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Automatic penalties confuse every topic they touch

Near the end of my defense of Timothy Cdl. Dolan against Dr. Monica Miller’s harsh criticisms of him for allegedly misstating canon law (Dolan holds, correctly in my view, that women undergoing abortions are not automatically excommunicated), I made the point that, if matters were different in just one respect, the whole automatic-excommunication-for-abortion controversy could never have arisen.

I observed that, if, instead of occurring among Roman Catholics, the automatic-excommunication-for-abortion issue were being aired between Catholics belonging to any of the other twenty-plus Catholic Churches in union with Rome, even the possibility of automatic excommunication for abortion vanishes. Given that, however, most Roman Catholics know even less about Eastern canon law than they do about Western, my point, though decisive in its ability to answer the question of whether Catholic women would (or even could) be automatically excommunicated for abortion (the answer being No), sits unrecognized. Shall we do something about that?

Faithful Catholics, Western and Eastern, know that deliberate abortion is a violation of natural law and a grave moral evil (CCC 2271); abortion is, moreover, a crime under the canon law of the Roman Church (1983 CIC 1398) and under the unified code of all Eastern Churches (1990 CCEO 1450 § 2); finally, the canonical penalty for abortion under both Western and Eastern law is excommunication. But here’s where the problem appears.

Under Roman canon law the excommunication for abortion is automatic (latae sententiae), meaning that the excommunication for abortion is incurred as soon as the deed is committed (see 1983 CIC 1314); under Eastern canon law, however, no sanction of any sort, including excommunication for abortion, impacts an offender unless a judicial trial or administrative process imposes it (1990 CCEO 1402). Thus, because there are no automatic penalties in Eastern canon law but there are in Roman, the canonical status of two otherwise-identically situated Catholic women undergoing abortion, i.e., their being susceptible to automatic excommunication or not, depends solely and simply on which of them is a Roman Catholic and which an Eastern. Treating, radically differently, two Catholics performing identical acts under the same circumstances, based only on which Church the Catholics happen belongs to, is jarring. To put it mildly.

I pause to be clear: the problem before us is not whether the Church should have excommunication as a sanction (of course she should, for many reasons), or even whether excommunication is appropriate for abortion (of course it is, for many reasons), but rather, whether any canonical sanction, let alone excommunication, should automatically apply to a Catholic as if, based only on the act’s being done, the Church grasped an individual’s situation with a clarity approaching God’s.

Every legal system I know anything about, save for Roman canon law in a few instances, distinguishes between the performance of a deed and responsibility for that deed by asking two questions: Did the person do the act and is he or she responsible for having done it? The fact that in many, maybe most, cases the answer to both questions is Yes does not render the two questions indistinguishable nor leave the second irrelevant. Yet, that is exactly, at the formal level at least, what Roman law purports to do in regard to a dozen or so offenses, including procured abortion. CLSA Comm (1985) 937.

The juridic problems long associated with automatic penalties and the complex ‘work-arounds’ that Western canon law has developed to accommodate them (instead of simply eliminating them, as did Eastern canon law) are numerous and exceed what I can address here. In brief, though, the chief problems with automatic penalties are that they practically erase the distinction between sin and crime and purport to treat persons as legally guilty without observing legal process. Automatic penalties interfere with the reconciliation of sinners by injecting concerns for juridic rehabilitation into a sacramental process (see, e.g., 1983 CIC 1357), they disturb the consciences of Catholics who wonder whether acts they committed, and need to repent of, might also have been canonical crimes punishable automatically and so requiring distinct remedies, and they allow weak-kneed prelates, with an dismissive waive of the hand and a claim that ‘so-and-so has already excommunicated himself’, to avoid publicly punishing offenders who, for their own good and the good of the faith community, urgently need censure.

Eastern canon law avoids all of these problems. And then some.

