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It’s not impossible, just very difficult, to glean ‘heresy’ from conduct

My observation that Archbishop Blase Cupich of Chicago is not a “heretic” exposed considerable misunderstanding about the notion of “heresy”. Confusion on this matter should surprise no one, for antinomian times, such as those obtaining now, discourage wider familiarity with certain basic terms of ecclesiastical discourse. Among the comments I have received, some run along these lines: “Just look at everything Abp. Cupich does! If he’s not heretic, no one is!”

Oh dear. Shall we examine this claim in light of what the law actually says?

Three points: (1) “Heretic” is not a term used to describe, say, a prelate who one thinks is doing a bad job, but rather, denotes someone given to “the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith” (Canon 751). (2) “Heresy” is not a ‘bad attitude’ but a crime punishable by a latae sententiae excommunication (and yes, automatic sanctions should be abolished from Roman canon law as they have been from Eastern, but the sanction itself—as opposed to the non-process by which it is supposedly incurred—reflects the gravity of the crime). And (3) a variety of canons (e.g., 18, 221 § 3, and several besides) protect the faithful against the unjust infliction of sanctions in the Church. In short, “heresy” means something very specific in canon law and there are criteria for using the word correctly.

Now, setting aside the what “is to be believed” (we’ll take an easy example below), the vast majority of heresy cases with which I am familiar took as their occasion a speech or writing, that is, a verbal proposition or assertion: “Jesus was not God” or “Mary had other children by Joseph” and so on. These assertions directly present, or logically and unequivocally amount to, the ‘doubt or denial’ of a protected truth that, if uttered under the circumstances outlined in Canon 751, constitute heresy—but only such assertions and only if uttered under such circumstances.

Our question here is: can physical actions or a manner of conduct amount to a verbal assertion of the sort qualifying as heresy? Possibly. Let’s take a case wherein there is no question about what is to be believed with divine and Catholic faith.

Suppose a Catholic, contrary to CCC 1374, does not accept that Jesus is present Body, Blood, Soul, and Divinity, in the Eucharist. He never expresses this opinion in words but steadfastly refuses to make a sign of reverence when passing before a tabernacle. In such a case, his action/omission accurately reflects his heretical views, yes—but, is it not obvious that the evidentiary problems (of trying to parlay someone’s failure to genuflect when passing before a tabernacle into proof of the crime of heresy) are almost insurmountable? In this case, the action or omission might well be evidence of heresy but it is not remotely proof of the crime.

Let’s take a more graphic case: the same man, disgusted by what he regards as idolatry of a piece of bread, breaks open the tabernacle and scatters the hosts on the ground. Some might say, “If that is not proof of a Eucharistic heresy, what would be?” In one sense, they are correct, for scattering hosts on the ground as if they were nothing but bits of bread would be strong evidence of a certain Eucharistic heresy. But here’s the problem: the exact same action—stealing hosts and scattering them on the ground—could be committed by someone who thoroughly believes in the presence of Christ in the Eucharist but does the evil act as a gesture of contempt for Jesus! We see, thus, that without words, or without a very wide and sustained pattern of activity/omission, it is very difficult (not impossible, but very difficult), to glean heresy from someone’s conduct. The burden is on the accuser to prove charges, especially serious charges, and proving heresy by words is, as it should be, difficult; but proving heresy solely by actions or omissions, even repeated ones, is very difficult.

Mind, one’s deleterious actions or omissions might be evidence of other canonical crimes (e.g., as above, sacrilege, per c. 1367) or, as suggested in my earlier post, pastoral negligence (e.g., failure to urge the observance of ecclesiastical discipline per c. 392), but heresy?

I don’t think so. In most heresy cases, words speak louder than actions.

Clergy have consciences, too

Chicago Archbishop Blase Cupich is not a heretic. Although that adjective is being tossed his way with some frequency these days, there is no evidence that Cupich doubts or denies some doctrine that must be believed with divine and Catholic faith (1983 CIC 751) and so he is not, as far as I can see, a heretic.

