My blog, “In the Light of the Law”, has migrated from Blogger to WordPress effective the end of 2011. If you had signed up for any sort of automatic notices of blog updates, you will need to re-subscribe for such notices (there is no charge, of course).

Many blessings in the New Year! Dr. Edward Peters

PS: There will doubtless be some glitches as we work out this transition. Thanks ever for your patience!

Despite the great attention that excommunication generates in the secular media, actual instances of excommunication are rare. Rarer still are remissions of excommunications for, as we all know, some offenders never repent. Most Church or Church-related officials have little experience in dealing with excommunication matters, and most reporters have zero experience reporting on them. Thus, when what looks like an excommunication (rare) remission (rarer still) makes the news, one should treat such news, welcome in itself of course, with some caution.

ILOTL readers will recall (see e.g. my posts of 21 May 2010, 1 Jun 2010, 19 Jun 2010, 21 Dec 2010, and 23 Dec 2010) the case of Sr. Margaret McBride, rsm, the religious whose consent, as administrator of St. Joseph’s Hospital in Phoenix, was apparently necessary for the commission of an abortion in that hospital back in 2009. Against many who argued that Sr. Margaret’s actions could not, as matter of law, result in her excommunication under Canon 1398, I argued that her reported actions could result in her excommunication at least as an accomplice to abortion per Canon 1329. Prescinding from my long-standing misgivings about the operation of automatic censures in canon law, I argued that nothing in the reports available to the public suggested that Sr. Margaret had not met the requirements for excommunication in her case. As to whether Bp. Olmsted’s early public statements about Sr. Margaret’s canonical status sufficed for a formal declaration or imposition of excommunication, my sense was that we had too little information to decide either way; in any event, the bishops later confirmed the status of Sr. Margaret as excommunicated, a development that raised canonical issues about Sr. Margaret’s future in her religious community.

There the matter rested for a year or more.

Last week, however, per the Catholic News Service, St. Joseph’s Hospital stated that Sr. Margaret has “met the requirements for reinstatement with the church and she is no longer excommunicated. She continues to be a member in good standing with the Sisters of Mercy and is a valued member of the St. Joseph’s executive team.” This seems like good news, of course. The whole point of excommunication is to bring offenders to repent of their action. But the generation of the announcement itself seems odd to me.

The announcement comes from neither the Diocese of Phoenix (pace 1983 CIC 1355-1357) nor from Sr. Margaret’s religious superiors (pace 1983 CIC 573, 654, 696), but rather from St. Joseph’s Hospital, that is, it seems, from her employer. Now, whatever one makes of the process for remission of sanctions possibly automatically incurred and apparently later formally declared or imposed—and we do not have enough information to speculate on those permutations—the one group that is not empowered to bring about the reconciliation of anyone under an ecclesiastical sanction is that person’s employer. So, it seems, someone else must have acted here, and that someone else must have communicated their actions to Sr. Margaret and/or to St. Joseph’s Hospital.

Given the extraordinary publicity that was associated with this matter and the direct statements made on it by the competent ecclesiastical authorities, I think it would be good to know, officially and free of ambiguous phrases like “reinstatement with the church”, that Sr. Margaret’s status has been rectified. Considering that sanctions themselves operate in the external forum, appropriate news of the remission of a high-profile censure can, I think, be offered or confirmed without endangering the internal forum; doing so here would broadly contribute to the common good.

That said, I hope the report about Sr. Margaret’s status is accurate, and that we can put this sad episode behind us.

PS: I’ve seen nothing in these recent reports suggesting that Bp. Olmsted’s revocation of the Catholic identity of St. Joseph’s Hospital would be impacted by changes in the canonical status of Sr. Margaret.

I have family and friends who (Deo gratias) do the hard work of following closely the ebb and flow of political theories and the rise and fall of politicians who back them. Many abler than I have already weighed in against Newt Gingrich’s conversation-stopping comments to the effect the human life begins at implantation [of an embryonic human being in the mother’s uterine wall]. I simply offer a canonical reinforcement of their remarks.

In 1988, the Pontifical Council for Legislative Texts authoritatively (authentice) answered the question about whether deliberate destruction of pre-natal human beings “by any method at any time after the moment of conception” (quocumque modo et quocumque tempore a momento conceptionis) was an excommunicable offense under Canon 1398. The Council’s answer, approved by Pope John Paul II on 23 May 1988, was Yes. See AAS 80 (1988) 1818-1819.

Since that ruling there has not been, of course, a rush to excommunicate women for, say, miscarriages, etc., etc., and not just because such things were never threatened in the first place, but for simple legal reasons that basically leave hard cases (and there are hard cases, although miscarriage is not one) in the confessional, where they belong, while preserving the principle that innocent human life, at any stage of dependency and irrespective of how it came to be, can never be intentionally targeted for death. CCC 2271, 2275.

Update, 5 December: Well, this is interesting.
 

Recommended: Fairbairn’s guide for beginning Greek and Latin students

It’s nearly Christmas, and with it comes the challenge of shopping for that budding linguist or seasoned translator in the family. Search no more: Just get a copy of Donald Fairbairn, Understanding Language: a guide for beginning students of Greek & Latin (Catholic University of America, 2011) 190 pp. ISBN: 978-0-8132-1866-3.

Fairbairn, like me, is neither a classicist nor a linguist (in the strict sense); rather, as an historian and theologian, he uses Greek and Latin to get at the roots of deeper questions, just as I use (mostly) Latin to delve into canonical questions. Over the decades, both of us, it seems, developed similar approaches to learning these ancient languages that worked for us as students of Greek and Latin (and not as ‘proto-teachers’ of G&L, although we both have taken on such duties in our respective institutions). And precisely as once-beginners in ancient languages, with vivid memories of struggles we experienced, we want to encourage students to stick with it for reasons that, well, can hardly be explained.

Even a rank beginner in ancient language will profit by Part One of Fairbairn’s text, but with even a semester, let alone two, of either Greek or Latin, his explanations of the concepts behind Greek and Latin will greatly assist the student in orienting the English speaker to their wonderful world.

On my list of books that I am really, really grateful someone else took the time to write, Fairbairn’s Understanding Language figures prominently. I wish I had read it 20 years ago, but I am glad I read it now.

My own Ecclesiastical Latin Page is here.

Sandro Magister’s recent column on the debate over clerical celibacy and continence is worth a careful read. While continence is distinguishable from celibacy, of course, it is closely related to it in terms of history, theology, and canon law. I and others argue that continence is the primary good protected by Canon 277 (and by the unbroken line of legal provisions leading up to it) and that celibacy, although truly “a special gift from God” in its own right, is ordered to continence. But all of this is discussed elsewhere.

Here I limit myself to three remarks on Magistro’s essay.

Magister rightly names the Jesuit priest Christian Cochini and Alfons Cdl. Stickler as among major scholars refuting the received history that clerical celibacy/continence was optional for many centuries in Church life, that the West only gradually imposed these weighty obligations on its clergy, and that the East maintained the original institution of married clerics exercising their conjugal rights. There are other scholars pursuing these lines, of course, including the priests Stefan Heid, Donald Keefe, and Thomas McGovern, and some recent doctoral students.

I thought it a bit odd that Magister cited Eastern canon law on married clerics, but not Roman canon law, despite the fact that Western law (c. 277) expressly preserves the value of clerical continence (although, of course, that value has not been inculcated in formation programs for married clergy).

As for whether there are quite as few scholars pursuing the continence issue as Magister suggests, I grant that relatively few scholars are weighing in either way on this matter (most preferring, perhaps, to let only the most serious researchers wade into such deep and turbulent waters), but would add that at least some of those trying to have their views in behalf of clerical continence aired have run into problems over the years getting their works into print. In any case, that is changing in recent times and awareness that these serious questions are afoot is widespread now.

Finally, a reminder that, while reform in the Church is constant, it happens slowly. +++

ps: Readers know of my appreciation for those doing translations, so, a special note of thanks to Matthew Sherry for his consistently fine work in bringing Magister into English!
 

If we have to say it, we will: No conjuring up the dead on campus property

Granted, a lot of things get hosted in student unions that administration knows nothing about, and the same can be said of many postings on a college website, but by now the St. Bonaventure University higher-ups must know that their website was used to promote a “spiritualist” contacting the dead, on SBU property, on behalf of SBU students and staff. Seems to me it’s time for an addition to the SBU Policy Handbook, something along the lines of “No campus assets shall be used to promote divination or superstitious practices. Violations of this policy are grounds for disciplinary action.”

The Catechism of the Catholic Church, n. 2116 states “All forms of divination are to be rejected: recourse to Satan or demons, conjuring up the dead or other practices falsely supposed to ‘unveil’ the future. Consulting horoscopes, astrology, palm reading, interpretation of omens and lots, the phenomena of clairvoyance*, and recourse to mediums all conceal a desire for power over time, history, and, in the last analysis, other human beings, as well as a wish to conciliate hidden powers. They contradict the honor, respect, and loving fear that we owe to God alone.” See also CCC 2117.

Back in the day, Canon 2325 of the Pio-Benedictine Code (1917) stated “Whoever excites superstition or perpetrates a sacrilege is to be punished by the Ordinary according to the gravity of the fault, with due regard for the penalties established by law against such superstitious or sacrilegious acts.” The great Swiss-American canonist, Charles Bachofen, commenting on this norm, recalled for readers that Decretal canonical commentary gave “a long list … [of such deeds, including] geomantia, aeromantia, hydromantia, pyromantia, haruspicium, auspicium, augurium, pedomantia, chiromantia, omina, onyrocritica, physiognomia, spatulamantia, metoposcopia, pythonia, necromantia, and astrologia” adding “we quote these names to show that the number of fools has not yet decreased.” Dom Augustine, Commentary VIII: 313 (1931).

By the early 1970s, when modern penal canon law was being drafted, the occult was not a serious problem among Catholics, and Canon 2325 did not seem to warrant inclusion in the revised law. But SBU’s experience, and similar instances elsewhere, suggest that the spiritual crisis gripping the West has left the door open for a resurgence in these stupid, and evil, stunts.

Maybe it’s time to dust off some old canons.

* I do wonder, though, whether “the phenomena of clairvoyance” should be listed here. If clairvoyance, whatever exactly that is, is a phenomenon (as opposed to a willed action like palm-reading or astrology or seances) then further study of it might be legitimate, no? + + +

Same Day Update: Sounds like SBU is taking the right steps to address the mess.

I understand that other bishops have issued decrees similar to the one issued by New York Abp. Timothy Dolan a few days ago, but anything that New York does inevitably serves as a reference for other local Churches, and so “Dolan’s Decree”, as it has been dubbed, against formal ecclesiastical cooperation with so-called “same-sex weddings”, deserves a closer look. Catholics striving to think with the Church will, I think, like what they see.

Preambulatory matters

Most of the first paragraph of the decree is taken directly from Canon 1055 of the 1983 Code of Canon Law. The last sentence of the paragraph resonates strongly with Canon 747 § 2.

The second paragraph recites facts not in serious dispute.

The third paragraph begins with themes enunciated by Canon 386 § 1 and, drawing on episcopal authority recited in Canons 381 § 1 and 392, proceeds to enact particular legislation for the Church of New York. My lone quibble with the decree is here, with +Dolan’s use of the word “moral” to describe the authority he has over those subject to this decree. I would have suggested that he say “canonical” authority, as its meaning is clearer in this context, but “moral” works too.

Disciplinary matters

Norm 1. Catholic clergy belonging to or working within the AONY are expressly forbidden from taking any part, at any time, in “same-sex wedding” ceremonies. While ministry to homosexual persons, even those claiming to be married to a same-sex partner, is not prohibited, of course, I would take the decree to prohibit clergy’s mere attendance (as a type of ‘advantage’) at a “same-sex wedding”. Canon 209 § 1 is also relevant here, as is, of course, Canon 273.

Church lay and religious employees acting in the course of their duties are also prohibited as above, but it’s not easy to think of how they might actually be involved in such ceremonies, except as specified in norm 2, below.

The reference in the last sentence of norm 1 to canon law expressly prohibiting ecclesiastical solemnization or celebration of “same-sex marriages” comes about, I suggest, as follows:

Canon 1055 defines marriage as a consortium between a man and a woman, and Canon 1066 requires Catholic ministers to assure themselves, before any wedding is celebrated, that nothing stands in the way of its valid and licit celebration. Such could never be verified of a “same-sex wedding”, of course, so a Catholic minister could never lawfully participate in such a ceremony. Indeed, to attempt to do so under these circumstances would be to violate Canon 1389. Moreover, among Catholics (and for that matter, among baptized persons), marriage is a sacrament (c. 1055 § 2) and, where a wedding would be null on its face (as would the case of two persons of the same sex attempting marriage), to attempt that wedding would be to simulate a sacrament, an action forbidden by Canon 1379. For the ecclesiastical would-be officiant, such would again be a violation of Canon 1389.

Norm 2. Specification of directives contained in norm 1.

Norm 3. In part, a specification of directives contained in norm 1, but also an application of Canon 1376.

Norm 4. It is not necessary, for the enforcement of most canonical penalties, to recite this kind of warning, but it serves to underscore the gravity of formal cooperation with actions forbidden by divine and canon law.

Finally, the decree became effective as soon as it was issued (as opposed to after 30 days, per c. 8 § 2), another sign of the immediacy of the problem that the Church is confronting here. + + +

I think the statement issued today by the Illinois Catholic bishops in response to Gov. Patrick Quinn’s formal cooperation with an organization committed to advancing the death of pre-born babies is good. The bishops spoke correctly, concisely, and quickly in their statement about an important matter. Three for three, in my opinion.

Yes, there is some consternation in the blogosphere that the bishops did not declare Quinn ineligible for holy Communion. And yes, I share the impatience of many Catholics for more direct action in accord with Canon 915 against the reception of Communion by the publicly unworthy. But, no, I don’t see the Illinois bishops’ statement per se as a failure in that regard. Rather, the issue simply did not come up. Whether it should have come up in this document, I cannot say (but probably not, given the negligible authority that state Catholic conferences enjoy under canon law); whether it will come up now in light of this statement, I cannot predict (but I would encourage prompt attention to the question). I only know that it did not come up, and so the status quo in this matter, for better or worse, remains unchanged.

Thus, individual bishops remain free to restrict Quinn’s access to holy Communion for so long as he remains publicly at odds with fundamental Church teachings on several grave issues; so, too, do individual pastors and other ministers of holy Communion, though I recognize that the bishops of Illinois are in a better position to establish a consistent approach to the governor than are individual ministers.They can also better explain, to the governor and to the public, how such conduct can be repented of, and how one can be welcomed back to the Table of the Lord. But nothing in the bishops’ statement makes it less likely that the governor will, sooner or later, face canonical consequences for his conduct, and much of the bishops’ statement suggests to me that it will be sooner, not later.

In short, even if the bishops could have and should have said more about how to deal with the scandal that Quinn’s conduct causes the Church, what they did say about it today was good and helpful.
 

The 2011 issue of Roman Replies and CLSA Advisory Opinions, published by the Canon Law Society of America, contains two items of interest to those following the discussion of clerical continence under Canon 277. The first, offered as a “Roman Reply”, is a brief letter from Abp. Francesco Coccopalmerio, president of the Pontifical Council for Legislative Texts. The second is an advisory opinion by Rev. William Woestman, omi, now with the Archdiocese of Chicago. Both gentlemen disagree with my interpretation of Canon 277.

Now, I say “my interpretation” advisedly. I am not alone in reading Canon 277 as imposing an obligation of continence on all Western clerics, married or celibate, though I am presently the author most engaged in the public debate about the sharp discrepancy that has set in between the text of and tradition behind Canon 277 on the one hand, and the lived experience of tens-of-thousands of Western married clerics and their wives on the other. Also, my interpretation does not, contrary to how it is usually presented by opponents, direct a single specific resolution, but instead admits of various resolutions.

In any case, Abp. Coccopalmerio’s letter and Rev. Woestman’s opinion need reply, the first, because it will inevitably be mistaken for something akin to Roma locuta causa finita (which it quite clearly is not), and the second because it is a rare example of a qualified scholar trying to deal with this complex question in a competent manner. I disagree with the conclusions contained in both documents, but Rev. Woestman’s, especially, raises some points that will allow me, I think, to show how the question of clerical continence in the Roman Church remains very much an open one.

My reply to Abp. Coccopalmerio’s letter is here; that to Rev. Woestman’s opinion is here.

I’ve avoided commenting on an idea being floated in the last few weeks that someone should “mediate” the conflict between Bp. Zurek and Fr. Pavone, but now that the proposal has been publicly made by a responsible party in this matter, a few comments on it might be useful. Basically, the word “mediation” gets used in two senses; it makes a difference which sense of “mediation” one has in mind.

If “mediation” is taken in the loose sense of ‘two sides in a dispute sitting down and talking’, typically with a neutral but knowledgeable third-party present, then, yes, mediation could be a good first step toward trying to resolve the Zurek-Pavone conflict and it should be given a chance to work, even now, despite the gaffs committed by both sides up to this point.

But if “mediation” is taken in a stricter sense of ‘attempting to reconcile the competing views of two sides to a dispute wherein both sides have a more-or-less equal say over the outcome’ then, no, mediation is not likely to offer much potential for progress here. The canonical and ecclesiological fact is that Zurek and Pavone are not equal sides in this dispute.

Mind, right-versus-wrong is not a one-way street in this case.

For example, Pavone should not, in my opinion, ask for “mediation” of Zurek’s twice iterated statement that Pavone is “suspended”. A bishop’s repeated use of such terminology in regard to a priest who has been neither charged with nor convicted of any crime is wrong, and one does not call for “mediation” of a wrong done one, but rather, for its prompt and unambiguous correction.

Moreover, I don’t see how it’s appropriate to call for “mediation” of Zurek’s request to examine the books of PFL and its sundry affiliates. Zurek either has the canonical authority to demand such records or he doesn’t. Granted, canon law itself might be unclear in this unusual case (exactly who is the competent ecclesiastical authority over a private association of the faithful, approved in San Francisco but headquartered in New York, whose Director happens to be a priest incardinated in Amarillo?), but such questions are matters for legal clarification, not “mediation”.

But those two issues aside—one a matter wherein Pavone is clearly in the right, and the other a matter on which both sides might be in some doubt—everything else in this case seems to be (based on what is known publicly) something over which Zurek has clear-cut authority to direct as he sees fit.

For example, let’s suppose that Zurek were to say to Pavone something like, “I want you to resign the leadership of Priests for Life effective by the end of this year. On January first of 2012, I am appointing you associate pastor of All Holiness Parish, to serve in accord with canon law under the direction of Pastor Bill Bigheart, at which point you will enjoy all of the faculties for ministry enjoyed by other pastors and associate pastors in this diocese.”

What, pray tell, would there be to “mediate” about such a directive?

Sure, Pavone might not want to give up his leadership of PFL, and PFL might even suffer in his absence; Pavone is certainly free to make those points to Zurek, but neither factor alone nor both together bind Zurek’s hands nor give rise to grounds for “mediation”.

Could Pavone take “recourse” against such directives? I suppose, for the bar for filing recourse is fairly low. But the bar for overturning a bishop’s lawful orders to one of his priests is quite high. Pavone could also exercise his right to seek excardination to another diocese or religious institute, but seeking excardination, and getting it, are two different things. In the meantime, neither recourse nor diocese-shopping would justify Pavone’s refusing to follow such lawful directives as he might receive from his bishop.

While some other issues occur to me, it suffices for now to suggest that, before any mediation, at least in the more formal sense, is undertaken in this matter, it behooves us to make sure that there is something to “mediate” in the first place. + + +

Summary of my posts on the Zurek-Pavone conflict.

Many, many people were fervently praying for a good outcome to yesterday’s meeting between Fr. Pavone, who had expressed his desire to meet with his superior in Amarillo, and Bp. Zurek, who last week offered a personal meeting to Pavone with ample notice. Those petitions were dashed, however, when (to what I think must have been the universal surprise of observers) Pavone simply failed to appear.

Now, a “private meeting” between a bishop and one of his priests “to discuss his spiritual progress” poses (for reasons I can elaborate, if useful) zero canonical risk to a priest in disciplinary contention with his bishop. Conversely, the benefits of such a meeting, for men committed to improving their relationship, can be enormous. Basic risk-reward analysis would say, “Take the meeting.” So what happened?

Maybe Pavone saw in Zurek’s letter only an “invitation” to meet and did not know, or want to know, that, in diocesanese, an “invitation” from a lawful superior to a recalcitrant subject to meet privately is tantamount to saying “here is our chance to talk behind closed doors before this gets any nastier”. Perhaps Pavone narrowly read the “invitation” from Zurek as something he was free to accept or decline. But if so, good manners should have led Pavone to let the bishop know that he was declining the invitation. And a lot of folks could have then saved their prayers for a meeting that Pavone apparently had no intention of attending.

But even if word-splitting accounts for Pavone’s refusal to meet with Zurek, a strict ‘parsing-of-words’ defense is not one I would suggest for Pavone: whatever the character of Zurek’s overture to Pavone, the topic of their meeting was to be Pavone’s “spiritual progress during this time of prayer and reflection”. What, therefore, Pavone rejected was a meeting with his own bishop to discuss matters squarely and unquestionably within the authority and responsibility of his bishop. It’s just not where a priest who, as I have said several times, has suffered some injustice in the course of this dispute, wants to draw a line against his bishop. He’s bound to lose that one.

Okay, I have no crystal ball to divine the future here, but I would be surprised if Zurek offered Pavone another “invitation”. My guess is the next communication will be a precept. + + +

Update, same day. Fr. David Diebel, Pavone’s canonist, now says that he advised Pavone against meeting with Zurek. I’ll not second-guess a lawyer’s advice to his client; folks can (and doubtless will) assess that advice for themselves. I will simply observe that, the opinions of lawyers notwithstanding, these cases always come down to the conduct of the principals.

Summary of my posts on the Zurek-Pavone conflict

Deacon Peery Duderstadt’s essay in the current issue of Chicago Studies, “A Modest Proposal”, attempts to reply to an article I wrote last year for Chicago Studies, “Diaconal Categories and Clerical Celibacy”. Duderstadt’s work is poorly conceived and very poorly executed. While it would be tedious to discuss all of the flaws in his essay, I feel that some response is in order. My criticism of Duderstadt’s essay must, I fear, be blunt. I have no desire to embarrass anyone, of course, but it might be instructive for others to see, from time to time, just what kind of ineptitude is wont to present itself, even in respected venues, as informed refutation of my (and others’) interpretation of the law.

My three-page Memorandum regarding Dcn. Duderstadt’s remarks on Canon 277 and clerical continence is here: http://www.canonlaw.info/PDF-Duderstadt.pdf.

I just read Al Kresta’s response to my blog post wherein I criticized him for giving Fr. Pavone extended air time last week to present his side of his painful dispute with Bp. Zurek. Like everything else Al does, his essay is reasonable and charitable. May I reply in kind.

Skipping the statements I agree with (such as, Pavone et al. are making his situation worse, not better), I’ll discuss only those points wherein I think Al has missed my meaning or with which I simply disagree.

First, I am not “upset” that Al did the interview; I think it imprudent for him to have conducted it, but it doesn’t “upset” me that he did it. And I don’t think, paternally or in any other way, that anyone is responsible for protecting Pavone from himself. Whether that countenances, however, providing a disputant with a wider stage from which to worsen his situation (a continuing concern of mine), others may decide.

All of my commentary on this matter has addressed statements or actions already in the public arena. Even so, I have only written about those aspects of this matter wherein important points of Church law or clerical practice have been abused or misrepresented by Zurek, et al. or by Pavone, et al. My blog, therefore, of its very nature, and in contrast to Al’s media interview, accords neither party the opportunity to improve or worsen his position or reputation.

(The whole reason for my blog is to identify and explain the canonical aspects of events that people see in daily life, thinking, as I do, rightly or wrongly, that, without my explanations, much more confusion about Church discipline would circulate uncorrected than already does. Perhaps I exaggerate my contributions to clarity. Anyway, my interest in this case lays not in vindicating one side or the other, but in explaining, in an accessible, useful, written format, the laws and theological considerations that apply to both sides.)

Okay, Al plainly sees the Zurek-Pavone dispute as essentially a news story. I understand his view, and I respect it, but I see this matter quite differently.

I see the Zurek-Pavone dispute as essentially a disciplinary issue between a sitting bishop and one of his priests (albeit a famous one). Now, precisely as a disciplinary matter, it should be settled in accord with ecclesiastical discipline; but—and here’s the key—the canonical process for treating disciplinary matters is not conducted over the airwaves.

It’s not like Al interviewed a Democrat and Republican on the national debt with the goal of helping his listeners to navigate the two sides in light of Church teaching. No, here, Al interviewed a diocesan priest who is in open contention against his bishop concerning matters of ecclesiastical discipline. There simply are not two “sides” here. There is an ecclesiastical superior trying to deal with an ecclesiastical subject. Al’s interview was not about Pavone vis-a-vis the forces of darkness, it was about Pavone vis-a-vis his own bishop. I think the differences between the two kinds of issues are so striking as to have made it obvious from the get-go that such an interview was a bad idea.

But the problems, in my opinion, go deeper.

With a sense of journalistic fairness, Al duly invited Zurek to present his ‘side’ of the story. But, see? that, too, is one of my objections: since when do bishops need to present (let alone to present on national live radio) their ‘side’ of a disciplinary dispute with one of their priests? I hope that, on further reflection, Al will see that even to have made that offer to Zurek showed an implicit assumption on his part that some kind of ‘organizational or authority parity’ exists between a bishop and his priests. But, it doesn’t.

So Al, as the upright journalist he is, thought he was being fair to both sides, while Ed the canon lawyer saw not two sides competing for the vindication of their opinions (both of which sides should welcome air time to push their positions) but, rather, an ecclesiastical superior, who is attempting to direct the actions of a subordinate, being asked to explain himself before the public. Of course it’s inappropriate.

