Skip to content

Compared to Malta the Germans seem restrained, emphasis on ‘seem’

Displaying somewhat more scholarly technique than was shown in the Maltese Disaster (whereby that nation’s two bishops flatly contradict unbroken ecclesiastical observance by stating that holy Communion cannot be withheld from divorced-and-remarried Catholics, living sexually actively, if they feel “at peace with God”), the German Episcopal Conference statements on the implementation of Pope Francis’ Amoris laetitia just as effectively repudiate Canon 915 and the canonical-moral tradition that it represents.

More directly than do Amoris and the Buenos Aires plan, if less blatantly than do the Maltese, the Germans claim that no general rule exists (Für die Frage nach dem Empfang der Sakramente sehen die Bischöfe in Amoris laetitia keine allgemeine Regel und keinen Automatismus) to guide ministers of holy Communion when they are approached for the sacrament by divorced-and-remarried Catholics living sexually actively, that is, by those whom unanimous canonical and moral tradition recognize as ‘obstinately persevering in manifest grave sin’ (Canon 915, CCC 2384). 

In the alleged absence of a rule, say the Germans, a case-by-case discernment process should be conducted and, if the results of that process lead a sexually active, divorced-and-remarried Catholic to approach for holy Communion, “that decision must be respected” (Aber auch eine Entscheidung für den Sakramentenempfang gilt es zu respektieren)—less in-your-face phrasing, I grant, than the express Maltese claim that holy Communion cannot be withheld in such cases, but just as effectively a directive to ministers, under pain of disrespecting a decision that “must be respected”, to distribute holy Communion under circumstances unquestionably forbidden by the rule of Canon 915. Faithful ministers of holy Communion in Germany now join those in Malta as needing special prayers against the pressures they will inevitably face in the wake of their bishops’ failure to “urge the observance of all ecclesiastical laws … especially regarding … the celebration of the sacraments” (1983 CIC 392).

By the way, other passages in the German documents imply that Confession, too, might be sought in these cases, but without, it seems, requiring of penitents a ‘firm purpose of amendment’ (even in regard to voluntary sexual activity with a non-spouse). As I noted in HPR a few years back, this approach exposes the celebration of Penance to the risk of sacrilege and its minister to the charge of solicitation in confession.

I realize that some find “making a mess” to be a governing virtue, but it can hardly be denied that, in the wake of several ambiguities in Amoris, ambiguities that must be resolved, a spreading “mess” of Catholic sacramental practice in general and of the Church’s witness to the indissolubility of Christian marriage in particular, is being made, regardless of what anyone’s intentions might have been going into it.

Update: I need hardly say, not all German-speaking bishops endorse these conference statements. See, e.g, Chur’s bishop, Vitus Huonder.

When, please, were ‘adulterers’ actually ‘excommunicated’?

I hold amateurs to canonical standards when they venture canonical claims, so I certainly hold canonists to canonical standards when they venture canonical claims. Lawyers must respect the legal meaning of legal terms when discussing law, else, what’s the point of their expressing opinions on law?

Abp. Charles Scicluna, a highly credentialed canonist, recently asserted that “in the olden days, whoever was guilty of adultery was excommunicated. It was a proper excommunication. But now, in the Church’s law this is not so any longer…”

The phrase “olden days” does not have a canonical meaning, of course, but words like “adultery”, “excommunication”, and “Church law” do have canonical meanings. So here we have a canonist-prelate, while defending his shocking implementation of Amoris laetitia, contrasting his modern approach with a time wherein, supposedly, Church law punished adultery with excommunication.

But, may I ask, does any one actually know such days? Does Amoris and/or Scicluna’s implementation of it, represent a dramatic shift in how the Church has, till recently as far as anyone is aware, regarded certain Catholics? Let’s see.

The Johanno-Pauline Code of Canon Law, which is already 34 years old, does not excommunicate Catholics for adultery. Adultery is mentioned in only one canon of the 1983 Code (1983 CIC 1152) where it provides grounds for spouses to separate but not for an offender’s excommunication.

But perhaps Abp. Scicluna has in mind older olden days.

