Canonical: October 2004 Archives

In the comments' section below, Dr. Ed Peters responds to two of my blog entries. As previously mentioned, I greatly respect Dr. Peters as a voice of orthodoxy and moderation within the canon law community. I would also urge you to check out his excellent blog, In Light of the Law.

That being said, concerning the first point, which is my criticism of Dr. Peters' analogy, I still hold to my initial position but appreciate Dr. Peter's clarification as to the limits and intention behind his analogy. Concerning the second point, however, I appreciate Dr. Peters' gentle rebuke and hope he will accept my mea culpas.

That being said, in respose to my criticism of his analogy, Dr. Peters writes:

You are a cruel task-master, driving my little analogy beyond its ability! My point then was simply to show people that gross contempt for a doctrine is not necessarily "heresy" about the doctrine, which is where this discussion was at that time. Remember, even the Devil is not a "heretic". My analogy has nothing to do with (and hence cannot fail over) whether Kerry has been personally involved in abortion. Kindest regards, edp.

Thanks for the clarification. I apologize if I gave the impression that I thought this analogy was over whether Kerry has been personally involved in abortion. This was not my intention. Rather, like you, I was trying to point out the difference between heresy and contempt for the faith (or denying the Real Presence and committing a sacralege while still believing in the Real Presence.)

As an aside, I was trying to point out that Kerry doesn't fall under the automatic excommunication of canons 1398 and 1329, par. 2 because to everyone's knowledge he has never directly participated in procuring an abortion. Thus canon law would have to address his pro-abortion record by some other means. Nevertheless, I still think my initial question remains, namely, is contempt for the faith the same thing as asserting one has a right to carry out an intrinsically evil act?

What causes scandal is not that Kerry has personally participated in an abortion, but that he asserts abortion is a private action with no connection to public morality or the common good. Consequently, he also asserts that the individual has a right to procure an abortion and that as a Catholic politician he has no obligation to limit or work towards bringing an end to the harm done by abortion.

Is this heresy? That's the question that needs to be explored.

Concerning my second post, in which I speculated Marc was set-up as a scapegoat by the CDF, Dr. Peters responds:

Say it ain't so, Pete, say it ain't so! Say you don't REALLY think CDF/Cole set up Balstrieri as a scapegoat, that it is obvious the Vatican wanted Cole's letter leaked, and that it planned on consequent deniablity. Say you don't REALLY think they are that callous, conniving, or stupid. Say yours was just a unguarded exercise in conspiracy theory...

Now that I've calmed down, I appreciate you calling me on this one. You're right. For the record, it wasn't so much an unguarded exercise in conspiracy theory as a knee-jerk venting of my frustration with how this has played out. I hate seeing the pro-abort Catholic politicians win again while Marc, who sincerely and in good faith tried to do something to address this scandal, watches things blow up in his face because of his innexperience dealing with the media combined with some mistakes on his part that were not committed out of malice.

Nevertheless, I should have shown more prudence than to post it -- especially when I don't seriously believe this whole blowup is a conspiracy by Cardinal Ratzinger or high ranking curial officials. Additionally, Marc understood the risks when he began this venture, and he freely chose to accept them.

...but that, in retrospect, the simpler explanation is to be preferred: that Balestrieri got carried away with Cole's letter, some Catholic media seized on B's version as a ray of light in the abortion darkness, and between them they raised a hornets' nest of confusion among the faithful, that others among us have had to come along behind and try to clean up to the best of our poor abilities.

My honest opinion, and this is just me speaking personally, has nothing to do with canon law, but I think it's a combination of factors -- none of which involves a large-scale conspiracy, but rather an excess of zeal on the part of B, a handful of people within the US hierarchy who reportedly urged him to leak it, and the Catholic media, combined with damage control by di Noia and Cole when more weight was attributed to the letter than what it possessed. I also agree with Rich Chonak that it seems likely there was some sort of miscommunication between di Noia and his assistant with whom Marc had met in Rome, and possibly a miscommunication between di Noia and Cole.

But again, this is mere speculation on my part. As Marc is a friend of mine and I admire what he was trying to accomplish, even though I believed he had a very difficult road ahead of him, I freely admit I am probably not gonna have an objective view of how things panned out. Which is probably why, my knee-jerk initial reaction aside, I now prefer to believe that this whole meltdown is the result of mistakes and miscommunication between several good people acting in good faith (including Marc, di Noia, Cole, the Catholic media) than believe anyone engaged in this affair behaved dishonestly or out of malice.

I've been around canon law ministry long enough to experience the truth
of Mgr. Pat Powers' statement to us as canon law students that "If you don't
make mistakes, you're not engaging in ministry." And thus I want to thank Dr. Peters for calling me out on one of mine, for which I offer our readers my most sincere mea maxima culpa!