The canonical and sacramental complications of Western automatic sanctions for actions that were committed, but often under partially or completely mitigating circumstances, might explain the lopsided inclusion of so many ‘affirmative defenses’ in, e.g., Canons 1323 and 1324 as discussed in my defense of Dolan’s position. These two exemption canons, however, not being needed to curb the potentially unfair operation of automatic sanctions under an Eastern Code that has no automatic penalties to begin with, do not appear in Eastern canon law. Don’t misunderstand: Eastern Catholics facing canonical sanctions for offenses, whether in a judicial trial or administrative process, can still invoke various defenses against conviction and, if found guilty, toward mitigation of a sanction. See, e.g., 1990 CCEO 1409, 1413, and 1415. But the rigid listing of exemptions that marks Western penal law and hampers its enforcement is not needed in Eastern law whose officials are expressly freed (see, e.g., Eastern Canon 1415 and its invocation of “common practice and canonical doctrine”) to draw upon the richness and nuance of the canonical tradition in assessing factors that can augment or mitigate liability for offenses in specific cases.

But there is also a steep pastoral and apologetic price to be paid for the West’s retention of automatic penalties, especially excommunication. Every single time a Catholic becomes involved in some ecclesiastically delictual behavior for which an automatic censure, especially excommunication, is threatened, the conversation immediately turns away from the delictual conduct engaged in by the individual and toward the intricacies of the canonical penal process that the Church uses to assess those behaviors. Every single time. Public attention shifts away from behavior that needs to be corrected toward procedures that need to be explained, and the big mean Church is perceived as a menace to the poor little believer. Might one hope, upon seeing this happen time and time and time again, that someone in Rome will finally say it’s time to reconsider this whole automatic penalty thing? To be sure, as I noted elsewhere, the general trend in Roman canon law over the last 150 years or so has been slowly to reduce the number of automatic penalties in canon law. But unfortunately they are not gone yet and, as a result, a Miller (not a canonist) can still point to the language of Canon 1398 and make a plausible case that women undergoing abortions are automatically excommunicated, leaving a Dolan (also not a canonist) to mumble (correctly) something about “We don’t do that anymore” but not know how to point to a series of exempting provisions in canon law that support his claim. If the West simply eliminated automatic penalties as the East has done, no one could ask a Dolan whether women undergoing abortions were automatically excommunicated, and a Miller could not accuse a Dolan of getting canon law wrong by answering No.

Finally, as I noted before, Pope Francis has essentially mooted without reforming the automatic excommunication mess, at least as it relates to abortion, in his 2016 document, Misericordia, by granting faculties to priests world-wide to absolve from the sin, and apparently the crime, of abortion. I have some canonical concerns about that document, especially in how it seems to work effectively to decriminalize abortionists’ conduct, as opposed to just women’s, but as the document itself is a step in the right direction and because discussing my juridic concerns about it would take us beyond what we need to point out regarding canon law’s disparate treatment of Roman offenders versus Eastern, we’ll leave those matters to another day.

The elimination of automatic penalties from Church law is not in Dolan’s hands, nor in Miller’s, nor in mine. Only Rome can fix this. But, while that matter is sorted, the very fact that all Eastern Catholic Churches have entirely eliminated automatic sanctions from their law, should, I think, give pause to those insisting that a Catholic woman undergoing abortion be labelled as liable to automatic excommunication based solely, as it turns out, on the fact that the woman is a Roman, not an Eastern, Catholic. That’s not equal justice for believers (pace 1983 CIC 208 and 221, and 1990 CCEO 11 and 24) and the retention of automatic sanctions, whatever purpose they might have served in by-gone times, ill-befits, I suggest, the Church as the Speculum Iustitiae she strives to be.

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It’s not fair, but does he deserve it?

A savvy observer of things Catholic recently contacted me regarding the scorn being directed at Timothy Cdl. Dolan (and other bishops, but mostly Dolan) for not excommunicating New York’s pro-abortion governor Andrew Cuomo, for not publicly denying him holy Communion, and for not taking any other action besides, it seems, expressing sadness at the politico’s evil conduct. “It’s not fair”, my friend remarked, with bishops as a whole in mind, “because canon law really does tie their hands here, but people think they deserve it anyway because, for decades, bishops have fouled up basically everything else they do have some control over and look where we are now.” My friend was not endorsing this thinking but he was describing it accurately. Quite.