The Pio-Benedictine Code of Canon Law, which went into effect 100 years ago, did not excommunicate Catholics for adultery. The 1917 Code did criminalize adultery in c. 2357 § 2—using language that suggested that the adultery had to have been a crime under local civil law (see Dom Augustine, VIII: 415, but see Sipos, 860)—but even so, the canonical penalty for adultery was not excommunication, it was “exclusion from legitimate ecclesiastical acts until [the adulterer] gives a sign of returning to his senses.” And the “legitimate ecclesiastical acts” from which those convicted of adultery were excluded, you ask: things like working as a Church property administrator or as an ecclesiastical notary, or serving as a godparent at baptism (1917 CIC 2256, 2º)—i.e., things having little to do with excommunication.

But perhaps Abp. Scicluna has in mind even older olden days.

A good place to look for pre-1917 excommunications is Bl. Pius IX, const. Apostolicae Sedis moderatione (1869), in Gasparri, Fontes III: 24-31, but Pius’ reformed list of censures (including many excommunications) does not mention adultery. Is it possible that some universal excommunications survived the promulgation of ASM and that some of those excommunications dealt with adultery at least up until 1917? I suppose, but given that ASM does not mention adultery among the acts occasioning excommunication, the burden falls on those who would make that claim.

Having looked back, now, nearly 150 years and having found no evidence that adultery was canonically punishable by “a proper excommunication”, I have to wonder whether the archbishop really meant “adultery” when he said “adultery” (or did he mean perhaps “divorced-and-remarried” instead of “adultery”, two related but distinct phenomena?); whether he really meant “excommunication” when he said “excommunication” (or did he mean perhaps “withholding holy Communion” instead of “excommunication”, two significantly distinct phenomena); or whether he really meant “Church’s law” when he said “Church’s law” (or did he mean perhaps “particular legislation”, two rather distinct phenomena)?

Each of those topics can be, and should be!, usefully discussed in the context of Amoris, but that can’t happen until we are sure about what matters are on the table for discussion at any given point.

In sum, perhaps someone can let us know where canon law excommunicated Catholics for adultery; or perhaps someone can clarify whether the words used in this part of the archbishop’s interview expressed what he really meant; or perhaps the claim that Church law imposed excommunication on those who committed adultery, at least in the memory of anyone alive today, could be acknowledged as mistaken and withdrawn. Progress can be made, I think, by following any of these options.

An afterthought: by extending the notion of the “olden days” back several centuries to, say, the Council of Trent (ref. XXIV, chap. 8), one can find sanctions threatened against persons (including married persons) living in concubinage and thus one can see a form of “adultery” punishable by censures up to and including excommunication. Now, whether a Tridentine legacy on a socially noisome form of adultery (a norm that seems, in any case, to have been abandoned 100-150 years ago) justifies the Maltese bishops’ recent evisceration of Canon 915 in face of divorced-and-remarried Catholics (and inexorably before anyone who feels “at peace with God”), remains to be seen. One wonders just how old the “olden days” can be and still so vex people who never lived under them to the point that a modern norm such as Canon 915 and the values it protects today must be jettisoned. But as above, one has to know that’s what’s on the table for discussion before being able to discuss it usefully.

Do footnotes count?

Fr. Regis Scanlon, in a column that makes several interesting criticisms of Amoris laetitia, offers a comment that I think requires more than his simple claim.

In criticizing the very regrettable Amoris footnote 329, which I criticized in my first comments on Amoris, Scanlon writes “Since footnotes are not part of the text, footnote 329 is probably not the work of the pope or the magisterium.”

Come again? Footnotes are not part of this duly published papal text? How is that, I wonder.

Granted, footnotes usually supply bare references to the sources underlying the assertions made in the main body of a text and so are not typically used for making substantive assertions on their own. But does such an adjectival footnote convention mean that footnotes cannot make assertions if that is in fact how they read?

Looking at, say, the documents of the Second Vatican Council, one sees that, while most conciliar footnotes were merely informational in nature, some did make substantive assertions of their own and a few even carried legal consequences.

