Musings on the next Consistory

In the mood for some completely personal musings on an important topic that none of us have the slightest control over? Okay, how about papal elections? Rome basically shuts down in August, and here in the USA summer vacation is winding its way toward Labor Day. So it’s a great time to speculate on the next Consistory, rumored to be scheduled for as early as this Fall, but more likely in the Spring of 2011. Or, not. We'll see.

Setting aside a few variations in their modern structure, Consistories are chiefly important in that new cardinals are formally named thereat, and it's cardinals (under the age of 80) who elect popes. Since the time of Paul VI, the number of eligible electors in the College of Cardinals has been officially capped at 120 (pace John Paul II, who at one time had some 133 eligible electors on the list!). Benedict XVI is not likely to exceed the cap, nor will he, at age 83, lightly assume that he will have several more chances to shape the College over the years. So, if he wants to impact the direction of the College of Cardinals, my guess is, he will do so at his next opportunity.

If the Consistory were held today, Benedict could name 13 new cardinal electors; if he waits till the end of August he could name 14, and if he goes into October he could appoint 17, maybe 18. That would be a sizeable class, and some significant reshaping could be accomplished by naming so many new cardinals at one time.

Now, all credible observers agree that America will get at least two red hats, and most predict at least three. But I want to suggest that we could see at least four, and perhaps as many as five or six, Americans named to the College of Cardinals.

Consider: Most American cardinals (pace O’Malley and DiNardo) fall into two tight age groups: Keeler, Law, Egan, and Stafford turn 80 quite soon, between March 2011 and July 2012, and a second group, Rigali, Foley, Mahony, Levada, and George, turns 80 from April 2015 to January 2017. The first group is more significant from an appointment “timing” point of view.

Despite the close Catholic demographics that obtain between the US and Italy, there are currently 19 eligible Italian papal electors but only 11 Americans. One may therefore suggest that, either Italy is over-represented in the College of Cardinals or, at the least, the US is under-represented. Moreover, between now and July 2012 (when Stafford turns 80), the disproportion between the US and Italy will widen as each country loses four more electors.

Therefore, even assuming that no Italians are named next time around (unlikely, that), naming even three Americans at the next Consistory will not suffice even to maintain the current lopsided ratio. Only by naming four Americans does the pope prevent the discrepancy from widening, and only by naming five or even six Americans does he narrow the gap. Not eliminate it, obviously, but narrow it. And I think that could be a good thing.

A final thought: to date, Benedict has named six Italians to the College, but only four Americans. What that might mean...well, who knows?

PS: Yes indeed, I’ve got six good American suggestions, but—for the record—no one on the far side of the Atlantic has called. Or even left a message. :)

Canon law is not for the faint of heart

The Canon Law Conference for Canonists and Civil Attorneys, hosted by the Shrine of Our Lady Guadalupe in La Crosse, WI, is over, but the buzz from that meeting will remain in the air for some time. It was a terrific success and it needs to become, I think, an annual event at that beautiful locale during the first week of August.

The quote of the conference had to be Abp. Raymond Burke’s quip during the Monday evening dinner to a question about how canon lawyers should prepare to face the challenges of the future. “Well,” replied the world’s most influential canonist, “the first thing I would say is, canon law is not for the faint of heart!”

The honesty, clarity, and charity, of that remark, delivered with cheerful confidence in the Lord and His Church, sums up this terrific meeting.

It would have been, of course, nigh on impossible to find four better speakers for this inaugural conference: Abp. Raymond Burke, prefect of the Apostolic Signatura, Fr. James Conn, sj, editor of Periodica, Fr. John Couhglin, ofm, professor at Notre Dame Law, and Mr. Ben Nguyen, Chancellor of the Diocese of La Crosse. Each of their talks was engaging and thoughtful and deserves wide circulation.

But, if I may so, this impressive constellation of speakers was also such as to draw a dynamic audience of canonists, attorneys, pastors, religious, and numerous other interested (and interesting!) people, making the break times almost as productive as the formal sessions. I cannot begin to list all the folks at the meeting whom I’ve read for years, corresponded with, and/or generally followed in their service of the Church. It was edifying and exciting to be around them.

I look forward to the next conference just as soon as it can be arranged! + + +

Photo credit to Fr. Z. Thanks! See also WDTPRS (with more here) and Caritas in Veritate (with more CiV here and more here). This post now available in French at Americatho.

Fr. Doyle and the ecclesiology of despair

Fr. Thomas Doyle, op., has an essay in The Tablet (24 July 2010) wherein he comments, mostly negatively, on some canonical procedural norms recently revised and published by Rome. My concern here, though, is with what I will call an “ecclesiology of despair” to which I think Fr. Doyle’s essay gives voice.

Concluding his criticisms of the new norms, Fr. Doyle asserts that: “They are tragic evidence that the hierarchical governing body of the Church is no longer capable of leading the People of God.” Now, for Catholics called to maintain communion with the Church in all things (c. 209), such an assertion, no matter what context occasioned it, is disturbing.

The “hierarchical governing body of the Church” is the pope and bishops in union with him (cc. 331, 336), usually operating dispersed throughout the world (cc. 375, 381), sometimes operating in an ecumenical council (c. 337). But let's be clear: the “hierarchical governing body of the Church” is not the ecclesiastical equivalent of, say, the Democratic or Republican Party (groups that can and do lose their mandate to govern in any number of ways), nor is the Church's hierarchy even the equivalent of the federal-state governmental system we know in America (a structure that need not have been adopted and that many nations do not follow). Not at all.

Rather, the “hierarchical governing body of the Church” is the divinely-mandated governing structure that Christ left to his Church. See Lumen gentium 8, 18-29. It is the way that Christ wants his Church to shepherd the People of God. To assert, then, that “the hierarchical governing body of the Church is no longer capable of leading the People of God” is to assert that Christ’s plan and his promise of abiding protection were insufficient to preserve (not so much individuals from sin, for they still have free will, etc., but rather, to preserve) the Petrine-Apostolic foundations of his Church from eventual collapse and, at least from then on, to save her very reason for existence from radical frustration. In short, one sighs in despair, So much for Christ and his divine promises.

Of course Fr. Doyle, blessed with free will, can urge this viewpoint, and others are, I trust, free to contradict him. But we should make no mistake about what his assertion implies for ecclesiology: if the hierarchical governing body of the Church really is “no longer capable” of governing, then it cannot function, not even to reform itself. Nor would the faithful left drifting in the wake of this purported disintegration of the hierarchy get to, say, gather themselves into some sort of world-wide “constitutional convention” and re-found Christ’s Church on X, Y, or Z principles. No, for the Church as founded by Christ would have already ceased to be, and her erstwhile members would be left only to realize that she had disappeared.

Over the centuries, to be sure, many have reached essentially the same conclusion toward which Fr. Doyle's essay seems inclined. Some later repented of it while others went to their graves convinced of it. We cannot judge their consciences. But we can say that, among Catholics, including Catholics grieved by the clerical sexual abuse of children (which is to say, all Catholics), an ecclesiology of despair in divine promises has no place.

Contraception and Consummation

I don’t have time to comment on it now, but this important essay by Dr. Christian Brugger, arguing that contracepted sex does not suffice to consummate Christian marriage, deserves a wide and careful reading. I hope to offer some more thoughts on the matter later; for now, I just think that folks interested in current canonical issues should be aware of this developing theory.

Even canon law is dangerous in the hands of amateurs

The answer to a canonical question is seldom found in a single canon.

A simple observation, one would think, but it is routinely overlooked by canonical amateurs, often with inconsequential results of course, but sometimes with ludicrous ones. Take, for example, a recent post by one “skellmeyer” who, citing Canon 253, suggests that Dr. Janet Smith is unqualified to teach in a Catholic seminary!

Skellmeyer, apparently upset with Christopher West’s presentations of TOB, has attacked Smith, a prominent West defender, on the basis that, if she is unqualified to teach in a Catholic seminary, she's probably also unqualified to defend West. We’ll come back to what one’s teaching in a seminary doesn’t have to do with one’s defense of West/TOB below, but for now, let’s look at Skellmeyer’s questioning of Smith’s eligibility to teach in a seminary.