Finally, beyond offering Zurek a chance to defend himself in this conflict, Al has now stated, twice, that an offer to Zurek to come on his show was made, but that the bishop declined. Now, in the world of journalism, for one “side” in a hot dispute to decline free air time makes that side look, if not guilty, then at least uncertain or afraid. Again, I have to ask, why should bishops be made to look like that when they are acting in matters of internal Church discipline?

So, in my opinion, No, Pavone should not have been offered extended media time on a show that is the gold standard of credibility, Zurek should not have been offered equal time as if he were Pavone’s equal in this conflict, and Zurek’s not responding to the offer should not have been reported to the public.

My other points must be brief.

1. I have listened to the entire Kresta-Pavone interview, now, and, in my view, Pavone turned several key questions to suit his answers, while some obvious follow up questions were not asked by Al. Perhaps time will permit me to parse the interview in the detail it deserves, though remember, blogging is not my day job, even if radio is Al’s.

2. Al’s criticism of me for not having “interviewed” Zurek or Pavone is misplaced; I am not a news reporter, and I don’t need ‘sources’ for my analysis of what’s already news to stand. I comment, when I can, on canonical and theological matters that others have put in the public arena.

3. Similarly, what exactly does Al think there is for me to debate with Fr. Diebel (Pavone’s canon lawyer)? I don’t represent one side or another, and I am indifferent as to how (among many ways) this matter resolves. My concern is that canonical and theological errors (and some blunders, as I have pointed out for both sides) be corrected, lest the public take the wrong lessons from the conduct of the principals in this case. But Diebel has made no mistakes and my few remarks in his regard have been supportive!

4. Finally, I don’t keep bringing this matter to the public. The two sides (though lately, mostly Pavone et al.) keep bringing it to the public in a way that, in my opinion, requires correction by one who knows what the rules are, and how they apply to both sides. I strive to point out these things objectively.

So, okay, Al Kresta and I disagree strongly on the in/appropriateness of his Pavone interview. Whether Al comes round to my view of this as essentially a disciplinary matter to be resolved internally, or whether I come round to his view of it as a news story to be reported from both sides, remains to be seen. But, while we disagree on this matter, this matter is all we disagree on. If a canonist may put it canonically, our communion per Canon 205 is untouched by our differences on this matter.

And I find that a source of consolation in this too, too divided world. + + +

Update, 29 Sep: Al Kresta has posted a brief and helpful reply to me here. I think it’s a good place to let this particular aspect of the discussion rest.

Disputes between public figures often turn, at least in part, on private personalities, but the on-going dispute between Bp. Zurek and Fr. Pavone reveals, I suggest, some deeper questions. Both sides have made mistakes in this mess but Zurek’s errors have to some degree been corrected. Pavone, however, continues to operate, I fear, on a faulty understanding of, among other things, Church structure and practice. While I still do not know how this matter will be resolved, and while a number of outcomes are possible, continued high-profile comments and actions by Pavone and his supporters impede progress toward that resolution and warrant, I think, continued commentary here.

During the period of prayer and reflection to which he was directed by his bishop, Pavone has continued his testy tweets, a la “Ever notice how many people presume to know more about your life than you do?” One might be tempted to ask in return—oh, never mind, such repartee gets old quickly. In any case, Pavone has not, so far, been silenced by his bishop, and one might yet hope for more self-restraint from a major public figure and priest, instead of more carping.

Meanwhile, the Center for Bioethical Reform (endorsed by Pavone, who apparently still sits on its board) began its protests against Zurek on Friday last by circling the Amarillo cathedral (and its elementary school!) with trucks bearing color pictures of aborted babies as a similarly bannered plane flew over the city. CBR President Cunningham, who describes himself as a “friend of the Church”, manned a sign sporting Zurek’s office phone number and email address, and promised to bring his Pro-Pavone campaign to every parish in the diocese until Zurek decides to “Free Father Frank.” If Pavone is a member of the CBR Board, then—and this, no matter how his own case is resolved—he should immediately and publicly resign.

But it was a couple of comments made during a lengthy, two-part radio interview last week with Al Kresta that raised in my mind new questions about the ecclesiology of Fr. Frank Pavone.

I thought it a bad idea for Kresta to give Pavone what amounted to a 40 minute infomercial while his dispute with Zurek was in full swing. Whatever problems provoked this conflict, its correct resolution must draw heavily on objective principles of canon law, and neither Pavone nor Kresta are competent to explain that canon law to the public. Indeed, Pavone’s characterizations of canon law went unchallenged in the interview and he deftly skirted some other key issues. But parsing that discussion is for another day.

In his interview Pavone recounted for Kresta that, while he was a seminarian, he had on the wall of his dorm room a map of the world underneath which was written Methodist John Wesley’s famous line “All the world is my parish” (Pt. I, 21:30 ff). Granted, a Catholic sense can be given Wesley’s point, but such a slogan falls well short of the Catholic vision of pastoral organization, and its continued use by Pavone is telling.
 

Wesley’s low* ecclesiology let him see the world as a sort of parish, but Catholics can see more. We have “particular churches” known as dioceses (c. 368) under the direction of bishops (c. 381) who have the fullness of Orders, and it is within the context of the particular Church that most Catholic men ordained to diocesan priesthood are called for most of their lives to work out their salvation, yes, in fear and trembling. Pavone and many of his allies, however, are applying Wesley’s model of the Church against Zurek.

Consider: However Methodism might expect its ministers to graduate from seminary and find communities to serve, diocesan Catholic priests such as Pavone are not ordained for at-large ministry wherever they decide to carry it on. Church law knows of extra-diocesan priestly work and makes certain provisions for it, but paradigmatic ordained Catholic ministry is generally offered, and will always be offered, by clergy working over extended periods in a specific place under a local ordinary. It is Pavone’s style of national (for that matter, international) priestly ministry that needs special authorization, and not Zurek’s exercise of authority that needs to be tailored to Pavone’s perception of his mission.

Pavone’s diminished appreciation of diocesan priestly work, coupled with his own sense of importance in the pro-life movement (whether that sense is accurate, I do not know), leads to his apparent negative view of possible pastoral assignment “in a little diocese in the middle of Texas” (Pt. II, 11:55 ff). You know, as if Catholics in Amarillo are less deserving of quality priestly care than are Catholics in Gotham City, or as if, more broadly, any really smart and truly pro-life priest would protest the prospect of his caring for the faithful in a dinky parish in the middle of nowhere, at least when there are yet abortion mills open for business.

Wesley’s model of the Church as essentially a parish without boundaries is not the ecclesiology of the Catholic Church. If Pavone uncritically imbibed that view in his youth, he needs to move beyond it now.

* Update, 28 Sep: Following various discussions of the Pavone matter, I see that some folks think that my reference to John Wesley’s “low ecclesiology” is inaccurate. I am happy to take correction from others on this point, but I would remind critics that I write from a Catholic point of view for a Catholic audience facing questions in the Catholic Church. Now, Methodism does not have sacred Order (as Catholics use that term) and therefore Methodism cannot be a Church (as Catholics use that term). When a Christian ecclesial community has no hierarchy as Catholics use that term (pace Methodism’s “bishops”), then, by our lights, Methodism is a “low ecclesiology” Christian belief system. People who know more about Wesley and Methodism than do I (or for that matter, than does my father, the family Methodist), may argue whether modern Methodism is or is not Wesley’s ecclesiology, or is or is not the logical consequence of Wesley’s ecclesiology, and, as I say, I am willing to take instruction on that point.

But none of this changes my fundamental concern about the deep impact on Pavone’s thinking that Wesley’s famous remark (about the world being his parish) has obviously had on him. However one might describe Wesley’s ecclesiology, it simply is not Catholic ecclesiology, and Pavone’s invocation of Wesley provides him, and others, with precious little guidance toward correctly understanding the structure of the Catholic Church and accepting its implications for his own life and work.

As an example of how bishop-priest disputes should not be conducted, the Zurek-Pavone episode is, I’m afraid, the well that never runs dry.

I do not know what the outcome of the Zurek-Pavone case will be. I do not know what the outcome ought to be. I know only that, so far, almost every public action or statement by the principals in this case, and their allies, has made achieving an appropriate outcome more difficult, not less.

Most recently, I had hoped, rather against hope, that Bp. Roger Gries’ letter in behalf of Fr. Pavone would pass relatively unnoticed. But now that the Cleveland auxiliary bishop’s letter has been posted on the Priests for Life website, extensively quoted by Steve Ertelt at LifeNews.com, and picked up by numerous on-line news sites, that’s obviously not going to happen.

Curiously*, in his report Ertelt does not quote the single most problematic line in Gries’ letter, the one wherein the bishop encourages prayers for “Father Pavone [who] is currently facing some difficult days as he negotiates with his bishop.”

Negotiates with his bishop?

Is that what Pavone is doing with Bp. Zurek, negotiating? Is that what Gries thinks a diocesan priest who has promised obedience to the bishop should be doing, negotiating the terms of that obedience?

Gries had, of course, every right to privately contact his brother in Amarillo and urge whatever action Gries felt appropriate; instead, Gries went public with a letter that increases partisan pressure on Zurek to “negotiate” with one of his own priests concerning that priest’s ministry!

I hope and pray that Gries’ letter does not become a model for others for others in this, or indeed any other, bishop-priest disciplinary matter. + + +
 

*Ertelt should have noted for LifeNews readers that he was the first to sign an on-line petition at LifeNews urging Zurek “not [to] take Father Frank Pavone out of the pro-life fight . . . Saving babies from abortion is his priestly vocation [sic] . . . I pray that you will amicably resolve your differences with Fr. Frank . . .”

(Please excuse the formatting oddities that might appear in some views of the above.)

Summary of my posts on the Zurek-Pavone conflict
 

I have learned far more from the great Dr. Peter Kreeft than he has ever learned (or had need to learn!) from me, but I think his recent remark that it would be good to see one hundred bishops thrown in jail for carrying graphic images of aborted babies needs some nuance. His comment also lets me make a few points regarding the use of graphic imagery by pro-lifers.

1. Abortion is brutal, ugly, and downright disgusting. But, pro-lifers didn’t make abortion that way, it already is that way. The vast majority of the adult population in the US does not appreciate how violent abortion is; they have a sanitized impression of abortion, fostered by such words as “clinic” and “procedure” and “choice”. Pictures contextualize those words in an instant. If memory serves, the greatest progress against “partial-birth abortion” came when (wholly accurate) diagrams of scissors being jammed into the base of nearly-born babies’ skulls began to circulate.

2. I’ve always been more amenable to the use of graphic images of abortion than have some other, quite sound and amply dedicated, pro-lifers I know of, but at least some of my ‘tolerance’ can be ascribed to simple things like a sterner stomach. In any case, one’s degree of openness to the use of graphic abortion pictures should not be regarded as a measure of one’s dedication to saving lives or as a test of one’s pro-life machismo.

3. Good arguments against the use of such photos, especially in certain contexts, exist and should be heeded. No one I know of thinks, for example, that photos of aborted babies should be paraded through grade-schools in the hopes that, say, it will frighten 8-year-olds away from seeking abortions ten years later. But the use of such these images in public venues and easy-access websites threatens exactly this sort of premature and traumatizing exposure.

4. Pictures of abortion victims must never, ever, be used for any purpose except to directly and prudently educate adults about abortion. Using dead baby photos to, say, influence bystanders into pressuring Church officials to make personnel decisions about their clergy who are working in one of many worthy pro-life apostolates is, besides everything else that is wrong about that, to exploit the death of the very victims one claims to love.

Now to Kreeft’s comment, distinguens.

It is one thing to say that “It would be good if one-hundred bishops were thrown in jail for carrying pictures of aborted babies,” and another thing to say “Good could be drawn from having one-hundred bishops thrown in jail for carrying pictures of aborted babies.” The second claim is wholly defensible, I think, the first is less so.

It is never “good” for the coercive power of the State to be applied against individuals, let alone against bishops, striving to proclaim the Gospel and/or to witness to the demands for Christian living. Such coercion is wrong itself, of course, but it also, as history shows time and again, feeds the appetite of the State to inflict yet more suffering on the Body of Christ. Nothing, however casually offered, should be said to encourage such actions. Yes, I know, sanguis martyrum semen christianorum. Amen to that, but Tertullian did not call good the infliction of suffering on the faithful, rather, he showed how God could bring great good from sufferings accepted for his name.

Put another way, I hope and pray that we have one hundred bishops (or philosophy profs, or canon lawyers) willing to be thrown in jail for undertaking any number of good and holy works, but I also hope that we never find out for sure.

I doubt Kreeft would disagree with any of my observations, but I didn’t see these points being made elsewhere, so. . .

Fr. Pavone has issued another statement. It’s pretty clear that he is not getting, or is not heeding, advice to step out of the limelight. Whatever, I find his latest remarks troubling, not so much canonically this time (although there are worrisome signs there), but more for what they indicate about Pavone’s person and direction.

I write here, then, not as a canonist, but as a reasonably intelligent Catholic man, about the same age as Fr. Pavone, sharing the same Creed and sacraments and pope, familiar with pro-life work, who has worked with clergy and seminarians most of his adult life.

Pavone writes, I think, from the heart. I will too. Excerpts from Pavone’s text in italics, my reactions in regular type.

Well, friends, here in Amarillo I am working hard at my computer on various pro-life projects as I await further instructions from the diocese. Nothing yet…

Nothing? What’s that mean? Does a young, healthy priest, in his home diocese, with full faculties for ordained ministry therein, really need to be told what to do with a large, unexpected block of time? If so, I have some suggestions.

Besides engaging in the “period of prayer and reflection” to which you were directed, how about offering to cover some masses for your over-stretched diocesan brothers who are saying two, three (and, shhh!, sometimes four) masses a day for the local faithful? Or how about slipping, a la John Paul II, into a parish confessional for a few extra hours each day to tend whatever souls God might send you? If the liturgical or sacramental work of a secular priest is not your forte, maybe you could visit your elderly and infirm brothers, or fill relief boxes at a community shelter and share some moments with people in need. Would the daily grind of tending souls ransomed by Christ, but at such grave risk in this world, be such a poor use of your time?

Sure, it’s distressing to have to endure false suspicions, inaccurate media reports…

False suspicions are a great cross, and in that respect, Father, you have my sympathy and, weak as they are, my prayers. Truly. But as for inaccurate media reports, while those are certainly a pain, at least some of that inaccuracy has been generated by you.

[It’s distressing to have to endure] disruption to a mission which is at the core of my life.

Stop. Something is seriously askew here. Nothing, not even the most visible (and arguably the most effective) pro-life work in the world, is at the “core” of any priest’s life; nothing is there, besides the High Priest Jesus Christ. That is no pious platitude. For any priest, religious or diocesan, to assert before the world that anything is at the core of his life besides the Son of God is very disturbing.

Tears, sleepless nights, anger, righteous indignation – this and more come to me each day because something is happening to the youngest members of the human family.

Forgive my impatience, Father, but I don’t see anything in this litany of woes that can’t be claimed by virtually every conscientious Christian parent trying to raise children in this wicked age. And nothing in this list has not been endured by every normal adult who, in his or her own way, is trying to make the world a better place, often in the face of appalling injustices (one of which, to be sure, is abortion, and most of which aren’t) but with much less freedom and far fewer resources than you have been blessed with. The vast majority of such folks, however, don’t go around blogging about it. They just quietly do the best they can with what they have.

The images of their mangled bodies accompany me to sleep and greet me when I awake; the cries of their silent voices mingle in my ears with the voices of those who speak to me; their aggrieved rights come to the forefront of my mind when anyone’s “rights” are discussed.

Well, if that’s true, Father, then you need some time off. I mean it. If the last thoughts through your mind each night are not ones of gratitude that the Lord gave you another day on this earth, but only mangled bodies, and if the first thing you think of each morning is not His assured triumph over every evil, but more mangled bodies, then, you need some time off. If you can’t hear the voices of the people that God sends into your life without hearing the cries of dying babies, and if you can’t see anyone’s suffering except in terms of suffering babies, then, in all seriousness, you need some time off. Thank Bp. Zurek for imposing it, however ham-handedly, on you.

The consolation is that there are things I can do to stop this holocaust…

Noooo, the consolation of a priest (well, of every Christian, but especially of every priest) is God. One can’t just continue, as you seem to do time after time, blowing past such key points.

I’m sitting here in Amarillo right now because I’m a faithful and obedient priest, as I promised to be long ago.

Golly, is that supposed to make Amarillo Catholics feel more loved? Seriously, your remarks about the Church in Amarillo have never been very gracious, and now their parishes face offensive picketing by a group that you advise and endorse. I don’t see what Amarillo Catholics have done to deserve such mean treatment. I hope you will disavow that action proposed in your behalf very soon.

But there’s a more fundamental reason I’m sitting here … [it’s] because cooperating with Church authority at this moment is the best way to preserve the mission I lead to save these children.

Cooperating “at this moment”? What does that mean? That “conditional obedience” which I mentioned a day or two ago is back. If “sitting here in Amarillo” gets in the way of the “mission you lead”, are you outta there? Regardless of what you might mean, do you realize what you are saying? Do you realize the kind of example you are setting for seminarians and young priests who, I assure you, feel just as strongly about injustice, including the injustice of abortion, as you do, and who are watching to see how this awful mess resolves? They want to know, is the priesthood (and all of its obligations) a vocation, or is it a devout context in which to carry on a life-long service project?

But let’s be clear. Nobody needs anybody else’s permission to save a human life, to rescue a child from dismemberment and decapitation.

Okay, fine, let’s do set aside the righteous rhetoric and be very clear here: a secular priest like you needs permission from his bishop to take on just about any significant public activity, especially full-time work outside of his home diocese, and a diocesan priest most certainly may not carry out such activities in the face of lawful directives against his undertaking them. I promised not to talk as a canonist, here, so I’ll skip the list of relevant canons. But they aren’t hard to find.

In fact, to fail to do so is to fail miserably as a priest, as a Catholic, as a Christian, and as a human being. God deliver us from that fate.

That remark shows a startling contempt for the lives, work, and witness of tens of thousands of holy priests, hundreds of thousands of holy religious, and millions of holy Catholics and human beings who have never saved a baby from an abortion or taken a single step in prayer outside an aboratorium. And I say that to you as a Catholic man who has done both, many times.

The daily, unseen strivings of the People of God—even those whom you label as miserable failures for never having saved a human life or rescued a child from dismemberment—contribute mightily to the holiness of the Mystical Body of Christ, a holiness on which we all, including you, draw daily. Such people deserve your respect and even gratitude, not words of disdain and disparagement.

I offer a final suggestion with, I hope, with your good, the good of the pro-life movement, and the good of the Church, in mind: stop airing your angst about your situation in public, and let cooler heads on both sides, guided by law, resolve this conflict.

For the rest, this too shall pass.

Updated, 19 Sept 2011:

“Saving lives takes precedence over obeying orders. If not, explain this: http://nyti.ms/pwPJBW” (19 Sept 2011).

This petulant ‘tweet’ from Fr. Pavone confirms, I suggest, the concerns many have expressed regarding the adversative stance that Pavone is publicly showing toward lawful ecclesiastical authority. I’ll just say (at the risk of pointing out the obvious) that Congress’ interpretation of the rules of military conduct as they apply to soldiers under heavy enemy fire sheds little light on the degree of compliance expected of diocesan priests when they receive lawful episcopal directives.

CBR’s plans to aggravate Fr. Pavone’s problems

A group called “The Center For Bio-Ethical Reform” has decided to intervene in behalf of Fr. Pavone. I know little about CBR, but if their goal is to aggravate the Zurek-Pavone dispute, they could hardly have chosen a better array of inflammatory, indeed outrageous, methods.

“Until Bishop Zurek releases Fr. Pavone from what amounts from [sic] ecclesiastical house arrest,” proclaims a press release from CBR, its activists, carrying large color photos of aborted babies, will soon picket many Amarillo Catholic parishes and at least one Catholic middle and high school. CBR also plans to launch “a fleet of large billboard trucks bearing signs which will depict aborted babies” and has arranged for “aircraft towing large aerial billboards which will also bear aborted baby imagery and exhortational text messages.” All of this apparently meets CBR’s definition of “respectfully asking” Zurek to “FREE FR. FRANK!” and allow Pavone to resume his pro-life work outside the Diocese of Amarillo.

Really. I’m not kidding.

About the only doff of the cap to sanity I see in CBR’s announcement is its plan to post “parental warning signs…as a courtesy near targeted churches, to caution parents of small children that they may wish to attend Mass elsewhere.”

Riiiiiight, like parents are supposed to arrive at church on Sunday morning with a carload of kids and, rather than see them horrified by pictures of dead babies, pile everybody back in the car and drive to the next parish (what time is Mass there, dear?), arrive and, Great Scot!, there’s a CBR picket here too!, oh for crying out loud!, where’s the next parish, honey? etc., etc. Meanwhile, just what are parents of students at Holy Cross Academy supposed to do? Drop their kids off at the next school?

Folks, this is plain nuttiness.*

I have defended, I don’t know how many times, the canonical right of Catholics to express their opinions on matters affecting the good of the Church (c. 212 § 3), and I will continue to defend the lawful exercise of that right. But what CBR has in mind is, I think, a caricature of the prudent and informed communication of views—even conflicting views—within the Church. It is, I suggest, not an exercise of the rights recognized by Canon 212, but an abuse of those rights. And, speaking of canons, any Catholics thinking about showing up for a CBR picket of an Amarillo parish or school, should read Canon 1373 as well as Canon 212.

Finally, I can only imagine that CBR’s plans in behalf of Fr. Pavone make him cringe at the prospect of being associated in the public’s mind with it. If, by chance, he has any sway with them**, now would be a good time to use it.

* There are yet more bizzarities in the CBR press release, like, say, this one: “A global battle is raging within Catholicism between clerics who believe the church should do more to fight abortion and those who believe the church should do less.” Ah, yes, that would explain the recent uptick in street fights we’ve seen between gangs of pro-life priests and Sons-of-Drinan clerical flash mobs. Of course, the de rigueur allusion to clergy sexual abuse and the Spanish Inquisition are made in the CBR statement.
 

** It appears that Fr. Pavone is, after all, connected to CBR. Pavone sits (sat?) on CBR’s Board of Directors.

“If you want to know how to end abortion, you don’t want to miss the message of the Center for Bioethical Reform and its director, Gregg Cunningham. That is why I serve with pleasure on the Board of this fine organization.” Fr. Frank Pavone, Director, Priests for Life, Staten Island, NY (cut-and-pasted from CBR’s website today, 16 Sep 2011).

It is now incumbent on Pavone (or better, his counsel) to separate himself from CBR’s plans.

+ + +

Summary of my posts of the Zurek-Pavone dispute.

Edit

Hmmm. I did not want to bother blog subscribers and RSS followers with numerous notices generated by separate posts on the Zurek-Pavone matter, so I simply added updates (as developments warranted) to the original post. Now I see that some readers and followers wished they had gotten notice of those follow-up posts. My bad.

My six sets of comments/discussions concerning this unfortunate situation are all available here, in this order (simply scroll through the post to spot them):

1. Re Zurek’s letter to Pavone, and Pavone’s response to Zurek (14 Sep);

2. Re Pavone’s comments to the National Catholic Register (14 Sep);

3. Re Pavone’s letter to prelates of September 12th (14 Sep);

4. Re whether Priests for Life is a “private association of the faithful” (15 Sep);

5. Re Pavone’s statement upon arrival in Amarillo (15 Sep); and

6. Re Msgr. Waldow’s claims regarding Church property (15 Sep)

Since the above:

CBR’s plans to aggravate Fr. Pavone’s problems (16 Sep)

Some non-canonical reactions to Fr. Pavone’s latest statement (16/17 Sep), updated in regard to ‘Medal of Honor’ tweet (19 Sep)

Bp. Gries’ letter for Fr. Pavone does not help this situation (20 Sep)

M. Medlin, “Canon lawyer analyses issues in Fr. Pavone case” (CNA, 23 Sep)

Is John Wesley really the ministerial model Fr. Pavone wants to invoke? (26 Sep)

My response to Al Kresta (28 Sep)

Brief remarks on Bp. Zurek’s “Clarification” regarding Fr. Pavone (30 Sep)

On Fr. Pavone’s failure to meet with Bp. Zurek (14 Oct)

Is ‘mediation’ the way to resolve the Zurek-Pavone conflict? (16 Oct)
 

A comment or two on Mark Cructher’s report on the imprisonment of Fr. Pavone (6 Oct), follows:

“Oh, dear, it’s no good trying to explain. Protestants always think Catholic priests are spies.”

Substitute “bishops” for “priests”, and “sinister” for “spies”, and Lady Marchmain’s lament about stereotypical Protestant suspicions of Catholic hierarchy’s motives came to mind when watching Mark Crutcher’s 18 minute spiel on the “imprisonment” of Fr. Pavone—being shut away in a tiny convent, several miles down a lonely dirt road, in the middle of the desolate plains of Texas, having only a shovel to fight off scary snakes, and so on. Oh, and no TV. The horror, the horror. Imagine an albino monk from Opus Dei guarding the door, and Crutcher could paint a nice Da Vinci Code style narrative from this palette.

True, Crutcher doesn’t explain why a young man from Manhattan should have any more trouble fending off snakes than do a bunch of little old nuns from Texas, nor does he seems aware of the possibility that maybe a Catholic convent is “out there” at all because the People of God are “out there”, too. But, hey, a lot of things escaped Crutcher’s notice. Like ecclesiology.

Bp. Zurek, however, did not escape Crutcher’s notice.

Per Crutcher, Zurek is “this guy”, this “puppet”, driven by “ego” and “jealousy” into pulling a “stunt” in a “cowardly” manner, as he continues “out-of-control” to effect an “outrageous” deed that “viciously attacks” Pavone and makes others feel “sick and queasy” , etc., etc., etc. Whew!

Any number of replies to this kind of–whatever–leap to mind. But then I think, no, Lady Marchmain is probably right: It’s no good trying to explain.

