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Canon law might not be ideal, but it is certainly more than ‘an’ ideal

John Allen, amid some interesting thoughts on the recent batch of cardinals soon to be created by Pope Francis, makes a couple of observations on things canonical that deserve a brief response.

The 120 papal elector limit established by Pope Paul VI (not “informally” as suggested by Allen, see ap. con. Romano Pontifici 33) and renewed by Pope John Paul II (per ap. con. Universi Dominici 33), who often disregarded the limit, is about to be ignored by Francis. I agree with Allen that it’s time to abrogate that law but not because the limit itself is a bad idea but because legislating such a limit is bad idea. Popes should not pretend to bind themselves to laws that they are free to, and do, disregard because their disregard of law gives bad example to the faith community about the place of law in the Church—a bad example that Allen (along with many others) gives voice to.

Papal disregard of canon law is, per Allen, “a good reminder of the way law tends to work in Catholicism – often more of an ideal, really, than an actual expectation.” Balderdash.

Law in the Church is, among other things, an ordinance of reason, that is, canon law is an ordering, an establishment, a rule, and not simply an “ideal”, an inspiring goal, or a nice idea.

Granted the mechanisms for the enforcement of law in the Church often differ from those applied in secular law and such differences can sometimes make canon law appear to be something more akin to a list of “ideals” or suggestions, but that understanding fosters a very wrong conclusion about the nature of law in the Church. Add to the confusion based on appearances the scandal of canon law being disregarded or patently violated by some in Church governance over recent decades and, yes, I can see why Allen can echo what so many in Church life seem to think, namely, that Church law isn’t really law.

But they are wrong in assuming that canon law is not really law. Worse, the importance of law in the Church, the goods to be achieved by understanding those laws, and the benefits of applying good law correctly are being lost to the community for which canon law has been, and is, so carefully organized.

Rev. Sosa’s remarks on the devil warrant official response

The existence of the devil as a personal reality, and not merely as a symbol of evil, is an article of faith (Ott, Fundamentals 126-131; CCC 395, 2851). Denial of an article of faith is an element of the canonical crime of heresy (1983 CIC 751), an act punishable by measures up to and including excommunication, dismissal from the clerical state, and/or loss of ecclesiastical office (1983 CIC 1364, 194).

Rev. Arturo Sosa, sj, superior general of the Society of Jesus, denies the personal reality of the devil, describes him instead as a symbol of evil, and has expressed such views before (CNA article here, Catholic Herald article here). Protestations of Sosa’s orthodoxy by Jesuit spokesmen notwithstanding, Sosa speaks for himself, and clearly. I think his remarks warrant response, not just from bloggers and scholars, but from those placed in authority over such matters.

There are, I grant, some practical problems: the term “heresy” has been thrown around too loosely for some decades (perhaps for some centuries), the sanctions of excommunication and removal from office are themselves very weighty, and the latae sententiae (automatic) procedures by which such consequences are supposedly visited upon offenders are controversial in theory and practice, such that few in ecclesiastical leadership (including most orthodox members thereof!) wish to “pull the trigger” in such cases and, as a result, utterances such as Sosa’s provoke little, usually no, response from Church leaders with inevitable harm to the faithful.

What to do?

The Pio-Benedictine Code, perhaps alert to the dilemma that all-or-nothing penal canons posed for authority, had an interesting provision that allowed bishops and superiors to take action in likely heresy cases without invoking the full rigors of an excommunication process: 1917 CIC 2315 (see below) established the distinct criminal category of “suspicion of heresy” (my emphasis) that allowed Church authorities to demand formal clarifications and/or retractions from those whose utterances smacked of heresy without immediately requiring them to move to a full prosecution for heresy. If these formal requests for amendment were not heeded, of course, a full heresy case could then be undertaken. There are good discussions of “suspicion of heresy” in the standard commentators. Unfortunately, Canon 2315 of the 1917 Code did not survive into the 1983 Code. Pity, it would have been useful, I think, in a case like Sosa’s.

Even so, the elimination of “suspicion of heresy” as a penal category does not absolve today’s bishops of their duty “to propose and explain to the faithful the truths of the faith which are to be believed” and “to protect the integrity and unity of the faith to be believed” (1983 CIC 386). Indeed bishops are “to exercise vigilance so that abuses do not creep into ecclesiastical discipline, especially regarding the ministry of the word” (1983 CIC 392). It is commonly recognized that the phrase “ministry of the word” is code, if you will, for Church teaching, including her teaching of the personal existence of angels good and bad. An authoritative, direct contradiction of Sosa’s personal, direct errors is warranted, nay, I think required, from those principally responsible for the ministry of the word in their jurisdictions. They are two.

