FINALLY, SOMEONE DOES SOMETHING
Charles M. Wilson
[<I would like to express my deep gratitude for the advice and suggestions of the expert canon lawyers and theologians on our consulting staff who have contributed to this article. Any errors or omissions, however are mine.>]

In 1983, the year before the St. Joseph Foundation was incorporated, Prof. James Hitchcock observed:

<Most American Catholics are aware that the Pope himself affirms what they have always taken to be Catholic doctrine. If they take the trouble to read the decrees of the Second Vatican Council, they realize that that assembly did not authorize many of the things done in its name and that it even forbade some of them (for example, liturgical experimentation). If they pay little attention to what is happening in the Church in the United States, their own faith may remain in spiritual unity with the Church of the ages.

Paradoxically, those Catholics who do seek to be informed and alert are probably those most likely to be troubled, because they will inevitably become aware of the widening gap which separates the Church's official teachings, as articulated by pope and council, from what is actually being taught in the United States.

Such a dichotomy can only be frustrating, forcing the individual to be simultaneously responsive to two conflicting signals. For many, a rational solution to the dilemma is to assume that, while the Church must still formally reaffirm certain of its classical teachings, it no longer holds them and that this is the real message now being given the laity.

It is surely time for the leaders of [North] American Catholicism to ask if this is really the message they want to send the people>. James Hitchcock, "The Dissenting Church," New York, The National Committee of Catholic Laymen, Inc., 1983, pp. 55­56.)

Professor Hitchcock is still waiting for the leaders of North American Catholicism to ask themselves that question. I, too, am still waiting and so, I imagine, are you.

In the years since 1983, we have seen the Holy Father and those dicasteries of the Holy See which assist him in his teaching mission continue to reaffirm what we have always understood as the authentic truths of our faith in a series of pronouncements, among which—to name just a few—are: <Centesimus annus> (1991), <Veritatis splendor> (1993), <Directory on the Ministry and Life of Priests> (1994),

<Ordinatio sacerdotalis> (1994) and <Evangelium vitae> (1995). Taking into consideration all the documents flowing from Rome since 1983, including the Code of Canon Law, it is fair to say that we are being inundated with paper but, nonetheless, the situation continues to deteriorate. Perhaps the best explanation I have heard of why this flood of paper has not produced results was given by Fr. Joseph Fessio at a Human Life International Conference in Santa Ana, California several years ago. Fr. Fessio said, as best I can remember: "We don't need any more documents from Rome. What we need is the will to enforce the ones we already have."

Fr. Fessio was right. What we have been waiting for these many years is not for someone to SAY something but for someone to DO something. Now, at long last, someone has.

The Bishop's Bombshell

Presumably, there are few if any Christifidelis readers who are unaware that the bishop of Lincoln, Nebraska, the Most Rev. Fabian W. Bruskewitz, on March 19, 1996, using his legitimate authority to make laws which bind members of his flock, published a legislative pronouncement naming twelve organizations, membership in which was defined to be "always perilous to the Catholic Faith and most often is totally incompatible with the Catholic Faith." (Southern Nebraska Register, March 22, 1996.)

The list of organizations contained in the law includes: the Society of St. Pius X and a chapel served by its priests; three non-Catholic organizations which are openly opposed to and contemptuous of the Church's teaching on the sanctity of human life; the Freemasons and four subsidiary groups. Also named are two organizations whose inclusion is sure to cause the most controversy: Call to Action (CTA) and its Nebraska chapter, Call to Action Nebraska. The legislation went on to state: "Any Catholics in and of the Diocese of Lincoln who attain or retain membership in the above listed organizations or groups after April 15, 1996, are by that very fact (<ipso facto­latae sententiae>) under interdict and are absolutely forbidden to receive Holy Communion. Contumacious persistence in such membership for one month following the interdict on [the] part of any such Catholics will by that very fact (<ipso facto­latae sententiae>) cause them to be excommunicated..."

