Bruskewitz, excommunication & canon law.
As I promised in an earlier post, I did some digging to find out the canonical significance of Bishop Bruskewitz’s 1996 decision to excommunicate members of Call to Action (and several other groups) in his diocese, along with its recent affirmation by Cardinal Re, prefect of the Congregation for Bishops.
Oddly, I couldn’t find any news stories that contained a comment from a canon lawyer. I’m surprised the Get Religion blog, whose mission is to critique religion coverage in the secular press, didn’t take journos to task for failing to ask the obvious: is the excommunication legal?
I did, and here’s what I learned from a canon lawyer:
1. In canon-law criminal cases, the benefit of the doubt always goes to the accused.
2. Cardinal Re’s letter carries no evidence of any proper appeal procedure. Everything in it indicates it is little more than a personal letter of support. It is not signed by the secretary of the Congregation for Bishops. It makes no reference to any canonical procedure. Therefore, the letter must be assigned minimal meaning: the cardinal wanted to give personal support to the bishop. He invokes the authority of the “Holy See,” yet he can never be the Holy See.
3. Given the sweeping nature of Bruskewitz’s decree, no one should be considered excommunicated unless he has been cited by name and found guilty by a full-fledged legal process (unless a person is widely known by the community without any doubt, and he has openly and resolutely broken with the church). It is likely that several legal technicalities could be invoked to argue that Bruskewitz’s decree has no standing in canon law. These should be sufficient to introduce reasonable doubts about Bruskewitz’s law, and a doubtful law is no law at all–especially in criminal matters.
4. “Automatic excommunication” works in a given territory, and can be applied only to permanent residents of the diocese. Historically, such sanctions were used to deal with particular problems. For example–true story–in some parts of southern Italy, to set fire to someone’s vineyard was a special way of ruining a family (cf. mafia), so local bishops imposed automatic excommunication on anyone who did it, as a deterrent. But, as mentioned, so long as someone has not been cited and condemned by name no one may hold him excommunicated. If he has been condemned formally by name, he is excommunicated everywhere. The sanction can be lifted by the ordinary of the diocese that made the original law. Helpful exemptions, however, exist (urgency and/or no easy communication).
To understand what’s going on here, two factors are relevant: 1.) In theory, cardinals and bishops are under the direct jurisdiction of the pope. Hence, the normal administrative reaction of any official under the pope is to approve of what the bishop has done. If he did otherwise, he would intrude on the jurisdiction of the pope–cf. the attitude of Vatican officials and other bishops toward bishops who obviously were guilty of covering up abuse cases.
2.) We have several good laws in the church (e.g., the declaration of the rights of the faithful in the new code), but we do not have autonomous tribunals to enforce them. So there is and there is not rule of law in the church–as we understand it in U.S. law. What’s more, behind the network of laws are deeply rooted administrative practices that can be described only as “rule of man.” All we can do is to live with it the best we can. The Italians know this very well–and take it for granted.
It could be argued that Bishop Bruskewitz’s decree lacks of the rigorous requirements in clarity and precision that are necessary for the validity of penal laws.
on December 14th, 2006 at 6:00 pm
This is very helpful information. Given that excommunication is such a drastic penalty, it would seem appropriate that more due process protections should be built into the system. Perhaps I’m wrong, but the “deeply rooted administrative practices” seem to me to be especially fertile grounds for potential abuse.
Since Grant’s first post about Bishop Bruskewitz, I’ve been reading more about the excommunication incident in 1996. Apparently, there were at least 3 U.S. bishops who were members of Call To Action at the time of Bishop Bruskewitz’s decision. If the decision had had reach beyond Bishop Bruskewitz’s diocese, that could have had interesting implications, to say the least.
on December 14th, 2006 at 6:25 pm
Bottom line in this fiasco: does anyone really give a damn what Brusquewits decrees, declares, degrades, denigrates or denies?
I doubt for one minute that members of CTA resident in the Disgrace of Lincoln are too worried about the salvation of their immortal souls based on B’s buffoonery. It might be awkward for them to have to leave said Disgrace (oops, diocese), but I’m also sure that there are priests who are willing to look the other way when these folks present themselves for the eucharist.
