What Universi Dominici Gregis Does—And Doesn't—Prohibit

It is very disappointing that many Catholics are apparently disposing themselves to doubt the validity of the upcoming conclave before it has even begun. These doubts seem to be driven by an overly legalistic readings of John Paul II's Universi dominici gregis, the late pontiff's 1996 Apostolic Constitution on choosing the successor of St. Peter.

In What Sense is the Pope Above Canon Law?

A common refrain when from hyperpapalists when the pope disregards canon law by his actions is, "So what? He can do that. The pope is not bound by canon law." 

It is, of course, true that the pope is not bound by any human law, including ecclesiastical law. Not only is this due to the pope's status as the supreme juridical authority within the Church, but also because the pope himself is a source of canon law. Since canon law is subject to the authority of the Supreme Pontiff, it is clear that is cannot be bound by it in any coercive sense.

Does this literally mean, however, that the pope can break canon law at will as a normal exercise of his authority? When the pope violates canon law, is this to be understood as a legitimate exercise of his juridical authority?

The Cardinalate's 80-Year Rule—A Critique

[July 15, 2023] Most Catholics are familiar with the rule that cardinals lose their right to vote in papal conclaves if they turn 80 before the papal throne falls vacant. [1] This rule comes from Paul VI's 1970 motu proprio Ingravascentem Aetatem, which stated that cardinals "lose the right to elect the Roman Pontiff and therefore also the right to enter the Conclave" upon the completion of their eightieth year. [2] According to the motu proprio, this rule was instituted because—

Statistics on Motu Proprios 1978 - Present

[Apr. 16, 2023] A few days ago I saw an interesting tweet by Matthew Hazell noting that in 2023 alone Pope Francis has already issued 50% more motu proprios than Pope Benedict had throughout his entire pontificate.

The point got me wondering what subjects have occasioned motu proprios in recent history. I began reviewing the motu proprios of the last three popes, comparing not only how many but their purpose. The following are some statistics my cursory research revealed. 

Another Bold Stroke from the Pope of the Peripheries

On June 15 Pope Francis issued rescript changing Canon Law. The rescript, which takes immediate effect, prohibits any diocesan bishop from erecting a Public Association of the Faithful wishing eventually to become an institute of consecrated life or a society of apostolic life without explicit written permission of the Vatican Dicastery in charge of such institutes/societies. Essentially, the Vatican has assumed control over the establishment of all religious communities and priestly orders. 

Though it is not specified, it is assumed that this is primarily aimed to halt the formation of new traditional associations. It is clear from numerous statements by Francis—including his screed against traditionalist "restorers" made only one day before the issuance of the rescript—that Francis considers traditionalists the greatest threat to the modern Church. I have seen some banter online of people saying, "Don't assume this is about traditionalists" and "traddiedom is not the center of the Church." But to Francis it is. To Francis, traditionalism is the great enemy of his time. And he has not attacked any other segment of the Church as he has traditionalists. Therefore it is more than reasonable to assume this rescript is issued with traditional Catholics in mind.

The Dicastery in reference is run by de Aviz and Carballo, whom Dr. Kwasniewski referred to as "progressivist thugs", a sentiment I completely agree with. The chances of any traditional association receiving the requisite institutional approval from these gatekeepers is nonexistent.

I offer a few reflections on this development:

1) The Total Overthrow of Institutional Credibility

The Catholic Church has spent the last several decades destroying its institutional credibility, at least understood from a human perspective. The Church once possessed great institutional credibility; I am continually amazed, when I read histories of ecclesiastical events of the pontificates of Pius IX or Pius X, how the mere hint that the pope or some Congregation wanted something was enough to compel complete obedience, even beyond what the authorities asked for. But those days are long, long gone. The Church itself has continually debased its own institutional credibility since Vatican II by torrents of abuses gone too long unchecked, by the stream of garbled nonsense that is ceaselessly vomited out of the Vatican, and by unjust persecutions of Catholics whose only crime was to hold their tradition too dearly. The Church has spent a generation cultivating the mindset that the letter of the law doesn't ultimately matter; the "spirit" and the "signs of the times" are much more important. 

Thus, having worked so hard to enthrone the spirit, it is laughable that the Vatican now thinks it can rule by the letter; having spent a generation undermining the value of the letter, it now wishes to subvert the authority of every bishop by pen stroke. It is almost comedic. Liberals have long ignored the letter of the law; and Traditionalists have realized the implementation of the law is hopelessly stacked against them. The only ones still trying to square the circle are the naïve neo-Catholics, who have their heads so deep in the sand they can see Beijing. Traditionalism arose despite the letter of the law and it will not be crushed by the letter of the law—especially a law whose import has been eviscerated by decades of the Vatican's selective interpretation.

2) Necessity of New Models of Organization

But if no more traditional institutes are allowed to be erected by bishops on their own initiative, how shall we escape the letter of the law? The answer is simply that we will have recourse to organizational models not envisioned by the current canonical strictures. I refer you to an article called "Into the Woods" I wrote in 2018 in the aftermath of the Congregation for the Institutes of Consecrated Life document Cor Orans, which essentially revolutionized the way women's religious communities governed themselves. The gist of the essay is that as the institutional Church becomes more untrustworthy under the current zeitgeist, traditional movements will be more about living a certain lifestyle than obtaining any specific ecclesiastical status. The Vatican might regulate the episcopal erection of new religious institutes, but it can do nothing against a group of individuals living together and making their own private vows. It may prohibit the creation of a new priestly society dedicated to the Traditional Latin Mass, but it cannot prohibit priests who love the Traditional Latin Mass from organizing on their own outside of official channels. It may prohibit the Latin Mass being said in diocesan parishes, but it cannot prevent it being said in private venues. The Church can shove the NAB and the Liturgy of the Hours at me as much as they please, but they can't prevent me gathering with likeminded men to pray the traditional Divine Office in Latin. Whatever we want done, we are going to have to do it ourselves—not by going "against" ecclesiastical authority in any schismatic sense, but by merely operating in spheres where ecclesiastical authority has no say. This is how Christendom was built; St. Benedict had no episcopal letter when he clambered up the slopes of Mount Subiaco and wandered into a cave.

3) Machiavellian Delegation and the Farce of Synodality

In case anyone had any shred of doubt left, this should make it perfectly clear that Pope Francis's ideas about "decentralization" and "synodality" are farcical. The same pope who allegedly wants to allow local bishops' conferences to make true doctrinal judgments also wants to tell bishops what organizations they can and cannot erect in their own dioceses. This is the same pontificate that, in the explanatory letter after Traditionis Custodes, purported to tell individual parishes what they could and could not advertise on the parish website or in the parish bulletin. The same pontificate who has systematically dismantled the independence of various religious orders and trampled on their charisms. Decentralization and synodality indeed!

