Canon Law

A comment on a cardinal’s tweet re capital punishment, by Canon Lawyer Ed Peters:
June 17, 2019

Earlier today Cdl. Dolan of New York tweeted: “With the clear and cogent clarification of the successor of St. Peter, there now exists no loophole to morally justify capital punishment.”

The supposedly clear and cogent clarification that Dolan has in mind must be Pope Francis’ 2018 modification of the Catechism of the Catholic Church to assert that the death penalty is “inadmissible”. But, while it is likely that Francis meant what Dolan said, the pope did not quite claim what the cardinal clearly did. Francis (or his handlers) left just enough wiggle room (by using “inadmissible”, an ambiguous term in magisterial-moral discourse) to avoid flatly declaring the DP “immoral” and setting off thereby a magisterial firestorm such as has not been seen for some centuries.

Highly recommended book on legitimacy of Catholic teaching and tradition on Capital Punishment.

Dolan, in contrast, tweeting in terms well-known to tradition, plainly stated that the DP is immoral, thus going beyond what Francis was willing to say. That’s a problem. Indeed, it’s two problems.

(Photo: Highly recommended book on the legitimacy of Catholic teaching and tradition on Capital Punishment.)

1. Numerous serious studies argue (convincingly, in my view) that the liceity of the DP in certain cases is taught by the Church’s infallible magisterium (specifically, as “secondary object” thereof); at the very least, such studies make a prima facie case for the liceity of the death penalty under the infallible magisterium. Therefore, Church leaders contradicting that position must, simply must, deal with the possibility that infallibility is in play here, and, at a minimum, they should refrain from unnuanced declarations that might, in the end, be shown as “opposed to the doctrine of the Catholic Church” per Canon 750 § 2. See also Canon 1371 n. 1.

But the stakes might be higher still.

2. Many of the sources invoked for the liceity of the DP as a secondary object of infallibility (Scripture, Patristics, etc.) are those commonly associated with infallible assertions of primary objects of infallibility, that is, with matters of revelation. Now, while contradicting infallible assertions regarding secondary objects is, as stated above, to make one opposed to the doctrine of the Church, contradicting primary objects of the Church’s infallible magisterium is a specific element of heresy per Canons 750 § 1 and 751. See also Canon 1364. Obviously, this characterization risks even greater harm to the Church.

Am I saying that Dolan has committed heresy in his tweet or that he has expressed opposition to the teaching of the Church? No, but I am saying that declaring the DP as immoral per se puts one at risk of asserting something that many qualified scholars argue powerfully is opposed to infallible Church teaching, and possibly even to contradicting something divinely revealed. The real possibility of so offending the truth should, I think, trigger more respectful caution by those in positions of authority when speaking on these matters.

Think of it this way: A hunter shooting toward something moving in the underbrush can’t defend his accidental killing of a human being by saying “I did not know it was a man, I thought it was a deer.” The hunter has a duty to verify the status of his target before he shoots. Likewise, popes and bishops taking shots at the long-recognized moral liceity of the DP have a duty to verify the magisterial status of that teaching lest they accidentally hit something they had no business aiming at in the first place.

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Edward Pentin interviewed Professor John Rist as to why he signed the controversial letter along with 85 other prominent theologians and scholars. Frankly, I admire these men who stood up and spoke out. They may not have proven formal heresy (which is something I leave to experts and canon lawyers) but the silence in the face of the papal confusion and seemingly intentional ambiguity and silence from the Pope and the Vatican is frustrating and divisive and to hear voices decrying such is refreshing. Where are the bishops?

Professor-John-Rist-CUAOne of many questions in Pentin’s interview with Risk is this: “What other concerns do you have that prompted you to sign the letter?”

Rist replied: I am concerned above all else to expose double-talk, which is how the present Pope has been evading charges of heresy. Uttering ambiguous and/or contradictory remarks on important issues must ultimately be viewed as a planned attempt to change doctrine by stealth. Had such ambiguities/contradictions been occasional, they could be attributed — in accord with the canonical principle of benignity — to “mere” muddle. Prolonged ambiguity on this scale requires that a sadder conclusion be drawn: that there is a design to achieve by stealth what could not be achieved by openly and unambiguously un-Catholic decrees.

What do you say to the various criticisms of the letter: that it represents an “extreme” and “intemperate” approach which “overstates” the case — as some see it — and this makes further criticism of this pontificate harder?

