CCI Editor’s note: Why Canon 915 is not being enforced.
By Christopher Manion, January 28, 2014
In the December issue, Father Regis Scanlon’s explained the wisdom of Canon 915 of the Code of Canon Law (“Politicizing the Eucharist”).
The argument over the canon’s implementation is not going away. However, recent events have significantly affected the prospects for its implementation in the United States.
Canon 915 of the Code of Canon Law reads: “Those who obstinately persist in manifest grave sin are not to be admitted to Holy Communion.”
On May 9, 2007, as he was traveling to Brazil on his first trip as Pope outside of Europe, Pope Benedict XVI told an inquiring reporter that he would support Mexican bishops who excommunicated pro-abortion lawmakers.
“It is part of the code,” Benedict said. “It is based simply on the principle that the killing of an innocent human child is incompatible with going in communion with the body of Christ.”
Within hours, a reporter from The Hill, a newspaper on Capitol Hill, asked Senate Judiciary Committee Chairman Patrick Leahy (D-VT) for comment on the pope’s statement.
Leahy’s reply was blunt: “I’ve always thought that those bishops and archbishops who for decades hid pederasts and are now being protected by the Vatican should be indicted,” he said.
Today Leahy, a Catholic, serves as the Chairman of the Senate Committee on the Judiciary. Did his searing remark play a quiet role in a recent Vatican reassignment?
A Strictly Routine Appointment?
When Pope Francis was elevated to the throne of Peter in March 2013, he took his time in reviewing the membership of the Vatican’s various congregations.
Finally, in December 2013, Pope Francis appointed Donald Cardinal Wuerl, Archbishop of Washington, to replace Raymond Cardinal Burke as the only American on the congregation that reviews the candidates for bishop whose names will be submitted to Pope Francis.
The change is not insignificant. In particular, the two cardinals differ profoundly on the controversial application of Canon 915 in the case of American public figures.
Cardinal Wuerl has long maintained a “pastoral approach” regarding the many prominent Catholic politicians in his archdiocese who publicly advocate abortion.
The cardinal articulated this view during a speech to the John Carroll Society at the Church of the Little Flower in Bethesda, Md., on March 11, 2012.
Asked to explain when Communion should be denied under Canon 915, “he repeated his earlier position that only in extremely rare cases after an individual has been publicly excommunicated” should it be denied, according to the National Catholic Register.
Cardinal Wuerl’s “earlier position” on Canon 915 had been on the record since he was Bishop of Pittsburgh.
In a 2004 speech that was later published by the bishops’ conference, he said, “Given the long-standing practice of not making a public judgment about the state of the soul of those who present themselves for Holy Communion, it does not seem that it is sufficiently clear that in the matter of voting for legislation that supports abortion such a judgment necessarily follows. The pastoral tradition of the church places the responsibility of such a judgment first on those presenting themselves for Holy Communion.”
In 2007, a year before Pope Benedict appointed him to head the Vatican’s highest court, then-Archbishop Burke published “The Discipline Regarding the Denial of Holy Communion to Those Obstinately Persevering in Manifest Grave Sin,” a lengthy exposition on Canon 915.
There he delivered what can only be called a scathing critique of Cardinal Wuerl’s view.
Relying on a Declaration issued by the Pontifical Council for Legislative Texts on June 24, 2000, Cardinal Burke charged that Cardinal Wuerl’s statement, “effectively, in the language of the Declaration, would make it impossible to apply can. 915. It confuses the norm of can. 916 with the norm of can. 915 in a way which makes can. 915 superfluous.”
While Canon 915 applies to the minister of the Eucharist, Canon 916 applies to the recipient. It requires that a Catholic who is conscious of mortal sin may not receive the Holy Eucharist without prior sacramental confession when this is possible (and it usually is possible). Canon 916 applies to the person’s own sense of the state of his soul.
