response to legislators “who championed the law”, referring only to the awful bill passed in Illinois a couple weeks ago. But if this is Cupich’s claim it would be factually wrong, for Paprocki, in invoking Canon 915 against two named politicos, expressly underscored their repeated and prominent role in advancing pro-abortion state legislation over a period of time and in multiple ways. Paprocki did not act upon news of a single bad act (although he might have been justified in doing so on these facts).

5. Finally Cupich claims that “an elected official has to deal with the judgment seat of God” adding that God’s judgment will be “much more powerful” than any here on earth. In that regard Cupich is certainly correct. Elected officials will be answerable to God for their acts and omissions. As will bishops. And cardinals.

Gov. Newsom and threats to the seal of Confession


California Gov. Gavin Newsom is and acknowledges himself to be Roman Catholic. His external conduct is, in several respects, gravely at odds with important Church teachings as in, for example, his long-term support for ‘same-sex marriage’ and his recent open invitation to pregnant women to come to California to abort their babies. He also appears to have been married in the Church but later divorced and subsequently attempted a civil marriage, in which relationship he apparently remains. In light of these public factors, Newsom already is, in my view, ineligible to present himself for holy Communion per Canon 916 and, if he presents himself for the sacrament anyway, he should be refused per Canon 915.

My concern here, however, is not for sacramental discipline as it impacts Newsom, but rather, with his vulnerability under penal canon law for his threatened role in attacking the seal of Confession.

California is considering legislation that would require Catholic priests to disclose, in certain cases, information they acquired in sacramental Confession. Setting aside a raft of interpretation questions and practical problems of application, serious obstacles to enforcement, and the certainty of protracted legal challenges, the bill itself threatens priests, bound by divine and canon law (CCC 2490, 1983 CIC 1388) to protect the seal of Confession, with State punishment if they do so. Newsom has signaled that he would sign such a bill into law.

In my view, such an executive act by Newsom would be to “impede the freedom of ministry” making him liable to “a just penalty” under Canon 1375. Besides the plain text of that canon, note that the Pio-Benedictine predecessor norm on which the current law draws expressly sanctioned those “who issue laws, mandates, or decrees contrary to the liberty or rights of the Church” (1917 CIC 2334). Attempting to coerce priests into betraying the seal of Confession under any circumstances unquestionably violates the divinely-conferred rights of the Church to pursue her mission freely and of her priests and people to celebrate their faith correctly.

In addition, should Newsom sign such a bill into law, I think he can be rightly seen as causing “scandal or a grave disturbance of [ecclesial] order” such that he would be liable to “formal rebuke” under Canon 1339. This action, if technically not a penalty itself, could be pursued together with or independently of a prosecution for crime under Canon 1375. Its main predecessor norm, 1917 CIC 2308, was understood by Pio-Benedictine commentators as authorizing formal rebuke even upon the commission of a single act, especially it were related to a canonical crime. See, e.g., P. Love, Penal Remedies (1960) 131-132.

While other canons could be invoked against Newsom in this regard (e.g., Canon 1319 on penal precepts), the two above should give sufficient indication that the Church has, more than once, faced attempts to interfere with the seal of Confession and that she retains in her canon law the memory and means of responding to such threats.

Thoughts on ‘Vos estis’

Pope Francis’ m.p. Vos estis has provoked a range of popular reactions from “it’s a good start” to “it does not go far enough”. JD Flynn provides an informed overview here. Kurt Martens provides good remarks here. I limit my thoughts to some technical aspects of Roman canon law occasioned by VE.

1. The controlling text of VE is Italian, serving the short term convenience of the Roman Curia and contributing to long term inconvenience for canonistics. Translations in several modern languages appeared simultaneously facilitating implementation.

2. VE addresses some behaviors already criminalized in the Code of Canon Law, esp. acts recited in Canons 695 and 1395, and seems to introduce some new crimes (VE 1, e.g., that of interfering with criminal investigations). Both approaches contribute to the growing disconnect (occasional under John Paul II, increased under Benedict XVI, and common under Francis) between codified law and other ecclesiastical disciplinary provisions, even in regard to key matters such as sexual misconduct. See, e.g., successive versions of John Paul II’s m.p. Sacramentorum sanctitatis tutela (30 apr 2001, etc.) and Francis’ m.p. Come una madre (04 jun 2016). Such disconnects can lead to inconsistent treatments of some topics while letting other matters fall between the cracks. A unified, legislatively sound treatment of clergy and religious sexual misconduct is needed.

3. Sexual acts performed by clerics and/or religious with consenting adults, though sacrilegious by their very nature and often extremely disruptive to the faith community (think, adultery between a pastor and a member of the parish or a religious’ participation in ‘adult pornography’ rings), are still not criminalized.

4. Some “crimes against the Sixth Commandment” are usefully identified in VE but the actual phenomenon, and specifically what constitutes a “sexual act”, is not canonically defined. Consultation with approved authors (Pio-Benedictine and Johanno-Pauline) is still necessary. See, e.g., my identification of works by moral theologians useful for canonical consultation in E. Peters, “Applications of the Essential Norms in cases of doubt”, Roman Replies and CLSA Advisory Opinions (2009) at 133-138.