I do hope that priests of conscience and integrity who are incardinated in said Disgrace will look elsewhere to provide their ministerial services.
on December 14th, 2006 at 7:27 pm
That should have read: ” …. It might be awkward for them to have to leave said Disgrace …”
on December 14th, 2006 at 7:28 pm
Grant, your post is great investigative jounalism. I hope if becomes part of a future editorial comment in the magazine.
Jimmy Mac, I enjoyed your comment. Excommunication really has very little meaning to we laity. It is more troublesome for priests since it usually means a loss of their pensions.
But my strongest motivation for writing this post is the word “incardination”. I’m guessing, because I can’t find it in my dictionary, that it is a play on cardinal and incarnate which makes playful sense but then again incarcerated for some priests might also be an appropriate term.
on December 14th, 2006 at 8:50 pm
John, the word ‘incardination’ refers to the process whereby a priest in one diocese or in a religious order is officially transferred to a different diocese and thereby becomes one of its own clergy.
on December 15th, 2006 at 9:31 am
The Diocese of Lincoln is, and has been been for quite some time, a leading producer of vocations in the US. It also, I believe, had the largest delegation at World Youth Day. Obviously a diocese chaffing under authoritarian rule.
on December 15th, 2006 at 9:44 am
I am not sure why anyone cares about the legalistic particulars of whether it’s a “valid” excommunication or not. After all, if you believe that excommunication is real (i.e., if you’re excommunicated, then you’re damned) then aren’t you’re really agreeing that the whole hierarchical structure of the church is valid as well? And if that’s valid, then whether you realioze it or not you are validating the concept that the church’s leaders really do have some sort of moral authroity over you as a church member. Thus, the people who disagree with church leaders need to choose between accepting what the leaders say (even if they don’t like it) or leaving the church. If, on the other hand, you do not believe that the church leaders actually have any moral authority over you or your views, then why do you care whether they excommunicate you or not–you don’t accept the concept that they have authority over you anyway. You can’t really have it both ways.
on December 15th, 2006 at 10:01 am
I get a bad case of brain fog whenever someone says “canon law” at me.
But this seems relevant here:
The bishops don’t excommunicate you; you excommunicate yourself. The bishops can only deny you the physical elements of communion if they perceive you have flouted Church teaching in some way.
Even if the bishops deny you communion, you can still go to Mass. And if you were improperly denied communion, you receive spiritually, no?
That’s not to say that what the bishops say and do doesn’t matter, but bishops are only human like the rest of us.
on December 15th, 2006 at 10:20 am
The hard rock dogmatists cannot bear it but the real anathema or excommunication applies to those who re-send predators to abuse children while only worrying about their reputation.
The sad part is that other dioceses act like the diocese of Lincoln when they are more concerned over dogma than behavior.
Dioceses still are resisting tranparency in dealing with survivors of abuse. Concerned mainly about money at all costs.
The other scandal now emerging is the financial chicanery in parishes and chanceries. One will have to prove that these are not the Scribes and Pharisees of our time.
on December 15th, 2006 at 11:06 am
Brusquewits offers what the pre-Vat II church offered: a rule and way for every situation; absolute certainty in everything; and answer for every question in the CCC, canon law and daily dicta from the magisteria; and protection for clericalism.
For the priests it’s a job for life; never having to worry about taking care of a wife and kids, a pension and medical care for life, etc. That’s pretty attractive for farm kids and folks who may have had a semi-hardscrabble life. Hell, their mothers even get to be buried with their son’s cinctures (I think that probably would be the norm in Disgrace). It worked for the immigrant population before them and is extremely seductive even today..
I’m not surprised that he attracts men seeking that way of life to the priesthood.
And they look so cute in their long black dresses, grandma’s lace curtains and pillbox hats, too!
on December 15th, 2006 at 12:20 pm
As in an earlier post, it seems clear that the “medicinal” impact of the excommunications acts are not working: CTA national is supporting CTA Lincoln, which has announced a broad letter writing campaign/
Of course, if you take the position of Lincoln like Catholicism - love it or leave it, you can write these folks off. But many CTAers are active and imposrtant folks in their parishes who are not committed to that kind of lockstep faith, As are their supporters, say, in VOTF.