For example, footnote # 1 of Optatam totius (Decree on Training of Priests, 1965) states “It is clear from the words by which our divine Lord appointed the apostles [that]… the progress of the whole People of God depends in the highest degree on the ministry of priests.” That is unquestionably a conciliar teaching assertion, albeit one made in a footnote. Optatam footnote # 2 directs that future adaptations in priestly formation programs should be made by episcopal conferences and competent religious superiors (which is what happened), and Optatam footnote # 12 expressly abrogated Canon 1357 § 4 of the Pio-Benedictine Code of Canon Law. Clearly, such footnotes were making substantive assertions on par with those in the main text.

To be sure, the footnotes of some ecclesiastical documents are recognized as not carrying substantive force. The footnotes of the Johanno-Pauline Code, for example, were not even available when it was published in 1983, and when they did finally appear in late 1989, Cdl. Castillo-Lara underscored that they were of private, albeit scholarly, value. Bouscaren & Ellis (1957) at p. 6 made this same point in regard to the footnotes of the 1917 Code.

But simply claiming that footnotes in a papal text are not part of the text, besides being unsubstantiated in itself, seems also to raise serious questions about the value of footnotes in numerous other papal texts. In footnote # 100 in Veritatis splendor (1993), for example Pope St. John Paul II states that Pope St. John XXIII’s opening address to the Second Vatican Council, though dealing with questions about formulating doctrine, can also be applied to formulations of moral principles. Well, does John Paul II hold that his predecessor’s teachings can be so understood, or does he not?

For that matter, Pope Francis himself makes several assertions in the footnotes of Amoris that it would seem strained to dismiss as not reflecting his thoughts. In Amoris footnote # 351, for example, Francis quotes himself to the effect that the Eucharist should be made widely available to the faithful, in Amoris footnote # 364 he warns against priests exaggerating the demands associated with purpose of amendment in the confessional, and in Amoris footnote # 378 he calls attention to the espousal/betrothal character of God’s covenant with his people. Should these observations, too, be dismissed as not contributing to Francis’ magisterium?

Perhaps Scanlon has in mind a convention for reading certain kinds of ecclesiastical texts of which I am unaware; if so, I look forward to learning of it. Till then, I think that Amoris laetitia needs to be read as the whole it appears to be and its problems confronted, not avoided.

Maybe ‘adjusting’ Canon 915 is not such a good idea after all

The chief problem with electronic publishing is that writers and editors, no longer limited by the physical capacity of pages to contain words, now crank out copy with abandon. Stephan Walford’s +5,000 word editorial on Amoris laetitia contains, I suggest, numerous incomplete and misleading comments on a wide variety of complex and controversial topics, but responding to them in anything like completeness is simply impossible. So, I’ll do what I can here on the chance it helps someone out there and go on to my next project.

I begin, however, by wasting a few words of my own and ask: why do Walford and/or Vatican Insider think it important to note that Walford is “a pianist and teacher”? How does Walford’s being “a pianist” make his thoughts on Amoris presumably more worth reading? I’m a clarinetist. Are my thoughts on Amoris more (or less?) valuable for that? And why point out that Walford is “a teacher” without mentioning what he teaches or to whom? Does simply being “a teacher” qualify one to opine at great length on whatever topic one chooses to discuss? But enough musing.

To provide responses to even some of Walford’s incomplete and misleading comments on the numerous canonical, moral, and sacramental issues he purports to address is not possible without my first providing a mini-tutorial in each of these areas—and I decline to do that if only out of respect for the depth study that is actually required to appreciate the Church’s deep wisdom in these matters. Still, those bringing such backgrounds to this debate will, I trust, recognize, for example, that (1) Seper, unusually for his generation, might have mis-presented what the “internal forum solution” required, but Hamer’s ‘clarification’ of Seper’s comment clearly reasserted the traditional understanding, an understanding that obtained in ecclesiastical governing circles until just a couple years ago; (2) anything an ecclesiastic speaking carefully says about “conjugal chastity” has virtually no bearing on the analysis of the non-conjugal sex engaged in by non-married persons; (3) conscience cases over the use of contraception deal with canonically “occult” sin while Communion cases among divorced-and-remarried Catholics deal with canonically “manifest” sin, different situations requiring different responses; (4) a “homosexual orientation” might be a personal state but being divorced and remarried is a public status, which distinction would trigger different kinds of analysis; (5) while Pope Francis “has not changed in the slightest the teaching on mortal sin” he has arguably misapplied that teaching, or has allowed it to be misapplied by others, to a situation wherein it simply does not apply (Canon 915); and so on and so on.

