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A glance back at a forgotten canonical category

“Suspicion of heresy” was an odd institute of penal canon law under the Pio-Benedictine Code of Canon Law. Heresy itself, of course, was a crime under the old Code and still is one under the new (1917 CIC 2314, 1983 CIC 1364), and anyone suspected of being a heretic might, in that sense, be ‘suspected’ of heresy. But, under the 1917 Code, “suspicion of heresy” was something else: under certain circumstances, being suspected of heresy could itself, under certain circumstances, be a crime.

Now before anyone has a conniption fit and accuses the Pio-Benedictine Code of criminalizing thought, let me make two observations: first, the Pio-Benedictine law on “suspicion of heresy” represented a roll-back on the Decretal crime of “suspicion of heresy” (Woywod, Practical Comm., 2160), so give Cdl Gasparri credit for curbing an odd institute, not establishing one; and second, for practical purposes, only acts, not thoughts per se, could be adjudicated as “suspicion of heresy”. In any case the fact patterns that could give rise to “suspicion of heresy” were complicated (See, e.g., Cloran, P & P Cases 56) and, it seems, lent themselves more to canon law essay exams than to trials, and so the penal institute “suspicion of heresy” did not survive into the Johanno-Pauline Code. Given that even straight-up heresy prosecutions are almost unheard of under the 1983 Code the removal of “suspicion of heresy” as distinct offense from penal canon law has gone utterly unnoticed. That’s probably for the best, with one caveat.

What, I think, the concept of “suspicion of heresy” was trying to get at—albeit in a clunky way—was that certain actions (many wrong in themselves, but some others not quite wrong), if repeated over long-enough a period of time, could indicate that, behind such actions, there was heresy (a doubt or denial of some truth to be believed, per 1917 CIC 1325, 1983 CIC 751) at work. In an ironic way, “suspicion of heresy” credited Catholics with acting in accord with their beliefs, even if such beliefs were objectively wrong and, at least in part, held unconsciously. The idea that one can really believe X,Y, and Z, and yet consistently act quite contrary to X, Y, and Z, did not sit well with ecclesiastical leadership a generation or so ago. Perhaps they were naïve.

It is not fashionable these days to speak of “heresy”, let alone to “suspect” someone of heresy, but a glance at Church history suffices to show how dangerous heresy can be to a faith community, and how some conduct can, under certain circumstances, evidence not just wrong-doing per se but wrong-doing motivated by wrong-believing. At the same time, however, we know that wrong-doing unadmonished long enough, and wrong-believing uncorrected long enough, can trigger over-reactions in those who, at last, will finally exercise their responsibilities toward to common good.

My suggestion? Deal with doctrinal discord, and its concomitant disciplinary manifestations, forthrightly, instead of waiting to see if it will all just go away on its own—which it never does—and before either side takes stands it will regret.

Canon law has never been ‘the frame of reference’ for the Church

When prelates of the erudition and experience of a Donald Cdl. Wuerl (Washington DC) can say things like this, the rest of us can be in no doubt as to just how deeply and widely a fundamental misunderstanding of law in the Catholic Church has taken hold. Speaking about the future of the Church, Wuerl, who is recognized as one of Pope Francis’ most esteemed advisors, said that, in the wake of the 2015 Synod and the Francis’ papacy, “The frame of reference now is no longer the Code of Canon Law. The frame of reference is now going to be, ‘What does the Gospel really say here?’”

I hardly know where to start, but here goes.

The “frame of reference” for the mission of the Catholic Church has never, ever been the Code of Canon Law, and no canon lawyer I know of has ever, ever claimed otherwise. The “frame of reference” for the Catholic Church has always been, and has only been, Christ the Lord. For the cardinal archbishop of a major Western capital to talk as if the Code of Canon Law, for so much as one second, ever fancied itself as the “frame of reference” for the Catholic Church—well, it confirms the stranglehold that antinomian attitudes have secured over ecclesiastical thought in the space of one lifetime, to the point that today, many in the highest circles of ecclesiastical leadership can scarcely even talk about canon law without caricaturing it. But if Wuerl avoids offering some of the more insulting depictions of canon law and canon lawyers being tossed around recently, he nevertheless sees canon law largely as an obstacle to the saving truths proclaimed by Jesus and he gives urbane cover to others who find certain Gospel truths, as enunciated in concise legal terminology, too inconvenient.