The bishop of the Diocese of Rimini (where Sosa’s made his latest remarks) should by now have “knowledge, which at least seems true, of a delict” namely, heresy, whereupon “he is carefully to inquire personally or though another suitable person about the facts” (1983 CIC 1412, 1717). Failure to act on such information as is available in the public forum would constitute, in my view, a dereliction of governing duty (see 1983 CIC 392, 1389). In addition, the bishop of Sosa’s place of residence is also competent to inquire into the Jesuit’s remarks denying the personal existence of the devil and, for that matter, on some other other topics (1983 CIC 1408). My understanding is that Sosa’s place of residence is Rome.

+ + +

1917 CIC 2315. One suspected of heresy, who, having been warned, does not remove the cause of suspicion, is prohibited from legitimate acts, if he is a cleric, moreover, the warning having been repeated without effect, he is suspended from things divine; but if within six months from contracting the penalty, the one suspected of heresy does not completely amend himself, let him be considered as a heretic, and liable to the penalties for heretics. (My trans.)


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.)

Be careful what you ask for: interim thoughts on recent claims that women face automatic excommunication for abortion

Dr. Monica Miller continues to insist that Catholic women are liable to automatic excommunication for abortion. I think this assertion is wrong and, in the detail necessary, I plan to respond to it. Meanwhile, though, I want to consider here a different question, namely, What if Miller is correct and potentially huge numbers of Catholic women around the world are excommunicated for having obtained an abortion?

While a range of reactions to such a prospect, from seeing it as proof of how dark are our days to muttering ‘Good riddance, serves them right’, seems possible, I want to suggest that Miller’s position would, if canonically correct (it’s not, but let’s suppose), provide the basis for its own repudiation. Briefly, what Miller and some others do not appreciate is that, the more Catholics are excommunicated for any offense, the less likely the Church is to continue punishing them that way. This is not mere academic speculation. It has happened before: the fact that great numbers of Catholics were committing an act punishable by automatic excommunication led the Church to admit the failure of a penal law approach to the problem and drop the excommunication for it. As usual, history illumines.

In 1884 the Third Council of Baltimore, in an attempt to stop Catholics from performing the then rare, but still evil, act of obtaining a divorce and attempting a civil marriage, enacted an automatic excommunication against such conduct (Acta, n. 124). Now, who knows, maybe the threat of automatic excommunication did dissuade some Catholics from divorcing and remarrying (Deo gratias). But with each passing decade the numbers of divorced-and-remarried Catholics continued to climb at rates nearly identical to those of the general population and, by the 1970s, literally millions of American Catholics were supposedly excommunicated.

Neither deterred from breaking the law nor spurred to seek forgiveness for having done so, many divorced and remarried Catholics instead boasted of their excommunication (I heard such claims myself), or, less confrontationally, they saw their excommunication as a excuse ‘to pay no more attention to a Church that has already kicked me out’. In time it became obvious that the canonical sanction attached to divorce and remarriage, whatever feasibility it might have enjoyed in its early years, had not only failed in preventing Catholics from divorcing and remarrying on a massive scale, it had actually become, canonically and pastorally, a hindrance to their reconciliation.

In 1977 the US bishops approached the Holy See and asked Pope Paul VI’s permission to abrogate the excommunication for divorce and remarriage. The pope consented, the Baltimore penal law was abrogated, and all of its excommunications were lifted (immediately per many but unquestionably within a couple years). CLD VIII: 1213-1214, and 1983 CIC 1313 § 2.

In dropping the excommunication for divorce and remarriage the Church did not, of course, change her teaching on the permanence of marriage nor did she recognize these second, pseudo-marriages; to this day, civilly divorced and remarried Catholics are prohibited holy Communion under the (non-penal) Canon 915. But, however irregular their situation, divorced and remarried Catholics no longer labor under the canonical and pastoral consequences of being automatically excommunicated for it and so their reconciliation with the Church, and with God, is thereby facilitated.

With the lesson of Baltimore in mind let’s now consider automatic excommunication in general and as threatened for abortion.

