3.0 Public Scandal

This objection, as referred to in the third Dubia of the four Cardinals, is that under Canon 915 the D&R “obstinately persist in manifest grave sin” and “are not to be admitted to holy Communion”.

3.1 Doctrinal Background of the Objection

The impediment to the D&R receiving Holy Communion under Canon 915 is also expressed in Canon 712 of the Canon Law of the Oriental Churches:

Those who are publicly unworthy are forbidden from receiving the Divine Eucharist“.

Similar prohibitions also apply to the:

  • Denial of ecclesiastical funerals (Canon 1184) to “other manifest sinners who cannot be granted ecclesiastical funerals without public scandal of the faithful” unless they provide “some signs of repentance before death”.
  • Conferral of anointing of the sick (Canon 1007), which is “not to be conferred upon those who persevere obstinately in manifest grave sin”.

As outlined at 1.0 Mortal Sin, mortal sin under Canon 916 did not prior to AL constitute an absolute ban on the reception of Holy Communion by the D&R. However, in accordance with the 2000 PCLT Declaration, an absolute ban was provided by Canon 915:

The Code of Canon Law establishes that “Those upon whom the penalty of excommunication or interdict has been imposed or declared, and others who obstinately persist in manifest grave sin, are not to be admitted to Holy Communion” (can. 915). In recent years some authors have sustained, using a variety of arguments, that this canon would not be applicable to faithful who are divorced and remarried. It is acknowledged that paragraph 84 of the Apostolic Exhortation Familiaris consortio, issued in 1981, had reiterated that prohibition in unequivocal terms and that it has been expressly reaffirmed many times, especially in paragraph 1650 of the Catechism of the Catholic Church, published in 1992, and in the Letter written in 1994 by the Congregation for the Doctrine of the Faith, Annus internationalis Familiae”.  

Accordingly Canon 915 for the Latin Churches, and Canon 712 for the Oriental Churches, were the canonical basis for the absolute exclusion of the D&R from Holy Communion found in:

This can be seen for example in CCC 1650, which states:

If the divorced are remarried civilly, they find themselves in a situation that objectively contravenes God’s law. Consequently, they cannot receive Eucharistic communion as long as this situation persists. For the same reason, they cannot exercise certain ecclesial responsibilities. Reconciliation through the sacrament of Penance can be granted only to those who have repented for having violated the sign of the covenant and of fidelity to Christ, and who are committed to living in complete continence”.

The 2000 PCLT Declaration further provides that the reason for the absolute exclusion of the D&R from Holy Communion, was that admitting them would be a cause for public scandal, given their objectively grave, enduring and public state of sin:

“The prohibition found in the cited canon, by its nature, is derived from divine law and transcends the domain of positive ecclesiastical laws: the latter cannot introduce legislative changes which would oppose the doctrine of the Church

In effect, the reception of the Body of Christ when one is publicly unworthy constitutes an objective harm to the ecclesial communion: it is a behavior that affects the rights of the Church and of all the faithful to live in accord with the exigencies of that communion. In the concrete case of the admission to Holy Communion of faithful who are divorced and remarried, the scandal, understood as an action that prompts others towards wrongdoing, affects at the same time both the sacrament of the Eucharist and the indissolubility of marriage

Any interpretation of can. 915 that would set itself against the canon’s substantial content, as declared uninterruptedly by the Magisterium and by the discipline of the Church throughout the centuries, is clearly misleading. One cannot confuse respect for the wording of the law (cfr. can. 17) with the improper use of the very same wording as an instrument for relativizing the precepts or emptying them of their substance.

The phrase “and others who obstinately persist in manifest grave sin” is clear and must be understood in a manner that does not distort its sense so as to render the norm inapplicable. The three required conditions are:

a) grave sin, understood objectively, being that the minister of Communion would not be able to judge from subjective imputability;

b) obstinate persistence, which means the existence of an objective situation of sin that endures in time and which the will of the individual member of the faithful does not bring to an end, no other requirements (attitude of defiance, prior warning, etc.) being necessary to establish the fundamental gravity of the situation in the Church.

c) the manifest character of the situation of grave habitual sin

their condition as persons who are divorced and remarried is per se manifest”.

In particular, unlike other objectively grave and enduring sins, the application of Canon 915 was considered to be always attracted given the public nature of civil divorce and remarriage. The precedents in relation to these other sins are separately considered by this Apologia at 7.0 Slippery Slope, particularly at 7.3 Public Scandal and Canon 915.

This can be seen more clearly in for example CCC 2384, which states:

Divorce is a grave offense against the natural law. It claims to break the contract, to which the spouses freely consented, to live with each other till death. Divorce does injury to the covenant of salvation, of which sacramental marriage is the sign. Contracting a new union, even if it is recognized by civil law, adds to the gravity of the rupture: the remarried spouse is then in a situation of public and permanent adultery”.

In other words, under the interpretation of manifest (i.e. public) used by the 2000 PCLT Declaration, the civil legal recognition of divorce and remarriage was deemed to be “per se manifest” (i.e. by itself without reference to circumstances). Accordingly, it followed that Canon 915 was always required to be applied to those whose divorce and remarriage was recognised by civil law. In the words of the 1994 CDF Letter at 5:

The structure of the Exhortation and the tenor of its words give clearly to understand that this practice, which is presented as binding, cannot be modified because of different situations”.

3.2 Pre-Existing Exceptions

Despite the generally universal application of Canon 915 to the D&R prior to AL,  FC 84 did provide one exception, being:

Reconciliation in the sacrament of Penance which would open the way to the Eucharist, can only be granted to those who, repenting of having broken the sign of the Covenant and of fidelity to Christ, are sincerely ready to undertake a way of life that is no longer in contradiction to the indissolubility of marriage. This means, in practice, that when, for serious reasons, such as for example the children’s upbringing, a man and a woman cannot satisfy the obligation to separate, they “take on themselves the duty to live in complete continence, that is, by abstinence from the acts proper to married couples””.

However, in accordance with the 2000 PCLT Declaration, this exemption to the application of Canon 915 was based on the absence of objective grave sin:

Those faithful who are divorced and remarried would not be considered to be within the situation of serious habitual sin who would not be able, for serious motives – such as, for example, the upbringing of the children – “to satisfy the obligation of separation, assuming the task of living in full continence, that is, abstaining from the acts proper to spouses” (Familiaris consortio, n. 84), and who on the basis of that intention have received the sacrament of Penance”.

A similar exception to Canon 915 is provided by Canon 844, which allows:

Catholic ministers administer the sacraments of penance, Eucharist, and anointing of the sick licitly to members of Eastern Churches which do not have full communion with the Catholic Church if they seek such on their own accord and are properly disposed. This is also valid for members of other Churches which in the judgment of the Apostolic See are in the same condition in regard to the sacraments as these Eastern Churches”.

While a schism (i.e. a lack of full communion) exists between the Catholic Church and the Eastern Churches referred to by this Canon, it does not follow the members of these Eastern Churches have committed the objectively grave sin of schism as outlined in Canon 751:

[S]chism is the refusal of submission to the Supreme Pontiff or of communion with the members of the Church subject to him”.

By this canonical definition, someone who was baptized into an Eastern Orthodox Church will not always be canonically considered a schismatic, as they will not have necessarily withdrawn (i.e. detrectatio in the Latin of the Canon) any submission to the Supreme Pontiff, because they were never in submission to the Supreme Pontiff in the first place.

These exemptions do not however provide a precedent for admitting the D&R not living in complete continence to the Sacraments, as objective grave sin is not absent, as acknowledged by AL itself:

  • AL 295 – “[A]cts on the part of subjects who are not in a position to understand, appreciate, or fully carry out the objective demands of the law.
  • AL 297 – “Naturally, if someone flaunts an objective sin as if it were part of the Christian ideal … this is a case of something which separates from the community”.
  • AL 302 – “For this reason, a negative judgment about an objective situation does not imply a judgment about the imputability or culpability of the person involved”.
  • AL 303 – “Recognizing the influence of such concrete factors, we can add that individual conscience needs to be better incorporated into the Church’s praxis in certain situations which do not objectively embody our understanding of marriage Yet conscience can do more than recognize that a given situation does not correspond objectively to the overall demands of the Gospel … It can also recognize …  what God himself is asking amid the concrete complexity of one’s limits, while yet not fully the objective ideal”.
  • AL 305 – “Because of forms of conditioning and mitigating factors, it is possible that in an objective situation of sin – which may not be subjectively culpable, or fully such – a person can be living in God’s grace”.