Canon 253 § 1, upon which Skellmeyer relies, states “The bishop or bishops [in charge of a seminary] are to appoint to the function of teacher in philosophical, theological, and juridic disciplines only those who are outstanding in virtue and have obtained a doctorate or licentiate from a university or faculty recognized by the Holy See.” Obviously this canon is relevant to assessing credentials for seminary appointments, although how exactly Skellmeyer concludes that Canon 253 is “among the most roundly ignored canons [sic] in canon law”, escapes me. I can think of several other candidates for that dubious distinction. But let that pass.

Skellmeyer then correctly lists Smith’s academic credentials: her Bachelor’s in Classics from Grinnell College; a Master’s in Classical Languages from the University of North Carolina; and a Ph.D. in Classical Languages from the University of Toronto, noting finally that Smith holds the Fr. Michael J. McGivney Chair in Life Ethics (at Sacred Heart Major Seminary in Detroit). Here’s where the trouble begins.

First, Skellmeyer rephrases the canon incorrectly ( “Wow. Can't teach in a seminary without a doctorate, eh?” ) but worse, mistakenly assuming that Canon 253 is the sole criterion by which seminary appointments are assessed, and amid sarcasm that has no place in the public discourse of Catholics, then launches an attack on Smith (and, while he’s at it, against the esteemed Ralph Martin and George Weigel as well!)

Says Skellmeyer: “No good Catholic would violate the sacred canons of the Church, would they? Would they? . . . Not only does Janet [sic] appear to be missing a Ph.D. or licentiate in from an ‘institution recognized by the Holy See’, none of her degrees appear to actually be in theology at all. Could someone tell me how one gets the Michael J. McGivney Chair in Life Ethics at Sacred Heart Major Seminary without having a degree in theology? It's certainly a poser.”

Well folks, it’s not a “poser”, not for anyone who knows canon law or Dr. Janet Smith.

Canonically, the credential requirement of Canon 253 is unquestionably among those many norms subject to dispensation in accord with Canons 10, 85-87, and 149 § 2. Cito, Exegetical Comm., II/1: 273. If, therefore, competent archdiocesan authorities concluded that Dr. Smith was qualified to teach in a seminary, they were fully authorized to appoint her.

Nor is this opinion conveniently offered just to aid my friend*: During the lengthy post-Conciliar canonical revision process, the requirement newly proposed for Canon 253, that seminary faculty have “pontifical degrees”, was criticized as being unnecessary in certain cases and unduly burdensome in many others. This criticism was effectively conceded and remedied when the pontifical Revision Commission expressly confirmed that the newly proposed credential requirement could be dispensed from by local authorities. Communicationes 14 (1982) 166. Smith’s seminary appointment therefore falls wholly within canon law and Skellmeyer is simply rash to assert that she "appears to be in violation of canon law."**

Notwithstanding the patent legality of Smith’s appointment, Skellmeyer could, I suppose, still complain about it to the Holy See. But in complaining to Rome—and here we come to our second point—Skellmeyer should keep in mind a few salient points about Smith.

Janet Smith: (1) was appointed in the mid 1990s by Congregation for the Doctrine of Faith to a three-person team charged with investigating the highly controversial Grammick–Nugent materials on Church teaching regarding homosexuality; (2) was appointed in 2005 by the Congregation for Catholic Education to serve as a US seminary visitor; and (3) was reappointed in 2009 to her third five-year term as a consultant to the Pontifical Council on the Family. I am, frankly, hard-pressed to think of an American lay woman who has been called upon to serve more Roman dicasteries than has Janet Smith!

Yet Skellmeyer, having looked up a canon, questions her qualifications to teach in a seminary. See what I mean by "ludicrous"?

A last thought: by personally attacking Janet Smith, Skellmeyer has done a disservice not only to Smith, obviously, but also to the other critics of Christopher West. At a minimum, I seriously doubt that any of the West/TOB critics I’ve read so far would want to join Skellmeyer in questioning the suitability of Smith’s seminary appointment or in twisting her academic credentials into a basis to ignore her arguments on West/TOB. Put another way, I won't assume that West’s other critics are as hapless as “skellmeyer”, and I will suggest that arguments for West/TOB offered by scholars as distinguished as Janet Smith cannot be so cavalierly brushed aside. + + +

* In the interest of full disclosure: I carpool with Smith about once a week and if, per absurdum, she lost her teaching position at SHMS, I would have to arrange for alternative transportation on Wednesdays. Which I’d really prefer not to have to do. ;)

** Moreover, as should be obvious to anyone who reads the plain text of Canon 253, if Skellmeyer doesn’t like Smith teaching in a seminary, his beef is not with Smith, but rather, with the present archbishop of Detroit (who, btw, as Rector of SHMS, hired Smith in 2001!)

Replies to Ron Modras' six questions on excommunication

No single individual, indeed, no medium-sized office of people, would suffice to provide adequate replies to the mostly-junk theology routinely put out by the National Catholic Reporter. But rather than curse the darkness, I light here a candle against a single paragraph of Ronald Modras, “Does excommunication do any good?”, NCRep on-line 12 July 2010.

Modras asks: “If a girl becomes the victim of a date rape and takes the morning-after pill, is she excommunicated? And if so, why is she excommunicated and not the rapist? Or is she excommunicated? Is Zapp now excommunicated for leaving the church as an institution but not as a community of faith? Does opting out of paying his church taxes endanger his immortal soul? Was McBride excommunicated, if she made her difficult gut-wrenching decision with prayer and a good conscience?”

I will reply to each of Modras' questions below, but first, I must remind readers that “excommunication” is a penalty, while “latae sententiae” is a procedure. As soon as one says, then, “excommunication latae sententiae” one is mixing penal issues with procedural ones, and sorting out the consequent substantive and adjectival legal questions is no easy matter. I have long held that “automatic sanctions” inevitably confuse discussions of ecclesiastical discipline and, for this and other reasons, I hold that canonical penalties should no longer be incurred latae sententiae. But that is not my decision to make.

Below, I will answer the harder question posed (wittingly or otherwise) by Modras, that is, not whether such-and-such action results in automatic excommunication (against which consequence more defenses could be raised), but instead, whether such action could result in ferendae sententiae (formal) excommunication.

1. If a girl becomes the victim of a date rape and takes the morning-after pill, is she excommunicated?

No, but not because very early abortion is not the taking of a human life and therefore an excommunicable offense (because it certainly is), but because of insurmountable forensic doubts about whether an abortion took place on these facts and, even if one did, whether it was the result of the woman’s actions. (As it happens, I am addressing this topic as part of a formal advisory opinion to be submitted for peer-review later this year. Watch for it down the road.)

2. And if so, why is she excommunicated and not the rapist?

Rapists are not excommunicated for the same reason that arsonists, embezzlers, rioters, bank robbers, drunk drivers, counterfeiters, polluters, traitors—the list could go on—are not excommunicated: because states adequately punish these crimes. In contrast, abortion has always been difficult for civil authorities to detect and prosecute, and today, most modern nations have simply abandoned preborn babies to abortionists’ fury. The Church steps in to defend as best she can those most vulnerable to being killed.

3. Or is she excommunicated?

How many times does Modras get to restate the same rhetorical question?

4. Is Zapp now excommunicated for leaving the church as an institution but not as a community of faith?

I have not followed the Hartmut Zapp case closely and I know little of the German civil law involved here, but I can say that anyone attempting to drive a wedge between the concept of the Church as an “institution” and the Church as a “community of believers” does so with ecclesiological peril. History is rife with examples of schismatics who left the corrupt and flawed "visible Church” for the pure and pristine "invisible Body of Christ”. It’s still a schismatic action making one liable to ecclesiastical sanction.

5. Does opting out of paying his church taxes endanger his immortal soul?

I thought we were talking about the ecclesiastical punishment known as excommunication, not the eschatological consequences of what might be unrepented mortal sin. Oh well, since Modras brought it up, any action, if undertaken with evil motives, can be rendered evil. What Zapp’s intentions were here, I have no idea. But, again since Modras brought it up, I must caution that even a seemingly small act undertaken for, say, one’s financial or social benefit (e.g., tossing just a little incense on the idol’s fire) could amount to an objectively grave sin against the faith.

6. Was McBride excommunicated, if she made her difficult gut-wrenching decision with prayer and a good conscience?

“Prayer and good conscience”—assuming such factors can even be weighed in law—do not excuse intrinsically evil acts such as deliberate abortion. This is rudimentary moral theology, and it is certainly good law. I am sure Modras would shudder at real examples of heinous acts performed "in good conscience". We need not belabor the point.

