Category: Canon Law

The Congregation for the Doctrine of the Faith is not normally tasked with adding provisions to canon law, but under the direction of the pope, it can do whatever he wants it to.

And it has.

A new CDF document provides a latae sententiae (automatic) excommunication for those who attempt to ordain women and for those women who receive such attempted ordinations.

TEXT:

Congregation for the Doctrine of the Faith

General Decree

On the delict of attempted sacred ordination of a woman

The Congregation for the Doctrine of the Faith, in virtue of the special faculty granted to it by the Supreme Authority of the Church (cf. Can. 30, Code of Canon Law), in order to safeguard the nature and validity of the sacrament of Holy Orders, decreed, in the Ordinary Session of December 19, 2007:

In accordance with what is disposed by Can. 1378 of the Code of Canon Law, he who shall have attempted to confer holy orders on a woman, as well as the woman who may have attempted to receive Holy Orders, incurs in a latae sententiae excommunication, reserved to the Apostolic See.

If he who shall have attempted to confer Holy Orders on a woman or if the woman who shall have attempted to received Holy Orders is a faithful bound to the Code of Canons of the Oriental Churches, he is to be punished with the major excommunication, whose remission remains reserved to the Apostolic See, in accordance with can. 1443 of the same Code (cf. can. 1423, Code of Canons of the Oriental Churches).

The present decree enters in force immediately after its publication in L’Osservatore Romano.

William Cardinal Levada
Prefect
Angelo Amato, s.d.b.
Titular Archbishop of Sila
Secretary

First, HERE’S CANON 1378 IN THE CIC.

And HERE’S CANON 1443 OF THE CCEO.

Now, SOME COMMENTARY BY ED PETERS.

Finally, a few thoughts of my own:

It’s interesting, as Ed points out, that the Holy See has gone in the direction of creating a new latae sententiae penalty rather than continuing the trend of abolishing them.

On the part of bishops there may be something of a preference for latae sententiae penalties in that they do not require the bishop to himself take the action of imposing a canonical penalty on one of his subjects–an action that is bound to be portrayed in terms of the harsh disciplinarian stereotype in the popular press. It is much easier for a bishop to say "So-and-so has excommunicated himself/herself by these actions" than "I hereby excommunicate so-and-so for these actions."

I think that in this case, though, there may be an additional and perhaps more fundamental reason for the penalty (at least in the Latin rite) being a latae sententiae one: These ordinations frequently occur in secret.

That’s how they got started, after all: If the claims of the original group of female ordinands are to be believed, they found a Catholic bishop somewhere who was willing to perform the initial ordinations. That man’s identity has not been revealed.

And subsequent to that event, some of these women have simulated ordination in secret or at least without their identities initially being known to their bishops.

The use of a latae sententiae penalty in this case sends a signal that simply keeping the identities of the parties a secret will not keep them from suffering excommunication. You can’t tell yourself, if you are a bishop or a prospective ordinand, "I’m free of canonical penalties as long as nobody knows I did this so that no penalties can be imposed on me."

Instead, the latae sententiae penalty in this case says, "The Church takes this crime so seriously that it provides for excommunication even when the parties, or even the fact, of the crime are unknown."

The same can be said of all the other latae sententiae penalties, such as the excommunication provided for abortion.

One might still question whether we should have latae sententiae penalties in the Latin rite, but I think that the reason for this one is more than just a desire to get bishops "off the hook" for having to impose a penalty. It’s a sign of the Church’s particularly strong desire to alert those who attempt these ordinations to the gravity of their actions.

Since the current decree is not retroactive, it will not touch those who have previously attempted these ordinations (including the original bishop, assuming that there was one), but it does send the signal going forward to all who would participate in them.

When I saw the headline on Zenit "Accommodating the Deaf," two thoughts flashed through my mind: (1) This has got to be one of Fr. Edward McNamara’s liturgy columns and (2) I wonder what Ed Peters’ response will be?