Francis does not, and has never wanted, decentralization. Rather, he believes in what I would call Machiavellian delegation. Actual decentralization is too risky. After all, bishops like Cordileone and Mutsaerts exist, and we can't risk allowing more space for their ideas. He lacks the testicular fortitude to throw the cards to the wind and see where they land. Actual administrative control must be centralized as much as possible. But, since Francis is the pope of the peripheries, he needs his more revolutionary bold-stroke changes to appear to come "from the people"; after all, if everything were imposed from top down, it would merely reinforce the caricature of Francis as a dictator pope. So certain things are strategically delegated to local churches where and when Francis knows they will return a result favorable to his overall agenda.  In this way the most radical changes can appear to have come "from the peripheries," their adoption being presented not as a bureaucratic fiat but as yielding to the vox populi that the God of surprises foists on us. It is a machination worthy of Pontius Pilate. To put it bluntly, power is centralized, but revolutionary change is outsourced. If I were to illustrate the movement of Machiavellian delegation, it would look like this, where Rome is the yellow dot and "the peripheries" are the blue:

Taking control of religious orders and priestly societies? That power can be assumed by Rome. Married viri probati clerics? That change must come from the Amazon. Regulating the Latin Mass and forbidding parishes to advertise it? That power can be assumed by Rome. Allowing Holy Communion for the divorced and civilly remarried? That change must come from Germany. Of course which specific "peripheries" this radical change is outsourced to are matters of calculated deliberation; you'll never see the Vatican allowing the African bishops to take the path of synodality when it comes to handling same sex marriage. It's all carefully crafted theater rigged to return pre-determined results.

4) We Follow the Way

For us, though, this is ultimately about a way of life, not who has institutional control. I don't mean to downplay the importance of institutional control; and God willing, one day, the institution will be better, the ship's course will be righted, and mother will not be drunk anymore. Until that happens, however, what we are seeking is a way of life. In the New Testament and the earliest Christian writings, the Catholic faith was referred to as "the Way," and Christians were called "followers of the Way." This sort of thinking has greatly benefitted my own spiritual life during these difficult times. I am seeking a city whose builder and maker is God (cf. Heb. 11:10). The regime the Church finds itself under can annoy me, make me drive a little farther, make me jump through a few more hoops, make me roll my eyes, but it can't ultimately stop me from following the path our Lord Jesus has laid out. It cannot stop me from living the Faith of our ancestors and loving our traditions. 

But if things get so bad that I am deprived of certain spiritual benefits through no fault of my own, will God hold me to account? Certainly not. "For," the Scriptures say, "if the readiness is there, it is acceptable according to what a man has, not according to what he has not" (2 Cor. 8:12). This means that if I earnestly will to follow God with my whole heart, I cannot be judged for what I lack, only what I have. It's not about how many talents I have, but what I do with whatever amount has been entrusted to me. God chose you to live in these times. He wants you here. And if we believe at all in God's Providence, that should be a very encouraging thought. The pope can make certain aspects of my external observance difficult, but he cannot touch the pearl of great price. "My Father is greater than all...and no one is able to snatch them out of my hand" (John 10:28). The corrupt regime in Rome is only able to knock me off the path to the degree that I let them. 

Stand Fast

So stand fast, brethren. Follow the Lamb wherever He goes. Purify your hearts, so you can hear His voice. And remember, "Neither death, nor life, nor angels, nor principalities, nor powers, nor things present, nor things to come, Nor height, nor depth, nor any other creature, shall be able to separate us from the love of God, which is in Christ Jesus our Lord (Rom. 8:38-39).

Cardinal Cicognani on Canonical Dissimulation

The weeks since the promulgation of Traditionis Custodes have seen various efforts to formulate a canonical response to the document to allow maximum freedom in its implementation.

Most traditional apologists have latched onto Canon 87, section 1 of the Code of Canon Law, which says that "A diocesan bishop, whenever he judges that a dispensation will contribute to their spiritual good, is able to dispense the faithful from universal and particular disciplinary laws issued for his territory or his subjects by the supreme authority of the Church." Bishop Thomas Paprocki of Springfield, Illinois invoked this canon in his dispensation from the provision of Traditionis Custdoes.

There is another approach, however, and this is the canonical principle of dissimulation. Whereas dispensation is the exemption from the obligation of the law in certain cases, dissimulation is the non-enforcement of the law in circumstances where enforcing the obligation would cause greater problems than non-enforcement. Dissimulation is an option for the bishop to simply not enforce the law.

If we consult the magnum opus of the great 20th century canonist Amleto Cardinal Cicognani (1883-1973), Canon Law: Commentary on Book One of the New Code (1935), we find a section on canonical dissimulation. Cardinal Cicognani says:

A distinction should also be made between dispensation and dissimulation, whereby a superior, without removing the law's obligation, permits its transgression to go unpunished that greater evils may be avoided. Dissimulation is a true juridic procedure, as may be gathered from the numerous canonical documents, wherein it is stated: "dissimules", or "dissimulare poteris" (you may dissimulate). For in some cases it is very difficult, or even impossible, to enforce a law, and to dispense from it is inexpedient or impossible because the superior lacks the necessary power. Hence at times it is expedient for the superior to dissimulate, to assume a passive attitude—which is permissible even in matters that concern natural or divine law—from which no precedent is established; however, the superior, because of his dissimulation, can take no action in the external forum against transgressors, nor are invalid acts avoided officially.

Connivance or dissimulation is frequently confused with toleration. They differ in this respect, that connivance is a feigned ignorance of transgressions of the law in order that measures may not be taken against them; whereas toleration not only feigns ignorance but grants the transgressor complete liberty of action and freedom to continue. Hence toleration is not employed in matters that are contrary to faith and morals, and with respect to acts that are patently invalid. Furthermore, toleration settles the point at issue by a "tolerari potest" decree, whereas connivance (dissimulation) can be nothing more than a temporary measure. [Cardinal Amleto Cicognani, Canon Law, 2nd ed (Dolphin Press, Philadelphia, 1935), pg. 830-831]

There are a few takeaways here:

First, dissimulation is a "true juridic procedure". That is, it is a legitimate canonical response to a law, not a mere shirking of duty or abdication of responsibility. 

Second, dissimulation is appropriate in situations where it is better to permit a transgression to go unpunished "that greater evils may be avoided."

Third, it is permissible "even in matters that concern natural or divine law."

Fourth, though Cicognani's book was written with reference to the 1917 code, he is not here addressing the text of any specific canon; rather, he is explaining a legislative principle that is found throughout the Church's canonical tradition. It would certainly still be applicable today under the 1983 code.

There is a strong argument that the principles of canonical dissimulation apply in the case of Traditionis Custodes. In the weeks since the document's promulgation, there has been a surprisingly resounding chorus or protest against the hubris, overreach, and cruelty of the document. Even liberals, non-Christians, and atheists have gone on record saying the motu proprio is unnecessarily harsh (a roundup of notable responses to Traditionis Custodes can be found on New Liturgical Movement). The majority of bishops globally seem to believe the implementation of the motu proprio would be problematic, as evidenced by the vast majority of bishops choosing to avoid enforcing the document. As of August 1, 2021, the status of the Traditional Latin Mass globally is as follows:

It is still early and many of these responses are provisional, but they clearly evidence that the global episcopacy is not keen on enforcement. The chaos it could cause amongst traditional communities within a diocese, the multiplication of ill will, the logistical difficulties of relocating peaceful traditional communities, and the horrific canonical confusion of the document itself—not to mention the radical curbing of episcopal autonomy— create a disaster that bishops find best avoided. This seems like a prime case where dissimulation would apply.

Note that it can be permissible "even in matters that concern natural or divine law", so the Sacred Liturgy would certainly fall within that purview.

When would dissimulation be a better approach than dispensation? Perhaps in situations where a bishop, for reasons of Church politics, wishes to avoid enforcing the document but also does not want to "go on record" as opposing the pope. It would also be ideal in situations where too much time has elapsed for the "we're studying the document" is no longer believable.

Ultimately, the bottom line is that canon law contains an option for bishops to say, "This would be a shit show if I enforced it. I'll pass." I do not say this would be a better strategy than dispensation in the long run, but it is another strategy. And we need to be aware of every tool we have at our disposal.