In conclusion, Modras asks whether excommunication does any good. It’s a fair question, though hardly one original with him. The Church has asked herself that question since the Lord walked among us (Matthew 18), and she will continue to ask it until He comes again. She is certainly open to advice on the matter. But those offering her advice should first demonstrate an adequate understanding of the issues, no?

Friends don’t let friends publish inaccurate headlines

Archbishop Robert Carlson (St. Louis) recently published a good article on the Fifth Commandment wherein he addressed, among other things, the incapability of support for abortion and Catholic identity. My concern is not with the article, but rather, with how LifeSiteNews characterized the article.

LifeSiteNews headlined its report “Archbishop Carlson: Abortion Supporters are Excommunicated, Should not Receive Communion”. The first half of that headline puts obviously controversial words in Abp. Carlson’s mouth, but they are words he never said.

“Abortion supporters” describes a very large group of people. The phrase includes abortionists, of course, and others working in the abortion business, but it also includes judges, legislators, lobbyists, most media personnel, many health care administrators, and even ordinary citizens. Now, there are Catholics who argue sincerely (but in my view quite wrongly) that such “abortion supporters”, especially legislators, are excommunicated for their abortion support, and, naturally, they would like nothing more than to be able to point to a prominent bishop who agrees with their reading of canon law. LifeSiteNews’ headline implies that they have found a champion in Abp. Carlson.

Problem is, Abp. Carlson, a canonist, never said “abortion supporters are excommunicated”.

What he said was “The Church attaches the canonical penalty of excommunication to this crime [procurement of abortion] against human life (see canons 1398,1314, and 1323-1324).” That statement is perfectly accurate, folks, but it covers a much, much narrower group of people than does the phrase “abortion supporters”. Even if one were to include the archbishop's sentence before, namely, “That's why formal cooperation in an abortion constitutes a grave offense”, the prelate’s words, precisely chosen, cannot be read so as to embrace all “abortion supporters”. Indeed, Canon 1329 (on formal accomplices in crime) cannot be interpreted even to include pro-abortion Catholic legislators. So, whence comes the claim that Abp. Carlson considers "abortion supporters" excommunicated? Nowhere I can see.

My point boils down to: In matters of controversy, inaccurate re-presentation of others' positions, even by allies, only hinders the wider discussion. When a man bothers to write out what he means, I think we should read, and report on, what he actually wrote, instead of on what we think he meant.

Two quick points: (1) Abp. Carlson took, in his article, no position on Canon 915 (withholding of holy Communion), instead, he reiterated what Canon 916 states, namely, that those in grave sin should not approach the sacrament; and (2) Abp. Carlson did not say that pro-abortion Catholics are not Catholic, he said they are not Catholics in good standing.

Update, 14 July 2010: A much improved headline now graces the original article.

RIP Nancy Peters (1923-2010)

In your charity, kindly remember the soul of my mother, Nancy Peters, who died this morning in St. Louis after a long illness. Fortified by the sacraments of the Church, mom died in the presence of my dad, her husband of 54 years, Nade, and my two sisters, Linda and Sue.

Mom belonged to the Greatest Generation of Americans, for whom the Great Depression, World War II and Korea (and even Vietnam), the enervating threat of nuclear annihilation, the ecclesiastical turmoil after Vatican II, and the steady erosion of Western values was one long and confusing cross. Only those who experienced it can really understand it, I am sure.

Mom took especial pride in the fact that, as the only one among her siblings even to enter university (lack of funds later sent her home), she saw all five of her kids graduate from college. In this, she led by example as well as by word, taking courses in computer sciences at community college until well into her 70s. Hard to argue with that kind of commitment, and little surprise that now her grandkids are following suit.

Requiescat in pace.

Pelosi, Canon 915, and excommunication

A couple of important figures in the Catholic blogosphere (Brad Miner and my son Thomas) have called for the excommunication of Nancy Pelosi, a position they are certainly allowed to adopt and discuss per Canon 212. Their case for excommunication stands or falls on the arguments they adduce for it. Both have apparently invoked me, however, as a supporter of Pelosi’s excommunication, citing my blog post of March 25th.

Actually, I have not called for Pelosi to be excommunicated (c. 1331) but rather, for her to be denied holy Communion (c. 915). It’s a significantly different option, notwithstanding some overlap in externals. Personally, I think the case for invoking Canon 915 against Pelosi is airtight, while an excommunication case against her is, well, not airtight. Not yet, anyway. Bottom line, my position is: one step at a time.

Normally, I let misunderstandings of my positions go uncorrected (for lack of time, if nothing else), but both of these men are clearly striving ad bonum Ecclesiae, and both would, I think, rather see things done right than simply done their way.

Bp. Velasio de Paolis and the Legion

I've had little to say about the Legion of Christ disaster over the last year or so, and my opinions (published mostly throughout 2009) about what to do with what's left there are essentially unchanged. But I read today about the probable appointment of Bp. Velasio de Paolis as the papal delegate for the Legion. It's an inspired choice, folks, and deserves our prayerful support.

Now, let's hope the Spanish and English vice-delegates are as well chosen. + + +

PS: Happy Feast of Sts. Thomas More and John Fisher!

Some reactions to Fr. Orsy's comments on the Phoenix abortion case

Fr. Ladislas Örsy, sj, one of the most respected -- I would even say revered -- figures in canon law today, has published a letter in The Tablet containing his informal reactions to the Phoenix abortion case. I offer a few reactions of my own to Örsy's comments in italics, in service, I hope, to advancing this important discussion.

The articles . . . convey the complexity of the case of Sr. Margaret Mary McBride whom the Bishop of Phoenix, Arizona, declared automatically, latae sententiae, excommunicated for allegedly cooperating in a crime of abortion.

EP: I am still not sure that is how Bp. Olmsted intended his statements to be taken but, absent a direct clarification of the point, I must say, once again, that this sort of inevitable and distracting confusion is one more reason why latae sententiae penalties must be eliminated from modern canon law. In any case, I have already questioned whether the public statements of Bp. Olmsted would satisfy the requirements for formal declaration of a latae sententiae penalty. But then, perhaps, they were never intended to do so.

1. The Code of Canon Law, following centuries of tradition, draws a sharp distinction between an act that is morally wrong, and a legal penalty that may, or may not be, attached to it. Thus, the correctness of the penalty must be judged by its own laws found in the Code.

EP: Quite true, and a good point to recall: It is possible for one to be morally guilty of a sin, and not be canonically guilty of the identical crime.

2. The term "excommunication" can be misleading. Briefly, in modern canon law it means that a person is prohibited from receiving the sacraments and from holding an office in the church (cf. canon 1331). In no way does such a penalty "excommunicate the person from the Catholic church".

EP: Again, true, certainly to the extent that modern excommunication does not expel one from the Church.

3. According to canon 1321.1 "No one is punished unless the external violation of a law or precept committed by the person is gravely imputable by reason of malice or [grave] fault, ex dolo vel ex culpa. Excommunication is an extreme penalty; it condemns a member of the community to spiritual starvation. The church, therefore, does not want to inflict it unless there is a deliberate act of defiance. Nothing that we know about the attitude of Sr. Margaret speaks of defiance.

EP: The word "defiance" is not canonically defined, so it is difficult to know exactly what is meant in this context, but we should be careful lest an equivocal word like "defiance" come to imply that one cannot be guilty of grave sins or liable for grave crimes provided they are commited not out of "defiance", but instead, out of, say, some misconceived compassion. Abortion and euthanasia are two common examples of grave offenses that are often performed out of compassion. But, offenses they still remain, and consequences they still provoke.

4. Canon 1398 states: "A person who procures an abortion that becomes effective, effectu secuto, incurs automatic, latae sententiae, excommunication." The key word is "procures," procurat. Common sense (or any dictionary) tells us that to give an opinion is not the same as to procure.

EP: To the degree this criticism applies to statements made about certain third parties to this abortion (statements that seem not to have been made by Bp. Olmsted), then it is surely correct. But as I understand it, Sr. M's role was not simply one of expressing an opinion, but rather, of granting necessary consent. That is a different matter.