3.3 Teaching of AL

This objection arises because AL teaches that there are circumstances where the objectively grave and enduring sins of the D&R will not be public, such that it is possible for them to be admitted to Holy Communion without causing public scandal. Which is to say, the irregular nature of civil remarriage is not required to be considered to be “per se manifest”, and accordingly Canon 915 is not always required to be applied to the D&R.

The sections of AL which do this are summarised by the papally approved Buenos Aires Directive at Items 7 and 9:

However, it is necessary to avoid understanding this possibility as an unrestricted access to the sacraments, or as though any situation might justify it. What is proposed is a discernment that adequately distinguishes each case. What is proposed is a discernment that adequately distinguishes each case. For example, “a new union that comes out of a recent divorce” or “the situation of someone who has repeatedly failed in his family commitments” (298) requires special care. [This applies] as well when there is a sort of defense or flaunting of the particular situation “as if it were part of the Christian ideal” (297). In these more difficult cases, the pastors must accompany with patience, seeking some way of integration (cf. 297, 299) 

It might be convenient that an eventual access to the sacraments be brought about in a reserved way, above all when conflictive situations are foreseen. But at the same time one must not cease to accompany the community, so that it might grow in a spirt of understanding and welcoming, without creating confusion regarding the teaching of the Church on the indissolubility of marriage”.

These sections of AL, being AL 297, AL 299 and also AL 300, demonstrates that the basis for the possibility of access to Holy Communion is a reinterpretation of when the objectively grave sin of the D&R is considered to be manifest / public.

In this regard, AL 299 makes clear any admission of the D&R to Holy Communion can only occur when any occasion for public scandal is avoided:

I am in agreement with the many Synod Fathers who observed that “the baptized who are divorced and civilly remarried need to be more fully integrated into Christian communities in the variety of ways possible, while avoiding any occasion of scandal”.

AL 297 then provides the circumstances in which the D&R cannot be admitted to Holy Communion, due to the risk of public scandal:

Naturally, if someone flaunts an objective sin as if it were part of the Christian ideal, or wants to impose something other than what the Church teaches, he or she can in no way presume to teach or preach to others; this is a case of something which separates from the community (cf. Mt 18:17)”.

AL 300 further provides the circumstances in which the D&R can be admitted to Holy Communion, without risk of public scandal:

When a responsible and tactful person, who does not presume to put his or her own desires ahead of the common good of the Church, meets with a pastor capable of acknowledging the seriousness of the matter before him, there can be no risk that a specific discernment may lead people to think that the Church maintains a double standard”.

Finally, AL 300 also confirms it intends to provide for greater flexibility within with existing canons, rather than replacing them:

If we consider the immense variety of concrete situations such as those I have mentioned, it is understandable that neither the Synod nor this Exhortation could be expected to provide a new set of general rules, canonical in nature and applicable to all cases”.

3.4 Reinterpretation of Manifest

The understanding that the objectively grave sin represented by civil legal recognition of divorce and remarriage is “per se manifest” in the 2000 PCLT Declaration might be thought to be due to a public nature being intrinsic to marriage, in accordance with its characteristics set out for example in FC 11:

The institution of marriage is … an interior requirement of the covenant of conjugal love which is publicly affirmed as unique and exclusive, in order to live in complete fidelity to the plan of God, the Creator”.

However, being public is not intrinsic to even the Sacrament of Marriage, as for example:

  • Chapter 1 of the Decree Concerning The Reform Of Matrimony of the 24th Session of the Council of Trent – “Although it is not to be doubted that clandestine marriages made with the free consent of the contracting parties are valid and true marriages so long as the Church has not declared them invalid, and consequently that those persons are justly to be condemned, as the holy council does condemn them with anathema, who deny that they are true and valid”.
  • Canon 1130 – “For a grave and urgent cause, the local ordinary can permit a marriage to be celebrated secretly”.

Rather the objectively grave sin represented by divorce and remarriage has been deemed to be manifest due to the civil legal recognition inherent in its acknowledgement by the relevant State authorities. This is shown for example by:

  • FC 82 – “Catholics who … contract a merely civil marriage … cannot of course be likened to that of people simply living together without any bond at all … By seeking public recognition of their bond on the part of the State, such couples show that they are ready to accept not only its advantages but also its obligations”.
  • CCC 2384Contracting a new union, even if it is recognized by civil law, adds to the gravity of the rupture: the remarried spouse is then in a situation of public and permanent adultery””.
  • The 1994 CDF Letter at 7 – “Marriage, in fact, because it is both the image of the spousal relationship between Christ and his Church as well as the fundamental core and an important factor in the life of civil society, is essentially a public reality”.

That this deeming arises purely from the civil legal recognition of both divorce and remarriage, rather than say the mere fact of a person cohabiting in a de facto relationship, is also shown by these precedents. The Church when speaking of these situations refers to the D&R, rather than for example the divorced and cohabitating (refer FC 84, RP 34, CCC 1650, 1994 CDF Letter, 1997 Pontifical Address, 2000 PCLT Declaration and SC 29). Further CCC 2384 makes clear it is the “Contracting a new union, even if it is recognized by civil law” that means “the remarried spouse is then in a situation of public and permanent adultery”.

This focus on civil recognition was necessary in order to deem the sin of the D&R to be “per se manifest”, as cohabitation in itself does not manifest an objectively grave sin, given it could be occurring in the course of a valid sacramental marriage. It is the irregular nature of the cohabitation which represents the objectively grave sin, which can only be “per se manifest” if the both divorce without an annulment and the subsequent civil remarriage are considered to be always public.

Accordingly, it can be seen the treatment of civil divorce and remarriage as “per se manifest” is an assessment of empirical fact to which the doctrine underlying Canon 915 is applied, rather than an intrinsic doctrinal reality itself.

However, the assessment of empirical facts to which doctrine are applied, cannot of itself be doctrinal. This is shown for example in:

  • VS 27 – “Within Tradition, the authentic interpretation of the Lord’s law develops, with the help of the Holy Spirit. The same Spirit who is at the origin of the Revelation of Jesus’ commandments and teachings guarantees that they will be reverently preserved, faithfully expounded and correctly applied in different times and places. This constant “putting into practice” of the commandments is the sign and fruit of a deeper insight into Revelation and of an understanding in the light of faith of new historical and cultural situations. Nevertheless, it can only confirm the permanent validity of Revelation and follow in the line of the interpretation given to it by the great Tradition of the Church’s teaching and life, as witnessed by the teaching of the Fathers, the lives of the Saints, the Church’s Liturgy and the teaching of the Magisterium”.
  • Pope Benedict XVI’s 2005 Christmas Address – “It is precisely in this combination of continuity and discontinuity at different levels that the very nature of true reform consists. In this process of innovation in continuity we must learn to understand more practically than before that the Church’s decisions on contingent matters – for example, certain practical forms of liberalism or a free interpretation of the Bible – should necessarily be contingent themselves, precisely because they refer to a specific reality that is changeable in itself. It was necessary to learn to recognize that in these decisions it is only the principles that express the permanent aspect, since they remain as an undercurrent, motivating decisions from within … On the other hand, not so permanent are the practical forms that depend on the historical situation and are therefore subject to change … Basic decisions, therefore, continue to be well-grounded, whereas the way they are applied to new contexts can change”.

Therefore, by itself, a different approach to the assessment of empirical facts cannot provide a doctrinal impediment to a novel pastoral practice.

3.5 Authentic Interpretation

The power of the Pope as supreme legislator (refer Canon 331) to reinterpret Canon Law, even to restrict or extend its application prospectively, is confirmed by Canons 16 and 17:

The legislator authentically interprets laws as does the one to whom the same legislator has entrusted the power of authentically interpreting …

If it only declares the words of the law which are certain in themselves, it is retroactive; if it restricts or extends the law, or if it explains a doubtful law, it is not retroactive

Ecclesiastical laws must be understood in accord with the proper meaning of the words considered in their text and context. If the meaning remains doubtful and obscure, recourse must be made to parallel places, if there are such, to the purpose and circumstances of the law, and to the mind of the legislator”.

However the fullness of this power is, in accordance with Canon 16, only exercised where:

An authentic interpretation put forth in the form of law has the same force as the law itself and must be promulgated”.

