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Okay, what about Catholics and the death penalty?

Dr. Steven Long beat me to it.

His rejoinder to the “Capital punishment must end” editorial of America, National Catholic Register, National Catholic Reporter, and Our Sunday Visitor is essential reading even if, in some places, Long’s essay, “Four Catholic Journals Indulge in Doctrinal Solipsism”, needs to be translated into readable English.*

Worse, though, than the four journals editorial itself—which for the most part only repackages and recycles prudential arguments against the death penalty as if they were arguments in principle—have been some of  the “pile-ons” published in its wake, with Patheos administering an especially condescending tongue-lashing to Catholics who, tsk-tsk, can’t understand that opposition to the death penalty is demanded “for the simplest of reasons” and then walks Catholic troglodyte death-penalty enthusiasts through four reasons why they are (supposedly) so utterly and embarrassingly wrong, beginning each reason with “We are Catholic”.

Like, you know, I’m not.

As a Catholic squarely in line with the Catholic tradition that, as Dr. Long accurately if turgidly sets out, supports the just administration of the death penalty for capital crimes, I have grown used to having my motives for such support reduced to: my thirst for vengeance, my disdain for mercy, my obliviousness to Christ’s salvific will, my despair about conversion, and my contempt for compassion. I apparently do not understand that the death penalty does not bring murder victims back to life (gee, whodathunkit?) but that’s not to worry, because my support for the death penalty can be excused (and then dismissed) on purely demographic grounds (I am, after all, white, male, middle-aged, and usually vote conservative, so who cares what a heartless jerk like me thinks about anything?)

But, besides venting, there are two substantive points I would like to add to this discussion, the first, concerning how some seem to read the much-vaunted language added to the Catechism of the Catholic Church on the death penalty.

CCC 2267 (as revised). Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor. If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.  Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm – without definitely taking away from him the possibility of redeeming himself – the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically nonexistent (John Paul II, Evangelium vitae 56)”.

This passage is often presented as if it were some sort of significant development of doctrine—and, precisely as a new development, recalcitrants like me need to get with the program.  But I ask, is this language essentially new?

Fr. Henry Davis, sj, (I trust he needs no introduction) wrote 70 years ago: “If therefore capital punishment is necessary for peace and the security of life and property, and if no less punishment avails, it is conceded to the State by God the source of all authority … But this power must be exercised so as not to invade individual rights … the crime punished by death must be legally deserving of the supreme penalty, and it must be established beyond doubt …” Davis, Moral and Pastoral Theology (1941) II: 151. See also Prümmer, Handbook (1957) n. 277; Jone, Moral Theology (1945) n. 214; and Häring, Law of Christ (1966) III: 123-126, to name just three others who speak of conditions on the in-itself-just execution of certain criminals.

Now, comparing Davis with the revised Catechism, two things, I suggest, stand out: (1) the Catechism restates in modern style what has always been the principled teaching of the Church (that the death penalty is morally licit under certain circumstances) and (2) the Catechism offers some prudential (and thus, by definition, debatable!) reasons not to use the death penalty (basically, modern states can afford to house murders till their natural death). In short, what’s principled in the Catechism isn’t new and what’s new in the Catechism isn’t principled.

So argue, if one will, the prudence of the death penalty—there are some very good prudential arguments against it, as Häring noted fifty years ago—but do not read the Catechism as making any principled points against the death penalty beyond those that have long been part of the Church teaching on the death penalty, that is, for the last 20 centuries during which no Catholic thinker, let alone any Magisterial pronouncement, asserted the inherent immorality of the death penalty. To the contrary, as Long points out, acknowledgment of the moral liceity of the death penalty justly administered, is the Catholic tradition.

Second, Catholic opponents of the death penalty should be aware that their (supposedly) faith-demanded opposition to the death penalty carries, right now, implications for real Catholics getting real summons to serve on real capital crime juries.

I assume that Catholic opponents of the death penalty would advise fellow Catholics in capital crime jury pools to express to the court (and jurors will be asked about this) their opposition to the death penalty. At which point, having answered Yes, they, like any other juror so answering, will likely be dismissed from the pool for cause. But, do we really want Catholic citizenswhile Catholic pundits debate the death penalty from the comfort of their officesexcluding themselves (or being subjected to dismissal by lawyers) from trials wherein a sound Catholic commitment to justice and fair-play is most needed? If not, may I suggest some moderation in the rhetoric being used by some Catholic opponents of the death penalty against Catholic support for the death penalty. Such rhetoric (besides likely being wrong-headed in itself) seems especially susceptible to the law of unintended consequences. + + +

