I really, really want to be on the side of Bishop McManus, due to the obviously righteous intention he has. But I am not convinced what he did was legal.
The Nativity School, a Jesuit-run middle school in Worcester, Massachusetts, has been (and still is) flying a “gay pride” flag and a “Black Lives Matter” flag in front of the school building. The problems, as stated by the Bishop, are serious and evident. So, Bishop McManus has issued a decree revoking the right of the school to call itself “Catholic,” along with some connected matters. It has been lighting up the world of Catholic news.
But the Jesuits are a religious order of pontifical right. They have public juridic personality, and not from the local bishop. While they need the local bishop’s permission to found a school, it is unclear that the local bishop can revoke a school’s Catholic identity when run by such an organization. In fact, it seems clearly to be the opposite. The late Cardinal Grochelowski agrees, in a speech given at Fordham in 2008, wherein he stated: “I should like to note that religious institutes too, which are public ecclesiastical persons (I am referring to the second case), need the consent of the diocesan bishop to found a school (can. 801); however, in such a case, the consent regards only the possibility of having a school, and not that it be Catholic. In fact, a school, if directed by a public ecclesiastical juridic person, can only be Catholic. Public juridic persons, according to the norm of can. 116 § 1, fulfill their mission ‘in the name of the Church’: therefore, all the activities they carry out have to have such a dimension.”
For the canonically minded among my readers – any hot takes? Law matters. Processes matter. Rights matter… even when those rights are being misused. Just imagine were things reversed, with some conservative school run by a traditionalist-leaning order having the rug pulled out from underneath for NOT flying such flags… or some such silliness.
Prayers for all involved – most of all, for those who seek to make cheap use of ridiculous virtue-signals laden with values antithetical to Christian morals to the effect of much scandal, that they may see the light and repent, that their souls may be saved on the Last Day.
“Weaponizing the Eucharist” is a phrase I have now unfortunately heard from several clergy, most recently the Bishop of San Diego (1:18:00) attempting to persuade people that the President of the United States (and others), despite perfectly clear, consistent, and efficacious support for abortion, should not be denied Holy Communion. Of course, this relates to the meaning and application of the ever-relevant Canon 915, which describes the conditions for the public reception of the Eucharist.
In this post, I want to give a very brief primer on this severely misunderstood law. (In this task, I rely largely on the great work of Dr. Ed Peters, whose trove of resources on this point can be accessed here, along with other items of interest.) For what it is worth, I am not a trained canonist but have done a good deal of study of this area of the law.
The text of the Canon 915 in the 1983 Code of Canon Law is as follows: “915. Those upon whom the penalty of excommunication or interdict has been imposed or declared, and others who obstinately persist in manifest grave sin, are not to be admitted to Holy Communion.”
For this post, we leave aside the first part of the canon, which is more or less straightforward and is rarely at issue. (Whether such mechanisms should be used with more frequency is a different question, but it is one worth asking.)
So, we shall go through each of the parts of the second part of the canon (“obstinate perseverance/persistence,” “manifest,” “grave,” and “sin”), but first we will look at two other things: first, what the canon does NOT say, and second, what is the relevant proximate context of the canon which is required for understanding its meaning.
What does the canon NOT say? Well, to cut to the point, obviously the canon does not add qualifiers beyond what it actually contains. The word “dialogue” is missing, one can note immediately, though dialogue in the right sense is important indeed. And while the “judgment of a proper authority” can sometimes be quite important and relevant, this relates to a specific phrase already included in the canon (“obstinately persist”) and so the more general judgment of the pastor, the bishop, etc. is actually not very relevant. Perhaps a wealthy “pro-choice” donor to the diocese will cease his donations if he is denied Holy Communion, and the bishop does not like that consequence and judges it would be better not to make this person upset. Well, this is quite unfortunate, and the judgment is wrong. It is not the purpose of the canon to preserve the financial (or political/diplomatic) integrity of a diocese, a parish, etc. These things, while important, sit beneath what the canon obliges, not above it, as is clear from the common sense effects that any sort of public humiliation could possibly have – as if we are only now first discovering “mercy” and “dialogue” and realizing that politicians and wealthy people (and others with influence) can bully or help the Church in various ways, and that this might depend on how such people are treated by the Church, including in the public administration of the sacraments… Of course we are not only first learning about all this. This is very old news. In the most proper sense, the “proper authority” is whoever is functioning in the moment as the minister of Holy Communion, and other judgments are secondary – the canon especially obliges bishops and pastors, but it directly obliges anyone administering the Eucharist in public. As Newman put it, “A toast to the Pope, but first to the conscience.” I certainly understand the squeeze that this puts many people in. But those taking up the grave task of assisting in the distribution of Holy Communion – most of all, clergy – need to gird their loins and be prepared for contradictions. (Coincidentally, this is one more reason to diminish the prolific use of extraordinary ministers of Holy Communion, especially “on the fly.”)