What the dynamic appears to me to be here is a deepening disconnect between Church leaders and the (adrift, pace Bishop Curry) laity.
I just got an e-mail from a pillar of our parish this morning, noting that the Eucharistic ministers can no longer purify the vesels, His comment.”UNCLEAN! UNCLEAN! UNWORTHY! UNWORTHY!”
Rubrical cyncism is growing and now, with these acts, also canonical cynicism. It’s just Church law - man made law- has been on a number of postings I’ve seen since the news broke.
In trying to “purify” the Church and strengthen the authority of the clergy and themselves, the Bishops have underestimated the intelligence of the faithful, heightened cynicism about their motives and broadened the rift that exists there.
I’m saddened by this state of affairs, but there is reallly little listening happening and the outlook seems quite bleak to me.
on December 15th, 2006 at 12:54 pm
Ah, Robert, it sound as if you too long for those clearer times of say Julius II, when excommunication meant something.
on December 15th, 2006 at 2:14 pm
I do not have Bishop Bruskewitz’ 1996 letter handy, but I think he said that folks who belong to certain organizaitons “are excommunicated” –in which case he is invoking latae sententiae (automatic) excommunication–and he has enlarged the ususal categories to include Call to Action, etc. While Card. Re can give his opinion–it is merely the opinion of a Curial official that Bishop Bruskewitz can say what he wishes in his Diocese. It is not, as has been said, a juridical decision. I am not so sure, however, that either Bishop Bruskewitz or Card. Re can expand the list of organizations membership in which incurrs latae sententiae excommunication so easily, unless their tenets are demonstrably anti-Catholic or counter to Catholic teaching. It is one thing to become a Mason, or convert to Islam. It is quite another to belong to a Church reform group. At some point, however, even Church reform groups stop reforming the Church and become something else (i.e. historically at least, Lutherans, Calvinists). What Bishop Bruskeqitz is apparently trying to say is that by belonging to these groups individuals have already left the Church, in which case no trial or other action is necessary. The operative question is whether his opinion as Ordinary relative to the intent of organizations not incorporated within his Diocese has any (eventual) juridical weight.
on December 15th, 2006 at 2:16 pm
Robert,
This is drifting from the original post, but I think your example of the recent change re: purification of vessels is instructive as to why Bishop Bruskewitz and others in the hierarchy are taking a more traditional approaches that are causing this supposed cynicism.
Lay ministers in the US have been purifying vessels under an indult for four years. It has been an exception to the rule. The reason given by the US Bishops for needing an indult was that ordinary ministers of the Eucharist were too few to do it, and the indult was granted on that basis. As is usually the case with these things, it immediately was abused. I sit through a daily Mass with 12 people, and the priest still lets the lay minister purify the vessels. The reason for the indult has been completely forgotten. More importantly, when lay ministers do purify the vessels, it has been my experience at just about every parish I have attended Mass in that it is done either at a credence table at the back of the sanctuary or the vessels are hustled off to the sacristy. In other words, it is a menial chore done with little or no ceremony or importance.
The actions involved in purifying the vessels are not intended to glorify the person doing it, so it doesn’t have a whole lot to do with who is worthy. The focus should be on Christ.
For a slightly different take on excommunication than the one in this post, take a look at this interview - I know, it comes from the infamous Father Fessio’s publications, but it is very thorough
http://www.ignatiusinsight.com/features2006/edpeters_excommun_nov06.asp
on December 15th, 2006 at 2:53 pm
James Keegan clearly misunderstood my point. I do NOT believe that Bruskewitz’ excommunication means anything–nor that any similar excommunication has any validity. But when people who oppose what Bruskewitz says and does nonetheless worry over the validy of his actions they are themselves implying that they recognize Bruskewitz’ moral authority–they just wish he agreed with them on this issue. If you don’t like what Bruskewitz is doing, then ignore him. The church can no longer hand you over to the secular arm of the law for punishment. It may be a subtle point, but it’s significant: if you worry about his excommunicating people, you must therefore believe he actually has the power to condemn that person to hell. And if you believe that, then you are (unintentionally, perhaps) accepting that Burkewitz is acting out of some actual moral authority. In other words, if I speed past a policeman in my car I might worry that he’ll give me a ticket–but if I simply speed past anopther driver there is no such danger. Liekwise, Burkewitz has no actual moral authroity over you that you do not give him. True, you cannot attend his church any longer–but there are plenty of other churches and faiths out there.