The first thought came from past experience in decoding Zenit headlines. The second came from the fact that Ed Peters is a canonist with particular knowledge of the deaf community and the Church’s relationship with it.

I was pleased, then, when I got an e-mail informing me of this piece on Ed’s blog in which he interacts with Fr. McNamara’s column.

Dr. Peters finds significant fault with Fr. McNamara’s column, and rightly so.

I won’t repeat all of Ed’s critiques of the column here, but Fr. McNamara was clearly writing out of his depth on this topic. He gave a well-meaning, off-the-top-of-his-head answer to the questions posed to him without displaying  familiarity with the relevant Church documents (e.g., papal documents giving permission to sign the Mass).

Ed doesn’t point this out in his response, but spending even a few minutes looking in the indices of common reference works would have turned up the very documents that Fr. McNamara needed.

Ed’s piece does a good job surfacing problems with Fr. McNamara’s column. It also raises a couple of issues on which I’d like to add a few thoughts.

1) One of the subjects Fr. McNamara treats is whether parishes should provide closed captioning of the Mass. Ed makes the point that this would not be preferred because, while deaf people might read the captioning, they could not give the proper liturgical responses in captioning, whereas they can give the responses (e.g., "And with your spirit") in sign.

This is a good point. I would add another reason why captioning would not be preferred. As Ed mentions, there is no agreed upon way to write American Sign Language or other sign languages (yet). The captioning that a parish could provide thus would default to whatever the local vernacular language is (e.g., English, French, Spanish).

The problem is: Giving deaf people captions written in English is not giving them captioning in their own language.

American Sign Language, despite its use in America, is not English. It has different grammar and different vocabulary. It may have certain loan elements from English, just as English has loan elements from French and German and Latin and Greek, but it is not English any more than English is one of its cognate languages.

While there are efforts, like Signing Exact English, to exactly represent English in signed form, this is not the standard language in the deaf community in America. American Sign Language is.

Deaf people may have different levels of skill in reading English, just as English speakers may have different levels of skill in reading Latin, but giving them captioned English is not the same as giving them translation into the vernacular sign language.

2) Fr. McNamara was also asked by his correspondent about the possibility of deaf people entering convents, monasteries, and religious life. In answering, Fr. McNamara focused substantially on the question of whether deaf people could be ordained to the priesthood (which is not the same thing, since one can be in a convent, a monastery, or religious life without being a priest).

Fr. McNamara makes the point that some individuals have physical limitations that prevent them from holding certain occupations, which is true, though he is unfortunately detained by the idea that the priesthood involves a great deal of time listening to people, before ultimately concluding that this is not an insurmountable barrier to the priesthood.

Ed points out the problems with Fr. McNamara’s answer here (e.g., there are a lot of deaf people out there who don’t have anyone to "listen" to them due to lack of priests skilled in sign languages), but I would raise a question in this area.

It doesn’t actually concern whether deaf people can be ordained to the priesthood. As Ed points out, the former canonical prohibition on this has been removed from the law and there are, indeed, people who are deaf and who have then been ordained (as well as hearing people who were ordained and then lost their hearing).

My question concerns not ordination and deafness but ordination and something that often goes along with deafness: muteness.

For someone to be ordained to the priesthood, he should be able to validly perform the functions of the priesthood, including the celebration of the sacraments. Indeed, if someone where physically unable to perform these functions it would raise a question (in my mind, at least) about the validity of his ordination, just as the antecedent, total, permanent, and incurable inability to perform the marital act would imply the invalidity of a marriage.

Now, the sacraments involve the use of certain formulas ("This is my Body . . . ," "This is the cup of my Blood . . . ," "I baptize you . . . ," "I absolve you . . . " etc.)

Christian Tradition has established that these formulas do not have to be delivered in a particular language. They can be in Aramaic, Greek, Latin, French, English, Russian, Igbo, or thousands of others. But all of those languages have something in common: They’re spoken.

