Friday, March 20, 2015

Once a Cardinal, Not Always a Cardinal

It is quite unusual for a Cardinal to become not-a-Cardinal. That seems to have happened today, however:
The Holy Father has accepted the resignation of the rights and privileges of a Cardinal, expressed in canons 349, 353 and 356 of the Code of Canon Law, presented by His Eminence Cardinal Keith Michael Patrick O’Brien, Archbishop Emeritus of Saint Andrews and Edinburgh, after a long period of prayer. With this provision, His Holiness would like to manifest his pastoral solicitude to all the faithful of the Church in Scotland and to encourage them to continue with hope the path of renewal and reconciliation. Link
In addition to "resigning" the "rights and privileges of a Cardinal", one can certainly be deprived of these rights and privileges and even the office and title itself (see c. 1336.1.2). As for O'Brien, I think it is correct to conclude that he is no longer a Cardinal of the Holy Roman Church even though the communique does not say this explicitly. If a Cardinal no longer has the rights and privileges of a Cardinal, what's left of the essence of being a Cardinal? Nothing, it seems to me: it doesn't make sense to have a CINO (Cardinal in name only).

Since this is such a rare occurrence and I know so little about it, I could be mistaken.

Update: Catholic News Agency has an article on this event, with the title "Pope accepts disgraced Scottish prelate's resignation from cardinal status."
Update II: Other news outlets are reporting that "the Vatican" has said that O'Brien "will retain the title" (here, for example). "Title" can refer to the rank of "cardinal" as well as to his titular church (Ss. Gioacchino ed Anna al Tuscolano). I would be interested to hear what the people of that parish think if their titular Cardinal is now a "CINO" due to grievous, moral failures.

Monday, March 9, 2015

Excommunication Confusion

The Archbishop of Turin has decided that, on the occasion of the displaying of the Shroud, he will grant to priests the faculty to remit the penalty of excommunication incurred due to abortion. I am disturbed by the title of the linked, Crux article: "During shroud display, Turin will forgive women who had abortions." The title suggests that women who confess this sin are not usually forgiven or that priests cannot usually absolve this sin....and states that "Turin" forgives sins. I know titles have to be catching and concise but I think they can do better than that.

Let's continue to consider the idea that priests are not always able to forgive certain sins. The article states that the Archbishop has granted "special permission to offer absolution to women who confess to having had an abortion." Actually, what he has done is grant these priests the ability to remit a penalty of excommunication. Any priest (in the Latin Church) can absolve any sin as long as he has the faculty to absolve: there are no reserved sins (granted, there is one exception in canon 977). Certainly, if a person is excommunicated, he is not to receive any Sacraments (canon 1331.1.2). This is a hindrance based on the person's excommunication, not on a priest's inability to absolve a certain sin.

For example: a person goes to Confession and, let's say, confesses to having been a manifest apostate. The priest should be aware that the person may have been excommunicated because of this (cf. canons 13301364). In fact, let's say that the person was automatically excommunicated. If the priest is not aware of the excommunication but is nevertheless certain of the penitent's contrition, he would absolve him (canon 980). The absolution would not be invalid because the priest can't absolve this sin: the priest can absolve it. If the absolution was ineffective ("invalid"), it would have been due to the penitent's defective disposition. Usually, though, we can reasonably conclude that a person who goes to Confession is contrite and wishes to reform his life. In the case of abortion, this is also true. Any woman who has an abortion and then confesses this sin is apparently contrite and has a proper disposition. The confessor can absolve her.

What if the priest concludes that the woman has been excommunicated for this offense--should he just go ahead with the absolution anyway? No, he should first remit the penalty since it is against the law for an excommunicated person to receive any Sacrament. He has this ability, too, as we can see in canon 1357.1: "a confessor can remit in the internal sacramental forum an undeclared latae sententiae censure of excommunication ... if it is burdensome for the penitent to remain in the state of grave sin during the time necessary for the competent superior to make provision." Concerning the word "undeclared"--a competent Church authority may decide to initiate a trial to "declare" the fact of the automatic penalty. Without such a trial, there is no declared excommunication. Rare indeed is a woman who has been declared to have been automatically excommunicated for abortion. The confessor then, in virtue of canon 1357, can remit the automatic excommunication which resulted from a completed abortion. As the canon notes, either the confessor or penitent is to make recourse to the competent authority, and follow his instructions. After granting the remission, the priest proceeds to absolution. What the Archbishop of Turin has done in granting this faculty is to remove this "recourse" to the competent authority.

Regarding the "automatic excommunication" of canon 1398, it bears repeating that it is not necessarily "automatic" (consider the possible, mitigating factors in cc. 1323-1324). In the opinion of Dr. Ed Peters, the odds of this penalty being automatically incurred are very small (cf. CLSA Advisory Opinions, 2010, p. 178ff).

