Christ among the Doctors of the Law



Friday, February 25, 2011

Michael Sean Winters' column “Peters v. Cuomo”: a reply

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.