* “That all the Doctors and Fathers of the Church–with the exception of Tertullian who died outside the faith–have taught the essential validity of capital punishment; and that it is the teaching of the Council of Trent that where all the Fathers and Doctors hold one interpretation of Scripture as the proper one, Catholics are to accept it, are two propositions that signify very little in the oppressive culture of mutationist accounts of doctrinal development.” C’mon, Doc. :)

Update (10 mar 2015): A not unreasonable reply, here, but one that still misses two central points: the death penalty is about justice (a much maligned word these days) and it is about the state’s duty to protect the common good (a much misunderstood concept these days). Moreover, it confuses the Church’s role of Magistra (binding teacher) and Mater (loving example): in a nutshell, the Catholic tradition has always allowed states to decide whether those convicted of capital crimes will, in fact, be executed (ut Mater), but she had never crossed the line into banning (ut Magistra) the sanction as a right of the state.

Update (10 mar 2015): There are several essays out there from Catholics who once supported the death penalty but who now wish to see it banned. With more or less rhetorical skill, these essays amount to narrations of how ‘the scales fell from my eyes and now I see the light’, etc.  Such essays are doubtless sincere; as arguments, however, they are not serious. Private intuition experienced as a sort of personal revelation is not binding on others (and in fact, it should not even be casually assumed by recipients). In the public forum, one either has arguments for one’s policy position, or one doesn’t. Here, one either has arguments as to why the Church has (?), can (?), should (?) change her teaching upholding the liceity of capital punishment, or one doesn’t. Everything else is either a matter of prudence (which others are free to debate) or a matter of feelings (which others are free to ignore).

Reminder: the ‘orans rubric’ for the Our Father still needs fixin’

On the list of ecclesiastical matters urgently needing attention these days, the odd practicing of laity using the orans gesture during the Our Father (and in turn that gesture’s morphing into a rite of hand-holding, often aisle-filling, discombobulation) is, I grant, fairly low in priority. Nevertheless, the orans issue has come to my attention twice recently, and neither time has the author in question seemed aware of the analysis of this issue that I first offered back in 2005. My feelings aren’t hurt, it’s just that, I wonder why more people don’t look more carefully to see whether their good questions might have been treated by others elsewhere. Oh well.

Bottom-line: the rubric calling for the priest to make the orans gesture during the Our Father, a prayer now prayed with the congregants (and not on behalf of the congregants, as had been the case for more than a millennium) is anomalous and should be replaced with a direction for him to join his hands at that time, not extend them. Once this is done, several points will resolve themselves in pretty short order.

It was worse than a crime—it was a blunder

There are credible reports that Lorenzo Cardinal Baldisseri, head of the secretariat for the Synod of Bishops, ordered the confiscation of pro-marriage materials legally mailed to synod participants last October. In addition to whatever international and/or Vatican City State laws might have been violated thereby, and besides the possibility of the violation of Canon 1389 (abuse of ecclesiastical office), this action, if indeed it was taken by ranking prelate, offends at a level that will, I suggest, haunt Church staffers for years to come.

I cannot count the number of times over the decades that I have heard good Catholics, concerned for this problem or that in the Church, despair of having their voice heard as follows: “Why should I bother writing to the bishop? Someone on his staff will not like my letter and will make sure it never gets to him.”

I have many, many times, assured Catholics that such “mail-filtering” was a myth and that, in my experience, bishops see every letter addressed to them. They don’t always answer, I admit, but they do see it. Who knows, perhaps a few Catholics decided to write to their bishops after all, upon my comments.

Now, the myth of ecclesiastics filtering mail that they don’t want others to see has been given a new lease on life. We will be decades living the story down. Put another way, this stunt, assuming it happened as it seems to have happened, was worse than a crime—it was a blunder.

The truth of this matter needs to come out, and, if the story is false, it needs to be contradicted if only for the common good; if it’s true, consequences need to come. Quickly.

How null is this marriage? Let me count the ways.

A few days ago, Archbishop Paul Coakley of Oklahoma City learned that one of his priests, Fr. Dan Letourneau, had entered civil marriage with a woman late last year. The secular press, most of whom know little about faith or religion beyond what they’ve read in the newspapers, refer to Fr. Letourneau as “married” and as having “a wife”. Catholics must read things more precisely. Letourneau’s “marriage” is null in at least two ways—and, since only one way is needed to make a marriage completely null, then, this one is null.

First, and most importantly, Letourneau’s ordination (to diaconate, by the way) rendered him incapable of marrying (c.  1087)—unless expressly dispensed for marriage by the Holy See (c. 1078 § 1, 1° and c. 1079) which, of course, never happened. There is no need to inquire further: Letourneau’s civil status is married but, in the eyes of the Church, he is not married at all. He seems to be, in fact, in a criminous state (c. 1394 § 1) for having attempted even a civil marriage.