But if Cupich really has, as reported here, doubled down on his earlier intimations that, among others, divorced-and-remarried Catholics and Catholics living in ‘same-sex marriages’ should, and must be allowed to, ‘follow their conscience’ even if their conscience leads them to the proverbial communion rail, then he is misrepresenting Church teaching on marriage—which holds marriage to be a permanent union between a man and a woman (1983 CIC 1055, 1056)—and is failing to urge the observance of all ecclesiastical laws (1983 CIC 392), among which laws two are especially relevant in approaching for, and being given, holy Communion, namely, Canons 915 and 916.

As has been explained many, many, many times, Canon 916 impacts the individual considering approaching for holy Communion and directs those “conscious of grave sin” to refrain from approaching for the Sacrament. Individuals must form their consciences in accord with Church teaching and, yes, Cupich alludes to “Church teaching” in underscoring the fundamentality of conscience, but he fails, I fear, to point out, among other things, that conscience is used largely to assess whether one’s concrete action in a given situation accords with Church teaching—not to determine whether one agrees with or accepts Church teaching in the first place.

Canon 915, however, in contrast with Canon 916, directs ministers of holy Communion to withhold the Sacrament, not from “sinners” per se (as if ministers could read souls!), but rather, from those who “obstinately persevere in manifest grave sin”. Now there is zero doubt but that, in Catholic tradition, attempting marriage following a civil divorce and/or entering a “same-sex marriage” is to undertake the kind of gravely wrong public action that triggers ministerial obligations under Canon 915. Thus, when Cupich (and he is not alone in talking this way) says “It’s not up to any minister who is distributing the Eucharist to make a decision about a person’s worthiness or lack of worthiness” he misses the point: a minister is not assessing personal “worthiness” when withholding holy Communion from one’s whose conduct is described in Canon 915, but rather, is acting in accord with an age-old sacramental discipline designed to protect both the Sacrament from the risk of possible sacrilege and the faith community from the harm of classical scandal caused by someone’s public contrarian conduct.

Finally, recognizing the sharp differences between Canon 916 (impacting individuals) and Canon 915 (impacting ministers) allows us to make one last point: amid all the discussion of the primacy of conscience it seems almost forgotten that clergy have consciences, too. Many clerics, Deo gratias, and other ministers of the Eucharist, recognize the significance of their sacramental office and know—as all Catholics should know—that their actions, too, are carried out before a God who sees all. These ministers understand Church doctrine and discipline on marriage, Communion, conscience, and liturgical office, and they wish to act in accord with those teachings and laws, even in the face of growing pressure to disregard these considerations and despite the lack of support some experience from Church leadership.

Their consciences, too, I suggest, deserve respect.

If we do discuss ‘clerical celibacy’, let’s really discuss it

The ever-informed Sandro Magister suggests that the next Synod of Bishops will treat “married priests”. After seeing what the last two synods did with non-negotiable matters such as extending Eucharistic communion to divorced-and-remarried Catholics—something that should never have been debated, but was debated, with negative consequences for the faithful’s understanding of Church teaching and discipline in several areas—I do not relish seeing a crucial-but-negotiable matter (such as married clergy) treated in a synod any time soon. But on the chance that Magistro is right let me suggest three areas that, in regard to married clergy, would require careful study.

1. Clerical continence. Western tradition, and the canon law that upholds that tradition, calls without question for a completely sexually-continent clergy. Yet, in the space of one generation (at most two) that shining observance has been inadvertently but completely forgotten, first among tens of thousands of married deacons and now among thousands of married priests. No coherent synodal discussion of clerical celibacy can take place without deciding, once and for all, whether “perfect and perpetual continence” (1983 CIC 277 §1) grounds that discipline. Naturally—and though I limit my contribution to this discussion to matters of law which, as we know, often protects truths it does not articulate—the canonical question of clerical continence will eventually turn, I suspect, on a deeper theological understanding of the character of priest as Spouse and on the nuptial imagery of his actions in the Eucharistic sacrifice.