Sign languages are not spoken, and we may here have a relevant difference.

If we look to the requisite matter of the sacraments, we find that there are restrictions on the types of matter, within broader categories, that can be used. Baptism has to be done not with any liquid but with water. The Eucharist must have not any food and drink but wheat bread and grape wine.

We might find that similar limits exist regarding the kind of language that is used in the forms of the sacraments. It might not make a difference what specific tongue you say them in–any more than it matters what kind of wheat or what kind of grape you use–but it might be necessary that you say them in a tongue–a spoken language.

If so then there would be a problem ordaining someone to the priesthood if that person is incapable of vocalizing at least the sacramental formulas needed for validity.

This is an area that I don’t think the Magisterium has yet entertained. Individual bishops may have ordained deaf people–who may have varying degrees of muteness–to the priesthood, but I don’t think that the Magisterium as an entity has yet considered the question of whether spoken language is required for sacramental validity–at least I am unaware of any place where it has weighed in on the issue–and I could see it going either way on the question.

Especially if you’re a pro-abort politician or similarly manifestly grave malefactor.

GET THE STORY FROM ARCHBISHOP BURKE.

ED PETERS HAS MORE.

THE HEADLINE SAYS IT ALL.

Actually, with the lead-in that Ed uses for his post, I thought at first he was talking about this story.

In the latter story, the priest who got arrested said he did what he did because he sweats too much otherwise.

Uhh . . . that’s why God created running shorts.

I think there are other issues going on.

Canonist Ed Peters points out two extraordinarily important facts regarding the Kennedy-Rausch annulment case that I hadn’t been aware of. If press accounts are accurate then . . .

1) The Rota was serving as a court of second instance.

This is an extraordinarily important fact. Here’s why: When an annulment case is handled by a tribunal and a finding of nullity is reached, it is automatically transmitted to an appellate tribunal (a court of second instance) for its evaluation. Only if the appellate tribunal agrees is the person free to marry in the Church.

This means that what is popularly known as "an annulment" (that’s a colloquial designation) actually consists of two separate findings of nullity by two separate tribunals.

Normally the appellate tribunal that hears the case in second instance in an American annulment case is also in America, but it’s possible to appeal directly to the Rota, which is apparently what Sheila Rausch-Kennedy did in this case.

This means that Joseph Kennedy never had "an annulment."He never got the second finding of nullity from the appellate tribunal.

It is not the case–as I had supposed–that Kennedy received "an annulment" (findings of nullity from both the courts of first and second instance) and then the Rota got involved (as a court of third instance) and overturned the annulment. There never was an annulment because the second finding of nullity had not come in.

2) The Rota sat on this case for TEN YEARS.

That’s a QUADRUPLE HUH????

The Boston archdiocese tribunal apparently issued its finding of nullity in 1997 and the case has been stuck in the Rota ever since!

This is simply appalling.

John Paul II twice in his annual addresses to the Rota scolded them about not processing cases in a timely manner.

In his 1984 address, after the release of the 1983 Code of Canon Law, he stressed:

In the reform of canonical procedural law, an effort was made to meet a very frequent criticism, which was not completely without foundation, concerning the slowness and excessive length of trials. Therefore, accepting a deeply felt need, without wishing to impair or in the slightest way to diminish the necessary guarantees offered by the course and formalities of tribunal procedure, [the new law] has sought to render the administration of justice more flexible and functional by simplifying procedures, speeding up formalities, shortening the time-limits, increasing the discretionary powers of the judge, etc.

This effort must not be rendered vain by delaying tactics or by a lack of care in studying cases, by an attitude of inertia that is wary of entering the new track for moving ahead, by a lack of expertise in applying the procedures.

We then turn to the 1983 Code and find that it provides that:

Can.  1453 Without prejudice to justice, judges and tribunals are to take care that all cases are completed as soon as possible and that in a tribunal of first instance they are not prolonged beyond a year and in a tribunal of second instance beyond six months.