1. The Zurek-Pavone dispute is public. Based only on Zurek’s letter to Pavone and on Pavone’s response to Zurek as reported at Lifesite News, I offer the following initial observations and/or personal opinions.

Bp. Zurek:

• should not have used the term “suspend” in regard to Pavone, for “suspension” is a canonical penalty for crime (c. 1333), and Pavone has not been accused of any crime.
• is within his authority to recall Pavone to Amarillo in virtue of Pavone’s promise of obedience (c. 273) and may revoke the permission required for any secular cleric to be outside his diocese of incardination for a notable period (c. 283).
• may assign Pavone to a “time of prayer and reflection” and need not give him a specific office (c. 157).
• is responsible for Pavone’s reasonable maintenance (c. 281).

Fr. Pavone:

• is a priest in good standing, specifically with faculties for ministry within the Diocese of Amarillo; absent clarification, however, I would regard as withdrawn Pavone’s faculties for preaching outside of Amarillo (c. 764), for confession outside of Amarillo (c. 967), and for the exercise of other sacred functions such as celebrating Mass outside of Amarillo (cc. 903, 561), none of which restrictions, however, is an express or implied penalty.
• has a right to protest, even vigorously (c. 220), the use of the word “suspend” in his regard, but has alleged no basis to oppose his basic recall to Amarillo or any lawful directives otherwise imposed on him now or in the future.
• has alleged no basis upon which the “public promise” of pro-life work he made in a ceremony “presided over by a Vatican cardinal” conferred on Pavone any special canonical rights able to be invoked against the normal exercise of ecclesiastical authority.
• as the (apparent) CEO of Priests for Life, a “private association of the faithful” (cc. 321-326), Pavone/PFL are susceptible to the “vigilance” of ecclesiastical authority in the administration of its assets (c. 325); who exactly that authority is, however, is not clear from the information in front of me.
• needs to be attentive to the restrictions against clerical involvement in the administration of goods belonging to lay persons (c. 285) and against clerical involvement in negotio (c. 286).

Other aspects of this situation seem to warrant comment, but the above should help sharpen one’s initial understanding of the canonical parameters within which this dispute should be addressed. Let’s all pray, of course, for a prompt and suitable resolution.

2. Update, same day:

Further to my remarks above are the following occasioned by a news article in National Catholic Register.

PFL canonist David Deibel has, I think, a rock solid case for securing withdrawal of Bp. Zurek’s language about “suspending” Fr. Pavone, so solid, in fact, that Zurek might well withdraw it himself. Less clear to me, however, is how the withdrawal of that inappropriate language would necessarily vacate the substance of Zurek’s directive to Pavone to return home immediately and cease all extra-territorial ministry. Suspension and recall are severable issues, and a bishop’s authority to call a priest home is not predicated on whether that priest is suspended.

Pavone’s understanding that a bishop’s job is “to affirm the work of his priest”, at least as Pavone apparently wishes to apply the rule to his work, is not consistent with the numerous descriptions of bishop’s governing authority under canon law.

His statement that “I do not intend to stay in Amarillo” is temerarious coming from a secular priest incardinated in that particular church. Moreover, his statement that “it’s inconceivable that in the Roman Catholic Church there is no place for a priest to commit himself full time to pro-life ministry” is unnecessarily inflammatory, and evidences, among other things, a deficient understanding of what ordained priesthood is about in the first place.

In the heat of the moment, people say things, of course, that they later wish they had put otherwise; I think that is happening here. But, if I were advising either side of this dispute, I’d counsel fewer public statements, more accurately phrased.

3. Another update, same day:

I now have the text of Fr. Pavone’s letter to prelates of 12 September 2011. I have some thoughts on it, as follows.

Finances. The scope of financial supervision that ecclesiastical authority enjoys over groups within the Church varies according to, among other things, the nature and canonical status of the group in question. A “private association of the faithful”, as PFL describes itself, is subject to the least degree of ecclesiastical accountability under canon law—not none, certainly, but relatively little as compared say, to public associations of the faithful or to public juridic persons. I cannot tell whether the bishop of Amarillo has supervisory authority over PFL, nor can I verify PFL’s claims about its cooperation with such supervisory requests as have been made of it by Bp. Zurek but, prima facie, PFL is making a plausible case to have cooperated.

Incardination. The bond between a secular cleric and his home diocese, known in canon law as “incardination” (cc. 265-272), is canonically, ecclesiologically, and spiritually very important. It is not an exercise in adminsitrivia nor is it a mere relationship of convenience between a cleric and an ordinary, but rather, it organizes a relationship rooted in love and law by which an ordained minister of Jesus Christ serves the People of God. By incardination, every secular cleric receives a bishop to whom he owes obedience.

Like marriage, incardination is an all-or-nothing state. One is either incardinated in a diocese (or institute of consecrated life, or a very few other things) or one is not incardinated there. Incardination is not temporary, it is not conditional, it is not revocable, and it is not capable of being held simultaneously in two or more dioceses. Incardination, for these and a dozen other reasons, should never be undertaken hastily.

Incardination can be transferred from one diocese to another, but not upon the simple, or even the emphatic, request of the priest (or for that matter, by a bishop acting unilaterally). In brief, three parties must freely agree to the change: the current bishop, the receiving bishop, and the cleric. Any one of them can prevent the transfer, and in case of disputes, Rome is, for obvious reasons, very reluctant to interfere. By the way, neither the PFL nor the “Missionaries of the Gospel of Life” is capable of incardinating a cleric.

While a contract between an incardinating bishop and an incardinating priest would bind in accord with canon and civil law, and while even appropriate modi vivendi between former bishops and priests should not be casually overturned by newer bishops, it is most unlikely that an “understanding” between a former bishop and a priest can be parlayed by that priest into a bar against the new bishop’s making lawful provisions in regard to the priest for his future work.

I’ll continue to observe this unfolding situation and try to comment when possible and appropriate. Of course, we all hope and pray that it is resolved promptly and appropriately.

4. Update, 15 Sept 2011:

Some are asking whether Priests for Life is really a “Private Association of the Faithful” under canon law? I believe it is.

Abp. John Quinn’s letter of 30 April 1991 to Fr. Lee Kaylor seems to satisfy the admittedly low standard for recognizing a private association as set out in c. 299 § 3, namely, “review” of its statutes by the competent ecclesiastical authority. Abp. Quinn praised Priests for Life in his 1991 letter, but he did not himself erect the association, thus preserving its private character per c. 301 § 3. A later document could have revoked or modified the canonical status of Priests for Life, but I am not aware of any such document.

The inclusion of Priests for Life in the Official Catholic Directory does not, of itself, confer canonical status on the group, but, beyond such listing serving the public convenience, the asterisk-inclusion carries certain tax implications under civil law.

5. Update, also 15 Sept 2011:

Fr. Pavone has issued another statement about his situation.

Personally, I think it imprudent of him to be carrying on his defense through the media. If nothing else, he should allow his canonical and civil counsel to speak for him; generally one’s strong points are expressed more clearly by others, while one’s weaknesses are not paraded. Nevertheless, Pavone has spoken again, so public commentary is in order.

Pavone continues to evidence, in my opinion, a deficient appreciation of the fact he is a priest of the Diocese of Amarillo and an attitude of only conditional obedience toward his bishop.

Pavone writes “I am now in Amarillo—as obedience requires—for my temporary visit as matters with my bishop are worked out.” Now, unless Pavone has been told by his bishop that his visit to Amarillo is temporary (and there is no suggestion that such has been done), then his description of his recall to his home diocese as a “temporary visit” signals an unwillingness to stay as long as his bishop sees fit. Pavone’s characterization of the purpose of his “visit”, namely, to ‘work things out’, is not the language of a diocesan priest committed to serving the People of God under the direction of the local bishop, but rather, of a man who wants to settle a few annoying details with a supervisor so he can get back to his own project.

Pavone invokes the centrality of his “unwavering commitment to the mission at hand” but he obviously understands “the mission at hand” to be the one he has identified for himself, and not a mission as might be set before him by the Church through the ministry of his lawful bishop. The mission of every secular priest, however, is, first, last, and always, to bring Christ to his people; everything else flows from that.

Pavone’s reiteration of the “permanent, lifelong commitment I have to spend every moment of my time and every ounce of my energy defending the unborn from abortion” is stirring rhetoric, but it can’t be taken literally. No one is called to spend every moment and every ounce of energy defending anyone from a specific evil. It is certainly not the call of one who possesses the holy priesthood of Jesus Christ. A priest, especially a diocesan priest, must strive to be all things to all people, not just one thing to some people.

Pavone invokes the memory of Blessed John Paul II, Blessed Mother Teresa, and Cardinal John O’Connor and urges “clergy and laity alike [to] learn from their total commitment to ending abortion.” Fr. Pavone should plumb those examples more deeply himself.

I recognize, of course, that some of Bp. Zurek’s statements about Priests for Life are hard to reconcile with the information available to the public, and that some of his characterizations of Pavone seem imprudent to have made, let alone to have circulated. But binding decisions about priests are not made only by perfect bishops who have a sure appreciation of the ramifications of all of their acts, any more than parishes are led only by perfect priests who have an infallible sense of the will of God. Ecclesiastical decisions are made and carried out by fallible sinners. We just have to deal with it.

I do not know how the Zurek-Pavone conflict will be resolved, but I do know that, in cases of conflict, it’s usually best to start with a clear understanding of the law, so that each side knows where it stands (and here, both sides have some points to urge). Then, let’s see what can be worked out within it.

6. Update, also 15 Sept 2011:

Some of the recent media comments by Msgr. Harold Waldow, Amarillo’s vicar of clergy, add, I think, to the confusion, especially about canon law, clouding the Zurek-Pavone conflict. I’m sure that was not his intention, but this comments require emendation anyway.

Waldow begins correctly enough: “I think Rome has been quite clear the bishops of the United States need to exercise more prudential guidance and governance over the patrimony of the church.” That’s fine.

But then the vicar says: “This [namely, the assets of Priests for Life and its affiliates] is patrimony of the church. It belongs to the church.” Emphasizing the point, Waldow adds: “People give their money over the understanding that it goes to the church or church auspices and programs and ministries.” I believe that these assertions are, in light of the facts available on this matter, quite wrong.

Let’s back up.

Only that property, regardless of what it is or how it is civilly registered, which is owned by a “public juridic person” in the Church (cc. 113-123) is considered to be ecclesiastical or Church property (cc. 1255-1258). There is no such thing as ecclesiastical or Church property being canonically owned by private persons or groups.

Now, I see no evidence that PFL or any of its affiliates are “public juridic persons” in the Church (indeed, they seem not even to be private juridic persons); instead, PFL is, it seems, but a “private association of the faithful” (scroll up), and as such, while PFL is indeed subject to some level of “vigilance” by the competent ecclesiastical authority, it is generally immune to the wider controls established in Book V of the 1983 Code for ecclesiastical or Church property (cc. 305, 310, and 1257 § 1).

Assuming I am right on the facts (that PFL is not a juridic person), then referring to the assets of PFL, etc., as if they were Church property to be administered in accord with Church law, is a misrepresentation of canon law, confuses donors as to the actual recipients of their gifts and the lines of accountability flowing therefrom, feeds suspicions that local bishops spend their days looking for apostolates with assets they can raid, distracts from the central questions of incardination and clerical obedience raised by this matter, and provides fodder to those who want to characterize the Catholic Church as some megalith run by a cadre of prelates.

Well, I’ll continue to observe this situation and try to comment where appropriate.

Other posts:

CBR’s plans to aggravate Fr. Pavone’s problems (16 Sep)
 

Three brief emendations to some remarks on continence

I largely agree with Rev. Brian Mullady’s answers to a reader’s inquiries in “The reason for priestly celibacy” (Homiletic and Pastoral Review, February 2010), but I would like to suggest three brief emendations to his comments on continence. My suggestions, and a link to a PDF of Mullady’s original column, are here: http://www.canonlaw.info/a_deacons.htm. Just scroll to the bottom of the page.

Fr. Zuhlsdorf has the one-stop info-commentary-links post narrating the controversy over Theological Studies’ reluctance to publish Dr. Germain Grisez’s and Fr. Peter Ryan’s scholarly rebuttal of an earlier TS article questioning Church teaching on the indissolubility of consummated sacramental marriages. Everything that can, based on public reports, be said about the controversy has been said, so I won’t repeat it here, except to add this: any suggestion that Grisez and Ryan shunned the “peer review” process is not only false, it would be ridiculous. Indeed, Grisez is legendary among Catholic scholars for circulating his manuscripts among qualified critics long before they ever appear on editor’s desk for formal peer review. In any case, whether your interest is Catholic doctrine and law on marriage or you simply enjoy seeing two sets of experts go at it, both the original article and the rebuttal will reward one’s careful reading.

Now, regarding Ryan-Grisez itself, I have one quibble for clarity’s sake.

Footnote 89 in Ryan-Grisez (p. 387) reads: “The 1983 Code of Canon Law (c. 1061 § 1) apparently takes that view [i.e., that ‘ratum’ in canon law refers only to sacramental marriages] for granted. To say that only ratum et consummatum marriages are indissoluble, however, need not mean that only sacramental marriages are indissoluble. Ratum could be used to characterize any covenantal marriage, whether sacramental or not. While the word is often used as a synonym for ‘sacramental,’ ratum actually means ‘reckoned, calculated, fixed by calculation; hence, fixed, settled, established, firm, unalterable, sure, certain, valid’ (Charlton T. Lewis and Charles Short, A Latin Dictionary founded on Andrews’ edition of Freund’s Latin Dictionary [Oxford: Clarendon, 1879] 1566).”

Okay, let’s unpack this, shall we?

The 1983 Code of Canon Law (c. 1061 § 1) apparently takes that view [i.e., that ‘ratum’ in canon law refers only to sacramental marriages] for granted.

Well, ‘taking X for granted’ is not how I would describe the Code’s use of the word “ratum” here; rather, I would say that ‘ratum’ is simply a term of art which, in canon law, refers to marriage between two baptized persons. Over the centuries, the Church has found it pastorally and legally useful to distinguish three kinds of marriages, namely, those between (a) two non-baptized persons, (b) one baptized person and one non-baptized person, and (c) two baptized persons. The word “valid” or “ratified” could describe any or all of these fact patterns, but because canonically each situation is distinguishable, the word ‘ratum’ is, by convention, applied only to the last set of marriages.

To say that only ratum et consummatum marriages are indissoluble, however, need not mean that only sacramental marriages are indissoluble.

True, and canon law does not say that; still, canonists would phrase this line more precisely as something like “To say that only ratum et consummatum marriages are (intrinsically and extrinsically) indissoluble, however, need not mean that only sacramental marriages are (intrinsically) indissoluble.” I wouldn’t phrase it so awkwardly, but the point is: the Code is not assuming too much about the dissolubility of non-sacramental marriages in its assertions about the indissolubility of certain sacramental marriages.

Ratum could be used to characterize any covenantal marriage, whether sacramental or not.

Well, sure, could be, but isn’t, at least not in canon law. That’s what terminological conventions are all about, using an otherwise equivocal term in a univocal way. Similarly, after the first exercise of marital rights by the spouses, any of these marriages could be termed “consummatum”, but again, by convention—and because consummation has canonical consequences only for ratum marriages—the term “consummatum” is used only in the context of sacramental marriages.

While the word is often used as a synonym for ‘sacramental,’ ratum…

Umm, careful. Canonists don’t use the word “ratum” as a synonym for “sacramental”, but rather they use the term “ratum” to describe marriages that are not only presumptively valid, but are sacramental, as well.

…ratum actually means ‘reckoned, calculated, fixed by calculation; hence, fixed, settled, established, firm, unalterable, sure, certain, valid’ (Charlton T. Lewis and Charles Short, A Latin Dictionary founded on Andrews’ edition of Freund’s Latin Dictionary [Oxford: Clarendon, 1879] 1566).

This phrasing seems to imply that canonists are “actually” misusing the word “ratum”; we are not, we are simply using it in conventuated sense to refer to those marriages, presumed to be valid, between two baptized persons.

A misinterpretation of a mistranslation of Vatican II’s Presbyterorum ordinis 16 lends itself to use against the clerical obligation of perfect and perpetual continence that I have argued is contained in Canon 277. I address the matter in Edward Peters, “A note on some misapplications of Presbyterorum ordinis 16”, Fellowship of Catholic Scholars Quarterly 34/2 (Summer 2011) 31-33, available in PDF here. For access to all of my published materials on this question, and for links to several other authors, see this page.

 

Taking Microsoft to canon law school

This has never happened to me.

I’m typing away on a canon law paper, just as I’ve done scads of times before, when up pops a message from Microsoft Spell Checker. The message said something like “Microsoft has noticed an unusual number of words in your writing that are not part of the Speller Checker Program. Please review the list of unusual words that Microsoft has noticed and, if you want, click here to send these words anonymously to Microsoft for consideration for inclusion in future editions of Microsoft Speller Checker.”

Some of my unusual words were: cathedraticum, dicastery, juridic, quinquennial, Referendary, Signatura, and vindicative. Anyway, the message looked legit, so I figured, what the heck, and sent them in.

Here’s hoping that by doing so I’ll eventually save some poor blokes out there needless worry over spelling these terms correctly and maybe, along the way, broaden the horizons of some software programmer!

Update, 26 Aug: It happened again, this time for words like delictual, dimissorial, and sanated.
 

Arthur Gerald Jones, declared dead in 1986 some seven years after he had simply disappeared under ambiguous circumstances, was recently found alive and well, working under the name of Joseph Richard Sandelli. Jones, whose religious affiliation was not identified, was married with children when he vanished, and it seems that he has not remarried since then, but, as technological advances make more likely the discovery of other erroneous declarations of death, the Jones-qua-Sandelli episode occasions three quick points about the canon law of “presumed death” per Canon 1707.

1. A civil certificate of presumed death is not sufficient basis for a bishop to declare a “survivor’s” freedom to marry in the face of a prior marriage per Canon 1085. An ecclesiastical determination of presumed death must be made.

2. In making that ecclesiastical determination, a bishop must find evidence (albeit not proof) of actual death, and not merely of absence, however protracted.

For example, a man books a passage on ship, but he never shows up at the dock, and is not heard from again, even for many years. Such a fact pattern is insufficient for a canonical declaration of presumed death because there is no evidence that the man died. Alternatively, a man books a passage on ship and is seen on the ship before it sinks at sea with loss of life. He is not heard from after the shipwreck. That would be much closer to providing a basis for an ecclesiastical declaration of presumed death, because circumstances pointing to death are present.

3. If a spouse remarries after having received an ecclesiastical declaration of presumed death, but the original spouse is later found alive, the second marriage is null and a petition declaring such nullity should be filed, if necessary, by the promoter of justice per Canon 1674.

Read more about the canon law of “presumed death”: CLSA New Comm (2000) at 1798-1799 or GB & I Comm (1985) at 949.
 

Concerning recent Irish and Australian proposals to require priests who, through their ministry in sacramental confession, learn the identity of child sexual abusers (or of any other malefactors, for that matter), to disclose such information to civil authorities, I have little to say because, well, because there is little to say, canonically, at any rate. Such proposals, even if they become law, will have absolutely no effect on a priest’s obligation to preserve the seal of confession. Absolutely none.

The seal of confession is a not creature of civil law, rather, it rests on divine law and is articulated by canon law (see cc. 983 and 1388). Because the state has no authority over the seal of confession, it can exercise no authority over the seal by way imposing, regulating, or revoking it, in whole or even in part.
 

What states can do, and indeed what enlightened states in fact do, is to accommodate the seal of confession within theirs laws (typically, in their laws of criminal evidence procedure). The benefits to states making such accommodations are many, and the “benefits” of disregarding the seal can be shown, upon a few moments’ consideration, to be nugatory, but such prudential points are better made by others. I speak only as a canonist, and I write only to say that any civil laws attempting to break the seal of confession would have no force whatsoever against the sanctity of the seal of confession. + + +

See also: Phil Lawler, 22 July 2011.
 

Flawed arguments against applying Canon 915 in the Cuomo case persist, perhaps because sound arguments against applying the canon apparently don’t. Jesuit Fr. William J. O’Malley’s essay in America (20-27 June 2011) is just the latest example.

Before addressing O’Malley’s claims, though, I pause to wonder why he bothered to respond to this lawyer’s arguments about law in the first place? After all, O’Malley believes that laws are chiefly necessary “for people unable—or unwilling—to think.” The vacuity of that claim I address below; the condescension that O’Malley shows toward those who consider legal questions important, I will ignore.

O’Malley opines that “the first sign of a dying society is a new edition of the rules.” Good grief, how fatuous can a claim about jurisprudence be and yet be found worthy of printing in America magazine?

The specific rule that O’Malley dismisses is Canon 915, part of the Johanno-Pauline Code of Canon Law. Now, if O’Malley’s Maxim is right and “the first sign of a dying society is a new edition of the rules”, then, must we not conclude that the promulgation of the new edition of the Code in 1983 signaled the onset of the Catholic Church’s death throes some 28 years ago? Apparently, that dotty old Church is taking her sweet time a-dying.

But wait, if O’Malley’s Maxim is right, should not the promulgation of the Pio-Benedictine Code have been the first sign that the Catholic Church was dying in 1917, nearly one hundred years ago? Which first sign is first?

Why stop there? Has the Church been moribund since Trent’s extensive reform of canon law in the 16th century? What about since Gregory’s IX’s launching of the Ius Decretalium in the 13th century, or the publication of Gratian’s Concordia in the 12th? One can go back in Church history as far as O’Malley likes, and one will see, century after century after century, the Church renewing and reforming her legal system. Not dying.

I say further: not only is the emergence of law not the sign of a dying society, it is very often the sign of an emerging and/or maturing one. Ever since the Twelve Tables went up in the Roman Forum some 2,500 years ago, the articulation of key values in law has been recognized as a marker of the distinctive character of society. This is true, too, of salvation history wherein God’s love for his people is shown in part precisely by his giving them his law. Psalm 140 rejoices that the Lord “declares…his statutes and ordinances to Israel. He has not done this for any other nation; he has not taught them his decrees.”

So much for O’Malley’s legal theorizing. What about his invocation of the Gospel values against the application of Canon 915?

According to O’Malley, Canon 915 (which directs refusal of holy Communion to those who have not ceased from obstinate, public, grave sin), is contradicted by at least three events in the Gospels, namely, the woman bursting into the Pharisee’s house, the Samaritan woman at the well, and Christ’s calling to Zaccheus.* As illustrations of Jesus’ unbounded willingness to forgive the repentant, these examples are sound. But as support for O’Malley’s implication that holy Communion may be administered to the publicly unworthy, all three examples fail on their face.

The woman breaking into Simon’s home, the Samaritan woman, and Zaccheus, all manifested sorrow for their past actions and resolved not to commit them again. Does not O’Malley understand that a crucial point in the Cuomo controversy is precisely that the governor declines to change his public commitment to legalization of “gay marriage”? What in these Gospel incidents supports O’Malley’s arguments against applying Canon 915 in this case? Nothing.

O’Malley, it seems, is convinced that justice and Christianity are “paradoxical”, that they exist in some kind of “contrast”. He does not define these notions, so it is difficult to know exactly where his remarks are aimed, but hazarding a guess, I’ll reply that no one I know thinks that “justice” and “Christianity” are two words for the same reality, or disagrees that the demands of Christianity, as O’Malley shows with literary examples, exceed those of justice.

Where O’Malley stumbles is in implying that a Christian’s prerogative to forego, in the name of love, something owed him in justice (a la Hugo’s Bp. Bienvenue), authorizes a Christian to disregard the justice he owes to others in pursuit of some allegedly higher good. Notwithstanding that love is higher than justice, one may never violate justice on the way to love.

Bassanio tempted Portia “To do a great right, do a little wrong”. Failing to act, where there is a duty to act, can be to do more than a little wrong. The correct application of Canon 915 by ecclesiastical authority protects, among other things, the right in justice of the faithful not to be misled by the bad example of another’s seriously wrong public behavior if, as things seem to be in the Cuomo case, that grave wrong goes uncorrected by Church leaders. Bishops regularly bear the personal injustices to which they are almost daily subjected; but it would be another thing, Deus vetet, to ignore the duties to which they are bound by Canon 392.

O’Malley closes** his America essay by asking me whether I have “adequately pondered the intentions of the Person who occasioned law.” My answer comes quickly: No, I have not. Perhaps O’Malley has; if so, I rejoice for him. In any event, I look forward, by the grace of God, to pondering that divine Person, and his Father, and his Spirit, for an eternity after my days in this Valley of Tears are done.

In the meantime, there seems to be no shortage of sloppy thinking about canon law out there needing correction, so I’m back to it. + + +

* O’Malley recycles the question about whether Judas took the Eucharist at the Last Supper. I addressed this argument when Cdl Mahony offered it earlier this year.

** Some other time we might look at O’Malley’s approach to high school plagiarism (which approach he apparently feels is relevant to interpretating Canon 915) or his assumption that the Prayers of the Faithful at Mass are appropriate vehicles to discuss academic policies against intellectual theft. But not today.
 

Robert George’s interview in National Review Online regarding “Sex and the Empire State” is essential reading for anyone interested in the crisis over the definition of marriage. I urge folks to study the great Princeton prof’s remarks with care. Your time will be amply rewarded.

Here, however, I offer one demur to George’s remarks, not remarks central to his discussion of American marriage policy, but rather, a few regarding the Catholicism of NY Gov. Andrew Cuomo. Here’s the passage.

NRO: How significant is it that this governor is Catholic?

GEORGE: Is he? There are many devout Protestants and even Jews and Muslims whose moral beliefs and practices are far more closely in line with Catholic teachings than Andrew Cuomo’s are. Andrew’s father’s views and policies gave scandal (as Catholics use that term) precisely because people took him to be a serious Catholic. No one is scandalized by Andrew’s beliefs or conduct because no one takes him to be a serious Catholic, that is, a Catholic who is serious enough about his faith to live by its tenets. Indeed, he quite publicly flouts Catholic principles, and doesn’t even seem to wrestle with it or be anguished about it, as his father at least liked to give the appearance of being. In word and deed, he has made it clear that he simply does not believe what Catholicism teaches about sexual morality and marriage. There is no reason to suppose that he regards the Catholic Church as having the authority to teach definitively on these issues or anything else. If there is a sense in which he is a Catholic, it does not involve believing what the Catholic Church teaches or even that the Catholic Church has any authority to teach. So I don’t see Cuomo’s Catholicism as a significant part of this story. He doesn’t even pretend to be serious enough about it to make anyone care or even take much notice.