on December 15th, 2006 at 3:03 pm
Robert,
I have just read your last post, which is commendable for its clarity and honesty. It should be read carefully by many people who, like me, are genuinely trying to understand the Commonweal mindset. I have one question. Why on earth are you Roman Catholic?
on December 15th, 2006 at 3:11 pm
mlj,
I remain a catholic for one reason only–family harmony. Whereas I believe that the church cannot be separated from its hierarchy (which I have no respect for, especially after the priest sex scandal), my wife believes in a church that transcends the priests and bishops and cardinals and consists of the faithful themselves. Fortunately, things like that matter more to her than to me–for me it’s mostly just an intellectual exercise–and so I remain. But I have never liked it when people want to have things both ways, as in the whole debate of Burkewtiz and excommunications.
on December 15th, 2006 at 3:14 pm
… and I’m hardly representative of the Commonweal mindset–I just like clicking back and forth between here and FirstThings to see what you all are disagreeing about lately.
on December 15th, 2006 at 3:25 pm
“The Diocese of Lincoln is…a leading producer of vocations in the US.” Yes, and…? Which is to say, I’m not impressed. Birds of a feather flock together, and B’s birds can stay in his coop.
Bruskewitz and other bishops have moral authority? I didn’t know that! In light of the coverups, deceit, denials, etc. carried out by the bishops over the centuries in a church that permitted the ordained to trod on the laity, I think the good bishops lost their moral authority centuries ago!
Regarding the purification of the sacred vessels, there’s an underlying “rub” that has absolutely nothing to do with whether there are sufficient numbers of “the elect” to wash them. It has to do with the laity seeing themselves — in the light of Vatican II — as priests in their own right and as the People of God. And to think we should abide by Benedict’s disapproval of this practice? Hell no!!!
Cynicism toward the institutional church? Hell yes!!! Where, for God’s sake, are genuine leaders when we need them? They sure as hell are not in our Catholic Church!!!
on December 15th, 2006 at 3:37 pm
This conversation would be more useful if the ad hominem stopped. Name calling and outlandish statements such as Joe’s move us precisely nowhere.
And mlj: I have tried several times to persuade you to stop flame-baiting here, but you seem to have an unstoppable compulsion to provoke. You consistently attempt to paint “Commonweal” in the darkest possible colors by taking instances of extreme viewpoints expressed by a minority and characterizing the institution by those views. I wonder why you persist, and the only reason I can come up with is that you mean the magazine harm. You should stop now. Really.
on December 15th, 2006 at 6:21 pm
Grant,
My remark was a fair observation; it was also a defensible one.
I am not in the habit of being lectured to by editorial assistants.
on December 15th, 2006 at 7:22 pm
Mercy me!
Grant, I guess you have been put in YOUR place!
on December 15th, 2006 at 10:02 pm
Grant, maybe Commonweal should think of doing an article on Excommunication. Your research certainly sheds some important light on the subject. And even if it does come from Ignatius Press, the interview Sean cites makes clear some interesting limitations on automatic excommunication itself that are worth knowing about. Are there any groups formally working to seek a more just and accountable process? Bishop Bruskewitz may be something of a loose cannon, but the system itself seems to need mending. With all the legal talent around at Commonweal, perhaps someone might be found to enlighten us further?
on December 16th, 2006 at 9:56 am
mlj
You may be a fellow of some importance, a person who speaks with authority, who commands the respect of his peers and the awe of his inferiors, but since you refuse to let us know the particulars, refuse even to tell us your name, we are somewhat at a loss. We must judge you by what you do say. This does put you at something of a disadvantage.
on December 16th, 2006 at 10:04 am
Grant,
This is a very enlightening piece of research. The conversation should go on in other forums. Few of us know much about canon law. A polity that establishes rights in its body of law but provides no means of redress when they are violated might well be taken to task. Various words come to mind but I refrain from giving a list.
on December 16th, 2006 at 10:38 am
Please forgive my hauteur.