Twice, maybe three times, in her history, the Catholic Church has suffered though waves of antinomianism. Each time, of course, law—as natural to human society as a skeleton is to the human body—eventually regained its place in ecclesial life, but only after much needless waste. Our current wave of disdain for canon law started in the early 1960s, it grew enormously throughout that decade and into the 1970s (fed in part by the disastrously long period that the Church went effectively without canon law and aggravated by similar anti-order shocks to civil society), it seemed to recede a bit in the 1980s and 1990s, only to erupt again in the wake of the clergy sex abuse disasters ten or fifteen years ago. Today, whether because Francis actually dislikes canon law or because he is simply uninterested in it, the aging antinomians of the 1960s and 1970s see an opening to resume their attacks on law and lawyers in the Church, and they are seizing that opportunity.

I am not going to use a blog post to try to educate antinomians (whether they are “hard core” canon law haters, or, as I rather think Wuerl to be, gentler “Amator Si, Legislator No” types) as to the many and vital connections between Catholic doctrine and canon law, though I have raised such issues several times, say, here and here. Rather, I’ll just say this: canon law has always seen itself in service to the Church, huge tracts of canon law rest directly on biblical foundations and doctrinal assertions made by the Magisterium over the centuries, canon law is always in need of reform (just ask any canon lawyer), and finally, that some people railing against canon law need to ask themselves whether it is law they don’t like, or the truths such laws defend.

Reacting to Prof. Reid’s over-reaction

A few weeks ago Abp. John Myers of Newark issued a brief letter underscoring some basic expectations for Catholics in the midst of our increasingly secularized culture, things like, oh, ‘Catholics who publically reject Church teaching should not approach for holy Communion’, and ‘Catholic facilities should not be made available to persons attacking Catholic beliefs’. Myers’ letter is pretty ordinary stuff, remarkable, if at all, only in that so few bishops issue admonitory letters these days.

Now, a couple of phrases in Myers’ letter do, I think, warrant closer parsing (something expressly provided for in Myers’ letter), and there is even one ‘Doh!’ sentence in the prelate’s letter: “Catholics must be in a marriage recognized as valid by the Church to receive Holy Communion”. This, if true, would be bad news for my five youngest children, none of whom are “in a marriage recognized as valid by the Church” (or any kind of other marriage). Such a slip should not appear in a letter written by a canon lawyer, let alone in one vetted by several others. But, c’mon, we all know what Myers’ meant and, having enjoyed a chuckle over his phrasing, I planned no comment on the letter.

But then I read Prof. Charles Reid’s (a respected historian of canon law) reaction to Myers’ letter. Reid excoriated Myers’ letter as “insanely, hysterically overreaching” and claimed that, if it were followed, “even a football coach who loudly swears after a close loss or a parent who attends their gay son’s wedding would be barred from seeking Communion.” Setting aside the laughable disparity between the two supposedly Communion-disqualifying acts Reid offers (more on that below), my first reaction to Reid’s over-reaction was “Good grief! Did Abp. Myers write two different letters?” Of course, Myers wrote only one letter—the dull, not perfect, but basically routine letter I had read. What Reid read, however, what to him “looks petty [and] vengeful [and] a dying gasp if you will,” what Reid “can’t imagine a bishop doing” a few years from now, what Reid actually thinks was intended as a direct challenge to Pope Francis himself (!), I can hardly guess. It is certainly not Myers’ letter, and I am at a loss to account for Reid’s startling over-reaction to it.

Well, as long as we are here, let’s do look at two phrases in Myers’ letter that, I think, need further study.

