Category: Law

A reader writes:

A friend of mine is catholic.  He plans to marry a woman who is divorced from a man who abused her. 

Okay. She might have grounds of an annulment if the abuse is a product of a fundamental misunderstanding on the part of the former husband about the nature of the marriage commitment.

She was married in a Baptist church and they don’t have annulments in the Baptist Church.

Wouldn’t matter if they did. The Church only honors its own annulments since nobody else applies the same standards that it does to this situation.

They have asked several priests and they say nothing can be done.  That seems wrong. 

It sure does.

If she were catholic and it is a marriage that would be given an annulment, shouldn’t the Church be able to grant some kind of annulment to her since her church won’t or at least recognize it somehow so they can be validly married? 

It certainly can do this. The mere fact that the lady in question is not a Catholic does not prevent her from having a Catholic marriage tribunal examine the marriage and determine whether or not it was valid. Catholic marriage tribunals hear the cases of divorced individuals seeking to marry Catholics all the time.

It’s hard for me to imagine that the priests they talk to were ignorant of this point, it is so common in parish life. My suspicion is that there was a misunderstanding of some kind–that the question wasn’t put to them in a manner that would elicit the desired information.

I suggest that she simply call a local parish, state that she is a non-Catholic hoping to marry a Catholic and that she needs to pursue the annulment process. They should be able to help her get the paperwork needed to begin this.

That being said, there are no guarantees that her first marriage really was null, or that it can proven to be null. As a result, she should not be making any kind of definite wedding plans (with the Catholic gentleman or anyone else) until it can be shown that she is free to marry. Christ was rather strong on this point (Mark 10:11-12).

Hope this helps, and God bless!

A reader writes:

I’m not a Catholic, but I do study Catholic theology. I find it addictive.

Cool! Me, too!

My uncle, who lives in Florida, is Catholic. My mother recently went to visit my aunt and uncle. She went to mass with them, this is the first mass she ever attended. A friend of my aunt and uncle (who happenes to be a former nun) encouraged my mother to go up recieve communion. She gave her quick instructions, and told my mother that this was okay. I told my mother that this was a big "NO, NO"! I told her that the Catholic communion was, without a doubt, closed. She said that the ex-nun assured her it was okay.

My mother hopes that she didn’t do anything wrong. Did she? Did the lady do something wrong by telling to her to partake in communion?

Based on what you’ve said about the situation, you are correct that Church law would not permit your mother to receive Communion under these circumstances. There are limited circumstances in which a non-Catholic can receive Communion, but this does not appear to be one of those cases.

So you don’t just have to take my word on it, here’s what the Code of Canon Law says:

If the danger of death is present or if, in the judgment of the diocesan bishop or conference of bishops, some other grave necessity urges it, Catholic ministers administer these same sacraments [penance, the Eucharist, and the anointing of the sick] licitly also to other Christians not having full communion with the Catholic Church, who cannot approach a minister of their own community and who seek such on their own accord, provided that they manifest Catholic faith in respect to these sacraments and are properly disposed (Canon 844 §4).

This applies to Protestants, which I assume your mother is. (Eastern Orthodox fall under a different provision.)

The Church allows limited reception of Communion in these cases because of how important it is for a person in grave need (e.g., a dying person) to be united with Jesus eucharistically, but because of the separations which regrettably divide the Christian community at present, a regular sharing of the Eucharist would not be possible.

One reason for this, from a Catholic point of view, is that many Protestants (and certainly most in the country) do not share the Church’s faith in the Real Presence. St. Paul is emphatic about the need to recognize the Real Presence of Christ in order to receive Communion (1 Cor. 11:28-30), so it is not possible to extend the offer of Communion to a great many Protestants without violating St. Paul’s injunction.

That being said, your mother should not feel guilty. She was assured by someone who she should have been able to count on to tell her the truth about this matter, and thus she acted in good conscience. She was doing something that she thought was appropriate and, I assume, was trying to please God in so doing. God honors and accepts her good motives and attempt to please him.