One last point, of less importance. From the article: "Only the bishop or a priest he designates can lift the excommunication." Actually, an "ordinary" can remit the penalty (canon 1355.2). This means that the bishop and his vicars (vicar general and episcopal vicars) have the ability, by law (canon 134.1). Now, I suppose you could say "well, doesn't the bishop designate the priests who will be a vicar?" Ok, sure. But, that's not what the article means. The article is saying, correctly, that a bishop can delegate to any priest the faculty to remit this penalty. The law itself already grants this ability to the vicars--the bishop doesn't do it.

It seems that if excommunication is discussed, errors are sure to abound--as this "Crux" article demonstrates. It is a difficult topic to adequately address in a blog but I hope this post is nevertheless helpful in clearing up some of those errors. If not, comments/questions are welcome.

Wednesday, January 7, 2015

The Rota Overturns 92% of USA Nullity Decisions?

I have seen this statistic cited here and there over the years. The source seems to be a book titled What God Has Joined Together: The Annulment Crisis in American Catholicism, by Professor R. Vasoli, on page 62 (and other pages as well). In formulating this statistic, Dr. Vasoli referenced the research of Fr. W. Varvaro as found in the 1991 and 1993 editions of the Canon Law Society of America's Convention Proceedings and the work of Msgr. C. Hettinger in an article entitled "Too Many Invalid Annulments" as well as personal communication with Msgr. Hettinger (see Vasoli, p. 61-62). The statistic suggests that the USA declares all these marriages invalid, the cases go to Rome and the Rota says "Nope, you're wrong. There's no proof of an invalid marriage" 92% of the time.

When I had heard this statistic in the past, I then often thought "Well, maybe it's accurate but it must be out of date." As it turns out, the 92% statistic is certainly inaccurate.

Let's look only at the cases from 1980-1985 as recounted by Varvaro in his 1991 presentation. Vasoli states that only five of the cases received affirmative decisions. Two of these involved defective consent. One involved physical impotence and two were defects of form. From this, Vasoli concludes: "the Rota and the American tribunals were at odds in 95 percent of the cases where grounds were related to defective consent" (p. 61; 42/44 cases = 95%).

Vasoli's error stems from a misunderstanding of this comment from Varvaro: "Unless otherwise noted all decisions mentioned below were for validity of the marriage" (p. 28). In Varvaro's list of cases, Vasoli is correct that you will indeed only find five cases followed by the words "pro nullitate", and only two of them for defective consent (pp. 28-29). In addition to these five cases, however, the Rota ratified four decisions of American courts. One denied a further hearing of a case, thereby accepting the lower courts' decision. Three declared that the American sentence was not null (the decision of the lower court was allowed to stand). These are eight additional cases where the Rota concurred with an American court but the two words "pro nullitate" are not present: other Latin phrases are used to indicate the Rotal action. Adding the numbers, we see not a 42/44 ratio but 34/44. I think it's fairer to include all the cases (so, 34/47--72%) but even following Vasoli's deletion of three cases of agreement between the Rota and America results in not 95% disagreement but 77%. This is a significant difference but is this the actual "reversal rate"?

Some background information before answering that question. There are two, typical ways a case can go before the Rota: a Party appeals the decision of a lower court or the case automatically proceeds to the Rota after conflicting decisions of two lower courts. For example, Clark Kent introduces a nullity case before the tribunal of Metropolis. That court renders an "affirmative" decision. Lois Lane appeals the decision to the Rota. If she did not appeal the case, it must then move to Metropolis' appeal court, in Gotham. Let's say Gotham reaches the opposite conclusion: the marriage has not been proven invalid. Clark appeals that decision to the Rota. If the case first received a "negative" decision and then an "affirmative" decision in American courts, it would automatically proceed to the Rota with no appeal. It seems that Vasoli overlooked this, even though the point was made by Varvaro:
We also want to remind ourselves at this point--because we too easily forget it--that many of these cases reached the Rota because of a discordant decision given at the appellant level. Some of these decisions were negative in first instance and affirmative in second instance and therefore came to the Rota in third instance. Others were first instance affirmatives, reversed in the appellate jurisdiction, and appealed by the petitioners to the Rota (Varvaro, p. 25).

We can see, then, that "many" Rotal cases will have already received conflicting decisions in the USA: one affirmative and one negative. No matter what the Rota does, it is not really "overturning" or "at odds" with the American tribunals. It is reaching a final decision which will be in accordance with one lower court and contrary to the other. While the plain statistics of the cases listed by Varvaro reveal that relatively few marriages were declared invalid by the Rota, many of those cases already received a "negative" decision from an American court.
Since I do not have the text of all of the decisions before me (I only have summaries of some of them), I can't say how many fall into this category. Let's suppose that 50% received a negative and affirmative in the USA. Applying this to the numbers from earlier (34/44), we have a 17/44 ratio (39%) where the USA only said "affirmative" and the Rota said "negative." Again, this is only an estimate based on the summaries I have seen but, for the sake of argument, I think it is fair.