1. Myers writes: “Non-Catholics and any Catholics who publicly reject Church teaching or discipline, either by public statements or by joining or supporting organizations which do so, are not to receive the Sacraments.” A few points: (a) Catholics may always approach the Sacrament of Confession, something so obvious Myers did not need to restate it; (b) Non-Catholic participation in holy Communion is regulated largely by Canon 844 and it would have been better simply to refer to this norm; (c) Catholics who “publicly reject Church teaching or discipline” are to refrain from holy Communion per Canon 916 and the moral tradition which that canon summarizes, but, as to whether one’s joining an organization “opposed” to the Church (Canon 1374, anyone?) is, by itself, always gravely sinful, or about what constitutes “support” for such an organization, these are good questions best addressed in concrete cases. Myers’ brief reiteration of the principles involved in these cases does not, by his own acknowledgement, settle such practical questions (thus he directs those with questions about such matters to consult appropriate ecclesiastical authorities). So, whether Prof. Reid or I would have phrased this passage as Myers did is beside the point: the archbishop’s language here has hardly descended into the realm of ‘insane hysterical over-reaching’ and it is an injustice for anyone to claim that it has.

2) Myers writes: “Catholics, especially ministers and others who represent the Church, should not participate in or be present at public religious events or events intended to endorse or support those who reject or ignore Church teaching and Canon Law.” Perhaps this passage is what set off Reid’s eruption about potty-mouthed football coaches (which is so gross a caricature of Myers’ message that it needs no refutation) and, more significantly, his supportive comment about parents attending their gay son’s ‘wedding’.

Note first, it is Reid, not Myers, who raises the whole ‘gay wedding’ scenario, and, while Myers urges his pastors to explain difficult cases to the faithful “in appropriate ways, privately if possible”, it is Reid who engages in a public media tirade. The contrast between the two approaches could not be starker.

But, let there be no mistake: in Western culture, to attend a wedding (pace the I’ve-never-heard-of-it-but-it’s-theoretically-possible scenario wherein someone attends a ‘wedding’ but sits in the back row and offers rosaries in reparation for the affront that the ceremony might be), to attend a wedding, I say, is to offer public support for the actions of the two persons supposedly marrying. Thus I hold that a Catholic’s attendance at a ‘wedding’ believed to be invalid, such as a ‘same-sex wedding’, is itself an objectively gravely sinful act, and thus something forbidden to Catholics, even if one is related to the parties. Sometimes Christianity costs. More than once—need I say it?—Church history has been sprinkled with the blood of Catholics martyred because they would not accept a ‘wedding’ that was plainly forbidden by the law of God. Is the price they paid in their day so unthinkable among us in ours?

Now, Myers did not advise parents who have been invited to attend their child’s ‘same-sex wedding’, but I am pretty sure I know what his advice would be. Suddenly, however, we have to wonder what Reid’s advice would be regarding conduct by which, per Canon 209, one must preserve communion with the Church, here, in regard to a fundamental teaching rooted in natural law and divine revelation.

Bottom line: If Myers did not put all of his points perfectly (and he did not), he certainly put them plainly. Scholars should endorse what is sound (i.e., most of the letter), and help clarify what is deficient (as Myers himself notes). Avoiding over-reacting to the letter would be a good way to start.

A couple of thoughts on a couple of comments

I do not know what the pope actually said in his in-flight comments about marriage (or even what language he spoke in) or what various listeners took his meanings to be, but a few thoughts on what was reported as having been said by the pope in the National Catholic Register might be useful for those trying to understand the deeper issues in play here.

In his response, Francis stressed that with [Mitis Iudex] he has closed the administrative path that could have led to divorce. “Those who think this is ‘Catholic divorce’ are wrong because this last document has closed the door to divorce by which it could have entered. It would have been easier with the administrative path,” he said.