The ex-nun, on the other hand, did objectively mislead your mother. Whether the ex-nun is culpable for this, I cannot say. Her training in Church teaching and law may have been so poor that she is not culpable for having misrepresented matters to your mother. On the other hand, she may harbor a dissident attitude that rejects and seeks to undermine the sacramental discipline of the Church. Ultimately, only she and God know her heart.

Hope this helps!

20

Canonist Edward Peters explains it all.

GET THE STORY.

Ed Peters has a summary of John Paul II’s impact on Church law. For a pope who is not himself a canon lawyer, his impact has been remarkable, with John Paul II doing things no pope has done before.

GET THE STORY.

A reader writes:

Jimmy, I have some obligations this coming Saturday and Sunday that will very likely make it impossible to get to a Mass on Saturday “evening” or Sunday.  I’m wondering how early a Mass can be on Saturday to count for the Sunday obligation.  There’s one at 2pm here.  It just seems really early.  I suppose I’ll be relieved from my Sunday obligation if I just can’t make one, but if the 2pm will count, I’d like to go.  However, it’s in Korean, which I do not speak.  Does it even make sense to go if you won’t be able to participate really, or understand what’s being said?  Any input is greatly appreciated.

The law is ambiguous on when "evening" begins. (And no, folks, I don’t want to have this fight all over again, so e-mail me if you want to rush me your vital evidence regarding when evening begins.) Some documents would suggest something in the 4 p.m.-4:30 p.m. timeframe–or when the local bishop says–but it is not clear that these documents presently have legal force, in which case 12 noon would be case.

What we have in this case thus seems to be a doubt of law situation, and in such cases, "Laws,
even invalidating and disqualifying ones, do not oblige when there is a doubt
about the law" (Canon 14).

To apply this to your situation:

1. If you have other pressing obligations that would preclude you from going to Mass on Saturday after 2 p.m. or on Sunday then you are not obliged to go during that time. You simply have no Sunday obligation in that timeframe.
2. Since it is doubtful whether a 2 p.m. Saturday Mass would fulfill the Sunday obligation, one is not bound to go then due to the doubt of law.
3. You certainly may go to the 2 p.m. Saturday Mass, and that would be a praiseworthy thing to do, even if you are not obligated to do so.
4. The fact that the Mass is in Korean may play a role in whether you personally decide to go to it or not, but that is a matter of personal taste, not of the efficacy of the Mass for fulfilling one’s obligation when one exists. The Church has never regarded it as essential for going to Mass that you speak the language in which the Mass is conducted. The Mass is primarily a vertical experience in which we relate to God by going to be with him and worship him, even if we cannot speak the language of those around us. You can still derive great spiritual benefit from going to a Mass in a language you don’t speak because your linguistically-challenged state does nothing to prevent you from thinking about and worshipping God in your heart, receiving Jesus in the Eucharist ("Amen" is still "Amen" in Korean when you receive Communion), or even following the general structure of the Mass. There also may be a Korean-English translation available in the Missal, who knows.
5. If you go, "hello" in Korean is "Annyong haseyo" (Ahn-yong ha-say-yo). Smile and wave when you say it. Or bow if you use it at the sign of peace. (They’ll know what you mean.)

Hope this helps!

20

The last few days we’ve been having commentary from Thomas Sowell on the need for judges to read the law instead of trying to make the law.

How far things have gotten out of whack is illustrated by

THIS STORY.

It’s an op/ed piece titled "High Court Must Protect Innovators" and has to do with the Grokster case, whereby Grokster is being sued because users of Grokster are trafficking in illegal music and movie downloads.

Unless they’ve got evidence that Grokster is encouraging users to do this (and I don’t know whether or not they do), my sense is that Grokster ought (that’s a moral ought, not a predictive ought) to prevail. If you’ve got a network that has legitimate purposes some or even many are putting to illegal purposes then the preferred remedy would be to go after the people putting it to those purposes rather than the people who established the network.

F’rinstance: People must connect to the Internet in order to illegally download stuff. If any network that is being used by such people is liable for damages then the recording and motion picture industries might as well SUE YOUR INTERNET SERVICE PROVIDER since some people using it are undoubtedly using it for illegal downloads. That logic would shut down the Internet.