When a "Good Priest" Goes Bad, and What We Can Take Away from the Case of Fr. Leatherby

 

Editor's Note: Maximus is a long-time collaborator of the USC blog who has recently begun contributing again. He has advanced degrees in theology and a long history of working for the Church at various levels. On this feast of St. Maximus, we are glad to welcome this guest post.

The recent account of things coming to light in the Sacramento Diocese should be disturbing to any member of the Faithful, and particularly those who would consider themselves "conservative" or "orthodox" Catholics. The story starts off as a familiar one: a conservative priest is removed from ministry allegedly for being too conservative. Those on the right defend the priest, vilify the local ordinary (who is decried as a liberal or anti-life or any other number of easy labels for political expediency), and persist in a campaign to "get their priest back". Those on the left decry the hypocrisy of the right, by manifesting the double-standard held by the defenders on the grounds that "at worst, the it's only a sin between heterosexual, consensual adults". The right shouts back and says, "but those gay priests got off without a warning!"

A mess to be sure, and what-about-ism cannot be the way forward. Inevitably, events transpire that begin to leak so-called facts, and then the cycle concludes with a trial by public opinion, an even more divided laity, a distrust in the hierarchy, and a tarnished witness of the Body of Christ to the world.

We've heard this before.

At the risk of contributing to the undue continuance of the news cycle around this issue, I'd like to comment upon a few important details that may get lost in the noise, in hopes that we can do better in the future.

1) It seems that there has been a real failure -- or at least a manifestation of the real poverty -- in our canonical systems. It may not be popular, but I believe His Excellency, Bishop Jaime Soto when he says that the process has extended out of his hands. It is also not surprising that the family and local congregation would support a priest who is by all accounts conservative, charismatic, and a sign of contradiction in our world over and against a local ordinary, who, like so many ordinaries in the Church today, is not known personally by the community but is perhaps seen as a distant administrator rather than a shepherd.

2) AND YET, to focus on the moral issue and the lagging canonical process that has not yet been resolved IS TO MISS THE POINT ENTIRELY. The primary documents that were either distributed publicly or else leaked demonstrate in abundance that the recent confirmation of excommunication by the Bishop is not at all in relation to the moral life of a priest, but rather is a far graver crime than that of morals. While inappropriate relationships in the closed forum undoubtedly cause damage to the individuals involved and consequently to the Body of Christ, the crime of schism is a direct assault on the whole of the Body itself. Moreover, the public manifestation of errant teachings brings with it the consequence of leading so many members of the faithful astray, who, through little fault of their own simply wish to follow the pastor they trust -- even if that is off a cliff.

3) The public airing of the allegations pertaining to the alleged moral indiscretions of the priest is an injustice to all. As difficult as it has surely been for the lay faithful not to have received any specific clarifications on the allegations from the Bishop, IT IS NOT THE RIGHT OF THE FAITHFUL TO KNOW THESE THINGS. The priest, even though suspended, has a right to a good name. In the modern West, we are too quick to project our alleged "right to a public trial" on to the processes of the Church. And yet, we have no such right to know. Let us imagine, for a moment, that Fr. Leatherby, who admits his guilt on the one hand but on the other strongly objects to the degree of the guilt to which he is being accused, is telling the truth. Will he be able to get a fair trial? And if so, would he be able to ever exercise ministry again? Not in any country that has access to the Internet.

4) The specific allegations revealed in the Catholic Herald bear a haunting resemblance to another story made public. This concurrence of stories about two conservative clerics who both studied at the Pontifical North American College in Rome at the same time should bring up alarm bells for the reader. How did these priests come to fabricate these "rites" and plan to carry them out on the faithful? Is there a network of predator conservative priests being formed at the NAC? Or, is this simply a case of "hell hath no fury like a woman scorned," who latched onto a story floating around at the time she was being questioned? Frankly, I don't know and I am trying not to be overly curious -- we shouldn't even know these details, and this is the entire purpose of a tribunal process: to discover the truth insofar as it is able to be discovered, and to pass a judgment on the thing without the scrutiny of voyeurs from the outside.

5) If the report from the Diocese, that they would support Fr. Leatherby's request for laicization, is correct, this too is an injustice. It is an injustice because the trial regarding the crimes of a moral nature need to be brought to their proper conclusion for the sake of the alleged victims. It is an injustice because the crime of schism of a priest should be given a just sentencing, not a get out of jail free card so that this priest according to the order of Melchizedek can start up his own "independent 'catholic' church" with valid but illicit sacraments. It is an injustice because it may very well be that the salvation of Fr. Leatherby is dependent upon the tough love of a Mother rather than a laissez-faire policy regarding schism, one which embodies the spirit of the age, with the instruction"you go and do you, and that's okay".

Some other, secondary, remarks:

1) If the individual crime of schism is a serious one, the "Bene-vacantism" represented here is not a serious schism, but a fashionable idea that will die off in due course. Its telos is either sedevacantism outright, or else it is merely a weak tantrum akin to a teenager who lashes out after having done something wrong. Those who follow this route will most certainly be reconciled before the final judgment -- indeed, Fr. Leatherby's letter indicates that he is open to the possibility of correction of an error of fact (i.e.: who is in fact the pope). For the student of history, it should not be a surprise that when two people style themselves as pope in their external adornments and titles, that there would be confusion in the minds of the faithful. Let us pray that this... situation... does not endure for too much longer.

2) The 350+ lay faithful who have been led astray need some serious pastoral accompaniment. It may be that the Bishop is too distant and perceived as the bad guy to directly lend a hand, but perhaps their pastor/s can be given the Bishop's confidence and support in this effort.

3) We should pray for Fr. Leatherby, for his renunciation of error, and that he will be granted the grace of humility, to seek the solitude of a monastery where he might pray and offer penance for his grievous wounds on the Body of Christ. Perhaps, following the lead of His Excellency's invocation, those who are concerned for this priest (and not merely titilated by the thrill of a good priest gone bad) would consider a novena for his repentance and conversion. Considering the time of year, I would propose holding this novena from the Vigil of the Assumption (Aug. 14th) through the feast of the Queenship of Mary (Aug. 22nd). Here's a good novena.

In conclusion, I earnestly hope that there is justice for all involved in what has now become a 3-ring circus. Schism is never a good thing, and this should not be obfuscated because of alleged improprieties that have not yet been given a final judgment. That these two would be conflated, or that schism would even be eclipsed by crimes of a more private nature, simply does not bode well about the outcome.

Oremus pro Ecclesiam!

Comments on the "Open Letter to the Bishops of the Catholic Church"

The past week has been full of discussion on the "Open Letter to the Bishops of the Catholic Church", a remarkable document put forward by a group of nineteen Catholic theologians and academics which—to use a phrase that has become all too familiar—makes "credible accusations" of heresy against Pope Francis and calls upon the bishops of the world to take some sort of action in rectifying the situation. If you have not yet read the "Open Letter", you can do so here.

1. The letter makes a very comprehensive case, drawing not only on particular statements of Pope Francis, but also his responses to the heretical statements of others (for example, the heretical interpretation of Amoris laetitia  published by the bishops of Buenos Aires in 2016, to which Pope Francis replied with a letter saying their document "completely explains the meaning" of Amoris laetitia and that "There are no other interpretations", a statement which he then had published in the Acta Apostolicae Sedis, the official compendium of his acta). The Open Letter also deals with Pope Francis's very troubling clerical appointments. Some Catholic apologists have been quick to point out that things like episcopal appointments or how the pope responds to news are not evidence of heresy, just like remaining passive or silent in response to requests for clear teaching is not heretical either. But I think these critiques miss the point; the Open Letter does not attempt to provide a single "gotcha" piece of evidence that presents and open and shut case for the pope's heresy. Rather, it attempts to show a general trend or broad disposition towards heresy on the part of the pope with several of the most striking examples highlighted as evidence. It is what Joseph Shaw referred to as a "promulgation [of heresy] by drift." And understood in this sense, it is brutally effective. Although I also tend to think that the examples are convincing taken individually as well.

