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Not every canonist is a good canonist

March 29, 2012

A few people have written asking me to comment on a post which appeared on pewsitter as well as on rorate-caeli I am going to respond, but only briefly because this is now beyond flogging a dead horse.  I respond for two reasons

First, and foremost, the writer has made a fatal error in his argument, hence demonstrating that he does not understand well the laws about which he is writing. That explains why his argument fails to consider the nuances of Dr. Peter’s and my arguments. I do not fault him for that. We all make errors. And one of the best ways to learn is to be bold enough to make a mistake. I don’t profess to be an authority on all things canonical, and no canonist is an expert on the whole code. But when a serious error has been made, in charity, someone must point it out and correct it.

Second, I respond because those who wrote to me (as well as others, I assume) seem to be swayed by its arguments, and might not be able to see where the argumentation fails.

I will not comment on each particular piece of the post because it is so long.  You can go re-read the post after considering my comments.  But I have three observations.

First observation:

It seems to me that part of what has caused such a commotion over this incident is the fact that it involves a lesbian coupled with the complicating issue that not all the facts are known in great detail.  But let’s remember that this is a commentary on the facts as they are reported.  It’s an outsider looking in and trying to add some commentary and analysis.  So don’t fault the commentators for not having access to the sacristy that morning.  The commentary is based on the ‘hypothetical’ situation created in the news.  When the facts change, perhaps the commentary does as well.  But the commentary stands on the facts as they are known.  So preface everything by, “IF” this is what happened, and “IF” Fr. Guarnizo did this, “THEN” this is the canonical commentary.

Secondly, remove homosexuality from the argument and substitute some other objectively grave matter – like habitual non-attendance and Mass or a baptised Catholic professing to be a Buddhist.  I find it hard to believe that Fr. Anonymous, and many others, would be making the same conclusions about denying Communion.  Should we deny Communion to all the high school students, at a school Mass, because we know the vast majority of them don’t go to Mass (at least that is true here in southern Ontario)?  Objectively that’s a mortal sin.  All the other students know they don’t go to Mass.  It’s obstinate and manifest.  What about the lady who comes into the sacristy before her mother’s funeral Mass and admits in conversation that she doesn’t go to Mass anymore, even though she was baptised in that very same church, because she is now a Buddhist?  She may indeed be labouring under a latae sententiae excommunication.  But all those official documents that everyone is quoting, say that only a declared excommunicate is to be refused Communion.

I am not going to re-visit Dr. Peters’ already well-reasoned arguments about the interpretation of c. 915.  Others need to do their homework and study it carefully.  Perhaps other great canonists will disagree.  Who knows, maybe even the eminent Cardinal Burke might disagree.  But it doesn’t matter.  That’s why there is the academic discipline of canon law, so that issues can be studied, deepened and explained.  People are free to have differing opinions, but they must be able to argue them well.  Few in the blogosphere, if any, have argued as well as Dr. Peters.  That brings me to the next observation.

