Monday, January 25, 2016

Pope Francis to the Rota: 2016

Every year, the Pope delivers an address to the Roman Rota. The Rota is the "court of higher instance at the Apostolic See" (Pastor bonus, art. 126). It is usually a court of appeal: a case is heard on the local level and a Party to that case can appeal the decision to the Rota. The basic purposes of the Rota are to safeguard the rights of the faithful, foster unity of jurisprudence (provide a proper understanding and application of the law) and "by virtue of its own decisions, provide assistance to lower tribunals" (see prior citation).

On January 22, the Pope gave his address and it can serve as a corrective to a couple erroneous notions that might be cropping up here and there. After the Pope's changes to the nullity process were made known, I expressed some surprise at how the issue of a "lack of faith" made its way into the discussion of the "brief process" used for cases of "obvious nullity." This inclusion can lead some to think that the baptized have to have a certain "level" of belief or practice the faith a certain amount in order to contract a valid marriage. If they don't, the marriage will be obviously invalid. It can also lead some to think that Christian marriage (i.e., the Sacrament of Marriage) is essentially different from natural marriage (marriage among two unbaptized persons, for example). In other words, two "non-believing" Catholics might be able to form a natural marriage but their lack of faith prevented a Sacramental union.

According to CNA, the Pope said:
"It should be clearly affirmed that the quality of faith is not an essential condition for matrimonial consent”.... Consent – the typical basis for a tribunal investigating the validity of a marriage – “according to the longstanding doctrine, can be undermined only at a natural level,” Pope Francis reminded the judges.
Marital consent "at the natural level" is what tribunals are concerned with: there is no investigation of the "sacramentality" of marriages. There is no investigation of a person's religious fervor.  If a person "lacks faith", that deficit is relevant only in the measure that it makes marital consent "at the natural level" ineffective. For example, a Catholic can have "faith" that is so perverted that he actually rejects the notion of the Sacrament of Marriage. When Tom the Apostate married Suzy Pious, he didn't really know what a Sacrament is. All he knew was that he did not want a Sacramental marriage. In rejecting the Sacrament of marriage, he actually rejected marriage itself. This is "simulation" of consent.

Pope Francis continued:
“The lack of formation in faith and also an error regarding the unity, indissolubility and sacramental dignity of marriage may vitiate matrimonial consent only if they determine the will. It is precisely for this reason that errors regarding the sacramental nature of marriage must be evaluated very carefully.” 
Here, he addresses another way in which a "lack of faith" can make a person's marital consent "at the natural level" ineffective: through an error which determines the will. For example, Elizabeth Protestanta was baptized but raised in a rather anti-Catholic environment. Nevertheless, she even went to a Catholic school (...to make it more believable, let's say it was C.T.U. in Chicago) and was exposed to the idea of the Sacrament of marriage but concluded that the Catholic position is wrong.

In fact, she is the one who is in error. Her error is so deep-seated that when she married Joe Catholicus, her error "determined her will." She desired a marriage that was not Sacramental: in her mind, there is no such thing as a Sacrament of marriage and she wanted nothing to do with the Catholic view on marriage between the baptized. This error impacted her marital consent at the natural level. As was the case with Tom the Apostate, what she chose was not marriage.

