Thursday, August 6, 2015

Excommunication for Divorce/Remarriage

This week, Pope Francis dedicated his Wednesday audience to the topic of those who have married, divorced, and entered a second union. It has been widely noted that the Pope said: "in fact, these people are not at all excommunicated, they are not excommunicated!" (source). There has already been a fair amount of discussion and reflection on the Pope's remarks. One area that seems to warrant further treatment is the very question of excommunication for divorce/remarriage.

The Pope is certainly correct that the universal Church has no automatic penalty of excommunication for divorce and "remarriage." Did such a penalty ever exist? In the USA, yes (I don't know about other countries). In the Third Plenary Council of Baltimore (1884), it was decreed: "We establish the penalty of excommunication, reserved to the Ordinary, to be incurred ipso facto by those who, after obtaining a civil divorce, dare to attempt marriage" (n. 124). This penalty was in force until it was abolished by Bl. Paul VI in 1977 (see Canon Law Digest, v. 8, pp. 1213-1214).

A related penalty from Baltimore III stated that Catholics who "attempt marriage before a minister of any non-Catholic sect" incur excommunication (n. 127). This penalty was superseded by a similar one in the 1917 Code of Canon Law (c. 2319.1), which Paul VI eliminated in 1970 (see Matrimonia mixta, n. 15).

There are, then, no current "automatic excommunications" for divorce/"remarriage" or for attempting marriage before a non-Catholic minister.

I have seen some people claim that there was once a penalty of excommunication for divorce, at least in the USA. I have never seen solid evidence of this, however, and don't think it ever existed.

My reference for the texts from Baltimore III is the Bouscaren-Ellis Commentary, 3rd edition, p. 922.

Thursday, July 16, 2015

Rubricism and Ritualism in the Liturgy = Bad?

Earlier this week, a Brazilian archbishop had his resignation accepted by the Pope, following an apostolic visitation. What prompted the visitation? Granted, there may well be more to the story but...:
According to a Brazilian media report, local clergy complained to the apostolic nuncio following a $600,000 renovation of the episcopal residence as well as renovations to the seminary, chancery, and a retreat house.
Priests also opposed the imposition of a 10% diocesan assessment on parish income and complained about prelate’s “rubricism” and “ritualism” in the liturgy, as well as his willingness to accept seminarians who had left other dioceses and religious orders, according to the report. 
It is a crime, punishable by a just penalty, to alienate (i.e., sell or spend) ecclesiastical goods without the proper permission (c. 1377). For some transactions, the bishop would have needed the consent of his finance council and college of consultors as well as the permission of the Apostolic See (see c. 1292). Did the archbishop commit this crime? There is no evidence of this and even if he did, is removal from office a just penalty? (I know he wasn't "removed from office" but that was the practical result.) Another canon states that a person who abuses an ecclesiastical power or office can be deprived of office (c. 1389). That doesn't seem to apply here, either.

I can understand why priests would oppose a 10% tax but the bishop can impose "moderate" and "proportionate" taxes (c. 1263).

As someone who once left a seminary and joined a religious order, I'm glad there are prelates out there who are willing to do what this Bishop did. Let's read between the lines: the real "problem" was not that he did this--in general--but that he accepted certain seminarians, ones the priests did not like. Were the priests right to think the seminarians were unworthy? Who knows. The bottom line is that the Bishop is free to decide who he accepts as seminarians (c 241).

Now, to the horror of horrors: rubricism and ritualism in the Liturgy. The priests did not like the Bishop's manner of celebrating the Rites of the Church. Maybe he even made statements directing his priests to observe certain "rubrics" and "rituals." Since conservative clerics would never complain about someone else's "rubricism" or "ritualism", I think we can safely say that the Bishop wanted the priests to say the black and do the red. The priests, however, wanted to innovate. Let's not pretend, though, that innovators in the liturgy are not rubricists or ritualists. They have their rubrics and rituals which happen to be their own, not necessarily the Church's.

To answer the title of this post--sometimes, liturgical rubricism and ritualism is bad, very bad. Like this. I repeat, very bad. Sometimes, it's good. Like this. Or, like this.