Second observation

Fr. Anonymous does not reference his argument well.  It is one thing to use Cardinal Burke as an authority, [Cardinal Burke states that Canon 915 exists primarily to prevent sacrilege while at the same time preventing our Greatest Good from being violated.] but be careful that you are not taking him out of context.  Am I supposed to take Father’s word that he has read and understood the Cardinal’s essay? That his summary is correct?  Do not cite a document of the Pontifical Council for Legislative Texts, with the parenthetical observation that it is,”the department of the Vatican whose job it is to interpret authentically both universal and particular laws in the Church,” when the document you are citing is not an authentic interpretation.  (If Father doesn’t know why it’s not an authentic interpretation, then he needs to look up the canons on decrees and authentic interpretations.) If Father is not trying to claim that his citation is an authentic interpretation, then his syntax certainly leads the novice reader to that conclusion, and that’s not a good thing. Dr. Huels is certainly an excellent canonist.  But are we really going to rely on an argument he made for a commentary published in 1985 (merely two years after the promulgation of the Code, and before so many other magisterial teachings like Familiaris consortio etc.)?  Has he said anything else since?  It’s fine to cite another excellent canonist, Fr. Woestman, “the public reception of Communion by a public sinner implies that the Church and her ministers somehow condone the public serious sin,” But how does that quotation contribute to the argument which is precisely about what constitutes a “public” sinner.  I agree with Fr. Woestman’s statement, but not with Fr. Anonymous’ conclusions.  It’s also fine to cite papal documents etc. but we need to understand that those very documents are dealing with cases of de iure objective sin: the divorced and remarried, the voting records of politicians.  By public declaration of law, those situations become manifest and obstinate.  The question we are dealing with is how to apply those arguments to the similar case of objective sin which is not de iure public.  Fr. Anonymous has missed that main point.  He can’t argue from the authority of those documents, because they don’t apply stricte dictu to the facts of this case.  Finally, and most egregiously, Fr. Anonymous fails to cite the source of his summary of Prof. Beal’s argument, “John Beal, a well-known canonist at Catholic University, argues that “administrative leave” can only take place after a formal judicial penal process has been initiated, and not during the information-collecting preliminary investigation.”  It’s that little word ‘only’ that Fr. Anonymous has inserted in his summary.  I would be willing to bet a lot of money that Prof. Beal would not argue that ‘administrative leave’ can only take place after a judicial process has been initiated.  That is one time it may be used, but there are others (and Beal would know, as Fr. Anonymous should know, that what he stated has been modified  motu proprio by the Supreme Legislator for some situations.)  I would be willing to bet, but I can’t check because the source is not cited, that Prof. Beal is commenting on penal law and not on ‘administrative law’ as a concept.  It is one thing to say, “when we are in the midst of a penal process, ‘administrative leave’ can only take place once the preliminary investigation has been initiated, and not, for example, upon hearing the credible accusation.”  It is another thing completely to say, “ ‘Administrative leave’ is a concept which canonists use, even though it is not in the Code and it can only be enacted in a penal situation.”  Those are two very different arguments.  Professor Beal is a very smart man. I doubt he would hold to the latter of those two scenarios, but that is what Fr. Anonymous is making Beal say in his post.  There is no way for us to know, because Fr. Anonymous has not been rigourous in his argumentation.

Third observation

Fr. Anonymous makes a fatal error when he speaks about penal canons with regard to Fr. Guarnizo’s ‘administrative leave’.  This is not a penal case (Dr. Peters and I argued tangentially about that.)  Therefore, nothing that Fr. Anonymous says in the second part of his argument is relevant.  Go back and re-read my posts.  I argue that administrative leave occurs only in penal matters or in irregularities. Therefore, Fr. Guarnizo’s so-called administrative leave is unjust because this situation is neither penal, nor an irregularity.  That’s far different from saying that Fr. Guarnizo has been unjustly treated because the promoter of justice is not involved, because the preliminary investigation had not been started before he was handed his letter.  Completely irrelevant.  No need to quote the penal canons: they don’t apply and no one said they did.

Therefore, while Fr. Anonymous is brave, and certainly competent to some extent, he has made serious, serious errors in his post. Anyone who wants to study this ‘hypothetical’ case and argue it has to have a better grasp of the issues involved.  It’s not enough to express moral outrage.  There should be moral outrage, but why?  Remove the hot issue of homosexuality and study this case a little more calmly and rationally.  And good minds might, in the end, disagree.  But let’s make sure that the reasoning is good. (And once again, I have been anything but brief.)

The horse is dead!  I, for one, am going to bury it.  It’s been a busy several days for me, haven’t been able to troll the web.  Any good canonical issues in the news that I missed?

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32 Comments
  1. DMS permalink

    Hello Father,
    Better documentation would have been helpful for the anonymous Father. However, as far as the administrative leave issue goes, “While c. 1722 does provide something analogous to what is known in the civil arena as ‘administrative leave,’ a careful analysis of this canon shows that such leave can be imposed only after the completion of a thorough investigation and either in conjunction with or after the decision of the competent authority to move forward with a penal process” (Beal, “Administrative Leave: Canon 1722 Revisited,” Studia canonica, 27 [1993], p. 319).