In this regard, it is commonly understood that an apostolic exhortation such as AL does not constitute an authentic interpretation under Canon 16. As noted by canonist Francis G. Morrisey in his article Papal and Curial Pronouncements: Their Canonical Significance in Light of the 1983 Code of Canon Law (50 Jurist 102 1990):

One form of document which the popes use frequently is the apostolic exhortation. More recently, these have been used after the meetings of the Synods of Bishops to put forward the teaching that was studied at the synodal sessions … These documents, as the title explains, are exhortative in nature, and not legislative texts”.

Further in the New Commentary on the Code of Canon Law (2000), commissioned by the Canon Law Society of America, it is noted (Page 72):

Interpretations not given in the form of law do not bind juridically. The pope often interprets laws by his comments on them in non-legislative texts, such as his allocutions to the Roman Rota. Although these interpretations have great doctrinal value, they are not authentic interpretations of the law. While an authentic interpretation given in the form of law resolves a doubt and closes the debate, other interpretations (even those of the pope himself) allow insights in jurisprudence and canonical doctrine to continue developing within general parameters established in law and church teachings. The legislators of the Church also have teaching authority, but legislative and magisterial acts are distinct and should not be confused”.

However, while an apostolic exhortation is not an authentic interpretation, it may nevertheless be an expression of the mind of the legislator under Canon 17 which must be given legal effect. For example, in response to Pope St John Paul II reiterating the teaching of FC 84 in his 1997 Pontifical Address, the canonist Patrick Travers stated in his article Holy Communion and Catholics Who Have Attempted Remarriage after Divorce: A Revisitation (57 Jurist 517 1997):

It is plain that the teaching of the Holy Father in his Pontifical Address concerning the exclusion from Holy Communion of Catholics who have attempted remarriage after divorce governs the interpretation of canons 915 and 916 … The Holy Father’s pronouncement did not take the form of an authentic interpretation of canons 915 and 916 and, in fact, did not even refer specifically to those canons. As, however, a direct, formal, and public intervention of the Supreme Pontiff in a matter that necessarily involves the application of these canons of which he was the legislator … the Pontifical Address plainly binds pastors under both general law and under the profession of faith and the oath of fidelity that they have taken upon assuming office”.

Similarly, while equally not contained within an authentic interpretation, legal effect has been given to the restriction of the application of Canon 915 to the D&R who live in complete continence by the apostolic exhortation FC (refer 3.2 above). Further while this easing in the application of Canon 915 has been reiterated by the PCLT, which is empowered to provide authentic interpretations, the 2000 PCLT Declaration was in the form of a declaration rather than an authentic interpretation. In this regard, the canonist John M. Huels has confirmed in his article Classifying Authentic Interpretations of Canon Law (72 Jurist 605 2012):

The PCLT is the only Roman dicastery that has the power to make authentic interpretations per modum legis. A few Roman congregations occasionally publish responsa or declarations which interpret the law. These are not, however, authentic interpretations given in the form of law but the interpretations of canon 16 §3 given in the form of an administrative act … The PCLT itself at times issues declarations and notifications clarifying a law’s meaning and applicability. These, too, are not authentic interpretations”.

The ability to, and importance of, understanding Canon Law in light of magisterial teaching (rather than only legislative acts) was also confirmed by Pope St John Paul II in his 2003 Canon Law Address at 3:

A more dangerous reductionism is that which claims to interpret and apply the laws of the Church in a manner that is detached from the teaching of the Magisterium. According to this view, only formal legislative acts and not doctrinal pronouncements would have disciplinary value … At the root of such a conception is an impoverished idea of canon law that identifies it only with the positive dictate of the norm. This is not right: in fact, since the juridical dimension, being theologically intrinsic to the ecclesial reality, can be the object of magisterial, even definitive, teaching”.

Accordingly, prior to AL, the application of Canon 915 to the D&R was already interpreted by reference to the “mind of the legislator” expressed other than via an “authentic interpretation put forth in the form of law”. Therefore:

  • The meaning of Canon 915, with reference to the D&R, is sufficiently “doubtful and obscure” as to justify recourse under Canon 16 to the “mind of the legislator” for its interpretation.
  • Canon 915 can be reinterpreted by the papal magisterium with canonical effect, without an “authentic interpretation” or even direct reference to the Canon.
  • The reinterpretation of Canon 915 provided by AL is in a form which is both canonically valid and binding.

3.6 Substantive Content of Canon 915

Despite this, it could still be objected that while it may be doctrinally possible to reinterpret Canon 915, as noted by the 2000 PCLT Declaration the scope to do so is limited by its substantial content:

Any interpretation of can. 915 that would set itself against the canon’s substantial content, as declared uninterruptedly by the Magisterium and by the discipline of the Church throughout the centuries, is clearly misleading. One cannot confuse respect for the wording of the law (cfr. can. 17) with the improper use of the very same wording as an instrument for relativizing the precepts or emptying them of their substance.

The phrase “and others who obstinately persist in manifest grave sin” is clear and must be understood in a manner that does not distort its sense so as to render the norm inapplicable”.

In this regard, the substantive content of Canon 915 is, in accordance with the 2000 PCLT Declaration, to prevent “scandal … understood as an action that prompts others towards wrongdoing”. That the purpose of Canon 915 is to prevent public scandal is also confirmed by the precedents on which the modern canon is based, some of which are are separately considered by this Apologia at 6.0 Unchanging Practice.

This understanding of Canon 915‘s substantive content is shared by a prominent critic of reception of the Sacraments by the D&R, Raymond Cardinal Burke, who in his article in Periodica de Re Canonica, Vol. 96 (2007) stated its purpose is to ensure “that scandal not be given to the faithful by a careless administration of the Holy Eucharist”.

In light of this substantive content, it can be seen the reason Canon 915 refers to “manifest grave sin”, is that a grave sin must be manifest / public in order for it to create the risk of creating the scandal Canon 915 is intended to prevent.

Accordingly for an interpretation of “manifest” to be consistent with the substantive content of Canon 915, it must include grave sins which are public in a way which gives rise to a risk of scandal, rather than public in any other sense.

What this means can be seen in how “manifest” in Canon 915 has been applied to sins other than of the D&R before the pontificate of Pope Francis. The precedents in relation to these other sins are separately considered by this Apologia in more detail at 7.0 Slippery Slope, particularly at 7.3 Public Scandal and Canon 915.

For example, the notable conservative canonist Dr Edward Peters has advised a same sex relationship without civil recognition would not automatically engage Canon 915 as “However sinful it might be, conduct that is not already widely known in the community is not manifest as canon law understands that term in this context”.

This is further confirmed by John M. Huels, the commentator on Canon 915 in the New Commentary on the Code of Canon Law (2000) at page 1110, whom states:

A manifest sin is one which is publicly known by a large part of the parish or other community; if the sin is not publicly known, refusing communion would be a violation of a person’s right to a good reputation (c. 220)”.

In this regard AL’s reinterpretation of “manifest” is absolutely in accordance with this substantive content of Canon 915, as it is aimed at behaviours which make it more (flaunting the sin) or less (being tactful) likely the objective grave sin will be “widely known in the community” (i.e. public) in a way which cause scandal.

Conversely it is arguable that deeming the irregular nature of civil divorce and remarriage to be “per se manifest” goes beyond that required to be consistent with the substantive content of Canon 915. From an empirical and factual perspective, while the fact a couple are living as man and wife may be obvious, it may not be that the irregular nature of their civil marriage is always relevantly public. For example in New South Wales, Australia, the jurisdiction in which my own marriage was civilly recognised, generally speaking access to marriage records is not available to the general public until 50 years after the wedding.

Therefore:

  • Where the irregular nature of a civil remarriage without an annulment is not manifest / public from a pastoral perspective, despite being recognised by civil law, Canon 915 is not always required to be applied to deny access to Holy Communion.
  • In accordance with the sacramental discipline of the Church prior to AL, this was not possible, as the irregular nature of  civil remarriage without annulment was deemed to be “per se manifest” such that Canon 915 was always required to be applied.
  • While the teaching of AL in this regard is therefore a novelty, which changes the sacramental discipline of the Church, it neither contradicts nor even develops the doctrine of the Church.

3.7 Rarity of Mitigating Circumstances

As outlined at 1.0 Mortal Sin in relation to reduced culpability (particularly at 1.7 Rarity of Mitigating Circumstances) it may be further objected while circumstances where the irregular nature of a civil remarriage is not manifest exist in theory, they are in practice extremely rare, and thus insufficient to justify a case by case approach.