Criticisms of intemperance, etc., whatever their intent, can only have the effect of diverting attention from the main concerns: that the Pope is deliberately using ambiguity to change doctrine and that the attitude he adopts over appointments indicates that he is out of sympathy (to put it mildly) with traditional Catholic teachings on a whole range of subjects. Fussing about “extremism,” etc. seems like fiddling while Rome burns; what it shows is that even many conservatives do not want to grasp the gravity of a situation where the Pope seems bent on turning the Church into a vaguely spiritually flavored NGO.

Another criticism is that the signatories are not in a position to accuse the Pope of heresy, that only bishops can hold him to account for such a charge, and that the letter would have been better just calling on bishops to investigate the alleged heresies rather than accusing the Pope of them. What is your response to this view? 

But calling on the bishops is precisely what the letter does! The signatories are not in a position to convict a pope of heresy; they are in a position to “prosecute” the charge, and we judged it was our duty to do so. The letter is primarily and immediately a challenge to the bishops to act rather than ignore or wring hands only.

What is your view of the critique that it’s not yet possible to accuse Pope Francis of specific formal heresy, but he can be accused of deliberate ambiguity and confusion, or “drift” toward heresy, and that that might have made a better critique?

See my answer above. I am not a canonist, nor (see above) a judge. What I am is someone who believes he can recognize intended heresy in word [and] also how the words are confirmed by the actions.

For the whole interview in National Catholic Register here.

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Genuflecting a No-No?

by Steve Ray on May 5, 2019

Several years ago my wife and visited a new parish (new for us). I genuflected before receiving the Blessed Sacrament. Believe it or not, I was reprimanded by the Extraordinary Minister while he handed me the host. After Mass I spoke with the priest about it and he reprimanded me as well. I told them Quite explicitly they were both wrong and the letter I wrote them below explained why.

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Dear Father:

My wife and I had the pleasure of attending Mass at your parish for the first time Saturday evening, May 15. I found the Mass very reverent and your homily delightful and instructive. I appreciated the explanations about the Council of Jerusalem and the authority of Peter and the need for flexibility within the bounds of the Catholic Church’s teaching. I told you afterwards that I enjoyed your homily very much.

Having said that, I would like to comment on one other matter—namely, being confronted in a rather brusque way about genuflecting while approaching to receive the Eucharist on our first visit to your parish. In addition, I was inappropriately “corrected” by an Extraordinary Minister while receiving communion. The GIRM 160 indicates that even priests should not argue with communicants about posture when they are receiving Communion, saying that they should provide ‘proper catechesis’ (no doubt when the communicant is not in the Communion line). Consequently, it is certainly inappropriate for an extraordinary minister to do so.[i]

First, I am not ignorant of the GIRM’s latest instruction about bowing in reverence before receiving as the norm. The GIRM establishes the norm but in doing so does not forbid other appropriate signs of reverence, including genuflecting or receiving while kneeling. If the GIRM specifically mentions that kneeling is allowed, as it does, it must certainly not forbid the lesser action of genuflecting, especially if it is done in the line prior to actually stepping up to receive. In fact, the GIRM gives specific instructions that even if one kneels they are not to be denied the Eucharist.

Colin B. Donovan, STL (degree received from Angelicum in Rome) commented on the matter by saying:

“The bishops have set the bow as the norm. They have not forbidden kneeling or genuflecting. They cannot, as the Roman interpretations of the norms have made clear. Genuflection is a one knee kneel. It is contained within the statements permitting kneeling, since it is a lesser reverence than kneeling, though stronger than bowing. Standing and bowing replaces kneeling, as the original legislation authorizing bishops’ conferences to choose standing over kneeling makes clear. . . . Indeed, the real issue is not whether genuflecting is allowed but whether the USCCB having chosen standing and bowing as the norm criminalizes or makes disobedient those who desire to do something else. To that question Rome has answered an emphatic no, with respect to kneeling and implicitly genuflecting, and warned the clergy about making it seem so.”