I do not know what “administrative path” to divorce there was to close. The Church does not “do” divorces, administratively or otherwise, and annulments (even documentary cases) are judicial procedures. Also, civil divorce per se is not forbidden to Catholics. CCC 2383. Divorce followed by remarriage is what raises issues.

“[Mitis Iudex] facilitates the processes and the timing, but it is not divorce because marriage is indissoluble when it is a sacrament.”

Marriage is indissoluble by natural law itself (not by a ‘sacramental’ character). By this assertion canonists mean, in brief, that the parties cannot dissolve their marriage nor can the State. This stability is known (unhappily, in my opinion) as “intrinsic indissolubility”. There is still room, however, for some outside things to dissolve a merely intrinsically indissoluble marriage, notably, the Pauline Privilege and Petrine authority.

“And this the Church cannot change. It’s doctrine. It’s an indissoluble sacrament.”

The sacrament of matrimony enjoys the indissolubility of natural marriage and, in virtue of its sacramental character, it enjoys a “special firmness” (see Canon 1056). Thus, upon the exchange of consent to matrimony (here, marriage between two baptized people), that union is a sacrament and is not liable to, say, the Pauline Privilege, but it could still be dissolved by extraordinary papal intervention (a very rare occurrence). But, once a matrimonial union is “consummated” (something basically presumed after the wedding night, per Canon 1061), not even papal authority can dissolve it, a condition known as “extrinsic indissolubility.”

“There’s one [tribunal] sentence, then another sentence and after there’s an appeal, there’s the appeal then another appeal. It never ends,” [Francis] said.

A marriage thought to exist between two parties can currently be declared null after one trial and a confirmation of nullity by second instance. There are no required appeals after the one mandatory appeal, nor are there mandatory appeals after those appeals, etc. Parties do have a canonical right to appeal a second instance decision, and a few choose to exercise that right. A few examples of rare serial marriage appeals are analyzed in John Noonan, Power to Dissolve (1972), but the ‘never-ending marriage case’ is a myth used by some to ridicule the Church’s institutional efforts to defend marriage and reflects, moreover, an under-appreciation of what it means to say that “status of persons” cases are never res iudicata (Canon 1643-1644). Mitis does nothing, and could not do anything, to eliminate elective appeals of marriage cases beyond what canon law already does to stem pointless procedures (well, not without damaging the ability of canon law to function as a true legal system, it couldn’t.)

“The Pope noted that [mandatory appeal of first instance decisions is] not something essential to the process.”

The pope is correct and he eliminates mandatory second instance in Mitis. I, among others, have argued for this elimination for some time. Some impressive canonists hold otherwise.

Perhaps two points to take from the above might be that, whatever reforms to canon law of marriage are envisioned, reformers must understand that (a) canon law terminology reflects some profound doctrinal and juridical values, and (2) those discussing the canon law of marriage must know what those terms mean and don’t mean, as the case may be, for the discussion to be useful.

Automatic censures should be eliminated from Church law

Only two kinds of men publicly admit to doing evil: those who repent of their deeds and are willing to accept the consequences for having acted wrongly, and those who are comfortable with their conduct and believe that no serious consequences will come from divulging it.

Several reports based on Godfried Cdl. Danneels’ just-released, authorized biography indicate that the now-retired Belgian prelate helped lead a clique of cardinals directly opposed to Benedict XVI’s papacy. If true that suggests sin, but not crime. It seems, however, that some members of this clique, after Benedict resigned, engaged in pre-conclave politicking for then-Cdl. Bergoglio, politicking of the sort that is forbidden by conclave law (Universi 81). If true, that would be a sin and a crime. Danneels’ admissions, read in the light of other allegations and reports, suggests, then, that at least some cardinals committed at least some offenses for which they are at risk of the Church’s highest sanction, namely, excommunication, more precisely, latae sententiae (automatic) excommunication.

Which means they are at risk for—not much, really. Shall I elaborate?