However as with reduced culpability, to justify case by case discernment, it is only necessary to establish that valid exceptions exist (even if rare).

3.8 Contradiction of the CCC

A further objection which is raised in relation to this change in the sacramental discipline of the Church introduced by AL, is that it contradicts the CCC. For example:

  • CCC 1650 – “Today there are numerous Catholics in many countries who have recourse to civil divorce and contract new civil unions … If the divorced are remarried civilly, they find themselves in a situation that objectively contravenes God’s law. Consequently, they cannot receive Eucharistic communion as long as this situation persists. For the same reason, they cannot exercise certain ecclesial responsibilities. Reconciliation through the sacrament of Penance can be granted only to those who have repented for having violated the sign of the covenant and of fidelity to Christ, and who are committed to living in complete continence”.
  • CCC 1665 – “The remarriage of persons divorced from a living, lawful spouse contravenes the plan and law of God as taught by Christ. They are not separated from the Church, but they cannot receive Eucharistic communion”.
  • CCC 2384 – “Divorce is a grave offense against the natural law. It claims to break the contract, to which the spouses freely consented, to live with each other till death. Divorce does injury to the covenant of salvation, of which sacramental marriage is the sign. Contracting a new union, even if it is recognized by civil law, adds to the gravity of the rupture: the remarried spouse is then in a situation of public and permanent adultery”.
  • CCC 2390 – “In a so-called free union, a man and a woman refuse to give juridical and public form to a liaison involving sexual intimacy … The expression covers a number of different situations: concubinage, rejection of marriage as such, or inability to make long-term commitments … They are contrary to the moral law. The sexual act must take place exclusively within marriage. Outside of marriage it always constitutes a grave sin and excludes one from sacramental communion”.

Moreover it is objected that the CCC is of itself a statement of unchangeable doctrinal propositions, as for example set out in FD 3:

The Doctrinal Value of the Text … The Catechism of the Catholic Church … is a statement of the Church’s faith and of catholic doctrine, attested to or illumined by Sacred Scripture, the Apostolic Tradition and the Church’s Magisterium. I declare it to be a sure norm for teaching the faith and thus a valid and legitimate instrument for ecclesial communion”.

However, the CCC is explicitly not limited to unchangeable doctrine, but also sets out changeable Church disciplines. For example CCC 1579 and 1580 state:

All the ordained ministers of the Latin Church, with the exception of permanent deacons, are normally chosen from among men of faith who live a celibate life and who intend to remain celibate 

In the Eastern Churches a different discipline has been in force for many centuries: while bishops are chosen solely from among celibates, married men can be ordained as deacons and priests. This practice has long been considered legitimate; these priests exercise a fruitful ministry within their communities”.

Accordingly, while the CCC will need to be revised to reflect the change in the sacramental discipline of the Church introduced by AL, by itself this requirement cannot provide a doctrinal impediment to a novel pastoral practice.

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12 thoughts on “3.0 Public Scandal

  1. I have 2 issues to tackle: one involves “per se manifest”, the other involves “objectively”. Each is quite long. I will separate them into 2 posts, but they need to be considered together for what they imply for the overall argument.

    Per se manifest

    In other words, under the interpretation of manifest (i.e. public) used by the 2000 PCLT Declaration that civil remarriage is “per se manifest” (i.e. by itself without reference to circumstances), it followed that Canon 915 was always required to be applied to the D&R. In the words of the 1994 CDF Letter at 5:
    “The structure of the Exhortation and the tenor of its words give clearly to understand that this practice, which is presented as binding, cannot be modified because of different situations”.

    3.4 Reinterpretation of Manifest
    The understanding that civil marriage is “per se manifest” in the 2000 PCLT Declaration might be thought to be due to a public nature being intrinsic to marriage, in accordance with its characteristics set out for example in FC 11:
    “The institution of marriage is … an interior requirement of the covenant of conjugal love which is publicly affirmed as unique and exclusive, in order to live in complete fidelity to the plan of God, the Creator”.
    However, being public is not intrinsic to even the Sacrament of Marriage, as for example:
    • Chapter 1 of the Decree Concerning The Reform Of Matrimony of the 24th Session of the Council of Trent – “Although it is not to be doubted that clandestine marriages made with the free consent of the contracting parties are valid and true marriages so long as the Church has not declared them invalid, and consequently that those persons are justly to be condemned, as the holy council does condemn them with anathema, who deny that they are true and valid”.
    • Canon 1130 – “For a grave and urgent cause, the local ordinary can permit a marriage to be celebrated secretly”.
    Rather civil marriage has been deemed to be manifest due to the civil legal recognition inherent in its acknowledgement by the relevant State authorities.

    No, that’s not it. I am going to insert some common sense in here. First, let’s look at the PCLT text you cited part of, but not all of:

    Those faithful who are divorced and remarried would not be considered to be within the situation of serious habitual sin who would not be able, for serious motives – such as, for example, the upbringing of the children – “to satisfy the obligation of separation, assuming the task of living in full continence, that is, abstaining from the acts proper to spouses” (Familiaris consortio, n. 84), and who on the basis of that intention have received the sacrament of Penance. Given that the fact that these faithful are not living more uxorio is per se occult, while their condition as persons who are divorced and remarried is per se manifest, they will be able to receive Eucharistic Communion only remoto scandalo.

    I don’t think these passages mean what you imply.

    To start, let me give a contrary example for us to chew on:

    http://canonlawmadeeasy.com/2010/02/11/can-a-bishop-forbid-a-priest-to-say-mass/

    We Catholics understand that sometimes a priest says a public, scheduled Mass, with a congregation composed of anybody who chooses to attend; and sometimes a priest says what is commonly referred to as a “private Mass,” either by himself, or for a family or a particular group. But this distinction actually has no basis in either theology or canon law, for the Eucharistic celebration is by its very nature a public act of worship by the Church. Liturgical actions, by definition, are not private affairs – even if only a few people are present.

    So, one might posit that a religious wedding ceremony is “by its very nature a public act” of the Church. But more importantly, a marriage (not just a wedding) is by nature a social reality. It cannot be a private thing altogether, for it forms the couple into a new entity, which is a new unit of society. How could this social reality be a private thing? It cannot. But wait…

    In addition to this, it would be necessary for your thesis that not just the wedding, but the ongoing relationship be secret: the couple would have to not live together – and there is something decidedly odd about a marriage in which the couple NEVER live with each other, and designedly so from the first. In fact, if the couple marrying were not to intend to at any time live together, they could not contract a marriage. (And this is why abandonment is a ground for divorce.) And they would also have to not have children together, for raising children requires acting together. But marriage is for the sake of children. In fact, a marriage entered into in which the couple had a specific, concrete intention to never have children would fail to be a marriage by that very fact. But children make a couple a public fact in two ways: first, the very existence of the baby is testimony to the fact of a sexual relationship; and secondly, the obligations of both parents in caring for the children must manifest their relationship to the children. Which is all why we have Canon Law 1055:

    The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.

    In fact, clandestine WEDDINGS were allowed – in extremely unusual circumstances – only where there was a presumption that the couple could at some future point cease to be clandestine about their union. It was a clandestine ceremony of a social – and therefore public – reality. What is “manifest” is the establishment of a “partnership of the whole life.” You can’t keep this clandestine – it would be like an invisible color, an inaudible song, an unthinkable concept.

    A couple who marries and then starts to live together is rightly and reasonably understood to be enjoying the marriage bed in due season. This is not an act of “presumption” or “rash judgment” by a foolish outsider who has not observed the bedroom, nobody tells those who presume a married couple are sleeping together that they should confess their sins of rash judgment in confession.

    But this goes one step further: a couple who is married and engaging in the normal and natural “one flesh union” of the marriage bed also carry out other manifestations of their relationship through other acts that are typical and natural to such a couple. Their physical closeness when in public, including holding hands or having a hand on the other person’s waist or shoulders, hugs that last more than a few moments, being nonchalant about other physical touches and closeness, and numerous other small signs of that one-flesh union. There are, as well, many other non-physical signs of a marital union, including the joining of finances, the joining of household ownership and that of other property, re-ordering of personal schedules and habits to accommodate the second person – i.e. the “partnership of the whole life”. These signs together with their living in the same house, are taken as manifestations of their marriage, which implies also the bedroom relationship of more uxorio. Even when you have not personally witnessed a marriage ceremony, or gone to the parish office or the county records office to verify that someone has gotten married, observing that a couple lives together and are seen to live a life like this – a partnership of the whole life – the manifestations of the whole life partnership are sufficient evidence to reasonably believe that they are in fact living as married in the bedroom as well. This is the reasonable opinion that the non-bedroom manifestations of the marriage-type partnership are the accompaniment of the bedroom ones. Where there’s smoke, there’s normally fire.

