Sunday, August 3, 2014

Is the Annulment Process "Healing"?

This is not a question anybody asked me but I often hear it said that the "annulment process" is a healing experience. Maybe some Petitioner's, even a majority, would say this. But, frankly, I am starting to cringe when I hear this statement from those who process nullity cases or encourage people to attempt to regularize their marital status. The bottom line is that we shouldn't promise everyone, and everyone shouldn't expect, that this process will be "healing." What if the decision ends up being "negative"? What if the process is unduly prolonged so that the Petitioner gives up or feels betrayed by the Church? What if the Respondent thinks the marriage was valid--will he/she find it to be a healing experience? If I, as a Defender of the Bond, argue for the validity of the marriage, am I standing in the way of "healing"?

This reminds me of one of the questions circulated in preparation for the upcoming Synod on the family, which asked: "Could a simplification of canonical practice in recognizing a declaration of nullity of the marriage bond provide a positive contribution to solving the problems of the persons involved?" The "canonical practice" involving the nullity process is not supposed to "solve the problems" of anyone. It is not designed to "heal" anyone. It is carried out in order to arrive at the truth. If we advertise the process as one that "solves problems" or "heals", we are in danger of misleading people.

Perhaps it is best to simply tell people what the process is and why it has the form it has and not dangle such ideas (it's healing/solves problems) out there as canonical carrots, hoping they will entice the people to bite and present a nullity petition. If the completion of the process brings "healing" or "solves problems", great. Let the people themselves make that decision and announcement.

Tuesday, July 1, 2014

Is a Pope Like Rameses II?

I've been thinking about the prior post on the Pope and excommunication of the mafia.... Compare these three scenarios:

I happen to run into the Pope, who says: "Hey, you better shape up and obey canon #1753. No carbonated drinks on Friday."
Me: "There isn't any such canon, Your Holiness."
Pope: "Yes there is. This morning, I told a Swiss Guard outside St. Peter's that I made the new law. That was the promulgation."
Me: "Huh?"

Pope at Mass: "As of now, I can and will promulgate law in whatever way I see fit."
Me meeting the Pope after Mass: "Ok. I suppose you can do that, canon 331 and all....might be a bit difficult for us to keep up, though, and it doesn't seem practical."
The next month, the Pope tells a Swiss Guard about c. 1753. Later that day, he meets me and we have the above conversation, but concluding with me saying "Oh. If you say so."

The Holy See makes public a document whereby the Pope states that he is amending the Code of Canon Law by adding c. 1753: no carbonated drinks on Friday. The law is in effect immediately. The next week, I run into the Pope with my caffeinated, carbonated, filtered water (they probably actually sell something like that) but have to toss it when he reminds me of the law.

In the first instance, the Pope has no reason to expect that I will take him seriously. To me, it would be more likely that he would only say such things in jest. In the second instance, my obligation to follow the new law is clear. The Pope made it possible for me to have some certainty as to what he was doing and what I was supposed to do, even though it was a surprise to me. In the third instance, nobody has any question about the existence of the law. I just forgot about it.

Let's consider another possibility. Pope Francis, in one of his patented interviews, says: "Carbonated drinks really aren't appropriate on Friday, when we should be performing penance. I've heard that Pope Benedict XVI never drank his Fanta on Friday. Let's all follow his example." Some people might respond by saying that this is now "the law of the land": no one is permitted to drink such things--at least Fanta--on Friday. I would beg to differ since such a comment doesn't mean much from a legal perspective.

These days, one can see an "antinomian" tendency from time to time.  There can also be a misunderstanding of how the law works, especially in regard to the role of the Pope. Essentially, some might think the Pope's words are necessarily legislative works: whatever he says about something that has any connection, however remote, to the law is to be taken as a legislative, executive, or judicial declaration. This is not antinomianism but is problematic. I'll call it ignominianism or maybe Yul Brynnerism. No, the Pope is not Rameses II, as portrayed by Yul Brynner.

Both the law itself and the way it comes into being has to be rational and orderly. When there is an official, established method for law to be "promulgated" everyone can expect that all legislators will follow that method. In the absence of order in how a law comes into being, there is necessarily an absence of certainty as to what the law is. While the law exists, we rightly expect even the Pope to abide by it. If he intends to change the law, there is an established, legal and orderly way to go about it. If he doesn't follow that "way" then it is reasonable to conclude that he is not operating in the canonical, legal sphere. His words are to be taken in, for example, a pastoral, exhortative tone, not in a legal one.