That’s why Cardinal Wuerl is mistaken, Burke insists: applying Canon 915 “is not a judgment on the subjective state of the soul of the person approaching to receive Holy Communion, but a judgment regarding the objective condition of serious sin in a person who, after due admonition from his pastor, persists in cooperating formally with intrinsically evil acts like procured abortion.”
Burke’s article appeared in Periodica De Re Canonica, a prestigious journal published by Rome’s Pontifical Gregorian University. It is required reading for canon lawyers and prelates around the world.
Cardinal Wuerl undoubtedly took note.
And Cardinal Burke undoubtedly took some heat.
In fact, he admitted as much when EWTN’s Raymond Arroyo asked him about it in an interview that aired on December 11, 2013.
“I’ve received very severe criticism,” he said. “But … it’s a consistent discipline from the time of St. Paul from the very first years of the Church and it makes perfect sense.”
Ironically, five days after the interview aired, the pope’s decision to replace Cardinal Burke with Cardinal Wuerl on the Congregation for Bishops was made public by the Vatican.
Correction – Fraternal and Otherwise
In criticizing Cardinal Wuerl by name and in print, Cardinal Burke committed what most bishops consider to be a cardinal sin: he publicly criticized a fellow bishop, and a powerful one at that.
Although they are supposed to exercise “fraternal correction,” bishops rarely criticize their brother bishops. There is a logical reason for this: they don’t want to be criticized by their brother bishops.
In 2002, when the bishops met in Dallas, Bishop Fabian Brusekwitz of Lincoln made a motion that the USCCB commission an independent study of the causes of the Sexual Abuse and Cover-up Scandals.
His motion didn’t even get a second.
Instead, the assembled bishops adopted a “Charter for the Protection of Children and Young People” – so onerous that Cardinal Dulles warned that it would alienate innocent priests from their bishops.
Before they adopted it, however, the bishops voted – in a nationally televised session – to exempt themselves from their own Charter.
Why did Bishop Bruskewitz’s motion die an orphan’s death?
When the bishops arrived in Dallas, they were met by a blockbuster story in the Dallas Morning News. Months of research had concluded that 111 of the country’s 178 diocesan ordinaries had allowed clerics accused of abuse to continue working in ministry, it read.
“Church spokesmen did not dispute the results of the study,” the story added.
Two-thirds of the bishops meeting in Dallas were accused of enabling suspected abusers. Yet they left Dallas with their brother bishops, returned to their dioceses, and rode out the storm from inside their chanceries.
In the words of Ben Franklin, the bishops chose to hang together, lest they hang separately. They rejected Bishop Bruskewitz’s motion because the last thing they wanted to allow was a shift of focus from abuse by priests to cover-ups by prelates.
As it happened, virtually all bishops who were not abusers themselves remained in office until they retired or died, even though their communal decision cost the faithful billions of dollars and wrought untold damage on Holy Mother Church, on the abusers’ victims, and on the laity and faithful priests – who are, after all, victims of the scandals as well.
In diocese after diocese, bishops settled abuse suits, often paying millions of dollars per plaintiff, rather than risking an appearance in court that would require their testifying under oath.
As years passed, cardinals, archbishops, and bishops around the country breathed a collective sigh of relief whenever another state’s statute of limitations expired.
To counter that trend, advocates for plaintiffs in several states, including Massachusetts, Minnesota, and California, have lobbied for the extension of statute of limitations laws so that they can continue to hold the church liable for civil damages in cases involving the alleged sexual abuse of minors.
The Fifth Amendment or the Fifth Commandment?
In spite of the plain language of Canon 915, why is Cardinal Wuerl’s view, and not Cardinal Burke’s, likely to prevail among America’s bishops?
To address that question, the author proposes a scenario, drawing on years of experience on the U.S. Senate staff, working closely with the Judiciary Committee during the Reagan years.
Let us suppose that, in this coming year, Senator Leahy’s new ordinary in Vermont (yet to be appointed) decides to apply Canon 915 as Cardinal Burke articulates it.
