Saturday, 31 March 2012

The Lesbian-Buddhist, the priest and the lawyers, Part II***Updated

Yesterday I tried to put some context around the much debated case of the (attempted) denial of communion to a self-confessed lesbian, Barbara Johnston, by Fr Guarnizo.

While every legal issue has to be considered on its merits, I would argue that  it would be naive indeed, and could potentially lead to wrong outcomes not to be aware of take account of the broader context in which an alleged offence occurs. 

And to understand just why that is, today I want to look at some of the canonical issues the case throws up.

I'm not going to get into the 'administrative leave' issue - that is important given widespread use of such arrangements particularly in abuse cases, but I'm happy to let the canonists slug it out.

Instead let's focus on the situation that every priest can face of when he can or can't deny communion to someone.

The nature of this post

I'm not a canon lawyer, so I certainly stand open to correction on what I have to say here.

Still, if canonists put their opinions out in the public domain, they are implicitly inviting scrutiny of what they say.  Indeed, when experts of any kind provide advice whether publicly or privately, they still have to persuade their typically non-expert reader to accept their advice. 

So please read my comments in that light: I'm trying to explain what I find persuasive in the various opinions and what I don't from a theological and commonsense perspective, not offer a canonical opinion of my own!

In similar situations, I like to apply what I like to think of as the plausibility test: how well does a piece of expert advice fit with the bigger picture, how well does it gel with what other experts are saying, how well does it fit with our other knowledge of the subject and the broader field of action?

So if I were a client receiving these various bits of advice and trying to make up my mind about which view to accept, I'd develop a list of questions and issues to pose to the lawyers in question. That's basically what I want to do here.

The nature of blogdom!

I also want to say upfront that I'm not really interested in credentialism: how many letters someone has after their name is often not a good indicator of how well their advice will actually stand up in court! So I frankly don't care whether, for obvious reasons, the advice is offered anonymously or not.

Nor do I think blogs are place where one would normally expect to find every point made nicely referenced in that way that one might expect from a formal opinion.

On one side of the debate arguing that the priest erred here we have:
On the other side arguing that priest may well have acted in accordance with the law we have:
I read these two latter two contributions not as formal opinions, but rather attempts to suggest that the case is not quite as clearcut as Dr Peters presents it.  They are trying to raise questions and open up the debate rather than offer a definitive view.

And of course none of us have all of the facts a tribunal would want to have in front of it, notwithstanding the priest's own public statement on his actions (and of course we also have the numerous snippets of information and opinions in blogs and comment boxes which I'm mostly going to ignore for the purpose of this post).

So herewith my questions and issues.

1.  Why does the Church deny communion in some cases?

Surprisingly few of the discussions of this issue have tackled the question in any depth of just why the Church encourages reception of or denies communion in some cases.  This seems important to me pretty important contextually.  It seems to me that there are at least four possible reasons for withholding it:
  • to uphold Church law and discipline (for example where the person has been excommunicated but nevertheless presents themselves for communion);
  • to prevent potential sacrilege (for example the person who wants to carry the Eucharist away for nefarious purposes, but also in relation to sacrilegious reception of the sacrament by manifest sinners according to a paper by Cardinal Burke pointed to by Fr A);
  • to prevent scandal to the faithful, lest they think that a sin is acceptable; and
  • most importantly, to bring a sinner to repentance.
But there is one more in operation here that seems only peripherally to have been touched on in this debate, and that is misuse of the sacrament to make a political point. 

One could argue that making a political point is just a sub-set of scandal but I think it is more than that, going to the disposition of the recipient.  Consider for example the case of those who wear rainbow sashes as they present themselves for communion.  They may or may not actually be practising homosexuals - but they are trying to make a point about rejecting the Church's teaching.  And Cardinal Pell for one has in the past rightly turned them away!

2.  Are all these cases covered by Canon 915?

Fr Guarnizo himself  appeals not to canon 915 (denial of communion to persistent manifest sinners) in this case, but implicitly to improper dispositions (which none of the canons are explicit about, but are arguably covered by Canon 843, which states that communion cannot be denied to someone who is inter alia, properly disposed).

Is someone who announces to you in the sacristry just before Mass that they are a practising lesbian and then refuses to discuss the matter any further properly disposed, or are they making a political point?

It is true of course that the Code makes a strong presumption in favour of the person themselves making this assessment (canon 912), but that doesn't seem to altogether preclude the priest from making it.

 Dr Peters rejects this argument by noting that normally the improper disposition needs to be manifested externally n some way such as behaviour and dress, and that none of the examples Fr Guarnizo gives of this (someone drunk or high on drugs, improperly dressed etc) applied in this case.  But surely he was arguing by way of analogy!

Consider the hypothetical case where a person walked into the sacristy before mass and announced that he was part of an atheist group who intended to desecrate the Eucharist on youtube.  He then runs out, and appears again in the Church once mass has started.  In the course of the Mass he behaves perfectly normally, and there is no indication that he is known for what he is by the congregation.  Can the priest refuse to give him communion if he then presents himself? 

I don't want to verbal him, but Dr Peters' logic would suggest no.  If this really is the what the Code requires, then perhaps a rethink of it is required!