I have to admit to a certain uneasiness about this case. It is another example of a "resignation" that looks like removal. As Ed Peters, quoting Card. Burke, points out, "The too rapid growth of practice without a clear and solid theoretical foundation has its most serious consequences in the confusion regarding the very foundations of law." This case, more than any other episcopal "resignation", confuses me.

Baptized Catholic "Not Considered a Catholic"?

In a Q&A you might see in your local Catholic paper, there is a question regarding the required "canonical form" for marriage. The question includes this information:
My daughter is scheduled to be married four months from now, and her fiance is a born-again Christian. He was baptized a Catholic in his country of origin, but when his family immigrated to the United States, they began to attend a Christian charismatic community. My daughter was baptized and raised as a Catholic, educated in a Catholic school, and still practices her Catholic religion faithfully. My concern is that they have now opted not to get married in a Catholic church. 
 The answer includes this statement:
It’s possible that the upcoming ceremony itself, given the proper permissions, could be recognized by the Catholic Church as a valid marriage. Your daughter’s fiance, now a practicing Christian charismatic, would not be considered a Catholic and a dispensation can be granted for what is considered a “mixed marriage.” Also, not infrequently the Catholic Church allows non-Catholic clergy to officiate at such a mixed marriage (especially if the officiant has a close connection with the non-Catholic family) — and sometimes in a nonreligious setting (e.g., a garden).
There are a few errors here.

First, the man is considered a Catholic (at least in terms of canon law surrounding marriage). Let's say that he intended to marry a Hindu. The law describes canonical form as the couple expressing marital consent before an authorized official (usually a priest or deacon) and two other witnesses (c. 1108). The law continues: "The form established above must be observed if at least one of the parties contracting marriage was baptized in the Catholic Church...(c. 1117)." If a Catholic does not observe the form, the marriage is invalid (c. 1108). The man has been baptized in the Catholic Church and is bound by this law. 

Second, this is not a dispensation for a "mixed marriage" but a dispensation from canonical form. A dispensation from canonical form, indeed, can be granted: "If grave difficulties hinder the observance of canonical form, the local ordinary of the Catholic party has the right of dispensing from the form in individual cases... (c. 1127, §2)." This dispensation allows the Catholic party to marry in another public form--before a Protestant minister, civil judge, etc. The case at hand presents another difficulty: as noted, both Parties are Catholic. Can the local ordinary dispense from canonical form in their case? Fortunately, we have an authoritative answer from the Holy See. It was asked: "Whether outside the case of urgent danger of death can the diocesan bishop dispense according to c. 87, §1, from the canonical form for the marriage of two Catholics?" The answer: "Negative." The Holy See can grant the dispensation but one should never presume that such a favor will be conceded.

Third, a "dispensation" for a "mixed marriage" is more properly called a "permission": "Without express permission of the competent authority, a marriage is prohibited between two baptized persons of whom one is baptized in the Catholic Church or received into it after baptism and the other of whom is enrolled in a Church or ecclesial community not in full communion with the Catholic Church" (c. 1124). Canon 1125 states that this permission can be granted for a just and reasonable cause and lists other requirements that must be met. If it happens that no permission is granted, the marriage would still be considered valid. 

Even though canon 1124 involves a Catholic and baptized, non-Catholic--and we are dealing with two Catholics--the answer correctly implies that the couple should seek permission to marry. Canon 1071 §2, declares: "The local ordinary is not to grant permission to assist at the marriage of a person who has notoriously rejected the Catholic faith unless the norms mentioned in can. 1125 have been observed with necessary adaptation." I suppose one might wonder if the man has "notoriously rejected the Catholic faith" but since it seems he is insisting on marrying outside of the Church, it would appear that he may well fit this description.

The question included the topic of "convalidation" since the mother thinks the Parties will not have a valid marriage. The answer continues:
If for some reason this does not work out, then subsequently, sometime after the ceremony that is planned, the marriage could be convalidated (or “blessed”) in the Catholic Church. 
It wouldn't be a convalidation, strictly speaking, and we should really stop with the "blessing" talk.