Got that?

Tribunals of second instance are supposed to process cases in six months barring special circumstances that would interfere with the execution of justice. Yet the Rota sits on this thing for ten years! Further, if what Time said is accurate then even after it reached the finding, it still took two years to draft the statement announcing its finding.

Circumstances in which justice would require this kind of delay are almost unimaginable. On its face the situation appears to be one of gross negligence on the part of the Rota.

Justice delayed is justice denied, and on the face of it, the Rota denied justice to Kennedy and Rausch for years by taking twenty times longer than the law specifies to process their case.

Now, maybe there are facts that we aren’t aware of that would show that justice required this astonishingly slow pace, but (by definition) it would be astonishing if there were.

In his 1996 Rotal address, John Paul II spoke of the need to resolve the question of what a person’s marital status is (are they validly married or not?) in a timely manner, stating in part:

At the same time, however, the current legislation of the Church shows a deep sensitivity to the requirement that the status of persons—if called into question—does not remain in doubt for very long.

The current legislation of the Church may show that deep sensitivity, but in this case–on the face of it–the Rota did not.

And sadly, this is all too often the case–in tribunals around the world. A friend of mine has a relative who has been vainly trying for years to get a Mexican tribunal to take action regarding an annulment case concerning a marriage that was contracted in Mexico, yet the person has been unable to get the tribunal to do anything at all.

If you want know why America has so many annulments compared to other countries, a significant part of the reason (you’ll note I said "part") is that it has a tribunal system that actually processes cases in something like the time limits specified in the law instead of letting them sit for years without resolution or refusing to even take action on the case.

Okay, the folks at Time Magazine have once again demonstrated their incompetence.

GET THE STORY.

CHT to the reader who e-mailed asking confirmation of the fact that the Church does not "de-sanctify" marriages.

It doesn’t.

Time doesn’t know what it’s talking about.

What it does do is sometimes declare them null from the beginning. Hence: an-nul-ment.

Saying something was null from the beginning is not the same as stripping it of sanctity. It has to be there before you can remove its sanctity. No thing, no sanctity.

Oh, and the correct word for removing the sanctityof a thing would be desecrate or deconsecrate, not "de-sanctify."

But the stupid stuff in the story doesn’t stop there! Oh, no! That would be too easy!

EXCERPTS:

The annulment was the subject of Rauch’s 1997 book Shattered Faith, which lambasted her ex-husband and was severely critical of the Catholic Church’s proceedings, which made the marriage (which had produced twin boys) null and void in the eyes of the church.

How many children a union produced has nothing to do with whether the marriage was validly contracted on the wedding day.  Time is presenting criticism of the concept without presenting the rejoinder.

Rauch argued that Kennedy was able to unilaterally "cancel" nearly 12 years of marriage because of his clan’s influence in the church.

How long a union lasts has no direct bearing on whether it was validly contracted on the wedding day. Same problem as before, and petitioners cannot "unilaterally cancel" anything. Both parties are given the opportunity to provide evidence, and it’s the tribunal that makes the decision.

Few observers thought the appeal to Rome by Rauch, an Episcopalian, had a chance against the well-connected Kennedy.

Time needs better observers. First, the fact Rauch is an Episcopalian is not going to have a material impact on the decision, and Kennedy’s connections–whatever they may be in Massachusetts–are not going to be decisive in Rome.

With divorce strictly prohibited in Catholicism, annulments allow Catholics to remarry before a priest and continue receiving the sacraments.

Civil divorce is not "strictly prohibited in Catholicism." Civil divorce can be legitimate for any number of reasons. What you can’t do is get remarried just because you have a civil divorce.