It does not necessarily follow that since bowing is the norm that genuflecting is therefore criminalized.[ii] Though this can potentially be confusing for Catholics, I would suggest that the recent Redemptionis Sacramentum[iii] was promulgated to clarify matters. In no. 90 it says: “The faithful should receive Communion kneeling or standing, as the Conference of Bishops will have determined”, with its acts having received the recognitio of the Apostolic See. ‘However, if they receive Communion standing, it is recommended that they give due reverence before the reception of the Sacrament, as set forth in the same norms’” (176). Also, “Therefore, it is not licit to deny Holy Communion to any of Christ’s faithful solely on the grounds, for example, that the person wishes to receive the Eucharist kneeling or standing” (no. 92).

As I understand it, even though the American norms specify that the sign of respect before receiving is a bow of the head, when the Sacred Congregation for Worship and the Discipline of the Sacraments was queried about whether continuing to genuflect was forbidden, they responded in the negative. Consequently, if genuflecting is not specifically forbidden by Rome, the burden of proof to the contrary certainly falls on the one trying to enforce such a non-existent prohibition.

“The way Americans read law; the norms would be interpreted strictly. But that interpretation is misleading. The law has to be understood in the sense in which it is intended by Rome (which approved the law and whose interpretation of the law is definitive), and Romans do not read law the same way Americans do. Americans tend to take a much stricter interpretation of law that admits of no exceptions unless they are stated in the text itself. Vatican officials, however, often understand laws in a more permissive way that allows for unwritten exceptions” (Jimmy Akin). There are a number of examples I could cite that refer specifically to posture during Mass (e.g., See attachment #2).

Again, genuflecting is a lesser act than kneeling and kneeling is specifically mentioned as an allowed and acceptable posture for receiving Holy Communion. I know I was not denied the Eucharist on Saturday, but even being reprimanded during reception and after Mass for something not disallowed—but even approved of—could prove to be a problem. But the real matter is that if the Holy See has allowed reception by standing or kneeling, genuflecting ahead of time is certainly not a violation of Church law.

I am a ten-year convert to the Catholic Church and have always genuflected out of my great reverence and love for the Eucharist and the Church.[iv] I have always been encouraged to do so. For me it is a personal way of demonstrating my love and utter reverence for the Eucharist, the liturgy, and the Church. I have genuflected while receiving before our own presiding bishop many times (as lately as last week), twice with the Pope in a private Mass; with Cardinal Ratzinger, Cardinal Schonborn, Cardinal Wamala, Cardinal Vidal, Archbishop Foley and Bertoni in Rome, the Patriarch of Jerusalem, the Auxiliary bishop of Jerusalem, the archbishop of Smyrna (St. John’s successor), two Papal Nuncios, and many other knowledgeable and holy priests, bishops and archbishops, including bishops in the United States. Never before have I been reprimanded for expressing my reverence to Our Lord in the Eucharist.

Sometimes I think the reprimand should be for those who refuse to show any reverence toward the Eucharist, but then again that is just my humble opinion.

I understand that you are trying to instruct your community on the norms for worship and I appreciate your efforts and commend you for it. I would suggest though, that tact is a virtue when instructing the faithful and that the postural leniency allowed and protected by Rome should be also allowed and protected in the parishes.

Other than that, as I commented before, I found you very impressive and knowledgeable, celebrating a very reverent liturgy. I plan on visiting your parish again since it is so close to our new home. I look forward to more excellent homilies.

Thanks for being a priest and serving Our Lord and the Church in such a marvelous capacity. I hope this is letter is not taken in an offensive or challenging way. It is simply an honest communication and with the hope we can be friends in the future. I pray for all of God’s blessings on you and your ministry.

Respectfully yours in Christ and in His Church,

Steve Ray

PS. Later this week I will be writing to the CDW to get further clarification on this point and will pass the response on to you and the bishop.

Attachments:

Congregation de Cultu Divino et Disciplina Sacramentorum
Prot. n. 1322/02/L
Rome, 1 July 2002

“The Congregation in fact is concerned at the number of similar complaints that it has received in recent months from various places, and considers any refusal of Holy Communion to a member of the faithful on the basis of his or her kneeling posture to be a grave violation of one of the most basic rights of the Christian faithful, namely that of being assisted by their Pastors by means of the Sacraments (Codex Iuris Canonici, canon 213). In view of the law that “sacred ministers may not deny the sacraments to those who opportunely ask for them, are properly disposed and are not prohibited by law from receiving them” (canon 843 ¶ 1), there should be no such refusal to any Catholic who presents himself for Holy Communion at Mass, except in cases presenting a danger of grave scandal to other believers arising out of the person’s unrepented public sin or obstinate heresy or schism, publicly professed or declared. Even where the Congregation has approved of legislation denoting standing as the posture for Holy Communion, in accordance with the adaptations permitted to the Conferences of Bishops by the Institutio Generalis Missalis Romani n. 160, paragraph 2, it has done so with the stipulation that communicants who choose to kneel are not to be denied Holy Communion on these grounds.”