Even setting aside—as if that’s possible—the clergy sexual abuse catastrophe against which all episcopal conduct is assessed these days, the near universal failure of US bishops (along with their European, even Roman, counterparts, but who even notices that anymore?) to enforce so relevant and ready a norm as Canon 915 against pro-abortion Catholic politicos (recalling that early cover for that failure was given by none other than Uncle Ted, who tried to hide then Cdl. Ratzinger’s crucial letter on this matter—so much for setting aside the sexual misconduct disaster), and the broader episcopal failure to enforce basic Catholic discipline in many other areas, has left faithful Catholics so scandalized, wearied, and angry that when, like the unchecked evil it is, the abortion cult takes over one of America’s two great political parties and infects major federal and state office-holders, a single episode of that evil, the Cuomo case, can erupt like a festering boil and a Dolan comes to represent heterodox prelates everywhere.

I get the anger. I have winced my way through several Dolan interviews wherein secular reporters were better at enunciating Church teaching on controversial matters than he was and I have cringed as he made some good points only to lose them in irrelevant asides. What Dolan (and he’s not alone here, but he is prone to it by personality and prominent in it by position) doesn’t seem to understand is that, while parish hall bonhomie works with believers and gentle words work with penitents, neither approach works in major media settings where Successors of the Apostles need to speak clearly and forcefully on the contentions of the day, this, in ways that leave no doubt that Jesus is coming to judge the living and the dead. Soon. But almost no bishop talks that way today. So, yes, I get the anger aimed at Dolan. But that’s not what I want to discuss now.

Here my concern is with the attacks being launched on Dolan and some other bishops concerning matters over which they either have no control (as my friend suggests) or regarding which they are being wrongly accused of botching when—if one heeds what they say rather than how they say it—the bishops actually have it right. Specifically, I want to address an attack against Dolan by a theologian of obvious orthodoxy and of proven pro-life witness, Dr. Monica Miller, in her essay at Crisis,Cardinal Dolan gets canon law wrong on abortion“.

Now, had Miller gone after Dolan for all sorts of prudential missteps and fumbles I probably would have agreed with her; had she questioned Dolan’s theology I would have at least deferred to her expertise. But instead Miller (who claims no qualifications in canon or civil law) pummeled Dolan with (what she thinks is) a canon law cudgel and Crisis editor John Vella (who claims no credentials in either canon law or theology) published it.

To sum up the long story I offer below, I find Miller’s main canonical point almost completely wrong, her criticisms of Dolan in this regard terribly exaggerated, and her perturbation of the consciences of post-abortive women, both those who have addressed their sin in confession and those who haven’t, pastorally reckless.

To be clear, I do not think it wrong to criticize, strongly but responsibly, Dolan or other bishops (1983 CIC 212), nor do I hold canon law to be the exclusive domain of canonists. But to the extent that anyone wishes to criticize bishops in light of canon law, to that same extent one needs to have a very good grasp of what canon law actually directs.

The central claim in Miller’s essay is that women who undergo abortion are automatically excommunicated under Canon 1398. She regards Dolan’s comment rejecting such excommunications, his “We don’t do that anymore” line, as an error almost “shocking” and in any case “completely false”. Against Dolan, who, says Miller, “should truly know better and has a duty to present the teachings of the Church”, she claims that “there is hardly a canonist who does not know that [Canon] 1398 applies to … the woman who actually has the abortion.” Miller, who in this essay and frankly uncharacteristically, seems to take lightly a theologian’s duty ‘to truly know better and to present the teachings of the Church’, makes her canonical accusation against Dolan about a half-dozen different ways.

Appreciate the relentlessness of Miller’s attack: Besides the above, Miller accuses Dolan of making “egregious errors”; of offering responses “shot through with multiple errors”; of having “woefully mangled” Church teaching and practice; of leaving “doctrinal and pastoral wreckage in his wake”; and on and on.

Of course, as suggested above, if one is angry at Dolan (for good reasons or for bad) and if one knows little and cares less about canon law, Miller’s words might not offend, a la, even if she is being unfair to Dolan, so what?, he deserves it. To such persons I have nothing to say; their issues are not canonical. But with more thoughtful persons—and regardless of how one feels about Dolan’s performance in other respects—I think words are important and that canon law matters, thus, I think we need to examine Miller’s claims about what canon law means in light of what canon law actually says before we accuse Dolan or anyone else of “totally misrepresent[ing] the teachings and practice of the Church”.