However, there is more to it. Ecclesiastical criminal laws are of "strict interpretation": their meaning is found in their true but narrowest sense. Now, the narrowest sense of "procuring" does not include "giving an opinion," certainly not when an answer must be given under pressure and the question makes even the experts tremble. Moreover, "to procure" means to do something actively in order to bring about the intended effect. Not a shred of evidence has ever been made public that would prove (or even hint) that Sr. Margaret "procured" an abortion. From what we know, her entire life was dedicated to the saving and mending of human lives. A good competent judge would take such lifelong attitude into account.

EP: I don't know of any informed commentator who is accusing Sr. M of having "procured" (as canonists use the term) an abortion. Clearly, she would be innocent of that charge. But the question remains as to whether her role was one of necessary cooperator in an abortion per c. 1329 § 2. If she were a necessary cooperator to abortion she would be liable to sanction. Finally, a lifelong attitude of good is no guarantee against committing a grave evil, though hopefully, it would facilitate one's repentance. (Note that c. 1344, n. 3 does not work to mitigate censures.)

5. The Code of Canon Law contains nothing specifically and precisely (a "must" in criminal matters) about an automatic excommunication inflicted on "cooperators" in abortion (which does not exclude that their act could have been wrong and that they may suffer other punishment).

EP: Well, but Canon 1329 § 2 is expressly designed to reach "accomplices who are not named in a law", so I am not understanding Örsy's point here. Either Sr. M deliberately lent essential assistance to those committing an abortion, or she didn't.

It follows that no cooperator is automatically excommunicated unless the cooperation itself amounts to procuring the abortion.

EP: This, I suggest, is a misreading of the law. Canon 1329 § 2 does not require for liability that one's cooperation amount to co-delinquent behavior, but rather, that one's intentional cooperation make possible the commission of an offense by another.

6. The church's criminal law is based on an ancient and inviolable rule: whenever objective doubt exists, however small, as to whether or not a person has incurred an automatic excommunication, the person must not be held excommunicated. The rule is not canonical hair splitting; it is for the defense of the accused. This rule binds every bishop and each of his flock.

EP: Notwithstanding my regret at the presence of latae sententiae penalties, I do not agree that all "objective doubt, however small" must be eliminated for liability to attach, else, such sanctions would be impossible. The law only requires "moral certitude", not absolute certitude, in reaching most conclusions (see, e.g., Canon 1608).

7. The conclusion is compelling: to say the least, it is highly doubtful that Sr. Margaret acted out of malice aforethought, or that she actively procured an abortion. Hence, she could not have been--and she was not--automatically excommunicated. The declaration of the excommunication by the local bishop, therefore, is null and void. In her case, canon 1324.3 is applicable, "the accused is not bound by the automatic, latae sententiae, penalty" and, of course, no one is bound to respect it.

EP: Having challenged several of these premises, I am not persuaded by the conclusion as asserted. But I do agree that Canon 1324 § 3 effectively vacates most latae sententiae penalties, though, only insofar as they are automatic: one might still fall under a ferendae sententiae declaration of an automatic penalty. Moreover, I again call attention to Canon 1326 § 1, n. 2 by which Sr. M's liability for her deed might be increased in virtue of her office. Finally, as noted at the outset of this discussion, Sr. M's moral culpability for her role in the direct killing might apply even if she avoids canonical liability for her actions.

8. At this time no information is available whether or not the case is on appeal. Be that as it may, we may throw more light on the situation by recalling what a competent appeal judge should inquire about. He should ask whether or not the bishop fulfilled his duty detailed in canon 1341: "The Ordinary is to start a judicial or administrative process to impose and declare penalties only after he has ascertained that neither fraternal correction, nor reproof, nor other means of pastoral solicitude [are effective in the situation]".

EP: True -- assuming the bishop launched any penal process at all, which is not clear to me.

Also, the judge should ask whether or not the Ordinary observed canon 1342.1 mandating that a judicial process--never to be omitted without a just cause--had been completed before any formal declaration. The bypassing of such injunctions by the Ordinary may not invalidate the declaration, but it would alert a conscientious judge to scrutinize the whole process for more substantial violations of justice. (At the present we do not know how the Bishop of Phoenix handled such obligations.)

EP: This seems sound to me. I and many others have long supported judicial penal processes over administrative wherever possible (c. 1314).

Final words: Our canonical procedures may have deficiencies (they do) but there are times, when properly applied, they reveal the humanity of the church and church's intent to protect the innocent.

EP: Again, sound, though one might question the prominent use of the word "innocent" in regard to Sr. M given the admissions she apparently has made. Diminished liability (which I think Sr. M could plead), whether moral or canonical, is not tantamount to "innocence". In any case, I agree that some church laws, like c. 1398 against abortion, are especially designed to protect the innocent. Sadly, the disregard of that canon in this case cost an innocent baby his or her life.

That "Catolicas por el Derecho a Decidir" knows little about canon law seems no bar to their misusing the Code

I see little point in reacting to Catolicas por el Derecho a Decidir, the latest group to emerge in opposition to Church teaching on abortion. Groups that simply recycle a long list of long-refuted pro-abortion arguments are not, I suggest, really interested in debates, but in agitation. So, like, whatever.

But, I can offer a few words on CDD's reported use of canon law.

Per the article: "The Catholic Church is influencing legislation to punish abortion, without taking into account the exceptions to the punishment of excommunication that Canon 1323 of the Canon Law dictates," Maria de la Luz Estrada, a member of Catholics for the Right to Decide, said at a press conference to launch the campaign Monday.

Are there some exemptions from the canonical punishments attached to abortion? Sure, no secret that. But let's read on.

According to Canon 1323, women who have an abortion will not be excommunicated if they are aged under 16, or if they 'acted due to physical force,' 'for necessity,' or 'due moderation against an unjust aggressor for the sake of legitimate self defense.' Neither will they be excommunicated if they were 'coerced by grave fear' or if they 'lack the use of reason.'

This jumble of canonical claims requires some sorting out.

1. Yes, Canon 1323, n. 1 exempts from punishment a woman who, on or before her 16th birthday, has an abortion. The canon does not speak to her possible moral culpability for having procured an abortion (nor does it protect abortionists), but it would exempt a young mother from canonical liability for her act. (But, what is CDD's point? Is the Church pushing for civil legislation to the contrary?)

2. No, Canon 1323, n. 3 does not exempt from penalties a woman who, in procuring an abortion, "acted due to physical force". This claim is just bizarre, but rather than my taking time, beyond denying it, to prove a negative, let's wait to see if CDD ever offers some arguments as to why a "physical force" argument should protect mothers who abort their babies.

3-4. No, Canon 1323, n. 4, does not exempt from penalties a woman who procured an abortion on the grounds of "necessity" or while "coerced by grave fear" because, as is obvious to anyone who reads the whole norm, necessity and grave fear do not exempt when the offense "is intrinsically evil." I know that CDD does not recognize the intrinsic evil of deliberate abortion, but, what can I say, CDD doesn't get to define moral theological categories.

5. No, Canon 1323, n. 5, does not exempt from penalties a woman who procured an abortion on the basis of "self-defense" because self-defense (assuming it can even be argued, which in almost all abortion cases it cannot) does not exempt from punishment when the self-defense is achieved by intrinsically evil means like direct abortion, et ut supra.

6. Yes, Canon 1332, n. 6, would protect from penalties a woman who aborted her child if, at the time of her deed, she "lacked the use reason." Short story here: "lack of reason" is a high standard to satisfy, but, yes, it could be argued and, if proven, accepted. (Again, is the Church pushing for civil legislation to hold such women civilly liable?)

Now, who (besides maybe CDD) thinks that getting only two out of six canonical claims correct is a sign of competence?

The wording [of the canons] is open to many interpretations. . .

No, they are not open to many interpretations, at least, not to many correct interpretations. One could, I suppose, multiply incorrect interpretations of canon law ad infinitum, but what's the point of that? Besides obfuscation.

Angeles Gonzalez of the Jalisco Feminist Agenda, an associated member of Catholics for the Right to Decide, believes the Church is contradicting its own laws.

Okay, well, could I suggest seeking opinions about the Church from someone other than a member of a group that just botched four of its six claims about Church law?

"Necessity" does not canonically excuse intrinsically evils acts like abortion

The following is a response to two aspects of Fr. Thomas Doyle's recent analysis of the Phoenix abortion case. I think several of his comments deserve replies but I must plead, for now, lack of time.

