Saturday, April 5, 2014

This Can't Be Allowed to Continue

Father Z, always a source of entertaining and/or informative commentary, posted a question today regarding a priest who "buries...leftover consecrated hosts." Rightly, Father pointed to canon 1367, which states: "A person who throws away ("abicit") the consecrated species or takes or retains them for a sacrilegious purpose incurs a latae sententiae excommunication reserved to the Apostolic See; moreover, a cleric can be punished with another penalty, not excluding dismissal from the clerical state" (source).

It doesn't take much to show that this practice is totally wrong, deplorable, and can never be justified. I think that would be obvious to most Catholics. Whether or not this priest has incurred this automatic excommunication is a question that can't be answered here but it is certainly possible. Consider the following.

The Pontifical Council for Legislative Texts issued an authentic interpretation on what the word abicere means: "abicere should be considered to include any voluntarily and gravely contemptuous action toward the Sacred Species." In a commentary on this interpretation, the President of the Pontifical Council said: "The verb abicit should not be understood only in the strict sense of throwing away, nor in the generic sense of profaning, but with the broader meaning of to scorn, disdain, demean" (see previous link).

W. Woestman states: "A person incurs the penalty: --by deliberately 'throwing away the sacred species,' e.g., by intentionally throwing a consecrated host or the precious blood on the ground..." (See his Ecclesiastical Sanctions and the Penal Process, commentary on c. 1367).

In the Canon Law Society of America's "Green Commentary" we read this remark on the meaning of c. 1367: "The canon envisions ... possible delictual situations: disrespectfully throwing away the sacred species...or scattering them in an inappropriate place."

In the Canon Law Society of Great Britain and Ireland's Letter and Spirit commentary on c. 1367 we find: "This canon indicates what precisely constitutes the offense: it may be committed in one of three ways: (a) throwing away the consecrated species: this entails throwing or scattering the consecrated Hosts of the Precious Blood into an inappropriate place, e.g. ... on to the ground."

In the voluminous Exegetical Commentary's entry on canon 1367, it is pointed out that the intention accompanying the action must be such that it is carried out with scorn. Certainly, this priest would not be scornful, would he?

In Ayrinhac's commentary on the 1917 Code's corresponding canon (Penal Legislation in the New Code of Canon Law [1944]): "The crime may be committed and the penalties may be throwing away the Sacred Species, that is, throwing them with contempt into some place where they will be exposed to profanation, as if a thief carrying away the ciborium would drop the sacred Species on the floor of the church, on the street where they are liable to be trodden underfoot. ... The mere fact of throwing away the Sacred Species is sufficient independently of the intention of the agent." (p. 172).

Whether or not this particular priest would excommunicate himself by burying "extra" Hosts--and I would be hesitant to say that he has done so without further information--his practice cannot be allowed to continue. Let us pray that he sees the error of his ways before this year's Good Friday.

Wednesday, March 26, 2014

Wait a Minute

Yesterday, the constitutional merits of the HHS contraception/ abortifacient/sterilization mandate was discussed before the Supreme Court. Justice Kagan, questioning a lawyer for those who are seeking relief from the mandate, said the following:
Those employers (who object to the mandate) could choose not to give health insurance and pay not that high a penalty – not that high a tax.... There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby would choose not to provide health insurance at all. ... And in that case Hobby Lobby would pay $2,000 per employee, which is less that Hobby Lobby probably pays to provide insurance to its employees. ... So there is a choice here. It’s not even a penalty by – in the language of the statute. It’s a payment or a tax. There’s a choice. And so the question is, why is there a substantial burden at all? (see here, at page 22)
This "health care law" requires businesses who employ a certain number of people to provide health insurance. If they don't, they must pay a penalty. So, in other words, we have a Supreme Court Justice who is advocating the violation of the law saying, in effect, it's no big deal: "why don't you break the law and just pay the fine/penalty/payment/tax (or whatever it is called). It's not a substantial burden." Isn't that what she's saying?

Besides, what difference does it make if the government makes a company provide this coverage, in violation of religious beliefs, or if the government makes that company pay a fine/penalty/tax so that religious beliefs can be practiced? I thought the First Amendment said that Congress shall make no law prohibiting the free exercise of religion.

We now return to our regularly scheduled, canonical programming already in progress.