2. Predictably, the Open Letter provoked responses from some who retreated to the tired old neo-Catholic canard that the signatories of the letter "should have gone to the pope directly" before airing their grievances publicly, or "going to their bishops in private first." Dr. Maike Hickson of LifeSite has written a remarkable piece chronicling around 30 times Catholics have reached out to Pope Francis—directly or indirectly—to clarify his teachings prior to the publication of the Open Letter. Her article ("Before Pope Francis was accused of heresy, Catholics reached out to him numerous times", May 9, 2019) is a must-read in order to understand the Open Letter in its historical context as the final recourse after the Dubia, Filial Correction, and many other attempts at communicating with Francis directly bore no fruit. Indeed, the publication of the Open Letter was not some rash screed hastily pumped out by a cadre of die-hard anti-Francis fanatics chomping at the bit for any excuse to attack the pope; rather, it represents the culmination of a long, exhausting series of attempts to reach out to Francis through the proper channels and is really a document of great restraint and patience. I commend the authors for taking this bold step. No Catholic rejoices or feels good about having to call out the pope; their actions must have been born out of deep concern for the Church and the good of souls and they should not be vilified for doing what was withing their canonical right and what their conscience dictated.

3. Christian charity demands that, when assessing the faults of others, we presume the best about them rather than the worst; in other words, we give them "the benefit of the doubt." But to give some one the benefit of the doubt presumes that there is room for doubt—it presumes that there is a certain ambiguity in how we interpret words and actions. And if there is ambiguity, we assume the best. But there is a huge difference between offering the benefit of the doubt and always being able to fabricate a benefit of the doubt. I have written about this before ("Benefit of the Doubt Presumes Doubt", Jan. 2017); in the case of Pope Francis, his litany of troubling statements and actions is so consistent that it is no longer realistic for a reasonable person to doubt the meaning of Francis's words or the intentions behind his initiatives; whether we look at the humorous Pope Francis Little Book of Insults or the more scholarly Denzinger-Bergoglio, the pontiff's thought is clear: he believes traditional Catholicism is a stuffy, hypocritical affair that keeps people from Christ and promotes "triumphalism" and "elitism." Heck, he even thinks standard Novus Ordo Catholicism is too stuffy; to that end, he intends to irreversibly reform global Catholic identity in the likeness of the most derelict Latin American banana-republics. It has gotten to the point where people who deny there is an issue are quite simply burying their heads in the sand.

4. Some bloggers are contending that the evidence is not sufficient to charge the pope with formal heresy, and therefore everything is alright. This is an incredibly simplistic and ridiculous argument. What these people fail to realize is that there is more than one way a teaching can be heretical—and I am not referring to the mere distinction between formal and material heresy. Traditionally, the Church used a gradation of judgments called theological censures. The division between heresy and orthodoxy is not necessarily black and white. There are "grades" of theological error; a statement can be not outright heretical but be simply ambiguous, for example. Or a statement may not be heretical in that it denies a de fide doctrine, but rather that its conclusions could lead to thinking that would be heretical.

Traditionally, heretical propositions are divided into three groups according as they bear principally upon (1) the import (what is said) (2) the expression (how it is said) (3) the consequences (what they lead to). Of import, we have hæretica (heretical), erronea (erroneous), hæresi proxima (next to heresy), errori proxima (next to error), temeratia (rash), etc. A "heretical" proposition is one that immediately and directly denies a de fide teaching. It is "erroneous" when it denies an article of faith that is certain (certa) but not de fide. "Next to heresy" and "next to error" means its opposition to a revealed and defined dogma is not certain, or chiefly when the truth it contradicts, though commonly accepted as revealed, has yet never been the object of a definition (proxima fidei). Something "next to heresy" could be defined as sapiens haeresim (smacking of heresy) or suspecta de hearesi, errorem (suspected of heresy or error). These are propositions which, though true textually, may due to modern currents of thought, be interpreted in a heretical way. I would say a lot of Pope Francis's most questionable statements fall into this latter category.

Next we come to the question of expression, or how the proposition is expressed. Here we can define four censures: ambigua (ambiguous), captiosa (captious), male sonans (evil-sounding), piarum aurium offensiva (offensive to pious ears), etc. A proposition is ambiguous when it is worded so as to present two or more senses, one of which is objectionable; captious when acceptable words are made to express objectionable thoughts; evil-sounding when improper words are used to express otherwise acceptable truths; offensive when verbal expression is such as rightly to shock the Catholic sense and delicacy of faith. Note that, while many pop-Catholic apologists will harp on that it is not heretical to speak ambiguously, the Church traditional theological censures to allow for a statement to be judged heretical based on its ambiguity alone.

Finally, we come to the question of consequences. Here we are dealing with what state of affairs the condemned propositions may lead to: subsannativa religionis (derisive of religion), decolorativa canodris ecclesiæ (defacing the beauty of the Church), subversiva hierarchiæ (subversive of the hierarchy), eversiva regnorum (destructive of governments), scandelosa, perniciosa, periculosa in moribus (scandalous, pernicious, dangerous to morals), blasphema, idolatra, superstisiosa, magica (blasphemous, leading to idolatry, superstition, sorcery), arrogans, acerba (arrogant, harsh), etc. This is not even an exhaustive list of the third group. Pope Francis' teachings relating to Amoris laetitia could be considered periculosa in moribus because, whether or not he has specifically stated as much himself, the fact that others are inferring heretical or immoral consequences from his words is sufficient to cast a heretical judgment upon his statements.

Let's be clear: YES, something can be heretical just based on how it is expressed. YES something merely ambiguous can be heretical. YES a statement can be heretical based on the immoral conclusions other people draw from it, even if the author does not express such intent; YES a statement can not contradict any truth of the faith itself but be considered heretical if following its implications leads to other heresy; YES something can be heretical if it is shocking to the ears of pious Catholics. YES a statement can be condemned because it is merely suspected of heresy. All of these condemnations fall short of a formal charge of heresy (explicitly and contumaciously denying a revealed dogma of the faith) but they are all gradations of heresy.

In other words, even if we were to grant a "benefit of the doubt" that Pope Francis has not promulgated a formal heresy, there are so many other ways his dubious comments could be construed as heretical or approximating to heresy that a censure would still be warranted and the pope's statements could still be considered heretical in ways that are less than formal. But nobody cares about theological censures anymore so this is just over the heads of many people.

5. The Open Letter, while accusing the pope of heresy, does not go so far as to assert that the pope ipso facto loses his office because of it. Rather, it calls upon the bishops of the Church to take action "to remedy the situation" by abjuring Pope Francis to make a public repudiation of these heresies and insist he suffer the canonical penalties proper to heresy if he does not. Although the Open Letter does not say it explicitly, it is evident that this means the loss of the papal office. I have never believed the proposition that the pope loses his office ipso facto for heresy. But I also deny that the Church (either the laity or the episcopate) has any remedy for removing a pope who does not wish to be removed. Though theologians have speculated on the ways and means for removing a heretical pope, I don't see how any of them can be affirmed without ultimately leading to some form of Conciliarism. When it comes to the theology of a papal deposition, all we have is theory—and that's not an argument against papal deposition, mind you; it's just pointing out it's never been done.