Now, I know that someone can argue that a service like Grokster is more proximate to the practice of illegal downloading than your ISP is, but still: If something (e.g., a knife) has a legitimate purpose (cutting food) but also may be put to an illegitimate purpose (stabbing someone), the preferred solution should be to go after the person who is putting it to the illegitimate purpose (the stabber) instead of the person who made it (the knife manufacturer).

You might agree or disagree with me on that, but consider the headline of the editorial I linked: "High Court Must Protect Innovators."

It’s true that if innovators like Grokster aren’t protected then it will cramp technological and (ultimately) economic development, but in what way are Our Robed Masters being asked to protect innovators?

If "protecthing" innovators simply meant reading what’s in the law and applying it because the law says that innovators must be protected, well and good. But if it means creating policies not called for in the law then it’s an appeal to judicial subversion of the democratic process.

Which is the author of the editorial calling for? Consider:

Unless the courts maintain a proper balance between protecting
innovation and discouraging piracy, the steady pace of technology
advancement we have come to expect over the years could be in jeopardy.

So the Court is being asked to strike a balance between competing interests (the need for innovation and technological advancement vs. the needs of intellectual property rights holders).

I’m sorry, but isn’t striking balances between competing interests the business of legislatures rather then courts? We’re talking public policy here, guys. Judges should not be striking public policy balances. That’s what legislators are for. Judges should simply be making determinations of fact concerning whether a particular situation falls within the law that the legislators enacted or not. If it ain’t clear then the legislators should clarify the law. Judges shouldn’t simply make up their own standards to cover sloppy law writing by the legislatures.

The expectation that the editorial writer seems to have that courts should do the work of legislators is deeply troubling, but it’s what both the behavior of the Court in recent years has fostered, as well as what legislators themselves have been doing: The rigor of law-writing in the U.S. has suffered because legislators feel free to throw together a bunch of words that gesture in the direction of what they want to happen because "the courts will sort out" the details.

We as individuals don’t need to really worry about judicial tyranny because the decisions on which Darth Kennedy and Our Robed Masters are judicial fiating so badly concern issues that may affect other people (like abortion and homosexual "marriage") but that don’t affect most of us who are just trying to make a living. Right?

WRONG!

That’s what Thomas Sowell says in the conclusion to his recent trilogy on judicial tyranny.

EXCERPTS:

People who complain about the frivolous lawsuits that have outraged some and ruined others financially need to connect the dots to the present Senate controversy over the confirmation of federal judges.

Once judges start disregarding the written law in favor of their own notions, ordinary citizens have no way of knowing in advance what decisions to expect from a given situation. We can read the written law but we cannot read judges’ minds. This means that there is a large and growing gray area around our laws.

That large gray area is a happy hunting ground for lawyers, who can threaten individuals, businesses, and even government agencies with frivolous lawsuits — and get paid off to settle out of court, because nobody knows what is likely to happen in court.

Imagine what would happen if highway signs, instead of saying "65 MPH" said "No Undue Speed" or "Prudent Driving." The lawsuits over traffic laws alone would clog our courts to a standstill.

As bad as uncertainty is to people being sued, it can be worth millions of dollars to a slick lawyer who knows how to concoct frivolous lawsuits and extort money for settling out of court. Such lawyers head for places where there are big bucks — "deep pockets," as they are called.

Among the reasons why this affects ordinary people is that many deep pockets get their money from a lot of much shallower pockets.

When your insurance company has to buy its way out of a frivolous lawsuit, guess whose premiums go up. When developers who are trying to build homes or apartment buildings get sued at every turn by environmental extremists, guess what that does to the rent of apartments and mortgage payments for those who buy houses.

GET THE REST.

NOTE TO THE STATE OF CALIFORNIA: Judges who are willing to give evironmental extremists what they want may be a chunk of why housing prices in the state are so INSANE and why so many businesses are re-locating out of state.

We as individuals don’t need to really worry about judicial tyranny because the decisions on which Darth Kennedy and Our Robed Masters are judicial fiating so badly concern issues that may affect other people (like abortion and homosexual "marriage") but that don’t affect most of us who are just trying to make a living. Right?