Tuesday, March 25, 2014

One (Mistranslated) Word Makes Quite a Difference

This is not a question/answer but a comment. There has been much recent analysis on the issue of "divorced and remarried" Catholics and their reception of Holy Communion. Cardinal Caffarra, archbishop of Bologna, Italy, entered the fray by means of an interview which has been translated into English. Therein, we read:
Those who make these suggestions (divorced/remarried Catholics being allowed to receive Communion) have not, at least up until now, answered one simple question: what happens to the first valid and consummated marriage? If the Church admits them to the Eucharist, she must render a judgment on the legitimacy of the second marriage. It’s logical. But, as I said, what about the first marriage? The second marriage, if we can call it that, cannot be a true second marriage because bigamy is against the teaching of Christ. So the first marriage, is it dissolved? But all the popes have always taught that the Pope has no authority over this. The Pope does not have the power to dissolve a valid and consummated marriage. The proposed solution seems to imply that although the first marriage continues, the Church can somehow legitimate a second relationship. But in doing this, the proposal demolishes the foundations of the Church’s  teaching on sexuality. At this point we have to ask: why, then, can we not approve of unmarried couples living together ? Or why not homosexual unions? The question is simple: what about the first marriage? No one has yet answered that question. In 2000, John Paul II speaking to the Roman Rota said: “It is clear that the Roman Pontiff’s power does not extend to valid and consummated marriages and this is taught by the Magisterium of the Church as a doctrine to be definitively held even if it has not been solemnly declared through a definitive act.” ... 
Knowing that Cardinal Caffarra has a doctorate in canon law, and having some familiarity with that address of Bl. John Paul II, it was not difficult to realize that a significant error in translation has crept into this passage. The Cardinal (and Pope and canon law) do not use the phrase "valid and consummated" in this context. It would be wrong to do so because the Pope certainly does have the ability to dissolve a "valid and consummated" marriage via the so-called "Petrine Privilege." Additionally, "valid and consummated" marriages can be dissolved without any Papal intervention via the "Pauline Privilege" (see here, cc. 1143-1147).

What happened in the translated article? In the Italian original, Cardinal Caffarra used the word "rato/rati" and this was rendered as "valid." What it means, however, is "sacramental." Looking at a few canons, we can establish this. In canon canon 1055 we read: "§1 The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized. §2. For this reason, a valid matrimonial contract cannot exist between the baptized without it being by that fact a sacrament." Then, we need to look at canon 1061 §1: "A valid marriage between the baptized is called ratum tantum if it has not been consummated; it is called ratum et consummatum if the spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring...." In other words, a marriage that is "ratum" involves two baptized persons and is necessarily a sacrament. It is sacramental.

Finally, let's look at canon 1141: "A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death." This is what Cardinal Caffarra, and Pope John Paul II, actually said.

Is There Anything New Under the Sun?

No, nobody asked me this question but it is one I asked myself as I researched a canonical topic and was reminded of a remark recently made by Cardinal Burke. Cardinal Burke said the following:
It is true that the policies of the President of the United States of America have become progressively more hostile toward Christian civilization. He appears to be a totally secularized man who aggressively promotes anti-life and anti-family policies. Now he wants to restrict the exercise of the freedom of religion to freedom of worship, that is, he holds that one is free to act according to his conscience within the confines of his place of worship but that, once the person leaves the place of worship, the government can constrain him to act against his rightly-formed conscience, even in the most serious of moral questions. Such policies would have been unimaginable in the United States even 40 years ago. It is true that many faithful Catholics, with strong and clear leadership from their Bishops and priests, are reacting against the ever-growing religious persecution in the U.S. Sadly, one has the impression that a large part of the population is not fully aware of what is taking place. In a democracy, such a lack of awareness is deadly. It leads to the loss of the freedom which a democratic government exists to protect. It is my hope that more and more of my fellow citizens, as they realize what is happening, will insist on electing leaders who respect the truth of the moral law as it is respected in the founding principles of our nation.

In the 1870s, another canon lawyer, and later a Cardinal, Joseph Hergenröther, made similar remarks:
Thus in these days the Church is confined to the purely ecclesiastical domain, and her whole endeavor must be directed to preserve here her necessary freedom, or if she does not possess it, to win it back. In most countries, far from possessing this freedom, she is loaded with a heavy yoke, and instead of being able to exercise indirect influence on earthly affairs by instructing and elevating men, she is in many ways fettered and oppressed by the ‘ius potestatis civilis in or circa sacra’ (the ‘right’ of the civil power in religious matters), partly positive, partly negative, partly indirect, partly even direct. More and more she is driven away from public life, and confined within the four walls of places of worship. Even here she is watched with Argus eyes, subject to the espionage of the police, and threatened with punishment for occasionally venturing on some freedom of expression. Robbed to a great extent of her former well-earned property, deprived of a number of influential institutions, exposed without protection to the mockery of an unbridled press, suspected by the mighty ones of the earth under numberless pretenses, and accused of cherishing vast schemes of dominion, she seems to be on the way back to the times before Constantine the Great. Yet even in those times she was in one way better off; for while externally persecuted she was free internally, her teaching and discipline were subjected to no State approval, and she freely chose her officers and ministers without State interference (The Catholic Church and the Christian State, vol. 1, pp. 65-66).