Before setting about that task, a caveat: this is a long blog, but it’s still just a blog. Even so, unlike the legion of amateurs who can look up a canon or two and pronounce confidently on the meaning of canon law, as a real canonist I have to support my claims with text and argument. In controversies, I have to lead readers first to the point of being able to recognize the possibility of canonical errors in someone like Miller’s essay, and then, get them see that she indeed made those errors. That takes times and that takes words, often, plenty of both. Even so, there is more to these matters than I can address here and there are reasonable questions that can be raised about the law and/or my explanation of it. Anticipating those concerns, besides my offering the age-old advice to “consult the approved authors“, I will point to two professional opinions that I wrote on some of these matters for the 2010 CLSA Advisory Opinions, namely, “Exemption from a penalty” (169-174) and “Excommunication for abortion” (178-182). I don’t think either of these pieces is available on-line. Consider it an excuse to go to a library. Now, onward.

1. Dolan’s phrasing “We don’t do that anymore” implies that at some point in her history the Church excommunicated mothers who aborted their babies. Dolan is correct.

The Pio-Benedictine Code, in its Canon 2350 § 1, stated “Procurers of abortion, the mother not excepted, incur, upon the effect being secured, automatic excommunication reserved to the Ordinary, and if they are clerics, they are also deposed”, my emphasis. The inclusion of the unusual phrase “matre non excepta” suggests a backstory.

For hundreds of years, despite her exceptionless scoring of abortion as a grave sin and her readiness to treat abortion as a canonical crime, the Church hesitated over whether to include mothers in the penal law. Good arguments for and against criminalizing mothers in abortion cases were debated but, by the early 20th century, the consensus under “Decretal Law” seemed to be that, while mothers aborting their children sinned gravely, they should probably not to be treated as criminals on par with abortionists and their henchmen. In 1917, however, the pope sided with those arguing for criminalizing mothers in abortion cases and Canon 2350 was promulgated as above. For the next sixty-plus years, bishops, priests, and canonists explained and applied the abortion canon in light of its plain terms. To be sure, various canonical and moral defenses against “imputability” were invoked while treating individual cases, but, at least at the formal, textual level of the Code, the Church indeed excommunicated mothers undergoing abortion. Dolan was right.

Enter the Johanno-Pauline Code of 1983. Canon 1398 thereof reads as follows: “A person who procures a completed abortion incurs an automatic excommunication.” Period.

While numerous changes in the abortion canon are obvious to anyone who bothers to compare it with the 1917 Code, what, for our purposes, cries out for acknowledgment is that the earlier express inclusion of mothers undergoing abortions as criminals has disappeared from the revised law. If only in this formal, textual respect, then, Dolan’s claim that “We don’t do that anymore” is correct or, at the very least, it is quite reasonably asserted, and Miller’s condemnation of Dolan’s phrasing as being an “egregious error” and “completely false” totters.

But there’s more.

2. The removal of the phrase “matre non excepta” from the revised Code not only recalls Decretal Law concerns about whether the Church wants to include mothers in this criminal canon, it unquestionably restores to these women all of the ‘affirmative defenses’ made available to any member of the faithful accused of crime, these defenses being set out in, among other places, Canons 1323 and 1324.

Before diving into this area, recall: canon lawyers do not write canon law, they comment on what’s in it. I have stated many times my view that the affirmative defenses which survived into the 1983 Code are excessive and that they hamper the ability of even good bishops to enforce canonical discipline to the degree that I, for one, think it should be enforced. But the law is still the law and canon law gives clear and consistent directives as to how it must be read and understood by those who apply it in practice or invoke it in arguments. Among those directives, going back many centuries, is one that requires construing penal law and facts in favor of the accused whenever that can reasonably be done (see, e.g., Boniface VIII, Regula Iuris 49 [1298]). Back to it.

Now, while Miller confuses laws and precepts in this area, she correctly calls attention to Canon 1323, a canon that provides a dozen or so affirmative defenses amounting to exemptions from penalties under the 1983 Code. Basically, if a person accused of a canonical crime can show himself covered by even one of the factors described in Canon 1323, that person cannot be punished by canon law (although there might still be grave sin involved that needs sacramental resolution). But, in briefly acknowledging the exempting effect of Canon 1323, Miller makes an odd comment, one easy to miss amid the Dolan-bashing.

Miller writes, “Cardinal Dolan needed to uphold Canon 1398 and explain why it exists, even if it is true that the penalty likely does not apply to the majority of Catholic women since they have never been informed of the canonical precept [sic].” Wait a minute.