    When a Catholic divorces and remarries and lives with his new “spouse” (for simplicity, I will from here on out call the second person spouse or wife without the quotation marks , please keep in mind that I am in not supposing the second marriage is valid) and forms the same sort of partnership of life, they thereby provide all the outward evidence needed for a reasonable person to conclude that they are enjoying the benefits of the marriage bed, that they are engaging in sex. It is just as manifest for this couple as it is for the first time each got married, (in the Church), because the outward manifestations of a “marriage” are vastly many, and hardly ever wholly mistaken.

    If a Catholic woman were the innocent victim of a no-fault divorce filing from a wayward husband, and if she were then to decide to get a civil ‘marriage of convenience’ and live with a man for the sake of saving money, and for the sake of having a man’s voice and support in raising the kids, but who never had any intention of sleeping with the man and in most other ways treated the “marriage” as only a shell, not a reality, she could be technically free to receive Communion, in the sense that her conscience would be clear. But 915 would still apply to her, because she provides the outward manifestations of what is an objectively disordered condition: D&R. This would be so <even without any of the usual physically affectionate manifestations that normally accompany a couple who have begun to sleep together and have formed a close physical partnership; how much more true it would be if they did behave with all those non-bedroom manifestations of sexual love!

    When the PCLT speaks of a couple who have formed the intention of living in continence as “per se occult”, whereas their condition of living “as married” is per se manifest, it is speaking of this partnership of the whole life, which cannotbe clandestine. Any couple who is living in a partnership of the whole life <except for enjoying the marriage bed is still giving the manifestation of being married.

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    • Tony,

      Taking the argument regarding “per se manifest” first, it seems your concern is that the cohabitation in the 2nd union is manifest, and thus Canon 915 must necessarily be applied.

      However, that is not what needs to be manifest for Canon 915 to apply. Canon 915 is aimed at “manifest grave sin”, and cohabitation is not in itself not a grave sin, as it could be part of a sacramentally valid marriage.

      Rather, it is the irregular nature of a union which is a grave sin, and thus needs to be manifest (i.e. a manifest grave sin). Which makes sense, as if it could be assumed the union is a proper marriage, it cannot be a cause of scandal.

      The 2000 PCLT Declaration reaches the conclusion that the irregular nature of such 2nd unions will be “per se manifest”, as the two or more sequential marriages were recognised by public law. However, as I argue, that it is public will not always be factually true.

      As an aside though it is not necessary to my point, it must also be noted the Church before AL didn’t actually deem the cohabitation you focus on as “per se manifest”, due to its focus on the civil legal recognition. This is why the Church has spoken of the divorced and remarried, rather than the divorced and cohabiting. And why CCC 2384 speaks of a union being “recognized by civil law” as meaning that “the remarried spouse is then in a situation of public and permanent adultery”.

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  2. There are different senses of “objective” here. You haven’t managed them well enough. Instances:

    “Objectively contravenes God’s law. “

    In effect, the reception of the Body of Christ when one is publicly unworthy constitutes an objective harm to the ecclesial communion: it is a behavior that affects the rights of the Church and of all the faithful to live in accord with the exigencies of that communion. In the concrete case of the admission to Holy Communion of faithful who are divorced and remarried, the scandal, understood as an action that prompts others towards wrongdoing, affects at the same time both the sacrament of the Eucharist and the indissolubility of marriage …
    Any interpretation of can. 915 that would set itself against the canon’s substantial content, as declared uninterruptedly by the Magisterium and by the discipline of the Church throughout the centuries, is clearly misleading. One cannot confuse respect for the wording of the law (cfr. can. 17) with the improper use of the very same wording as an instrument for relativizing the precepts or emptying them of their substance.
    The phrase “and others who obstinately persist in manifest grave sin” is clear and must be understood in a manner that does not distort its sense so as to render the norm inapplicable. The three required conditions are:
    1. a) grave sin, understood objectively, being that the minister of Communion would not be able to judge from subjective imputability;
    1. b) obstinate persistence, which means the existence of an objective situation of sin that endures in time and which the will of the individual member of the faithful does not bring to an end, no other requirements (attitude of defiance, prior warning, etc.) being necessary to establish the fundamental gravity of the situation in the Church.
    1. c) the manifest character of the situation of grave habitual sin …
    their condition as persons who are divorced and remarried is per se manifest”.

    However, in accordance with the 2000 PCLT Declaration, this exemption to the application of Canon 915 was based on the absence of objective grave sin:

    The problems come from the multiple senses that “objective” takes on in different situations and usages, usually quite legitimately (i.e. without an intent to confuse). It becomes much worse when there is an actual intent to confuse and obscure.

    As a first correction, recall that the condition 1 (a) above “grave sin, understood objectively, being that the minister of Communion would not be able to judge from subjective imputability; coordinates with the language cited earlier:

    Given that the fact that these faithful are not living more uxorio is per se occult, while their condition as persons who are divorced and remarried is per se manifest,

    The condition in which they are living must be known to the minister, and it is the outward (manifest) condition of life which controls, not the interior reality which might (or might not) be known via occult knowledge.

    So, “objectively” here is being used in some cases to describe the outward behavior that normally manifests a commitment to live more uxorio. It might not, in any one case, actually accompany an intention to live more uxorio, but it does so normally not only in the sense of “usually” but more importantly in the sense that hardly anyone would initiate those outward behaviors without having such an intention – whatever they may later decide to change – and thus it would be EXTREMELY RARE that the condition be present where there had not been even a temporary condition of living more uxorio.

    The “objectively” is also used in some cases to describe the outward character of acts of adultery, without attempting to assess the inward (subjective) condition of guilt. If a man engages in sex with a woman not his wife, it has the outward form of adultery, regardless of whether he has the requisite knowledge or freedom of will to be guilty of mortal sin. This outward form of the act is “objectively” that of adultery, which is of its own nature a grave sin. This matches up with “the situation of grave habitual sin” of condition 1 (c), to which is attached the ADDITIONAL condition that it be “manifest”.

    That is to say, the sins which trigger 915 must be “objectively known” in the sense of known in the public forum, as per the manifestations of the partnership of life which marriage entails, and they must be “objectively grave sins” in the sense that they must have the outward character of grave sins, whatever their subjective condition.

    Consider 4 cases:

    A. A couple divorces and remarries and has full intention of living more uxorio. They know that it is gravely wrong, and they freely intend to do it anyway. They meet all the conditions of mortal sin.

    B. A couple divorces and remarries and has full intention of living more uxorio. Their knowledge of the behavior or their consent is defective enough that the act is not fully (mortally) culpable in them. They DO NOT meet the conditions of mortal sin.

    C. A couple divorces and remarries and originally has the full intention of living more uxorio. However, they learn more / become more open to God’s will, and the cease to be willing to live entirely more uxorio, instead form an intention to entirely live continently, forsaking the common bed. For the sake of the children they continue to live in the same house, and retain the same name, and in all other respects retain their outward status as “married”.

    D. A couple divorces and remarries and originally has the full intention of living more uxorio. However, they learn more / become more open to God’s will, and the cease to be willing to live more uxorio, instead form an intention to entirely live continently. For the sake of the children they continue to live in the same house, but they additionally:
    i. get a civil divorce and change names;
    ii. file separate tax returns;
    iii. separate their finances;
    iv. put the word out among friends that they “do not consider themselves as married and do not live more uxorio”;
    v. take separate cars to nearly all functions;
    vi. take pains to NOT behave as “close” or as intimate in public, even with respect to handling the kids: they act, insofar as possible, as a friend helping out a single parent.