The answer advises the assistance of the local Catholic priest. I wholeheartedly agree. There is still time for this to be resolved but it is not as simple as the answer suggests.

Friday, June 26, 2015

It Will Never Happen

Sometimes, to my surprise, the question arises: "What will you in the Tribunal do when a 'gay' person wants to get an annulment for his 'marriage' to another man?" It will never happen. Is an explanation even needed? ... Alright, how about an analogy. Let's say a woman went through an ordination ceremony but then repents and wants the Church to declare the ordination invalid (see cc. 1708-1712). No declaration would be given--or even possible--because that ceremony didn't have the semblance of an ordination. Why not? Only a baptized man can be ordained (c. 1024). Regarding marriage cases, we know that a man can only marry a woman and a woman can only marry a man (see, for example, canons 1055, 1096). The Code states that "the spouses" are able to introduce a cause of nullity of a marriage (canon 1674). No matter what the State says about who a "spouse" is, the Church will never accept the notion that a relationship involving two men or two women results in either being a "spouse" to the other.

More on "Streamlining" the Nullity Process

In paragraph 115 of the "working document" for the upcoming Synod on the Family, there is a discussion about "obviously null" marriages and the idea of dealing with them in a "summary canonical process." Let's review the canonical processes that can now be used to resolve marriage cases.

1. Formal nullity process (discussed here). This must be used in cases involving a marriage which is alleged to be invalid due to a defect in a Party's marital consent (intention against children, forced marriage, etc.). Time: supposed to be no more than 1.5 years and can be much more rapid.
2. Documentary process (see canon 1686-1688). This is usually employed in cases involving an impediment such as a prior marital bond (c. 1085). Time: none given in law. Can be finished in a month or two but may take longer.
3. Lack of form investigation (see here, under c. 1686). This is used when a Catholic attempts marriage with no regard for the requirements of canonical form. This investigation is not determined by the procedural law of the Code and is not a true "process" as are the first two. Time: weeks.
4. Various processes for the dissolution of the bond ("Pauline privilege", "Favor of the Faith", non-consummation).

What is being addressed in the "working document" is the formal nullity process. The suggestion is to design another kind of formal nullity process that is somehow shortened or perhaps use the documentary process even for some cases involving an alleged defect in consent.

There are foundational concepts to recall: every time a couple properly manifests marital consent, the Church presumes that the resulting marriage is valid (see cc. 1057.1, 1060). In order to overturn a presumption of law, sufficient proof must be brought forward (see cc. 1526, 1584-1585, 1608). All Respondents have the right of defense and so must be informed about a nullity process and given the opportunity to participate (see canons 1507-1508, 1511, 1598, 1620, 1686).

Over the course of the centuries, the Church has wisely determined that the way to ensure the right of defense and the authenticity of proofs is to entrust marriage nullity cases to a Judge (or Judges) who is obliged to follow procedures outlined in law. In the current nullity process, there aren't any useless or pointless steps. They all exist in order to uphold the dignity and stability of marriage and protect the rights of the Parties (not just the Respondent, mind you).

In the current process there are necessary steps. First, the Tribunal would have to see if the marriage involved a proper exchange of consent (as opposed to a "lack of form" situation). Then, it will see if the Parties were impeded (as in a documentary process situation). If there was no impediment and proper form was followed, then the person has to provide initial proof that the marriage is invalid due to a defect in consent. The other Party has to be informed of the process. The "grounds" have to be determined. Further supporting evidence has to be collected. The Parties have to be given the chance to see the evidence. The Defender of the Bond has to be given the opportunity to offer observations. The Judge (or Judges) has to render a decision. If the ruling is "affirmative" the case is automatically sent to a higher Court for review.

What steps could possibly be removed from this process? It seems to me, only three: the Parties do not have to be given the chance to review the evidence. The Defender of the Bond does not have to be involved. There does not have to be a mandatory review by a higher Court. I think all should be kept. It is appropriate to allow Parties to see evidence so I support that step, and so should Petitioners. I wholeheartedly oppose the notion of removing the Defender of the Bond from marital cases and also (halfheartedly) oppose removing the mandatory review of First Instance affirmative decisions (see here for further discussion. At another time, I may give reasons for wanting to keep the mandatory review).