Note that the word “conscience” is missing, as is “sacrilege.” More on that in a bit, as clearly they do somehow play a role, but they are not the direct concern of the canon.
The two pieces of context which I wish to present here are the following: first, Canon 855 of the 1917 Code of Canon Law, the current Code’s predecessor, which helps us to understand the legal framework out of which the current Code was developed and must be interpreted within to a significant degree. Second, Canon 916, which, as one might expect, immediately follows Canon 915.
Canon 855 of the 1917 CIC reads as follows, with its two sections: “855 §1. All those publicly unworthy are to be barred from the Eucharist, such as excommunicates, those interdicted, and those manifestly infamous, unless their penitence and emendation are shown and they have satisfied beforehand the public scandal [they have caused]. §2. But occult sinners, if they ask secretly and the minister knows they are unrepentant, should be refused; but not, however, if they ask publicly and they cannot be passed over without scandal.”
From this text, we begin to get an idea of what Canon 915 is up to. Let’s look at Canon 916 before drawing our conclusions here: “916. A person who is conscious of grave sin is not to celebrate Mass or receive the Body of the Lord without previous sacramental confession unless there is a grave reason and there is no opportunity to confess; in this case the person is to remember the obligation to make an act of perfect contrition which includes the resolution of confessing as soon as possible.”
From Canon 916, we see by inference that Canon 915 is not a law binding the would-be communicant, it is a law binding the minister of Holy Communion. The language of Canon 915 is already talking about “admittance,” but 916 helps us to see with precision that the one bound by this law is the minister, not the would-be communicant. Canon 916, on the other hand, binds the would-be communicant.
From these two texts together, we can conclude that there is a distinction between the reception of Holy Communion in private and reception in public. The difference relates to what the 1917 Code refers to explicitly, and the 1983 Code refers to implicitly, which is scandal. Thus, the law is concerned with two things – the soul of the would-be communicant, and scandalizing others looking on at his reception (and even scandalizing the recipient himself). In public reception, in fact, it is the primary concern of the law, as demonstrated by the fact that the 1917 Code requires ministers to cooperate with what he knows with good certitude to be a sacrilegious reception of Holy Communion.
There are two types of scandal to consider here: “imitatio” and “admiratio”… The former is connected with known sins, the latter with secret sins. The scandal of “imitatio” (imitation) is to teach others that a sin is not a sin – or at least not grave sin, in this case – and thus to imitate it, while the scandal of “admiratio” (wonder) comes after a denial of Holy Communion which encourages others to inquire into the motive for that denial, thus creating untold gossip, prying, and possibly the complete ruin of a person’s good name. And, after all, who knows, maybe the person who did some very terrible thing in secret which the minister happens to know about has actually already made confession or at least a good act of contrition (with a grave reason for receiving Holy Communion and no prior opportunity to confess), or was even for some reason not gravely culpable for his sin. However, if his action was public, people already presumably know about it and will not go hunting for information. Thus, the known sin is also typically presumed to be known by the minister as well… thus possibly putting the minister into the role of a teacher of morals.
Now we are ready to look at the individual conditions laid out in Canon 915. Remember, this canon relates to the public reception of Holy Communion only (whereas Canon 916 and its roots in Canon 855 §2 would correspond to private reception), and ALL of the conditions need to be present for the canon to be justly applied. (This is where many well-meaning and “conservative” people can go astray – it is actually quite difficult, outside of a few textbook cases, to meet ALL of the criteria.) We will start with the end and work our way back.
In morals, “sin” is a voluntary deed, word, or thought against the preceptive will of God. Some might be surprised to know that there is a category outside of morals which “sin” relates to – well, there is, and it is canon law, our present concern. “Sin” in canon law does not actually always mean the same thing as it does in morals, though of course it is connected. Rather, sin in the canonical sense, as used in Canon 915 in particular, corresponds to an outward reality which is able to be judged by onlookers, not a reality of the soul of the individual. More specifically, “canonical sin” is a “moral sin” as judged by people with well-formed consciences that might observe the act. For example, a man takes some hostages in a bank robbery and begins to murder them one by one. A person with a well-formed conscience who sees this act would reasonably assume that this man is committing sin in the moral sense. However, if we suppose that the robber is actually a schizophrenic or has some other serious mental disability, he may actually bear no moral guilt at all. And yet, until his mental condition is made known publicly, thus clarifying his lack of guilt, he would be guilty of the kind of sin which Canon 915 speaks about.