    In one sense of “objective grave sin”, A is the only one that has the couple living in objective grave sin. However, it is a crabbed and inappropriate sense for the application of 915. Couple B is, also, in a condition of sin where their “objective” acts (i.e. outward, visible acts) are those of habitual adultery. Adultery is “objectively” gravely evil. The subjective condition of those outward behaviors are not discernible to the minister (or the rest of us), and THAT is the intention of the explanation for how the canon is applied:

    a) grave sin, understood objectively, being that the minister of Communion would not be able to judge from subjective imputability;

    The fact that their interior realities are not those of mortal sin is NOT what “manifest” means in the third point:

    c) the manifest character of the situation of grave habitual sin … their condition as persons who are divorced and remarried is per se manifest”.

    The OUTWARD facts of (a) the initial marriage, (b) the divorce, (c) the second marriage, and (d) the ongoing living together more uxorio insofar as that condition is susceptible to outward manifestations is what makes B fall under the third point. The outward facts of the case are the EXACT SAME as the outward facts in A, and A is the quintessential case in which the minister should refuse them Communion under 915.

    The couple in C are not living in mortal sin, but the outward facts retain all that is true of B, so the conditions must also trigger 915, just as in A and B.

    For the couple in D, the outward facts are NOT the same as those in A, B, and C. Hence it is rational to consider a different result for the application of 915. This is what FC itself implied. And it is what Amoris should be understood to mean also, for it too referenced “avoiding scandal” and this is the only way to achieve that.

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    • Tony,

      Turning to the argument about “objective”. I certainly agree the sin must be both “objectively known” and “objectively grave sins”, in order for Canon 915 to apply.

      Further, in terms of your examples, under the 2000 PCLT Declaration I would consider:

      A & B – The situation is objectively grave and manifest. Canon 915 must be applied in both cases (the subjective state of sin being irrelevant under Canon 915).

      C – The situation is manifest, but as noted by the 2000 PCLT Declaration, they would “not be considered to be within the situation of serious habitual sin” as they are “assuming the task of living in full continence”. Therefore no objectively grave sin exists, and the exception to the application of Canon 915 provided by FC 84 applies (Holy Communion can be provided remoto scandalo).

      D – The situation is not objectively grave, nor is any irregularity manifest. Therefore Canon 915 should not apply.

      Under AL, the difference is that both A & B may no longer be able to be denied Holy Communion, if the irregular nature of their union is not in fact public (a determination which could not be made on the limited facts provided).

      Further, while A could not be encouraged to receive Holy Communion (Canon 916 would say the mortal sin should preclude that), B may be able to be encouraged if Canon 915 doesn’t apply (as Canon 916 wouldn’t be an impediment).

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  3. Scott,

    I am not a canon law scholar, and I don’t know the ins and outs of the interpretive principles that over the centuries have come to run alongside the law, so I might be ignorant of special rules here. However, I believe that you may have an incorrect characterization of the notion of “exception” from canon 915 from FC:

    Despite the generally universal application of Canon 915 to the D&R prior to AL, FC 84 did provide one exception, being:

    “Reconciliation in the sacrament of Penance which would open the way to the Eucharist, can only be granted to those who, repenting of having broken the sign of the Covenant and of fidelity to Christ, are sincerely ready to undertake a way of life that is no longer in contradiction to the indissolubility of marriage. This means, in practice, that when, for serious reasons, such as for example the children’s upbringing, a man and a woman cannot satisfy the obligation to separate, they “take on themselves the duty to live in complete continence, that is, by abstinence from the acts proper to married couples””.

    Since Canon 915 is an instruction to the minister to do something under certain conditions, it depends on the knowledge of the minister: he has to know that the conditions obtain: here, that the couple “obstinately persist in manifest grave sin.” The instruction is not binding on a minister in a community that has no knowledge of the fact, who doesn’t know the couple or doesn’t know they are living as married and doesn’t know of the D&R. No rule applies outside the conditions provided for its application to begin with. Hence, that it is not operative, on a minister of a community to whom it is not manifest there is any condition of habitual grave sin, is not an exception to the rule.

    The “way open” to the Eucharist that is described in FC is a “way” that can actually be fulfilled if, IN ADDITION to the steps taken (repentance, confession, undertaking to live continently), scandal can be removed. Which is given explicitly in the PCLT reference: they will be able to receive Eucharistic Communion only remoto scandalo.” I cannot find any authoritative determination of the meaning of remoto scandalo, so in the absence of such, I take it to mean in this context that ‘scandal is removed or avoided.’ It can be avoided remotely from the community in which the couple’s former living more uxorio was manifest. It can be _removed_ only on a manifest showing of a change of living that gives the lie to the former manifest behavior more uxorio:

    a way of life that is no longer in contradiction to the indissolubility of marriage.

    The “way of life” cannot be an UNCHANGED outward “partnership of the whole life” that was, originally, in contradiction to the indissolubility of marriage. It must be changed, substantively and manifestly, and with such difference it will be no longer a condition of “manifest grave sin”, and so not an exception to 915.

    Here is an example of its use in a case where the problem was a ‘marriage’ under conditions of an impediment (affinity) that the bishop had the power to dispense (and could therefore positively create conditions that allowed the apparently “married” couple to actually marry in the Church), page 90:

    Even if all the above explained conditions should be verified in a particular case, the Bishop before actually applying the necessary dispensation must take heed to remove the scandal. His prudence will suggest the various means whereby such a purpose can be accomplished. If the parties show their repentance in the presence of witnesses, or if they are willing to do public penance, or if they give a sincere promise that as soon as the danger of death is removed they will leave the present place where their scandalous relations are known, and will go to a region where they are unknown, these and other precautionary measures, dependent on circumstances, would suffice to satisfy the obligation the words “remote scandalo” impose.

    The examples remove scandal: (i) public penance opposes the manifestations of scandalous living, and (ii) leaving removes the couple from the venue in which their scandalous behavior was known. Either way, the couple no longer satisfies the conditions of the canon. Not an exception.

    Under AL, the difference is that both A & B may no longer be able to be denied Holy Communion, if the irregular nature of their union is not in fact public (a determination which could not be made on the limited facts provided).

    This response completely ignores the comments I made about the meaning of “manifest”. I refer you to those. But to be even more clear for the 4 cases, we are assuming that in all of them the couple is living in a community that is – as is normally the case – aware of the divorce and of the remarriage outside the Church. It is normally the case that a couple that attempts a second marriage is KNOWN to be living “as married” through its normal manifestation to the community in which they live in a partnership of life. The entire sense of this 915 treatment (as in the PCLT passage) assumes these truths, and assumes that their priest knows this couple is living that partnership of life as manifested by their behavior in their immediate community . Within that context, there is no sense in qualifying their union further as “public” or not. AL cannot be understood to impose on the minister a determination, beyond that of knowing their living a partnership of life through its normal manifestations, also knowing something else, like whether there are ‘so many’ people who also know it this that the situation is now “public” as if in some cases where persons have a manifest partnership of life it is not public knowledge and in other cases it is. If a couple DO NOT manifest that they have formed such a living arrangement, then there is no triggering condition for 915 to apply.

    A and B have the same treatment under FC and the PCLT as under AL, because all three docs explicitly reject a couple’s receiving Communion when scandal occurs, and scandal can ONLY be removed from a former situation with the manifestations of a marital partnership of life through a manifest change, i.e. in outward conditions. A change in the law’s interpretive standards cannot change whether scandal does or does not occur when a manifestly D&R couple receive Communion, so a commitment to keep scandal at bay requires a change in outward conditions regarding that partnership of life in order for 915 no longer to demand refusing Communion.

    A priest taking AL to heart, for a couple in Case C, will tell them they can receive Communion in other parishes where they are not known, until they have undertaken changes such as those listed in Case D. When they have managed changes like Case D, they can receive in the parish because scandal has been removed – because it is no longer manifest that they are living in a condition of grave sin.

    For a couple in Case B, if their defect is ignorance of the law, the pastor MUST (eventually) teach them so much of the law that they can no longer be protected from mortal sin through that defect. And in the meantime (whether the defect be on account of knowledge or will), he is obliged to advise them that care for their fellow parishioners may require them to not receive in the parish where they are known. AL hasn’t changed this.