However, I think writers who stress theological opinions regarding papal deposition have ignored the fact that there is actually a large body of canonical legislation on the question; and more importantly, that this legislation is not merely hypothetical.

The Church's canonical tradition affirms a the principle prima sedes a nemine iudicatur ("The first See is judged by none"). The principle is universal; it refers to the clergy, secular rulers, as well as the laity. It is an absolute principle of papal independence against any attempt by any outside power whatsoever—even the episcopacy—to forcibly depose or judge a sitting pope. The principle prima sedes a nemine iudicatur first appears in the quasi-apocryphal Synod of Sinuessa (c. 314) relating to the problem of Pope St. Marcellinus, a pope who had apostasized under the Diocletian persecution (while, it should be noted, retaining the papal office and eventually becoming a saint). However, because many consider the acta of the Synod of Sinuessa forgeries, it is better to forgo Sinuessa and point to the historical Synod of Parma of 501-502 as the place when the principle enters the Church's canonical tradition. The pope at the time, Symmachus, was engaged in a schism with a rival papal claimant supported by the Byzantine Emperor. When called upon to pass judgment upon Pope Symmachus, the bishops at Parma declared prima sedes a nemine iudicatur ("The first See is judged by none"). And thus the concept of the immunity of the Roman pontiff from episcopal judgment passed into Canon Law.

It was reaffirmed many times. We see Pope St. Nicholas I (858-867) stating to the Byzantine Emperor that "Neither by Augustus, nor by all the clergy, nor by religious, nor by the people will the judge be judged...The first seat will not be judged by anyone" (Pope St. Nicholas I, Proposueramus quidem, Denz. 330).

 Pope Leo IX wrote in 1053 to the Patriarch of Constantinople that "By passing a preceding judgment on the great See, concerning which it is not permitted any man to pass judgment, you have received anathema from all the Fathers of all the venerable Councils..." (Pope St. Leo IX, "In terra pax hominibus" to Michael Cerularius and to Leo of Achrida, September 2, 1053, Denz. 352).

The principle was again enunciated by Pope St. Gregory VII in his famous bull Dictatus Papae, which was a collection of precedents regarding papal authority from the popes of the first millennium. There Gregory affirms that "That he [the pope] himself may be judged by no one" (Pope St. Gregory VII, Dictatus Papae, 19). The inclusion of  prima sedes a nemine iudicatur in Dictatus Papae is particularly important because Pope St. Gregory VII intended this document to be a kind of summation or syllabus of the most important, central teachings and canonical principles relating to the papacy. This principle was consistently reaffirmed in the Middle Ages and passed into the 1983 Code of Canon Law, which stipulates that no pope can be subjected to any kind of a trial. This is because he is beyond judgement (CIC 1556).

Canonically, there is no mechanism for removing a pope; not only this, but there is particular, perennial canonical legislation which specifically denies that a pope can be deposed. Even if the bishops of the world were to gather together to condemn Pope Francis of heresy, the most they could do would be to take a kind of vote of "no confidence" and plead with the Holy Father to voluntarily step down for the good of the Church. They could summon a synod, they could even declare his statements to be heretical to varying degrees; they could even declare he was "unworthy" of the papal office, as the famous Cadaver Synod did of Pope Formosus. But they could not declare he had forfeited his office—this was the exact situation the fathers at the Synod of Parma dealt with where prima sedes a nemine iudicatur was first elucdiated. They were not being asked to depose Pope Symmachus, but to declare that he was not truly pope or had forfeited his office. When called upon by the emperor to make such a proclamation, they deferred, saying no one could pass judgment on the first See. Similarly today, the bishops could not take any role in actively getting the pope out of office. They could deem him unworthy and his teachings heretical, express a statement of "no confidence", and then ask for the pope's resignation. But if he did not resign, the would not cease to be pope by the fact, and the bishops would have no power to make him step down.

Interestingly enough, when an opposing curial party wanted to get rid of Pope Stephen VI (897), they didn't depose him; they murdered him, because having the pope dead was so much simpler than dealing with the question of papal deposition against his will. I am not in any way remotely suggesting such a course be taken with Pope Francis; I cite the story as evidence that there exists no canonical way for getting rid of a pope, which is why they resorted to simply killing him.

Such are my thoughts for the time being, meager as they are. Bless you all, my brethren

The Phantasm of Fiat Continuity

Back at the Second Vatican Council, the Declaration on Religious Liberty Dignitatis Humanae made a very interesting statement. The opening paragraph of the declaration states that the document "leaves untouched traditional Catholic doctrine on the moral duty of men and societies toward the true religion and toward the one Church of Christ" - and immediately after stating that traditional Catholic doctrine remains "untouched", goes on over fifteen chapters to propose things that had never before been expressed in any official organ of Catholic teaching. Theologians have been muddled ever since trying to figure out how such a novel document can be reconciled with tradition - how such a document can leave Catholic doctrine "untouched" while seemingly overturning it in every paragraph.

Not everybody is bothered by this. Many people will simply take the Declaration's statement that traditional doctrine is "untouched" as establishing the fact, as if there mere statement of continuity is all that matters. 

One recent example is Pope Francis' off the cuff statements on intercommunion between Lutherans and Catholics. After seemingly suggesting that Lutherans could receive Communion in the Catholic Church if their conscience was clear about it, Cardinal Gerhard Müller stepped in to do damage control. But rather than explain how the pope's comments could be reconciled with Catholic doctrine, he merely declared that they were in line with Catholic doctrine and said other inferences were "misunderstandings" - all the while never addressing the pope's actual comments. Please see our article here for a more thorough review of this problem. 

But who cares? Müller declared continuity so continuity is established.

A more recent example is the hubbub over Amoris Laetitia. Full disclosure: I did not read Amoris Laetitia. Maybe I will someday. I have better things to do with my time, honestly. But I have taken a look at some of the questionable passages, including the controversial footnote 351. And I have read a lot of commentary on it. From what I can see, my raw opinions on the document's controversial passages are fairly in line with what Ed Peters wrote on his blog a month ago. Peters is certainly no traditionalist, but he points out real, substantial problems with the document in terms of some of its assumptions and inherent confusions. Other critics have made further assumptions about the implications of the document (that it allows wiggle room for communion for adulterers, that it implicitly adopts a moral theology of gradualism, that downgrades the obligations of Christian marriage to the level of an ideal, etc).

I am not asserting any of these things, especially as I have not read the document. But others have, such as Athanasius Schneider, who said the document was vulnerable to misinterpretation and needed clarification. 

Now, not every statement of the Magisterium needs a full apologetic for every sentence. But I would also add that they do need them occasionally, especially in eras of great confusion. If there is considerable confusion of how a document is in continuity with tradition, the Magisterium ought to explain how it is in continuity.

But the party line so often is to simply state the document is in continuity without bothering to give us the details - without explaining how. Following the precedent set by Dignitatis Humanae, it's like they think that merely asserting continuity establishes the fact. Sometime over the years they stopped identifying the elements of continuity and restricted themselves to merely proclaiming it. Never mind how. Never mind that educated theologians, canonists and bishops still can't understand in what sense the documents have continuity. Continuity has been declared, ergo it exists by Magisterial fiat.

Thus with Amoris Laetitia. Cardinal Müller comes out and states that Amoris Laetitia is in perfect continuity with tradition. He states that Francis did not mean to call the teaching of his predecessors into question. Fine. But what about those passages that do seem to contradict Familiaris Consortio and Sacramentum Caritatis, like, you know, footnote 351? The cardinal says footnore 351 is only making some very general observations and that's about all we should take away from it, “Without going into detail." Without going into detail? Detail is what we need at this point, sir.