2. Clerical celibacy. Besides the unspoken (unspoken because, until a few decades ago, it was so obvious) foundation that clerical continence provides for clerical celibacy, most defenses of clerical celibacy have turned on practical matters such as the higher costs of married clergy and the complications that married life bring to ordained ministry. While interesting, such secondary concerns do not persuade that clerical celibacy is itself a good to be pursued. Recently, however, canon law and ecclesiastical literature has begun to recognize celibacy itself as “a special gift of God” (1983 CIC 277 § 1), suggesting that clerical celibacy, besides working in support of the more central value of clerical continence, and besides offering some practical advantages to Church administrators, is a value worth studying, embracing, and sharing. Clerical celibacy qua celibacy, therefore, must be treated by a synod, and not just celibacy qua fence-around-the-law of continence, or celibacy qua cost-savings scheme for ministers.

3. Eastern approaches to married clergy. I say Eastern “approaches” to married clergy because there is not, contrary to popular impression, just one approach among Eastern Catholics. Not all Eastern Churches allow married clergy, and among those that do permit it, not all clerics marry. Still, Eastern Catholic Churches generally accept married men into holy Orders and allow those men to live more conjugato. Now, for reasons that go beyond canonical, Rome has long steered clear of directly addressing how a married, and essentially non-continent, clergy took hold in the East (though most eyes look back to the controversial Synod of Trullo) and asking, in that light, whether this practice should be merely tolerated, mutually respected, or positively protected. A synod purporting to treat of clerical celibacy in the Catholic Church must honestly address the divergence between East and West in this regard.

In sum, the degree to which a synod (if one is called) on clerical celibacy addresses, or avoids, clerical continence, celibacy in its own right, and Eastern observances, will be the degree to which a synod may be taken as competently considering clerical celibacy. + + +

Unus ex Patribus [in Coetu de S. Hierarchia] animadvertit in historia Ecclesiam fuisse reformatam quando in honorem restituta fuit lex coelibatus. Communicationes XVI: 177.

Most words are not crimes

I am not sure what Archbishop Rino Fisichella meant when he said that “we need to understand well ‘physical violence’ [against the pope] because sometimes words, too, are rocks and stones, and therefore I believe some of these sins, too, are far more widespread than we might think.” Yes, we do need to understand the terms of law well but, as the prelate was speaking in the context of faculties to absolve from automatic excommunications, and as there is an automatic excommunication against those who employ physical force against the pope (1983 CIC 1370 § 1), I am guessing that Fisichella might be thinking that ‘harsh language’ against the pope is a canonical crime that makes one liable to excommunication. If so, he is mistaken.

Besides Canon 17 that requires canons to be understood in accord with the proper meaning of their words, and Canon 18 that requires penal canons to be read strictly (i.e., as narrowly as reasonably possible), and Canon 221 § 3 that protects the faithful against canonical penalties not authorized by law, the whole of Book Six of the 1983 Code is redolent with an emphasis (some might say, to an exaggerated degree) on benignity in the application of penalties in the Church.

Now, Canon 1370 criminalizes “vim physicam” against the pope, not “verba aspera” or variants thereon, and I know of no canonical commentary that includes “words” as a species of “physical force” in this context. Indeed, the CLSA New Commentary, the Exegetical Commentary, the Ancora Commentary, and the Urbaniana Commentary—at which point I stopped looking—expressly exclude ‘verbal violence’ from the range of actions penalized under Canon 1370.

To be sure, hateful speech directed against any one is objectively sinful, and if directed against a man of God, let alone a pope, it is especially wrong. Occasionally, speech might rise to level of crime (see e.g., Canon 1369 on expressing insults against the Church or Canon 1373 on inciting animosity against the Apostolic See) but the penalties in such cases are not automatic and do not extend to excommunication. Usually, verbal hate is just a sin (if I may put it that way) not a crime.

Priests may be assured, then, that if penitents confess uttering hateful words against the Holy Father, they may reconcile such sinners in the normal course of the sacrament and need invoke no special faculties or powers to absolve of sin or (non-existent) crime.

Et poenae latae sententiae delendae sunt.