Now, some of George’s remarks above are certainly true, such his assertion that certain Protestants and Muslims hold views on marriage closer to Catholicism than does Cuomo, or that Cuomo does not regard the Church as having any special authority to teach about marriage. Other remarks by George are plausible, if more debatable, such as what really gave rise to the scandal offered by Cuomo’s gubernatorial father Mario and even, to judge from this interview, whether Cuomo himself views Catholicism as more important that he generally lets on.

But at least a couple times in the passage above, I fear that George’s rhetoric interferes with his accuracy. The problem starts with an unacknowledged ambiguity in the question itself, namely “How significant is it that this governor is Catholic?”

Before answering that question, one needs to clarify, how significant is Cuomo’s Catholicism for what? For, say, insight into Cuomo’s political thought? The answer would be, as George says, Not at all, for Cuomo does not regard the Church as having any special teaching authority on most things, not even by dint of her having watched the rise and fall of scores of nations over 2,000 years. Cuomo shows little interest in history, ecclesiastical or otherwise.

But if we were to understand NRO’s question as, how significant is Cuomo’s Catholicism for, say, the Church, or for his fellow Catholics, the answer would be very much different. If one is not alert to the different ways the question could be understood, one risks misapplying George’s answer to a question about Catholicism which he understood as referencing American polity, to a conclusion about Church polity.

To NRO’s question: “How significant is it that this governor is Catholic?” George answered rhetorically, “Is he?” and developed a negative conclusion in some detail. Hit pause!

The answer to George’s rhetorical reply, “Is he [Catholic]?” must be, before anything else, a direct Yes, Cuomo is Catholic. To rush past that fact is to miss what much of the controversy is about.

For some time, now, I have reacted against the line that says, in essence, “A bad Catholic is not a Catholic”. The phrasing is not new with George (I’ve gone after Judy Brown’s use of the same slogan), but if it were really true, then the Church would consist of nothing but saints, and she would not have any special responsibility toward the mass of her quondam members long since expelled for their sinfulness.

What a tidy Church that would be, and how many hard questions we could avoid. But that would not be the Church Christ founded, nor faithful to the duties He conferred on it.

Cuomo, by every canonical marker, is unquestionably a Catholic, that is, he is one of ours. All Catholics have a special responsibility toward him, as he does toward all Catholics (c. 209). Of course Cuomo’s conduct puts him in notorious conflict with many important Church teachings, but that deplorable fact does not cancel his Catholic identity. For that reason, and precisely for that reason, the Catholic Church has jurisdiction over Cuomo-qua-Catholic and She can, and must, take various actions in his regard.

Bother what the world thinks about it. We answer to a higher Authority. And I don’t mean that rhetorically.

The Church does not dictate political policy to her members, but neither does she give politicians an exemption from following Church teaching, sacramental discipline, or canon law. Catholic politicians have to follow the same rules that apply to any other Catholic. If, given their public prominence, the conduct of Catholic politicians comes more readily to the attention of Church leadership, well, that’s part and parcel of being a politician.

Now, folks, with my small demur in mind, do go read George’s terrific interview.
 

+ + +

As long as Canon 915 is so widely misunderstood and virtually ignored, neuralgic controversies over the public reception of holy Communion by certain notorious figures are going to keep arising, over, and over, and over again.

And not just in America.

Robert Mugabe went to Communion at John Paul II’s beatification Mass and the photo of his taking the Host went world-wide, of course, occasioning, besides p. r. problems for the Church and deep disappointment among Mugabe’s victims (or their survivors), more flawed explanations of the canonical norms for reception of holy Communion. These latter attract my attention (I have no opinion on whether Mugabe should have ever been invited to the rites themselves, what do I know of such things?).

Before addressing those mis-explanations, however, let me say that it’s possible that the priest actually administering holy Communion to what looks like a nice old man in a business suit did not know that the apparently nice old man in a business suit claims Hitler as his role model. Such ignorance would suffice to defend the priest from charges of disrespect toward the Eucharist.

Now, about those flawed explanations of Communion discipline.

From Vatican Insider (English, 28 June 2011) we read: Cardinal Wilfried Napier tried to throw water over the firestorm of problems, explaining that “for any Christian, the reception of communion is a personal matter, consciously made in front of God. As such, it is a matter for the ‘internal forum’, in other words the space between God and the believer. No one, except Mugabe, and perhaps his confessor, can know if he was in a state of grace when he presented himself to receive communion in St. Peter’s Square. It is not up to us to ask Mugabe about his ‘internal forum’.

That’s mostly* true, but it’s also mostly beside the point.

Not all Communion-reception questions are answered by resort to Canon 916. Canon 915 is also relevant, and Canon 915 does not operate in the internal forum, rather, it operates in the external forum. One’s eligibility, or lack thereof, under Canon 915 to receive holy Communion does not depend on the state of one’s soul, it depends on whether one’s public actions manifest obstinate perseverance in grave sin.

[Cdl. Napier] continued “Also, since Mugabe is not under interdict (as are some pro-choice politicians in the United States, at the discretion of local bishops) he can continue receiving communion. We should hope that his personal chaplain will provide him with adequate spiritual guidance”.

First, to my knowledge, no politician in the USA is under interdict, but if one were, it would not have been as a function of episcopal discretion, but as a function of objective canon law. Second, interdict (specifically, imposed or declared interdict) is not the only disqualifier for the reception of holy Communion under Canon 915, for excommunication or obstinate perseverance in manifest grave sin also disqualifies one from reception of Communion.

As I have said many times before, none of the above relies on “canonical rocket science”, nor does it take special divining skills to see that, someday, the chronic discrepancies between canon law and pastoral practice regarding Communion reception are going to have to be reconciled. + + +
 

* For example, no human being, not even a confessor, can ever know whether a sui compos adult is in the state of grace.

Reminder: 1. This website offers my* commentary on the canonical implications of certain news events. 2. My regular readers are familiar with sound Catholic thought in such areas as, for example, the nature of marriage, the moral parameters of private and governmental decision-making, personal sin and public scandal, the theology of holy Communion, and the basic role of canon law in the Church, and so I do not lay the kinds of foundations in such matters that one engaged in, say, apologetics would otherwise have to provide. 3. If anyone finds himself insufficiently familiar with some of the Catholic terminology and concepts assumed in this discussion, I would urge study of the pertinent passages in the Catechism of the Catholic Church or consultation with the auctores probatos.

The Catholic Church, drawing upon the teachings of Jesus Christ and echoing Natural Law, holds that marriage is possible only between a man and a woman and, consequently, that only men and women who have undertaken to live in such a relationship should be recognized and treated as married. The male-female requirement for marriage is an unalterable teaching of the Church and, while it might be subjected to ridicule by some nowadays, it is not subject to revision by either Church or State. Moreover, unlike some teachings of the Church that have no practical implications in the civil arena, that teaching which holds marriage possible only between a man and a woman has vital ramifications for civil society and—long story omitted—for those Catholics privileged to be especially charged with caring for the common good through political institutions.

Among the many persons laboring in New York to accord same-sex unions the civil legal status of marriage, no one played a more important, and indeed a constitutionally essential, role than did the governor of the Empire State, Andrew Cuomo, a Roman Catholic. Cuomo’s gubernatorial campaign touted his strong support for “gay marriage”, he used his enormous influence to push key legislators into voting for New York’s “gay marriage” bill, and he signed that bill into law hardly an hour after it was passed. Without Cuomo’s long-standing and vigorous public support for “gay marriage”, without his unswerving political efforts to advance that project and, most specifically, without his signature on the bill (placed there with obvious enthusiasm and much self-satisfaction), New York would not have legalized “gay marriage” on June 24.

In the wake of these incontestable facts, and speaking only from my expertise in Catholic canon law (leaving cultural and political commentary to others) Andrew Cuomo faces, as I see it, at least two major canonical problems.

First, Cuomo’s long pattern of conduct in regard to “gay marriage” warrants, in my opinion, a canonical investigation under Canon 1717 into whether he has “in a public show or speech, published writings, or in other uses of the instruments of social communications … gravely injure[d] good morals…” and on that account is to be punished (puniatur) with a just penalty per Canon 1369. That said, only rarely has the canonical criminal process been invoked against lay persons in our lifetimes**, and the outlines of that process deserve more treatment than can be accorded them in a blog post. In any event, assuming the canon means what it plainly says, I suggest that some among the friends and foes of Cuomo (I figure among neither group) begin briefing Canon 1369.

Second, and much more urgently because it arises from sacramental discipline and not from the canonical penal process, Cuomo’s long pattern of conduct in regard to “gay marriage” triggers, in my opinion, an obligation on his part to refrain from approaching for holy Communion per Canon 916 and, should he approach anyway, upon ministers of holy Communion to withhold that august sacrament from “those obstinately persevering in manifest grave sin” per Canon 915.

I am already on record as believing Cuomo ineligible for holy Communion on the basis of his improper living arrangements with a television celebrity, a relationship I characterized as “public concubinage” and which characterization no one has yet canonically challenged, let alone rebutted. See generally Edward Peters, “The Cuomo-Communion Controversy”, Catholic World Report (May 2011) 33-35.

But in almost every relevant way, Cuomo’s protracted actions in regard to “gay marriage” are even more brazen.

Cuomo’s concubinage gives prominent bad example against marriage, but his official actions in regard to “gay marriage” have changed the very definition of marriage in the populous state under his care; Cuomo’s living arrangements are of immediate canonical concern to only two of New York’s eight arch/bishops, but his political actions in regard to “gay marriage” negatively impact the pastoral mission of every Catholic bishop, parish priest, deacon, and lay minister throughout the Province of New York; finally, while most of the bishops of New York said little or nothing about Cuomo’s living with a woman not his wife, his long-standing actions in regard to “gay marriage” were challenged repeatedly, directly, and forcefully by the Archbishop of New York and by all his seven suffragans.

In light of the foregoing, I see no way, absent a public reversal of his public conduct, that Andrew Cuomo may present himself for holy Communion (per Canon 916), and, if he does present himself, I see no way that a minister of holy Communion may administer the sacrament to him (per Canon 915). Indeed, the only question in my mind is whether the ordinaries of New York should lift from the shoulders of individual ministers the burden of reaching this decision, by making a determination to this effect themselves and, assuming they do reach this conclusion, whether they should announce it publicly or in a personal letter to Cuomo. (Personally, I think a public announcement more befits the markedly public character of Cuomo’s conduct and responds better to the danger of scandal presented to the faithful by his actions).

Some other brief points:

Application of Canon 915 to Andrew Cuomo would not mean that he is excommunicated. I am not aware of any actions by Andrew Cuomo to date for which he faces excommunication.

Cuomo is still bound to attend Sunday Mass (c. 1247), irrespective of his situation under Canons 915 or 916.

The New York State Catholic Conference does not have canonical authority over the application of Canons 915 and/or 1369, but it might provide a convenient mechanism for coordinating episcopal action.

Assuming the application of Canon 915 against Cuomo, I believe that other ministers outside of New York with knowledge of the decision should honor it as a function of communion per Canon 209.

Cuomo has repeatedly stated that he hopes New York’s legalization of “gay marriage” will serve as a powerful statement to others across the country. He need have no doubt about that, for it certainly will. But, by the same token, however the bishops of New York respond to Cuomo’s pivotal role in securing the legalization of “gay marriage” in New York will undoubtedly serve as an example to other bishops confronting Catholic complicity in the push to grant the legal status of marriage to same sex unions in their territories.

Some other prominent Catholics played important roles in bringing about the events of June 24, but analysis of their situations warrants a separate treatment. There is, in the meantime, nothing wrong with starting with the most serious case.

+ + +

* Many in the secular media seem incapable of understanding or accepting that, in my blog commentary, I speak only for myself, and not for any other group or organization, particularly the Vatican/Holy See. Continued disregard of this simple point, which I make plain at the upper right column of my blog, is a dereliction toward the truth.

** Offhand, the most recent American example that comes to mind is New Orleans Abp. Joseph Rummel’s 1962 excommunication of three lay Catholics for agitating against the desegregation of archdiocesan schools.

A blessed Feast of Corpus Christi to my readers!

Update 28 June 2011.

Niraj Warikoo at the Detroit Free Press has a short article on my recent commentary regarding NY Gov. Andrew Cuomo’s access to holy Communion in the light of his efforts in support of “gay marriage”. The quotes that Warikoo provides from me are accurate (perhaps the result of my policy to respond to most secular reporters promptly, but only, in writing); some of his characterizations of my position are less so.

For example, in his opening sentence Warikoo writes that I am “blasting” Gov. Cuomo. Folks, what does “blasting” even mean, and what of my writing merits that label? Or is any well-reasoned objection to another’s accurately-presented positions tantamount to “blasting” these days? Later, Warikoo says that I am calling for “punishment” of Cuomo, when I hardly could have made plainer that withholding holy Communion is not, under Canon 915, a punishment for crime, but rather, a sacramental disciplinary law (an especially odd mistake for Warikoo, considering that he got the distinction right later when he discussed, without identifying it, a possible penal process against Cuomo under Canon 1369). And, speaking of getting things right, Warikoo correctly noted that I am not a spokesman for the pope, but he opined that my views “views are heard at high levels in the church.” Again, I’m not sure what that even means, so I am not sure whether it’s true, but if it is true to say my views are heard at high levels of the Church, then all I can say is, “Sure, along with a boatload of others’ views.”

Another version of Warikoo’s article is here.

Maureen Dowd’s recent attack on NY Abp. Timothy Dolan for his steadfast defense of marriage is truly one for the record books. (At least Dowd’s rant occasioned George Weigel’s brilliant reply over at National Review Online, wherein he invented and promptly applied the choice phrase “anti-Catholic bitchery” to Dowd’s writing style). Dowd’s cred with New York Times as a Church-baiting Catholic has probably never been higher. Lucky her.

Enter Susan Jacoby of the Washington Post, once-Catholic, now a “free thinker” and atheist, who writes for WaPo’s On Faith column. Go figure.

Jacoby, like Dowd, blasted Dolan’s efforts to talk sense about “gay marriage” to the New York legislature (and indirectly, to the rest of the country), and she made about as much sense as did Dowd. Oh well, I’ll say this much for Jacoby: at least she doesn’t pretend to believe anymore.

In any case, the question I ask here is narrow: do NYT or WaPo journalists pushing for “gay marriage” need to observe any level of accuracy in their claims? Or is any assertion, no matter how plainly wrong, legit, provided it somehow advances the Agenda?

My question is neither idle nor rhetorical.

In the opening paragraph of her essay against Abp. Dolan, Jacoby writes “New York Gov. Andrew Cuomo, who strongly supports gay marriage, is a Catholic accused by the Vatican of ‘public concubinage’ for living with a woman to whom he is not married.”

What’s that you say? The Vatican has accused Cuomo of concubinage?

The Vatican has said no such thing, at any time, in any place. Period. So, whence springs this patently false claim?

Well, Jacoby duly hot-links the phrase “public concubinage” in her essay, but to where, exactly? To (A) the Vatican website; (B) a published speech by the pope or curial cardinal; (C) a low-level Vatican bureaucrat; or (D) an anonymous source Inside the Walls?

The answer, folks, is (E) none of the above.

Instead, Jacoby links the phrase “public concubinage” to my website, wherein I used (and still use) the phrase “public concubinage” to describe Cuomo’s living arrangements. But with emphasis on the word I, please. It’s my claim, not the Vatican’s.

Had Jacoby bothered to look at the disclaimer that appears in the upper right column of my blog, she would have seen the very first sentence thereof: “This blog represents my own opinions and I am solely responsible for its content.” One is forced to ask, then, did Jacoby not bother to look across one inch of white space to read my plain-English notice? Or did she read it but decide to ignore it? I dunno, but either way, it seems that WaPo columnists who write in support of “gay marriage” are exempt from elementary fact-checking.

The obvious disclaimer has been at the upper-right of my blog since I set it up in late 2005, but that is not the only place that I have reminded folks that I speak for myself and for no one else.

In my very first post regarding my appointment as a Referendary (an unpaid consultant) to the Apostolic Signatura in 2010, I emphasized that (like all consultants, and most paid staff, for that matter) of the Vatican and/or Holy See, I do not speak for the Church, and that whatever views I offer on this topic or that stand or fall solely on the arguments I allege for them. Moreover, specifically in the Cuomo-Communion controversy, I expressly reminded readers that my views on Cuomo’s objectionable living arrangements are my own, and not the Vatican’s. So, tell me, gentle readers, how else can I make it clear that these views are mine, and not necessarily anyone else’s, including the Vatican’s?

Or, is the real lesson here supposed to be that simple things like facts really don’t matter to the NYT or WaPo anymore?

PS: I have, fwiw, tried to post a very simple corrective reply in the com-box over at WaPo, but I have not seen it appear yet. Maybe it will show up later, but if it does, it will be at least 65 (make that 110) coms down from the original claim. In any case, the above post more fully airs the consistent problem I see at NYT and WaPo among their pro-gay-marriage columnists.

America’s 43^rd most influential liberal doesn’t seem to like me, and that’s a scary thought. Not.

Maureen Dowd of the New York Times is well-known for her acerbic (sometimes snide) writing style, and for her frequent substitution of ad hominen attacks for sustained and reasonable argument. Such writing appeals, I guess, to those taxed by thinking but amused by rudeness, but beyond seeing her popularity as yet another example of De gustibus, I don’t get it.

In any case, Dowd’s June 18 NYT column ridiculing New York Archbishop Timothy Dolan for his stand against New York’s endorsement of “gay marriage” is nothing if not vintage Dowd. She scarcely engages Dolan’s reasoning, but disses Dolan as “the Starchbishop” (real grown-up writing, that) and attacks his Church as being “a haven for gay priests” that essentially ignores “the right of a child not to be molested by the parish priest”.*

With a predictability that borders on banality, Dowd thrice-in-one-column hurls the clergy sexual abuse crisis in the face of Catholics like Dolan who dare to take a stand on issues of morality contrary to the “spirit of the times” just as, in my recent Catholic World Report essay on the Cuomo-Communion controversy, I predicted would happen for the rest of our lives.
 

Dowd didn’t invent this style of attack, but she employs it with an excess that should embarrass even those who otherwise like her sassy shtick. Dowd does not blush from piggy-backing her “gay marriage” agenda onto the suffering of clergy abuse victims, like some politico attaching a dubious rider to a sure-to-pass bill in Congress, hoping to short-circuit a debate on the merits of the matter. Or maybe Dowd’s frequent reuse of such tactics is what happens when, as Belinda Luscombe opined in her Time report exploring whether Dowd had committed plagiarism, Dowd “plum runs out of inspiration on any given topic and falls back on less-than-original notions”. Either way, I say, let’s stick to the topic, and the topic, per Dowd, is the legalization of “gay marriage”, not clergy sexual abuse.

Fine, you ask, what does any of this have to do with me? I might have thought, nothing, except that Dowd decided to link my recent criticisms of New York Governor Andrew Cuomo’s reception of Communion at a Mass celebrated by Albany Bishop Howard Hubbard (despite Cuomo’s open cohabitation with a woman not his wife), with Abp. Dolan’s criticism of efforts in the New York legislature to legalize “gay marriage”, the ‘link’ being that Cuomo is a strong proponent of “gay marriage” and would sign such a bill if it reaches his desk.

Okay, yes, I think that Cuomo’s signature on such a bill would add to his Communion-eligibility problems under Canon 915, but Abp. Dolan is not making that argument: he is arguing natural law on marriage and common sense, not sacramental discipline. (I know, I know, one would have to have read and understood Dolan’s arguments to see that point, but even if Dowd didn’t or doesn’t, some of her readers would have and do). So why does Dowd not discuss Dolan’s arguments on marriage in her article about Dolan on marriage, and later, if she wishes, tackle my arguments on holy Communion in an article about me and holy Communion (assuming I was worth her time in the first place)? Why smush these two strains together?

Because Dowd apparently thinks she has discovered some “ah-ha” contradiction in the Church’s logic. She writes: “Therein lies the casuistry. On one hand, as Peters told The Times about Cuomo and Lee, ‘men and women are not supposed to live together without benefit of matrimony.’ But then the church denies the benefit of marriage to same-sex couples living together.”

What?

That’s not right. That doesn’t even rise to level of being wrong. Instead, that’s what comes from someone who is not even pretending to be interested in what the other side actually holds.

* Memo to MD: You might want to temper your insinuations that “gay priests” are linked to clergy child abuse, or, as you state later in your column, that it is “absurd” to deny a link between homosexuality and sexual misconduct. Considerable effort has gone into denying any connection between homosexuality and/or the gay life style with sexual exploitation of youth, and your comments in this article undermine those efforts.

The folks at Homiletic and Pastoral Review have kindly posted my entire article, “When bad advice in confession becomes a crime” (June/July 2001).

The article explains how the canonical crime of solicitation in confession (Canon 1387*) penalizes not simply an attempt by a priest to use the confessional to solicit immoral acts from a penitent with the confessor himself, but also authorizes sanctions against giving immoral advice to penitents to be acted upon alone (such as condoning the use of pornography) or with others (such as approving of extra-marital sex).

I hope readers find it informative, and I appreciate HPR’s making it more widely available.

* 1983 CIC 1387. A priest who in the act, on the occasion, or under the pretext of confession solicits a penitent to sin against the sixth commandment of the Decalogue is to be punished, according to the gravity of the delict, by suspension, prohibitions, and privations; in graver cases he is to be dismissed from the clerical state.
 

The 2011 Canon Law Conference for Canonists and Civil Attorneys is set for Tuesday August 9 and Wednesday August 10 at the beautiful Shrine of Our Lady of Guadalupe in La Crosse WI. Raymond Cdl. Burke, Prefect of the Apostolic Signatura, will preside.

I went to this conference in 2010 and, even if I weren’t scheduled to speak (which I am), I wouldn’t have dreamed of missing it this year. Terrific speakers and influential attendees, that’s what I saw last year and what I see set for this year.

Cdl Burke is giving two talks, one on the interaction of the Roman Rota and the Apostolic Signatura in the administration of ecclesiastical justice, and the other on the Signatura’s views on some recently proposed grounds for matrimonial nullity. Plus, Cdl Burke is very generous with his time in meeting and talking with guests who attend the conference.

Rev. John Coughlin, a Franciscan canon and civil lawyer on the law faculty at Notre Dame, will also speak twice, addressing first property law in the Church and then discussing fundamental rights of faithful. Dr. Charles Rice, emeritus of Notre Dame’s law faculty, will speak on the relationship of natural law and positive law, and yours truly will look at some issues in the reform of ecclesiastical criminal law. A panel discussion follows the Tuesday evening dinner; last years’ exchange was really good.

The liturgies are wonderful, the speakers knowledgeable, the conversations engaging, and La Crosse is charming and affordable! It’s a terrific couple of days. Register before July 15 to save $ 75 and, when they say “Seating is limited”, believe them.

PS: ILOTL blog readers, please, introduce yourselves to me there!

The May 26 abs-cbnnews report about a Filipino politician (Edcel Lagman) who has allegedly excommunicated himself for pushing a pro-contraceptive bill in that nation’s House of Representatives contains several errors, not all of which, however, can be attributed to typical secular press incompetence in religious matters. Let’s sort it out.

On purely secular grounds, strong arguments can be made against governmental contraceptive programs; but that’s not our concern. On Catholic moral grounds, advocacy of contraceptive programs is objectively gravely evil; even that, however, is not our concern here. Our concern, instead, is with excommunication, and excommunication is a canonical sanction, which makes our concern a legal one, not a political one, and not moral one.

Nulla poena sine lege. One cannot face a sanction under canon law unless one has broken a universal or particular law (or a penal precept) which threatens that sanction for that action.

Now, no canon of the 1983 Code threatens excommunication for promotion of contraception. No local Filipino ecclesiastical legislation is reported as threatening excommunication for promotion of contraception, and I know of no penal precept issued by the competent ecclesiastical authority that threatens same. Canon 1398 (on abortion) does not apply, for reasons I have set out elsewhere, but even more so here in that no abortions could have yet taken place under this bill.

In short, Lagman does not face excommunication for anything he has done so far, and Msgr. Juanito Figura, secretary of the Catholic Bishops Conference of the Philippines, is absolutely correct when he says that Lagman should stop posturing as some brave man facing down an ecclesiastical sanction when none has been threatened.

As for Bishop Bastes’ comments that Lagman “is excommunicating himself . . . We [w]on’t give him the honor to make him excommunicated,” well, whatever the prelate might have meant in the context of his remarks, excommunication is a medicinal censure, and one does not withhold medicine from offenders, if they are in other respects liable to it.

A request for Mass to be celebrated for the repose of Osama Bin Laden’s soul that was printed in a Florida parish bulletin has irritated a number of people. Let’s try to sort it out.

First, it is obvious to the point of palpable that Catholics are free to pray for anyone, living or dead, and that such prayers are exercises in charity. CCC 958, 1032. Therefore, it is wrong to discourage others from praying for any human being.*

Second, a priest is free to offer Mass for anyone, living or dead. Canon 901, CCC 1371. The Pio-Benedictine restrictions against offering public Masses for certain persons (e.g., excommunicates per c. 2262) no longer bind. The faithful may now offer stipends for such Masses and priests may accept such stipends. Canons 945-946. A non-Catholic’s (let alone a non-baptized person’s) name should not, however, be proclaimed during the Eucharistic prayer. Ecumenical Directory (1993) n. 121.

These things being understood, however, it is, I suggest, a bit facile to conclude that Osama Bin Laden’s (or Hitler’s, or Stalin’s, or some other mass murders’) name should be printed in the parish bulletin as the object of a Mass intention.