Maybe the possibility of a homosexualist attack is one step on from this scenario.  But in the current highly political atmosphere of concerted homosexualist attack on the Church with mock weddings staged on church doorsteps, disruption of sermons and more can it be ruled out?
As far as I can see none of the other canonists have taken up this point and perhaps there is indeed nothing to it. 

So my request to the canonists is this: could you give a little more exposition on just what discretion priests do and don't have in relation to refusing the Eucharist on grounds other than canon 915, in the interests of anticipating what may be coming...
3.  The application of Canon 915 - how should a priest assess whether someone is obstinately persisting in grave sin?

Canon 915 actually states:

Can. 915 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. (my bolding)

Dr Peters argues that the priest could not have known, based on the brief conversation that occurred, firstly whether Ms Johnston was obstinately persisting in her sin, and secondly whether or not it was truly manifest, that is known to the community.  He suggests that the bar for these tests should be set fairly high given that this a provision that should be read narrowly.

On the first point Fr A suggests that introducing herself as a practising homosexual immediately before mass is enough to satisfy the obstinate persist and grave sins tests. 

Clearly the canonists disagree on just what these tests require from a legal perspective.

Yet on the face of it, announcing to a priest that 'this is my (same sex) lover' can't easily be construed as 'Hi, I'm a homosexual but I know the Church's teachings on this subject and I'm doing the best I can to be celibate with the help and support of my friend here'. 

Especially if the person then  refuse the priest's invitation to discuss things further, dashes out the door and has their 'lover' obstruct you from following...

So my question to the canonists is this: what more could a priest reasonably be expected to do to satisfy himself on these points? 

It is not obvious, and as far as I can see Dr Peters hasn't really pursued his arguments on this point further (but do tell me if I've missed it). 

4.  Canon 915 - is the sin manifest?

Accordingly as far as I can understand the debate, the issue really turns on whether or not the lesbian's sin satisfies the manifest (ie publicly known) test.

The key questions seem to be, Was it reasonable to assume that her situation was known based on what she said?  Is it lawful to take account of the fact that her situation might not have been known to those present, but it was likely to be public elsewhere? And is it reasonable to take account of the fact that even if it wasn't known yet, it shortly would be?

Dr Peters seems to answer no to all of these questions, Scriptor and Fr A argue yes.

The case in favour of the priest seems to go something like this.  The woman didn't hesitate to announce her lesbian relationship to a priest she didn't know, so it is a reasonable presumption that she either already has announced that relationship to her friends and others, or is likely to do so after the service.   In addition, a funeral will naturally involve both friends of the deceased and friends of the mourners, so it is a fairly safe presumption that some if not all will already be aware of her situation.

But is it reasonable to draw such inferences from her behaviour, or is a higher standard of proof required?  Does the clear risk of scandal and profanation that was obviously present in this case outweigh the right of someone to receive?

My take out from the various canonical opinions is that these questions are from settled in the law.

From a purely theological point of view, however, I would have thought the balance lay more on the side of Fr A and Scriptor.  The Church certainly does encourage frequent reception of communion as a means of grace and therefore has a presumption in favour of reception of the sacrament. 

On the face of it though, Ms Johnston by receiving, far from obtaining grace was actually committing a new and (more) dreadful sin. As I understand it, if her sin was clearly entirely hidden from public view the priest would nonetheless be forced to give her communion.  In a situation like this though where there is at least a high probability that her sin is publicly known, surely the supreme law of the salvation of souls (canon 1752) surely comes into play?

But as I said at the beginnnig, I'm not a canonist...

***Update: Fr Anonymous has provided a further response to Dr Peters and Fr McDonald, and it seems like I'm on the money so far as the arguments about manifest sin at any rate!  You can read it at Rorate Caeli.


R J said...

"I'm not a canon lawyer, so I certainly stand open to correction on what I have to say here." Well, you seem at least as knowledgeable as any canon lawyer would be.

Is acquiring a formal qualification in canon law a plan which interests you for the future? (I'm not sure where one studies to acquire such qualifications: the Gregorianum, perhaps?)

Incidentally, if Fr Peters can seriously describe George Neumeyer's original piece as a "rant", then I do find myself wondering - purely as a layman with no relevant credentials - what he would make of (say) St Catherine of Siena and St Bridget of Sweden bawling out Avignon popes, or St Thomas More bawling out Tyndale, or St Teresa of Avila bawling out ... well, just about anyone who needed bawling out, from King Philip II down.

Kate said...

I'm certainly no canonist (nor do I feel a burning desire to become one!), RJ but thanks for the kind words.

I'm simply drawing on my secular law training, an introductory canon law course of the type fairly standard in any advanced theology degree, and more generally my training as a policy analyst and adviser, where I often had to decide whether to accept or reject expert advice, to ask a few questions.

In fact becoming a canon lawyer is quite an arduous process, not least because there are only two ecclesiastically recognised canon law faculties in the English speaking world (in Canada and the US). So I do think we should respect the considerable specialist expertise that they have.

But that doesn't mean that experts shouldn't be challenged both by others in their field, or their perspectives broadened by engagement with those working in other branches of theology shouldn't be challenged by the perspective of those working in other branches of theology, or other relevant disciplines.