Is Miller rhetorically minimizing the plain text of Canon 1323 n. 2 on her way to criticizing Dolan for not talking about whatever Miller thinks important, or, is Miller conceding that “the majority of Catholic women”, per just this one provision, are indeed exempt from excommunication for their abortions? For the sake of her canonical coherence, I hope Miller recognizes that some, or most, or who knows, maybe nearly all, Catholic women might be exempt from excommunication for their abortion under just this one provision but, even if it is only her “majority of Catholic women” who could be exempted from excommunication, why does she blast Dolan for addressing, in a conversational manner, the majority of cases by remarking in a general way, “We don’t do that any more”? How would Dolan’s apparently accurate general comment offend the truth so ‘egregiously’ and ‘completely’ that Miller must repeatedly condemn it?

3. Turning from this major exemption from excommunication that even Miller seems to admit might apply to post-abortive women, let’s look, too briefly, at the exemption perhaps most important (for our purposes, i.e., assessing the canonical liability of mothers to automatic excommunication for undergoing abortion) that made it into the revised Code. It’s in Canon 1324, which Miller does not mention.

Canon 1324 § 3 dryly states: “In the circumstances mentioned in § 1, the accused is not bound by a latae senteniae penalty.” Let that unpretentious text sink in. By it, if any factor in Canon 1324 § 1 can be shown to apply to a woman undergoing an abortion, the automatic penalty threatened for abortion by Canon 1398 cannot apply to her, per Canon 1324 § 3. Not might not. Not should not. Cannot.

Now, among the many other factors listed in Canon 1324 § 1 that could apply to anyone accused of canonical crime, including to women seeking abortions (e.g., young age, substance abuse, even ignorance of canon law!), those listed in number 5 thereof address someone who was ‘coerced by grave fear, even if only relatively grave, or who acted out of necessity or to avoid grave inconvenience [even if] the delict is intrinsically evil’. Any member of the faithful threatened by a latae sententiae penalty (including excommunication) who acted under one or more of these conditions, irrespective of moral guilt, is protected by Canon 1324 § 3 against that penalty. That droves of women presenting for abortion could reasonably claim one or more of these factors is, I think, obvious. Or are 3,000 American crisis pregnancy centers serving non-existent needs?

This single canonical exemption provision, even standing alone, repels, I suggest, Miller’s main attack on Dolan for allegedly “totally misrepresent[ing] the teachings and practice of the Church”. It is Miller, I suggest, who has misrepresented, by not even mentioning, a crucial aspect of the practice of the Church in precisely this area.

Given, finally, that so-called ferendae sententiae penalties (sanctions following formal canonical trials or administrative hearings) against women for abortion are unheard of, the real question, it seems to me, is not whether most, or some, or even a few women are, under modern canon law, excommunicated for abortion, but rather, whether any women are excommunicated for abortion. For the above reasons (supplemented by some other arguments in more technical areas of the law and addressed in my published opinions, but which amateurs could not even guess at—although they could understand them if they asked), I hold that no woman, irrespective of the sinfulness of her action, is automatically excommunicated for abortion, and therefore, that Dolan was right when he said: We don’t do that any more.

4. Some other thoughts.

New matters.

The only way Miller can even propose her attack on Dolan for denying the automatic excommunication of mothers aborting babies is because she and he are Roman Catholics. If this discussion were being conducted in the context of Eastern Catholic canon law, under the Eastern Code promulgated by John Paul II in 1990, Miller’s attack on Dolan would have been a non-starter. Why? Because Eastern Catholics never procure abortions or, if they do, Eastern prelates don’t care? Balderdash. It’s because Eastern Catholic canon law has, Deo gratias, done away with automatic sanctions of any sort (CCEO 1402 § 1). Abortion is a crime under Eastern law punishable by excommunication (CCEO 1450 § 2) but the West’s maddening muddle of automatic sanctions does not exist in Eastern law and so there is no question about whether Eastern Catholic women might be automatically excommunicated for abortion. Eliminating latae sententiae penalties is a precedent the Roman Church should follow. Immediately—unless one is comfortable with the idea that identical actions are treated dramatically differently depending on which Catholic Church one happens to belongs to.