Here are a few remarks from St. John Paul II on the role of law in the Church:
2. ... In the Church, then, the purpose of law is the defense and promotion of the “glorious liberty of the children of God” (Rom 8:21); this is the Good News which Christ sends us to bring to the world. To see the law as spiritually liberating runs against the grain of a certain understanding of law in Western culture, which tends to view law as a necessary evil, a kind of control required to guard fragile human rights and restrain wayward human passions, but which would disappear in the best of all possible worlds. This is not the biblical view; nor can it be the Church’s view. ... Ecclesiastical law gives form to the community or social body of the Church, always with a view to that supreme objective which is the salvation of souls (cf. Canons 747, 978, 1752). Since this ultimate end is attained above all through the newness of life in the Spirit, the provisions of the law aim at safeguarding and fostering Christian life by regulating the exercise of faith, the sacraments, charity and ecclesiastical government.
3. The common good which the law protects and promotes is not a mere external order, but the sum of those conditions which make possible the spiritual and internal reality of communion with God and communion between the members of the Church. Consequently, as a basic rule, ecclesiastical laws bind in conscience. In other words, obedience to the law is not a mere external submission to authority but a means of growing in faith, charity and holiness, under the guidance and by the grace of the Holy Spirit. ... 
6. Dear Brother Bishops, the purpose of these brief considerations is to encourage you in overseeing the faithful application of canonical legislation: this is essential if the Church is to show herself ever more equal to the task of carrying out her salvific mission.... A deeper appreciation of the importance of canon law in the life of the Church and the implementation of measures to guarantee a more effective and conscientious administration of justice must be a central concern of your Episcopal ministry. Fidelity to ecclesiastical law should be a vital part of the renewal of your particular Churches. 

Monday, June 23, 2014

The Pope and Excommunication

Late last week, the Pope said the following: "Those who in their lives have taken this evil road, this road of evil, such as the mobsters, they are not in communion with God, they are excommunicated." Many news outlets took that comment and ran with it. Bloggers commented (I'm a little late to the party) and others posted comments on the articles and blogs. I thought I'd make a few observations of my own.

First, the Pope did not actually impose or declare the penalty of excommunication on anyone. That's obvious from the comment itself--he didn't name names and it is impossible to excommunicate people generically or indiscriminately. It is a penalty that is individually incurred and individually applied. (Note: to "impose" the penalty means just that--the proper, ecclesial authority decides that a person deserves to be punished with a penalty and so he imposes it. To "declare" a penalty means that a person has already been punished by means of an "automatic" penalty and the authority is making this fact public through the "declaration.")

Second, and it seems this hasn't been repeated enough since people still confuse the two, the penalty of excommunication (c. 1331) is not the same as the denial of Holy Communion (c. 915). It can so happen that a person who is denied Holy Communion in accord with the terms of canon 915 can also be legitimately denied other Sacraments (for example, c. 1007--Anointing of the Sick). It might be the case that the state of soul of those in both categories is the same (i.e., a state of mortal sin). Similarities aside, there are clear, canonical differences. Most obviously, excommunication is a penalty while the norm of canon 915 is not part of the Church's penal law.

Third, it seems to me that the Pope was speaking more to the effects of mortal sin than to the canonical notion of excommunication. For "the mobsters," their grave sin is apparent and known to the public and so the Pope considered it possible to make his own public statement.

Considering the second and third points, perhaps the Pope's words are more closely related to c. 915 than c. 1331 or anything in Book VI of the Code of Canon Law. If so, priests in that area and wherever "the mobsters" are active should seriously consider denying them Holy Communion. In fact, for anyone who obstinately persists in manifest grave sin, the priest is obliged to deny Communion (cf. here, number 4).

June 24 Update

I was listening to Al Kresta's show yesterday and the first hour news summary included this story about the Pope and the mafia. Unfortunately, the report claimed that the Pope made the "unusual step" of "excommunicating all members of organized crime." I respond that it is so unusual that it still hasn't happened.

Wednesday, June 4, 2014

Radical Sanitation?

What's a radical sanitation?

That's what you have to do in the milking parlor after you finish with the last cow and know the inspector is coming. Get the hose, the broom, the brush, the soap, and the sanitizer and get to work. Better fire up the pressure washer, too.

Ok, I'll admit, nobody asked me the above question (and hardly anybody reading this knows what I'm talking about). But, I've heard people say "radical sanitation" when they meant to say "radical sanation." A few months ago, I put up a post about convalidation and made a passing remark about a radical sanation. Finally, I'm going to complete that thought.

A radical sanation is one of the two ways an invalid marriage is made valid (the other way is a "simple convalidation"). Canon 1161 §1 says: "The radical sanation of an invalid marriage is its convalidation without the renewal of consent, which is granted by competent authority and entails the dispensation from an impediment, if there is one, and from canonical form, if it was not observed, and the retroactivity of canonical effects."