The sin must be grave. It cannot be venial sin, which is an unfortunate part of everyone’s daily life. It must be sin of the sort which, according to its matter, separates a soul from the love of God. (Recall the immediately preceding point – it is not the concern of Canon 915 whether one is gravely culpable for the sin or not. In the bank robbery example, the act is pretty clearly grave matter, despite the schizophrenic robber’s lack of guilt.)
This is where Canon 855 of the 1917 Code is helpful, as it makes this distinction very explicit. In public administration of the Eucharist (and other sacraments by extension), the immediately invisible disposition of the soul of the individual is irrelevant for whether or not they have a claim on the minister of the sacrament to receive it. If we reimagine our bank robbery to have been a heist, in which the pastor of the local parish was involved as a conspirator, the successful heist is a grave sin indeed but one which is unknown as being connected to any given individuals. If Father decides to celebrate the parish’s daily mass the next morning (which is its own problem, as the canon also notes,) and his co-conspirator presents himself for Holy Communion, Father cannot deny him Holy Communion based on their secret crime. It matters not one bit whether there is any realistic chance of there having been confession, contrition, reparation, or even regret. The grave sin is not manifest, it is secret. However, if his co-conspirator arrived at the rectory and asked to receive Holy Communion privately outside of the normal parish mass, there would indeed be grounds for denial – it is a clear sacrilege, unless he has made confession or has some grave reason to receive after a perfect act of contrition (which is not particularly realistic, of course).
The manifest grave sin must be intentionally habitual, not a “one off” or some occasional act. Sometimes this comes by implication of the person himself – such as the public contraction of an obviously illicit “marital” union. In the standard sort of case, a person’s manifest grave sin is rightly judged to be obstinately perseverant after an explicit warning given to that same person by the proper authority, such as the pastor or the bishop. (This is where the judgment of the pastor or bishop would be relevant. He may have given a warning with the condition to make public amends by such-and-such a time. So in these cases, those assisting the pastor and bishop in distributing Holy Communion are “off the hook.”) However, some cases are so clearly grave that one or two acts without public reparation or apology would suffice of themselves to constitute obstinate perseverance, without the need for any special decision or declaration from the bishop or pastor. This would seem very much to be the case with voting in favor of intrinsically and egregiously immoral acts, such as abortion, euthanasia, etc. (While such a person perhaps might have some special and secret strategic reason for such voting behavior which would justify his outwardly horrific action, this is truly abnormal and would still exclude the individual from publicly receiving Holy Communion, though not privately. I will explore this strange kind of case in an upcoming book on the topic of voting… Stay tuned.) It could also apply to political symbols being used during the reception of Holy Communion itself (i.e. a “rainbow sash” – and one can even imagine the wearer of such a thing being ignorant of its actual meaning, thus removing subjective guilt but still meeting all of the conditions of the canon).
The claim that merely enforcing the legislation of the Church which sits upon apostolic roots and is primarily aimed at protecting weak souls from being led astray is “weaponizing the Eucharist” is simply absurd. The law is there in part to protect the individual would-be communicant from committing sacrilege (normally), but it is primarily to prevent people from being taught that grave sin is not so bad (including the would-be communicant himself). In the case of pro-abortion politicians, clergy who support “mercy” and “dialogue” over enforcing a rather low bar in the Church’s law actively teach Catholics and non-Catholics alike that the Church does not consider abortion to be particularly sinful, such that one who tries to expand legal rights to abortion by a public vote can still carry on a loving relationship with Jesus Christ, which is the whole center of the reception of the Eucharist. This is false. (Alternatively, the lesson could be that the Eucharist is not that important, or that a good reception does not require the state of grace, etc. – also false.) A clear-thinking adult who deliberately supports the direct killing of the unborn or even deliberately tolerates it as acceptable, cannot be a friend of God and thus cannot receive Holy Communion, at least under Canon 916 by committing sacrilege, even if not barred under Canon 915. We are gravely bound to understand the basic requirements of the 5th Commandment, which includes understanding what a human being is in a basic way. And those who are bound to know well both ecclesiastical and moral law who neglect their duty as shepherds of souls in this respect, as in others, will have to answer for their actions and inactions on the Last Day. It is indeed a terrifying thought to think of what that “dialogue” will look like.
We do not need more “dialogue” here, we need more good instruction and more good examples. We need to focus on saving those who are hovering in the middle of the divide – not on trying to pretend that despite the angry mob’s commitment to egregious sins, we can still find enough common ground to have a healthy ecclesial relationship in the bonds of mutual charity. This was more or less the thinking of St. Paul, for example, when he counsels the excommunication of heretics from even the social life of the Church after one or two warnings. (See Titus 3:10 and especially 1 Corinthians 5 – where is the call for dialogue!?)