    Familiaris consortio is from 1981.

    I’m glad the anonymous contributor added to the conversation. His referral to Fr. Woestman’s thoughts was very beneficial. But, again, he didn’t say where these remarks can be found.

    • You’ve missed the point. “A careful analysis of this canon,” Beal argues. Correct, when one needs to analyse that canon. But that canon doesn’t apply to this case. And Beal is not saying that administrative leave doesn’t apply in other cases. Among canonists there was a huge debate about when administrative leave could be applied in a penal process. Beal is responding to that debate by arguing that, in a penal case (without reference to any other type of case) it can only be applied once the penal process has been decided upon, unlike others who say that it can be applied even at the begining of the preliminary investigation. That debate has, in some sense, been resolved by various pieces of legislation and praxis from the Holy See. BUT, that does not mean that a penal process is the only time administrative leave can be used. In fact, canonists know that it is used in other scenarios (rightly or wrongly) and, without putting words in Beal’s mouth, he would know that. The use of penal canons in this issue is irrelevant.

      You are correct about Familiaris consortio, my mistake. But my point stands about Huel’s 1985 commentary in relation to other important documents, such as the PCLT’s decree etc.
      Fr. MacD

  2. Permit a brief “bravo”. You have outlined quite well some of the key flaws in the anonymous canonist’s work; there are other mistakes in it, but like you, I see no point in trying to correct every misstatement out there. There are too many of them at this point, so, let those who have eyes, read.

    While I’m here, tho, a word about anonymous critiques: they are cheap, by which I mean, they cost their authors little. When I write on canon law, when you write on canon law, we sign our names. That means that if we write incorrectly, or even intemperately, we will probably pay the price for such lapses in the here and now. That factor makes both us more cautious and more restrained in expressing our views. But the anonymous writer feels no such constraint. The anonymous writer is basically freed of consequences, so if he or she is wrong (as this one surely is, and I have dealt with a few others over the years), or if his or her writing misleads others about Church law or practice, or violates charity, etc., s/he doesn’t face any consequences (well, in this world anyway, for surely such writing still counts as human acts for which one is ultimately accountable: personally, I’d rather do my accountings here, than hereafter). Anonymity is not, of course, another word for “wrong”, but neither is it a synonym for “brave”; the word that comes to my mind for anonymous is “cheap” and folks who rely on anonymous usually get what they pay for.

    Anyway, you obviously know all this, because you already take responsibility for your views and for how you express them. May your tribe increase. Now, we need to have long talk about what to do with this ‘admin leave’ mess in the law. I have some thoughts, I know you do too. Best, edp.

    ps: DMS: you have missed Pater’s exact point: c. 1722 is irrelevant to this case! It doesn’t matter who wrote it, it has nothing to do with this case. And we all agree with Woestman, the question is, what do the words W uses mean in canon law?

  3. DMS permalink

    Based on the March 9 letter from the D.C. Vicar General, I don’t see any other option than to say he was basing his action on c. 1722.

  4. notgiven permalink

    Thank you, again, Fr. MacDonald for instituting this blog and giving a clear canonical view of things. It’s a great service to the uninitiated and those who know just a little bit! So many folks talk off the top of their heads of things they think they are experts on. In the service, we used to call these people “barracks lawyers.” You are of great help to those who truly desire a professional opinion. God bless you!

    • I second that! Thank, Father MacDonald, you for taking some of your very precious time to write your blog! Well-reasoned “musings of a canonist” is filling a void (and I don’t mean to forget Dr. Peter’s excellent In The Light of the Law :-). My prayers to you for this apostolate!

  5. Michael V. permalink

    Many thanks for your additional comments, Fr. MacD:

    I’m not so sure the horse is dead because a possible follow-up reply from Fr. Anonymous may demonstrate that you and Dr. Peters have attempted to euthanize a decent horse.