The canonical consequences of “excommunication” are set out in Canon 1331. A cursory glance at that canon shows these consequences to be very serious, including: prohibiting individuals from celebrating Mass, participating in sacraments, or exercising ecclesiastical roles, offices, and functions, and so on. Besides suffering the spiritual consequences of having engaged in whatever gravely sinful conduct underlies the crime in question (and note: consignment to hell has never been a consequence of excommunication, though it could be one of unrepented sin), any Catholic automatically excommunicated is in deep trouble.

But that same cursory glance at Canon 1331 will not show (unless one is trained in canon law) that most consequences of excommunication become relevant in the external forum only if the excommunication is “imposed or declared”. That short, technical phrase means that, while one who is “automatically” excommunicated labors under the personal burdens of this sanction, it is only when an excommunication is “formal” that actions performed by canonical criminals raise questions for Church life and governance.

The canonically untutored do not (and should not be expected to) understand that the consequences of excommunication for public Church life differ dramatically based on whether the excommunication is “automatic” or “formal”, that most of the ‘bite’ that people attribute to excommunication (like not being able to function in Church offices) comes only with formal excommunication, and that formal excommunication has practically disappeared from modern Church life because (1) a host of canonical defenses unnecessarily burdens prosecution of excommunicable crimes, and (2) ecclesiastical authority apparently feels that, as long as latae sententiae excommunication is on the books (and most folks think it does what “excommunication” does anyway) why bother with a complex, portentous process for turning an automatic excommunication into a formal one? Whatever the reasons, Roman prosecutions of “formal” excommunication cases are rare; those involving prelates are very rare; those involving cardinals are essentially unheard of.

Thus, it is hard to see what canonical consequences a cardinal would have to fear if he were to admit to a canonical crime punishable by latae sententiae excommunication. If it turns out that one or more cardinals violated, say, Universi 81, they might (and I stress, might) be “automatically” excommunicated, but “automatic” excommunication impacts—I hate to put it this way—only the liceity of ecclesiastical acts, not their validity. So, while it might be distressing to see appointed to synodal service some cardinals who could be “automatically excommunicated”, whatever acts such men might place at a synod would be, by the plain text of canon law, valid. And no one seems especially incentivized to inquire further than that.

All of which re-occasions my call, then, for the simple elimination of latae sententiae censures from Western canon law.

Every time conduct carrying the possibility of automatic excommunication comes in for public discussion (whether it be umpteen variations on procuring abortion, renegade episcopal ordinations, ‘women’s ordination’, violations of the seal, a range of heresies, violation of conclave secrecy, politicking for papal candidates, etc., etc.) every single time, the discussion of these cases inevitably turns away from the underlying sins/crimes toward the technicalities of penal procedural law. The whole focus changes from how sinful and offensive conduct should be assessed among believers to how Book Six of the Code is parsed by canonists. Automatic excommunication allows Church leaders and commentators to substitute platitudes about how so-and-so actually only ‘excommunicated himself’ when what needs to be upheld is ecclesiastical authority’s role in defending the doctrines and practices of the faith community against malfeasants.

I have, it should be obvious, no problem with the penalty of excommunication itself. Excommunication is deeply rooted in Biblical precedent and, when properly imposed for serious ecclesiastical offenses, it has been used to great good throughout Church history. But automatic excommunication, whatever useful role it might have played in the past, is a distracting anachronism in modern canon law. It confuses the eschatological consequences of sin with the ecclesiastical consequences of crime. It requires criminals to be their own prosecutors and judges. It provokes crises of conscience for some who conclude that they are excommunicated when they are not, but helps others to avoid confronting their consciences when they correctly conclude that they are not, technically speaking, excommunicated.

In his const. Apostolicae Sedis (1869), Bl. Pius IX took the first modern steps toward bringing the by-then terribly-overgrown system of automatic censures into some kind of order. Cdl. Gasparri helped further reduce latae sententiae penalties in the 1917 Code. St. John Paul II promulgated the 1983 Code with even fewer automatic sanctions still and in 1990 he issued the Eastern Code of Canon Law with none at all! Notwithstanding a slight uptick in the number of crimes punishable by automatic excommunication under Benedict XVI, the clear trend is toward eliminating automatic sanctions from Western canon law.