He then simply restates the traditional teaching and says that Amoris Laetitia "does not touch on the former discipline.” His only other comment on the footnote is that if the pope thought it was so important, he wouldn't have included it as merely a footnote.

None of this actually parses what the pope said or explains how it is in continuity; after all, Müller wanted to discuss it "without going into detail." But who cares? Continuity has been declared. The fact is established.

Cardinal Raymond Burke is another example. His essay on the Amoris Laetitia states that "the task of pastors and other teachers of the faith is to present it within the context of the Church’s teaching and discipline." I agree wholeheartedly. But when we don't understand how to reconcile certain statements with the Church's teaching and discipline, you need to tell us how, sir. 

While he admirably addressed the false assertion that Christian marriage is merely an ideal, Burke likewise fails to offer us any way to reconcile the Pope's meanings with tradition. He states: 

"The Church’s official doctrine, in fact, provides the irreplaceable interpretative key to the post-synodal apostolic exhortation, so that it may truly serve the good of all the faithful, uniting them ever more closely to Christ, who alone is our salvation. There can be no opposition or contradiction between the Church’s doctrine and her pastoral practice."

Yes! There can be no opposition between doctrine and practice. Now please explain how the document does not create such an opposition. Merely stating there isn't one does not establish anything.

You can't create continuity just by saying it exists. You can't tell us the traditional teaching is untouched when the context of the words seems to suggest otherwise - and if we are wrong, then please explain how. Please explain how things are not in discontinuity. You cannot create continuity by fiat decree. You cannot substitute a phantasm for substance.

Cohabitation: Maintaining Sanity

With the announcement that Pope Francis intends to marry couples who are publicly living in sin by cohabiting, some Catholics have sunk to a depth of denial and contradiction that I did not think possible. The scandal took place today, according to sources (here and here).

This is not some kind of hype pushed by the secular media. The fact that cohabiting couples will be among those receiving the sacrament comes straight from the press release issued by the Vicariate of Rome, which stated that among those being married by Francis "there are those who are already cohabiting", as reported by CNS. The ceremony will also include couples with children born out of wedlock.

The marriage of people cohabiting is a destructive scandal and offensive to those brave parish priests who over the years have steadfastly refused to marry couples who are living together outside of marriage. These faithful priests - who are usually in the minority and receive very little support from their bishops - understand that a couple cohabiting prior to marriage have no real understanding of the Catholic Church's moral teachings and even less knowledge of the purpose of the sacrament. They also know that marriages where couples cohabit first are much more likely to fail, inasmuch cohabiting couples demonstrate a lack of willingness to sacrifice and engender a disposition towards selfish behavior. Many of us traditional Catholics, or even just conservative Catholics who uphold Christian morality, have applauded these heroic pastors who have the guts to buck the trend and refuse matrimony to cohabiting couples.

But now that Pope Francis is doing this very thing, many of these folks don't know what to do. As is usually the case when this pope scandalizes the faithful, they have generally responded with "I don't see a problem here", "what's the big deal?", "this is really nothing new", and the like. Typical Franciscan-pontificate spin.

"Boniface, the Church has always married people who have previously been living in sin. This is nothing new."

The Church has always married people who had previously been living in sin; she has no custom of marrying people who are currently living in sin. And some of these couples are currently living in unrepentant sin, as the press release says they are "already cohabiting"; i.e., they are living together right now. Obviously, nobody has a problem with the Church offering sacraments to single mothers living chastely or people who were once notorious sinners but have repented; to offer them the sacrament while they are persisting in unrepentant sin is another matter entirely.

"But Boniface, you are being judgmental. How do you know they are unrepentant? You don't know their hearts."

In the Catholic Faith, what we do is extremely important. When the people came to St. John the Baptist asking how they could be saved, he told them "Bear fruits that befit repentance" (Luke 3:8). We demonstrate our repentance by our actions. A true conversion, a metanoia, means actively turning away from a sinful lifestyle and embracing holiness. Hence St. John Vianney withheld absolution from a man who had refused to stop dancing in the local saloon and St. Cyprian withheld distribution of alms from certain people unless they gave up attending the Roman spectacles. Can you imagine the scandal today if a priest refused to absolve somebody unless they stopped going to the bar on Fridays or if he refused to feed the poor if they didn't stop going to see R-rated movies? How Pharisaic! Yet these saints knew that a sincere change of heart would invariably be coupled with a change of lifestyle, and if they did not see the "fruits that befit repentance", they presumed there was no repentance and withheld their ministrations. A person who persists in their sin is not repentant; rather, they are like a fool, according to Proverbs: "A dog that returns to its vomit is like a fool who reverts to his folly" (Prov. 26:11).

I know a thief is unrepentant if he keeps stealing; I know a cohabiting couple is unrepentant if they keep cohabiting. Simple as that.

"There you go judging again. How can you have any knowledge of whether or not the cohabiting couples are still sinning? You don't know what goes on in the bedroom. They could be cohabiting but living chastely. We ought to presume the best."

Let me say this as plainly as possible; in fact, let me be so blunt that I am actually going to resort to using all caps, which I seldom do: COHABITING ITSELF IS SINFUL, REGARDLESS OF WHETHER SEXUAL ACTIVITY GOES ON.

The spin-doctors are essentially saying that while a couple may be living together outside of wedlock, they may be living chastely in that situation, and therefore we cannot and should not presume they are fornicating just because they are living under the same roof. We ought to "assume the best."

This position misses several things.

First, how many people do you know who cohabit but do not have sexual relations? In my twelve years as a Catholic, I can think of one. Now, how many people do you know in the world, in your family, in your workplace, in your parish - wherever - how many people do you know who cohabit and do have sexual relations? Yeah. So this mythical "chaste cohabiting couple" is in the same category as the "extraordinary minister", where the adjective is there to make us feel better but in practice has no meaning.

"Boniface, you are talking about non-believers cohabiting - worldly people. The pope is marrying Catholics."

Catholics who cohabit before marriage are being worldly and are, in some sense, non-believers, at least as regards the Church's moral teaching, which they evidently do not believe or they would not cohabit.

Furthermore, regarding "presuming the best about people", we must recall that when people are living together, we actually do not presume chastity; we presume they are sexually active, and the Church always has. This is because an adult man and woman living a common life together is a state proper only to marriage; hence, when we see a man and a woman living together and don't know differently, we default to assuming they are married - which obviously means we assume the relations proper to marriage. If a man and a woman share a house, it is presumed they share a bed; and if they share a bed, well, heh heh...you know.

In fact, it is natural for people to assume sexual relations whenever they see any male and female in any close relationship. When I was watching the winter Olympics figure-skating with my extended family this year, my 15 year old nephew remarked, "So, do you think they do it?" Given the great amounts of time the skaters spend rehearsing in each other's company, as well as the skin-tight suits, intimate poses, and emotional intensity of the profession, it was natural for him - as well as for many - to assume sexual relations between figure-skating pairs.

The Church has always presumed a cohabiting couple were having sexual relations. This is why living together outside of marriage has been referred to as "living in sin." It was never engaging in the act of fornication that was primarily known as "living in sin"; rather, it was extramarital cohabitation that constituted "living in sin". Fornication was merely - and quite rationally - assumed. We, also, are not wrong in assuming that cohabiting couples are fornicating.