Publishing the name of the person(s) for whom Mass is being offered is not required for the liceity, validity, or efficacy of either the stipend or the Mass. A pastor is free, therefore, to decline such publication according to his prudent judgment, and a bishop is free to issue wider particular directives in such matters if he deems it useful. Canons 381, 392, and 519. If the parochial printing of certain names as the objects of Mass intentions becomes a distraction to the faith community, instead of its serving as teaching moment, diocesan bishops might have to step in.

* I think it would offend pious ears to pray for canonized Saints and for those proclaimed Blessed (excepting those merely named Servant of God or even Venerable), but that might just be me. +++

Updates: It happened in Ireland, too.

In Ed Wood’s classic gafflick “Plan Nine from Outer Space” (1959), stewardess Edie declines co-pilot Danny’s invitation to “ball it up in Albuquerque” by quipping that Albuquerque “is strictly a nine o’clock town.” Maybe KOAT Albuquerque reporter Royale Dá thinks so too.

Bereft of any news actually worth reporting one day, Dá spent on-air time interviewing one of the tens of thousands of Catholics who are divorced and remarried outside the Church about, well, being one of tens of thousands of Catholics divorced and remarried outside the Church. Poor soil, one might think, from which to grow a real news story.

Undeterred, Dá allowed her subject to, among other things, mangle for viewers the canon law on legitmacy of children (a status utterly unimpacted by nullity proceedings), snipe at “the Church” for “accepting” his money (as if the archbishop of Sante Fe gets a memo everytime some nice guy drops a buck in the collection plate), and generally to play the hero for his refusing “to say the word” that would assure him of his annulment and make peace with the Church. Now folks, this is 10 years in tribunals and 10 more teaching canon law talking here, and I’m here to say, if there’s a ‘magic word’ that will get a Catholic his or her annulment, I’ve never heard it.

What Dá really works, though, is vintage MSM “victim advocacy” journalism. A reporter finds some lonely little guy beset by the giant corporation (or the government, or social standards, or whatever), and offers him as the gallant defender of his own rights and those of others simularly situated. Just assume the “victim” is always accurate in what he says and balanced in how he says it. Because Dá’s subject is critcial of the Catholic Church, though, we get to assume that he is both knowledgeable and fair in his remarks, and Dá never suggests otherwise. It’s like she read Chesterton’s famous remark that “When it comes to beating the Catholic Church, any stick will do”, and thought that GKC approved of the practice!

There are, to be sure, plenty of Catholics out there living lives publicly at odds with Church teaching and yet willing to complain to MSM media types about how the Church’s rules for the Church’s members make them “feel unwanted”. Ergo, reporters like Dá will have ample fodder for slow news days far, far into the future.

Nice work, if you can get it.

My general review of the “Cuomo-Communion Controversy” (previous ILOTL posts on that topic are here, here, here, here, here, here, here, here, and here) is now available in
Catholic World Report (May 2011) 33-35. As those who followed this matter well know, Gov. Andrew Cuomo’s reception of holy Communion at a Mass celebrated by Albany Bp. Howard Hubbard raised questions not only about Catholic sacramental discipline, but about the deeper relationship between canon law and pastoral practice in the Church. Here’s hoping my remarks in CWR shed useful light on those questions.

See also some related statements by, among others, Abp. Michael Sheehan and Bp. Samuel Aquila.

Some four years ago, I wrote a short blog post explaining why women were not required to wear ‘chapel veils’ at Mass. I thought it then, and think it now, an entirely uncontroversial position to have taken. Apparently, however, not a few folks think (or feel) otherwise.

Out of the hundreds of webpages and blogposts I have published, my post on chapel veils is frequently among the top ten pages read each month. No joke. I have seen, over the years, several “rebuttals” of my views, some rather pretentious in their rhetoric, to which, on rare occasions, I have replied informally in comboxes. For that matter, I’ve seen some other writers with, I would have thought, considerable ‘cred’ among the chapel veil set, also being rebuked for holding that the use of veils is optional. Folks like Fr. John Zuhlsdorf and Jimmy Akin, the kind of guys I ask guidance from when I’m stuck on a hard question about Catholic practice. If critics won’t believe Fr. Z or Jimmy, who I am to think I’ll convince them otherwise?

Anyway I had just sworn off even noticing the chapel veil topic anymore when, lo and behold, a nice lady writes to Cdl. Raymund Burke, whose ‘cred’ outweighs all of ours put together, to ask whether the use of chapel veils is obligatory.

Well, the cardinal writes back to her, and she sends me a copy of his letter, from which I may quote (edited for privacy): “Thank you for your letter …The wearing of a chapel veil for women is not required when women assist at the Holy Mass according to Ordinary Form of the Roman Rite. It is, however, the expectation that women who assist at the Mass according to the Extraordinary Form cover their heads, as was the practice at the time that the 1962 Missale Romanum was in force. It is not, however a sin to participate in the Holy Mass according to the Extraordinary Form without a veil.”

What’s left to say?

Burke’s note is not an “authentic interpretation” nor a formal sentence from the Signatura: it’s simply a calm observation by the world’s leading canonist (not to mention a man deeply in love with the Church and her liturgy) about whether women have to, as a matter of law or moral obligation, wear veils at Mass. Any Mass. And the answer is No.

If a woman wants to wear a veil to Mass, she is perfectly free to do so; if she does not want to wear a veil, she is perfectly free not to. Anyone not happy with that interpretation is welcome to take the matter up with Higher Authority than me, and higher than Burke, for that matter!

A Blessed Holy Thursday to my readers! + + +

Updates:

Fr. Z’s latest (and, I’m guessing, his last) re veils.

Jimmy Akin’s latest (and I’m guessing, his last) re veils.

From Jimmy Akin’s combox, a nice rephrasing of the obvious . . . Concerning St. Paul’s statement to the Corinthians, the Congregation for the Doctrine of the Faith has stated that this was a discipline based on customs of the time, not a permanent moral obligation: “But it must be noted that these ordinances, probably inspired by the customs of the period, concern scarcely more than disciplinary practices of minor importance, such as the obligation imposed upon women to wear a veil on their head (1 Cor 11: 2-16); such requirements no longer have a normative value.” CDF, decl. Inter Insigniores (15 oct. 1976) n. 4.

Colin Donovan’s latest (and I’m guessing, his last) re veils.

LifeSiteNews reporter Patrick Craine interviewed me over a couple of days regarding the recent proposal by American Life League to seek the excommunication of Catholic legislators who support Planned Parenthood. His article dated April 12 accurately conveys my statements on ALL’s idea.

A couple more thoughts occur to me, specifically in regard to the parallels that ALL suggests between Freemasons, Nazis, and Communists over time, and Planned Parenthood today.

All four of these groups are basically evil and act inimically to the Catholic faith; but only three of them sport “membership” in the sense envisioned by Canon 1374 (olim 1917 CIC 2335)*. It would be a stretch, therefore, to argue a violation of Canon 1374 on the basis of a legislator’s vote to fund PP. An impermissible stretch, I think, per Canon 18 and Reg. Iur. 49.

Now, employment by PP, let alone directorship of some level of PP, by a Catholic is a different matter both in terms of Canon 1374 outright and as the object of potential future penal legislation. But otherwise the parallels between Masons, Nazis, and Communists work for Planned Parenthood only, I think, in terms of showing that, from time to time, the Church must deal with, and has dealt with, specific threats to the faith and morals of her people. ALL’s main point, I take it, is that a Catholic’s public support of Planned Parenthood is a grave problem, one that deserves a serious response, even one resulting in excommunication in accord with law. ALL is offering to make that case on the merits, and it recognizes that the final decision rests with the hierarchy.

In the meantime, ALL’s video provides ample food for thought in regard to, as I said in my LifeSiteNews interview, the possible application of Canon 1369 against some legislative supporters of PP, and as evidence toward finding that support for PP by Catholics is inconsistent with their still approaching for or being given holy Communion under Canon 915. + + +

*In the case of Communists, at least, in 1949 the then Holy Office (now CDF) found party membership by Catholics to be an act of apostasy, no less. See Canon Law Digest III: 658-659

The Norma Jean Coon case, which began so terribly and ended so beautifully, continues to occasion discussion.

One line of thought has lately caught my eye: in light of Canons 750-751 and ap. lit. Ordinatio sacerdotalis (1994), Coon’s seeking of diaconal orders was tantamount to her committing the delict of heresy and resulted in her being automatically excommunicated under Canon 1364.

I don’t think so.

In order to be excommunicated for heresy under Canon 1364, one must, obviously, have committed the delict of heresy. Now, heresy is defined in Canon 751 as “the obstinate denial or obstinate doubt after the reception of baptism of some truth that must be believed by divine and Catholic faith.” In Ordinatio n. 4, John Paul II declares “that the Church has no authority whatsoever to confer priestly ordination on women and that this judgment is to be definitively held by all the Church’s faithful.”

Setting aside the procedural problems endemic to applying latae sententiae penalties under the 1983 Code, there are at least three substantive problems with trying to parlay female ‘ordination’ into the crime of heresy.

First—as I have had occasion to point out in other contexts, and though it takes more time to explain the concept of qualitas delicti than I have now—acting in ‘violation’ of a Church teaching does not necessarily imply one’s heretical “doubt or denial” of that teaching. For example, if I commit murder, I do not necessarily deny the Church teaching that murder is always wrong, I might simply have chosen to act contrary to it. For the act of killing my neighbor out of hatred, I would be prosecuted for murder (c. 1397) not for heresy (c. 1364). It is possible, I grant, for an action to be the expression of heresy, but such characterizations still require proof of heresy, and not simply proof that an action was inconsistent with an important Church teaching. Coon’s seeking of diaconal orders was, to be sure, a violation of canon law (e.g., cc. 1024 and 1379) but whether it was also an action expressing heresy is a different question.

Second, any attempt to invoke Ordinatio against Coon labors under the obvious limitation that Ordinatio addresses, by its express terms, attempted female presbyteral (and by implication, episcopal) ordination, but not diaconal ordination. While one can propose a number of explanations for John Paul’s reluctance to extend Ordinatio to diaconal orders (and while I think the invalidity of such ‘ordinations’ can be proven on other grounds) the simple fact is that Ordinatio says nothing about diaconal orders, and Coon attempted only diaconal orders.

Third, and, I think, most conclusively, if also most subtly, Ordinatio asserts only the obligation to hold (tenendam) that the Church has no power to confer presbyteral orders on women; it does not require one to believe (credendae, let alone to believe “with divine and Catholic faith”) that the Church has no power to confer sacerdotal orders on women. But for heresy, recall, one must obstinately doubt or deny an assertion that must be believed with divine and Catholic faith. In other words, Coon can’t have committed heresy by “denying” Ordinatio.

This is no mere canonist’s quibble.

The difference between believing something (with divine and Catholic faith, no less) and holding something (even if “definitively”) is quite significant — so significant, in fact, that the failure of the 1983 Code to sanction those who rejected Church teachings which required mere (if I may put it that way) definitive acceptance (as opposed to requiring belief) was corrected in 1998 by John Paul II when he added a second paragraph to Canon 750 and additional text to Canon 1371. See JP2, m.p. Ad tuendam fidem (1998).

The new text in Canon 750 § 2 enunciates the obligation of Catholics to hold certain kinds of teachings of the Church (whereas previously the canon had only addressed the need to believe certain kinds of teachings), and the new text in Canon 1371 authorizes penal action against those who reject the teachings described in the new Canon 750 § 2. Now, a simple glance at Canon 1371 makes plain that it operates in cases other than heresy; moreover, Canon 1371 does not operate latae sententiae (and there is no evidence that Coon ever faced a formal penal process), and even at that, the canon calls only for a “just penalty”, which might or might not (and for several reasons, “not” is the more likely initial step) be excommunication.

In everyday conversation, of course, the terms “believe” XYZ and “hold” XYZ are used interchangeably. Those not trained in canon law could easily overlook the difference between the two expressions (to say nothing of their overlooking the other problems with trying to cast Coon as a one-time heretic). But, to borrow a famous phrase, while the world must construe according to its wits, a tribunal must construe according to the law, and in canon law and theology, the obligation of believing something and, the obligation of holding something, are not the same things. See CDF, Commentary on the Professio fidei (1998) esp. n. 8.

The strict interpretation that must be accorded all penal canon law (Canon 18 and Reg. Iur. 49) forbids punishing as heresy what is only (again, if I may put it that way) the rejection of something to be held definitively, as opposed to the rejection of something that must be believed with divine and Catholic faith. Thus (and buckle your seat belts before proceeding) even if Coon had said (and I know of no evidence that she did say): “I seek ordination from Patricia Fresen precisely to demonstrate my rejection of the Church teaching that the Church has no power to confer sacerdotal orders on women”, Coon could not have been convicted of heresy against the assertions definitively to be held (not believed) under Ordinatio sacerdotalis. Punishment under Canon 1379 (simulation of a sacrament) was certainly possible; punishment under Canon 1371 (for actions contrary to teachings defended by Canon 750 § 2) was certainly possible; but punishment under Canon 1364 § 1 (for heresy as defined by Canon 751 and against the obligations of Canon 750 § 1), does not seem possible.

In sum, I see no compelling argument that Norma Jean Coon, whatever might have been her moral culpability for seeking diaconal orders, and whatever other canons she violated, ever committed the canonical delict of heresy.

She should not be accused of having done so.

Abp. Michael Sheehan (Santa Fe NM) has written a clear and concise letter on the ‘Pastoral Care of Couples Who Are Cohabiting’. I understand that he had it read from the pulpits of his churches last weekend. I think it a solid summation of the Church’s teaching on Catholic marriage, Christian witness, and ecclesiastical participation.

Some have expressed surprise that the statement comes from a prelate whose opinions regarding Eucharistic discipline elicited opposition from, among others, me in 2009. Okay, well, isn’t life full of pleasant surprises? All I know is, Abp. Sheehan’s 2011 statement is excellent. God bless him for writing it, and God bless those who read it.

With but a few keystrokes to his Facebook page, D. J. Bettencourt, Republican majority leader of the New Hampshire State House, has secured his forever-unerasable place in cyberhistory as a poster boy of irrational hatred of the Church.

Bettencourt’s Facebook post describing Manchester NH Bp. John McCormack as a “pedophile pimp who should have been led away from the State House in handcuffs” was hurled at the prelate, after the bishop voiced disagreement with, of all things, some proposed state spending cuts! Bettencourt’s jaw-droppingly false accusations show how instantaneously insults can, and probably will for the foreseeable future, be levied at any Catholic bishop who dares to exercise his civil right of free speech regarding public issues. But, that such overt intimidation of a citizen was practiced by an elected pubic figure—one sworn, I presume, to defend constitutional liberties—simply defies description. Is Bettencourt really the face of New Hampshire’s Republican Party?

Bettencourt could have, if he wished, expressed strong disagreement with McCormack’s theory of governmental responsibility, or at least with the bishop’s facile assumption that governments can draw on an inexhaustible money pit. I, for one, would have been happy to offer some talking points for such reasonable rebuttals. Bettencourt could have even, if he wished, (but a different context would have been much better) criticized McCormack’s role in the Boston clergy abuse scandal, though I gather that in doing so Bettencourt would have only re-aired points that McCormack seems basically to have conceded.

Instead, Bettencourt insulted the bishop with a crude ad hominen attack utterly unconnected to the issue before them, and twice accused the bishop of civil crimes warranting immediate arrest, namely, pedophilia and pimping. In writing. Politics can occasion some pretty harsh descriptions of one’s opponents, I know, but it should never, ever, excuse an elected leader’s public leveling of plainly criminous accusations against a fellow citizen who disagrees with the politician, absent, at least, immediately proffered evidence that backs up the claim of crimes.

So, does Bettencourt have evidence that McCormack engaged in pedophilia? Does he have evidence that the bishop worked as a pimp? If he does not, then, even though Bettencourt can never erase his vile words, he can at least apologize for them. Immediately.

Meanwhile, New Hampshire Republicans might want to start thinking about finding a new face to represent, if not their fiscal responsibility goals, at least their method of defending them. Or not, if they are comfortable with Bettencourt’s judgment going into the next election cycle. + + +

Same Day Update: J. D. Bettencourt has just published a long, ‘I’m-not-sorry-for-what-I-said-but-I-am-sorry-for-how-I-said-it’ letter to Bp. McCormack. But, is it not obvious, the problem with Bettencourt’s original attack was precisely what he said, not simply how he said it. Bettencourt publicly, in writing, accused McCormack of grave civil crimes. Those accusations must either be substantiated, or withdrawn. Meanwhile New Hampshire’s Republican leadership seems to be digging for Bettencourt. What are they thinking?

A terse statement from the Holy See Press Office reporting the “removal”* from episcopal office of Jean-Claude Makaya Loemba (diocese of Pointe-Noire, Republic of the Congo) cites no canons by which the action was taken and offers no factual basis upon which to ground the pope’s action, but Benedict’s move is being characterized by some as a sort of papal removal for “mismanagement”. I’d be careful about putting things that way, for it feeds the impression wrongly held in various circles that bishops are just regional managers of world-wide Catholic activities, appointed and sackable by the pope as if they were employees of a major corporation.

Canonically, what Bp. Makaya Loemba has undergone seems to be “privation” of office in accord with Canon 416. The canonical commentaries** I’ve looked at regard a bishop’s “privation” of office as being possible only in the face of guilt for ecclesiastical crimes (say, canonically illegal actions in regard to ecclesiastical property, contra cc. 1377 or 1389).

But criminal conduct is not the same thing as “mismanagement”, and it is certainly not the same thing as “weak performance”, both of which conditions might well justify upper-level management in removing a lower level administrator from his post, but neither of which—for all sorts of ecclesiological and canonical reasons— constitutes grounds for privation of episcopal office in the Church.

Only the pope hears criminal cases involving bishops (c. 1405 § 1) and penal cases are generally conducted confidentially (c. 1455 § 1), so unless either side decides to discuss the matter, the details are not likely to emerge (with good reliability, at least). In any event, characterizing Makaya Loemba’s removal from office as being based on mere “mismanagement” can leave folks with the wrong impression of the relationship between pope and bishops.

* The English word “removal” is ambiguous in this case. While “removal” is a general way to lose ecclesiastical office (cc. 184, 192-195) not necessarily implying canonically criminal conduct, “removal” from episcopal office does not, strictly speaking, seem possible under Canon 416, only privation (c. 196) seems possible, and such action implies guilt for ecclesiastical crimes. It would have been better to avoid the word “removal” if, as seems likely, “privation” was meant. The word “removal” might seem softer in English, but it actually portends rather more serious ecclesiological implications than does the term “privation”.

** Commentaries on Canon 416

C. Soler, in Exegetical Comm (2004) II/1: 896: “Privation is a canonical penalty, and therefore it is governed by the canons on penal law, as acknowledged in c. 196. . . . For bishops, the Code does not contemplate the case of non-penal removal.”

S. Giangiacomo, in Codice Commentato (2001) 393: “è vacante dal momento in cui il vescovo riceve l’intimazione della pena.”

T. Green, in CLSA Comm (1985) 343: “The final point (privation) presupposes the commission of an ecclesiastical offense for which deprivation of office is the appropriate penalty.”

Same Day Update: Okay, folks know that I think highly of the chaps who run CatholicCulture.org, but I’m afraid that this time, they missed a point I made above.

I do not, contrary to this news story, believe that, “in the language of canon law, removal [of a bishop] from office is actually a more severe disciplinary action”, and my post above simply does not say that. I said, removal of a bishop by the pope “portends more serious ecclesiological implications” than would arise from a pope depriving a bishop of office. I wrote with precision.

Because privation of episcopal office can only occur in response to a crime, a pope would be, I think, merely (if I may use that word) fulfilling his role as guarantor of ecclesiastical unity in faith and discipline in performing such an act. But if a pope were to remove a bishop from office, that would raise much more significant ecclesiological questions about the basis of his action and how such action squared with the reciprocal papal-episcopal duties inherent in collegiality and communion. It would at the very least require some careful sorting out.

That is why I question whether the journalists in the HSPO knew that the English word they used to describe what the pope did, “remove”, though it sounds “nicer” than “deprivation”, actually had more serious ecclesiological implications than would the phrase “deprived of office”, and that “removal” is probably not what the pope did in this case.

1. Dr. Norma Jean Coon’s website reports that, according to a letter from the Congregation for the Doctrine of the Faith, her reconciliation with the Church is complete. This is great news, of course. But her reconciliation is being reported as an “excommunication” being lifted.

May I again offer a cautionary remark here: we have only NJC’s characterization of the letter from CDF, and that characterization does not mention “excommunication”, but rather, speaks of “sanctions”, a term that might or might not mean excommunication. I still know of no basis upon which NJC would have been “excommunicated” for her action, as opposed to her perhaps being sanctioned with a “just penalty” under Canon 1379. If someone else has more specific information, I’d appreciate hearing of it. I think it worth trying to track this matter down as these facts might be repeated in other cases.

2. I have not followed Geraldine Ferraro’s career since she left public life and I have no basis upon which to form an opinion regarding a Catholic funeral for her.

3. I know nothing about the Fr. John Corapi case and I see no point in speculating about it.

Update, 28 March 2011: Some folks are wondering whether the example of (then) St. Louis Abp. Raymond Burke’s excommunication of three women for taking pseudo-orders in 2008 gives me pause in questioning whether Norma Jean Coon was actually excommunicated for her reception of pseudo-orders.

Briefly (and I do mean, briefly), the answer is No.

First, the women in the St. Louis case attempted to take presbyteral orders (after taking ‘diaconal’), whereas Coon only attempted to take diaconal. Ordinatio sacerdotalis (1994), upon which Burke correctly relied and heavily, puts beyond any question the nullity of female ‘ordination’ to presbyterate, but it says nothing about the diaconate. Now, while I think that the nullity of a woman’s attempt to take diaconal orders is certain from tradition (pace the CLSA, “The Canonical Implications of Ordaining Women to the Permanent Diaconate”,1995), the express language of OS only goes to presbyteral orders, meaning that the Coon situation is significantly different on the facts from the St. Louis case. That difference alone would defend my continuing questions about Coon’s situation even in the face of the St. Louis case.

Lest people think I am holding open too great a distinction between diaconal and presbyteral orders, recall that Rome recently introduced a change in the text of Canons 1008 and 1009 that seems to draw a greater jurisdictional distinction between these two levels of holy Orders than was apparent till then in the Code. While I am still working out in my mind what those differences are, they do suggest that attempts at pseudo-presbyteral ordination are a greater wound on ecclesiastical unity than are attempts at pseudo-diaconal ordination and hence are more likely to result in excommunication. The notion of a “wound on ecclesiastical unity” brings us to the possibility of Coon having committed schism, an excommunicable offense under c. 1364.

A number of elements go into a canonical schism case, properly so-called, but we can prescind from reviewing those because of one major difference in the Coon situation from the St. Louis case. Burke’s invocation of schism against the St. Louis women in a ferendae sententiae process meant, among other things, that he could directly verify a crucial prerequisite to any censure, namely, the fact of contumacy. Canons 18, 1347, 1358, and Regula Iuris n. 49 in Sexto. But in Coon’s case, she withdrew from association with the radical group, apparently of her own volition, within a matter of weeks. Thus, had a formal process such as Burke conducted in St. Louis been used in Coon’s case, she could have easily avoided conviction for schism for lack of contumacy—assuming she committed schism as understood by canon law in the first place. Again, this is a major difference between the Coon situation (wherein we don’t even know whether a formal penal process was held, let alone one within days of the deed) and the St. Louis case with its ample documentation and time for deliberation.

There are additional differences between the St. Louis case, which I have said all along Abp. Burke decided correctly, and the Coon matter, which I think was not, strictly speaking, decided either way, but these two suffice to show why my questions about Coon’s canonical status—which is happily resolved now in any event—remain open.

Ironic. One of the most important essays by a bishop on Canon 392 (the norm setting forth a bishop’s fundamental duty to supervise the enforcement of ecclesiastical discipline in his diocese) never mentions Canon 392; one of the most important essays by a bishop on Canon 915 (requiring ministers to withhold holy Communion from certain public sinners) never mentions Canon 915; and in fact, one of the most important essays on canon law generally by a bishop since the 1983 Code came out, was not written by a canonist bishop and scarcely even mentions the Code.

Instead, Fargo ND Bp. Samuel Aquila’s remarkable essay “Good Shepherd: Living Christ’s Own Pastoral Authority” shows how a bishop who thinks with the Church can’t help getting the canonical big picture right at the same time. This should surprise no one, for canon law, in its turn, is all about getting the pastoral picture right.

Any bishop who thinks with the Church, who understands that lessons in ecclesiastical leadership are woven throughout the Scriptures, and who believes, in short, that “p. c.” stands for genuine “pastoral care”, and not for “politically correct”, is going to find solid guidance for his pastoral decision-making in canon law and objective defenses of his pastoral actions under the Code. Even if he doesn’t use canonical jargon.

I loved the way Bp. Aquila, for example, drawing on the model for graduated confrontation of wrong-doing in the Church cited in Matthew 18, didn’t mention that Canon 1341, among others, sets out the same approach in canonical language. Or again, he asks, and not rhetorically, how many votes against basic Church values, performed over how many years, does it take to convince the minister of holy Communion that this Catholic politician or that is obstinately persevering in manifest grave sin, without ever using Canon 915′s precise language?

The Eagle of Fargo delivered his remarks to seminarians, but they are well worth reading by priests and, need I say it?, by bishops who know that, someday, they will have to render an accounting of their office to Someone in a considerably more demanding setting than that of a pope during a quinquennial visit. + + +

I read with bemusement the National Catholic Reporter story on the recent reconciliation of Norma Jean Coon, the San Diego woman who was ‘ordained’ a deacon but has since repented of her actions. My reactions to the Coon case and NCRep’s story on it fall into three parts.

Fair Warning: You’re gonna think I’m making the first part up.

