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.

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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