Several years after his 1991 civil divorce to Rauch, Kennedy obtained an annulment from a Church tribunal in Massachusetts so he could have a Church ceremony with Kelly. The couple had already been married in a 1993 civil ceremony, but needed the Roma Rota appeals tribunal at the Vatican to uphold the Massachusetts annulment verdict before they could be married by a priest.

The Rota does not weigh in on each and every finding of nullity in the world. It’s agreement isn’t necessary unless one of the parties appeals to it. (Oh, and you don’t have to be married by a priest in order to observe the Catholic form of marriage.)

At the Vatican, Pope Benedict XVI has indicated that he wants to streamline the Roma Rota to respond to the desire of divorced Catholics to stay inside the Church.

Huh? When did he do that? He’s never made any statements about streamlining the Rota. On the contrary, he’s stressed that tribunals around the world should follow the detailed instructions of Dignitas Connubii.

But there is also concern that some Catholics, particularly in the U.S., abuse the practice. "People think it’s their right," says one Rome-based canon lawyer. He adds sternly, "It’s not a right."

Double huh? It’s not individual Catholics who "abuse the practice" of granting annulments. Only Church tribunals can grant annulments. If there is a generalizable problem (and this is something that is quite arguable) with the annulments being granted then the fault lays with the tribunals granting them, not simply the people asking to have the validity of their marriages examined.

The story also refers to multiple unnamed "sources," meaning that there is a shadow of doubt over the whole thing.

It also says this:

The Roma Rota’s ruling, written in Latin, was reached in 2005, and had
been kept secret while the official written notice was being prepared,
said a source in Rome familiar with the case.

We can’t know if this is true since the source is unnamed, but if it is: Triple huh? What’s something like this doing sitting on someone’s desk for two years? It doesn’t take that long to prepare a written notice!

While Time Magazine has demonstrated what it doesn’t know about this case, Ed Peters has some sage advice to remember what we all don’t know about it.

GET THE STORY.

A reader writes:

Jimmy, I have a question about indulgences and the only answer I have been able to find is ‘a few days’.

What is the timeframe in which one has to make confession and receive communion in order to obtain an indulgence?

It’s understandable that there would be confusion on this point. In his apostolic constitution Indulgentiarum Doctrina, Paul VI merely wrote:

n.8—The three conditions may be fulfilled several days before or after the
performance of the prescribed work; nevertheless it is fitting that Communion be
received and the prayers for the intentions of the Supreme Pontiff be said the same
day the work is performed.

In the absence of further clarification, what "several days before or after" means would be a natural source of perplexity. Fortunately, in the year 2000 the Apostolic Penitentiary (which has charge of issuing indulgences) issued a notice titled The Gift of the Indulgence clarifying the question as follows:

5. It is appropriate, but not necessary, that the sacramental Confession and especially Holy Communion and the prayer for the Pope’s intentions take place on the same day that the indulgenced work is performed; but it is sufficient that these sacred rites and prayers be carried out within several days (about 20) before or after the indulgenced act. Prayer for the Pope’s intentions is left to the choice of the faithful, but an "Our Father" and a "Hail Mary" are suggested. One sacramental Confession suffices for several plenary indulgences, but a separate Holy Communion and a separate prayer for the Holy Father’s intentions are required for each plenary indulgence.

Even "about 20" (an eye-opening number!) isn’t a fixed deadline, but at least it gives us an idea of the scale we’re talking about, and since it’s only "about 20" then for practical purposes it would be to safe to saw "within three weeks" (potentially even a little more, but presumably less than a month or they would have just said "a month").

A reader writes:

I have a baptized daughter who is a few months old. My wife and I went home to my parents this weekend. They went to Church Saturday night as we were visiting other relatives. On Sunday morning my mom offered to watch our daughter while we went to Church. I agreed.

On the way to church I began to wonder if not brining my daughter to church was a sin. Was it? And how grave was it? I abstained from communion because I wasn’t sure.