1. About a week and a half ago I was contacted by a writer for the NCRep and asked to respond to several questions on the Norma Jean Coon case. There followed the usual journalist “I’m on a tight deadline” plaint.

Now, the Coon case is obviously important, so I took time from a very busy schedule and prepared responses which I sent in promptly (within about 4 hours). I also offered to be available for any follow-up questions. And what happened?

Nothing.

For the second time this year, none of the careful replies on a news worthy topic that I prepared for the NCRep, at the NCRep’s request, made it into their article on the topic, even by way of token counterpoint to the NCRep editorial stance. And it’s not like the NCRep did not want to use e-mail responses, for at least two other e-mail responders were quoted at length in the story. So what exactly is going on?

Obviously, I don’t need the NCRep to get my views before the public, but I think readers of the NCRep need to know that, yet again, qualified information on a story was made available to the NCRep, at its request, and that again the NCRep chose not to share any of that information with their readers.

Well, I don’t plan to waste my time again.

2. The NCRep story reports as a fact that Coon is excommunicated. As I stated in my interview, however, I am not at all convinced that is true.

This is what I told the NCRep:

Assuming the substantial accuracy and completeness of the information publicly available on this case, all Coon needed to do to effect her reconciliation was to make a good sacramental Confession. She almost certainly was not excommunicated for her deed, but not because the Church has any doubts about the gravity of her act. Quite simply, Coon’s actions fell in a gap that existed at the time between two canons.

On the one hand, Canon 1378, as it applied when Coon underwent her ‘ordination’ in July of 2007, did not criminalize the simulation of holy Orders, let alone did it impose an automatic excommunication for such simulation. The automatic excommunication for the attempted ordination of women that canon law knows today did not go into effect until May 2008, some ten months after Coon’s deed.

On the other hand, Canon 1379, which would support ‘a just penalty’ for simulating holy Orders, can only be applied in a formal judicial or administrative process, and I know of no such process having been invoked against Coon. So unless Coon had been specifically precepted in this case, either against seeking ordination in the first place or failing to repudiate it within a certain period (as then Cdl. Ratzinger ordered in 2002 in regard to seven women who had been ‘ordained’ on the Danube River), or unless there was a formal administrative or judicial penal process convoked against her later, Coon was not excommunicated. And, if one is not excommunicated, a good sacramental Confession suffices to bring any one back into peace with the Church.

I think it’s an interesting question, and the NCRep story does not suggest that they found anything to preempt my analysis. So my question, at this point anyway, still stands: was Coon ever excommunicated? I do not think so.

3. Surfing the blogosphere on the Coon story, I am seeing several other questions being raised, at least some which I also addressed for the NCRep, thus:

Norma Jean Coon’s “Renunciation of Ordination” is a remarkable document.

The essence of reconciliation, whether we are talking moral theology or canon law, is repentance of wrong-doing. There is no doubt in my mind that Coon has manifested repentance of her actions.

Even some of the mistakes in her document suggest that her desire for reconciliation is sincere. For example, she refers to her ‘ordination’ as “illegitimate”, a term that in canon law means “illicit.” Of course, the attempted ordination of a woman is not just “illicit”, it is utterly null and of no moment whatsoever in the sacramental order. In this regard, the attempted ordination of women differs radically from, say, the schismatic ordination of four bishops by Abp. Marcel Lefebvre in 1988. While both actions will result in excommunication, the former will not result in a “cleric”, while the second admittedly would.

Also, Coon expresses regret for having read the Gospel at Mass (I would not know whether what she was present at would have really been a Mass) and indeed, such action is reserved to a cleric (and so a violation of c. 767), but she also apologizes for having distributed Communion (again, I wouldn’t know whether it really was Communion), but in any case, distribution of Communion is not reserved to clerics (c. 910). Small slips like this suggest to me that Coon writes from the heart, and not from a canon lawyer’s notepad.

Maybe it’s just me, but I think these, too, are interesting points and would have been of interest to many others following this story. Apparently, though, people will have to look for such points some place other than the National Catholic Reporter.

First thoughts on the Manel Pousa case

Based on the news reports I’ve seen (here and here), the case of Spanish priest Manel Pousa illustrates why it is so hard to parody religious nuttiness these days. As soon as one posits, say, a hypothetical priest who—I dunno, let’s just make something up—pays for abortions, and blesses gay unions, and supports women’s ‘ordinations’, and holds for optional celibacy while he hangs out with his girlfriend and hobnobbs with the region’s rich and famous, then boom!, you find out that an actual priest is alleged to fit that description. So it’s back to the imagination drawing boards.

Anyway, it seems the Pousa case is finally getting some official ecclesiastical attention. The delay, I suspect, was not a dearth of canonical expertise. Not in Spain, it wasn’t. Spain is chock full of good canonists. But, I fear, that very delay might have complicated the case, or at least parts of it.

The main concern is Canon 1362, which establishes a quite short statute of limitations for most ecclesiastical delicts, namely, just three years. A few offenses fall under a five-year period of prescription (e.g., abortion and cooperation therein), and a very few crimes are subject to a ten-year-or-more period (but that law does not seem applicable to these facts). Given the strict interpretation that binds Church officials in penal law matters (see, e.g., Canon 18 and Regula iuris n. 49 in Sexto), canoncial defenses based on statutes of limitation are pretty easy to offer and pretty hard to defeat.

On the other hand, some of Pousa’s antics seem to be of chronic duration, and in certain cases the very duration of one’s activities can have the effect of preserving the Church’s authority over older offenses whose prosecution might otherwise have been barred. But again, Spain has plenty of canon lawyers who know this.

The rest of us will have to wait and see.

PS: Did anyone else find odd the Barcelonan archdiocesan statement that “these procedures required by canonical norms do not impede the recognition of the social work that this priest has been carrying out for many years at the service of the most needy groups of our society”? I think we should be very clear: Pousa is suspected of, among other things, paying a killer to snuff the life of one or more pre-born babies! How on earth would his care of poor people even be relevant to, let alone a mitigation for, such horror? + + +

Of course, Pousa’s antics (if that is not too casual a way to describe some of Pousa’s behaviors) are bound to catch up with him sooner or later. It just wasn’t today.

 

Communion, Canon Law, and Pastoral Practice

There is a line of thought emerging in regard to the Cuomo-Communion controversy that runs as follows: “Okay, maybe Peters has a point about the canon law of this case, but c’mon, questions about individual reception of holy Communion are really matters of pastoral practice.”

You know, as if canon law and pastoral practice were two entirely different things.

Let’s think about this.

Certainly, there are many canons in the Code that scarcely impact pastoral practice. It’s difficult (not impossible, just difficult) to see a pastoral application for, say, Canon 141 on priority among successive delegees, or for Canon 707 on residence options for a retired religious bishop, or for Canon 1601 on a judge’s discretion over time limits for filing briefs in tribunal cases. No one seriously argues that the faithful are bound to recall such canons in daily life or at least to think about them during the Communion rite.

But, while many canons do not have immediate pastoral relevance, many other canons do have obvious pastoral implications, and surely the canons on the reception and administration of holy Communion count among them. Indeed, the whole purpose of Canons 915 and 916 is to direct concrete pastoral practice!

Canons 915 and 916 boast aged, even ancient, nay apostolic, roots, and both norms are illuminated by copious and consistent canonical commentary reflecting many centuries’ worth of . . . . . what? . . . . . pastoral practice. In other words, one cannot discuss Canons 915 and 916 without discussing pastoral practice at the same time. The two disciplines are inextricably related. And not because I say so, but because they are.

Ours is certainly not the first generation to face the serious problem of Catholics whose lifestyle is protractedly and publicly at odds with important Church teachings, nor are we the first to face rampant ridicule and accusations of hypocrisy* for holding Catholics to higher standards for their public behavior than we hold others to. It is precisely because the Church has such extensive experience in dealing with difficult issues that she has set down, for the guidance of pastors and faithful alike, certain norms for behavior in her Code of Canon Law, norms such as Canons 915 and 916.

Obviously, the time to think about what certain canons on pastoral practice might require of bishops and faithful is before controversy arises over them, if only because, if fundamental and reasonable norms for conduct are not attended to before controversy over them erupts in the Church, they will most assuredly be invoked afterward. Like most good lawyers, I think it’s easier to head off problems than it is to solve them; but, like many Catholics of my generation, I think even worse than not solving, once it has arisen, a serious problem in pastoral practice (even problems that we only inherited, instead of ones we cooked-up for ourselves), is our simply leaving it to the next generation to face.

To be clear, I do not think that every pastoral question imaginable has a certain canonical answer. Nor, even in regard to those many pastoral questions that do have, at least in part, a canonical answer, do I think that those answers can be implemented overnight. Moreover, I recognize that bishops have the primary responsibility for governing the Churches entrusted to them (c. 381 et seq.). And I certainly recognize that canon lawyers have no more authority over the application of canon law in the Church than attorneys in a law firm or professors in a law school have authority over the enforcement of civil law. On all of these points, nothing I have ever written supposes otherwise.

But what canon lawyers do have is expertise and ready access to the detailed resources that are necessary to set out, accurately and clearly, exactly what the Church’s legal system says (if anything) about this topic or that, and canonists do that, or should do that, in service to the Catholic faithful who strive to live within the Church’s order and for Catholic leaders who are charged to uphold it.

If nothing else, canonists should correct, I think, any claim that canon law and pastoral practice are simply distant cousins in the Church. “Brothers” would be much closer to the truth. + + +

* One of the just-plain-dumbest accusations of hypocrisy made against me is that I only “go after” Catholic Democratic politicians and not Catholic Republicans. Folks, if, among Americans who care at all about politics (and yes I recall enough Plato and Madison to care about politics), if, I say, there is someone who cares less about political party affiliation than I do, please, introduce us! I’d luv to meet someone who has less than zero interest in political parties.

As for those who specifically wondered where I was when Rudy Giuliani was in the news, I was right here (28 April 2008) and before that, I was here (15 March 2007). Where were you?

Same day Update: Thanks to some readers who passed along links to the recent L. A. Times interview with Cdl. Mahoney (emeritus of Los Angeles), including the prelate’s remarks on admission to holy Communion. I noted especially the observation attributed to the cardinal that Christ gave Communion to Judas, so who are we to withhold Communion from others?

Okay, well, I have disagreed with the cardinal’s interpretation of Canon 915 before (scroll to 18 May 2004) and the most recent reiteration of his views suggests no emendation in his arguments. But, as I have addressed the chronic disregard of the differences between Canon 915 and 916 sufficiently for anyone who cares to know the differences, I won’t repeat those points here.

But the line about Judas going to Communion caught my eye.

I’m no Scripture scholar, so I don’t know whether Judas, in fact, took the Eucharist at the Last Supper, but let’s suppose he did. What exactly would be the lesson? Frankly, the more I think about it, and assuming there is a point for canonical practice in the episode—and if one will permit a bit of canon lawyer humor here—I suggest that Jesus, in giving Judas Communion, would have just been acting in anticipatory obedience to the 1983 Code!

Consider: It is well established in moral and canonical literature that a minister cannot withhold holy Communion from an occult sinner*, even where the minister knows of the sin and knows of the impenitence. Citations [added: Abbo-Hannan II: 854-856; Dom Augustine IV: 232; Davis III: 206-207, etc.]. That’s why Canon 915 operates only in the face of manifest grave sin, not simply personal sin.

In fact, as important as the prevention of sacrilege is in the operation of Canon 915, it is not the only basis for the canon; rather, the prevention of scandal is also a key consideration, but scandal arises only from public behavior seriously at odds with Church teaching and order. Judas was an occult sinner, and Jesus did not expose his inexpressibly grievous, but to that point still private, sin to public view by withholding Communion from him.

Since he was 12 years old, Jesus had been taking the Doctors of the Law to school, and he did so even at the Last Supper.

*Update, 15 March 2011. An alert reader asks me to specify that, if an occult sinner seeks holy Communion privately, he IS to be turned away by the minister. I am happy to make that point. While occult sinners cannot be turned away when they seek holy Communion publicly, they can be turned away when they seek privately, and the sources I cited above make that very point. While the point is not relevant to my argument re Cuomo (whose conduct and request for the august Sacrament are both considered public under canon law), and while the “private reception” of holy Communion is seldom done today, it is worth noting that the rules for public reception and private do differ in some respects.

(Holy) Wars and Rumors of (Holy) Wars in the tabloid press: such things must happen

We interrupt our regularly featured canonical commentary for these breaking observations on tabloid journalism…

I read with some bemusement yesterday as the New York Daily News tried to bait Andrew Cuomo and the bishops of New York into a “Holy War” by alleging the governor’s “snub” of the latter’s meeting out of anger that “the Vatican” had rebuked Cuomo’s living arrangements. Now, what I don’t know about New York politics would choke a horse, so I can’t definitively conclude for or against the tabloid theory. But I can say that, to some guy sitting in Detroit, the NYDN headline “Cuomo snubs [NY] bishops after Vatican slap…” doesn’t make much sense.

First, “the Vatican” has not said anything about Andrew Cuomo’s cohabitation with Sandra Lee and the implications of that cohabitation for Cuomo’s reception of holy Communion. Rather, someone who is, as it happens, an advisor to “the Vatican” (well, really, an advisor to the Holy See, specifically, to a dicastery of the Holy See charged with certain canonical issues) has said something about Cuomo’s cohabitation with Lee and its implications for his reception of holy Communion. Folks can like what I said about the operation of Canon 915 in this case, or they can dislike it, (and there are many in both groups), but either way, the plain fact is, I’m the one talking here, not “the Vatican”.

Second, even if someone has convinced Cuomo that “the Vatican” is rebuking him, why would the governor take out his chagrin against “the Vatican” on the bishops of New York? The bishop of Albany gives the impression of being in the governor’s corner on this one and, though I think it wrong to parlay a single comment by the New York State Catholic Conference press rep (to the effect that bishops of New York “support” Bp. Hubbard in this case) as being, in fact, their considered position in this case, at least the impression can be taken that the state episcopal conference is on Cuomo’s side, too.

All of which prompts a simple question: since when would it be smart for a politician to snub individuals or a group who, in the face of a perceived adversary, are supporting him, or who at least, in the public’s mind, seem to be supporting him? But like I said, I know nothing about New York politics.

We now resume our regularly featured canonical commentary…

Phil Lawler, in a thoughtful column over at CatholicCulture.org regarding the Cuomo-Communion controversy, makes a simple but important point: there are two related-but-distinct canons applicable in this case because there are two related-but-distinct issues in this case, namely, private conduct and public scandal.

Canon 916 binds Catholic faithful in all cases, and Canon 915 binds Catholic ministers in certain cases. No Catholic with a guilty conscience should approach for holy Communion (c. 916), but if certain Catholics publicly and obstinately engage in seriously wrong conduct, and approach for holy Communion, they must be turned away (c. 915). As Lawler says, unless Canon 916 has language in it a la “This canon supersedes the previous canon and renders it irrelevant”—and Canon 916 has no such language—then Canon 915 must be applicable in some cases beyond those addressed in Canon 916.

Reading dozens of news articles and opinion columns (not to mention hundreds of combox posts) over the last few days on the controversy following my narrations of the requirements of Canon 915, I recall yet another thing my Jesuit spiritual director told me lo these many years ago. “Nobody, Ed, least of you, likes being told what to do.” Who among us does not chafe at being told how to conduct ourselves? Throw in looming consequences for our (mis)conduct, and we are easy prey for siren voices chanting “Rules are written by hypocrites to control the weak!” or, perhaps more subtly, “Maybe this rule is okay for most people, but you’re the exception!” Original sin and personal sin are a deadly duo. It took Jesus dying on the Cross to give us a fighting chance against them.

And so, I am not terribly surprised that no one has taken on (in any specific or cogent way) the canonical arguments I make that (1) Andrew Cuomo’s living arrangements* are objectively scandalous, (2) he should refrain from approaching Communion as long as he engages in them, and (3) if he does not refrain from approaching, Communion must be withheld from him. Instead, I suggest, most of the people criticizing me (and there are plenty, of course) are criticizing not so much me, but the rule in Canon 915, even if they don’t realize that’s what they are doing.

Consider this argument posted recently by a young Franciscan.

For Francis, the Eucharist was so important that nothing could come between him and his participation in the liturgical celebration. Likewise, nothing should come between any member of the faithful and the Blessed Sacrament; including, and most importantly, priests, bishops or any minister of Communion.

I won’t dispute a Franciscan’s representations about the spirituality of St. Francis, but I am quite sure that Il Poverello’s love of the Eucharist does not remotely, let alone “likewise”, guarantee my or anyone else’s eligibility to receive It. More tellingly, though, the religious continues:

The only person that can know the state of someone’s soul (as the language goes) is the individual person and, perhaps, his or her confessor. But the confessor is, under the threat of excommunication, forbidden from disclosing or acting on that knowledge. So no minister of Communion — ordinary or ‘extraordinary’ — is in any justifiable position to refuse a member of the faithful who presents him or herself at the Celebration of the Eucharist to receive Holy Communion. Period.

Now, his first two assertions (about knowing the state of souls and the penalties for violating the seal) are basically right, but they provide little logical foundation for his third, and quite erroneous, claim that, ‘No minister of Communion is justified in refusing holy Communion to any faithful who presents himself.’ Period, lest we miss the point.

Is it not plain that this writer actually has no complaint against the lawyer here, but rather, that his ire is directed at the law? According to his view, Canon 915 should not even be in the Code because it can never be invoked! Such a stance might, I suppose, prompt one to write to the pope asking that Canon 915 be removed from canon law—or at least that the ‘Lawler Amendment’ be inserted into Canon 916 (pardons, Phil!)—but it hardly refutes my interpretation of Canon 915 as it reads now, and as it has read in Catholic tradition going back to St. Paul’s chilling remonstrance of the recalcitrant Corinthians.

In short, I can understand people not liking it when the Church tells them how to act. Catechism of the Catholic Church, Part III. I can even understand people’s not liking it when the Church tells them what to do when they don’t act the way they are supposed to act. Canon 916. But I am having trouble understanding why so many people don’t even like it when the Church tells her own ministers what to do when certain other Church members don’t act the way they are supposed to act. Canon 915.

* I have mentioned, but not pursued, the additional complications for Cuomo’s access to holy Communion arising from his political actions such as consistently supporting the horror that is abortion. Maybe I should address them. As it is, my emphasis on the ecclesial aspects of Cuomo’s case has not silenced the crowd that sees all of this as a violation of the “separation of Church and State.” Oh well.

Michael Sean Winters first commented on my general discussion of Cuomo and Communion here (25 Feb); I replied to him here (25 Feb); MSW acknowledged my comments here (25 Feb), and posted a lengthy reply (28 Feb) here. I read his latest remarks carefully, and have some thoughts to offer.

The main problem with internet “debates” of course, is the lack of moderators, people who can objectively determine when a given point has been proven or defeated, or when this claim is irrelevant or that one is inflammatory. As long as two people are willing to type, it seems, the impression is given that the debate is still open, that the resolution is unknown.

Despite knowing that one cannot “win” an internet “debate”, I’m willing to engage in them anyway, mostly for three reasons: first, to convince my adversary; second, to edify observers; third (perhaps a bit philosophically here) because, in rather the same way that truth is worth pursuing for its own sake, so error can be worth correcting for its own sake. (Come to think of it, those are my only three reasons for blogging; it’s not part of my job).

So, where do things stand in these three respects vis-à-vis my exchanges with Winters?

One. I am not going to convince Winters of the persuasiveness of my position over his, because he believes that (take your pick): my interpretation of canon law represents horrible theology, I engage in sneering, I don’t quote Scripture in my canonical writing, I am given to plunging canonical daggers into straw men, I feel mighty self-satisfied with the 99 sheep instead of looking for the lost one (indeed I pose a threat to the returning sheep), I must see law as a purely penal instrument, I am more prone to condemning instead of using the medicine of mercy, and so on and so on and so on. Well, okay. I am none of these things. But so what?

Mostly, though, I sense the futility of debating Winters further because he still defends a fundamentally skewered understanding of the role of canon law in the Church. Despite my express citations to Pope John Paul II and (gasp) the plain text of Canon 392 (both of which points Winters ignores), he reiterates “yes, the canons exist for the bishop to use as he sees fit in achieving the salvation of souls” (my emphasis). Folks, that’s antinomianism; not the bomb-throwing anarchist kind, I grant, but just as dismissive of canon law as the primary expression of the Legislator’s governance directives. As Winters rightly warned us, however, antinomianism can’t be answered by lawyers citing more nomoi. Its roots go much deeper; too deep, I fear, for my little trowel.

Two. I think I’ve edified observers who perhaps wondered, at least initially, whether there were coherent replies to those who, with some rhetorical skill, eviscerate the plain meaning of important canons. My readers know now, if they didn’t before, that there are coherent replies to such assertions. They don’t need me to repeat that, while canon law does not exhaust the requirements of Christian living, it does establish minimum standards of conduct in the Church. And they know, as I do, that if those minimum standards are ignored, there is little point in pretending to reach for the stars.

If I may be permitted a personal illustration, I remember in college when my Jesuit spiritual director told me in our first session, “Well, Ed, you start by observing the Ten Commandments.” St. Paul spoke from a mystical appreciation of just Who stood behind the Ten Commandments when he warned the Corinthians—and us—against taking the Lord’s Body and Blood outwardly to our condemnation inwardly. Canons 915 and 916, I suggest, simply express these same points canonically–you know, f/b/o Catholics who don’t read the Bible but who keep a copy of the Code on their nightstand.

Three. Pursuing truth is always a positive; but correcting errors gets old pretty quickly, especially when there’s little evidence that it’s working. Perhaps I fail in patience. In any case, while it is my honor to explain and (especially when asked) my duty to defend the meaning of canon law, it is not my responsibility to enforce it.

In sum, I am unpersuaded that anything Winters wrote refutes my interpretation of Canon 915, including my assertion that Canon 915 directs the proper ecclesiastical response to the Cuomo/Communion situation.

Update, 1 Mar 2011. MSW’s acknowledgement of the above post is here.

I was disappointed by the tone, if perhaps less so by the content, of Rev. Thomas Reese’s reactions to my statements regarding the Cuomo-Communion controversy.

From the BuffaloNews.com (24 Feb 2011).

“This kind of thing has to be left to the man’s pastor’s [sic] and to the person’s bishop,” said the Rev. Thomas J. Reese, a senior fellow at the Woodstock Theological Center at Georgetown University in Washington, D.C. “The presumption is that people are coming [to Communion] in good will and with good motives to receive the grace of the sacrament.” Peters would have been fine to discuss Canon 915 in general terms on his blog, but his singling out of Cuomo was “totally inappropriate,” Reese said. “This guy sitting in Detroit doesn’t have some kind of spiritual telescope to look into the soul of Gov. Andrew Cuomo and decide whether he’s in a state of grace or not,” [Reese] said.”

1. I have never met Fr. Reese, though I have read much of his work over the years. I appreciate several aspects of it and regularly make sure that my graduate students [for, inter alia, classes in ecclesiastical structures, a specialty of Reese] know of his contributions to academe. But, even when I disagree with Reese, I never dismissively refer to him as “that guy sitting in DC”. I think professional courtesy should be a two-way street.

2. Reese can hardly be ignorant of the differences between Canons 915 and 916, so I can only take his derisive comments that I must have “some kind of spiritual telescope to look into the soul of Gov. Andrew Cuomo” as a deliberate obfuscation of my position. For Reese to imply that I have ever held the operation of canon law in general, or of Canon 915 in particular, to rest on an ability to read souls and decide whether they are in the state of grace, is simply false. I look forward to his prompt withdrawal of this imputation. In the meantime, I invite interested readers to examine my many writings in this area and verify for themselves that I hold no such views.

3. Finally, may I say that I am lately seeing, in Reese but also in some others, a new theme in the ad hominem-s directed against me which focus on, of all things, the fact that I am based in Detroit. Now, my city of employment is utterly irrelevant to my qualifications as a canonist or the strength of my arguments, but, since Reese brought it into this discussion, those of us who would like to see Detroit rise from its troubles, and who manifest our commitment to that recovery by living and working here, don’t appreciate subtle condescensions from others blessed to work/reside in swanky spots like Georgetown.

In short, Fr. Reese, let’s talk canon law, not zip codes.

I pause to make a few comments on Dan Collins’ column over at Huffington Post, “Will Andrew Cuomo Burn in Hell?”

Collins offers, perhaps despite himself, some good teaching moments to those who see the Cuomo & Communion controversy as, among other things, a chance to underscore that Church teaching makes real demands of Catholics in real life. But Collins also offers, unfortunately, some poor examples on how to write about those with whom one differs.

Let’s look at three of his points:

1. Collins writes: “While the Supreme Being will make the final call on this one, it’s not looking good for the New York governor (and perhaps his girlfriend) if a conservative professor at a Catholic seminary in Detroit is correct.”

Now, all sarcasm has some elements of truth, so let’s appreciate them.

First, the “Supreme Being”, and He alone, will indeed judge each and every individual human being at death. CCC 1021-1022. Second, I have described Cuomo’s and Lee’s situation as objectively (a qualifier that probably means more to me than it does to Collins) gravely sinful. See below, and CCC 2380-2381. Third, it is basic Catholic teaching that if one dies with unrepented mortal sin on one’s soul, one goes to Hell. CCC 1033-1035. Collins can agree with those teachings or reject them, but he has no business aiming his sarcasm at a Catholic writer who is making points about Catholic teaching for the information of Catholic readers and leaders, albeit in a conversation that anyone with internet access is welcome to observe.

In any case, shuddering even to contemplate the punishment of Hell being visited on a fellow being, and knowing that Church law (my specialty) has no jurisdiction over such eventualities, I said nothing about Hell. Collins did. For reasons he chooses not to share.

2. Collins quotes me accurately when I wrote: “Andrew Cuomo, governor of New York, and Sandra Lee, a television celebrity, live in what is known technically as public concubinage. The fact that both Cuomo and Lee are divorced renders the concubinage adulterous on both sides as well,” but inexplicably he then describes me having “thundered” this point in my blog.