Let's look at an example. A Catholic wants to marry an unbaptized person. To do so, he must first be dispensed from the impediment of "disparity of cult" (canon 1086). However, his pastor forgets to send the request for the dispensation to the chancery. The man is allowed to marry in the Church. That marriage is invalid and his pastor discovers it, a day after the wedding, as he is finishing up the paperwork. Since he realizes that the error was his own and he does not want to trouble the newlyweds, the pastor decides to approach the bishop for a sanation of this marriage without bringing up the matter to the couple (see canon 1164). The bishop grants the sanation and the marriage, once invalid, is now valid.

As canon 1161 notes, a sanation can be effective if there was an impediment or if canonical form was not observed. The consent of the Parties, however, must be sufficient and present. If it is not, the sanation will not validate the marriage: "Canon 1162 §1. A marriage cannot be radically sanated if consent is lacking in either or both of the parties, whether the consent was lacking from the beginning or, though present in the beginning, was revoked afterwards." Canon 1163 §1 reinforces this: "A marriage which is invalid because of an impediment or a defect of legitimate form can be sanated provided that the consent of each party perseveres." In this example, the priest has no reason to doubt the presence of sufficient consent since he himself witnessed the exchange of consent and it took place only a day before the sanation was requested.

People often wonder what "the retroactivity of canonical effects" means and note that the Latin phrase behind "radical sanation" is sanatio in radice--"healing in the root." Another translation of sanatio in radice is "retroactive validation"--does all of this mean that the marriage itself is made valid from the moment of the wedding? Some people, including some canon lawyers, say that it means just that; I, and other canon lawyers, don't think so. You can take a look at the CLSA's "Green Commentary" (the marriage is made valid from the beginning) and the "Exegetical Commentary" (it's valid from the time of the sanation) to see both points of view. I find the Exegetical Commentary to be more persuasive.

The basic rationale behind my position is this. Consider canon 1161 §2: "Convalidation occurs at the moment of the granting of the favor. Retroactivity, however, is understood to extend to the moment of the celebration of the marriage unless other provision is expressly made." The convalidation--that is, making the marriage valid--occurs at the moment the favor is granted. When the bishop signs the paper, the marriage is made valid. Retroactivity "of canonical effects" (c. 1161.1) refers to the moment of the exchange of consent. A canonical effect is the legitimation of children; the marriage itself is not a canonical effect. This is, indeed, a radical/retroactive validation since the marriage's canonical effects are made present and valid from the beginning but the validation of the marriage itself "occurs at the moment of the granting of the favor." I don't know how canons 1161 § 1 and 1161 §2 could be more clear.

If one asks "I got married outside the Church (i.e., the marriage is not valid due to lack of form) but received a radical sanation 15 years later. Should I celebrate the anniversary on the day of the wedding or the day of the sanation?" I'm only going to say that your marriage was made valid when the sanation was granted and I'm happy that you have a valid marriage. That is something worth celebrating. What you decide to celebrate, when, is up to you.

Monday, June 2, 2014

Can I celebrate Mass in a non-Catholic church building?

I've been invited to offer Mass at a "community church." It is said that Catholic Masses have been celebrated there before. Do I need the permission of the bishop to do this, or the pastor of the local parish? Or, can I do it with no permission from anyone?

Without question, the proper place for Mass is a "sacred place" (i.e., Catholic church, oratory, chapel), with the sacrifice taking place on a dedicated or blessed altar (see canon 932). That very canon allows, however, that Mass can take place in any "decent" place, as long as the sacrifice takes place upon a cloth and corporal and necessity requires the celebration to occur in that place. It is up to the celebrating priest to determine whether or not a "necessity" exists and what "decent" means. Consequently, Fr. Smith, the newly-ordained and lowest-ranking student in canon law school, can autonomously decide to offer Mass for his lay classmates in the backyard of his rental home. No doubt, if Fr. Smith takes this liberty too far, word could reach his superiors and he might personally be prohibited from offering Mass anywhere except in a Catholic church/oratory/chapel.

But, if Fr. Smith has a few non-Catholic classmates in canon law school (stranger things have happened.....well, maybe not) and they want him to offer Mass at their "Hay Creek Community Church", he can't do it without the express permission of the local ordinary. The local ordinary must have a just cause for granting the permission and see that scandal has been eliminated (see canon 933). "Local ordinary," by the way, means the diocesan bishop, vicar general, or episcopal vicar (cf. canon 134.1-2). You, then, must approach your local ordinary before proceeding with this Mass.

You might think "why would I need permission to have a Mass in an actual church building, even if it is not Catholic, and don't need it to have Mass in the backyard? Isn't the former location automatically a more 'decent' place than the yard?" Maybe it is, from an aesthetic standpoint. However, as the canon itself notes, the faithful might be "scandalized" by a Mass being offered in a non-Catholic church building. In other words, they might be led to think that there is no significant difference between the Catholic faith and the faith as practiced by this other community (= "indifferentism"). They might be led to think that the other community's beliefs and practices are all acceptable.