As we know, there are other organizations and groups which hold views which are perilous to or incompatible with the Catholic Faith. Why the twelve organizations named were included in the legislation was explained in an editorial in the same March 22 issue of the Southern Nebraska Register:

"<Because certain organizations and groups have been, either directly or indirectly, asserting that membership in them does not contradict membership in the Catholic Church and leading even some people of good will> astray <in this>, our <Bishop> has <found it necessary to dissipate ambiguity and overcome any confusion in the minds of Catholics in the Diocese of Lincoln about these matters. Despite the fact that the anti­Catholicism of most of these organizations and groups is frequently open and apparent, some of their members and leaders have been trying to sell their evils to the unwary and uninformed, and sometimes to give the impression that the Catholic Church is divided or undecided about some of these groups and organizations. We applaud and thank our Bishop for this service of clarification.>"

Since March 22, it has become obvious that many more Catholics also applaud and thank Bishop Bruskewitz. The Diocese of Lincoln has announced that it has received over 4,000 messages from all over North America, more than 95% of which support the bishop's action.

The Southern Nebraska Register editorial also predicted: "We expect that the forbidden groups and organizations will make as much use as they can of the secular media to oppose our Bishop and our Diocese." This certainly turned out to be true, although the editorial might have added that the religious as well as the secular media would be used.

As far as I know, no act of any individual bishop in North America during the past twenty­five years has received as much media coverage as has been given to Bishop Bruskewitz's action. Some of the media coverage has been relatively objective—I would include here most of the television reports I have seen—and Bishop Bruskewitz has given a number of interviews, including an appearance on NBC's <Today> show, where he acquitted himself admirably.

Judging from the many press clippings sent to our office by Christifidelis readers, the print media coverage and editorial comment, both secular and religious, ranges from the mildly slanted to the plainly absurd. Bishop Bruskewitz is usually cast as the heavy and the objects of his legislation—especially the CTA people—portrayed as innocent reformers. Two examples are provided in "Straws in the Wind" in this issue.

Inaccurate, sloppy and slanted press coverage of Church matters in the media, both secular and Catholic, has been with us for years and will undoubtedly be with us for a long time to come. Therefore, it is no surprise to see a lot of nonsense in the press concerning ecclesiastical penalties in general, excommunication in particular, means by which penalties can be inflicted and how penalties can be appealed. Rather than merely rave on at the news media, we will try to shed as much light on the subject of sanctions in the Church as this very limited space permits. I would ask that you read the following brief analysis and commentary with the understanding that this is an extremely complex subject and I cannot begin to add all the qualifications and exceptions to the matter under discussion.

Ecclesiastical Penalties In General

No one enjoys exercising coercion, particularly when it involves people we love. We who are parents surely know this, as do those who hold positions of responsibility in government, business or other endeavors; but there are times when persuasion, logical arguments, good example and other means of dealing with the fruits of misbehavior are inadequate. In such cases, the common good, the good of the miscreant and the protection of the rights of others require the proper imposition of penalties. Because we are all sinners, this applies as well to the Church and is reflected in this canon of the 1983 Code:

The Church has an innate and proper right to coerce offending members by means of penal sanctions (c. 1311).

Today, there seems to be more than a little squeamishness on the part of many Catholics whenever the subject of ecclesiastical penalties comes up for discussion. Perhaps this stems from the fact that the penal law of the Church has acquired a somewhat infamous reputation arising from some real and imagined excesses in the past. The mere mention of such words as "excommunication" and "interdict" evokes in many minds sinister images of the first Grand Inquisitor of Spain, Tomas de Torquemanda, the burning at the stake of St. Joan of Arc or the house arrest of Galileo Galilei. Though the supposed terrors of the Inquisition and other injustices attributed to Church authorities are grossly exaggerated or in some cases fictitious, we should not fail to acknowledge that God entrusted the care of His Church to us sinners. Consequently, human malice and human error have from time to time resulted in unjust acts by Church officials. However, it remains true that there are times when penalties are called for. In the words of an eminent American canonist:

<While the Church is indeed a graced community empowered by the spirit, its members are sinners reflecting the weaknesses and limitations of the human condition. Occasionally, their attitudes are contrary to the faith or their behavior is contrary to the Christian way of life...The community simply cannot afford to take no notice of those who reject sharing in the Church's mission or refuse the call to Christian witness in a significant way>. (Thomas J. Green in <The Code of Canon Law: A Text and Commentary>, James A. Coriden, Thomas J. Green, Donald E. Heintschel, eds., New York/ Mahwah, Paulist Press, 1985, p. 893.)