Jorge A. Cardinal Medina Estévez
Prefect
+Francesco Pio Tamburrino
Archbishop Secretary

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“[That] the Roman Curia, and in Europe in general, they take a much more relaxed view of posture than we do . . . This is something that people with a sound formation in liturgical law have known for a long time, however it recently became possible to document it. In a response issued June 5, 2003, the CDW issued a response which stated:

Dubium: In many places, the faithful are accustomed to kneeling or sitting in personal prayer upon returning to their places after having individually received Holy Communion during Mass. Is it the intention of the Missale Romanum, editio typica tertia, to forbid this practice?

Responsum: Negative, et ad mensum [and for this reason]. The mens [reasoning] is that the prescription of the Institutio Generalis Missalis Romani, no. 43, is intended, on the one hand, to ensure within broad limits a certain uniformity of posture within the congregation for the various parts of the celebration of Holy Mass, and on the other, to not regulate posture rigidly in such a way that those who wish to kneel or sit would no longer be free.

This response deals specifically with the question of kneeling after receiving Communion, but it also states Rome’s general interpretation of the posture provisions of the GIRM for the laity, which is that the provisions are “to ensure within broad limits a certain uniformity of posture within the congregation for the various parts of the celebration of Holy Mass, and on the other, to not regulate posture rigidly” (Jimmy Akin).


Endnotes:

[i] If we are to hold strictly and legalistically to the instructions about distribution of the Eucharist, the Extraordinary Minister of Holy Communion should not have spoken words to me other than those prescribed. Note the USCCB’s Committee on the Liturgy instruction in its Extraordinary Ministers of Holy Communion at Mass where it is specifically forbidden to add any words other than “The Body of Christ” and “The Blood of Christ”.

[ii] Also, on a practical matter, I genuflect prior to stepping up to receive – while the person in front of me is still receiving. This way I do not hold up the line. By the time the person in front of me has moved aside, I am standing and stepping up to bow and receive. In this way I full follow even the norm if strictly interpreted.

[iii] This Instruction, prepared by the Congregation for Divine Worship and the Discipline of the Sacraments by mandate of the Supreme Pontiff John Paul II in collaboration with the Congregation for the Doctrine of the Faith, was approved by the same Pontiff on the Solemnity of St. Joseph, 19 March 2004, and he ordered it to be published and to be observed immediately by all concerned. From the offices of the Congregation for Divine Worship and the Discipline of the Sacraments, Rome, on the Solemnity of the Annunciation of the Lord, 25 March 2004. Francis Card. Arinze, Prefect. Domenico Sorrentino, Archbishop Secretary .

[iv] Early on I read St. Augustine’s words which follow. They touched me deeply and based on encouragement from very good priests, we have always genuflected prior to stepping up to receive. St. Augustine wrote, “He took flesh from the flesh of Mary.  He walked here in the same flesh, and gave us the same flesh to be eaten unto salvation.  But no one eats that flesh unless first he adores it . . . we do sin by not adoring.”

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Time to Excommunicate! Canon Lawyer Ed Peters weighs in on Pro-abort politicians

January 25, 2019

Canon 915’s moment has arrived January 25, 2019  by Dr. Ed Peters Gov. Andrew Cuomo’s blatant promotion of New York’s horrid abortion law seems to have been a tipping point. Demands, demands, that Catholic leaders do something serious to confront unbridled abortionism in the ranks of Catholic politicos are being published like I’ve never seen them urged in four decades […]

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A Canon Law Primer on Church Teaching Regarding “Same-sex Marriage”

January 4, 2019

A primer on Church teaching regarding ‘same-sex marriage’ by Dr. Edward Peters STEVE RAY’S INTRODUCTORY COMMENT: This article was written by Canon Lawyer Ed Peters around the time the US Supreme Court foolishingly and arrogantly decided that homosexuals could marry and it was a valid and legal marriage. Now that we have lived with this egregious […]