Second, Letourneau’s “marriage” is null for its having been attempted in violation of “canonical form” (c. 1008). I take the occasion to remind readers of my preference to see canonical form removed from the books but, unless and until that day comes, the canon law is crystal clear and it results in Letourneau’s already-null “marriage” being even … nuller. If that’s a word.

Finally, I know nothing of Letourneau’s civil wife, but more grounds for nullity might yet be found there. If, say, she had been previously married and divorced, that would make her attempt at marriage null for ligamen (previous bond, c. 1085) or, if she were not baptized, that would render an attempted marriage null for undispensed disparity of cult (c. 1086).

But, as I said above, only one ground of nullity need be present to render a “marriage” completely null, and here, we have at least two grounds. Letourneau and wife are civilly married, of course; that lets them enjoy the benefits of civil marriage, e.g., filing a joint tax return. What good that might be at the Pearly Gates is not clear to me.

If pastoral progress is to be made, we have to pay closer attention to terms

Cardinal Lorenzo Baldisseri, Secretary General of the Synod of Bishops, recently called upon participants in an international conference on laity and families to consider how practicing Catholic spouses can witness to those who “are not living the ‘fullness of Christian marriage’”. That notion, namely, that of not living the fullness of Christian marriage—warrants careful reflection lest confusion about Church teaching on marriage arise and pastorally dubious programs be built on that confusion.

First, many Christians do not “live the fullness of Christian marriage” because they are not married: most priests, all religious, widows and widowers, children, etc. Second, many married persons do not “live the fullness of Christian marriage” because they are not Christian: Jews, Muslims, Hindus, and so on. The cardinal doubtless had no intention of including these groups in his remarks, but the phrasing he used admits them and, in that sense at least, he is speaking imprecisely.

Those groups aside, however, there are many married Catholics who do not “live the fullness of Christian marriage” because, say, they practice contraception or they consistently fail to model the Faith properly to each other and to their children. If the cardinal has these persons in mind as needing the special witness of couples in Christian marriage who try to live in accord with the teachings of Christ and his Church—and some of the prelate’s remarks suggest that he did have them in mind—then one can only say “Amen!” and pray that some concrete suggestions for offering good witness to them come from the conference.

But, I fear, the wider context of the cardinal’s remarks suggests that the primary referent for his phrase ‘those not living the fullness of Christian marriage’ was not as above, but rather, that he meant Catholics who are divorced-and-civilly-remarried—if so, then a very serious error has slipped in.

Setting aside a few hypothetically possible scenarios, the vast majority of Catholics who are divorced-and-civilly-remarried are not ‘failing to live the fullness of Christian marriage’, as they are not married at all. Such persons are, of course, in obvious need of pastoral outreach, but to describe them as being in “Christian marriage” at all is to speak as if a tertium quid existed between single Christians and married Christians, as if, in other words, “sort-of married” Christians were doctrinally possible. But, they aren’t.

Too many married Christians fail to ‘live the fullness of Christian marriage’, but to approach those who are not married and who do not have the sacraments as if they were in essentially the same pastoral condition as those who are married and who do have the sacraments, is to try to build, of all things, a pastoral plan on a seriously mistaken foundation.

He is called ‘Defender’ of the Bond for a reason

In his remarks on the 10th anniversary of Dignitas connubii, the 2005 Roman instruction for processing petitions regarding declaration for matrimonial nullity (annulments), Pope Francis comments on, among other things, the role of the Defender of the Bond, asserting that the “presence [of the DOB] and the faithful fulfillment of his task does not condition the judge, but rather allows and promotes the impartiality of his judgment by setting before him the arguments for and against annulment”.

Arguments for and against annulment?

Canon 1432 of the Johanno-Pauline Code states “A defender of the bond is to be appointed in a diocese for cases concerning the nullity of sacred ordination or the nullity or dissolution of a marriage; the defender of the bond is bound by office to propose and explain everything which reasonably can be brought forth against nullity or dissolution.” There is no warrant here–or anywhere else in the 1983 Code–for DOBs to make arguments for nullity.

Dignitas connubii  56 § 3 itself states “In every grade of trial, the defender is bound by the obligation to propose any kind of proofs, responses and exceptions that, without prejudice to the truth of the matter, contribute to the protection of the bond (cf. can. 1432)” and § 5 thereof drives home that “The defender can never act in favor of the nullity of marriage; if in a special case he has nothing that can be reasonably proposed or argued in favor of the bond, the defender can remit himself to the justice of the court.” Again, plainly, there is no canonical authorization for DOBs to make arguments for nullity, and indeed, there is an express prohibition against such conduct.