In the subjects under discussion I am not professionally credentialed, let alone respected. I come at this as one among peers. My knowledge of canon law and 2 dollars might get me a cup of coffee. The same could be said of many matters of Catholic thought and life.
I’m probably not a “fellow,” Joseph.
on December 16th, 2006 at 2:02 pm
mlj
Your comment that the Diocese of Lincon leads the US in vocations as a function of Catholic population is quite correct. And contrary to some critics of Bishop Bruskewitz, the majority of seminarians in his Diocese are from that area. The extra vocations attracted from other areas might be the margin that gives Lincoln the #1 spot, but it appears that diocese would rate rather well without them.
However, you might find Jeff Ziegler’s Priestly Vocations in America useful in appreciating the variety of factors that may affect vocations in one diocese or another. For instance:
- Small to medium sized dioceses do much better — the top 13 all have fewer than 200,000 Catholics. In a smaller diocese, the bishop can be in closer contact with possible candidates, and can keep personal track of his seminarians through the process.
- Whether the bishop is seen as conservative or liberal may not make much difference. Lincoln may be #1 but the top 20 dioceses include Spokane, the see of the current USCCB president. Bishop Skylstad is generally not considered a conservative . . .
- Rapidly growing cities seem to be associated with vocations problems, apparently due to the rootlessness of life there. Many large dioceses and some smaller ones (such as Fresno, where I live) have significant urban growth to handle.
on December 16th, 2006 at 2:03 pm
Whoops - maybe this will work better:
http://www.ignatiusinsight.com/features2005/ziegler_seminarians1_aug05
.asp
on December 17th, 2006 at 1:51 pm
I have to say that mlj is rather mild in comparison to the conservative commentariat in St Blog’s. Her posts don’t really bother me and she’s welcome to attend my blog to prove me right.
I think the name-calling does us little good (sorry, Jimmy Mac; you were first on this thread).
The canon law insight is informative, but not really useful, as Catholics of both the left and right have made it clear they will pick and choose which bishops they regard. Conservatives join with their beloved “dissenters” in eroding authority and it happens both by the abuse of authority, as in Bishop B’s case, and by their constant criticism of Bishops They Don’t Like. It’s rather a post-modern American cultural thing to bang away at authority, take people down a few notches, then wait for a Martha Stewart-esque resurrection.
As an aside, it’s not surprising that smallish US dioceses are doing decently with recruiting seminarians and clergy. The traditional approach in this country has always been strongly communal and personal. If the hierarchy could fiogure out how to make that work in large cities, they might turn the whole thing around.
on December 17th, 2006 at 8:15 pm
Grant, if I offended your sensibilities, please accept my apology. However, I am not aware of my having engaged in “name calling and outlandish statements.” I gave opinion, and I gave conclusion based on the sad historical state of our church. My using the word ‘hell’ simply was to indicate the depth of my contempt for the Catholic hierarchy as a whole, not to mention my disgust for a lot of the stuff emanating from Baltimore, the Vatican, and certain bishops’ offices. I see institutional entropy rearing its ugly head in the name of so-called ‘orthodoxy,’ and I do not see too many layfolk doing much if anything to check it.
on December 18th, 2006 at 1:05 pm
God forbid one should express strong dislike for the Lad of Lincoln … that’s name calling! Sorry, Todd, but I think your attempt at irenism is misplaced in this case. The folks who have and will continue to suffer because of his dictatorial approach to church leaders hip … his way or the highway … deserve much more sympathy than do he, other bishops like him, and the overall attitude that seems to be rising in the Latin Church. The days of good little sheep suffering for the sake of the unity of the organization should be long gone by now.
And don’t tell me that if I don’t like it, I can leave! I did that once and have no intention of doing it again. .