5. The seal of confession (cc. 983, 1388) is not directly referenced in VE but is indirectly affirmed by the document’s deference to Canon 1548 (which in turn leads to Canon 1550 rendering confessors “incapable” of testifying about matters subject to the seal). There is no question of the Church abandoning the seal, of course, but a more vigorous assertion of the inviolability of the sacramental seal in a document such as this one would have been helpful in other, chiefly civil law, contexts.

6. Potential conflicts between arch/diocesan curial confidentiality obligations (c. 471) and the reporting requirements of VE seem resolved in favor of VE. Possible conflicts, however, between the specific immunity of clergy from disclosing matters known to them “by reason of sacred ministry” (c. 1548) and VE is more problematic. Assuming one can arrive at an accurate understanding of what it means “to know” something “by reason of sacred ministry”, then favoring the immunities in Canon 1548 undercuts the effectiveness of VE, obviously, while favoring the obligations as presented in VE puts an onerous burden on individual clergy to determine what they may and may not disclose, and, over time, could have a chilling effect on the willingness of persons to seek advice from clergy about moral matters if those same matters might have legal ramifications.

7. The investigatory duties of “metropolitans” (basically, archbishops) as investigators represents an augmentation of their authority as envisioned by Canon 436 § 2.

8. The expression of the presumption of innocence (VE 12 § 7) is perhaps useful against the real or perceived predilection among bishops to assume the worst about clergy accused of sexual misconduct these days, but it should have needed no affirmation in light of, say, Canons 18 and 221, and Regula Iuris 49 (1298).

9. The requirement of monthly investigation updates (VE 12 § 8) is remarkable. The requirement that investigations be completed within 90 days (VE 14), even if subject to extension by Roman authorities, is unrealistic.

10. Payment for the professional services of “qualified persons” who assist in the investigations (VE 13), though not expressly mentioned, seems anticipated by the fund to be set up under VE 16. But, while it is appropriate that arch/dioceses and religious institutes bear the costs of investigating their own, the Holy See should bear the costs of investigating those covered by Canon 1405 (chiefly, arch/bishops, cardinals, and papal legates, i.e., officials regarding whom local Churches had no voice and over whom they have no authority).

A word on lay involvement in episcopal disciplinary matters: Against those who maintain an absolute bar to lay authority over clergy (exaggerating Canon 129), I think real authority over clergy is not only possible for lay persons, but it has already appeared in a couple of places in the Code (though not in matters relevant to the issues in this post). That said, however, the ecclesiological obstacles to authoritative “lay involvement” in episcopal disciplinary matters are formidable and, in my view, ultimately insurmountable (lsms, see Canon 336). Christ founded his Church on popes and bishops, and He knew what He was about when He did so; the solution to the clergy sexual abuse, and to the hierarchic failings related to that abuse, must be found within that structure, not a new one.

11. The three-year “experimental period” for operating under VE, recalling that one of those years is available for establishing the basic mechanisms under which VE will operate (VE 2 § 1), seems unduly short, especially in that VE was issued as a papal motu proprio, meaning that the document can be modified or scrapped by the pope at anytime he wishes.

12. Statutes of limitations for criminal acts (“prescription”) play a very important role in the order of any society, but in canon law they are becoming unnecessarily complex. Against the background of codified law on prescription (which sets frustratingly short periods for investigation and prosecution per cc 1362-1363), some crimes against chastity are already subject to special periods of prescription per Sacramentorum, and now VE seems to introduce additional offenses, which might (or might not) be reserved to CDF and thus might (or might not) be subject to different statutes of limitation. Some clarifications would be helpful regarding periods of prescription and the possible reservation of certain offenses to CDF.

13. Some oddities remain in VE, including: restricting the choice of notary (a minor office, c. 483 § 2) to priests in cases where the reputation of a priest might be called into question—even though numerous laypersons can be involved in the case in much more important roles; expressly mentioning personal prelatures (currently, only one in the world) as being covered by VE but not likewise mentioning personal ordinariates; leaving unaddressed the scope of confidentiality obligations, if any, on those conducting investigations (as opposed to, say, those making reports); the ambiguous scope given to a suspect’s or an accuser’s right to counsel; and so on. Some of these issues can be resolved by practice of course, while others (such as prohibiting lay notaries in clergy misconduct cases) need simply to be abandoned.

Some blog updates

A number of pressing projects have occupied my time the last several weeks but I now have updates on a few other items.

First, as promised a couple months ago, I have prepared a response to Dr. Monica Miller’s reiterations that (depending on how narrowly or broadly her own exceptions to the application of Canon 1398 are read) potentially millions of Catholic women around the world are excommunicated for abortion. I find such an opinion wrong to the point of startling but it is sincerely raised and deserves a considered reply—one too long, however, for a typical blog post. My remarks are found here.

Second, my thoughts on the Eastern Open Letter accusing Pope Francis of the delict of heresy appeared in Catholic Herald on-line. They are available here.

Third, I will offer some technical observations on Pope Francis m.p. Vos estis later today, in a separate post. (Update: Those thoughts are now here.)