There is more to talk about, including but not limited to the extension of the logic of this law to other acts of sacramental administration, but for now I give the last word to Cardinal Arinze… Let us pray for our bishops and our governors, and for the protection of the most vulnerable in our world.
Look. I’m not a professional canon lawyer. But two days in a row now even I have been able to point out some whoppers, both involving juridical validity.
It’s been irresponsibly suggested that “some canon lawyers” (who?) say that if a pope resigns due to scandals, he “cannot be said to have made his decision of his own free will – even if he insists that he is doing so.”
As the kids say these days – lolwut?
Even though the Holy Father apparently has said he has no intention of resigning, he is an unpredictable man, isn’t he. So let’s take a look at this important topic anyway.
Okay, so just a few questions to start us off… Since when is there a legal definition of “scandal”? And who determines whether there is such a “scandal”? And wouldn’t it be reasonable to assume that a person who sees danger and ineffectiveness coming for him due to a scandal would truly want, as an authentic good, to leave office?
If it is true that scandal precludes the resignation of office, it would mean that the person is stuck there, even if due to his own sins and the real good of the Church requires his resignation. On what planet is this a juridic reality? The fact is that there are always scandals and pressures facing popes which would incline them to leave office, many of which are unknown to most people. So is every papal resignation therefore invalid?
No, of course not. As my own professor of canon law told our class, one of the important tools in reading and interpreting canon law is common sense.
Let’s go through the text, shall we? My comments in bold.
Can. 187 Anyone responsible for oneself (sui compos) can resign from an ecclesiastical office for a just cause. Obviously, the pope is such a person. Note that mounting scandals and ineffectiveness due to pressure to resign would certainly constitute a “just cause.”
Can. 188 A resignation made out of grave fear that is inflicted unjustly or out of malice, substantial error, or simony is invalid by the law itself. This means that, even if there is grave fear on the part of the office holder, that fear must be caused by a serious threat to that person which violates justice in its mode or in its end… We could quibble about exactly what “unjustly” and “out of malice” mean, (and it’s unclear to me if “out of malice” is its own clause – perhaps so) but at present, there seems to be nothing but serious complaints and demands for answers. No threats against the life or liberty of the person of the Holy Father.
Can. 332 …
§2. If it happens that the Roman Pontiff resigns his office, it is required for validity that the resignation is made freely and properly manifested but not that it is accepted by anyone. The key here is how to interpret the word “freely.” As we have seen, grave fear of being an ineffective pastor or of harming the Church through giving scandal would not suffice to inhibit freedom in the proper way, even for holders of a “normal” office. The office of the papacy, however, is not a normal office – it is the supreme office of the Church militant – and so even more stringent requirements would seem to obtain with regards to proving who seems to be the pope isn’t the pope or who seems to have left the papacy has not.
…ah but wait – let’s go back a few hundred canons…
Can. 14 Laws, even invalidating and disqualifying ones, do not oblige when there is a doubt about the law. When there is a doubt about a fact, however, ordinaries can dispense from laws provided that, if it concerns a reserved dispensation, the authority to whom it is reserved usually grants it. So since there is at least a serious argument to be made that “scandal” and “pressures” do not of themselves suffice to render a resignation null when it is properly manifested, there is at least doubt about the law. This subjects the invalidating law, c. 332 §2, to a “stricter” interpretation. Any claim must overcome the arguments provided.
What, then, might actually render an attempted resignation invalid due to a restriction of freedom? Well, the pope could not be tortured to procure a resignation, for example. He also could not reasonably be presumed free when publicly and presently threatened with death or imprisonment by those with clear means to procure either. Anything like this, in which an invalidating pressure is manifest to all reasonable persons, when the Holy Father actually manifests an intention to resign it would indeed be invalid. Otherwise, we have at a minimum a doubtful application of law, which, especially given the importance of the office, should therefore be subject to strict interpretation, as explained above.
Therefore, the Pope is perfectly free to resign, no matter how bad the scandal gets.
Well, that’s my basic argument. Someone will have to show me where I’m going wrong, if indeed that’s the case. We didn’t even get into c. 17… That would be important too.
I don’t want to comment on the escalating rhetoric stemming from the letter from the letter of Abp. Viganò… I do want to comment on the escalating fear that campaigning for a pope pre-conclave (or at least before “santa sede”) invalidates the election.
It does not.