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INTERVIEW: Cardinal Müller on Homosexuality Practiced and Covered Up within the Clergy and Hierarchy

November 24, 2018

Pope Francis recently fired him from his position as the head of the Congregation for the Doctrine of the Faith (and maybe now we know why!) Here is part of the interview: “In this discussion about the abuse crisis, Müller does not shy away from pointing out that the Church needs to address the problem […]

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About Witholding Funds from the Church

August 16, 2018

There has been a lot of discussion about withholding funds from the Church as a way of speaking out against bishops who have not done their job and been bad shepherds, protecting bad shepherds. I have suggested it is something we should think about especially if we know of abusers or those who facilitate abusers. […]

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Bishops, Homosexual Sins and the Law (Church and Civil)

August 12, 2018

For those who want to follow the legal aspect of the homosexual and paedophilia situation with (clergy, especially the case against bishops that are coming out), I would suggest you keep up with Dr. Ed Peters, Canon Lawyer at https://canonlawblog.wordpress.com/ Here is his latest – a critique of Msgr. Guarino’s comments, Msgr. Guarino’s response, and […]

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A Quick Reply to Question about Cremation and Scattering the Ashes

May 15, 2018

I was asked a question about Catholics, cremation and the scattering of ash. Here is my brief answer: The whole issue of cremation goes back to the Romans. They denied the bodily resurrection so they often burned the body and if they were rich they put the ashes in urns and put them in the […]

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“Encouraging ministers to give holy Communion to divorced-and-civilly-remarried Catholics”?

March 5, 2018

Luke 16:18  “Every one who divorces his wife and marries another commits adultery, and he who marries a woman divorced from her husband commits adultery.” Thus says Our Lord Jesus. Some Church leaders today seem to be contradicting His words and the Laws of the Church. Canon Lawyer Ed Peters comments on new developments: “A […]

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The Mid-air Marriage Gets Muddier

January 21, 2018

Written by Dr. Ed Peters, Canon Lawyer Popes on planes aren’t supposed to be a setting from which to draw fodder for canon law essay exams, but as far back as Pope Benedict XVI, such flights have occasioned more than their fair share of papal words or actions carrying canonical implications but undertaken with little […]

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Two Masses Over Christmas: Sunday and Monday. One Priest dispensed his people from Sunday Mass. Can he do that?

December 4, 2017

The Ray family will happily celebrate Mass on Christmas Eve (Sunday) and Christmas (Monday). Yeah, I know there is a lot going on. I know hams have to cook and presents be presented. But come on … it is the celebration of the birth of Our Savior! One priest thought he would make it easier […]

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“Francis was never pope? Call me unpersuaded.” By Dr. Ed Peters

September 29, 2017

By Canon Lawyer, Dr. Ed Peters: (Note: I am giving this one shot. If it sways some adherents of the ‘Francis-was-never-pope’ group, great; but if it only reassures observers who, regardless of what they think about how Francis is governing, are disquieted by the suggestion that his papacy itself is a chimera, that satisfies me […]

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Fr. James Martin’s book “Building Bridges” – Comments by Dr. Ed Peters

September 17, 2017

About Fr. Martin’s book September 16, 2017 by Dr. Ed Peters: Defending his book, Building a Bridge (2017), Jesuit Father James Martin claims that its consistency with Church teaching is attested to by (A) his own good standing as a priest, and (B) the canonical approval the book received from his Jesuit superior. Martin’s first claim, that he […]

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Leading Theologian: Change Canon Law to Correct Papal Errors

August 19, 2017

Fr  Aidan’s proposal for procedures to rein in an errant Pope and below, Canon Lawyer Ed Peters astute and complementary thoughts. Leading theologian: change canon law to correct papal errors, by Dan Hitchens posted Friday, 18 Aug 2017 In the Catholic Herald… “Fr Aidan Nichols said that Pope Francis’s teaching had led to an ‘extremely […]

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Did the Pope Change Doctrine with Amoris Laetitia?

February 24, 2017

I AM A LAWYER, NOT A MIND-READER February 23, 2017 By Canon Lawyer Ed Peters, Cardinal Vincent Nichols’ echoing of claims that Amoris laetitia changed no doctrines occasioned a question for me: Am I the only (or among the few) Amoris critics who agrees with Amoris defenders that Pope Francis made no doctrinal changes in […]

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