    What AL has done here (mainly) is to revisit and emphasize that there may be very many people in Case B through either lack of knowledge or lack of freedom with respect to their behavior. Whatever else is the case for these people, the fact that they are not in the actual state of mortal sin does not represent (and AL cannot be taken to suggest) that the Church might just leave them in that condition where they are outwardly living lives of what is objectively grave sin. The Church must minister to them, and this cannot but mean addressing the condition of objective grave sin as something that needs to be resolved. It is nearly inevitable that in so ministering, if she is successful the Church will so change them (either through new knowledge or invigorating in them new freedom, or both) that they will be NO LONGER protected from mortal sin through an insufficiency of knowledge or freedom. That is to say, if a priest is following AL, he must hope for and aim for a couple in Case B to move out of it, into Case C and then Case D, if not altogether ending the second marriage. Any program NOT so directed must be considered false and contrary to all Church teaching, including AL. But there is an inevitable flip side to this: if a couple who use to be in Case B, through the priest’s ministry ceases to have the defects of knowledge and will, they must necessarily fall into Case A if they will not take steps to change their life that outwardly had manifested grave sin.

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    • Tony,

      Interestingly, in the article of Cardinal Burke I refer to in the Apologia, he suggests with reference to St Timothy of Alexandria that Canon 915 does apply if a priest doesn’t know about a person’s manifest sin. It is just that the priest is excused from his responsibly due to ignorance.

      In any event, in terms of “remoto scandalo”, my understanding is that this means Holy Communion can be received 1) privately or 2) where one is not known as divorced and remarried, to keep from causing judgment, confusion, distress, and scandal among the faithful (as outlined at http://chiesa.espresso.repubblica.it/articolo/1351288?eng=y).

      Therefore it can refer to the provision of Holy Communion itself being private, rather than the situation of being remarried. This would apply where for example, despite a couple living in continence, publicly speaking it would appear they continue to live as man and wife.

      However I agree this is not, as you note, properly speaking an exception to Canon 915 so much as an additional requirement imposed in prudence to prevent scandal. In accordance with the 2000 PCLT Declaration, Canon 915 simply can’t apply where the couple lives in continence, as there is no grave sin as required (regardless of Holy Communion being provided remoto scandalo or not).

      In terms of a situation being manifest, I think the factual assumptions you make simply no longer hold in the modern world, with its mobility and large communities. It is not normally known if a person has divorced or remarried outside the Church. For example I know the martial history of precisely no one at my current parish, nor would they know mine. And as I have mentioned before, it is the irregularity of the union which must be manifest, rather than its existence as what looks like a marriage (I have now revised the Apologia to clarify this point).

      Further, contrary to your idea that Canon 915 cannot require a priest to judge how many people know about a sin, this is in fact precisely the requirement imposed by Canon 915 for most sins. As noted by the conservative canonist Dr Edward Peters in the article I refer to in the Apologia:

      “However sinful it might be, conduct that is not already widely known in the community is not manifest as canon law understands that term in this context”.

      Accordingly your application of Canon 915 to A and B under AL are mistaken, because it is not the public fact of their cohabitation which needs to be relevantly public, but its irregular nature (which will depend on who knows the couple’s martial history, which may well be no one with a 1,000 miles or 30 years).

      In terms of C Holy Communion could be provided publicly in their current parish (if the irregular nature of the union is not relevantly public), privately in their current parish (if the irregular nature is publicly known) or publicly in a different parish (if the irregular nature is not known in that parish).

      Also in terms of B, the priest must certainly work to remove any subjective limitations which reduce their culpability. This may mean for example that while Communion can be encouraged for a time, that may need to stop, if the limitations reducing culpability are removed as the person progresses in the spiritual life. Further, whereas under FC Canon 915 would mean they could never have been provided Communion (even remoto scandalo), under AL they may be admitted if the grave sin is not pastorally manifest.

      However, as your rightly note, what makes this approach orthodox is precisely that it must be aimed at ultimately eliminating subjective limitations and the grave sin itself. The Church does not seek to abandon people in their sin, or deem sin not to exist due to difficulties. Which is why the Church, and indeed AL, speak of a law of gradualness not a gradualness of the law.

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  4. Interestingly, in the article of Cardinal Burke I refer to in the Apologia, he suggests with reference to St Timothy of Alexandria that Canon 915 does apply if a priest doesn’t know about a person’s manifest sin. It is just that the priest is excused from his responsibly due to ignorance.

    My first thought, Scott, is that the principle of “responsibility” is expressed in the phrase “ignorantia legis non excusat.” Ignorance of the law is no excuse. This is a very old maxim, dating from Roman times. It seems likely to me that Canon Law will not turn the principle on its head. As background for it, Cicero says this:

    There is a true law, right reason, agreeable to nature, known to all men, constant and eternal, which calls to duty by its precepts, deters from evil by its prohibition. This law cannot be departed from without guilt. Nor is there one law at Rome and another at Athens, one thing now and another afterward; but the same law, unchanging and eternal, binds all races of man and all times.

    Hence all are assumed to know the basic structure of the law. But this concerns “ignorance of the law”, not ignorance of the factual conditions in which the law mandates an act. At least in the US, a law is not considered to demand an action of a person who neither knows the conditions nor could reasonably be expected to know them. Many agents are required to know or find out the facts of which the law demands of them an action: there is “due diligence” in discovering the facts upon which will depend whether the law requires them to act this way or that. They cannot be excused of “not knowing the facts” if they have not done due diligence. This is not “ignorance of the law”, though, it is failing due diligence.

    Quite the opposite, however, is the situation in which the agent in a certain case has no way to discover facts that would require an application of the law, and in which he cannot reasonably be expected to know the facts. In this case it is nonsensical to say “the law requires the minister to refuse Communion, but he is excused from following the law.” Or, to say the same thing another way, it is sheer semantics to claim “he is ‘obliged’ to apply the law, but he is ‘excused’ from not applying it.” The law is a law that requires an action of a minister, and it requires the action of a minister upon only certain “manifest” conditions. It is bunk to say that the law “obliges” him when he neither knows nor could reasonably know these “manifest” conditions.

    Interestingly, I would not characterize the specific fact pattern mentioned by St. Timothy as one in which the minister “does not know of” the conditions which would call in the application of the law.

    The fonts of can. 712 of the Code of Canons of the Eastern Churches also include a text of Saint Timothy of Alexandria, which underlines the responsibility of the minister of Holy Communion to refuse the Blessed Sacrament to a public sinner. The question is posed: Whether it is permitted to give Holy Communion to a heretic who presents himself to receive amidst a large crowd? Saint Timothy of Alexandria responds that it is not permitted to give Holy Communion to the heretic, even if he is not recognized in the huge crowd. He comments that the one who gives Holy Communion to the heretic in such a situation, that is, not recognizing the heretic in the crowd, <> [15]. The discipline is clear. Holy Communion is to be denied to the public sinner, whether the congregation is large or small. The minister, however, is not responsible for giving the Sacrament to the known heretic whom he fails to recognize because of the size of the crowd.

    The assumed conditions are not that the heretic is unknown in general to the minister, it is that the heretic is not singled out in the press of time and the large crowd. We all have the experience of looking for someone in a crowd, and passing over them 3 or 4 times because the crowd is moving around and conditions of recognizing even someone you know makes recognition difficult. How much more, then, if you are not actually expecting this heretic to show himself, you may be excused for not noticing that this is a person whom you “know” should not receive. St. Timothy is pointing out that the minister is “not responsible” for the inadvertent mistake of _not _noticing_ who was asking for Communion. Cardinal Burke explicitly supports this understanding: the known heretic whom he fails to recognize because of the size of the crowd.

    While this is obviously very similar to the case of a heretic whose face is unknown to you, it is not the same. For St. Timothy’s heretic, the first minister COULD have avoided the error, and his not noticing is actually a mistake of his own, because he does in fact have the information necessary to know this heretic and to realize he should refuse Communion he just fails to consider these facts at the right moment. It is a mistake that is non-voluntary, but still a mistake. Quite otherwise is a minster faced with a heretic who he does not and could not “recognize” because he has never known who “Arius” is by face. It is not a “mistake” for this minister not to realize “I should refuse this man Communion”, because it is simply a lack of information that he had no way of having even though he had done all due diligence. Ignorance of such facts is not a mistake, not an error. (Cf: I am ignorant of the 334,657th place of pi: I am not in error about it, I just don’t know what digit inhabits that place.) And in the absence of any failure of due diligence, there is NOTHING TO EXCUSE in the latter minister. It is not that he is rightly excused, because of understandable (inadvertent) error: he made no error, there is no “failure” to notice what he had no way to notice.