Why is it Tom and Elizabeth's rejection (in different but related ways) of the Sacrament amounts to a rejection of marriage itself? Christ the Lord has raised marriage to the dignity of a Sacrament, for the baptized (CCC #1601, Code of Canon Law, c. 1055). There is no essential difference between a "natural marriage" and a "sacramental marriage"--both have the same essential properties and elements. Pope Leo XIII said:
Let no one, then, be deceived by the distinction which some civil jurists have so strongly insisted upon - the distinction, namely, by virtue of which they sever the matrimonial contract from the sacrament, with intent to hand over the contract to the power and will of the rulers of the State, while reserving questions concerning the sacrament of the Church. A distinction, or rather severance, of this kind cannot be approved; for certain it is that in Christian marriage the contract is inseparable from the sacrament, and that, for this reason, the contract cannot be true and legitimate without being a sacrament as well. For Christ our Lord added to marriage the dignity of a sacrament; but marriage is the contract itself, whenever that contract is lawfully concluded. 
Marriage, moreover, is a sacrament, because it is a holy sign which gives grace, showing forth an image of the mystical nuptials of Christ with the Church. But the form and image of these nuptials is shown precisely by the very bond of that most close union in which man and woman are bound together in one; which bond is nothing else but the marriage itself. Hence it is clear that among Christians every true marriage is, in itself and by itself, a sacrament; and that nothing can be further from the truth than to say that the sacrament is a certain added ornament, or outward endowment, which can be separated and torn away from the contract at the caprice of man (nn. 23-24; emphasis added).
For further, better, smarter, reflections on the Pope's address, here is an interview with a Rotal Judge.

Thursday, January 21, 2016

Annual Footfight Might Be Coming to an End

So, at long last, the Holy See has decided to change the Holy Thursday rubric regarding the "chosen men" who have their foot/feet washed (link). Does this mean that we won't have anymore "footfights" about that parish over there having women and girls getting their feet washed or that Pope over here washing the feet of men, women, children, etc.? I suppose it will. But, if any priest dares to wash only the feet of men, he should be ready for some backlash...

In general, I don't care too much about who gets a foot washed. I would prefer the Dr. Peters proposal of moving the foot washing to the Chrism Mass and have the Bishop wash the feet of chosen priests (don't know how many Bishops would go along with that, though). I do care about the observance of law. I'm glad, then, that we should now have a law that will be more widely observed--the ritual is full of options (these people "may" be chosen) so it's practically impossible to not follow it or break it.

Well...on the other hand, now that I think about it, there are parishes where everybody washes somebody else's feet. That is still not allowed. The priest is supposed to do the washing. I've also heard about parishes where people have their hands washed ("not quite the best symbolism there" --Pontius Pilate). Unfortunately, this particular ritual has been toyed with for so long, by so many people, that I expect the innovations to continue.

I started writing this post with some feelings of optimism: this particular law will, at last, be observed. Now, though, I'm more pessimistic.

Tuesday, January 12, 2016

Can my son be an acolyte?

My teenage son is wondering if he can be installed as an acolyte. What is an acolyte, anyway?

The existence of the office of acolyte goes back to the early years of the Church. Up until the 1970's, it was the highest of the "minor orders" (porter, exorcist, lector, acolyte) and only those who were in formation to become priests were ordained as acolytes.

In a 1972 document called Ministeria quaedam, Pope Paul VI decided to make some changes for the entire Latin Church. Only the offices of acolyte and lector would continue to exist. These functions would still be reserved to men but not only to men in formation for the priesthood. Instead of being "ordained" as a lector or acolyte, a man would be "installed." Individual conferences of bishops could continue to utilize the other, old offices (porter and exorcist) or begin using new ones (such as "catechist"). It is also up to the conference of bishops to make regulations about who can be installed as a lector and/or acolyte.

Canon 230 adopts some of what was contained in Ministeria quaedam and states: "Lay men who possess the age and qualifications established by decree of the conference of bishops can be admitted on a stable basis through the prescribed liturgical rite to the ministries of lector and acolyte."

The United States Conference of Bishops has determined the following: "a layman who is to be installed in the ministries of lector or acolyte on a stable basis must have completed his twenty-first (21) year of age. The candidate must also possess the skills necessary for an effective proclamation of the Word or service at the altar, be a fully initiated member of the Catholic Church, be free of any canonical penalty, and live a life which befits the ministry to be undertaken."

That answers your first (implied) question: no, a teenager is not able to be installed as an acolyte. That being said, your own diocesan bishop could dispense from this requirement but I doubt that would ever happen. In practice, by the way, the vast majority of dioceses only install men as acolytes if they are in formation to be ordained as deacons and/or priests. (One exception is the archdiocese of Galveston-Houston. Another is the diocese of Lincoln.)