    Nevertheless, I still lament seeing some more personal-type attacks in the style of Dr. Peters, primarily in the first paragraph that sets the stage for what follows. Why cast Fr. Anonymous in a bad light from the outset instead of simply commenting on what he has written?

    Are you sure that Fr. Anonymous does not understand well the particular Canon law because of his comments on this particular case? And isn’t a claim of failing to appreciate “nuanced arguments” like saying the other fellow isn’t intellectually up to the challenge while those who possess the “nuanced arguments” are intellectually superior? For all anybody knows, Fr. Anonymous might be a much better canonist than you and Dr. Peters combined, but even the title of your commentary sets the stage for suggesting that you and Dr. Peters are good canonists while Fr. Anonymous is not.

    To Dr. Peters: Perhaps there is good reason for some anonymity, so why the personal attack from your pen while at the same time praising yourself for your “bravery” of putting your name on your posts? Perhaps Fr. Anonymous and others would face potential job risks, etc., that you do not face, so consider what you might do if you knew that you could lose your job if your employer discovered your identity in writing comments, etc. You still want to contribute to various discussions, but realize that being anonymous is necessary under the circumstances.

    God’s Blessings to Fr. MacD, Dr. Peters, and all others posting here.

    Michael V.

    • Michael,

      I didn’t say Anonymous doesn’t understand canon law well. I said he doesn’t understand these particular canons well. The reason I can say that is by what he has written. It is you who puts the moral judgments on my comments. What he writes does not take into account distinctions and arguments that have already been made which contradict what he is saying, so it is fair to say that he has not followed the argument. That’s not a moral judgment, it’s an academic one. Does he get an A or a B for what he has written? The only way I can tell if Anonymous is better than me and Dr. Peters combined is by reading what he wrote. In his post, I don’t think he demonstrates that. That’s what debate, canonical or otherwise, is about. And I’m free to make that judgment of his argumentation, as are you, about what I have written. Please do not fault me for judging work which he put in the public domain as a counter-argument to what I and others have been writing. He has invited critique, in the best sense of that word. When he entered the debate, which he didn’t have to, he opened himself to the fact that people may not agree with what he has written. And I don’t agree. I have given some of my reasons. Enter the debate and provide further arguments, or watch with interest from the sidelines, but please do not make moral judgments about me, suggesting that I claim to be intellectually superior.

      Anonymity is not a good way to carry out a serious discussion. If his position prevents him from speaking out, poor him. Where is the courage of conviction? Poor is his superior who can’t distinguish what his personal opinions are from what he might be required to do and say in an official capacity. Even the Pope is brave enough to speak outside the authority of his office, in two volumes so far. God bless him. Nevertheless, I engaged this argument, anonymous or not.

      Now, for me, the horse is dead. I don’t wish to continue this debate. I would rather address some other issue that may come up.

      Fr. MacD

      • Michael V. permalink

        Many thanks, Fr. MacD:

        Just a few points in response.

        First, you have misinterpreted what I actually wrote, but I’ll take the hit and provide a clarification. Please note the following:

        I wrote “Are you sure that Fr. Anonymous does not understand well the particular Canon law because of his comments on this particular case?”

        I specifically referred to the particular Canon law and not canon law in general. So I did not accuse you of claiming that Fr. Anonymous does not understand canon law well, but I did express lament in your specific claim that

        “he does not understand well the laws about which he is writing.”

        So perhaps I should have stated canon laws, but my reference was specifically to Canon law 915, which I did not label with the number.

        So my revised question is as follows:

        “Are you sure that Fr. Anonymous does not understand well the particular canon laws that are involved in this case because of his comments on this case alone?”

        Perhaps he is an expert in Canon 915 and others even if he botched the interpretation in this case.

        Let me add this to the consideration. Assume a learned judge issues rulings on a few particular laws and their applications for many years, and he is known to be quite astute in his rulings and applications. Then, he issues another ruling on another case, and legal experts across the land judge his ruling and application of those same laws to be seriously flawed.