There are a couple thousand canon lawyers in America and Lord knows how many others around the world. I am sure that one can find some canon lawyer, somewhere, who holds mothers excommunicated for their abortion. But, to succeed in defending Dolan against Miller’s attack, I do not need to prove that no canon lawyer anywhere holds mothers liable for automatic excommunication. I simply need to show that Miller’s canonical attack on Dolan is wildly disproportionate to the canonical arguments she musters for it. I think I have done that.

I do not understand the need some feel to find a way to excommunicate women undergoing abortion. What purpose is served by compounding the moral catastrophe of an abortion with the canonical complications of an automatic excommunication, it’s ‘medicinal character’ (real or supposed) notwithstanding? If canon law called for such treatment, as it did for a time, I would teach it as written and suggest legitimate ways of mitigating its juridic effects in actual cases (as Pio-Benedictine canonists and pastors did in their day) while working for its reform, but that’s not something we need to worry about because modern canon law does not, in my view contrary to Miller’s, excommunicate mothers undergoing abortions. Sacramental confession, to any priest, is the primary route to post-abortion spiritual reconciliation. While I have long held this view, any lingering doubts about it are solved by Pope Francis’ letter Misericordia (2016) 12, which, while not immune to some canonical issues, makes clear that the sacrament resolves the sin and any theoretically possible ecclesiastical penalties.

Old matters.

Few, probably none, of the affirmative defenses set out in Canons 1323-1324 as applying to women undergoing abortions would apply to abortionists. Canon 1398 enables the Church to prosecute abortionists. If bishops are aware of Catholic abortionists in their territories I urge them to consult with canonists toward initiating prosecution.

I have argued many times that Canon 1398 on abortion, and Canon 1329 on accomplices, does not reach pro-abortion politicos. Indeed, I find no support for the former thesis, and virtually none for the second, among the approved authors. A couple of times a plausible argument that pro-abortion politicos are liable to excommunication for heresy is floated by authors with some credentials. I have twice argued that I do not find that theory sustainable in the cases presented.

Canon 1369 figures among a few other canons available for use against many prominent Catholic public figures in response to their abortion mongering, but canon lawyers cannot force bishops to purse those cases.

Canon 915 is the single most immediately available norm by which bishops may limit the scandal of pro-abortion politicos. Cuomo, last l heard, refrains from holy Communion.

Finally, may I remind folks, even those with impressive credentials in other ecclesiastical disciplines, that, while canon law is placed in the Church to serve the needs of all (1983 CIC 1752), canonical argumentation is no place for amateurs.

Dreher’s double-barrel misfire

If I were not a man who tries to pay more attention to what is said than I do to who said it, and even to how it’s said, I would have noted the … anomaly … of ex-Catholic Rod Dreher, of all people, attacking Timothy Cdl. Dolan for not being Catholic enough, attributing views to Dolan that the prelate never expressed (and italicizing them for effect), relegating the cardinal to the status of cynic or coward, and backing it all up with a vulgarism taken from one of secular politics’ most vulgar characters, and would have simply shrugged and gone on with my day. I might have, as Dreher says, ‘thrown up in my mouth a little’, but I would have gotten over it.

But I kept reading and saw that, later in his column, Dreher invokes the example of Abp. Joseph Rummel’s 1962 excommunication of three New Orleans Catholics in the midst of that prelate’s justly-famous school desegregation project. Dreher asks whether racism is worse than abortion (all together now: Noooooo) and wishes that Dolan “had the backbone of Rummel” to bring about, one surmises, Gov. Andrew Cuomo’s excommunication for supporting abortion. As Dreher is not alone in drawing an unfavorable parallel between Dolan and Rummel, and as the parallel seems to be a plausible one with, moreover, a canon law aspect to it, I thought I would take a look at it notwithstanding its provenance.

Dreher provides only one link for background on the Rummel episode and I am away from several of my own canonical resources just now (an inconvenience for me because I try to back up my views with sources, not just rhetoric), but, looking at what Dreher provides and at some on-line discussions (e.g. here and here), what I see is Rummel indeed excommunicating three Catholics during the New Orleans desegregation struggle, but not for supporting racism (which all three undoubtedly did) but rather, for their interfering with Rummel’s authority to govern Catholic institutions as he saw fit and fomenting animosity against Rummel and his leadership. See National Catholic Almanac (1962) 61. Now if these were the grounds for Rummel’s action against those offenders (and not for their ‘being racists’), the archbishop was on very solid canonical ground for so acting. Let me suggest how, remembering that the Pio-Benedictine Code of 1917 was in force at the time.