The bishop requests a meeting with Leahy. There, he privately advises the Catholic senator that he should reconsider his support of abortion. In the meantime, the bishop makes clear, Leahy should refrain from receiving the Eucharist.
Senator Leahy, flashing the classic politician’s smile (lots of teeth, cold eyes), refuses.
Given that refusal, the new bishop then announces to the public that Senator Leahy is “obstinately persevering in manifest grave sin,” and communicates to all pastors his firm directive that Leahy is not to receive the Eucharist.
Will Senator Leahy demurely submit? Publicly apologize? Promise to lead the 2015 March for Life?
I have watched Senator Leahy for thirty-four years. He knows the Church well – his brother-in-law, a priest of the Holy Cross, had the office next to mine decades ago in the basement of the Notre Dame library.
Senator Leahy will not submit. Most likely, in fact, he will retaliate. The next step is easy.
Chairman Leahy has full prerogative over the schedule of the Senate Committee on the Judiciary. He might suddenly acquire an intense interest in statutes of limitations, which are often complicated, and which vary widely from state to state.
This innocuous spark of intellectual curiosity might prompt the Chairman to call a series of historic hearings to discuss the issue, inviting all the major media to cover them.
The hearings would address the issue of whether the proposed extensions of the statutes of limitations in clergy abuse cases would be consistent with federal law, including the Religious Freedom Restoration Act and the Free Exercise clause of the First Amendment, as interpreted by the Supreme Court.
Such hearings would have ample precedent. After all, Woodrow Wilson once observed that “the informing function of Congress should be preferred even to its legislative function.” (Congressional Government, 1884, p. 198)
Chairman Leahy then announces that the hearing’s first panel of witnesses will feature five prominent bishops who happen to have played a role in the scandals – some still active, some now retired.
The invited bishops will be required to attend, of course – the Judiciary Committee has subpoena power.
Some possible names come to mind …. Excellencies and Eminences Mahony, Law, Weakland, McCormack, Skylstad, Blaire…. maybe even Wuerl.
The various statutes of limitations that might apply to the conduct of these shepherds during the scandals have indeed expired – but now they would face a new one.
The Judiciary Committee routinely swears in its witnesses. Lying while under oath constitutes perjury. And the statute-of-limitations clock on perjury starts ticking all over again the moment that the witnesses are sworn in and begin to testify.
Let’s put ourselves in the bishops’ shoes.
They wonder, “What does Leahy know? He was on the Intelligence Committee for years. Does he have the records of my phone calls? E-mails from my private account? Drafts of my letters? Data dumps from my computers, iPhones, backup drives? Have the IRS and the FBI been sending him my files?”
A smiling Chairman Leahy warmly welcomes the bishops, and thanks them for appearing before the Committee. After a brief opening statement, the senator – who has been proclaimed an obstinate purveyor of persistent public scandal by their brother bishop – now turns the tables, and conducts a public interrogation of leading American prelates regarding the Abuse-and-Cover- Up Scandals.
All broadcast live and nationwide.
Ringing in the bishops’ ears is that adamantine charge by the Chairman to a reporter, spoken out of the blue years ago, in response to a completely different question:
“Should be indicted …. Should be indicted….”
The cameras are rolling. Leahy can ask them anything.
That old hearing favorite, “What did you know and when did you know it” would probably suffice.
The prelates must answer, fully and truthfully, or take the Fifth, one after the other, while the whole country is watching.
And that is why pro-abortion Catholic politicians are unlikely to experience problems with their new bishops in coming years. Cardinal Wuerl will find it advisable to recommend candidates who embrace his view of Canon 915, and not that of Cardinal Burke.
It won’t actually be a litmus test; it will merely be a prudential judgment. A pastoral one, of course.
[all on web at http://abyssum.org/2014/04/08/do-you-wonder-why-canon-915-is-universally- neglected/]