I suspect that some people think those under 21, or a young, pregnant woman, or an infatuated couple who wants to marry after only a month's courtship, or a drug user, inevitably enter "obviously invalid" marriages. If so, perhaps they should suggest that the Church establish new impediments which would prevent such unions from ever taking place. Impediments such as: have to be at least 21 years old to marry (currently 14 for girls, 16 for boys). Can't be under 22 and pregnant. Can't marry until courting for at least one year. Can't marry unless you pass three random drug tests.

In my opinion, the current process is more than able to handle cases of "obvious invalidity" in a sufficiently rapid manner. In my post about how long the nullity process takes, I said it can be finished in 40 weeks. If a trial involves an "obviously invalid" marriage, there would be less time dedicated to gathering evidence. Less time required for observations of the Defender/Advocate. Less time required for writing a decision. The case can be completed in 6 months. The process now used is sufficiently summarized.

I hope as much attention is paid to the issue of properly educated Tribunal personnel (mentioned in n. 117 of the "working document") as is paid to the nullity process. Like I've said before, if personnel are poorly trained and/or lacking in number, it doesn't matter what the process is--it will inevitably bog down.
UPDATE: here is the English translation of the document.

Wednesday, May 20, 2015

No Votive Candles Allowed

Picking up on the idea of faith and piety becoming cold, I found a directive from the Vicar of Rome, dated sometime in 1932. (Note that this statement would have pertained only to the Diocese of Rome):
The custom in many churches of placing at the disposal of the public wax tapers known as votive candles, to be lighted before statues and sacred pictures in exchange for money offerings by the faithful, is open to serious objections. It might easily become what appears to be a superstitious usage, besides giving the impression that it is permitted for the sake of the money which it brings in. Moreover, the practice detracts from the decorum and cleanliness of sacred buildings, bespatters the floor, impregnates the hangings with smoke, and consumes good air. The practice must therefore cease. ... The reasons for this prohibition are to be explained to the faithful by the clergy, who will also remind them that a single Mass, heard with piety, and a single Communion devoutly received will bring down more heavenly blessings and favors than thousands of candles burned for days on end (Canon Law Digest, vol. 2, p. 375).
If someone wanted a candle to be burned, the directive stated that he should buy one that would be used on the altar for Mass.

I never imagined I'd see a condemnation of votive candles: pretty unobjectionable, I thought. Even so, the statement does raise reasonable concerns. If today we didn't have votive candles, though, faith and piety would seem really cold, figuratively and literally--especially at shrines and pilgrimage sites. It's probably the most common way people show devotion....for better or worse.
Also, I wonder what "the hangings" were. I thought felt banners and that sort of stuff only came along in the 70s. So, my guess is that they are altar cloths. Take that guess with a grain of salt, though, since I have absolutely no knowledge of the typical decorations of a 1930s, Roman parish.

Tuesday, May 19, 2015

Guess the Date

While researching a canonical topic (comparing canon 12 of the 1917 Code to canon 11 of the 1983 Code), I noticed this passage from an "Instruction on Exhorting the Faithful to Frequent and Devout Assistance at the Sacrifice of the Mass":
But we all know that, as faith and piety have cooled, this most holy practice (of assisting at Mass) has been more and more neglected, and many of the faithful, drifting away from the love of things divine, have not the devotion they should have toward the Sacrifice of the Mass, and do not as in former times fervently have it offered for their necessities and in suffrage for the faithful departed, whereas they not infrequently have recourse to other relief less salutary (Canon Law Digest, vol. 2, p. 359).
What a sentence. When do you think this was written?

Update: The author: the Sacred Congregation of the Council (which corresponds to the Congregation for the Clergy). The date: July 14, 1941. I often think of the first half of the 20th century to be years of fervent Catholic practice. Maybe I should reconsider that notion. At the same time, I guess there is "cooling" of faith and piety and then there is the freezing of faith and piety...or the reduction of faith and piety to absolute zero. That reminds me of Dante's depiction of Satan, stuck in the ice at the very bottom of hell.