Third, given that cohabitation is referred to as "living in sin", we need to recall that cohabitation itself is sinful, as I exclaimed in all caps above. There are several reasons for this; as mentioned above, because people presume you are fornicating, it becomes a scandal. This is true even in the unlikely event that no fornication happens. A blind man who walks into an adult bookstore still commits the sin of scandal by merely going in, even if his blindness means he doesn't look at pornography while he is in there. This is because anyone who sees him go in and doesn't know the particulars about his blindness will naturally assume he is looking at porn while in the store.

Besides being scandalous, cohabitation also puts couples in a near occasion of sin on a daily basis, almost perpetually, in fact. This is why we keep our teenage daughters and sons away from compromising situations with members of the opposite sex. Duh. When did this become so complicated? You take a male and a female, let them share a home, and chances are very good that they will share a bed - and if that happens, forget about it.

So, because cohabitation sends a message that sex is happening, and because there is a tremendous likelihood that sex will in fact happen, it is scandalous and sinful. Can you think of any other activity that is scandalous and a near occasion of sin but which apologists would be hesitant condemning?

"Fair enough, Boniface, but this is a pastoral call that the pope has the right to make. He has the jurisdiction to marry whom he chooses and it is not our place to call that judgment into question."

Very well. I will not judge Francis. I appeal to the words of St. John Paul II, who wrote about those who "presume that the true and proper marriage will take place only after a period of cohabitation" in Familiaris Consortio. After summarizing the variety of reasons people cohabit - ranging from economic distress to custom to mere pleasure seeking - the pope stated that each of these situations of cohabitation

"presents the Church with arduous pastoral problems, by reason of the serious consequences deriving from them, both religious and moral (the loss of the religious sense of marriage seen in the light of the Covenant of God with His people; deprivation of the grace of the sacrament; grave scandal), and also social consequences (the destruction of the concept of the family; the weakening of the sense of fidelity, also towards society; possible psychological damage to the children; the strengthening of selfishness) [Familiaris Consortio, 81]

By the way, for those who are no longer accustomed to traditional theological vocabulary, the use of the adjective "grave" generally means "mortally sinful."

Also, did you notice that St. John Paul II applies all these consequences to cohabitation as such? He does not seem to envision nor give much credence to the possibility of chaste cohabitation, nor do any of the reasons for extramarital common life negate the consequences he enumerates.

So, the question becomes: If this holy, wise and sainted-pontiff states that cohabitation has serious moral, social and religious consequences, including psychological damage to children, destruction of the family, establishment in selfishness - as well as the guilt of mortally sinful scandal for those engaged in it and the deprivation of the grace of the sacrament of marriage - are these people properly disposed to be married?

If according to St. John Paul II cohabitation before marriage results in the deprivation of the grace of the sacrament, how on earth can one say that cohabiting couples can possibly be properly disposed or in any sense fit for matrimony? Let St. John Paul II judge Francis.

"Well Boniface, you make a good case, but ultimately these marriages are all valid, so this is just your opinion."

Uh...I didn't suggest they weren't valid. Is this really relevant? Dr. Peters has an interesting article looking at the validity of marriages conferred on cohabiting couples. Of course, he states that they are perfectly valid but kind of punks out by sidestepping the question of the pastoral implications of such marriages, only stating that the pastoral problems "might be a bigger deal."

That's an understatement!

I really hope we don't have to go over the whole discussion about validity and propriety again. A Eucharist consecrated on a card table at a poker game is valid if correct matter, form, minister and intent are used. That does not make it proper. It can be valid and still seriously scandalous; in fact, in the case of the Eucharist, such a consecration would be sacrilegious and scandalous precisely because the consecration would be valid.

Similarly, hiding behind the mere validity of a marriage conferred upon a cohabiting couple is no way to get around the huge pastoral implications such a practice would have. Has the world turned upside down that I am now concerned with pastoral implications?!

I would also like to opine, however, that Dr. Peters errs in one point. He says in his article quoted above:
"Canonically, this is a non-issue. No divine, natural, or canon law impedes a wedding between cohabiting persons (cc. 1083-1094) and therefore the fundamental right of the faithful to the sacraments in general (cc. 213, 843) and to marriage particular (c. 1058) should prevail in such cases. Unquestionably, these couples can, and must be allowed to wed."

Dr. Peters suggests that, unless impeded by some canonical impediment, there is absolutely no reason any Catholic couple can ever be legitimately denied access to the sacrament of matrimony. I dispute this point. It is very true that, regarding matrimony, there are no natural, divine, or canonical impediments based on cohabitation. But there is grounds for denial of the sacrament in the canons regarding administration of sacraments in general.

First, canon 843§1 states that "Sacred ministers may not deny the sacraments to those who opportunely ask for them, are properly disposed and are not prohibited by law from receiving them." Dr. Peters cites this canon in support of his argument that cohabiting couples "can, and must be allowed to wed."

However, he does not delve into what it means for a couple to be "properly disposed." Since being "properly disposed" is a condition for reception of any sacrament, it is understood by implication and practice that any sacrament may be denied to any Catholic who is not properly disposed. This is why pastors do First Communion interviews, Confirmation interviews, etc.

Who decides whether a couple is properly disposed for marriage? Canon 843§2 says, "According to their respective offices in the Church, both pastors of souls and all other members of Christ's faithful have a duty to ensure that those who ask for the sacraments are prepared for their reception. This should be done through proper evangelization and catechetical instruction, in accordance with the norms laid down by the competent authority."

In the case of marriage, pastors are to ensure proper disposition through "personal preparation for entering marriage, so that the spouses are disposed to the holiness and the obligations of their new state" (1062§2), while traditionally the laity participate by making pastors aware of any impediments to marriage; hence the traditional publishing of the banns.

Thus, there does exist a canonical rationale for a pastor to deny the sacrament of matrimony to two Catholics; that is, he can always deny it on the grounds that they are not properly disposed. Does cohabitation before marriage prove a proper disposition is lacking? The purpose of any sacrament is to communicate the grace proper to it. Given that Pope St. John Paul II stated that cohabitation before marriage results in a deprivation of sacramental grace and is a grave scandal, a pastor who refuses to confer marriage on a cohabiting couple would be justified based on Canon 843§2 and Familiaris Consortio 81, which would suggest that such a couple would not be properly disposed.

As a side note, a priest may also refuse to officiate at the marriage of "a person who has notoriously rejected the catholic faith" (1073§4). Traditionally this has been interpreted to refer to outright apostasy, though a person who rejects a certain portion of the Church's teaching could be said to have rejected the faith, insofar as the faith must be kept "whole and undefiled" (Quicumque Vult) and that "whoever breaks one commandment is guilty of breaking them all" (cf. James 2:10).

Furthermore, canon 1092§2 lists among persons "incapable of contracting marriage...those who suffer from a grave lack of discretionary judgement concerning the essential matrimonial rights and obligations to be mutually given and accepted. I believe this canon is meant to apply to persons who suffer from developmental disabilities. However, since the canon does not explicitly say that, if a person of sound mind is so dense as to either not understand or reject the Church's teaching on the exclusivity of intercourse to within the marital bond itself, one could make a case that they "suffer from a grace lack of discretionary judgment": concerning the nature of matrimony and hence should not be married. These latter two arguments from canons 1073 and 1092 are only speculative; the argument from Canon 843§2 and Familiaris Consortio 81 is much stronger, in my opinion.

So, yes, I take issue with the opinion that cohabiting couples "can, and must be allowed to wed" if they ask for it. Many pastors have presumed such couples are not properly disposed and have denied them on those grounds, as they have every right and duty to based on canon law and tradition.