Thursday, March 13, 2014

What's a Convalidation?

I was baptized Catholic but got married outside of the Church about 15 years ago. This is the first marriage for me and my husband, who is also Catholic. The marriage has been great. We've been going to Catholic services more and more and somebody said something about getting my marriage blessed and then somebody else said I need a convalidation. What's this all about?

Since you did not marry according to the law of the Church regarding "canonical form," the law of the Church does not recognize your civil marriage. You do need to address this problem. I'd guess that about 99.99% of the time, you will be told that you must "have your marriage blessed" or that you need to "get a convalidation." However, you are going to neither have your marriage "blessed" nor have a "convalidation" (unless you were to pursue a radical sanation, but that's another topic for another time).

First, a "marriage blessing" has nothing to do with making an invalid marriage a valid one. A marriage blessing is for a (valid) marriage. In all the various Rites of marriage in the Catholic Church, the nuptial blessing is near the conclusion of the Rite, necessarily after the exchange of consent. You have not yet exchanged consent in a proper form. Once you do that, you can (and should) receive a marriage blessing. Basically, I suspect that the use of the phrase "getting your marriage blessed" is considered to be a more "pastoral" way of saying "you have to marry in the Church." The person may say "But, I'm already married" and the priest would respond "well, not as far as the Church is concerned." The conversation might devolve from there and the person could decide to not bother with getting married in the Church.

Second, a "convalidation" is indeed a way in which an invalid marriage is made valid. The Code of Canon Law states:
Can.  1156 §1. To convalidate a marriage which is invalid because of a diriment impediment, it is required that the impediment ceases or is dispensed and that at least the party conscious of the impediment renews consent.
§2. Ecclesiastical law requires this renewal for the validity of the convalidation even if each party gave consent at the beginning and did not revoke it afterwards.
Can.  1157 The renewal of consent must be a new act of the will concerning a marriage which the renewing party knows or thinks was null from the beginning.
Can.  1158 §1. If the impediment is public, both parties must renew the consent in canonical form, without prejudice to the prescript of can. 1127, §2.
§2. If the impediment cannot be proven, it is sufficient that the party conscious of the impediment renews the consent privately and in secret, provided that the other perseveres in the consent offered; if the impediment is known to both parties, both are to renew the consent.
Can.  1159 §1. A marriage which is invalid because of a defect of consent is convalidated if the party who did not consent now consents, provided that the consent given by the other party perseveres.
§2. If the defect of consent cannot be proven, it is sufficient that the party who did not consent gives consent privately and in secret.
§3. If the defect of consent can be proven, the consent must be given in canonical form.
Can.  1160 A marriage which is null because of defect of form must be contracted anew in canonical form in order to become valid, without prejudice to the prescript of can. 1127, §2.
If you look through these canons, you will see that your situation does not fit anywhere. Your civil marriage is not invalid because of an impediment (for example, a previous marriage). There is no indication that a defect of consent is an issue. Canon 1160 mentions a "defect of form" but your situation, to be precise, is a lack of form and not merely a defect. A defect of form exists, for instance, when a priest lacks the faculty to witness a marriage but does so anyway. Some canon lawyers would say that canon 1160 includes lack of form cases, too. I disagree. Convalidation, strictly speaking, does not apply to civil marriages which the Church considers to be invalid due to a complete lack of form.

This dispute, practically, means nothing because the way to make your civil marriage valid is the same as that required in canon 1160: you must contract marriage in canonical form. This means you need to exchange marital consent before an authorized priest and two witnesses. Possibly, as above, you could respond to this requirement saying "I'm already married. I don't think I need to do anything else to be married. I would just be going through the motions." Even if you think so, can you say the words of consent and mean what you say? Do you want to be married? I suspect your answer to these questions would be "yes" since you state that you have a "great" relationship. In that case, you can recite "the vows" and your expression of consent would be binding, giving rise to a marriage that the Catholic Church would presume to be valid. After that, you should receive the nuptial blessing. Go speak to your local parish priest and try to do this as soon as possible. Don't be afraid. I'm sure the priest will have had to help other people in similar straits.