The argument goes like this: it’s an excommunicable offense to campaign for a pope (at least before the Holy See is vacant), a number of cardinals did this (the “St. Gallen’s Mafia” as it’s called), those excommunicated cardinals had invalidated themselves from voting, and therefore the last conclave was invalid.
Wrong, wrong, wrong. And it is irresponsible of people with only a passing familiarity with canon law to be going about spreading such a serious claim.
“The Cardinal electors shall further abstain from any form of pact, agreement, promise or other commitment of any kind which could oblige them to give or deny their vote to a person or persons. If this were in fact done, even under oath, I decree that such a commitment shall be null and void and that no one shall be bound to observe it; and I hereby impose the penalty of excommunication latae sententiae upon those who violate this prohibition. It is not my intention however to forbid, during the period in which the See is vacant, the exchange of views concerning the election.”
So, electors are forbidden from what we might call “serious” campaigning. It seems they would not be forbidden from simply expressing desires to each other, or discussing pros and cons. Anyway, for the sake of argument, let’s imagine this prohibition was indeed violated by a number of electors, and despite the litany of conditions which make such penalties very difficult to incur, they’ve really been excommunicated by their acts of “campaigning.” Then what?
“Can. 10 – Only those laws must be considered invalidating or disqualifying which expressly establish that an act is null or that a person is effected.”
“Can. 1331 §1. An excommunicated person is forbidden:
3/ to exercise any ecclesiastical offices, ministries, or functions whatsoever or to place acts of governance.
§2. If the excommunication has been imposed or declared, the offender:
2/ invalidly places acts of governance which are illicit according to the norm of §1, n. 3″
So what this means is that, while excommunicated persons do indeed have the obligation not to vote in a conclave, that act now being illicit, in order for such an act to be invalid that excommunication must be declared. That’s why section 2 says “If the excommunication has been imposed or declared,” implying that if it hasn’t been declared (or imposed, not categorically but personally, ferendae sententiae), then the subsequent penalties don’t apply. Obviously, no such excommunications have been declared (i.e. made public by the proper authority), and so any campaigners, while doing something illegal and immoral, would be doing something which is valid.
Given the past few years of theological disputes, several questions have proposed themselves as needing more serious attention, either in explanation of or exploration for the correct answers. Except to suggest the use of one particular theological tool, I don’t have any purpose here other than to say what some (but not all) of these questions are and to give them a definite shape in the hopes of helping them to be more effectively addressed. Here we go…
How do we determine what is infallibly taught by the ordinary magisterium and what is fallibly taught by the ordinary magisterium?
Even if something is certainly taught fallibly by the ordinary magisterium, how do we know if it is still binding through demanding “religious assent”?
What is the moral significance of failing to adhere to various kinds of positions taught with varying degrees of frequency, strength, and recentness?
To what degree, if any, are theologians exempt from such demands and their corresponding moral penalties?
Who exactly belongs to this supposedly exempt category called “theologians”?
When does it become morally acceptable for theologians to presume to correct a legitimate ordinary magisterial organ, in various degrees of publicity?
What is the exact significance and character of the extraordinary magisterium if it can only teach what has already been taught by the ordinary magisterium?
Can a practice of the Church or its encouragement of a practice establish a speculative doctrine to one degree or another, other than with regard to the liturgy and the sacraments?
What is the authoritative character of prudential utterances of the Holy Father or his legitimate direct cooperators (such as the CDF) when the matter of the utterance actually belongs most properly to the discretion of a legitimate civil authority?
Is there a good solution to so-called “conflict marriage” annulment cases in which the petitioner is unable to produce witnesses due to a legitimate obstacle (such as the witnesses being dead)?
What level and kind of ignorance of the Church’s legal system and its legitimate demands upon oneself would suffice to remove some or all of the formal aspect of sin from one’s materially sinful union?
If there is a possibility of a complete or partial excuse of moral culpability due to ignorance of canon law’s legitimate demands upon oneself with regard to marriage which can be privately ascertained by a sacred minister, how ought such persons be sacramentally ministered to, whether publicly or privately?
Aside from the general application of c. 915, and independent of the question of culpability for cohabitation and bigamy themselves, under what circumstances, if any, is it possible that to leave a person in ignorance about the moral necessity of an annulment, for which he or she is privately judged to be at least partially culpable, constitutes a legitimate condescension to a perceived likelihood of being unwilling to cooperate and thus likely leading to even worse sin?
What is the exact character and efficacy of a so-called “spiritual communion” for those who persist in mortal sin?
These aren’t “ivory tower debates.” Some of these questions, as I have implied in previous posts, could be helped by a more common use and further refinement of the Church’s system of “theological notes.”