Once we accept the reality that penalties have a legitimate—though we hope limited—function in the life of the Church, then we must define precisely what an ecclesiastical penalty is. In secular law, a penalty is the deprivation of life, liberty or property by proper authority, preceded by due process of law. Today, it is not possible for the Church to deprive a wrongdoer of life by inflicting capital punishment or of liberty by imprisonment. Even in the Vatican City State, where the pope wields temporal as well as spiritual power, the cases of people who snatch purses in St. Peter's Square or steal works of art from the Vatican Museum are investigated and prosecuted by the Promoter of Justice of the Vatican City Tribunal, but they are punished by the Italian authorities. Even so, the definition of an ecclesiastical penalty as the deprivation of something desirable remains. The most complete yet succinct expression of this notion can be found in canon 2215 of the 1917 Code, which states:

An ecclesiastical penalty is a deprivation of something valued, inflicted by competent authority for the purpose of correcting a delinquent and of punishing his crime [unofficial translation].

Having defined what a penalty is, we can now proceed to examining the types, applications and effects of ecclesiastical penalties.

Types Of Penalties

Ecclesiastical penalties fall into two broad classes, or types, i.e., medicinal and expiatory. The former, as the name implies, are inflicted with a view to correcting the behavior of the delinquent and restoring him to the exercise of all his rights and duties in the Church. The latter are inflicted to repair the damage done to the community by the offense and to punish the offender. Although it would be uncommon, in particularly serious cases or those involving separate wrongful acts, a medicinal and an expiatory penalty could be imposed upon the same person.

Within the category of medicinal penalties, also called censures, there are only three; excommunication, interdict and suspension. The first two can be applied to both clergy and laity and the third only to clergy. A more detailed description of these penalties and their effects will follow.

Expiatory penalties, by contrast, are greater in number. They include, but are not limited to: prohibition of living in a certain place; deprivation of power, office, function, right or privilege or against exercising them; penal transfer and dismissal from the clerical state. Since canon law permits the establishment of other unnamed expiatory penalties by universal or local law, their number could be, at least in theory and in consideration of the endless variations in local circumstances, virtually limitless.

The most important difference between the two types of penalties is that remission or cessation of medicinal ones depends only on the repentance of the offender and for expiatory ones it does not. Consider the example of a priest who was found guilty of heresy and profanation of the Eucharist, excommunicated (medicinal penalty) and dismissed from the clerical state (expiatory penalty). His excommunication would cease upon his sincere repentance and the fulfillment of the specific procedural steps required by law. He could then receive the sacraments but would not thereby be restored to the clerical state. The penalty of dismissal from the clerical state could be remitted by the competent authority, but the repentance of the offender would not oblige him to do so since the penalty was imposed to repair damage to the public good and not merely to encourage repentance.

Application Of Penalties

In most secular legal systems, one cannot be punished without first having had his day in court, but this is not always the case in Church law. While ecclesiastical law provides for and requires due process in most penal cases, some offenses are judged by the Church to be of such a nature that the act of commission itself automatically (<ipso facto>) impairs the offender's relationship with the community or, if he is a cleric, the exercise of his ministry. These automatic or self-inflicted penalties are called <latae sententiae> and may be (but do not have to be) followed by an official declaration that the penalty has been incurred. This is a key point to remember in the Lincoln case.

All penalties for all offenses can also be imposed (<ferendae sententiae>) by a judicial process, which is a trial before a Church tribunal. The law expresses a preference for the judicial process, although under some circumstances the law allows the imposition of penalties by an administrative process. The distinction between the judicial and administrative penal process is a most interesting subject but one which is beyond the scope of this article.

With one minor exception, only medicinal penalties can be incurred <latae sententiae> and then only for certain offenses. According to the 1983 Code of Canon Law, <latae sententiae> excommunication is incurred for these seven offenses: apostasy, heresy or schism (c. 1364, §1); violation of Sacred Species (c. 1367); physical attack on the pope (c. 1370, §1); absolution of an accomplice (c. 1378, §1); unauthorized consecration of a bishop (c. 1382); violation of the confessional seal by a confessor (c. 1388, §2) and; procuring of abortion (c. 1398). <Latae sententiae> interdict is incurred for: physically attacking a bishop other than the pope (1370, §2); pretended celebration of Mass or conferral of absolution by one not a priest (c. 1378, §2); false accusation of a confessor of solicitation (1390, §1) and attempting civil marriage by a non­ordained religious (e.g., a nun or a brother) in perpetual vows (c. 1394, §2). In addition, certain offenses when committed by a cleric result in <latae sententiae suspension>.