It is apparent that I have not yet actually addressed the 92% statistic. Vasoli arrived at this number by referring to decisions from 1980-1988 and 1991-1992. I have only addressed the cases from 1980-1985 and I will not examine the cases from 1986-1988 and 1991-1992, since I have already demonstrated that Vasoli misunderstood/misinterpreted at least about half of the data he used and therefore his conclusions are mistaken. Instead of 92%, I think the true statistic is clearly closer to 40%.

Is that a good number? No, I think it's too high. Are all American Judges/Tribunals always right and above suspicion? Of course not. But, if we are going to criticize American Judges/Tribunals, in the hope of improving them, let's use accurate information.

Thursday, November 6, 2014

Baptism By Sprinkling?

Is baptism by sprinkling valid?

It can be. The 1917 Code of Canon Law said that baptism can be validly administered by sprinkling, pouring, or immersion but the latter two, separately or in combination, are to be retained (c. 758). As noted in the previous post on valid baptism, water must touch the skin of the person and "wash." I have never witnessed a baptism administered by sprinkling but I would expect the minister to ensure that some water actually "hits" the person being sprinkled. If he doesn't, why even bother with the water? It's not like he would be standing in the main aisle of the church and the one being baptized is way over under a side window, or up in a balcony, and it is only random chance determining whether or not any water touches the one being baptized. No, they'd be in close proximity. We all know that if we stand within a foot or two of the priest wielding the aspergillum, we are bound to be hit with at least a drop of water... or more:
Cardinal Mahoney going waaaayyyy overboard. He seems to be enjoying himself but that's not funny.

So, while sprinkling is not allowed in the Catholic Church (see 1983 Code, c. 854), it may still be practiced in other Churches or ecclesial communities. If it is, and if the proper words are used, we can presume that the baptism is valid.

Friday, October 24, 2014

Why Does the Church Presume Marriages are Valid?

Isn't it true that even among Protestants it is often said that adultery gives the innocent spouse justification for divorce and remarriage? In today's "divorce culture" does anybody really think marriage is until death? Why should we presume marriages are valid?

The Church will presume marriages are valid as long as the Parties say words such as "I take you to be my husband/wife. I will love you and honor you all the days of my life." The Church will take them at their word. How can the Church do anything but presume that people mean what they say when entering a contract? If the time comes when segments of society change the words used when marrying, so that the words explicitly reject some essential aspect of the contract of marriage, then the Church will re-examine this presumption of validity.

Until then, when people say "I do", but then claim "No, I didn't" the Church will answer "Oh yes, you did. Prove the contrary, if you can."

Monday, October 20, 2014

Sacramental Marriage

Lately, I have read internet commentary pondering the topic of the Sacrament of marriage. I have seen it suggested that it is possible for Christians to marry among themselves and yet not have a Sacramental marriage (that is, receive the Sacrament of marriage) because, for example, Christians who totally lack faith cannot possibly receive or administer this Sacrament. Much could be said in response to this assertion, but I will only say, echoing Benedict XVI, that the issue requires greater study:
However Blessed John Paul II addressing this Tribunal 10 years ago, pointed out that “an attitude on the part of those getting married that does not take into account the supernatural dimension of marriage can render it null and void only if it undermines its validity on the natural level on which the sacramental sign itself takes place” (John Paul II, Address to the Tribunal of the Roman Rota, 30 January 2003). With regard to this problem it will be necessary, especially in today’s context, to promote further reflection.
What I really want to do here is not engage in reflection on that particular issue (it's not really a topic for a blog) but to show how the Church has consistently and definitively stated that the marriage of two Christians is necessarily a Sacrament. Consider:

Blessed Pius IX, The Syllabus of Errors, #66: "The sacrament of matrimony is nothing but an appendage to the contract and separable from it"; #73 "A true marriage can exist between Christians by virtue of a purely civil contract; and it is false to assert that the contract of marriage between Christians is always a sacrament." (To be clear, the Pope is saying that these statements are erroneous.)

Leo XIII, Arcanum, n. 23: "For such a distinction or, more truly, a severance (of the contract of marriage between Christians and the Sacrament), cannot be approved, since it has been proved that in Christian marriage the contract is inseparable from the sacrament; and so it cannot be a true and legitimate contract without being a sacrament, for this very reason."

Catechism of Pius X: "Q: Can the contract be separated from the sacrament in Christian marriage?