What is an acolyte? According to Paul VI, he is a man who is specially entrusted with the following tasks:
The acolyte is appointed in order to aid the deacon and to minister to the priest. It is his duty therefore to attend to the service of the altar and to assist the deacon and the priest in liturgical celebrations, especially in the celebration of Mass; he is also to distribute communion as a special minister (we now use the term "extraordinary minister") when the ministers spoken of in the Codex Iuris Canonici can. (910.1) are not available or are prevented by ill health, age, or another pastoral ministry from performing this function, or when the number of communicants is so great that the celebration of Mass would be unduly prolonged. In the same extraordinary circumstances an acolyte may be entrusted with publicly exposing the blessed sacrament for adoration by the faithful and afterward replacing it, but not with blessing the people. He may also, to the extent needed, take care of instructing other faithful who on a temporary basis are appointed to assist the priest or deacon in liturgical celebrations by carrying the missal, cross, candles, etc., or by performing other such duties. He will perform these functions more worthily if he participates in the holy Eucharist with increasingly fervent devotion, receives nourishment from it, and deepens his knowledge about it. 
As one set aside in a special way for the service of the altar, the acolyte should learn all matters concerning public divine worship and strive to grasp their inner spiritual meaning: in that way he will be able each day to offer himself entirely to God, be an example to all by his gravity and reverence in church, and have a sincere love for the Mystical Body of Christ, the people of God, especially for the weak and the sick (Ministeria quaedam, n. 6).
Another function for the acolyte is the purification of the sacred vessels after the distribution of Holy Communion (see the General Instruction of the Roman Missal, n. 192. The General Instruction, in numbers 187-193, gives a complete listing of the duties of the acolyte during the course of the Mass).

You might find it informative to get in touch with your diocesan bishop or the diocesan office of divine worship: what's the local practice in regard to the installation of acolytes?

An editorial comment: I was amused to read what the bishops of Scotland said about canon 230: "when the need arises" they will "determine the age and qualities of aspirants to the ministries of lector and acolyte." In other words, "we'll get back to you on that." They said that in 1987. As of today, I see no indication that they have said anything new.

In the duties of an acolyte, the only one that is unique is the purification of the sacred vessels. Other than that, anybody can do what an acolyte does. It seems to me that since we have men, women and children acting as "acolytes" for all intents and purposes, there is no practical reason for bishops to be "exclusive" and install only men as acolytes.

Monday, January 4, 2016

Admission to seminary with "same sex" attraction?

I recently heard on Catholic radio someone asking a question to Father Larry about vocation candidates to the priesthood having same-sex attraction. He explained that there is a difference between men with same sex tendencies and deep-seated homosexual tendencies. He also said that candidates with same sex tendencies could be considered to the priesthood. My question concerns candidates in the seminary or in religious community formation who have same sex tendency....why would a candidate pursue a spiritual life where the would be surrounded by men in the diocese or religious community? It would seem that would make their condition much harder to overcome.

Your concern is quite reasonable. It indeed would seem to be a difficult environment for such a person. I didn't hear what Fr. Larry said but, by your account, he might have been a bit lenient. I cannot say much on the topic other than what has been said by the Holy See:

...this Dicastery, in accord with the Congregation for Divine Worship and the Discipline of the Sacraments, believes it necessary to state clearly that the Church, while profoundly respecting the persons in question, cannot admit to the seminary or to holy orders those who practise homosexuality, present deep-seated homosexual tendencies or support the so-called "gay culture". 
Such persons, in fact, find themselves in a situation that gravely hinders them from relating correctly to men and women. One must in no way overlook the negative consequences that can derive from the ordination of persons with deep-seated homosexual tendencies. 
Different, however, would be the case in which one were dealing with homosexual tendencies that were only the expression of a transitory problem - for example, that of an adolescence not yet superseded. Nevertheless, such tendencies must be clearly overcome at least three years before ordination to the diaconate.
So, there are those who "practice homosexuality, present deep-seated homosexual tendencies or support the so-called 'gay culture'". They can't be admitted. On the other hand, there are those who had a "transitory problem." Note the past tense: the tendencies "were..." but now the tendency has been overcome. What does it mean to "clearly overcome" such tendencies for a period of at least three years? It would seem to mean that the tendency no longer affects the person. Practically, then, the tendency itself no longer exists. I suppose a more fundamental question is: what is a "tendency"? It is an inclination, disposition, susceptibility. The person has to "overcome" the inclination/disposition/susceptibility. Any action, over the course of at least three years, which exhibits the fact that the tendency has not been overcome would mean that the person is not fit for ordination. In that sense, the seminary can be a real testing ground. 