Diocesan bishops as well as the pope possess legislative power and the Code of Canon Law (cc. 1315­1318) expressly recognizes their right to enact Laws for their dioceses, including penal laws which impose <latae sententiae> penalties. Thus, Bishop Bruskewitz by enacting the legislation now under discussion was exercising his proper role as legislator for the Diocese of Lincoln. I have seen a press report that one prominent American canonist has challenged the validity of the legislation, but the other comments I have seen and the unanimous opinion of the canonists on the Foundation's consulting staff have agreed that there is no evidence to support the claim of invalidity.

The Effects Of Penalties And Appeals

Now we come to the effects of penalties. Unfortunately, the lack of space limits the discussion to a superficial treatment of excommunication and interdict.

As far as lay members of Christ's faithful are concerned, the effects of <latae sententiae> interdict and excommunication are the same. In either case, the offender is barred (c. 1331, §1) from: having any ministerial participation in the Mass or, indeed, any ceremonies whatsoever of public worship; celebrating the sacraments or sacramentals and receiving the sacraments; and the discharge of any ecclesiastical ministries or functions whatever. The imposition of an excommunication by a penal process (<ferendae sententiae>) results in some further restrictions which mainly affect clerics and which will have to be the subject of a future article. These same further restrictions also apply in cases where the Penalty was incurred automatically and later formally declared to have been incurred by the competent authority. It is important to remember that the specific barriers mentioned in c. 1331, §1 come into force the moment a <latae sententiae> excommunication is incurred and remain in force until the penalty is remitted, even without a formal declaration of same.

As an aside, I might add that I have seen Bishop Bruskewitz's action characterized m the press as "the spiritual equivalent of the death penalty" or "the threat of death to a relationship." After what has been said about the medicinal character of excommunication, its effects and how it can be remitted by repentance, I hope you will agree that this description must be either woefully ignorant or deliberately malicious.

There is one result of a formal declaration of a <latae sententiae> penalty which is important to the subject of this article and ought to be mentioned because such a declaration would bring into force the provisions of the following:

An appeal or recourse from judicial sentences or from decrees which impose or declare any penalty whatsoever has a suspensive effect (c. 1353).

What canon 1353 is saying is this: As we have seen, a <ferendae sententiae> penalty is imposed by judicial sentence or, in cases where the law permits, by administrative decree. Such a sentence or decree can be appealed and the penalty would not have to be observed while the appeal is being considered. This suspensive effect would not apply as things stand now in Lincoln because the penalty itself was established by a legislative act, not a judicial sentence or administrative decree. Furthermore, the penalty is not imposed by sentence or decree but, instead, was incurred by the offenders themselves. Nowhere in the law do we find mentioned the appeal of an incurred but undeclared <latae sententiae penalty so> lacking a judicial sentence or an administrative decree of declaration, the suspensive effect of canon 1353 does not take place. At least this is the unanimous opinion of the canon lawyers on the Foundation's consulting staff.

This does not mean that those in the Diocese of Lincoln who belong to one of the forbidden organizations cannot appeal. Some of them have already appealed to Bishop Bruskewitz to repeal the law and, after due deliberation and meeting with the parties concerned, he has declined to do so. If they wish to appeal to higher authority, which they have a right to do, they are free to approach the Holy Father, through the Pontifical Council for the Interpretation of Legislative Texts. Bishop Bruskewitz has said that he will gladly revoke his legislation if Pope John Paul II asks him to do so. Until this happens, if it ever does, the penalties remain in force. In the meantime, it is the opinion of our consultants that the only sure and speedy way the members of the forbidden groups can return to full communion with the Church is by repentance. Certainly, Mother Church is waiting for them with open arms, as is Bishop Bruskewitz. Please keep them and him in your prayers.