        Would these legal experts be justified in proclaiming that the good judge “does not understand well the laws about which he is writing”? Of course not, and lest you get too excited and ready to pounce on my example by citing the fact that the learned judge in my example has a reputation in terms of his rulings where Father Anonymous’ record is not known concerning the canon laws he comments on in this case, that is precisely why I ask the question.

        If you don’t know Fr. Anonymous’ overall background and knowledge of specific laws, then taking the one case does not justify a larger, more general condemnation that I believe is present in the statement that “he does not understand well the laws about which he is writing.”

        Most certainly, your specific critiques involving his applications to this case are legitimate discourse (and valuable), and I did not claim you were in the wrong by doing so. It is the broader comments like the one above that I still do not believe are justified.

        Please also consider this:

        After you state that “he does not understand well the laws about which he is writing,” you then proclaim “That explains why his argument fails to consider the nuances of Dr. Peter’s and my arguments.”

        So a broader criticism that Fr. Anonymous does not understand well the canon laws about which he writes is then proclaimed to be the reason why he “fails to consider the nuances of Dr. Peter’s and my arguments.”

        If you can’t see that you have made an unjust attack on Fr. Anonymous in this regard and the manner in which you stated it, then you can’t see it, but my point remains that Fr. Anonymous may understand those canons extremely well, so even if he is in error in this particular case, I still question the jumping to a general conclusion that may not be true.

        So perhaps you misstated what you wanted to say, and a clarification is needed like mine was above to better express your viewpoints.

        Since you mention it more than once, where do I actually fault you for judging the specific work in the public domain? I have not done so, especially since that is what I hope to see, and not the extra comments that do not stay confined to the issue or work.

        Lastly, though my one comment about anonymity was directed to Dr. Peters, I have no problem with you coming to his defense, though I still believe there are many good reasons for anonymity that you and Dr. Peters don’t appreciate, and your reference to the Holy Father is not really applicable.

        Thanks again and God Bless!

        Michael

  6. In the blogosphere, every criticism is caricatured (and dismissed) as an ” personal attack”. There’s no winning. 🙂

  7. Despite the pain & hurt no doubt suffered by some of the actors in this case, it has promoted valuble discussion, from which it seems some good is already flowing by way of high-lighting the very nuanced teaching of the Church on this matter. It is particularly of use to me as an Anglican, who would rarely get the chance to see this level of discussion on such an important issue.

  8. Dan permalink

    Father MacDonald,

    Some of us canon lawyers have no job security and must be silent or comment in anonymity. I don’t know if Fr. Anonymous is in that state but given the way some priests are treated, it wouldn’t surprise me. Courage of conviction is irrelevant when you have a mortgage and student loans to pay and no income.

    Anyway, I would agree with “Michael V.” that titling the post in the way you did was a bad way to start. Certainly, I see canon lawyers make arguments that are weaker than others or improperly documented. That’s no reason to say “you’re a bad canonist” in a public response.

    Thanks for your time.

  9. Igor Bostonovich permalink

    So much parsing about canon law. So much sparring. It’s kind of fun to watch.

    But it seems the canonists here can’t see the forest for the trees. So let’s go straight to the scriptures. What did Jesus do when the money changers were defiling the temple? Didn’t Jesus make a whip and cast them out?

    It seems that in Barbara Johnson, we have something far worse than money changers in the temple. They were defiling the physical temple, but she was defiling the very Body of Christ. Whereas, compared to Jesus’ brandishing a whip, Father Guarnizo’s actions were markedly less severe.

    The real question is whether or not the Archdiocese of Washington’s policy of allowing communion to openly active homosexuals passes cannon law muster. Let’s get real here!

  10. @Igor
    Definitely not a canonist, but IMHO, your reference to the Cleansing of the Temple takes us from the realm of Canon Law into the that of hemeneutics. Scriptural values, of course, underlie the framing of the Canons, but once the law is in place it must be applied as a body of law. This means looking to the opinions of distinguished jurists, precedent, etc. It doesn’t mean a theologian, for example, can come along and say they think a particular value is important and try to argue that the law must be interpreted according to that value.