One city does not make a world

The bi-annual papal blessing “Urbi et Orbi”—to the City (meaning Rome, of course) and to the World—is a charming Catholic event reflecting the solicitude a pope feels for the City entrusted to his episcopal care and the World entrusted to his papal. The Italians’ gift for irony, however, has—so I am told—led to the quip that, from time to time, some popes confuse “the City” with “the World”, meaning that, Roman experiences and perspectives are not always applicable to the rest of the world, though they are sometimes treated as if they were. Humorously the quip makes an important point for Church administration, especially administration at the international level: one locale’s situation is rarely identical to another’s; one prelate’s experiences are rarely identical to another’s.

Dr. Kurt Martens is an internationally-respected Belgian canon lawyer who, for the last ten years, has taught canon law at the Catholic University of America. His brief reflections on the recent canonical conference in Rome, a conference focused on Pope Francis’ changes to the annulment process (due to take effect in about three days), are well worth reading. They expressly reinforce, moreover, in regard to a canonical institute about which I know quite a bit (annulment procedures), a wider concern I have about Francis’ consistently negative approach to law and lawyers, namely, that Francis is treating canon law around the world as if it operates (or fails to operate) as he apparently experienced it in Argentina. If that is so (and that is the more benign interpretation that can be accorded Francis’ oft-invoked antinomian rhetoric), then the pope’s approach to universal annulment reforms would rest on a fundamentally flawed assumption.

Canon law, the oldest continuously-functioning legal system in the Western world, is an international legal system tasked with and capable of functioning across hundreds of civil legal jurisdictions, amid thousands of ethnic and linguistic groups of Catholics (each with their own historical and cultural experiences), at the hands of inconsistently-trained officers facing millions of judicial and pastoral decisions annually. Canon law is not and never could be always uniformly well-practiced. That is a patently impossible standard to hold any legal system to meet, let alone one with the responsibilities borne by the Church’s legal system. But, though one’s experience of canon law in a certain place (and largely in one context, marriage nullity) over a period of a few years was unsatisfactory, that would be a wholly insufficient reason to assume that all canonical cases around the world are handled as (allegedly) badly as the (relatively) few cases one might have observed in that one place.

The pope has related some hardships (bordering on the scandalous) that he says faced Catholics wishing to have their marriages adjudicated in Argentina. I believe him, and have said so. But I have yet to hear a single papal (or pontifically affiliated) comment to the effect that the annulment process can work, and does work, and does work well, at least in some places, if not in many! Re-sound some apparently skewered experiences of canonical tribunals in one place within an echo chamber of close advisors who also seem to have little interest in law or in the benefits that law brings to the Church, and thus extrapolate too hastily from the experiences of one City (Buenos Aires) to the experiences of the World, and no wonder there result such confusion and concern in the wake of reforms meant to “fix” an entire system—much of which system might not have been broken!

Of Pharisees, ferverinos, and fasts

In today’s [15 dec 2014] homily Pope Francis warns, yet again, about the threat that he feels modern Pharisees pose in the Church. Now, some people think that the pope’s incessant critiques of law and lawyers are spot-on; others feel that, while an occasional papal caution against ‘pharisaical attitudes’ is useful, a steady stream of same is counterproductive; still others fear that such frequent comments foreshadow the pope’s intention to work major changes in certain key ecclesiastical practices. Personally, I gained no new insights into modern phariseeism from this ferverino, although I was struck, if I may say so, at the pope’s prayer that God “throw a banana peel in front of [today’s Pharisees], so that they will take a good fall, and feel shame that they are sinners.” Hmmm. I grant, of course, that experiencing the intrinsic consequences of one’s sin might move one to repentance; whether that ever justifies asking God to visit extrinsic harms on another, well, I’ll need to think about that one. Just now, though, my concern is different.

In the course of his remarks Francis referenced the major changes in discipline surrounding the Communion fast that were worked some 60 years ago and, because the Communion fast is of professional interest to me, I use the occasion of the pope’s remarks to offer a few of my own.