Wednesday, January 15, 2014

What's a Lack of Form Annulment?

That's a nice, short question. I usually shy away from using the word "annulment" since it implies an action which makes a marriage invalid or null. I prefer "declaration of nullity." It's more accurate: an ecclesiastical Judge can declare that a marriage was and is null/invalid but he can't "annul" it. But, neither of these terms apply to this question. There is no annulment or declaration of nullity for "lack of form" cases.

What makes marriage? The consent of the Parties. However, civil and ecclesial authorities have long demanded that the Parties express that consent in the presence of one or more witnesses or through some other "formality." Two people can seriously and meaningfully express marital consent on beach of the Bloomer pond, in the presence of the only the sand, sea, and sky. No matter the solemnity of their expression or depth of their love, they are not married either in civil or ecclesiastical law because of that action.

All Catholics, then, are bound to observe the requirements of "canonical form" when they marry (see canons 1108.1 and 1117, ignoring what is said about "formal defection"). If a Catholic does not follow this law but attempts to marry before a civil official, having no regard for canon law, there was a total "lack of form" in this exchange of marital consent. The consent was not legitimately manifested (see canon 124.1 and canon 1057.1). If the couple divorces and subsequently a Party wants to marry in the Church, no declaration of nullity is required because the law of the Church does not presume that this "marriage" is valid. The Church doesn't even consider such a union to be a putative marriage--meaning, one that is actually invalid but was entered into in good faith by at least one Party (see here, p. 158, n. II; and canon 1061.3).

The union is not presumed to be a marriage. It does not even rise to the level of a putative marriage. It is legally nonexistent. In practice, this is made obvious by the fact that the Defender of the Bond does not participate in the investigation, arguing why the marriage is binding. It is the person who prepares that Party for marriage in the Church who can examine the situation and allow the marriage, with no one else taking part in the examination (see here under c. 1686). In some places, though, diocesan bishops have decreed that the investigation of a "lack of form" is to be carried out at the diocesan level. This, I think, is wise.

Wherever it is carried out, by whomever, the investigation gathers the following: a recent copy of a baptismal certificate (proving Catholic status at the time of the "wedding" and the absence of any notation of a marriage), a copy of the marriage license/abstract (proving the fact of the civil union as well as who witnessed the exchange of consent) and a copy of the civil divorce/dissolution decree (proving the person is free to marry in the eyes of the state).

If these documents are in order, the investigator might compose a document which confirms the freedom of the Party to marry and the person can be allowed to marry in the Church. Again, this is not a judicial process of any kind and the one who carries it out does not "declare" that the civil union was invalid or null. Since there is no judicial process, there are no steps required in such processes (e.g., the submission of a formal petition, the citation of the other Party, a definitive Sentence, etc.).

As an aside, there are times when a Catholic's baptismal record is not correct because a marriage was not duly recorded even though it was contracted in accord with the law of the Church. So, one must be careful to not automatically conclude that just because a baptismal record does not mention a marriage that the person is not married. Furthermore, a couple could be granted a "radical sanation" of their civil union. If a sanation is granted, there is no longer a question of a "lack of form" and the marriage is presumed to be valid. This fact could also fail to be noted in the baptismal record.

Thursday, November 7, 2013

Solemnities and Friday Penance

According to canon 1251, "Abstinence from meat, or from some other food as determined by the Episcopal Conference, is to be observed on all Fridays, unless a solemnity should fall on a Friday. Abstinence and fasting are to be observed on Ash Wednesday and Good Friday." For those of us in the USA, there is some question as to if we are actually required, by ecclesiastical law, to perform any sort of penance on Fridays outside of Lent. Let's leave that aside, along with the fact that many Catholics might not carry out any penitential practice on any day of the week or year. For those who try to follow the spirit and letter of the law, what does this exemption for solemnities actually mean? On what Fridays can I eat my ButterBurger®?