On another note, regardless of how things turn out, I think we are further ahead now in terms of using canon law to redress the scandal caused by pro-abort Catholic politicians. Let's be honest here. Before Marc launched this action, the majority of bishops and canonists questioned Archbishop Burke's use of canon 915 to deny Holy Communion to pro-abort Catholic politicians. Granted, a growing minority (of both bishops and canonists) supported Archbishop Burke's decision, however, it was still being called into question.
It is now taken for granted that a bishop can invoke canon 915, and a recent example of a bishop placing a pro-abort Catholic pol. under interdict has also come to light. Additionally, Marc's broken some new canonical and doctrinal territory that can hopefully be used more efficiently in future against pro-abort Catholic pols.

This weekend's fuss about the "pro-choice = heresy" letter was three yards and a cloud of dust, but the dust is beginning to settle.

Canonist Marc Balestrieri reports that his version of events and Fr. Gus DiNoia's version are in agreement on an important point: that Fr. Basil Cole wrote his "excellent and solid" account of the relevant doctrines at DiNoia's request. Get the details in Marc B.'s press release (October 20).

(Via Dom.)

Ironically, I'm listening to GNR's Sweet Child of Mine as I blog this response to fellow canonist Dr. Ed Peters. Just for the record, Dr. Peters was one of the individuals who inspired me to take up canon law. Thus I hold him in the highest esteem -- both in his capacity as an individual Catholic and in his professional capacity as a canonist. So my following response should be understood in this context.

With regards to the controversy surrounding the response to Marc Balestrieri, Dr. Peters writes:

Cole’s theological analysis does, however, move us closer to the central canonical question raised in this matter, namely: whether advocacy of abortion, by a knowledgeable Catholic, in and of itself, is heresy. Now, for the reasons ably outlined by Cole, obstinate doubt or denial of Church teaching on abortion may well be regarded as heresy. But our concern is different: is disregard of Church teaching on abortion, perhaps even chronic contempt for it, necessarily heretical? Consider: If I deny the Real Presence of Christ in the Eucharist, I commit heresy. But if I throw the Eucharist in the gutter, I commit the crime of sacrilege (1983 CIC 1367), not heresy (1983 CIC 1364).

So, a Catholic politician might say, “I believe that human life begins at conception and that abortion kills an innocent baby. But I want to be elected to office, and that means I support abortion.” Such reprehensible words/deeds would be gravely sinful and would place the politician in peril of his soul. But it is not clear that his sin would be heresy. At least, it is not clear how this scenario would be held as heresy, and we not be required to hold virtually every other deliberate violation of grave moral law as heretical.

As Dr. Peters points out, this situation involves a number of very fine nuances. I think Dr. Peters may have missed one, and consequently I think he misunderstands Marc's position. Dr. Peters enjoys a reputation in the canon law world as one of the most honest individuals you will come across, so I know he would not deliberately misrepresent Marc's position. But Marc employed a nuance in his argument that took me a while to grasp as well.

Here's the situation. To borrow Dr. Peter's analogy to the Real Presence, we're not strictly talking about heresy vs. sacrilege. To my knowledge, Kerry has never directly procured an abortion, which, using Dr. Peters' analogy, is the equivalent to throwing the Eucharist in gutter. Rather, Kerry has asserted that abortion is a private matter and thus the individual has a right to procure an abortion.

Thus a more accurate analogy would be if John Kerry stated: "I believe in the Real Presence and I believe that throwing the Eucharist in the gutter is a sacrilege, but I also believe that this is a personal matter between a satanist and his or her priest. Therefore, I will defend the constitutional right of satanists to desecrate the Eucharist."

Does one possess the right to descrate the Eucharist?

Similarly, the question with Kerry is whether or not the Church can ever recognize abortion as a right.

I agree with Dr. Peters that participation in an ecclesiastical crime is not necessarily the same thing as heresy. One can procure an abortion while believing abortion is wrong. Nevertheless, the debate would be moot if Kerry had directly participated in an abortion, since canon 1398 already provides for the automatic excommunication of those who directly procure an abortion, while canon 1329 accounts for accomplices without whom the criminal act would not have been possible.

So at issue here is the public dimension of abortion. Does abortion merely concern private morality, or is there a public dimension to this issue as well? According to Kerry, it is a matter of private morality. Hence his claim, "I'm pro-choice, not pro-abortion." Whereas the Church recognizes the public moral dimension surrounding abortion, in that abortion entails the slaughter of an innocent human being.

Thus Kerry, in my opinion, is a heretic not because he procured an abortion (to my knowledge, he hasn't) but because he disagrees on the Church's teaching that abortion concerns the public morality and thus for him one ought to be free to carry out partial birth infanticide.

Note to future readers: this post had been my initial reaction to the meltdown with Marc Balestrieri's canonical action against John Kerry. Having been fraternally corrected by my colleague Dr. Ed Peters, a canonist whom I admire for his orthodoxy and balanced perspective, I have since retracted and modified my initial reaction. -PJV

Prof. Ed Peters gives his analysis of recent developments, including a statement from Fr. Cole about his letter to Marc Balestrieri on advocacy of legal abortion as heresy.