I can certainly see why any pope worried about phariseeism in the Church would recall with disdain the days (well, more like 18 centuries) wherein the Communion fast, though never presented as doctrinal in nature, was extremely strict and was subjected to some now almost-embarrassing hair-splitting by canonists and moral theologians. Frankly, I would not contest the label ‘pharisaical’ being applied to those debates, although (besides wondering whether one can find another example of such excessive fretting—I for one cannot), I would observe that, when Pius XII mitigated the Communion fast, he did not do so in terms that cast aspersions on the spiritual motives or psychological profiles of those who observed and explained the Church’s laws as they existed at the time, nor did he question whether those laws might have operated in service to some important ecclesial values, albeit values by then obscured by legal minutiae. He just did what he did soundly and in a measured way.

But while Pope Pius XII mitigated the Communion fast, Paul VI eviscerated it, reducing Pius’ reasonable three-hour fast down to the negligible and purely formalistic one-hour “fast” now required (if that is not too pretentious a word to use) of the faithful. Almost anyone who is not eating as they walk in the door for Mass can “satisfy” a one-hour “fast” before Communion. Who cannot see that to require by law any action that a normal human being, going about a normal activity, can scarcely not do, is to engage in a legalism precisely of the sort that Francis rejects? Ironically, though, the same ecclesial antinomianism that makes the enforcement of Church law such a hit-and-miss affair these days masks the patent hollowness of requiring a one-hour “fast” for anything, let alone for something as momentous as receiving holy Communion. A society disinclined to respect law in the first place is much less likely to notice when some of its laws are inappropriate. That’s a lose-lose situation, in my opinion.

Being opposed, as I am, to having any law simply for the sake of having a law, I am opposed to Canon 919 § 1, requiring (again, if that is not too pretentious a word to use) a one-hour “fast” before reception of Communion. But sensing, too, what I think Pius sensed when he reformed this discipline, there are, I suggest, some very important ecclesial values to be served by observing a notable fast before Communion. Thus I call again for the Communion fast to be restored to that established by Pius XII, namely, three hours. Personally, I would orient the Communion fast to the start of Mass rather than to the physical reception of the Sacrament, but these are among various related points that can be discussed in due course.

I have set out my arguments for changing Canon 919 in two places: Edward Peters, “The Communion fast: a reconsideration”, Antiphon 11 (2007) 234-244, summarized here; and Edward Peters, “Furthering my proposal to extend the fast for holy Communion”, Homiletic & Pastoral Review on-line (July 2013), on-line here. I invite my readers to consider them.

Appalling, what counts as ‘art’ in Pamplona

The threshold for what qualifies as “art” in Pamplona is apparently pretty low these days, if, that is, taking more than 240 consecrated Hosts and arranging them on the ground so as to spell out the Spanish word for ‘pederasty’ counts as “artistic”. Which, in Pamplona, it does. So, in Pamplona now, I suppose, any idiot who can write his name in the dirt with a stick would count as an “artist”, and that’s a pity. I have never given much thought to Pamplona, but if I had ever had been asked about it, I would have assumed better of an old city like Pamplona. Typical naive American, me.

As for matters Catholic occasioned by this sad event, I have no idea whether the Spanish “artist” Abel Azcona is a Catholic, but even if he were, the chances that the “artist” is automatically excommunicated for his blasphemous (CCC 2148) desecration of the Eucharist (1983 CIC 1367) are next to nil (for all sorts of reasons, but chiefly those set out in Canons 1323 and 1324—I have said many times, poenae latae sententiae delendae sunt). Of course, if the “artist” Azcona were tried in an ecclesiastical tribunal (these cases are now reserved to CDF), his chances of being convicted rise considerably. But that’s no more likely to happen here than it does anywhere else.

A group of Christian lawyers, however, is suing the Pamplona city council for abetting this vicious “art” and it can offer, it seems, a good case that the city council is actually complicit in a ‘hate crime’. Interesting theory. I wish them well. Who knows, perhaps success in a legal action might head off private people from, say, printing up 240 copies of the Pamplona municipal flag and arranging them on the ground so as to spell out some words of their own choosing. While “Señor, ten piedad de Pamplona” comes to my mind, others might want to express different sentiments. That approach could get nasty. I suggest a legal remedy.

That, and some personal reparation for the sacrilege that counts as “art” in Pamplona.

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