The closer the other community is to the Catholic faith, then, the less chance there is for such scandal and the more readily the permission could be granted. Another point to consider is that the authorities in the other community also have to permit the Mass to take place in that church. It is fitting for the local ordinary to communicate with the other leader(s) and determine both their willingness for the celebration and their particular "brand" of Christianity. The local ordinary might discover some "issues" in that community's practice (or lack thereof) of the Christian faith that would make it impossible to say that there is no chance of scandal. You may want to investigate this matter yourself: even if the local ordinary gives the green light, you might be uncomfortable having Mass at the church of a community that holds to this or that heresy (I think I can still use that word) or is on the wrong side of some "hot-button" moral question.

A final note: you should inquire with your diocese to see if there is any particular law regarding canons 932-933. There might be some general regulations you should review and heed.

Wednesday, May 28, 2014

Wading into Eastern Waters...Just a Little

A child has a Greek Orthodox father. The father agreed that his children could be baptized and raised Catholic since their mother is Catholic. She is from England and her maiden name suggests that she is Latin Rite Catholic. The child was baptized Catholic in a Latin Rite Church although I don't think there was any advertence to the rite of the child. If he parents didn't specify the Rite they wanted their child to be, would he be Greek or Melchite Catholic since his father is Greek Orthodox?
This seems to be a simple case to me, which is somewhat disconcerting--I almost automatically think that any question involving anything remotely connected to the law of the Eastern Churches has to be complicated.
Leaving that fear aside, I think the situation you describe leads to the inevitable conclusion that this child is a Latin Catholic. Canon 111, §1 (Latin Code) states: "Through the reception of baptism, the child of parents who belong to the Latin Church is enrolled in it, or, if one or the other does not belong to it, both parents have chosen by mutual agreement to have the offspring baptized in the Latin Church. If there is no mutual agreement, however, the child is enrolled in the ritual Church to which the father belongs." Since the mother is Latin Catholic and there was an agreement to have the child baptized and raised as a Latin Catholic, it looks like c. 111 applies and answers the question: he's Latin Catholic. Even if there was no agreement and no specification of what "Rite" the parents wanted the child to belong to, the child is Latin Catholic.
Remember, the father is not Catholic and so does not belong to any "ritual Church." The law does not make us go into hypothetical meanderings such as "well, this child's father, if he was Catholic, would be a member of such-and-such Church sui iuris. So, the child should be ascribed to that Church."
Even though the "Eastern Code" doesn't apply here because, again, the father is not Catholic and the mother is Latin Catholic, let's look at CCEO c. 29: a person "who has not yet completed fourteen years of age is ascribed by virtue of baptism to the Church sui iuris to which his or her Catholic father is ascribed; or if only the mother is Catholic, or if both parents are of the same mind in requesting it, to the Church sui iuris of the mother...." This is similar to what c. 111 states.
If the child's father himself decided to become Catholic, he would be ascribed to the corresponding, Eastern Catholic Church (CCEO c. 35). If the child's father was already an Eastern Catholic and there was an agreement to raise the child in the Latin Church, the child would be Latin Catholic (see CIC c. 111 and CCEO c. 29). If there was no such agreement, the child would be Eastern Catholic (cf. same canons).

Wednesday, May 14, 2014

Can You Baptize an Alien?

In one of his morning Mass homilies, the Pope implied that even "Martians" should be baptized if they ask for it. One could conclude that the Pope was not serious but was only speaking hyperbolically. Nevertheless, I have still seen some people arguing that such an idea is theologically sound. I beg to differ. Theologians (and this is a matter of theology to which canon law must correspond and apply) have often stated, clearly, that only unbaptized, living, human beings are the subjects of baptism. One can find this, for example, in the old Catholic Encyclopedia entry on baptism.

The Code of Canon Law likewise says: "Every person not yet baptized and only such a person is capable of baptism" (c. 864). We all know that baptism can only be received once and nobody doubts that only a living person can receive a Sacrament. Why is it limited to persons? Baptism is for the descendants of Adam, that is, those who are laboring under the burden of original sin. Its first effect is the imparting of justifying grace which remits original sin. If there is no sin, there is no need for Sacraments and the "Sacramental economy" instituted by Christ would not be applicable.

Would "Martians" be free from all sin? Who knows. But, unless we adopt a "Stargate SG-1" mythology that says human beings from Earth were, over the course of thousands of years, transported to other planets, we can be sure that the "Martians" are not descendants of Adam and Eve.

Sure, this question leads to begins and ends with speculation but canon law is so great that even this topic can be addressed by referencing the Code.