All those involved in priestly formation, including the students, have to be honest both in admitting their own inclinations and detailing the behavior of other students which exhibits the tendencies we are discussing here. Without honesty, discernment and formation are impossible. 

Tuesday, November 24, 2015

Internal forum

For at least 45 years, there have been discussions, errors and decisions regarding what is called the "internal forum solution" for Catholics who are "divorced and remarried." The proponents of this "solution" say that there are people who are unable to approach a tribunal to have their "first marriage" examined for validity and (inevitably, it seems) declared invalid. It would be unjust to simply leave such people out in the cold. So, to minister to them in a "pastoral" way (rather than a legal/canonical/juridical way), the local priest should discuss the matter with such persons in the "internal forum" and eventually, if warranted, tell them that they are no longer bound to their prior marriage. They can then participate fully in the life of the Church. Here is an example of one such proponent of this perspective. I could produce many more.

In paragraph 86 of the final document from the 2015 Synod of Bishops, we read:
The process of accompaniment and discernment directs these faithful to an awareness of their situation before God. Conversation with the priest, in the internal forum, contributes to the formation of a correct judgment on what hinders the possibility of a fuller participation in the life of the Church and the steps that can foster it and make it grow (source).
Many times, proponents of the "internal forum solution" don't bother to refer to canon law. I have seen, though, some people see the phrase "internal forum" and connect this passage from the Synod document to canon 130 of the Code of Canon Law: "Of itself, the power of governance is exercised for the external forum; sometimes, however, it is exercised for the internal forum alone, so that the effects which its exercise is meant to have for the external forum are not recognized there, except insofar as the law establishes it in determined cases." The article I linked to above makes the connection between "internal forum" and canon 130. Why would anyone connect the two? To suggest that it is possible for "the priest" (as the Synod document says) to exercise "power of governance" in the "internal forum" so that a "divorced and remarried" Catholic is able to have their marital situation regularized and receive Holy Communion. Since the Code of Canon Law says this is possible, people should not be upset at how the Synod has simply restated what's already in the Church's law. "Conservatives" should get educated and get over it. So goes the argument (maybe without the prior sentence).

The purpose of this post is to show that there is no connection at all between what the Synod document says about the "internal forum" and canon law. Furthermore, there is no support for the "internal forum solution" in canon law.

Canon 130 is, as plainly seen in the text, about the exercise of the power of governance. There are three aspects of the power of governance in the Church: legislative, executive and judicial. Diocesan bishops can exercise all three aspects and cannot grant their legislative power to anyone else (the Pope can make such a grant but no other Diocesan bishop can do so). Diocesan bishops routinely "delegate" their executive and judicial power to priests. For example, the Vicar General is the bishop's cooperator in regard to executive power while the Judicial Vicar cooperates in regard to judicial power.

Certainly, the parish priest cannot exercise legislative power. Could it be judicial power? This really seems to be what he is doing: making a judgment about a person's marital status based on information given to him by the Party. This, however, is impossible. First of all, the typical parish priest does not have the ability to exercise judicial power: this has to be specifically granted to him by the Diocesan bishop. It could happen that a Bishop would grant all priests this ability, though, so this is not a fatal defect. The essential point is that judicial power cannot be exercised in the internal forum because it is necessarily an action of the external forum: all the interested Parties must be able to know what evidence has been presented and be able to contest it. Most importantly, all interested Parties must be able to know what has been decided. If a priest and person have an "internal forum" conversation and the priest makes some determination about the person's marital status in the "internal forum", the other Party couldn't and wouldn't be able to contest the "evidence" and defend himself. He also wouldn't know about the decision (unless the person revealed it--but, the point is that the one who made the decision is bound to inform all the Parties).