    But in a way, isn’t Canon Law a form of Biblical interpretation distilled into a series of practical moral theological precepts? The Church has looked at scripture (& tradition) as a whole and on that basis issued the Canons. Therefore, to suggest that one should go straight to scripture as the basis of canonical interpretation is not an argument that can take one anywhere. If one is to look to Hermeneutics in the interpreation of law, I suggest that nothing would be changed. Whose hermeneutical authority would be looked to? Surely the Church’s … in which case, as the Church has already spoken as to its interpretation in such matters when the canons were drawn up, the issue would be moot.

    • Igor Bostonovich permalink

      Of course, the problem IS in the interpretation, particularly when canonical arguments turn into academic exercises. Shouldn’t a life of prayer play a part in the interpretation of canon law?

      Ultimately canon law must serve the word of God, and not the other way around. Why? “Because the mind of the Most High cannot be surpassed, and His heart is superior to all wisdom. Hallelujah!” (Odes of Solomon #28)

      • Igor,

        to continue the equine motif that has entered this thread, now you’ve changed horses somewhat … first you spoke of scripture, now you mention prayer.

        We are not exactly in disagreement here … but neither are we fully ad idem! No doubt the canonists will speak for themselves, but I have no doubt they engage in their work in a prayerful manner (as we all should, lay or ordained, prayerfully dedicate all our life and work to the greater glory of God) … and presumably they pray that they will interpret the canons as they are, not as they might wish them to be.

        On the issue of scripture: those who feel the canons err in relation to scripture must make their case and work to have the canons changed accordingly. Until the changes are made, the canons are as they are, & remain the churches official teaching on how the matters to which they relate are to be dealt with. To do otherwise would be to invite anarchy. A situation where a person was barred from the sacrments in one church because of pastor’s view of scripture but welcome in another becuase of the pastor in situ there having an alternate view of the same passage of scripture would hardly be very catholic would it?

  11. Paul permalink

    I laughed when you wrote ‘not to beat a dead horse’ and then beat it all the same, then stated you’re ‘burying it’ now that you’ve had your latest whack at the poor thing but hopefully comment is over. Well. I just dug it up, but only to distill the lay interpretation:

    You canon-understanding gentlemen all demonstrate to me that this parish priest did the right thing in doing what he believed he ought do by God in the moment, but erred in defending his position as correct rather than just explaining his logic. He should have awaited the determination of his local superior as to its correctness or incorrectness, then asked forgiveness were it incorrect, and accepted the suffering in a redemptive obedient manner. And the next time he was faced with a situation in the fog of spiritual warfare, again without such a refined/reclined canonical team to advise him, he ought do what he believes right by God at the moment, and again apologize or not based on his superiors wishes,….like a holy reed or holy pinball of sorts….or a second Lieutenant in combat without radio communication.

  12. Picard permalink

    Rev. Fr. MacDonald, I do not get your points – and do not see how Fr. Annon has no good points.

    A) You compare the discussed situation with those of (1) people who do not go to Mass or (2) confess that they are Buddhists – and you conclude (i) “It’s obstinate and manifest.”

    Well, let aside the missing “persistent” (I think you would argue that it is included in “obstinate” or in the word “habitual”, that you used).

    But either this your conclusion (i) is right [btw. me thinks for the first example (1) it is not, for the second (2) it might be, but I am not sure] – but then your other conclusion (ii) “I find it hard to believe that Fr. Anonymous, and many others, would be making the same conclusions about denying Communion.” is wrong or better: missleading. Because then we would really have other good examples for appliance/appliction of c. 915 and we others would make of course the same conclusion about deying Communion.

    Or your conclusion (i) is wrong – but then me or Fr. Annon would argue it is not a good comparison, the analogy fails!

    I can not understand how you can conclude “it is a grave sin, it is manifest, and obstinate (and persistent, habitual)” – but then conclude that everybody would not be willing to apply c. 915.