Walford makes a few startling assertions of his own (such as claiming that “a priest who discerns and guides a penitent can discern the situation and amount of subjective guilt, thus they are aware if mortal sin is present or not” !), but the above should suffice to show that Walford’s comments are liable to more than quibbling rebuttals. I recognize, of course, that Walford (unlike most other non-canonists writing on Amoris) has made some efforts to look at how today’s questions were framed in the past but I suggest that he does not bring sufficient awareness of what those terms and phrases meant to professionals in their day so as to convey sufficiently how they need to be understood by pastors in ours.

That said, Walford makes one comment in passing that is illustrative, I think, of the dangers to which amateurs’ suggestions about law are prone. Walford says, “I accept that canon 915 may need adjusting if the Holy Father sees fit …”

Oh, really? Canon 915 “may need adjusting”, may need changes in its wording, I take this to mean. Alright, let’s think about that.

Canon 915, as has been explained many times, restricts the basic right of the Christian faithful to receive holy Communion. Like all restrictions on the exercise of fundamental rights, the terms of Canon 915 must be read ‘strictly’ so as not to curtail illegally the rights of the faithful. Every one of the five qualifiers in Canon 915—obstinacy, perseverance, manifest-ness, gravity, and sinfulness, as those precisely refined terms have been used by the canonico-moral tradition (and not necessarily as non-specialists might understand them)—must be satisfied before holy Communion can and must be withheld from a member of the faithful. Remove any, let alone several, of the qualifiers from the criteria set out in Canon 915 and, as a matter of law, the restrictions on access to holy Communion expand, not contract.

So which word or words, one wonders, might Walford like to see changed in Canon 915?

If we drop, say, the word “sin” from Canon 915, we would authorize ministers to withhold holy Communion from would-be communicants whose, say, mannerisms or attitudes irritate us.

If we drop the word “grave” from the law, then those in light or common sin need also to be rejected.

If we drop the word “manifest”, then even occult sinners (a concept Walford blurred above) would have to be publically banned from holy Communion.

If we drop the notion of “perseverance”, then those in one-time or occasional sin must be prevented by ministers from taking holy Communion.

And if we do not care whether public sinners have actual or construed knowledge of the wrongness of their conduct, we could eliminate the word “obstinate” from the law.

Which of those adjustments to Canon 915 might Walford support? I hope, none.

But perhaps Wolford has in mind not changing Canon 915 (so much for his call to “adjust” the law) but rather, effectively supports repealing CCC 2384 and the tradition behind it such that post-divorce civil remarriage is no longer understood as “permanent and public adultery” (and thus is not a sin, and thus Canon 915 does not apply). I trust it is obvious, though, that this approach strikes not at sacramental discipline as reflected in Canon 915 but at the sacramental doctrine being protected by the canon. Such a proposal, in any case, would need to go to someone higher in the Church than a blogging canon lawyer.

In sum, Canon 915 summarizes many centuries of ministerial reflection on doctrine and pastoral practice. That accumulated wisdom is not available to ministers and faithful, though, if its terms, singly and in combination, are subject to tweaking by people who seem inadequately to understand them and who seem to appreciate only in part what lies behind them.

All this, in one-fifth of Walford’s word count. :)

Three ways to not deal with Canon 915

Any canonist citing canon law in defense of doctrine or discipline these days should expect to be compared to a Pharisee and tritely accused of ‘throwing the law at pastoral problems’. Antinomianism, you see, which has taken hold in many places, routinely regards the invocation of inconvenient laws as an act of moral violence and usually views lawyers as hypocrites suffering from psychological disorders. Oh well, let’s talk about a canonical issue with profound implications for the Church in our day, shall we?