Here I offer a suggestion to Collins: If you are going to accuse me of thundering, don’t quote a line that shows me calmly and accurately describing an admittedly controversial situation. Doing so only causes readers to shift their focus from me to you, making them wonder “What sort of hypersensitivity to religious commentary must Collins have if he views a line like that as thundering? Collins needs to read some Jonathan Edwards or Samuel Parris if he really thinks Peters is thundering here.” *

3. Collins writes “Dragging Lee in the debate — as an adulterer no less — seemed a breathtaking leap for Peters, a man who hadn’t even bothered to find out if she was a Catholic.”

This is a cheap shot. How does Collins know what I bothered to find out or didn’t?

As a matter of fact, being reasonably interested, I did look up Lee and found out that she was not** Catholic. But so what? Lee’s religious status is irrelevant to the characterizations of her actions. Moreover, my “leap” is hardly “breathtaking”.

First, the Catholic Church presumes the “validity” of pretty much any marriage that looks like a marriage until proven otherwise. Canon 1060. Our canon law accords that presumption to Catholics and non-Catholics alike. Second, we believe that spouses have a general duty to maintain their common living. Canon 1151. Third, we do not accept that a civil decree of divorce ruptures the marriage bond, whether it’s a Catholic marriage or otherwise. CCC 2384. From these points, we conclude that a married woman, Catholic or not, cohabiting with a man, Catholic or not, to whom she is not married, is doing something objectively gravely wrong. As is the man. See generally CCC 2380-2381, Canon 1152, and Forbes, Canonical Separation (1948) at 155. There are no leaps in this logic. Just a short series of simple steps.

I did not bring Lee’s religion into this discussion because it is irrelevant to our analysis of this situation. I do not know why Collins apparently thinks otherwise. At any rate, Lee’s religious status is certainly irrelevant to my description of the public conduct of Andrew Cuomo, who is Catholic and consequently has special obligations toward the Eucharist. + + +

* My kids found this criticism of their dad especially funny. “Since when”, my daughter asks, “does someone use a word like ‘technically’ when he’s thundering? We’ve heard Dad thunder, and he doesn’t use the word ‘technically’ then.” Kids say the darndest things.

** I have since looked more. Lee’s religious status is quite ambiguous (assuming it’s relevant to this discussion, which it is not).

Re Michael Sean Winters’ National Catholic Reporter column “Peters v. Cuomo”. Hmmm, where to start?

Well, how about with two preliminary observations: (1) even people of obvious intelligence can be of little expertise in an area in which they opine; (2) when unfounded and/or ill-formed opinions are expressed with rhetorical skill and disseminated through the media, they require an extraordinary amount of time and energy to untangle. But, let’s see what we might try.

Winters avoids the vulgarism of “First thing we do, let’s kill all the lawyers”, but he just as surely dismisses the role of law in the Church when he says that “Recourse to the canons of the Church are [sic] not just a last resort, they [sic] are an admission of failure.” If that really is Winters’ position, why does he bother asking a lawyer, canon or otherwise, to defend the role of law in society? Any answers that a lawyer might offer would be futile, per Winters: “There is not a brief in the world that can explain the role of briefs in the world.” So, although I believe that there are many errors in Winters’ essay, I’ve been forewarned that my answering them will be pointless.

How regrettable, for I might have something perhaps useful to say, like, for example, how Winters’ essay is a prime example of the lingering effects of the destructive antinomianism that swept through the West, including the Catholic Church, in the 1960s and 1970s.

Whence sprang that pervasive distrust of law that so blindsided my parents’ generation and still haunts mine? Who really knows? My hunch is that several pernicious philosophical currents finally came crashing together in two human meat grinders called World Wars One and Two, leaving large segments of Euro-American society deeply disillusioned about the possibility that reason (a constitutive element of human law, per St. Thomas) could be relied on to save us from ourselves. So, naturally, substitutes needed to be sought—science became a major one in the world, and the “spirit” of Vatican II became a major one in the Church. Whatever strengths these substitutes possessed, and whatever weaknesses they suffered from, both were fundamentally immune to law (or at least to lawyers), and many found that a highly attractive trait. Civil authority and lawyers cannot tell chemicals how to react in test tubes, and Church authority and canonists cannot tell Catholics how to live their faith. From there…

But I forget myself. Winters has disqualified lawyers from explaining why we have law in society, and so I stop and suggest only that Winters direct his questions about the role of law in society to someone else. As a lawyer, I apparently could not know how to answer.

Now, for those who don’t look on resort to law as proof of failure, and having a cornucopia of points I could discuss, let me comment only on how the very title of Winters’ column misrepresents the controversy about the application of Canon 915 in the life of the Church.

Consider: “Peters v. Cuomo”. The very words assume that this is personal conflict; Winters’ phrasing eggs-on two named individuals with all the subtlety of the playground taunt “Hey, let’s you and him fight!” But this matter is not about Peters and Cuomo. It’s about Cuomo, Communion, and Bp. Hubbard. In that order. Let’s see how.

The first ‘resort’ in solving a problem of wrong conduct is for the individual to right the conduct. None of us is supposed to sin. When we do sin (and we all sin, CCC 1847), we should, through the grace of God, repent of it, and strive to avoid it henceforth; indeed, we should replace sin with good. If (and usually when) we again fail to do that, we should start over, knowing that God’s grace is always there. The first step, then, toward resolving this particular problem (which happens to come to our attention for the reasons set out below) is for Andrew Cuomo to cease cohabiting with a woman who is not his wife. This first ‘resort’ is not canon law at all, it is rudimentary and utterly uncontroversial traditional moral theology.

The second ‘resort’ in a case like this—and where canon law makes its first appearance—is this: when an individual knows that he or she has gravely sinned, that person, of his or her own volition, should decline to approach for holy Communion before going to Confession. Canon 916 puts this second resort in simple terms, but again, anyone with a basic understanding of moral teaching and a basic appreciation of Who the Eucharist is, should know to avoid taking holy Communion under such circumstances.

Now, I readily grant, for those with private, but nevertheless grave, sins on their conscience, current Eucharistic discipline (esp. c. 919 § 1) makes it difficult for them not to approach for holy Communion without disclosing their guilty conscience. I have already called for a reform of the law in this very respect. But the bottom line remains, if one has a guilty conscience (and here, read in all the requirements for proper conscience formation) one should generally refrain from approaching for holy Communion until one has gone to Confession and put away the evil conduct.

The third focus, and in a sense the ‘final resort’, in a case like this one, is Canon 915, which falls primarily to the diocesan bishop to enforce. Canon 915 focuses, however, only on conduct that is public (a word that I frequently repeat because it is crucial to understanding the difference between Canons 915 and 916, and because so few people seem to understand that). Where a member of the faithful manifestly (i.e., publicly) and obstinately persists in conduct that is gravely objectively wrong, and that person does not, in the meantime, at least refrain from approaching for holy Communion, the minister of the Eucharist must withhold holy Communion from him or her.

The unwedded cohabitation (an act public by its nature) of sexually mature, non-familiarly related adults, gives seriously wrong example (i.e., scandal) to the community. Ecclesiastical authority need not verify that two such people are actually doing ‘it’ before moving against the grave scandal offered by such behavior, and my fellow legalists might want to look at the canonical adjudication of adultery cases under 1983 CIC 1152, olim 1917 CIC 1129, and the works referenced in Forbes’ dissertation on Canonical Separation (1948) who dryly notes at p. 155 that “eye witnesses are not required” to prove certain forms of misconduct.

Moreover, in direct proportion to the prominence of the individuals involved (can we say, state governors and television celebrities?), the degree of scandal is widened, and if either or both cohabiting individuals are divorced from prior spouses, the scandal is multiplied. And we have not even touched on Cuomo’s canonical situation being further complicated by, say, his strong support for legalized abortion. What part of this analysis is so controversial?

In any event, contrary to Winters’ astounding claim that “the canons of the Church are at the disposal of the bishop to use as he wishes”, John Paul II’s ap. con. Sacrae disciplinae leges (1983) para. 25, teaches that “canonical laws by their very nature must be observed”, and, if I may be forgiven for citing a canon to prove a canonical obligation, Canon 392 requires diocesan bishops “to promote the common discipline of the whole Church and therefore to urge the observance of all ecclesiastical laws” and “to exercise vigilance so that abuses do not creep into ecclesiastical discipline, especially regarding … the celebration of the sacraments … and the worship of God.” The prayers that every celebration of the Eucharist expressly makes on behalf of bishops are undoubtedly needed given the grave responsibilities that fall to them. But fall to them, these responsibilities do.

There are, in sum, three ways to resolve this particular situation: (1) Andrew Cuomo can stop cohabiting with a woman who is not his wife; or (2) if he doesn’t, he can at least refrain from going to holy Communion; or (3) if Cuomo doesn’t do either of these, Bp. Hubbard can direct ministers of holy Communion to withhold the Body, Blood, Soul, and Divinity of Our Lord Jesus Christ from him.

Folks, one of these three things will happen, or none of them will. We’ll just have to wait and see. What I don’t understand, though, is the rationale by which those who would settle for any one of these three solutions being effected, are regarded as the problem.

A political wag once observed that the fastest way to start a ruckus on Capitol Hill is to point out what the Constitution actually says. In the Church, it seems, the fastest way to start a ruckus is to point out what the Code of Canon Law actually says.

The Diocese of Albany has responded, briefly, to my comments regarding the eligibility of Gov. Andrew Cuomo for holy Communion under Canon 915 of the Code of Canon Law. Their brief response follows in bold print, my brief reply in regular print.

There are norms of the church governing the sacraments which Catholics are expected to observe.

Agreed. I helped point them out.

However, it is unfair and imprudent to make a pastoral judgment about a particular situation without knowing all the facts.

Agreed. Has someone done that? I responded to reasonable questions that I received about public behavior, as known from public sources, about which public canon law, which is my area of expertise, has something to say for the welfare of the faith community. I did so calmly, accurately, and with due respect for the persons involved, per Canon 212 § 3. I do not see how anyone could reasonably construe my comments as making improper ‘pastoral judgments’.

As a matter of pastoral practice we would not comment publicly on anything which should be addressed privately, regardless if the person is a public figure or a private citizen.

Agreed, the diocese should not do that, nor should I. Nor did I. Canon 915, if it means anything at all (and it most certainly means something), is about public consequences for a Catholic whose public behavior is seriously odds with important Catholic Church teaching. I can, and certainly should when asked, tell people what canon law says about such matters. I cannot, however, enforce the law. That responsibility rests elsewhere. + + +

Media note: I have too many requests to do live interviews on this topic, whether Catholic or secular, and it’s not the best use of the limited time I have available. I would be happy to try to reply to written media questions, as always. I aim for 24 hour turn around, depending. Short, concise questions are more likely to get a quick response. For more background on the application of Canon 915, check out this page.

WIVBTV 4 in Buffalo has pretty good news story on this matter (pace their assumption that “the Vatican” has said anything about the case). And yes, I saw the clip of Whoopi and friends on “The View”. As Uncle Claudius might say: “it was. . . . .indescribable.”

Some other follow-ups, as occasions suggest.

For those who agree with what I wrote, thank you for your kind words.

For those who disagree with what I wrote, I’ve already been informed that: the law killeth and the Spirit giveth life, that I am a Pharisee, that I am worse than a Pharisee, that Jesus forgives everyone (except possibly me and people like me), that I am a sinner, that the Church should deal with child molesters, that religion is a private matter, that Church and State are separate, that Bp. Hubbard is a gracious man, that Republicans (long listed omitted) commit sins too, that lots of people live together who aren’t married, that people get divorced and it might not be their fault, that Jesus came to unite not to divide, that many bishops ignore canon law, that many priests ignore canon law, that many lay people ignore canon law, that only psychologcially insecure people think that law is important, that the wafer is just a symbol, that I need a life, that some European politicians behave far worse but their bishops give them Communion anyway, that the Bible says ‘Judge not lest you be judged’, et c.

For both groups: I am not an official of the Vatican, I am a consultant (Referendary) to the Apostolic Signatura. All opinions are my own (and, no, the pope did not tell me to say that.) I am not a priest or a pastor; I am a layman.

A Catholic married couple in Germany, Harm and Edeltraut Klueting, has received papal permission for him to be ordained to priesthood and for her to enter religious life. It would be nice if we had all the relevant facts on this interesting case (the Vatican Press Office seems to know little about it), but until then, we can at least correct one widely repeated mistake: this couple did not receive the pope’s “permission to remain married” as several secular news sites put it. A consummated marriage between two baptized persons can be dissolved only by death. So the pope did not need to approve this couple’s “staying married”.

Rather, the pope doubtless dispensed him from the impediment that marriage is for the reception of holy Orders (1983 CIC 1042, 1°) and her from the obstacle that marriage is for entry into religious life (1983 CIC 643 § 1, 1°). Before these dispensations were granted, one can be sure, the couple demonstrated full awareness of the rights they were surrendering (such as that of conjugal living, per 1983 CIC 1135 and 1151). In any case, while such dispensations are not common, neither are they unheard of, even in modern times. See, e.g., CLSA, Roman Replies and Advisory Opinions (1984) 19-23.

Dr. Bernard Nathanson, simultaneously one of the most murderous men in American history and one of the greatest witnesses to the saving power of Jesus, died today at the age of 84. May he rest in peace. I had the pleasure of meeting him once, some 30 years ago, but had time enough only to thank him for writing Aborting America (1979). Hardly had I spoken, though, when I realized that it was a cross for him to accept compliments on a book that could only have been written by one who had been a monster. I’ve never forgotten it.

I’ve seen some ridiculous questions out there about what happens to Nathanson’s soul now. We don’t know, of course, but we do know this: Nathanson’s baptism at the hands of Cdl. John O’Connor in 1996 completely forgave him all his sins up to that point (all of his 75,000 supervised or directly-performed abortions, including one of his own children, his multiple divorces, and God knows what else) and totally paid all of the punishments due for such sins. CCC 1263. Everything, everything, Nathanson did up to the day of his baptism is buried forever in Christ.

When we pray for Dr. Nathanson’s soul, and we all should pray for him, it should be with attention to the life he lived after his baptism, not before. There’s nothing from “before” that day to pray for anymore.

Above post now in French at Americatho.

My email interview with Michael Chapman of Cybercast News (21 Feb 2011)regarding the canonical eligibility of New York’s Governor Andrew Cuomo to take holy Communion is now available. The interview accurately reflects my opinions.

For my other comments on Cuomo and holy Communion, see this blog post (4 Jan 2011). For my other comments on Bp. Hubbard (specifically, his approval of needle distribution to drug abusers), are here (2 Feb 2010) and here (10 Feb 2010).

Update, 22 Feb 2011. My interview with Cybercast News interview has been picked up in various places. In condensed form it is now part of a New York Times article by Thomas Kaplan. It’s a pretty good article overall, but I must differ with Kaplan’s reporting in this respect: he says I declined an interview request. That’s not accurate. At all.

The Times cold-called me today about 10 minutes before I was scheduled to teach for two hours and then go to dinner on campus. I estimated I’d be gone about three hours. I said if they would send me some written questions (like Cybercast did) I would reply within 24 hours. When the reporter said he might need my answers sooner, and I said, well, send what you have and I can look at it more promptly, as I would be around this evening. We signed off ambiguous as to whether there would be any follow-up. No big deal, I thought. They either will follow-up, or they won’t. In fact, I worked in my office till after 9:30 tonight, but there was no follow-up phone call or email questions. And yet I find myself characterized as having “declined” an interveiw request!

So now I must wonder, exactly what does the New York Times thinks constitutes “declining an interview”? Besides, I guess, not dropping everything and answering questions whenever it’s convenient for the Times to pose them?

Update 24 Feb 2011. A thoughtful post from “Emily” over at AmericanPapist prompts a thoughtful reply. Emily’s post is in italics, mine follows in regular print.

Well, What the reporter should have said was, “Mr. Peters was not available for an interview at the time.” He was wrong to say “Declined an interview.” But, in the reporter’s defense, on a story like this he was probably given a very short turn around time and waiting for email answers was not an option. Plus, email answers are rarely as good, conversational, or as easy to follow up on as an interview that takes place via conversation. It behooves Catholics to get comfortable with doing phone interviews, even if that means they run the risk of being misquoted, simply because the ones who give the good, quick, quotes via phone are going to be called by reporters more. And we need more good Catholics like your dad becoming the “go to” guys for reporters. But again, that means dealing with the media on their terms, not ours.

Thoughtful post, Emily. A few thoughts in return.

I have given dozens [correction: hundreds] of live-on-air and over-the-phone-for-print interviews in the course of 25 years. I know how to do them, and I tend to get asked back because I am pretty good at it. Short answers, clearly made points, and letting people take turns. Etc.

I am, BY FAR, most likely to be misquoted in a phone-for-print interview than I am anywhere else. I have almost completely ceased doing them as a result, except for a few trusted journalists. I handle very quickly, however, email questions, and it gives me a record of what I said. And they know I have a record of what I said. They don’t even have to type my answers! But apparently, even so much as trying to arrange for email questions from the New York Times made me the object of distortion. It’s just not worth my time.

We do not have to work with the MSM on their terms. Nor do they have to work on ours. If our goals can be mutually met, fine, but if not, they’ve got their multi-billion dollar communications corporations, and we’ve got something undreamed of when I was a kid: the Internet. Not too many years ago, no one would have known how the NYT treated an interviewee, because the NYT would never had admitted it, and the little interviewee could not have told his story to much more than the dinner table or water cooler. All that’s over now, as this very blog post shows. The MSM influences information flow, but they no longer control it. Deo gratias!

Bottom line, what and how I communicate is on my conscience, what and how they communicate is on theirs.

Some thoughts occasioned by Dcn. Ditewig’s latest post

Dcn. Bill Ditewig has some good ‘open questions’ on diaconal continence and celibacy over at his blog. He invited responses, which I posted over there, but they appeared in an odd order, and incompeltely, so I will post them here in due form. Do read Dcn. Ditewig’s short and clear post before reading my replies…

Hi Dcn. Ditewig. Good post, it occasions some replies.

Re your Point 1.

I list several Church historians/theologians (Heid, Stickler, Cochini, etc.) who have made the studies you seek, here: http://www.canonlaw.info/a_deacons.htm. I would start with Stickler, then do Cholij, then do either Heid or Cochini. They are well aware of schools of thought that differ with them (chiefly, what I call the “Funk line”) and they address those concerns, in my opinion, admirably, if not indeed decisively. They require time to read (well, Cdl. Stickler is quick), but they well reward the effort.

The phrasing of the question about sex being ‘unsuitable’ for ordained ministry is potentially misleading. First, it assumes that someone somewhere has found something wrong with sex and on THOSE grounds excluded it for the ordained. But notice, that’s an implied claim, and like any claim it requires proof. I think such proof would be hard to find.

The goodness (or badness if you want) of the sex act ALWAYS includes consideration of the context of the act. What is fornication for a given couple one day is conjugal love for the same couple the next, (if the context of the act is changed by a wedding), etc.

The question of clerical continence concerns the CONTEXT of the sex act, i.e., here, a context that the act is not simply being undertaken by married people, but by an ordained man and his wife. Major context change, that. But this was true even of Levitical continence in the O.T. no? Was Levitical continence an occasional accommodation to the Jews’ supposedly negative attitudes toward sex? Or was it a prototype of the single-minded and life-time focus that would be expected of the priests of the new High Priest Jesus?

Moreover, although to some degree celibacy might have been treated as “the fence around the law” of continence (and thus celibacy could be dispensed with in certain cases, provided no threat to the law of continence was implied), the value of celibacy itself has, by welcome developments, come to be more expressly articulated in law (c. 277.1), and those developments have nothing whatsoever to do with alleged denigrations of sex, but rather, with the positive values of Christ-like celibacy. Still, you’re asking the wrong man to expound on those points. I’ve read them and studied them and find them persuasive, but it’s not my field and I leave to finer minds (like the ones I cite above) the explanation of those values. I just warn folks against thinking that a poor explanation of a principle means the principle itself is wrong, or that a proffered explanation is the only explanation upon which the principle rests.

My task as a lawyer is narrower: to point out what the law says (and to point out that, virtually without exception, it has said what it still says for a millennium and a half) and to observe that the concomitant practice has, in almost no time (from a Church point of view), utterly disappeared. That’s a grave problem, either for law or for practice. The Church can decide which. If, however, she decides it is a problem for practice, I can and do say, “No need to run around thinking you have to change canon law to re-begin expecting continence. Your law already says exactly that. It’s just that no one has adverted to it for some decades.”

From a wider ecclesiological point of view, I think what might be happening in regard to the diaconate (and the clerical state in general) in this area is comparable to what has been going on with the liturgy for a decade or so, namely, a reform of the reform. See, e.g., http://canonlawblog.blogspot.com/2011/01/my-article-diaconal-categories-and.html

Re your point 2.

I don’t know why folks use ‘two-lung’ language here. I don’t think it’s relevant to start with, but, even it were, my whole point could be re-phrased as being that one of those two lungs, the Western, is no longer acting like itself and is now imitating the other (Eastern)! So Western lung, be yourself! Of course, we are not even imitating the East in regard to temporary continence; the West has simply abandoned completely ANY sort of clerical continence expectations for married clergy.

Anyway, as I say, I don’t see the relevance of Eastern law for how Western law is to be interpreted here. I grant, Eastern law can suggest how Western law COULD be changed (or vice versa, if it came to that), but if the Western Church decided to move in that direction, then my original point would still stand, i.e., that Western law would need to change, and not simply be ignored.

Let’s stay in touch on this. Best, edp.

Clerical continence and clerical celibacy are, as I have taken great pains to make clear, distinct issues, but they obviously overlap in certain respects; eventually, questions about one will occasion questions about the other.

Because my recent postings on diaconal (and a fortiori presbyteral) continence might lead to a more systematic examination of how the ordination of tens of thousands of married men to the diaconate (and of scores of married men to the priesthood) is impacting wider questions of clerical discipline in the West, I take this opportunity to post, with the kind permission of the editors at Chicago Studies, a searchable PDF of an article I recently published there on this question, “Diaconal Categories and Clerical Celibacy”.

In the Chicago Studies article I make four main points.

1. After establishing that the adjectives “permanent” and “transitional” are poor indicators of diaconal identity, I demonstrate that, when these two apparently contrasting terms are applied to the diaconate, they give the mistaken impression that there are many more differences between the ‘two kinds of diaconates’ than really exist.

2. I suggest that the ordination of tens of thousands of married men to the diaconate (and of scores of married men to the priesthood) has occasioned a “crisis” (in the Greek sense of the word, as in, ‘arriving at a time for important decisions’) regarding the future of clerical celibacy in the Roman Church.

3. Next, assuming that the West desires to preserve and promote the gift of clerical celibacy, I offer five concrete suggestions for the reform of the diaconate that will reflect the Second Vatican Council’s esteem for it as a “permanent rank of the hierarchy” while respecting the Council’s openness to calling some married men to diaconal orders.

4. Finally, for the benefit of those who have not read my Studia Canonica article on clerical continence, I suggest some consequences that a renewed recognition of the obligation of perfect and perpetual continence among Western clergy, even married ones, might have for wider questions of clerical celibacy.

Some have wondered whether anything in Anglicanorum coetibus, the document by which former Anglican faithful are coming into full communion with the Catholic Church, persuades me to retreat from or abandon my argument that Canon 277, etc., requires clerics in the West, even married ones, to observe perfect and perpetual continence. I think not.

Three documents inform one’s understanding here: the apostolic constitution Anglicanorum coetibus (4 Nov. 2009), the Complimentary Norms issued by Congregation for the Doctrine of the Faith the same day, and an “official commentary” on the constitution by the esteemed canonist Gianfranco Ghirlanda of the Gregorian University. Two points emerge from these sources.

First, none of these documents even mentions the clerical obligation of continence as set out in Canon 277, so any claim that they obrogate from the express language of Canon 277 can be offered only ex silentio. I believe, however, that the weaknesses of ex silentio arguments against clerical continence are apparent to anyone who reads my analysis of Canon 277; those observations apply here as well.

Second, and even more decisively, while an ‘apostolic constitution’ is the highest form of legislative document used by the Church (see Morrisey, Papal and Curial Pronouncements [1995] at 14-17) such a document must be interpreted in accord with the general principles of canon law (cc. 16-21) including: applying it to matters it intends to cover, and declining to apply it to matters it does not intend to cover. Anglicanorum and its Complementary Norms, by their repeated and express terms (passim), apply only to former adherents to the Anglican communion, and to no one else. Nothing in Ghirlanda’s commentary remotely suggests otherwise. Therefore, regardless of how Anglicanorum might (or might not) impact former Anglicans in this area, it cannot control arguments concerning the operation of Canon 277 for any other clerics in the Church.

I have some other comments on Anglicanorum, but these two suffice, I think, to address the question presented to me.

Update, 22/24 Jan 2011: I think most people are understandably going directly to the webpage wherein the Four Options are spelled out. I just added “Summary” sections to the four points for easier reading. Also, I have tweaked the post for consistency of expression, so, it is better just to consult the official page now. It wasn’t much longer than this first post, anyway!…

This post is a bit too long, I think, for normal blogging purposes, so I am offering here only excerpts from a longer discussion of these four options at my website, available here.

There are, I think, ultimately only four ways that the question of continence for married deacons and priests in the West can be settled….

Another observation from the fray.

Most of the (substantive) comments offered against my thesis concerning clerical continence focus on various aspects of Marriage. That’s understandable, in that we are talking, after all, about married deacons and priests. Now, after 25 years of marriage, and 10 years in tribunal work, and 10 more years of teaching and writing about, inter alia, Christian marriage and marriage canon law, I see how much more I still have to learn the Great Mystery that is Matrimony! I appreciate the kind efforts of some to make sure that I understand what marriage is all about.