    Or, as I said, perhaps your conclusion (i) is wrong or more, you yourselfe are not convinced by this conclusion and only want to show that in those cases (1) and (2) the grave sin is NOT really manifest, obstinate and/or persistent — but then we would answer: yes, perhaps, but in the case of Barbara Johnson it is much clearer that the sin is manifest, obstinate and persistent.

    They (Barbara and her lover) revealed themselfes as coabitees so traditionally they would be seen as public sinners (manifest, persistent and obstinate).

    And even if not known to all the congragation it was reasonbale to judge that it will become known soon and that would be enough for to be manifest/public (I quoted Jone re that on rorate – you can find the quote there).

    B) And there is an other statement of you that makes me wonder about – because it is just wrong and does not meet the arguements of Fr. Annon:

    “But all those official documents that everyone is quoting, say that only a declared excommunicate is to be refused Communion.”

    No, all those official documents quoted f.e. by Fr. Annon, show, that NOT only a declared excommed is to be refused C., but also every other public sinner (or as c. 915 itselfes says: every manifest, obstinate and persistent grave sinner) (so not only public sinners de iure but also de facto – I think you can read the examples yourselfe again, to verify my statement here – examples as prostitutes, coabitees, usurers, etc.)

  13. I think the hardest thing to swallow about this whole incident is that while Dr. Peters’ analysis and explanation of Can.915 is worthy and sound, it’s upsetting that politicians who have actually violated Can.915 according to Dr. Peters’ very narrow interpretation are not being held accountable to the law. So when someone who is only believed to have violated the law by the vast majority in the court of public opinion has to be granted a generous leeway according to professional canonists, it makes it hard to trust the law at all.

    In other words, if more Bishops enforced the law where it actually does apply (in the case of public figures whose voting records and public statements are public knowledge and therefore publicly violate Can.915), it would make it much easier to accept the nuancing that allows this woman to get a hall pass.

    Unfortunately we don’t live in an age where Can.915 is properly enforced, so it will continue to be misunderstood, and rightly so. Canonists like Dr. Peters have no room for complaint about firestorms such as this one when they don’t publicly enforce Can.915 where it does apply. Their nuances, however accurate they may be, lose value when ‘known felons’ are ‘getting away with murder’, so to speak.

    • SWP. First, politicians cannot violate c. 915 (well, not unless they’re acting as EMHCs: see how imprecise people are here?) but, more to the point, my job is to explain the law. Period. If you, or anyone else, has complaints about the enforcement the law does, or does not receive, please direct those complaints to those in charge of enforcement, not those laboring to explain.

  14. Igor Bostonovich permalink

    Since I was not able to post my reply directly to Father Levi, I enter it here.

    Thank you Father Levi. You have made my point for me. The situation you mentioned is the exactly the situation we find ourselves in now. There are dioceses where active homosexuals (or a pro-abortion politicians, for that matter) will be denied Communion, and there are others (like the Archdiocese of Washington) where they won’t be denied.

    Reading all these blogs is dizzying because the canon lawyers are making things too complicated. And so I would distill all this into just two simple questions for them. Are active homosexuals allowed to receive Communion in Archdiocese of Washington? And is that the policy of the Catholic Church?

    • Consistancy is surely essential to cahtolicity. Not being a canonist, I hope I’m not adding to the compicatedness of the discussion! However, I’m not sure if the questions you ask serve to clarify matters. You asked:
      ‘Are active homosexuals allowed to receive Communion in Archdiocese of Washington? And is that the policy of the Catholic Church?’

      To look at your second question first. I’m not sure ‘policy’ is the right word, but I think I take your meaning. According to the CCC to be an active homosexual is to be in a grave state of sin. One in a grave state of sin should not seek to receive the Blessed Sacrament. However, turning to your first question, Washington, or any diocese, can not deny reception to someone it suspects of being in a grave state of sin unless it can justify doing so as a matter of canon law. The relevant canon, as the world and all knows by now is 915. To meet the provisions of this canon, as has been explained by eminent canonists such as Fr MacDonald & Dr Peters is not easy (nor should it be).