Then: 1917 CIC 2331 § 2 authorized a censure (i.e., excommunication, interdict, or suspension) against those who provoked subjects to disobey a bishop’s lawful orders; 1917 CIC 2334 n. 2 explicitly authorized excommunication against those who impeded even indirectly the exercise of ecclesiastical jurisdiction using lay powers; and 1917 CIC 2344 authorized a censure (including excommunication) against those who attacked prelates in the media or who stirred up animosity or odium against their governance decisions. Thus Rummel had at least three ways to impose excommunication in his case, none of which responded to racism. Dreher’s insinuation of a damning parallel between Rummel’s (alleged) canonical move against the evil of racism and Dolan’s (alleged) inaction against the evil of abortion collapses if Rummel himself did not sanction Catholics for their racism but rather for their obstructing his governance of the archdiocese.

Now, to my knowledge, Cuomo has never said “Cdl. Dolan has no right to use his ecclesiastical authority to condemn abortion”, or, “Catholics should not listen to anything Cdl. Dolan says about me.” To be sure, if Cuomo has said something like that (even recalling that, in penal canonistics, facts and law must be narrowly interpreted) I would say, “Hey boys, let’s see if we can go after Cuomo!” But notice, that penal canonical inquiry would not be about whether abortion is worse than racism or even about whether Cuomo endorses abortion (anymore than Rummel punished Catholics for endorsing racism) but rather, whether Cuomo was, for example, ‘inciting animosities or hatred against a bishop on account of ministry‘ or ‘provoking subjects to disobey” Dolan, per 1983 CIC 1373. I might thrown in Canon 1375 (against intimidating one who exercises ecclesiastical power or ministry) even though it’s a stretch—though, one I will allow myself as I am playing with the short hand known as Book VI of the 1983 Code here. Which brings us to the second problem in Dreher’s column.

Speaking of playing short-handed, whereas Rummel had at least three canons enabling him to levy excommunication given the facts presented to him, what would the modern Canon 1373 allow Dolan to impose if Cuomo were brazen enough to challenge Dolan’s office itself and/or his governance of his own institutions such as Rummel’s opponents did against him? Could Dolan excommunicate Cuomo as Rummel excommunicated his opponents?

No. The 1983 Code limits Dolan’s response here to the lesser censure of interdict. Don’t get me wrong, interdict is a significant sanction (especially in regard to laity, per Canon 1332) but it is not excommunication and it has none of the ‘sex appeal’ that a bishop hurling down excommunications against offending princes evokes in the popular imagination. Canon 1375, meanwhile, is even less helpful. It authorizes simply a “just penalty” and some will argue that such language effectively discourages censures (especially excommunication) at least as a first response.

So a second time, Dreher’s damning comparison of Rummel to Dolan falls flat in that, on facts not even presented but not impossible, assuming Dolan could go after Cuomo for interfering in Church governance, Dolan could only respond with interdict not excommunication. Thus I look forward to Dreher’s retraction of both misfires of his damning of Dolan for not acting like Rummel when it seems that Rummel himself would be saying to Dolan, “Tim, you’re not facing the canonical offense I faced, and even if you were, your 1983 Code is a lot less potent than my 1917 Code was.”

Meanwhile, let’s review. In my view:

1. Cuomo is forbidden holy Communion per Canon 915, though it seems he already refrains from approaching and thus a reiteration of this fact, while possible, is not required under law at present;

2. A penal investigation should be authorized inquiring as to whether Cuomo violated Canon 1369 (attacks against good morals); and,

3. Cuomo has probably not committed the specific offense of heresy.

That must suffice for now.

A canonical look at Fr. Pokorsky’s idea

Fr. Jerry Pokorsky has an interesting essay over at CatholicCulture wherein he suggests “restricted donations” as a mechanism by which Catholic laity might influence pastors, and to some extent bishops, toward the good. Now to the extent that unusually bad times call for unusually creative remedies (even if only partial remedies, as Pokorsky notes), then I say, examine everything and keep what is good. Some canonical thoughts on Pokorsky’s proposal follow.

