A reply to Fr. William J. O’Malley’s comments on Canon 915

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.