1. Doyle observes that canon law recognizes the "doctrine of necessity", a jurisprudence whereby some actions (or omissions) that, under most circumstances, would be illegal and punishable, may be performed (or omitted) with impunity. Doyle correctly cites 1983 CIC 1323-1324, their predecessor-in-part 1917 CIC 2205, and two classic canonical commentaries (Michiels and Wernz-Vidal) to show that canon law recognizes the "doctrine of necessity".

That's all fine, though no one I know disputes that canon law (like every other legal system worthy of the name) has a "doctrine of necessity". The question is rather when and how "necessity" can be plead. Now, to get right to my point, "necessity" cannot be plead as exculpatory* of an intrinsically evil action like abortion. In demonstration whereof, I can cite the same authorities invoked by Doyle, Michiels and Wernz-Vidal.

Michiels (five pages past the passage quoted by Doyle) writes: "necessity [under Canon 2205] is never said to excuse from intrinsically evil acts prohibited by the natural law itself," and, just a couple pages later, Michiels explicitly lists abortion as an act whose intrinsically evil character prevents "necessity" from being urged as an excuse. Wernz-Vidal (two pages past the passage quoted by Doyle), agree: "nor does this principle [of necessity under Canon 2205] apply to things illicit in natural law, things which cannot be rendered licit by any necessity." It would be easy to cite to numerous other canonists and moral theologians who reject, without exception, the intentional performance of an evil action to achieve any good, but Doyle's own sources, when read more completely, make the argument sufficiently.

Evidently, "necessity" defenses are not to be lightly invoked in penal canon law.

2. I am sure that Doyle does not want to challenge Church teaching that deliberate abortion committed against a human being is an intrinsic evil (CCC 2271 etc.), so I would assume that his moral advice to the faithful contemplating such a horrific idea would be to never cooperate with or consent to it, regardless of the appealing rationales offered for the deed or the ambiguities lurking in imperfectly phrased laws.

But Doyle goes too far canonically, I think (if I read him correctly) when he asserts that the mitigational language of Canon 1324 protects Sr. Margaret from excommunication: first, as Doyle notes, Canon 1324.3 protects one from latae sententiae penalties, but, I would add, only from latae sententiae penalties; it does not necessarily protect one from later suffering ferendae sententiae penalties for a crime. If, then, as Doyle asserts, Bp. Olmsted's statement was a ferendae sententiae declaration of a penalty (I'm not sure it was, but Doyle thinks so) an excommunication ferendae sententiae could have been declared thereby; second, even if Sr. Margaret could argue "necessity" for a mitigation of the basic abortion penalty of excommunication (down to, say, interdict), Canon 1326.1.2 could have allowed an augmentation of the penalty back up to excommunication against Sr. Margaret because she (unlike, say, the mother in this case) "had abused a position of authority or office in order to commit the delict". + + +

*Scholion on 1983 CIC 1324.1.5. What does one make of language in the 1983 Code that suggests "necessity" as some of level of defense even to intrinsically evil acts? Some thoughts: (1) unbroken moral tradition against doing any evil to achieve good trumps the phraseology of a canon that, in a number of respects, seems poorly worded; (2) this anomalous "necessity" language does not appear in Eastern canon law; (3) 1983 CIC 1324 and 1917 CIC 2205 permit "necessity" to be plead only in mitigation of liability for intrinsically evils acts, but never in exculpation; and (4) the facts giving rise to a "necessity" plea in the first place would likely diminish culpability on other grounds (e.g., force and fear, or the relative inferiority of the violated law) and so are probably better invoked under those headings. In short, while I would clarify Canon 1325 in regard to necessity, I would not, in the meantime, advise clients that, absent such clarification in the law, they may commit canonical crimes that are intrinsically evil provided that the good they hope to achieve thereby is, by some characterization of necessity, sufficiently impressive.

See also my May 21, 2010 post, "The Phoenix abortion case"

The Maltese bishops on reception of holy Communion

It's been chuckle time, again, reading some secular press characterizations of the Maltese bishops' recent statement against reception of holy Communion by cohabiting couples. One would think, to judge from various secular headlines, that the bishops of Malta and Gozo had hurled some kind of anathema at quivering couples whose only sin was to love too much. Balderdash.

The bishops' statement is, instead, a model of pastoral solicitude and firm but gentle recollection of the saving truths taught by Christ and his Church. Still, it needs no canonist come from America to tell us that. T'is plain from the statement itself.

Instead, I pause to say that, any implications that the Maltese bishops are announcing some new Communion policy are simply wrong: Specifically, no directives to ministers about withholding Communion were given in the statement. Instead, cohabiting couples themselves were urged to refrain from reception unless and until their external conduct is brought in line with Church teaching on sex and marriage. Even at that, no canons were cited, although Canon 916 (distinguished from Canon 915) would be an obvious and correct choice.

Time will tell whether the Maltese bishops are setting stage for a more direct intervention in defense of the Eucharist against objectively sacrilegious reception. But for now, it seems, the bishops are asking offending couples themselves to amend their conduct, both for their own good and for the good of the wider Church.

Which is exactly how good pastors go about caring for their flocks.

Signaturae Apostolicae Referendarius

This morning it was announced that His Holiness Benedict XVI has appointed me a Referendarius (Referendary) of the Apostolic Signatura. As one of some dozen international consultants to the Church's highest administrative tribunal, it will be my privilege and responsibility to advise*, on an as-needed basis, the officials of that dicastery regarding matters impacting the administration of law and justice within the Church.

A number of persons have graciously conveyed their congratulations to me on this honor, and I am truly grateful for their kind words. But I want to underscore that I see this appointment not so much as an honor, but rather, as an invitation to serve more effectively the mission of the Church as the Speculum Iustitiae.

Even as I prepare, however, to place my training in canon and common law more readily at the service of the Church, I recall what Canon 1752 stresses, namely, that "the salvation of souls [is] the supreme law in the Church." Salvation is not, in the end, a work of law, but one of love. As such, it is a work toward which we all can, and must, contribute.

Ergo, oremus pro invicem! + + +

* It bears mentioning perhaps that (1) in canon law consultors express opinions only and do not enjoy decision-making authority over the matters presented to them, and (2) my opinions as a canonist carry only the weight of the arguments I adduce for them, or in other words, that in all matters, I speak only for myself and not on behalf of the Church.

Today's original announcement: "Il Santo Padre ha annoverato tra i Referendari del Supremo Tribunale della Segnatura Apostolica i Reverendi Sacerdoti Eduardo Baura de la Pena, Docente presso la Facolta di Diritto Canonico della Pontificia Universita della Santa Croce, e Paolo Giuseppe Bianchi, Vicario Giudiziale del Tribunale Ecclesiastico Regionale Lombardo; i Reverendi Padri Bruno Esposito, O.P., Docente presso la Facolta di Diritto Canonico della Pontificia Universita S. Tommaso d'Aquino, e Luigi Sabbarese, C.S., Decano della Facolta di Diritto Canonico della Pontificia Universita Urbaniana; l'Ill.mo Sig. Edward N. Peters, Docente di Diritto Canonico presso il "Sacred Heart Major Seminary" dell'arcidiocesi di Detroit."

The Apostolic Signatura is basically described in Canon 1445.

The general authority of the Apostolic Signatura is set out in John Paul II, ap. con. Pastor bonus (28 June 1988), AAS 80 (1988) 841-930, Artt. 121-125.

The current proper law of the Apostolic Signatura is found in Benedict XVI, m.p. Antiqua ordinatione (21 June 2008), AAS 100 (2008) 513-538. Referendarii are mentioned in Artt. 3, 4, 9, 10, and 22.

The Phoenix abortion case

The irony (no, make that, the hubris and hypocrisy) of "Catholics for Free Choice", a group notoriously dedicated to disregarding the right to life of pre-born babies, criticizing a Catholic bishop for allegedly disregarding a hospital administrator's right to a good reputation after she admitted her cooperation in the killing of an innocent baby, is, well, beyond comment. So let's just move on.

To follow the discussion below, one needs to know that, in late 2009, a Sr. Margaret McBride, an administrator at St. Joseph's Hospital in Phoenix, apparently formally cooperated in the direct abortion of a baby in the hospital. Because of medical record privacy laws, however, and against the backdrop of the chronic unreliability of secular reporting when it comes to Catholic issues, exactly who said what after that is a matter of some confusion. But, we do have a recent Diocese of Phoenix Communications Office "Q-A" on the case, CFFC President Jon O'Brien's critiques of the Phoenix Q-A, and some statements about the case by Phoenix Bishop Thomas Olmsted (who is a canonist). Read these carefully before proceeding.