Other Aspects Of The Case And Final Thoughts

The Saint Joseph Foundation has been defending Catholics from actual or threatened penalties for almost twelve years. I can't discuss the particulars of most of our cases because of our policy of confidentiality, but there are two that I can tell you about because the information has been made public by others.

As our "old time" readers remember, in 1989 we assisted the members of St. Boniface Parish in Stuart, Minnesota when the Bishop of New Ulm, the Most Rev. Raymond A. Lucker, attempted to impose upon them what amounted to a selective local interdict. Their "crime" was to protest the indoctrination of their children with the theology of the then Rev. Matthew Fox, O.P. Two years later, six Catholics of the Diocese of Honolulu were declared by the bishop, the Most Rev. Joseph Ferrario, to have incurred the penalty of excommunication, <latae sententiae>, for schism. Their "crime" was the erection of a traditionalist chapel where visiting priests celebrated Mass according to the 1962 <Missale Romanum> Although we could not endorse everything they said and did, we prepared their appeal because we felt the bishop's action lacked the basic element of even natural justice. Fortunately, the Holy See agreed and reversed the excommunications.

Our record of defending Catholics accused of violating Church law might lead some to ask "Why is an organization which defends individuals against the disciplinary actions of Church authorities now supporting Bishop Bruskewitz?" Our response is: First, it is the purpose of the Foundation to defend the rights of all Catholics and their most essential and preeminent rights are access to the spiritual goods of the Church and to the fullness of Catholic teaching. Bishop Bruskewitz is doing what he should to uphold these rights. Second, the Catholics we defended were all the objects of what we considered abusive exercises of authority. In this case, we believe that Bishop Bruskewitz's action is lawful, reasonable and justified by the circumstances. Finally, it appears to us that the actions and agenda of CTA were especially deserving of episcopal scrutiny and reproach, so I will close with some observations about that organization.

CTA began under the banner of the U.S. bishops as a conference held in Detroit in October, 1976, to determine the "mind of the Church" on a variety of issues. (See the National Catholic Reporter, April 5, 1996.) The conference itself was preceded by many "listening sessions" held throughout the country and, as often happens in such processes, the passivity and indifference of most of the more conservative or traditional Catholics (with a few honorable exceptions) allowed those with ideological axes to grind to seize control of the machinery of the "listening sessions" and succeed in their strategy of making their own agenda appear as "grass roots" opinion. As Professor Hitchcock notes:

<The Catholic Church in America was deeply embarrassed by this strategy in 1976, when the much publicized Call to Action conference was held in Detroit and ended up by taking militantly liberal positions on virtually every ecclesiastical and political question, some of them at variance with the Church's own official positions....In fact the selection of delegates to the conference had been manipulated at every level, usually by diocesan bureaucrats, and many of the delegates were themselves employed by various church offices>. (Hitchcock, <op. cit.>, p. 35.)

The Call to Action Conference evolved into an organization bearing the same name. It now claims to have 15,000 members, 5,000 of which are clergy or religious. From reports we have received, it is likely that a good portion of the remaining 10,000 are lay employees of the Church or hold other positions of influence. Besides openly disagreeing with Church teaching; on the immorality of contraception and the impossibility of ordaining women to the priesthood, it is arguable that CTA has taken on a decided "New Age" coloration.

Bishop Lucker has said, "I am a member of Call to Action. It's a wonderful group of people, concerned with social justice in the church and in society." Despite what Bishop Lucker says and its description of itself as seeking openness and justice in the Church, it does not seem that CTA operates this way in practice. We have seen how Bishop Lucker tried to crush those who stood in the way of his plans and our case files contain many instances of CTA members—or those who support its agenda—using their ecclesiastical power to intimidate, silence and marginalize Catholics who want to follow the authentic teaching and discipline of their Church or who object to things like feminist English, classroom sex education, "New Age" liturgies and so on. In doing this, they usually don't have to resort to ecclesiastical penalties as Bishop Lucker tried to do. Rather, they use their control over conditions of employment with the Church, the use of Church funds and facilities and the means of communication (e.g. parish bulletins and the diocesan press), to achieve their ends. We hope and pray that Bishop Bruskewitz's initiative represents a first step in ending their misuse of power and violations of the real rights of Catholics.


Taken from Christifidelis June 2, 1996—Feast of the Holy Trinity—Vol. 14, No. 3
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