Specifically in regard to the debate over admitting divorced-and-remarried Catholics to holy Communion, a steady ‘dissing’ of canon law is crucial because canon law—and the centuries of accumulated pastoral wisdom and doctrinal clarity that it represents—lies directly athwart the campaign to admit Catholics to Eucharistic communion on their own terms instead of on Christ’s terms and the Church’s. Whatever damage to Catholic doctrine and discipline some might spy down the road—say, abandoning the indissolubility of Christian marriage, eliminating repentance as a condition for forgiveness of sin, absolutizing private conscience against public order, usurping the Church’s authority over the sacraments, and so on—it all begins by admitting divorced-and-remarried Catholics to Eucharistic communion upon, in the final analysis, their own assessment of their own conscience, chiefly by using Amoris laetitia as cover.

Canon 915, however, as has been explained many times, forbids the distribution of holy Communion to those who “obstinately persevere in manifest grave sin” and, because ecclesiastical tradition is unanimous that divorced-and-remarried Catholics figure among those who “obstinately persevere in manifest grave sin” (CCC 2384), this law poses a major problem for the ‘pro-Amoris’ wing. To deal with that problem, three approaches to Canon 915 have, I think, emerged.

# 1. Ignore Canon 915. This is the approach followed in Amoris laetitia itself and by, say, the Buenos Aires plan. Passing over Canon 915 in silence offers two advantages: first, the Communion-admission debate can be steered almost exclusively toward prolix discussions of personal conscience (about which there is always one more thing to say); second, bishops and pastors who, faithful to the Catholic sacramental order, affirm that holy Communion must be withheld in these cases, can do so without directly running afoul of any clear assertion in Amoris. But see # 3 below.

# 2. Belittle Canon 915. This approach marks most essays by amateurs and appears variously as a patronizing tsk-tsking of any benighted enough to think that law has something to do with life, or nigh-on clueless comments about the canon, and occasionally old-fashioned ridicule of canon law. Belittling Canon 915 taps into the antinomianism now running through the Church and it appeals both to writers unequipped to discuss competently the complex matters at hand and to readers unequipped to recognize that emotion is being substituted for reason.

# 3. Violate Canon 915. This is the approach recently approved by the bishops of Malta in stating that holy Communion cannot be withheld in these cases but, as noted here, their action does not run directly afoul of Amoris for the simple reason that Amoris said nothing about Canon 915. Precisely in that both # 1 and # 3 can be sustained by appeals to Amoris leads me to agree with the Four Cardinals that, on this point anyway, the ambiguity in Amoris is irresolvable and thus the document urgently requires official clarification.

That all three approaches to Canon 915 are unacceptable seems self-evident to me but I cannot reinvent my arguments for so holding every time a new name wades into this fray. I trust my writings thus far can be located by those who wish to be better informed. Still I thought it useful to pause for a few minutes and to suggest that the ‘pro-Amoris’ wing really does know that Canon 915 summarizes what stands between them and their goals and that they have developed, therefore, three (albeit unacceptable) ways to not deal with that ancient rule.

Fixing things the wrong way

[Post-scriptum: I see now an editorial note from CRUX admitting the misquotation and subsequent correction. My objections to Ivereigh’s essay as being irrelevant to the Amoris debate in light of his omission stand, but the journalistic mistake (correcting an important error without noting it is a correction) I accept as remedied.]

On January 15 CRUX contributing editor Austen Ivereigh penned a mellifluous essay on the role of conscience in regard to holy Communion for divorced-and-remarried Catholics under Amoris laetitia in which essay he mentioned, but fatally misquoted, the central canonical norm in this debate, Canon 915, by leaving out the crucial qualifier in Canon 915, the word “manifest”, which word moves the question of Communion distribution out of the realm of conscience (where Ivereigh wants to leave it) and into the realm of public conduct where ecclesiastical tradition has always located it.

On January 16 I called Ivereigh on his misrepresentation of the law, pointing out that no discussion of the ecclesial values behind Canon 915 is possible if the word “manifest” is omitted from its text. I did not speculate as to why Ivereigh left out the crucial word, but at least two possibilities presented themselves: (1) Ivereigh was unaware that the word “manifest” was in the norm, in which case he could plausibly, if still incorrectly, opine away about the role of conscience as if that were the only criterion at issue here; or (2) Ivereigh knew the word “manifest” was there but, not realizing its importance, he forgot about it on his to way to plausibly, if still incorrectly, opining away about the role of conscience as if that were the only criterion at issue here. Either explanation, in my view, disqualifies Ivereigh’s CRUX essay from being taken as a serious contribution to this debate, but neither theory calls into question his motives for writing as he did.