But this exclusive discussion of marriage in regard to married deacons and priests misses the fact that we are, obviously, talking about married deacons and priests, in other words, that one must consider the doctrine, theology, and canon law of holy Orders in order to understand this issue, and not just continue to ruminate on Marriage. Virtually no one (besides me, and in places Dcn. Ditewig) seems to be talking at any length about the demands that holy Orders makes upon men (and, if they are married, upon their wives). But folks, I gotta say, that’s rather like trying to win the Tour de France on a unicycle. One might be moving, but one is not going to get very far.

Again I say, read the article. I discuss canonical issues related to holy Orders at length.

Debating complex points of law is hard enough; having to repudiate false quotations is too much

There are, I need hardly say, far too many responses to my article on clerical continence for me to respond to them all, or even to respond just to those deserving of some reply. John Martens, writing over at America, actually read my original article (which separates him from the vast majority of critics). But his treatment of this matter is wholly unbecoming of its importance, or of America magazine’s website.

Marten’s chief criticism of my work is that I did not write an article I never claimed to have written, namely, a Scriptural commentary on married life and conjugal relations. Says Martens: “There is no discussion anywhere in [Peters'] article on biblical teachings regarding sex and marriage. Although Jesus’ teachings on sex and marriage might be alluded to in this article, they are not cited once in the body of the paper or in the footnotes. I could not locate allusions to Paul’s writings at all in the body of the paper or in the footnotes. . .” Major flaws, per Martens.

If that is his criticism, though, surely I may reply that Martens did not write much of a canonical response to my canonical article. If Martens wants to argue that canon law is an insufficient rubric by which to assess Christian marriage, I might agree and engage the topic, but we all would recognize that we were then talking about what Martens wants to talk about, not about what I brought up for discussion.

I don’t consider myself a theologian, and I certainly don’t boast Scriptural credentials, but I am a pretty good canon lawyer, and the case I have made against the exercise of conjugal rights by clerics in the Western Church is plainly canonical. Naturally, I think the Code’s provisions in this area (chiefly in Canon 277) rest on solid theological foundations (foundations that invoke the theology of Orders as well as of Matrimony, which point Martens never seems to recognize; but he is in large company there); but I do not offer, or pretend to offer, a theological, let alone a Scriptural, case for clerical continence, I offer a canonical one. If my canonical arguments are flawed, by all means, show me how. But if Marten’s complaint is my lack of theological argumentation, then I can only invite him to consult Stickler, Chochini, Cholij, and so on. They can offer him fitter fare.

This general point aside, however, there are some serious, specific problems that need to be addressed. Let me start with the most grave.

1. Martens writes: “[T]he sort of continence one is called to is dependent upon whether one is married or not. Indeed, that is the case in the 1917 CIC Code, which Peters cites: ‘Continence is different from chastity; to be chaste is to forego sexual relations; to be continent is to have sexual relations in their properly ordered sphere of conduct’ (159). That strikes me as precisely what is taking place in the practice of the permanent diaconate, though in his first footnote Peters states that ‘throughout this article continence is understood in a canonical (as distinguished from a philosophical) sense to be the complete refraining from sexual intercourse’ (147). Yet ‘complete refraining from sexual intercourse’ is not the same as ‘to have sexual relations in their properly ordered sphere of conduct’ (159). Either Peters forgot what he wrote on page 159 or he chooses to ignore it.”

Martens’ assertion is a grave violation against academic honesty.

The quote that Martens attributes to me, “Indeed, that is the case in the 1917 CIC Code, which Peters cites: ‘Continence is different from chastity; to be chaste is to forego sexual relations; to be continent is to have sexual relations in their properly ordered sphere of conduct’ (159).’”, and which Martens later claims I conveniently forgot or chose to ignore, is a complete fabrication. I wrote no such thing, on page 159 or anywhere else. I think, moreover, that the ersatz quote is wrong in its substance, and I would never have written so sloppily on a central issue in my thesis. So, I did not forget or ignore what I allegedly wrote on page 159. I simply never wrote it, but thanks to Martens, I now have to spend my time disowning a goofy assertion that I never made. I do not hesitate to say that I am angry at this shabby stunt. And while I do not know Martens from Adam, I expect America magazine to take action in response to this kind of authorial misconduct.

2. I find Martens’ armchair attempts to psychoanalyze my motives in writing the study improper and ad hominem. Martens asks “What then bothers Ed Peters about the current practice of the married permanent diaconate in the Roman Catholic Church?” Later: “The overarching question for me, especially in light of the actual practice of the Church with respect to permanent deacons and the biblical teaching of Paul, is what is at stake in this argument for Ed Peters? What’s the point? What is so troubling about married permanent deacons having sexual relations with their wives? What Ed Peters argues conjures up the ghosts, past, present and future, of a Church that has trouble with sex, even in its properly ordered place.” And still later, “[I]t is not the Church that has a problem with married permanent deacons having sex with their wives, it is Ed Peters.”

Why does Martens assume that I must be bothered? Or that I am troubled? Or that I am bent on conjuring up ghosts? Who is Martens to say that I have a problem with this or that? Why can’t a canon lawyer, who finds what appears to be a major discrepancy between the text of the law and the practice of a large and important group of faithful on an important point, simply find that situation a worthy topic for his attention? Why must one’s scholarship be driven by the need to quell hidden neuroses? Let me say, mine isn’t. I don’t presume to speak for Martens.

3. Finally, after belittling my one attempt at a Biblical allusion (see why non-Scripture scholars are so afraid to use the Bible?), Martens states: “I believe that Ed Peters sees himself either as the High Priest Hilkiah who found the lost book of God’s law and delivered it to King Josiah or as King Josiah calling the people back to the Law, in which the King destroyed the idolatrous shrines, killed some of the pagan priests and returned the people back to the true law of God. Either way it indicates that he feels the Church has followed an idolatrous or pagan path in allowing married permanent deacons to have sex with their wives.”

To make such an accusation is, in fact, to accuse one of denying the indefectibility of the Church. I hold no such belief, and pray God I would never succumb to such. As for whom I see myself as, Martens’ impertinent speculation here shows how little he knows of me. I see myself as Ed Peters. But, if forced to see myself in the story, I suppose I would see myself as those lowly laborers whom I imagine finding the text of the law in the basment and who said to themselves, “Hey, this looks pretty important; we’d better pass it along to folks who know what they are doing.”

Which I have done.

I’m noticing a common, almost universal, line of argumentation against my thesis that even married clerics in the West are bound by perfect and perpetual continence (c. 277). I call it “consequence-driven analysis”. It runs like this.

If Peters’ interpretation is correct, there will have to be, sooner or later, major changes in the permanent diaconate and married priesthood. Therefore, he must be wrong. Alternatively, if Peters’ interpretation is wrong, the permanent diaconate and married priesthood can continue as they are. Therefore, he must be wrong.

Either way, I’m wrong, but not because the arguments that I have presented from law and tradition are flawed (and precious few critics seem even to have read them), but rather, because my arguments lead to consequences that some don’t like while precluding other consequences that they do like. Hmmm.*

To my way of thinking, the first question should be whether my interpretation (I say mine, but it is obviously shared by many scholars) is correct on the merits. If, and only if, it is correct, do we then proceed to pondering what should be done about it. But, that said, if it is correct, then, with the confidence that comes from knowing that Truth will set us free (John 8:32), we do need to consider the next step(s).

In short, first things first: is the assertion that ‘All clerics in the Western Church, including those married, are bound by perfect and perpetual continence’, correct?

I think it is. + + +

*A recent admonition by Pope Benedict to ecclesiastical leadership seems relevant for canonists as well: “I think that courage is one of the chief qualities that a bishop and a Curia head have to have nowadays. One aspect of this courage is the refusal to bow to the dictate of opinions but, rather, to act on the basis of what one inwardly knows is right, even when it causes annoyance.” Light of the World, at 85. And I well recall Cdl. Raymond Burke’s recent quip to a young man asking for advice as he prepared to enter canon law studies: “Well,” said the world’s finest canonist, “the first thing I would tell you is, Canon law is not for the faint of heart!”

A recent post over at Dcn. Kandra’s site lets me underscore what is, I think, an important point.

A reader tells Dcn. K that: “While I was studying for my Licentiate in Canon Law (JCL) at Catholic University in the late 80s, I brought up this very question, since I was already ordained as a Permanent Deacon. Rev. James Provost (RIP), a revered canonist, said that the change in status of the husband did not take away the ‘acquired right’ of the wife to conjugal relations within the marriage…(emphasis added).”

I agree completely.

That is exactly what I would have said to a married deacon who came up to me and presented this question. Indeed, that is exactly what I did say when I addressed Provost’s position in my Studia article, esp. at pp. 174-177. An acquired right cannot be surrendered without consent. But—and this is crucial!—the mere fact that many people were not informed about how the law reads does not mean that the law suddenly does not read the way it does.

Therefore I disagree with Provost when he went on to say “and thus canon 277, in essence, did not apply to married permanent deacons.” It most certainly does apply to permanent deacons, for several reasons I outlined in the article, as those who have read it know. Whatever we may say about the situation of married clergy who were ordained without adequate information concerning the requirement of continence, their innocent ignorance does not serve to change how the law actually reads; and it certainly does not change how it can be applied to those coming later.

Until we are clear on what the law says, it is rather pointless to argue about what the law means for (a) those ordained without adequate knowledge of it, and (b) those seeking ordination with adequate knowledge, both being groups deserving of our attention.

I must be jinxed. I’m no nubbie when it comes to the internet and blogging, but I am constantly stiffed when I try to post replies on other blogs using Google stuff. And I always try first to reply in the context in which folk’s remarks are made. Anyway, skunked again, this time, when trying to post some thoughts on Dcn. Bill Ditewig’s thoughtful reactions to the diaconal continence debate unfolding around us. So, in lieu of posting over at Ditewig’s Deacons Today, I’ll offer my comments here . . .

Hello Dcn. Ditewig. Thank you for a real attempt to think through these issues. There are some points that, although they are in my Studia article (and you might revisit it) could do with some underscoring here [on your website].

1. The obligation of continence is express in the law (c. 277), and the disappearance of the proposed exception for married deacons was not a typographical accident. At least 30 canons of the 1982 draft underwent significant textual amendment at the hands of JP2, and no one regards any of those changes as accidental. They were deliberately made by the pope. See the introduction to my Incrementa in Progressu (2005). Indeed, the deliberateness of the removal of the exemption for married deacons in c. 277 is recognized by EVERY canonist who has considered the issue (even those who disagree with my conclusions on other grounds). Thus the ‘silence’ you suggest regarding the proposed exemption for deacons speaks volumes.

2. Eastern law is not an issue here. I am talking about the law and tradition of the West. I don’t know why so many people assume that, where East and West disagree, the East must have it right (that is not your claim, I know); but it’s a debate I don’t enter, or need to enter. I am talking about Western canon law.

3. You have the priority of the related-but-distinct obligations of continence and celibacy reversed. Consider, all unmarried people are bound to continence, no? But most of them are not bound to celibacy, right? –See n. 4 below.– So the obligations are distinct. Mary and Joseph were not celibate, they were continent. Celibacy is, to be sure, the context in which most Western clerics will live out their holy continence, and it (celibacy) is recognized as “a special gift of God”, but even for those clerics who are not celibate, western canon law and tradition still expect of them continence. That is my claim, at least, based on the plain text of c. 277.

4. Small point: re yours that celibacy can be defined as “the state of being unmarried.” Hmmm. I would rather say, “the willed state of being unmarried”, to distinguish “celibates” from folks who just happen to be single.

5. Your definition of continence as “abstinence from sexual activity, either permanently (such as in the case of a professed religious who vows such continence) or temporarily”, is ok as far as it goes, but the West, unlike the East, has never used continence in any “temporary” manner when it comes to clerics. For the West, clerical continence is always regarded as absolute and life-long from the moment of ordination.

6. I addressed Fr. Provost’s canonical arguments expressly. Just so people know.

7. Re VC2’s ‘silence’ re continence, yours here is more of a theological, even a prudential, argument, and personally, I might agree that VC2 maybe could have said something. But, in default of their addressing the matter, the point falls to me, for the reasons I set out at length in the article, chiefly, that the prospect of non-continence among clerics was never even a thought in the Council Father’s heads, and no one felt constrained to restate the unbroken and unexceptioned assumptions of law and tradition. Even Paul VI, as you know from having read the article, adopted the then-current discipline for all clerics when he reorganized the diaconate, and that discipline was, absolutely beyond any question, one of absolute continence for all married men in holy orders.

Again, thank you for treating the arguments here [on your website] so respectfully. Once we get clear on what the laws says (and there are many who need convincing yet) we’ll be in a better position to reflect together on what the law should say, or on how to bring the married diaconate (and presbyterate) into full accord with the law, in a reasonable way.

Best, edp.

Canon 277 § 3 states: “The diocesan bishop is competent to establish more specific norms concerning this matter [i.e., the perfect and perpetual continence of clerics, per Canon 277 § 2]” and to pass judgment in particular cases concerning the observance of this obligation.”

In my Studia article, I twice (see pp. 151 and 168) mention Canon 277 § 3, but only to say that it is of minimal importance in determining whether an obligation of perfect and perpetual continence is imposed on clerics under canon law. The audience for whom I wrote the article would have regarded my observation on 277 § 3 as non-controversial and would have moved on to the next point.

A number of bloggers, however, seem to think that Canon 277 § 3 is very important to this question, and indeed, that it is the Achilles heel of my argument. It is neither. At the risk of running down a rabbit trail, I will point out just two of the reasons why Canon 277 § 3 does not avail those who argue that married clerics in the West are not obligated to continence.

1. Canon 277 § 3 authorizes bishops to make specific rules which, given local circumstances, would support clerics in living in continence. To argue that local legislation can exempt clerics from a universal requirement is to turn the whole idea of local adaption of rules on its head. This is clear, I suggest, not only from common sense, but from the acknowledged predecessor norm of Canon 277 § 3, namely 1917 CIC 133 § 3, which stated “The judgment about retaining or frequenting women, even those who commonly fall under no suspicion, in particular cases where scandal is possible or where there is given a danger of incontinence, belongs to the Ordinary of the place, who can prohibit clerics from retaining or frequenting [such women].” Nothing in this norm remotely suggested that bishops could exempt clerics from the obligations in regard to chastity. Instead it allowed bishops to specify certain conduct that, like a fence around the law, must be avoided lest the fundamental obligations be endangered.

Examples of such local legislation were common in pre-conciliar canonistics, e.g., diocesan laws prohibiting priests from giving rides in their cars to single women, or telling them to avoid nightclubs, and so on. Local legislation was intended to protect the basic obligations, not to relax them.

2. Those who argue that Canon 277 § 3 allows bishops to relax the obligation of continence should think about what they are implicitly acknowledging: namely, that, if some bishops can relax the obligation thereby, others can impose it. But that would result in disciplinary chaos, of course, if say, the Archdiocese of San Francisco imposed continence on married clerics while across the bay the Diocese of Oakland exempted them from it. What would happen then?

Canon 277 § 3 is, as I have said, irrelevant as to whether the obligation of perpetual continence applies to married clerics in the Western Church. And that is the question before us. + + +

Update, 17 Jan 2011: The implications (or non-implications, as the case may be) of the 1998 joint dicasterial instruction (that’s an important word here) on the diaconate, which document indeed contains the phrase “a certain continence” as an expectation for married deacons, is discussed in my Studia article at pp. 172-174…and now in more detail here.
 

My article “Canonical considerations on diaconal continence”, originally published in Studia Canonica 39 (2005) at 147-180, and some introductory observations, are now available on my website, here.

1983 CIC 277. § 1. Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy which is a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided heart and are able to dedicate themselves more freely to the service of God and humanity. § 2. Clerics are to behave with due prudence towards persons whose company can endanger their obligation to observe continence or give rise to scandal among the faithful. § 3. The diocesan bishop is competent to establish more specific norms concerning this matter and to pass judgment in particular cases concerning the observance of this obligation.

Update, 16 Jan 2011: I attempted to post the following comment over at Deacon’s Bench, but it was rejected as “spammy”. Oh well, here goes.

Dcn. Greg Kandra, webmaster of the respected “Deacon’s Bench” blog, asks: “Does anyone seriously think that tens of thousands of married deacons — not to mention the hundreds of married priests — are now suddenly going to commit to stop having sex? If that’s the case: gentlemen, ask your wives to add more saltpeter to your diet.”

I assume Dcn. K’s read my article, so he knows that “suddenly stop[ping] having sex” is not my suggestion to Western married clerics. His tendentious phrasing, therefore, can only be rhetorical, in which case, though, he is implying that I do, in fact, hold that married clerics must “suddenly stop having sex”. That’s disappointing, coming from one of obvious good sense on so many other topics; worse, it’s distracting from the real discussion that needs to take place.

Canon 277 (and the immemorial tradition behind it) either means what I say it means, or it doesn’t. My arguments are open to rebuttal, but I don’t think they should be subjected to ridicule. If a sexually active (married) diaconate, and a fortiori, a sexually active (married) priesthood is, in the end, a contradiction of canon law and Western tradition—and neither I nor Dcn. K get to decide that—then only two choices will ultimately be available: (a) change the law and abandon the tradition, or (b) accept the law and observe the tradition, in which case, obviously, reasonable accommodation must be made for the thousands of men who were ordained without being advised of the requirements of their state. Those are important questions, not trivial ones.

In short, I welcome informed discussion of my thesis and its implications, but I hope we won’t have to spend too much time telling people to ignore quips about “saltpeter” and such along the way.

Update, 16 January 2011: Dcn. Kandra has updated his post, here.

No, the pope didn’t “rail” against giving un-Christian names to babies, but he did point out, calmly and correctly, that names are important, and that the choice of a child’s name should not be left to whim or fancy. There is, though—as is so often the case with news stories about the Church—a canonical aspect to this issue.

Canon 855 of the 1983 Code states that “Parents, sponsors, and the pastor are to take care that a name foreign to Christian sensibility is not given.” The obligation here is “negative” in that there is a duty to avoid names antithetical to Christian values.

The 1917 Code, however, read differently. Canon 761 thereof stated that “Pastors should take care that a Christian name is given to those whom they baptize; but if they are not able to bring this about, they will add to the name given by the parents the name of some Saint and record both names in the book of baptisms.” The obligation there was “positive” in that a name consistent with Christian tradition needed to be sought.

The law was taken at face value. My mother, named Nancy, loved telling how for one day in her life she was called Mary in deference to the pastor who, baptizing her in 1923, insisted that “Nancy” was not a Christian name, but that Mary surely was. Interestingly, though called Nancy all her life, my mom’s devotion to Mary was a hallmark of her spiritual life. Hmmm.

Personally, I think that either formulation of the law provides sufficient guidance in the choice of names for Christians of good will, and that neither formulation is adequate to prevent parents from abusing their responsibilities in the naming of their children. But I will say this: more than once over the years, when people hear the names of our children (Thomas, Charles, Catherine, Robert, Margaret, and Theresa) they can’t help but to say, “Gee, what lovely Catholic names they have!”

And they do.

In their editorial announcing Sr. Carol Keehan as the National Catholic Reporter’s “Person of the Year”, the NCR editors make an astounding claim. It reads as follows (my emphasis):

“As NCR tried to report on St. Joseph’s losing its Catholic status, we sought comments from ecclesial authorities and canon lawyers. Despite copious commentary produced over several months from ethicists and moral theologians who reasoned the hospital had acted compassionately and morally, no one had much to say for the record on this latest development, beyond acknowledging Olmsted’s right to do what he thinks best in his own diocese. No one, that is, except the Catholic Health Association, led by Keehan, who supported the hospital.”

Oh really? No one among those “ecclesial authorities and canon lawyers” had much to say about this case? No one except CHA and Keehan?

Well, how about me? I had a lot to say about the Phoenix case, and said it for the record, including some of it at NCR’s request! Let’s back up:

On December 17 I was contacted by a writer* for NCR asking for my responses to some fair questions they had concerning a bishop’s authority over Catholic identity claims. On Dec 18, I promised to reply, and on Dec 21 (not bad, considering I was giving final exams that week) I sent NCR the following four “quotables” about episcopal authority:

hi [name of reporter]: this should get things started, if you need more, lemme know. best, edp.

We tend to think of bishops as the chief executive officers of large philanthropic corporations, and there is some truth to that perception of course. But in a much more basic sense, a bishop functions as a living principle of unity in faith and conduct. It is, first and foremost, for a bishop to decide what is consistent with the Faith, and what is at odds with it.

Bishops do not have a wide array of tools with which to defend or promoste [sic] the identity and mission of the Church in their territory, but one of the tools they do have is the power to declare what is Catholic and what is not. It is fundamental to the Church to be able to assert her own identity as she understands it, not simply as others would interpret it for her.

Of course bishops are bound to make these determinations in accord with sound teaching and established discipline, that is, the sort of constraints that rule out arbitrariness or personal pettiness. But such abuses aside, it’s up to the bishop to declare on the authenticity of the claims by individuals or groups to be Catholic.

If an individual or a group feels itself aggrieved by a bishop’s decision in their regard, canon law provides mechanisms by which the bishop’s determination can be reviewed by higher authority.

Now, those familiar with news reporting will recognize, I think, that the four “quotables” I sent to NCR are concisely and accurately formulated for journalistic purposes. My replies were timely, and I expressly offered (twice in fact) to follow-up in more detail if they wanted it. In addition, I had published two detailed blog commentaries on the Phoenix hospital case (17 Dec, 21 Dec), and had at least five more on Sr. Margaret McBride’s situation (21 May, 1 Jun, 19 Jun, 15 Jul, 23 Dec), all of which were for the record and available to NCR “as they tried to report” on the Phoenix abortion case.

And yet NCR’s editors claim that they “sought comments from ecclesial leaders and canon lawyers, [but] despite copious commentary … from ethicists and moral theologians … no one had much to say for the record.”

As I said, simply astounding. I might not be much, but I hope I’m at least a notch above “no one”.

Now, let me be clear about a few points.

1. If the editors at NCR want to give Sr. Carol Keehan their “Person of the Year” award, I wouldn’t have commented on it. Such a decision is their responsibility, not mine.

2. If NCR did not want to use my answers to their questions, that is their business, too. I have given dozens of interviews to print and broadcast media** and I understand that not every utterance from every interviewee can be used. I would not have commented had NCR simply ignored my private replies and public blogs—even if they ignored everything I had said on this case. Again, that’s their call, not mine.

3. But, for NCR to claim publicly that they contacted “ecclesial leaders and canon lawyers” about the Phoenix hospital case, but, in contrast to “ethicists and moral theologians”, none of the ecclesial leaders and canon lawyers had much to say about Olmsted’s authority, beyond a platitude or two, is simply false. That claim I contest.

I’m a canon lawyer who had plenty to say about the Phoenix case, some of what I had to say was offered exclusively to NCR, and I offered to say more to them if they wanted it.

It was NCR who didn’t want to hear it. + + +

* Not John Allen, fwiw.

** A sampling would include: The New York Times, The Los Angeles Times, The Associated Press, The Rocky Mountain News, St. Louis Post-Dispatch, Des Moines Register, Catholic World Report, Our Sunday Visitor, Catholic News Service, Catholic News Agency, National Catholic Register, Zenit, various Lawyers Weeklies, Slate Magazine, Crisis Magazine, Michigan Catholic, This Rock, Christifidelis, Catholic Faith & Family, Southern Cross, not counting numerous broadcast news programs and I don’t know how many blogs.

Andrew Cuomo, governor of New York, and Sandra Lee, a television celebrity, live in what is known technically as public concubinage. The fact that both Cuomo and Lee are divorced renders the concubinage adulterous on both sides as well.

Under Decretal law, concubinage among laity was a crime that, if not foresworn after three warnings, could result in the excommunication of the offender(s). Taunton, The Law of the Church (1906) at 226. Under Pio-Benedictine law, lay concubinage was a crime that, upon conviction, could result in “exclusion from ecclesiastical acts”, something less than interdict (itself one step shy of excommunication). 1917 CIC 2357 § 2. Finally, under the Johanno-Pauline Code, concubinage among lay persons is not criminalized, though it can have some effects under marriage law which are not relevant to this case. 1983 CIC 1093.

But, notwithstanding the steady canonical “decriminalization” of concubinage (basically for the same kinds of reasons that led to adultery being decriminalized in most states), the lifestyle adopted by Cuomo and Lee continues to have—or should have—serious consequences under Canon 915 for the reception of holy Communion.

Cuomo, on the grounds of his public concubinage alone (and setting aside complications arising from his strong support for legalized abortion, etc.), should not approach Communion per Canon 916; if he does approach, he should be refused the sacrament per Canon 915. Cuomo should still attend Mass, of course (c. 1247), and within one year of his last Confession he should duly receive that sacrament again (c. 989), but he should not be taking Communion while he lives in public concubinage. And if Lee is Catholic, the exact same analysis would apply to her.

It is Albany Bp. Howard Hubbard’s responsibility to see to it that the common discipline of the Church is promoted and that all ecclesiastical laws are observed, exercising particular vigilance against abuse of the sacraments and the worship of God. 1983 CIC 392. Unfortunately, Hubbard’s rah-rah inaugurational homily before Cuomo and Lee, in which, without admonition for their objectively and publicly sinful status, the prelate seemed to have anointed the pair as his kind of evangelizers in government, and his complicity in the administration of Communion to Cuomo, amounts, in my opinion, to another dereliction of pastoral duty. + + +

PS: re Catholic League President Bill Donohue’s (non-)comment that “We’re not one to pass judgment” on how people conduct their personal life “or how people celebrate their religion”, while I find the second remark odd, I don’t see anything wrong with his basic point. CL is not in the business of “passing judgment” on personal life (though, I might add, no responsible critic is in such a business, and neither is Canon 915). If, however, a reporter were to ask Donohue whether a Catholic bishop should should give Communion to a Catholic (politician or otherwise) who is ineligble to receive the sacrament, if only for the sake of political comity, I suspect Donohue would give a different answer.

PPS: I’ll be talking about this incident with Drew Mariani today at 5:45 pm Eastern. Join us at http://www.relevantradio.com/Page.aspx?pid=275.