First of all, a "solemnity" is a modern-day category of liturgical observance and it is of the highest rank. In the post-Vatican II liturgical calendar, there are weekdays, optional memorials, obligatory memorials, feasts, and solemnities. (The pre-Vatican II calendar had a different and, as Spock might say, interesting nomenclature.) Some solemnities are also Holy Days of Obligation:
Can.  1246 §1. Sunday, on which by apostolic tradition the paschal mystery is celebrated, must be observed in the universal Church as the primordial holy day of obligation. The following days must also be observed: the Nativity of our Lord Jesus Christ, the Epiphany, the Ascension, the Body and Blood of Christ, Holy Mary the Mother of God, her Immaculate Conception, her Assumption, Saint Joseph, Saint Peter and Saint Paul the Apostles, and All Saints.
§2. With the prior approval of the Apostolic See, however, the conference of bishops can suppress some of the holy days of obligation or transfer them to a Sunday.
Can.  1247 On Sundays and other holy days of obligation, the faithful are obliged to participate in the Mass. Moreover, they are to abstain from those works and affairs which hinder the worship to be rendered to God, the joy proper to the Lord’s day, or the suitable relaxation of mind and body.
In the USA, we are not obliged to observe all of those days of obligation. That's a topic I will not go into at this time. The point of referring to these canons is to alert the reader to this special kind of solemnity. Certainly, these solemnities excuse us from Friday penance. Are there any others?

Here (at p. 13), you can find a table of liturgical days and at this link you can find the following division of solemnities:
3. Solemnities inscribed in the General Calendar, whether of the Lord, of the Blessed Virgin Mary or of Saints. …
4. Proper Solemnities, namely:
a. The Solemnity of the principal Patron of the place, city or state.
b. The Solemnity of the dedication and of the anniversary of the dedication of one’s own church.
c. The Solemnity of the Title of one’s own church.  
d. The Solemnity either of the Title or of the Founder or of the principal Patron of an Order or Congregation.
So, yes, there are other solemnities. Under #3, in addition to the days listed in canon 1246, we have the Annunciation, the Sacred Heart, and the Nativity of St. John the Baptist. I don't believe there are any others. These solemnities, also, would excuse Friday penance.

What about these "proper solemnities" of #4? Well, I don't know of any states or cities in the USA that have principle patrons--I have never heard of such a thing. Every parish church building, however, has a dedication day and this is also a solemnity. Members of the parish (based on having a home within the parish boundary, not based on "registration".....a topic for another time) would be exempt from Friday penance. Likewise, on the day of the solemnity of the titular patron, Friday penance would be excused for those members.

There are some canon lawyers who are more restrictive in their understanding of canon 1251. Instead of including all these solemnities, they hold that only the solemnities that are also days of obligation (see again, c. 1246.1) excuse from Friday penance. The commentary produced by the Canon Law Society of Great Britain and Ireland (The Canon Law: Letter and Spirit) holds to this view. I would have to disagree with that interpretation, even though it accords with the prior law: the 1917 Code made it clear that only days of precept (i.e., obligation) excused from Friday penance (canon 1252, 1917 Code). Since the new law simply says "solemnities," I think canon 1251 should be understood as written, without any restriction on which solemnities "make the cut."

Let's make up an example. Leah is a pious woman who is also educated in canon law. She knows that all the solemnities already mentioned would, if they occur on a Friday, excuse her from penance. She happens to reside within the boundaries of the parish of St. Daniel Comboni. The parish church was dedicated on September 12, 2008, and October 10 is, for her parish, the solemnity of St. Daniel. So, next year, she will be excused from Friday penance on June 27 (Sacred Heart), August 15 (Assumption), September 12 (anniversary of the dedication of the parish church), and October 10 (St. Daniel).

Unfortunately, many parishes do not seem to be aware of the requirement to observe the solemnity of their churches' dedication and their titular saint. Frankly, I don't think I have ever attended a Mass which observed the anniversary of the church's dedication (except for "big" anniversaries like 100 years). Even if the parish doesn't properly observe the solemnity with the required liturgy, the faithful who are canonical members of that parish can observe the solemnity with a dignified, solemn Mass and a piece of choice, juicy steak or head out to Culvers® for that bacon deluxe and Concrete Mixer.®

Update: I neglected to mention the Friday within the Octave of Easter--next year, that will be on April 25. Leah would also be excused from penance on that day, even though the General Norms for the Liturgical Year speak of this as a day "celebrated as" a Solemnity of the Lord (see no. 24). Why does it not just say that it is a Solemnity? I don't know. But, since "burdens are to be restricted and favors multiplied" (a traditional, legal axiom in the Church) and doubtful laws do not bind (see canon 14), I think penance is not obligatory. Maybe I'm too generous and/or addicted to hamburgers...