May that trend be continued. Nay hastened.

A note on convicts as witnesses at Catholic weddings

It’s not clear to me what exactly has happened here but it appears that the bishops of a region in Italy, one hard-pressed by the Mafia, have forbidden certain classes of criminals from serving in various ecclesiastical roles. Fine by me, of course, with one caveat.

It seems that some criminals are no longer allowed to serve as “witnesses” at Catholic weddings. That might be a problem.

The notion of “witness” has been confused by an intrusion into canon law of excessive ‘pastoral sensitivity’ (see, e.g., the novel, so-called “Christian witness” at baptism, an ersatz office critiqued by me in the 2008 CLSA Advisory Opinions 94-95), but the fact is that the designation of a “witness” is not about honoring the witness, but about his or her ability to verify a claim made by a third party. If there is reason to think that a given witness is mistaken or lying about what he or she saw, that testimony may be challenged, but basically, anyone over age seven and not stoned at the time can give canonical testimony about what he or she saw, or didn’t see, as the case may be. Whether “witnesses” to Catholic weddings should have a liturgical role is a different question, but it does not turn on whether convicted criminals per se can perceive and report on what words were exchanged between two people.

Of course, all of this is yet another complication of retaining canonical form for marriage, but that discussion is for another day.

Note: Avoiding the requirements of Mitis would not be easy for bishops

If Pope Francis’ Mitis Iudex becomes law it will require, among other things, that arch/bishops personally assess, and in some cases adjudicate, certain kinds of marriage nullity petitions. Now obviously some, perhaps many, prelates will feel (based on their lack of advanced canonical training, and/or their personal indisposition toward juridic work, and/or their concerns for negative implications to their wider pastoral work that having to choose between types of petitions and individual parties in annulment cases will inevitably provoke) inadequate to this task. Already I am hearing, however, that arch/bishops looking to avoid their looming judicial and procedural responsibilities under Mitis may simply dispense themselves from it and/or delegate their responsibilities to others.

I am not so sure.

First, the new duties to be imposed on arch/bishops under Mitis seem plainly judicial (as opposed to legislative or executive) in nature. As a general rule, however, judicial duties in the Church may not be delegated to others. Canon 135 § 3. Note, for example, that tribunal judges are appointed to office and therefore judge cases by ‘proper’, not delegated, authority. Canons 1420-1421. Bishops who are used to delegating executive power in the Church (Canons 136 et seq.) might overestimate their ability to delegate these new judicial responsibilities to others.

Second, Mitis seems plainly to establish a procedure for arch/bishops to follow in regard to processing certain nullity cases. But procedural laws in the Church are generally not susceptible to dispensation. Canon 87 § 1. In light of, moreover, Francis’ express and repeated calls in Mitis that bishops take a direct role in judicial matters, arch/bishops dispensing themselves from the requirements of Mitis would be, to say the least, anomalous.

Third, the Christian faithful have a fundamental right to have their cases judged in accord with law. Canon 221 § 2. It would be difficult, I suggest, to reconcile an arch/bishop’s refusal to accept and judge petitions qualified for same under Mitis with the plain provisions of Mitis itself and with the principles of judicial and procedural canon law reflected in the Code of Canon Law.

As for the expedient to which some prelates loath to act under Mitis might be tempted (namely, that of not ‘feeling’ that this case or that meets the substantive or procedural requirements of Mitis even though, by any honest reading of Mitis, they would so qualify), well that’s a constant problem for the administration of justice in a Church that largely depends on human beings performing their ecclesiastical duties with integrity. I can only respond that Mitis might be flawed law but, as things stand now, it will soon become real law and will bind in the way that real law binds.

All of which boils down to, again: a delay in implementing Mitis must be secured until a much wider pool of qualified and experienced voices are allowed to discuss these and many other issues raised by it.

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