WRONG!

That’s what Thomas Sowell says in the conclusion to his recent trilogy on judicial tyranny.

EXCERPTS:

People who complain about the frivolous lawsuits that have outraged some and ruined others financially need to connect the dots to the present Senate controversy over the confirmation of federal judges.

Once judges start disregarding the written law in favor of their own notions, ordinary citizens have no way of knowing in advance what decisions to expect from a given situation. We can read the written law but we cannot read judges’ minds. This means that there is a large and growing gray area around our laws.

That large gray area is a happy hunting ground for lawyers, who can threaten individuals, businesses, and even government agencies with frivolous lawsuits — and get paid off to settle out of court, because nobody knows what is likely to happen in court.

Imagine what would happen if highway signs, instead of saying "65 MPH" said "No Undue Speed" or "Prudent Driving." The lawsuits over traffic laws alone would clog our courts to a standstill.

As bad as uncertainty is to people being sued, it can be worth millions of dollars to a slick lawyer who knows how to concoct frivolous lawsuits and extort money for settling out of court. Such lawyers head for places where there are big bucks — "deep pockets," as they are called.

Among the reasons why this affects ordinary people is that many deep pockets get their money from a lot of much shallower pockets.

When your insurance company has to buy its way out of a frivolous lawsuit, guess whose premiums go up. When developers who are trying to build homes or apartment buildings get sued at every turn by environmental extremists, guess what that does to the rent of apartments and mortgage payments for those who buy houses.

GET THE REST.

NOTE TO THE STATE OF CALIFORNIA: Judges who are willing to give evironmental extremists what they want may be a chunk of why housing prices in the state are so INSANE and why so many businesses are re-locating out of state.

Down yonder some folks have been discussing what canon law would say about Michael Shiavo getting married to his common-law wife if he’s successful in bumping off his actual wife.

This raised the issue of crimen or the impediment of "crime," which is described in canon 1090.

Assuming he’s Catholic (something of which I have no knowledge but which may be the case), Michael Schiavo may be a potential subject of Canon 1090, which states:

§1. Anyone who with a view to entering
marriage with a certain person has brought about the death of that person’s
spouse or of one’s own spouse invalidly attempts this marriage.

§2. Those who have brought about the death of a
spouse by mutual physical or moral cooperation also invalidly attempt a
marriage together.

Michael could be impeded from marrying his common law wife under section 1 if he has operated alone in trying to bring about Terri’s death, though the impediment could also arise under section 2 if his common-law wife has cooperated with him in bringing about Terri’s death. Since I don’t know what his common-law wife may or may not have done, let me focus on section 1:

The central question is whether Michael is trying to kill Terri in order to marry his common-law wife. If he is trying to murder her for reasons unrelated to marrying his common-law wife then this canon would not be triggered.

If, after Terri’s death, especially if it were soon after Terri’s death, he sought to marry his common-law wife then that would be evidence that the murder was performed at least in part to facilitate this and thus that he was impeded from marrying her.

Note that the canon speaks of performing the crime "with a view to" marrying someone. This suggests that the canon is triggered even if the death is not done principally for the sake of marrying the new person. One could have additional motives for wanting to kill one’s spouse. For example, if Michael wanted to kill Terri (a) because he stands to gain money by doing so and (b) because he’s afraid of what she might say about him should she ever recover and (c) because he wants to marry his common-law wife then reason (c) alone would seem to trigger the canon as the killing was done "with a view to" (c) even if (a) or (b) were the stronger motives. (Mind you: I’m not saying that Michael has motives like (a) or (b), nor am I saying that he has motive (c); I don’t even know if he’s Catholic; I’m just illustrating a point of Church law.)

Note that the canon speaks of performing the crim in order to marry "a certain person." There has to be a definite person with respect to whom the crime is committed. If one were to kill one’s spouse simply to be able to remarry, but without having a certain person in mind, then the canon is not triggered.