My observations:

1. The Phoenix Q-A has only the authority of the Office of Communications to support it. If there are errors or ambiguous statements in the Q-A, they would be attributable only as far as the signed author of the document (a Rob DeFrancesco who, I doubt, is a canon lawyer).

2. No one can challenge, or is challenging, the idea that most of the assertions in the Q-A are plainly correct. CFFC might not like what the Church says about the absolute inviolability of innocent human life, and it might resent the fact that the Church takes violations of such rights so seriously, especially when such crimes are committed under the auspices of prominent Catholics, but CFFC cannot dispute that the Church teaches what she teaches on abortion.

3. Canon 1398 establishes a latae sententiae excommunication against any Catholic who "procures" an abortion. Because it is canonically possible for persons other than the mother and the abortionist to "procure" an abortion and come under the penalty, the Phoenix Q-A is right to make this legal point. But, where the Q-A seems to overstate its case is when it uses language implying that anyone who might fall within the terms of Canon 1398 necessarily does so. Canonists (like Olmsted) know what non-canonists (like DeFrancesco) might overlook, namely, that every canon in the Code must be read in light of every other canon in the Code and that sometimes other canons (not to mention the specific facts of a concrete case) might impact the application of a given canon in a given case. If this is O'Brien's point, he is correct in making it.

4. Further, canon law, like every legal system, recognizes that some crimes are committed with the cooperation of several people and that such cooperation can come in different forms and degrees, warranting different levels of punishment. The Phoenix Q-A is right to alert readers to the possibility that others could share not only in the moral guilt of cooperating in the killing of an innocent baby, but also in the canonical liability attached to cooperation. But what the Q-A cannot do, and what it should not have come across as trying to do, was to apply that complex area of law to the facts of a specific case. Again, if this is O'Brien's complaint, he has some basis for raising it.

5. There is disagreement among canonists as to how far one's facilitation of a specific abortion can be removed from the act and yet still fall within the canonical definition of an accomplice (esp. per 1983 CIC 1329). Good arguments against holding medical administrators liable for abortions have been made (see, e.g., James Coriden in CLSA Advisory Opinions 1986, beginning at p. 141), but, canonical counter-arguments aside, such opinions depend heavily on the facts of specific cases. Here I think O'Brien skirts a crucial point.

In the Phoenix case, it appears that the abortion in question could not have occurred without the specific and express consent of hospital authorities, and that Sr. Margaret either voted for the request in the hospital ethics committee or independently supplied the necessary authorization for the abortion to proceed. Either way, a compelling case that Sr. Margaret was a necessary, formal cooperator in the killing of an innocent baby is present. That's what I think her own admission concedes, and neither Bp. Olmsted nor the Phoenix Q-A seems to be saying anything contrary.

6. As to whether Bp. Olmsted, as a well qualified canonist, simply confirmed that the objective elements of a crime (especially those elements revolving around "cooperation in crime") seem to him to have been met in this case, or whether he intended his statement to be a formal declaration of the incurrence of a latae sententiae excommunication for purposes of Canon 1331.2, is not clear to me (and certain phrases in the Q-A suggest that he has not made such a formal decision), but neither is it crucial for appreciating what is happening in this case. And I say that even though I have long held that latae sententiae penalties are unsustainable in a modern legal system, that their use inevitably distracts attention from the underlying offense and redirects it toward the complexities of the canonical legal system (which most folks are not prepared to assess), and that the 150 year trend toward reducing automatic penalties in the Church is good and should be maintained. Still other issues, such as authority to remit sins and sanctions, are unnecessary complicated by automatic sanctions as well.

But Bp. Olmsted's reported approach in this case (occasionally to be distinguished from how the Phoenix Q-A explains things) moots these issues and puts the focus where it needs to be: on the inviolability of innocent human life, on the Church's duty to reprove offenders, and on her desire to win back sinners even from something as terrible as abortion. Bp. Olmsted's actions are, to put it simply, three-for-three here.

Sr. Margaret's frank admission of complicity seems a welcome first step toward her reconciliation, and the last thing she or Bp. Olmsted needs now is for Catholics for Free Choice to stir up a “let’s you and him fight” scenario. Not when real babies' lives are at issue.

One last thought: I would encourage Mr. O'Brien to keep reading canon law. Maybe starting with Canon 1369. + + +

See also my June 01, 2010 response to Fr. Thomas Doyle on this case.

Diaconal categories and clerical celibacy

My article on "Diaconal categories and clerical celibacy", has just appeared in Chicago Studies 49 (2010) 110-116. In it I question the rationale and ultimate sustainability of treating the diaconate as, in effect, two distinct categories (so-called "transitional" and "permanent"), the implications of this recent bifurcation for Western clerical celibacy (1983 CIC 277), and conclude with some suggestions for recovering our appreciation of the essential unity of the diaconate.

Here's hoping folks find it useful.

Any confessor can absolve penitents of abortion

Cool. Some folks have sent in a couple of very good follow-up questions to my original post, which, I see, I really should address as part of this package. I'll do that, and re-post the whole. Best, edp.

Update, 10 May. I see that I need to set this in a wider context, and that a blog page might not be right for that. Let me give it some more thought, around some other topics, and see what might work best. Kind regards, all. edp.

Routine "general absolution" for minors?

Marjorie Campbell recently posted an interesting essay at InsideCatholic wherein she describes being asked by a priest in confession, many decades ago, about a girlish romp she and a sister had after bath time one evening. When the priest began asking questions about the escapade and her sister's role in it, Campbell clammed up (rightfully, I think, on these facts) but was eventually absolved of whatever 'sin' her play time could have possibly amounted to. Even today, though, Campbell says she feels pangs of guilt for discussing what the priest asked her in confession, and blames the secrecy of the confessional for the discomfort she felt at his improper questions. Campbell's is, as I said, an interesting essay, but the solution she proposes for the problem is not good.

Campbell recommends that "individual, integral confession" (c. 960) not be celebrated by children until they reach age 18. Instead, Campbell recommends that general absolution be routinely offered to Catholics under 18, whereupon, one surmises, they will be able to defend themselves from improper questioning in confession and so may begin taking the sacrament in the usual way.

This proposal, however, has a number of problems, including (1) avoiding dealing with the real problem Campbell apparently experienced, (namely, improper questioning by a confessor), and (2) punishing the innocent (by depriving children of the benefits of personal confession). Let's see how.

First, I have within arm's reach here at home a half-dozen books by experts in moral theology and canon law who expressly declaim against confessors questioning penitents about the identity or activities of third parties, and that's without even going into my office. (Granted, I probably have more books on moral theology and canon law on my home book shelves than do most Catholics, but my point stands: some of the confessor's inquiries here were undoubtedly wrongly placed.) But Campbell's solution simply avoids the need to address the primary problem of bad sacramental practice.

Second, general absolution cannot offer the benefits to be gained by one's engaging in a careful and balanced act of moral self-assessment, so Campbell's solution essentially deprives young people, for many crucial years, of the experience of growing in self-knowledge and of developing a lively awareness of the mercy of God. Moreover, as Campbell notes, Canon 962 requires later individual confession by those receiving general absolution (precisely to avoid one's conscience growing up untamed from the chronic lack of self-accusation), but Campbell thinks that later time should be upon turning 18 (at which point, what happens? a general confession of everything assumed in by general absolutions since age 7?) At a minimum, lest we countenance a massive disregard for the plain meaning of a canon, Campbell's proposal would require Rome's amending Canon 962 to apply only to adults, this, despite centuries of experience showing that regular confession works in real life for people of every age. Obviously, such a drastic amendment is not going to happen. And it shouldn't.

If the faithful need renewed catechesis that the seal of confession binds only the priest, not the penitent, provide it. If priests need a refresher course on the parameters of sacramental practice, give it to them. If parents need to underscore with their children their freedom to talk about anything, anytime with them, underscore it. But don't react to bad practice by clergy in confession by discouraging young Catholics from approaching a sacrament provided by Christ and his Church and vital to our growth as responsible sons and daughters of God. +++

PS: In the comboxes following Campbell's essay, some folks float the idea of having parents sit in on the confession of their children, or of having "interpreters" in the confessional when children appear. Both of these ideas are terrible. The first proposal would have an obvious chilling effect the freedom of children in confession (see also CDF's 2007 rejection of so-called "couples confession"), and the second idea would turn interpreters (persons with specific canonical duties) into quasi-chaperons (a role they would not be suited for). And both options would present insoluble conflicts with regard to the seal of and confidentiality attached to confession.