    In any case, I would push back by calling even Cd. Burke’s comments as being somewhat like “picking at semantics” rather than saying what is of substance. A person may be relieved from a punishment for failing to follow a law he is obliged to follow, on a case by case basis depending on facts like inadvertence, remorse, etc. When you find a whole class of cases or persons who are “not responsible” for failing to follow that law, and you do so “in the very nature of the class condition” rather than one-off applications of mercy, such that it is unnecessary to consider their remorse or other mitigating factors, you have found a substantive limitation on the law itself.

    Accordingly your application of Canon 915 to A and B under AL are mistaken, because it is not the public fact of their cohabitation which needs to be relevantly public, but its irregular nature

    This is inapposite. In order to notice or realize that a couple is living in a marital relationship that is “irregular”, it is ALSO necessary to notice or recognize that they are living in a marital relationship OF SOME SORT. It is impossible to apprehend the irregularity of the marital relationship without apprehending that it is some sort of marital relationship. Hence it is a bit facetious to suggest that the conditions I assumed – that they are known to be divorced and remarried and living as married – hinge solely on “cohabitation” and leave out that such cohabitation is irregular. Surely the D&R where the R occurs outside the Church imply “irregular”.

    In terms of a situation being manifest, I think the factual assumptions you make simply no longer hold in the modern world, with its mobility and large communities. It is not normally known if a person has divorced or remarried outside the Church. For example I know the martial history of precisely no one at my current parish, nor would they know mine. And as I have mentioned before, it is the irregularity of the union which must be manifest, rather than its existence as what looks like a marriage.

    It is certainly true that the modern world is somewhat different from conditions of 100 years ago, and much different from 500 years ago. On that basis, it will indeed be true that conditions in which a person’s cohabitation as irregular is “manifest” will be much less common than before. I accept that. Indeed, with the advent of parishes that harbor 1500 families (some are considerably larger), 5 to 7 masses a weekend, and several extraordinary ministers at each mass who serve only for 3 years, one might be tempted to say that the likelihood of RECOGNIZING even a notorious, public sinner by any given minister is relatively low. (I once served Steve McQueen an ice cream cone, without realizing who it was until after.) On that basis, one might argue that we should just do away with the “manifest” provisions in 915 altogether. That might make the most sense pastorally.

    Nevertheless, I don’t take the same conclusion from it that you do. Pope Francis in AL is NOT ARGUING that thesis. He could have, and maybe he should have just changed the law. But he claimed that changing the law isn’t what he is trying to accomplish. (For some reason, we find oddly often priests who seem to have little regard for applying penal laws also have very little taste for changing laws that they have the power to change, as if by changing the law they would somehow invalidate their earlier reticence in applying it.) I posit in the case of A and B two couples who ARE MANIFESTLY living as if their second marriages, outside the Church, were valid:

    we are assuming that in all of them the couple is living in a community that is – as is normally the case – aware of the divorce and of the remarriage outside the Church.

    Given that their condition is posited as manifest, it is pointless to discuss other cases where other couples are not known to be remarried. OK, these latter are out there, but they are not A and B. Given that for A and B, D&R is manifest in the community and through that to the minister, what does this imply about the application of 915? (I think that you are slightly pessimistic about how often an irregular state is known in the parish: while there are certainly many, many couples whose irregularity is not known by very many – such as, the whole parish – there is usually quite a fair fraction of couples whose irregularity IS known by a few dozen families.)

    If we think AL says 915 cannot be applied to A and B even when manifest, then we have gutted the canon. If we think that 915 “may not” be applied to A and B without the minister knowing via occult knowledge their subjective condition as well as the manifest facts, we have turned the language of the canon on its head and reversed clear interpretive standards based on very vague and ambiguous terms in AL.

    The PCLT and FC have had for us entirely adequate terms under which an outwardly irregular couple (who in spite of outward appearances are actually properly disposed) can receive, in spite of the terms of 915: they can receive remotely, for example, which removes the scandal. Since AL references to FC on this, and has not given us any new ways for such a couple to remove the scandal, it is not proposing any new ways for the manifestly irregular couple to receive rightly; it is proposing new efforts to bring them to the point where they can receive rightly, including more careful efforts to recognize (‘discern’) when the couple ARE properly disposed.

    An alternative would be for Pope Francis to issue new guidelines explicitly recasting the required sense of “manifest” (that would call in an exercise of 915) not to mean what is manifest to the typical few dozen families that actually know Couple A and know their irregular situation (and who will be the ones hit by scandal), but to mean “the whole parish at large” or even “the city at large” or some such. This too would effectively gut the “manifest” provision of 915, of course, but if that’s what he wants to do, he could.

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  5. Sorry, the last block was supposed to highlight the immediately preceding passage “we are assuming that in all of them the couple is living in a community that is – as is normally the case – aware of the divorce and of the remarriage outside the Church.”

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    • Tony,

      Oddly enough, I think you have come to a position which would allow you to say AL is orthodox, even given the novelty of providing Communion to the D&R.

      Because the fact that something is manifest means it must be known by “the whole parish at large”, or at least a substantial portion of it, is precisely what manifest has been defined to mean by canonists in relation to sins without legal paperwork.

      Further the extension of this threshold to the D&R by Pope Francis, while it could have been done in a clearly manner legally speaking, is as I set out legally effective. And even if it were not, if you allow it could be done, then that suggests it would be orthodox to do so.

      While you still have pastoral objections, I think it is perfectly open to you to disagree with the Pope on such matters, and I certainly see merit in a number of pastoral objections to AL.

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  6. I have already said that I think AL can be read as orthodox – this was the main thrust of my own analysis at WWWtW. That it can also be read as unorthodox is, unfortunately, also true – if one doesn’t care about trying to make it harmonious with prior teaching.

    I take issue with the notion that the Pope or a bishop could simply alter, by law or by Exhortation, that living openly as D&R and receiving Communion openly would cause scandal. If it causes scandal to the 4 dozen families that know them and know their D&R, then it is causing scandal. That it is not causing scandal to the other 1400 families in the parish means that it is causing scandal to a modest number, not that scandal has been removed.

    It is undeniable that passages like this

    When a responsible and tactful person, who does not presume to put his or her own desires ahead of the common good of the Church, meets with a pastor capable of acknowledging the seriousness of the matter before him, there can be no risk that a specific discernment may lead people to think that the Church maintains a double standard.

    are ambiguous and could EASILY mislead people into thinking that persons in Cases B and C have no duty to take positive steps (outside the internal forum) to remove scandal before receiving Communion. In fact, they would have a moral obligation in justice to do so even in the absence of 915 and its jurisprudence, since it is their own D&R that created the initial conditions of scandal.

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    • Tony,

      I think it is perfectly fair to hold the concern, as you do, that AL is not pastorally a good idea (I have my own concerns in that regard). JPII would certainly have shared a similar view, and the next Pope remains perfectly free to reverse AL if he thinks the same. And if it is a sin to disagree with a Pope’s pastoral ideas, it is one you must share with Pope Francis, as I am sure he similarly disagreed with JPIIs pastoral approach when he was still Pope.

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  7. Scott, thanks for a vigorous discussion.

    I think we will continue to disagree, so I won’t belabor the point further than this. As I implied above in talking about “per se manifest”, I don’t think the Church EVER meant “public” in the sense of “known to everyone in the parish” for applying 915 to D&R couples. The status of “married” or “unmarried” was, I think, never known to everyone. It was known to the people who actually knew anything about the couple, sure. Even in 14th century Florence, or 18th century Paris, where there were many dozens of churches, there MUST have been a fair amount of parish hopping of a Sunday – it is even described (indirectly) by St. Francis de Sales. And so if “manifest” meant, for the application of 915, “known to everyone”, there would have been no sense to describing the status of “married” as “per se manifest” as is done in the PCLT. I think it makes more sense to understand by “per se manifest” as applied to married folk that the status (married, or D&R) is manifest to those who are at least acquainted with them, which in many parishes MUST have been a subset of the parish.

    If Francis wants to change that to “publicly known to all” he could, but I don’t think he can do it successfully in this manner, it’s the wrong format for such a change. He could do it in a new PCLT type document, easily. Or he could do it in something like AL, but by _explicitly_ saying things like “reversing the former sense of ‘manifest’ in the passage of PCLT…” (which he didn’t try to do in AL). If he wants to do something as determinate as so modify the sense of “manifest” the way you are saying, he is going to eventually have to SAY THAT, instead of this sort of meal-mouthed beating around the bush that is neither here nor there.

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