"Boniface, marriage offers a way for them to regularize their situation. Do you want them to remain in sin?"

Of course not. I want them to turn their union into a sacramental, grace-filled union. To do so, they must be properly disposed to receive the sacrament. Part of that disposition is abstaining from intercourse prior to marriage, which among other things, you do by not living together. If a cohabiting couple is serious about wanting to regularize their situation, let them cease cohabitation at once and make a sacramental confession. Then let them maintain purity for the remainder of the preparatory process, which is a sign that they are serious about "bearing fruit that befits repentance." It's as simple as that.

I want every Catholic to receive communion weekly. That doesn't mean I want to dispense with the regulations surrounding who and when communion can be received; it means I want all Catholics to observe those regulations. Two Catholics certainly have a right to marry - but not on any terms they choose. Everyone understands this principle when it comes to the other sacraments. Why some Catholics are now hemming and hawing when it comes to matrimony is beyond me.

One last thought: It rubs me the wrong way that this is being done for political purposes. Do you think the pope goes out to marry twenty couples and it is a coincidence that they are all either living in sin or come from irregular situations? Of course that is not a coincidence. These people were chosen to send a message, and the fact that this is occurring so close to the opening of the Synod on the Family is very meaningful. It saddens me that these people were chosen not based on their suitability for reception of the sacrament, but in order to send a message about the pope's agenda. It is as if Francis went out and said, "Go dig up some cohabiting people for me to marry so I can make a point", just like when he went to Korea he requested whatever "the smallest car possible" was in order to make sure he looked sufficiently humble. The administration of the sacrament is being co-opted to push the envelope for the progressive attempts to loosen all the disciplines surrounding marriage.

Yes, this is a scandal. Many in the Church hierarchy may have lost their minds on this matter, but at least let us maintain sanity on this issue. Cohabiting before marriage is sinful and those who present themselves for marriage while cohabiting are not properly disposed and should not receive the sacrament until the "bear fruit that befits repentance."

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On Perrielo's Fishwrap Piece

Last week, Pat Perrielo published a real piece of tripe at the NCR ("Fishwrap") on communion for the divorced and remarried. Laughably entitled "The Traditionalists are Trying to Regain Control" (as if the "traditionalists" have ever had anything close to "control"), he offers one of the most ignorant and juvenile arguments in favor of relaxing the Church's discipline that I have ever read. I offer his piece in its entirety below, with my glosses in italics.

'The Traditionalists are Trying to Regain Control'
by Pat Perrielo, NCR 15 May 2014

As the time for the Synod on the family draws near, there seems to be an effort by traditionalists to control the process and shift the focus to doctrine rather than serving the pastoral needs of people.

Repeating a progressive canard that 'doctrine' and 'the pastoral needs of the people' are in opposition; that must must choose one or the other, 'law' or 'mercy.' In fact, it is love of God's law that most perfectly fulfills pastoral needs. Remember Psalm 1: 

Blessed is the man who walks not in the counsel of the wicked,
nor stands in the way of sinners,
nor sits in the seat of scoffers;
but his delight is in the law of the Lord,
and on his law he meditates day and night.
He is like a tree
planted by streams of water,
that yields its fruit in its season,
and its leaf does not wither.
In all that he does, he prospers. (Ps. 1:1-3)

Archbishop Samuel Aquila of the diocese of Denver has reiterated church teaching on marriage and sees the pastoral element as simply doing a better job of explaining traditional Catholic doctrine.

This is true. Archbishop Aquila understands that doctrine and pastoral practice compliment each other and should not be set in a relation of antagonism.

It seems pretty clear that Pope Francis is talking about something else. Francis said, “The question is not that of changing doctrine, but of digging deep and making sure that pastoral care takes into account situations and what it is possible for persons to do.”

Francis is asking the question as to whether it is really possible for many in certain life situations to change their circumstances. Must one wait around for a spouse to die in order to receive Communion? Too many traditionalists seem unable to comprehend what a pastor must take into account to serve the needs of his people. They have a copy of the rule book, but what they may not have is a sensitivity to the people they serve.

I don't think traditional Catholic ethics insists that these people do always have the power to "change their circumstances"; it does insist that they are obliged to do the right thing within the circumstances they find themselves in. "Must one wait for a spouse to die in order to receive Communion?" No. One can always leave one's adulterous 'second marriage', and telling a person otherwise does not "serve the needs of his people" but leads them further into error, making it even less likely that they will "have life, and have it more abundantly" (John 10:10), which is what Jesus desires for everyone. 

What is being examined is not the indissolubility of marriage, but rather the distribution of the Eucharist. In the Scriptures it even appears that Jesus may have shared the Eucharist with Judas at the Last Supper. The Eucharist is meant to nourish the faithful. It is not a reward for the holy. It is not insignificant that most Protestant churches, including Episcopalians, always make clear that all are welcome at the Lord’s Table.

The Eucharist has never been seen as a reward for the holy. Hence, "Domine, non sum dignus..." The Eucharist is the "medicine of immortality", in the words of St. Ignatius of Antioch. And if it is medicine, it is because we are sick. But not all sicknesses are alike; some are sick because, despite our best intentions, we are still weak humans prone to failure. Others are sick because they refuse to amend their lives and obey God's commandments. There is a huge difference between someone who bombs a test because they did not do well and one who bombs because they intentionally left all the answers blank. Just because we are all sinners does not mean there are no standards. All are welcome at the Lord's table, but not on any terms they choose. If you don't like it, take it up with St. Paul and the New Testament, which says, "Wherefore whosoever shall eat this bread, and drink this cup of the Lord, unworthily, shall be guilty of the body and blood of the Lord. (1 Cor. 11:27).

By the way, if the Episcopalians are doing it right, why are Episcopalians in a "death spiral"?

Those having difficulties of any kind have the greatest need for the Eucharist. Yet we pompously walk around picking and choosing who can receive the graces and mercies of a loving Lord. If we want to deny Communion to all who are unworthy we should simply stop giving communion to anyone. None of us are worthy, but all of us are in need. That is why Jesus gave us this wonderful gift.

"Those having difficulties of any kind have the greatest need for the Eucharist." This statement would be true if the clause "of any kind" were removed. Difficulties are not of the same stripe. By long-standing custom, those whose "difficulties" are sins of their own deliberate choosing are not fit to present themselves for Holy Communion precisely because they are not in Holy Communion because deliberate grave sin puts one out of Communion. This is standard sacramental-moral theology, and shows that this is not just a disciplinary problem of who we will give the Eucharist to, but a theological problem. All are in need. Yes. And if we really believe we need Jesus, we must begin by confessing our need to be free of our sins. "Go and sin no more, lest a worse thing come upon you" (John 5:14).

Those opposed to sharing the Eucharist with divorced and remarried Catholics continue to focus on the doctrine of marriage. Yet no one is questioning the doctrine of marriage. Francis and other pastors of the church are simply looking at those who love the Lord and are saying, come, taste and see how good the Lord is.

I beg to differ, Mr. Perrielo. The doctrine of marriage is being questioned. If the divorced and "remarried" are allowed to Communion, it means either (a) second putative marriages are no longer regarded as adultery, or, if they are (b) one can still be in God's grace whilst simultaneously being in a state of adultery, or if not, then (c) Communion can be received in a state of mortal sin with no danger to one's soul, in which case (d) the theological importance of being in or out of a state of grace has been obliterated. As you can see, there are HUGE doctrinal implications from this discussion.

If the Synod fathers buy in to these sorts of lame, ignorant arguments, is there any hope?