Of the seven automatic excommunications left in codified canon law, five of them—desecration of the Eucharist (c.1367), physical attack on the pope (c. 1370), absolution of an accomplice (c. 1378), illicit consecration of a bishop (c. 1382), and violation of seal by a confessor (c. 1388)—affect, legally or practically, only a tiny percentage of the Catholic population. Likewise with the few extra-codical automatic excommunications such as for procedural misconduct in a papal conclave or the attempted ordination of females. See ap. con. Universi dominici (1996) and CDF De delicto (2008).

Thus, only two automatic excommunications, abortion (c. 1398) and apostasy-heresy-schism (c. 1364), arise from acts that could be perpetrated by large numbers of Catholics. Of course, the crimes of apostasy-heresy-schism, though theoretically committable by large numbers of Catholics, would, if such rebellion ever erupted to the point of involving millions of Catholics as is the case with abortion, provoke crises in the Church quite beyond canonical. The Church has not suffered that sort of catastrophe for some centuries.

But the crime of abortion differs markedly from these other excommunication situations especially when one looks at the canonical situation of the women obtaining abortions.

Around the world, Catholic women obtaining abortions each day number in the hundreds, perhaps in the thousands, and they certainly amount to many millions over recent decades. Those assuming, or insisting, that mothers obtaining abortions are automatically excommunicated are not talking, therefore, about punishing the occasional corrupt cleric who absolved his accomplice or some lunatic who lunged at the pope; instead they are talking about the excommunication of staggering numbers of Catholic women.

Moreover, the act of obtaining an abortion, gravely evil to be sure (CCC 2270-2271), is nevertheless not marked with the anti-institutional animus inherent in, say, a bishop consecrating other bishops without Roman authorization, nor is it driven by the conscious ecclesial contrariness associated with formally repudiating one’s Christian identity (apostasy), contradicting divine revelation (heresy), or throwing off ecclesiastical jurisdiction (schism). Abortion, unlike all other excommunications (automatic or otherwise) in the 1983 Code, does not involve an attack on the Church’s sacraments, identity, or governing authority. Notwithstanding that abortion is a grave moral offense on par with murder, euthanasia, sexual-slavery, drug-trafficking, blasphemy, and devil-worship, only abortion is punished with automatic excommunication. That anomaly alone should give pause to any one concerned for the right operation of justice in the Church.

Thus, if Miller is right in asserting that Catholic women obtaining abortions are (subject to a few exceptions she concedes) automatically excommunicated for it, the Church would be faced with a failure of canon law global in scope, massive in numbers, and decades in the making; to a degree that would make the Baltimore excommunications seem like a misstep, the automatic excommunication asserted against women for abortion would manifest a juridic impotence that could only induce widespread contempt of law itself in the ecclesial community and complicate the reconciliation of those Catholic women who do, sooner or later, come to regret regret their abortion. Upon realizing the magnitude of such a canonical debacle, the Church would have no choice but to abrogate, or severely derogate from, Canon 1398.

If Miller is right. But, as I say (and tried to demonstrate here, but shall demonstrate in more detail elsewhere), she is not right.

Although Canon 1398 could be abrogated or at least derogated without doing damage to the Church’s witness to the value of innocent human life, I do not think that the canon needs to be dropped or substantively changed to prevent millions of Catholics from (supposedly) ending up the morass of latae sententiae excommunication. Canon 1398 is soundly written (pace its automatic operation) and it can be effectively applied by persons charged with the implementation of law in the Church.

Canon 1398, properly understood, stands as a witness against the carnage unleashed on pre-born human beings in the wake of modern States’ reprehensible abandonment of them. It provides a precedent for Roman canon law to imitate Eastern by making murder itself (notably euthanasia) an excommunicable offense (1990 CCEO 1450), albeit ferendae sententiae.

Canon 1398, properly understood, enables the canonical prosecution of abortionists and their accomplices toward excommunication. Right. Now.

Canon 1398, properly understood, enables the canonical prosecution of women procuring abortion toward sanctions other than excommunication (notably, interdict) in the highly unusual case that such prosecution could be warranted because of other factors.

Finally, Canon 1398, properly understood, does not threaten automatic excommunication against women caught up in abortion, and therefore these women are free of the canonically and pastorally complicating implications of being automatically excommunicated. A point, I grant, disputed by Miller.