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

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...........

Thursday, September 3, 2015

More Canonical Commentary on Pope's Letter

Some canon lawyers are digging into the particularities of the Pope's September 1 letter (referenced in my last post). I don't want to get into them too much (or at all) but wanted to provide a link to a solid article from Ben Nguyen: he gets into all the particularities any of you readers will ever want. A few of his points, in my mind, might benefit from clarification but, again, I don't care to do that here.

So, if you want to get deep into some canonical...I was going to say "weeds" but will instead say...flowers, fasten your seat belt and click on this link.

I will only say that I think it is clear that Pope Francis is not a canon lawyer. I do hope that a clarifying document will soon be issued by the competent Vatican office.

Tuesday, September 1, 2015

The Pope, Excommunication, Sin, etc.

Ed Peters put up a fine post on today's letter from Pope Francis. Since Dr. Peters' had trouble writing a short blog post, I'll try my hand at it. The canonical issue at hand is the manner in which the Pope, in this letter, speaks about the "sin" of abortion and how all priests will be able to absolve that sin during the upcoming Jubilee Year.

It would perhaps be better if the Pope maintained an appropriate distinction between sins and penalties. Just because a person commits a sin such as abortion does not mean he or she is certainly excommunicated.

A priest can absolve any sin if the penitent is contrite, with one exception--he can't absolve an accomplice's sin against the 6th Commandment (c. 977).

Penalties, such as excommunication, are a different matter and the priest is typically not able to remit/pardon excommunications entirely on his own authority. With the (canonical) crime of abortion, though, it is common for priests to be given the authority to pardon the excommunication.

Even though the Pope (here and elsewhere) has only spoken of the "sin" of abortion, it seems clear that he intends to address the penalty.

That being said, the Eastern Catholic Churches do have a notion of "reserved sins" and abortion is one of them that is reserved to the eparchial bishop. The Pope is addressing his remarks to all Catholic priests, East and West, so his use of terminology is more conducive to the Eastern perspective.

Thursday, August 6, 2015

Excommunication for Divorce/Remarriage

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

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

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

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

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

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

Thursday, July 16, 2015

Rubricism and Ritualism in the Liturgy = Bad?

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

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

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

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

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

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