No, it's not judicial power. Can it be executive power? Executive power can indeed be exercised in the internal forum. There are many different expressions of executive power: dispensations, remissions of penalties, precepts, singular decrees of various kinds, instructions, etc. In the context of a "divorced and remarried" person's participation in the life of the Church, what could the priest do in terms of executive power? It seems to me that the only possible action would be a dispensation. The law itself makes mention of dispensations being granted in the internal forum (in canons 1079, 1082). Can a "divorced and remarried" Catholic be dispensed from something and then be "regularized"? The impediment is a prior bond of marriage and this impediment is from the divine law. No one can dispense from the dictates and requirements of divine law. Many times in the course of the Synod process, we were told that "doctrine will not be touched" and "the indissolubility of marriage is upheld." The mere notion that a person could be dispensed from a prior bond is totally contrary to the faith.

If the priest is not exercising power of governance in this scenario, is the "divorced and remarried" person doing so? No. Nobody can be a judge in his own case and, again, no one can dispense from divine law.

Since this notion of the "internal forum" has nothing to do with canon law, what's it all about? My hope is that it is simply about the priest bringing the person to a realization of, at least, the requirements of divine law regarding marriage, divorce, adultery and reception of Holy Communion. That's my hope. Is that what the Bishops were thinking about when they voted in favor of this paragraph of the document? I don't know.

For more information about this topic, see:

A scholarly article

Dr. Peters

A newly minted canon lawyer

Cong. for the Doctrine of the Faith

Card. Ratzinger/CDF

December 2 update: Cardinal Burke has written a short commentary.

Thursday, September 10, 2015

Circumstances which might warrant the "shorter process"

The more I think about it, the more I am bewildered by the Pope's new legislation, both in terms of content and timing. One can safely say that the introduction of the "shorter process" for marriage nullity cases is the most groundbreaking and surprising development. In this post, let's look at the possible reasons which might suggest the utilization of this new procedure. In the legislation, in article 14, we read that the following facts are to be considered:
  • lack of faith resulting in the simulation of consent to be married or an error that determines the will regarding one of the requirements of marriage
  • the brevity of married life (i.e., the couple divorced very quickly after being married)
  • procured abortion to prevent procreation (presumably during the marriage itself, prior to bearing other children and thus showing an unwillingness to procreate)
  • the stubborn persistence in a extramarital affair at the time of the wedding or at a time immediately following
  • the malicious concealment of:
    • infertility
    • a serious contagious disease
    • children born from a previous relationship
    • an incarceration
  • a reason for getting married that is completely foreign to married life (presumably something like entering a legal fiction of a marriage to be able to immigrate or gain an inheritance) or consisting of the unplanned pregnancy of the woman
  • the physical violence inflicted to extort the consent to marry
  • the lack of use of reason proved by medical documents
(Thanks to Jimmy Akin for this translation. The parenthetical remarks are Akin's.)

It has to be noted that the official text concludes with a problematic and eyebrow raising "etc." Be that as it may, here are a few points I'd like to make.

1. With this list, the Pope is not introducing new "grounds" for nullity. These basic "fact patterns" are seen as indicative of established grounds such as simulation (c. 1101), determining error (c. 1099), deceit (c. 1098), force/fear (c. 1103), and lack of reason (c. 1095.1).

2. I would take issue with the suggestion that an "unplanned pregnancy" is a "reason for getting married that is completed foreign to married life." Procreation/education of children is an essential element of marriage, after all. Is it always appropriate or wise to marry only because of a pregnancy?No, but marrying in order to properly raise a child is not "completely foreign" to marriage itself.