I’m not clear from your answer whether you took your daughter to Mass Saturday or if it was just Sunday morning when you didn’t take her to Mass. Either way, it doesn’t matter, because a child that young is not required to attend Mass. The Code of Canon Law provides:

Can. 11 Merely
ecclesiastical laws bind those who have been baptized in the Catholic Church or
received into it, possess the efficient use of reason, and, unless the law
expressly provides otherwise, have completed seven years of age.

The law regarding who has to go to Mass on Sunday (or Saturday evening; either satisfies the Sunday obligation) does not specify an age. It simply says:

Can.  1247 On Sundays and other holy days of
obligation, the faithful are obliged to participate in the Mass.

Moreover, they are to abstain from those works and
affairs which hinder the worship to be rendered to God, the joy proper to the
Lord’s day, or the suitable relaxation of mind and body.

Since there is no specification of age here, canon 11 means that children under 7 years of age (or people who lack the use of reason or people who are not baptized) are not bound to attend Mass.

It thus was not a sin to leave your daughter in the care of your mother.

Parents do have a moral obligation to ensure that as their children age, they get in the habit of going to Mass so that once the obligation kicks in at 7 years of age they’re used to it, but this is not an obligation that means they have to be there every single Sunday, and it certainly does not mean that children less than a year old have to be taken to Mass. Children that young are incapable of forming the habit of going to Mass.

A reader writes:

I have spent many years as an active Christian in a Protestant church, but about
2 yrs ago I began reading the early church fathers and
suddenly my eyes were opened to the Truth of
Catholicism! I have been studying ever since and am
involved with several online Catholic groups.

My question is:

Since I am anxious to enter the RCC and I have studied
extensively, is there a reason/need for me to go
through almost 18months (including Inquiry) of RCIA? I
have another year to go in this particular RCIA but I
am struggling with some things. The candidates and
catechumens are doing the exact same program, no
consideration is made for previous Christian life
whatsoever (our priest has delegated RCIA to the
facilitators and will not intervene). The candidates
are required to participate in the scrutnies etc. I
know that it says in the RCIA manual (thanks to your
website :o)) that candidates do not participate in
scrutnies and sent the info along to my facilitators
and they said "technically scrutnies do not apply to
you but we have decided that everyone will participate
in them". I endured sitting through a movie entitled
"The Fourth Wiseman" which was RCIA’s version of
sharing the gospel.

Should I submit to everything this RCIA demands out of
obedience to the church or should I go across town to
another RCIA who is willing to look at each person’s
history and take that into account? I talked with this
other RCIA and they are eager to help me enter the RCC
sooner than NEXT Easter Vigil.

I want to be in full communion with the Church and I
hunger for the Eucharist! I do not think I am
demanding anything the Church does not make allowances
for but I do not want to be rebellious in any way.

Could you please help me with this?

Until you mentioned that there is a nearby RCIA program that would be willing to help facilitate your entrance into the Church by actually obeying the National Statues for the Catechumenate–which require that people not all be treated like catechumens–I was going to suggest that you hold your nose, grit your teeth, and tough it out. In other words, just do whatever you have to to get into the Church, which is the important thing.

That’s what I had to do. I had an awful RCIA program, and the parish I was attending refused to comply with Church law, which requires that candidates for reception into the Church who have already lived lives as catechized Christians are to be sorted out from the uncatechized and be given abbreviated periods of formation and then received into the Church apart from Easter Vigil.

Unfortunately, I was in a town where there were only two Catholic churches, and I didn’t have another alternative.

Neither do many people.

But if you are in the fortunate situation of having another RCIA program available to you that actually will follow the law then by all means make use of it!

There is zero problem with obedience on your part regarding this. You have no obligation whatsoever to stick with an RCIA program that is refusing to follow the law if you have the alternative of one that is. The obedience problem isn’t yours; it’s theirs.

If I were in your shoes, I’d count myself fortunate at having made the discovery of the other option and then waste no time in following it up.

Welcome home!