On occasion there are, as noted in Dignitas, matrimonial cases in which no significant arguments in favor of the marriage can be asserted. This unusual possibility was recognized at least as far back as Pope Pius XII who, in his classic allocution to the Roma Rota in 1944 (CLD VI: 612-622), acknowledged that, out of respect for the truth of a given case, a DOB need not concoct ‘defenses’ of the bond that strain credulity. In such cases, said Pius (a degreed canonist and protégée of the great Gasparri), the DOB is not to argue in favor of nullity, but rather, once satisfied that procedural requirements have been met, he may observe that he has no arguments in favor of the bond to offer. Even so, as the CLSA Tribunal Handbook notes at p. 27, “This should be a rare occurrence.”

Francis is not a specialist in canon law, of course, and, as far as I know, has no significant experience in tribunal work, so, I imagine, someone is helping him draft speeches for canonical audiences. But, whatever their provenance, papal remarks that assume Defender of the Bond duties are equally divided between defending and impugning marriage will tend, I fear, to cause confusion among tribunal personnel who are trying to abide by the law and can blur the Church’s witness to the permanence of marriage.

Update: The Italian original of the sentence reads: “La sua presenza e il compimento fedele del suo compito non condiziona il giudice, bensì consente e favorisce l’imparzialità del suo giudizio, essendogli posti dinanzi gli argomenti a favore e contrari alla dichiarazione di nullità del matrimonio.” We now have a discussion about how to translate this phrase going on Facebook, “Canon Law”.

My Q & A on ‘continence’, ‘celibacy’, and ‘chastity’

A Catholic Q & A columnist recently offered an explanation of terms “continence”, “celibacy”, and “chastity”. My explanation would have differed in several respects. Shall we?

Hi, and thanks for your question about “continence”, “celibacy”, and “chastity”. I understand why you are confused. These terms are widely misunderstood and misused not just in the secular media but even among Catholics.  Let me suggest how they are best used in Catholic contexts.

Celibacy is the chosen, deliberately made, resolve not to enter marriage. Celibacy is not simply ‘being single’ (else, every child is a ‘celibate’), but rather, it means having chosen to live single either for a while (e.g., till I finish grad school, or till my ailing mother dies) or for life (e.g., I have been ordained or I took permanent religious vows). Celibacy can be chosen for good reasons (e.g., I wish to follow the Lord more freely, or I wish to serve as a nurse in poor countries) or for bad reasons (e.g., I despise people and refuse to share my life with anyone), but, standing alone, celibacy means only that a choice not to enter marriage has been made and is being observed. Such a person, and only such a person, is properly called ‘celibate’.

That being understood, single persons, whether single because of circumstances (e.g., I have not yet met Miss Right, or my husband died last year) or because they are celibate, are restricted in the sexual activity they can engage in. Not to get ahead of ourselves, but those restrictions include what we will call “continence”. But when discussing celibacy, keep in mind that it is a chosen way of life, a way of life that has certain consequences, yes, but fundamentally, a way of life.

Continence is the choice not to engage in sexual relations. Again, the element of choice is important because simply not having sex does not necessarily mean that one is ‘continent’. A castaway on a desert island might have no food to eat but we would not say he is ‘dieting’, why? because ‘dieting’ implies that one makes a choice about not eating. Now, a single person (again, whether single by circumstances or because one is celibate) is required to exercise, among other things, continence. But married persons, too, might observe continence. Mary and Joseph are the classic examples: they were not, repeat not, celibate; they were, repeat were, continent.

Sometimes you will run across the phrase “periodic continence” or even notions like ‘selective continence’. I avoid these terms, because, continence, carefully considered, is usually tied to a state of life (chiefly, being single, but other possibilities exist) and hence  continence is of long (often permanent) duration; per se continence is not a response to circumstances in life. Example? a married couple might decide to give up conjugal relations during Lent, but the better description of their choice, because it is temporary, is “abstinence”; likewise a couple who avoids relations at certain times of the month as part of natural family planning—such couples are abstaining, not, properly speaking, observing continence. And to describe sexual fidelity to one’s spouse as ‘selective continence’ is just creepy.

Chastity is the exercise of that virtue whereby one’s sexual powers are used properly and in accord with one’s state in life. A non-married person (again, whether single or actually celibate) is chaste by observing, among other things, continence; but a married person is chaste by engaging in conjugal relations! In both cases it’s the same virtue at work—chastity, the proper use of one’s sexual powers—but the actions are obviously quite different. Similarly, if a married person does with a third-party exactly what is done with a spouse, that would be unchastity, even though the actions appear the same.

In short: the Church teaches that everyone is called to observe chastity at all times; she holds that all single persons are called to observe continence; and she recognizes that some single persons laudably choose celibacy as a way of life.

Okay? Best, edp.

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