Consultations and Advocacy in Canon Law

Over the years I have received many, many requests for canonical information or assistance. These requests run a wide gamut from the quick question that can be answered with a short note (although too many people assume that their question is a simple one, when in fact it is not!) to proposals for my involvement in quite complex matters. I try to consider every request presented to me, but I cannot respond affirmatively to them all.

In any case, for the benefit of those who might wish to approach me for professional assistance with a matter related to canon law, I have recently developed a webpage with basic information regarding my Independent Consultations & Advocacy in Canon and Common Law. I have also included therein suggestions about other sources for canonical referrals.

I hope readers find it useful.

A primer on ordination blessings and indulgences

A few questions related to ordinations always seem to surface about this time of year. Below are four (well, actually, five) points that might be useful to recall.

1. The practice of receiving a priest's "first blessing" after his ordination Mass is a praiseworthy custom, but there is no specific indulgence attached to receiving such a blessing or, for that matter, to attending a cleric's ordination Mass.

2. There is a specific plenary indulgence attached to attending a priest's first "scheduled" or "public" Mass (regardless of whether it is designated a "Mass of Thanksgiving", although it likely will be so designated), and to the first such Mass only. Enchiridion 1999, conc. 27. The celebration indulgenced here is not the same as the ordination Mass.

3. Deacons are authorized to give any blessings so listed in the Book of Blessings and several such blessings could be appropriately given by a deacon immediately after his ordination. See 1983 CIC 1169.3, and, e.g., Shorter Book of Blessings, passim, but especially the Appendix "Solemn Blessing and Prayers over the People".

4. Diocesan bishops may prohibit certain blessings from being offered (1983 CIC 1169.2 and CLSA Comm at 1403). Clergy should comply with such prohibitions, of course, but are free to discuss the policy with the proper authorities. Arguments against such prohibitions (say, those discouraging deacons from offerings blessings) are certainly at hand.

5. It would be within the authority of the arch/diocesan bishop to enrich a cleric's "first blessings" with a partial indulgence, per Enchiridion 1999, norm 7.1, although the requirement for prior Roman review of such grants, per norm 12, probably makes such an idea impractical for this year.

Read more about indulgences: Edward Peters, A Modern Guide to Indulgences (Liturgy Training Publications, 2008) 115 pages.

Canon Law Blog operational again

Nearly a month's worth of serious technical problems have apparently been solved, allowing my canon law blog finally to reappear. 

Due to changes in the technology hosted by Google's Blogspot software, In The Light of the Law can now be found at http://canonlawblog.blogspot.com/ (If you use a RSS reader to find out about new blog posts, please change your link to http://canonlawblog.blogspot.com/atom.xml).

Also, now blog posts are fed automatically to Twitter: http://twitter.com/canonlaw.

Whew. Thanks ever, folks. edp.

Roman Catholic Arch / Bishops of the USA

Besides regularly updating my Roman Catholic Arch / Bishops of the USA page, I have recently been improving the layout of and links offered on the page. Now, for example, USA auxiliary bishops are found on the main bishop's page (instead of being posted separately), and a graphics summary of US vacant sees and overdue retirements is provided at the bottom. I hope folks find it useful.

By the way, the total number of US vacant sees and overdue episcopal retirements, both absolutely and in terms of cumulative months, are at decade lows. The serious backlog in necessary appointments that had accumulated during the last ten years or so of John Paul II's papacy has been dramatically reduced under Benedict XVI.

Blessed Triduum, all.

One canon 915 case at a time: Nancy Pelosi

Some who believe that Canon 915 is meant to be enforced might yet harbor reservations about actually barring from Communion this pro-abortion Catholic politician or that one, for fear of igniting endless debates about why one does not also bar that pro-abortion Catholic politician or this one. The prospect of being criticized for "imperfectly" applying the law might cause some prelates otherwise inclined to invoke the law to hesitate doing so.

I understand their concern, and have argued elsewhere that enforcement of Canon 915 is not as simple as some seem to believe. But, lest the perfect become the enemy of the good, I am convinced that one has to start what one might call the 'national application'* of Canon 915 somewhere, and that the best case to start with is that of Speaker of the House Nancy Pelosi.

Before proceeding, let's be very clear about something: verification of the conditions described in Canon 915 does not merely authorize ministers to withhold holy Communion from those 'obstinately persevering in manifest grave sin'; it requires ministers to withhold holy Communion in such cases, this, upon pain of dereliction of their sacred office (1983 CIC 128, 1389).

Now, I suggest that there is no US Catholic politician whose conduct at the national level is more stridently and widely pro-abortion (to name just one area in which Pelosi's machinations are gravely objectionable) and whose scandalous rhetoric is more overtly Catholic (many of her bizarre assertions the bishops have had to stop and refute) than is Nancy Pelosi's. If her prolonged public conduct does not qualify as obstinate perseverance in manifest grave sin, then, in all sincerity, I must admit to not knowing what would constitute obstinate perseverance in manifest grave sin.

But, if I am right about the objectively evil quality of Pelosi's public conduct, then hers should be the first case in which Canon 915 is applied, even if no one else follows suit (although frankly, I think others would follow suit, ad bonum Ecclesiae et salutem animarum, which cases should be dealt with on their own merits). One is not required to commit to doing every conceivable good before one is required to do the good right in front of one's nose. One acts on what life presents, and life has presented us with Pelosi. She is our responsibility, not our parents', not our children's.

Of course, the bishops with immediate authority to act in regard to Pelosi are the Archbishop of San Francisco CA, George Niederauer, followed by the Archbishop of Washington DC, Donald Wuerl. The decision to apply Canon 915 to Pelosi is, and must be, theirs (and recall that Abp. Wuerl, joined by Bp. Loverde of Arlington VA, has already signalled his willingness to honor the banns imposed by "home" bishops on politicians when they are in DC, though I think Wuerl's authority is more extensive than that).** Pretty clearly, some people are already thinking this one through, and I am sure other prudent and qualified persons are available to assist if needed.

My main point is this: if anyone is hesitating to apply Canon 915 to an obvious case because he thinks he would be quickly forced to apply it to several others only nearly as obvious, such hesitation is ungrounded. + + +

* My supposition is not that Canon 915 can only be effective at the "national level", but rather that, the most prominent Canon 915 cases are invariably going to be those with national repercussions, and that those factors might as well be anticpated from the outset. Obviously, a few Canon 915 cases have already arisen at regional levels, and some seem quite instructive.

** Conceivably other prelates with sufficient notice of Pelosi's intent to take Communion in their territory (say, during a visit there) could act to prevent such scandal, but that is, I think, to place them in a difficult position administratively, if nothing else.

Update, 26 March: This post now presented in French at Americatho.org.

Update, 23 June: I think Brad Miner and my son Thomas have misunderstood my post above, at least to the extent that they seem to think it supports Pelosi's excommunication, now, which it doesn't.

If it deserves Abp. Naumann's attention, it certainly deserves ours

Archbishop Joseph Naumann of Kansas City KS (no stranger to doing the right thing under difficult circumstances) has called out Sister Carol Keehan, Chief Executive of the "Catholic Health Association" for providing "cover for any member of the House who chooses to buckle under the pressure of the President and the Democratic leadership to accept government funding of abortion". Keehan's arguments, says Naumann, are "either incredibly naive or disingenuous". He concludes "I encourage you to contact Sister Carol Keehan and the Catholic Health Association expressing to them your disappointment in their willingness to accept government funded abortion as part of health care reform." Abp. Naumann is backed up by Bp. Robert Finn (KC, MO), and Abp. Charles Chaput of Denver CO.

"Disappointment" is putting it mildly. This move by CHA leadership (one wonders whether Sr. Carol sought support from her board before declaring for Obamacare) is taken in obvious opposition to the USCCB, not to mention that it contradicts the studied conclusions of numerous pro-life groups with long track-records of knowing what they are talking about and who don't tend to make gi-normous amounts of money for their "philanthropy".