Note also that the canon speaks of one who has "brought about the death" of a spouse. This is different than murdering the spouse. Whether something counts as murder tends to be a matter of the civil law, and so even if the state of Florida does not judge Terri’s killing as murder, the canon would still seem to be be triggered as Michael would have still "brought about the death" of Terri though a perversion of the civil law. (NOTE: Accidents don’t count under this canon unless the "accident" is brought about deliberately. True accidents are, well, accidents, and thus are not done "with a view to" anything. Thus if you and your spouse are Darwin Award stupid and are having a happyfun game of toss the rattlesnake and one of you dies, it doesn’t trigger the canon.)

The canon does not require any judicial process to take it’s effect. It’s automatic. If Michael brings about Terri’s death in order to marry his common-law wife (and if he’s Catholic) then he’s impeded from marrying her. Whether his having done so is provable in an ecclesiastical court is a separate matter, but he’s impeded from marrying her whether it’s provable or not. If he tries to marry her soon after Terri’s death, that would seem to establish a presumption that he did so and is thus impeded.

The impediment also is not removed if he defects from the Church by a formal act. Defecting from the Church by a formal act would avert the impediment of failing to observe the Catholic form of marriage, but failure to observe form is a different impediment than this one, and there is no removal of this impediment by leaving the Church. If he ex-Catholicizes himself then he is still impeded from validly contracting marriage with the woman.

He would not, however, be impeded from contracting marriage with a different woman. The canon says that he "invalidly attemts this marriage" where "this marriage" refers to the marriage for whose sake the killing is done. If he killed Terri in order to marry his common-law wife and then, afterwards, concludes "Well, enough of you" with respect to the common-law wife and marries somebody else, he would not be impeded in that case. He’s only impeded from marrying the woman for whose sake he committed the crime.

Finally, all of this hinges on one other fact: that he is actually validly married to Terri. If he’s not validly married to her then the canon would not be triggered as she would not in actuality be his spouse. If, purely for purposes of example, he was always such a twisted individual that he failed to exchange valid matrimonial consent with Terri such that she was his wife under civil law only and he then bumped her off then the canon would not be triggered.

It might ought to be. The next time the Code gets revised or amended they might want to strengthen this canon, but as it is

Laws which
establish a penalty, restrict the free exercise of rights, or contain an
exception from the law are subject to strict interpretation [canon 18].

Since canon 1090 restricts the free exercise of a right (the right to marry), it has to be given a strict interpretation, and so there would be a number of matters (such as those described above) in proving that Michael had triggered the canon.

(Cowboy hat tip to the reader who e-mailed to make sure I took note of the combox discussion.)

In a sequel to the column quoted yesterday, Thomas ("He’s So Smart") Sowell continued to address the theme of judicial tyranny.

EXCERPTS:

One of the big confusions in the impending Senate fight over the confirmation of judicial nominees is that this is an issue about "liberal" judges versus "conservative" judges. The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge’s own philosophy.

The more we can keep judges’ philosophy out of our legal system, the more we approach the ideal of "a government of laws and not of men."

The issue of judicial activism is not just an issue of the moment. It is an enduring issue of great moment because it means the erosion of the American people’s Constitutional right to govern themselves. If activist judges are allowed to continue to become increasingly our real rulers, what are elections for? Just to provide jobs for politicians?

Public acceptance of judicial coups has only led to increasing audacity in words and deeds by activist judges. Justice AnthonyDarth Kennedy’s recent decision banning the execution of murderers under the age of 18 was a classic case in point. It was based, he said, on "evolving standards" and a "national consensus," as well as on what people were saying in other countries. Even if all of this were true, none of these things is statutory law, much less the Constitution of the United States.

It is incidental that these things are not all true. What do pretty words like "evolving standards" mean except that some people agree with you, even if the law says nothing of the sort? As for a "national consensus," we have elections to determine that and judges have no special expertise as pollsters.

What all this vaguely romantic verbiage boils down to is that judges can treat the Constitution as simply a grant of power to act as philosopher kings and respond to whatever constituency they prefer to the voting public. That is lawless law.

Such judicial behavior is not going to stop until it gets stopped.

GET THE REST.