Canon law places a positive but unspecified obligation on all the faithful to support the Church financially, this, basically to the effect that Catholics need to make donations to the Church, in season and out. How, and how much, the Code leaves up to individuals, but something, sometime, is required. 1983 CIC 222 and 1260-1262

In general the Church is required to accept such donations as are offered to her (1983 CIC 1267 §§ 1-2). This is not as self-serving a rule as it might at first appear but that’s a point we need not develop now. Canon 1267 further addresses, however, some special issues regarding certain kinds of donations and it is here that Pokorsky’s proposal needs to pause. Let’s look at two considerations.

First, and less problematically, Canon 1267 § 3 states that donations “given by the faithful for a certain purpose can only be applied for that same purpose.” As Pokorsky rightly and happily notes, most donations come to the Church for her general support and are not tied to a specific project. Donations as are restricted (say, to the ‘New Roof Fund’ or the ‘Support our School’ collection) are, in my observation, duly set aside by parishes and dioceses for such projects as is morally and canonically required. While the mechanisms for handling funds when designated projects are rendered impossible by circumstances are a bit more complex than Pokorsky suggests but those unusual considerations do not detract from the main point that Pokorsky’s proposal, in this regard, besides whatever plausibility it enjoys under civil law, has good canonical support as well. His point that using civil law rules on restricted donations can advance transparency in the Church is consistent with Canon 1287 § 2. Indeed, the wider civil law concept of legally enforcing donor-restricted gifts might well have come to States from the Church! Kennedy, CLSA New Comm (2000) 1470.

But a second and more problematic issue, however, is raised when Pokorsky proposes not simply ‘restricted’ donations as understood by Canon 1267 § 3, but also ‘modal’ or ‘conditional’ donations as understood by Canon 1267 § 2 (the distinctions between ‘modal’ and ‘conditional’ gifts not being needed for present purposes). Modal-conditional gifts are notably different from restricted gifts.

Pokorsky hypothesizes a donation accompanied by the following note: “This $ 10,000 donation is to be used by Catholic Charities to feed the poor after the [b]ishop publicly denies Communion to the nominally Catholic pro-abortion governor.” Hmmm.

Such an offering is restricted in that it specifics allocation to Catholic Charities for feeding the poor—so far so good—but it is also modal-conditional in that it requires an action (here, an episcopal directive against administering holy Communion to an offending politico) that is in no way related to the work or the funding of Catholic Charities. Now, while restricted gifts in general require no special approval by the Church official receiving them (beyond a quick verification, I suppose, that the intended purpose is one served by the institution, as in, Yes, we have a grade school here), a modal-conditional offering must be approved by (lsms, per Canon 134) the local bishop prior to acceptance.

Modal-conditional gifts, especially those turning on Church governance decisions (say, a bishop deliberating whether to invoke canon law against an offending member of the faithful, a decision largely controlled by Canon 1341), are among those gifts that canonical commentators recognize could well be refused by Church officials. Kennedy, CLSA Comm (1985) 868. The very appearance of making such decisions in exchange for donations is simply too great for Church officials to countenance—this, no matter how appropriate the underlying action might be. If the Church no longer allows indulgences to be based on financial donations (and she doesn’t) because of the bad appearance of such indulgences (notwithstanding their theoretical justification), would it surprise anyone that donations conditioned on governance decisions (e.g., Here is $ 10,000, bishop, if you make Fr. Bob the pastor of All Saints Parish–a perfect fit, let’s say!) would be refused by Church officials?

In addition, modal-conditional gifts are complex enough when offered to the Church official with authority to implement the condition (as I take Pokorsky’s example to be); but they are more complex still when presented to Church officers with no authority over the observance of the condition (e.g., Here, Father, this is $ 1,000 for our parish grade school on condition that the bishop excommunicate our rotten governor.)

These issues being raised, Pokorsky’s proposal does not depend on the vindication of his Catholic Charities example and it might well stand without it. Further discussion could illuminate it. For that matter, there are other ideas floating around out there for using money to influence Church decisions which, per se at least, need scandalize no one. Whether they pass specific canonical or prudential muster, however, is another matter. Perhaps time will allow me to treat some of them in due course.

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.

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.