So, yes, do contact Sr. Carol.

But I raise a further point: To whom exactly is the "Catholic Health Association" accountable in the first place? It appears that they answer only to their own board.* But, if they aren't accountable to a given bishop, or to the USSCB, or to Rome (1983 CIC 216, 300, and 312), then how does the CHA justify, say, using the word "Catholic" in their title? They apparently claim Catholic identity (and tax-exempt status) in virtue of their inclusion in the Kennedy Directory (see Archdiocese of Saint Louis), but do they deserve such accommodations from the hierarchy?

Groups that want the perks that come from being called "Catholic" need to conduct themselves in accord with the obligations of being Catholic, no? It's time, I think, to take a closer look at the Catholic Health Association. + + +

* The CHA Board lists one bishop as a member (out of 23 slots), Robert Lynch of St. Petersburg FL--sharply criticized for his stance on the Terri Schiavo travesty--and an "episcopal liason", Kevin Vann of Ft. Worth TX, who probably has no vote on CHA policies.

Important background reading: Anne Hendershott, "Mixed Signals: the strategy of powerful Catholic health care advocates in the debate over reform has left many confused", Special to Catholic World Report.

No dispensation for this Friday (St. Joseph) is needed

That the general law of abstinence from meat on Fridays (c. 1251) does not bind on "solemnities" (like the Solemnity of St. Joseph, per c. 1246.1 and the Gen. Norms for the Lit. Year and Calendar) is so obvious that few commentaries bother to say "If the Solemnity of St. Joseph falls on a Friday, even in Lent, one need not abstain from meat." Nevertheless, the exemption from abstinence on solemnities is patent, and one need not bother pastors or bishops for a dispensation before enjoying a pepperoni pizza this Friday. Nuf said.

Now, for my fellow canon law geeks, let me add something really cool. The revised law is not only clear in itself, but reflects two significant changes from the discipline of the 1917 Code.

First, whereas the 1917 Code exempted Lenten Fridays from the exemption associated with certain holy days (1917 CIC 1252.4), this "exemption-from-the-exemption" does not appear in the revised law, meaning that solemnities trump even Lenten Fridays (pace Good Friday, of course).

Second, whereas the 1917 Code spoke in terms of "feasts of precept" as generally exempting one from the law of abstinence, the 1983 Code speaks in terms of "solemnities", thus obviating thorny questions about what to do if a given "solemnity" were not observed as a "day of precept" here or there. Today, the designation of a liturgical day as a "solemnity" suffices to occasion the exemption from abstinence, regardless of whether the solemnity is treated as a holy day of obligation. By the way, this explains why dispensations are sometimes sought to celebrate St. Patrick's Day when it falls on a Friday in Lent, for St. Paddy's t'aint'a solemnity, don'tchaknow.

So, this Friday, feel free to enjoy spaghetti and meat balls, and remember to seek the indulgences attached to invoking the powerful intercession of St. Joseph. (See Preces in honorem S. Joseph. Enchiridion 1999, conc. 19; Enchiridion 1986, conc. 6. Circumstances might suggest using the "Blessing of St. Joseph's Table" contained in the BOOK OF BLESSINGS, Chap. 53; SHORTER BOOK OF BLESSINGS, Chap. 33.)

Resources on Canon 915

Serious discussion of Canon 915 requires access to key documents on the law and awareness of the positions taken thereon by qualified commentators. I have developed a webpage for those who wish to understand, and perhaps contribute to, the discussions on the application of Canon 915 in the life of the Church.

Materials include: Part One: Relevant Canons; Part Two: Official Statements on the Law; Part Three: Applications of the Law; Part Four: Scholarly Commentaries on the Law; Part Five: Dr. Peters' Blog Discussions of Canon 915; and Part Six: Other Matters. I will try to update the page as feasible.

See my Resources for Understanding and Applying Canon 915.

Abps. Dolan and Listecki on holy Communion for pro-aborts

Archbishops Dolan of New York and Listecki of Milwaukee recently came under fire for comments they made seeming to express reluctance to withhold holy Communion from Catholic politicians under various conditions. Particularly in open-forum comment boxes (always to be taken with shovel-fulls of salt, those!), there's a lot of sky-is-falling carping against the prelates for shirking their duties, abandoning babies, betraying Pope Benedict, and so on. Hogwash.

Neither prelate -- whose commitments to and sacrifices for Church teaching dwarf the puny gestures of most of us -- has announced a Communion policy at all. Instead, both made informal remarks to reporters in the midst of addressing other topics. Listecki's comments, for that matter, expressly refrain from making a decision in concrete cases, and Dolan's make the totally-correct points that withholding Communion should not be a pastor's first response and that he intends to follow the lead of prior popes in this area. Now, if that "lead" is, among other things, Ratzinger/Benedict's 2004 directions that Communion can be withheld under certain circumstances, who can complain? In any case, time will tell.

Words are important, to be sure, and in the modern world major prelates need to be constantly vigilant about their words; but actions speak louder than words, and, in the end, what bishops do in regard to the Eucharist and manifest public sinners is more important than what they might or might not have said about the Eucharist and manifest public sinners.

Punish married couples for the sins of the DC council?

Outsiders -- like me -- should be very cautious in commenting on the recent move by Abp. Donald Wuerl to eliminate spousal benefits to future employees (lest, by providing such benefits in accord with DC's recent legalization of "same-sex marriage", the Archdiocese of Washington come across as endorsing such unions). Wuerl is a careful thinker (I say this notwithstanding my disagreements with some of his statements on Canon 915); he is right to say that nothing in Church social teaching specifically demands spousal benefits as part of a "family wage"; and his critics (a la Tim Sawina) have twisted Church social teaching into a stick to beat the DC prelate while he is trying to deal with an obviously hostile city council.

That said, I think the archbishop's decision to deny spousal benefits to certain persons married in the eyes of the Church is a mistake, both as a principled matter and as a practical one.

First, the archbishop's fears about his coming across as legitimizing "same-sex marriage" unless he cuts off spousal benefits seem misplaced: no action performed under compulsion can be construed as necessarily signaling approval or agreement with such action. This is basic moral reasoning, and without it, consciences are subject to infinite scruples and society quickly ceases to function.

Second -- and even though, like most good lawyers, I don't go around looking for battles nor do I lightly recommend them to others -- what appears to be a very promising case to fight this intrusive legislation is being squandered by the archdiocese's capitulation to the policy. The archdiocese seems to have very good facts on its side and is blessed with real resources to fight this civil imposition on its governance. It could doubtless attract significant support from others if it turns and fights. If it folds, however, not only is its own position lost, but many other smaller operations, less able to resist, will doubtless come under added pressure to conform.

Third, as it stands, the archdiocese's decision does not deny a single gay-couple coverage, but it does deprive people who are trying to live in accord with Church teaching on marriage and the family the dignity of having their vocation recognized in something besides papal encyclicals and catechisms. The pressures bearing down on married couples, especially those raising children, are burgeoning, while the concrete gestures of support toward them are becoming ever fewer and further apart. One of these days . . .

There are, I think, other problems with Abp. Wuerl's decision to eliminate certain spousal benefits rather than to risk paying them to same-sex couples, but the foregoing should be enough to suggest that the current approach has serious deficiencies.

Answering Msgr. Pope's good question

The always-thoughtful Msgr. Charles Pope asks whether we need a new word for "marriage". He deftly outlines how the word "marriage" has been gutted over the last generation or two, and proposes that we (presumably, Catholics) start pushing the phrase "holy matrimony" instead.

It's an attractive idea, at first glance, but it stumbles pretty quickly, I fear.

First, it's not Catholics who need to find a new word for "marriage", rather, it's social engineers who need to find a new word for whatever exactly it is that they think 'same-sex marriage' is meant to be; in any case, they should stop co-opting our perfectly fine term.

Second, it falls to the Church to protect true marriage not just for Catholics but for all human beings; the plain fact is, however, the great majority of true marriages in the world are not sacraments (because the parties thereto are not baptized), hence, most truly married couples are not in what may be called "holy matrimony." It wouldn't do to protect "holy matrimony" while abandonning true marriage to the machinations of secularists.

So, okay, maybe this particular solution to the crisis in marriage won't get us very far; but that doesn't mean that the sort of radical steps that monsignor has in mind aren't needed. It just means that he needs to keep on helping us find and refine those solutions.