A: No, in marriage among Christians the contract cannot be separated from the sacrament, because, for Christians, marriage is nothing else than the natural contract itself, raised by Jesus Christ to the dignity of a sacrament."

Pius XI, Casti connubii, n. 39: "And since the valid matrimonial consent among the faithful was constituted by Christ as a sign of grace, the sacramental nature is so intimately bound up with Christian wedlock that there can be no true marriage between baptized persons 'without it being by that very fact a sacrament.'" (quoting from the 1917 Code of Canon Law)

Gaudium et spes, n. 48: "Christian spouses have a special sacrament by which they are fortified and receive a kind of consecration in the duties and dignity of their state."

Code of Canon Law, c. 1055, §2: "...a valid matrimonial contract cannot exist between the baptized without it being by that fact a sacrament."

Catechism of the Catholic Church, n. 1601: "this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament." n. 1617: "Christian marriage in its turn becomes an efficacious sign, the sacrament of the covenant of Christ and the Church. Since it signifies and communicates grace, marriage between baptized persons is a true sacrament of the New Covenant."

It may well be true that theologians and canonists will continue to considered whether "in Christian marriage the contract is inseparable from the sacrament." For now, though, it is wrong for any of us out here in the virtual pews to say that we can.

Thursday, October 9, 2014

How Long Must An "Annulment" Take?

There is a lot of talk these days about "streamlining" the formal nullity process. Some might be wondering why the process is now such that it has to take so long and need such streamlining. So, I thought I'd provide some insight into what the current procedure demands, as far as the length of time required before the case can be completed. The Code of Canon Law states that cases should be completed within 1.5 years (c. 1453). They don't have to take that long, though, and only in exceptional circumstances should they take longer. With that, let's look at the defined time limits. The references will be to articles in Dignitas connubii, the "handbook" Tribunals are to follow in these cases.

The first step in the process is the submission of a petition. It might take a person quite a while to move from the "I'm going to 'get an annulment'" decision to actually submitting this petition. The law, though, does not require any particular length of time so I'm not including that in the calculation. I'll "start the clock" at the point when the Court receives the petition. Once that happens, the Judicial Vicar is to constitute a tribunal (i.e., assign the potential case to a Judge, defender, notary, etc.) "as soon as possible" (118.1). This can happen the same day. The appointed Judge then, again, "as soon as possible", is to accept or reject the petition (119.1). Obviously, for this exercise, he will admit it. Since "it is advisable" that the Judge "hear the defender of the bond first", let's say this admission will happen within one week (cf. 119.2).

When the petition is accepted, the Respondent is to be "cited" at the same time (126.1, 127.1). Then, three weeks later (15 days), the Judge has 10 days to "formulate the doubt" (135.1). When this happens, the Parties have 10 days to contest it (135.4). After those 10 days, the "instruction" of the case begins (i.e., gathering evidence; 137). A note about these time periods: I'm counting them as "working days" (Monday-Friday).

The Instruction phase can be quite variable in duration. It depends on how quickly all the testimony can be collected. The law does not require any particular length of time, however. For the sake of this example, let's say it takes eight weeks to receive the testimony of the Parties and witnesses. After that, the process reaches "publication" and the Judge is to set a time limit for the Parties to examine the Acts (233.1). This limit tends to be three weeks, at the most. After that, the case is "concluded" and the briefs are to be filed, within the time limit set by the Judge (240.1). Again, this tends to be in the two-three week range. Since the defender and advocate(s) might want to respond to the other briefs, this process can be extended. In my opinion, it shouldn't be prolonged beyond four weeks.

After the briefs are completed, the case awaits the decision of the Judge. The law does not impose a limit here but it seems that one month (30 days) should be more than sufficient time for the Judge to come to a conclusion and write the Sentence. If the case is heard by collegiate panel (usually three judges) there is to be time for them to discuss the case after they have reached their own conclusions. Once this discussion takes place, the Sentence is to be composed, as above, within one month (249.5). With the Sentence, the case is complete in that Tribunal.

We're looking at about 27 weeks in this example, taking all the time limits to the maximum. It could certainly conclude even more rapidly.

If the case is decided in the affirmative, it will have to be "reviewed" by a higher Court. This process is usually completed by "ratification" and can easily be done within three months of the publication of the first Sentence (264-265). All together, then, this process took about 40 weeks. Of course, if the first Sentence is appealed or the second tribunal seeks further evidence, the process can be prolonged. Usually, there are no appeals.

As we can see, current, procedural law does not require a long, drawn-out ordeal. If Petitioners are prompt in submitting evidence, and witnesses are as well, and if the Tribunal is well-staffed with competent personnel, the current process can be adequately prompt. Unfortunately, some cases take two, three, four times as long but I don't think that ever happens because of procedural law--it happens in spite of it.