3. The Church does not now have a "latae sententiae annulment." In other words, the mere presence of such facts does not amount to proof of an invalid marriage. This is an essential point since I have already seen online commentary from people saying "Hey, that was me. I was pregnant. Is my marriage automatically invalid now?" No, it isn't. Even in the "shorter process", there has to be conclusive proof which leads to moral certainty in the judgment of the Bishop.

Let's take another example: a person says "he had a baby with another woman but didn't tell me." Proof of "malicious deceit" is much more involved than this simple statement, even if it is 100% true. What did the woman do when this fact was revealed? Stay in the marriage? If so, the deceit is not of a "nullifying" quality. Was the deceit intentional and for the purpose of securing the woman's consent (see canon 1098)? If not, it is not nullifying. Let's say a man was in jail for three months for selling drugs. The woman knows the he was once a drug user but has now reformed his life. She does not know that he was incarcerated and he has truly withheld that fact. Is that a fact which, by its nature, can seriously disturb the partnership of conjugal life (see canon 1098)?

4. Repeating what I said in my last post, I can't believe "lack of faith...." made its way into these norms.

5. Finally, for the sake of offering some perspective on what actual nullity cases are like, here is what I have seen, according to my recollection, in 500+ nullity cases: how do they fit into this list?

  • Lack of faith....: haven't seen it.
  • Brevity of married life: I've seen one case of a marriage of two weeks. That's brief. I've seen a few (guesstimate about 7-10) of less than one year but I'm not sure what qualifies as "brevity." 
  • Procured abortion (during the marriage): haven't seen it for a first child.
  • Persistence in extramarital affair at the outset of the marriage: on a few occasions it has been alleged that a person was unfaithful before/soon after the wedding but "stubborn persistence"? No.
  • Deceit regarding those issues: haven't seen it.
  • A "foreign" reason for marriage: maybe once or twice. Again, there is nothing necessarily "foreign" about marriage being primarily motivated by a pregnancy. I see such circumstances with some regularity (maybe up around 50 by now...)
  • Physical violence to secure consent: haven't seen it.
  • Lack of reason: haven't seen it.
For other commentary, see Peters, Nguyen, and Z.

Tuesday, September 8, 2015

"Renovation" of Marriage Cases

I can limp through either the Latin or Italian versions of the changes introduced into the marriage nullity process (cf. canons 1671-1691). If I offer commentary based on my own translation of the norms, though, it might turn out to be pretty "lame", in more ways than one. Besides, I have other work to do. So, I will limit today's commentary to the following:

--I'm not surprised, but still somewhat disappointed, that the mandatory appeal was dropped.

--I'm surprised that the "shorter process" was introduced before this year's Synod discussed the issue. I addressed this topic in a previous post. How often will this process be used? We'll see. 

--I'm very surprised, and somewhat bewildered, that the impact of a lack of faith on marital consent made its way into the norms--in the section on the shorter process! This is a very delicate issue and, after seeing 500+ marriage cases, I have yet to see one where it was even remotely evident that a person's lack of faith resulted in an invalid marriage. 

--I like the idea that each diocesan Bishop have at least some involvement in the judicial activity in his own diocese. That being said, are there many bishops out there who want to get into these cases?

--I'm happy that the notion of an "administrative" process to deal with nullity cases was rejected.

--I'm happy that the notion of "moral certitude" was retained and wasn't replaced with a "preponderance of the evidence" standard.

--Since my job (for the most part) is to be a Defender of the Bond, I'm not sure if I am happy or not about the effect of the new rules on the role of Defender. The Defender remains a part of each process (that's good) but with the removal of the mandatory appeal, it will fall on the Defender to appeal cases that are not clear (not so good). I don't particularly like to appeal decisions and, up until now, I could say "Well, this is not a solid case in my opinion but three additional Judges will look at the case in the appeal Court so I'll just let it go to them without an appeal." In the future, it won't go to those Judges. So, I'll have to be "the bad guy" and appeal more cases...........