On January 17, however, I see that Ivereigh (or CRUX?) has quietly slipped the word “manifest” back into the Canon 915 quote but, as far as I can tell, the rest of Ivereigh’s essay remains untouched—as if to say, Okay, fine, the word “manifest” is in the law, and yes, it’s apparently important enough to repair the quote, but no, I (or CRUX) don’t care that it renders essentially pointless the original essay for its failure to grapple with the now obviously crucial implications of the word “manifest” in Canon 915 regarding Communion distribution questions. I ask, is this how one rights journalistic wrongs?

My objection to Ivereigh (or CRUX) adding the word “manifest” to the essay, is not, I need hardly say, an objection to repairing a false quote per se. Electronic media lends itself to fixing typos and besides, accuracy before the reading public is to be valued over avoiding authorial embarrassment. But, quietly adding an omitted, yet absolutely crucial, word to a key quotation, without admitting that it was originally misrepresented (besides making CRUX readers unfairly question their own correct recollections of the essay) implies that such misstatements, in the midst of a tempestuous debate no less, are on a par with spelling mistakes or awkward auxiliary verb tenses. Sorry, but Ivereigh’s misrepresentation of Canon 915 went far beyond the typo stage.

In short, Option One for accounting for Ivereigh’s original phrasing is gone. He clearly knows the word “manifest” is in the law. That leaves, I suppose, Option Two, Ivereigh still does not realize the importance of the word (in which case he needs to do some serious study of this matter) or, I fear, it suggests an Option Three, Ivereigh doesn’t care about the implications of the law’s focus on public acts (instead of on personal conscience assessment) in Communion distribution questions (in which case other things Ivereigh might wish to say about the role of law in the Church should be questioned).

Discussing law with people who don’t know what it actually says

Austen Ivereigh, in a Crux essay that adds little of substance to what has been said over and over again in regard to Amoris laetitia, fatally misquotes the central canon at issue in the Amoris debate. His misrepresentation of the law illustrates better than anything I could say here about why the Amoris debate is becoming, to use Ivereigh’s term, so infuriating for defenders of ecclesiastical tradition. The ‘pro-Amoris’ wing simply does not know, or care, what the law in question actually says.

Ivereigh writes:

“Amoris never questions either Canon 915, which demands that Communion be withheld from those who “obstinately persevere in grave sin,” nor the following canon, that people conscious of grave sin should not present themselves to receive Communion… But while Amoris is very clear about not wanting to create new norms or laws, it is also very clear about fostering a new attitude.”

First Amoris never “questions” Canon 915 because it never mentions Canon 915!, but much more importantly—and crucially for his essay—Ivereigh misquotes the text of Canon 915 in regard to the central issue here. Canon 915 does NOT say that holy Communion must be withheld from those who “obstinately persevere in grave sin”, it says that holy Communion must be withheld from those who “obstinately persevere in manifest grave sin”.

The difference, as has been explained copiously, is night and day.

Canon 915, controlling a minister’s decision to give holy Communion to a would-be communicant, is not, not, not, about reading communicants’ personal consciences (as if ministers could do that anyway), it is about assessing a would-be communicants’ public behavior (such as their having entered civil marriage subsequent to divorce). Thus, virtually all of the Amoris discussions about individual assessments of conscience or, as the Maltese bishops put it, about “being at peace with God” (points that might figure in the application of Canon 916), is irrelevant to the operation of Canon 915, the modern canon resting on ancient roots that prevents ministers from giving holy Communion to Catholics in these circumstances. But it’s impossible to discuss the implications of the legal qualifier “manifest” in Canon 915 if public figures such as Ivereigh don’t even admit the word is there.

Misrepresenting the plain text of canon law on the central point at issue in the Amoris debate is not, I suggest, how should one go “about fostering a new attitude” toward law.


Fixing things the wrong way (17 Jan 2017), here.

The Maltese directive makes answering the ‘dubia’ urgent, Catholic World Report Dispatch (15 Jan 2017)  here.

The Maltese disaster, Catholic World Report Dispatch (13 Jan 2017) here; EWTN Great Britain (14 Jan 2017) here.