      Your questions may seem simple to you, but in truth they are not. It is not a matter of the Archdiocese ‘allowing’ active homosexuals, or anyone else might be seen as being in a grave state of sin, to receive; it is a matter of the Archdiocese acting as the must do under the canon law of the Church.

      • Igor Bostonovich permalink

        Father Levi,
        Thank you for taking the time to reply to my questions, and no, your comments have not made the discussion more complicated. You obviously seem to be a very patient person.
        Now, since I don’t agree this is a dead horse, I could rephrase my question slightly. Is it the policy of the Archdiocese of Washington to not deny Communion to active homosexuals who present themselves?

        To me this is not just an academic question, for I have known Father Guarnizo for many years. And furthermore, since he is such a holy priest, I see this whole situation as a grave injustice.

        For on the one hand we have an active lesbian (grave sin, arguably manifest, and arguably obstinate) who presents herself for Communion and is denied. Almost immediately, the bishop and the pastor apologize to her. She becomes a celebrity and gets invited to speak at a recent national symposium on Catholicism and homosexuality alongside Governor O’Malley.

        And on the other hand, we have a faithful Catholic priest who denies an active lesbian communion and is thrown under the bus by the same bishop and pastor. And then the diocese issues a statement saying that it is against policy to publicly deny communion, that the priest wasn’t sensitive enough. (And the bishop and pastor are?). He is put on administrative leave, his faculties removed, and he is not even allowed to visit his friends in the parish.

        How can this be just? Yet isn’t this the whole purpose of Law, to decide what is Just? Isn’t this ultimately what canon lawyers are supposed to do?

  15. george permalink

    Father MacDonald, thank you for your blog … it is a worthy companion to Dr. Peters blog that I’ve read for some time. I’m about to ask you a hypothetical question which is one more reason why you probably soon will join Dr. Peters and eliminate the com-box.

    Question: would your response in this matter undergo any substantive or at least significant change if this had occurred in 1960 when the 1917 code was operable ?

    • George,
      I’m going to take the easy way out. It’s just before the start of Holy Week and I am probably going to be checking out of this blog until Easter. As you know, I did not study the 1917 Code so I am not even going to make an educated guess at this stage, and I won’t be getting to a good read of the 1917 Code this week. Sorry.
      Fr. MacD
      p.s. I find the com-box rather amusing, when it is not down right uncharitable! No plans to close it yet; although, i have deleted some comments that were unpublishable.

      • Fr Mac – please don’t close the com-box; moderate, ignore, respond as you see fit. But, the discussion (even when it changes horses or dismounts completely) is very much appreciated. Sorry, but you Masters of Canon Law (incl Dr Peters) don’t ALWAYS speak on a level and with a clarity I can comprehend (mea culpa)

  16. Hi again Igor,
    let me begin by sympathising with the pain you feel in this matter. But let me suggest that you leave to one side what you know of Fr G & Ms J. That makes it easier to deal with the issues. The first is: did Fr G err in law? The canonists state that he did; as does the Archdiocese.

    I think we must leave to one side your question about whether or not the Archdiocese has a particular policy or not in relation to a particular group of people. Whatever the Archdiocese does or does not do, it must be in compliance with canon law.

    A second issue raised by you seems to be that you think Fr G has been treated unjustly. He was in error; the Archdiocese has not acted outside its authority in relation to him; but it does remain to wonder whether he has been treated with undude severity, given that it seems under the circumstances that the injury to Ms J would have been negligible (she had left the Church before this to become a Budhist & she in any case did receive Communion from the Extraordinary Minister standing nearby).

  17. Curtis permalink

    Father Anonymous Responds

    I would like to take a moment to thank Father Stuart MacDonald and Doctor Ed Peters for their ready willingness to dialogue regarding the canonical case of Father Guarnizo in the Archdiocese of Washington, DC. As canon lawyers, each of us sees that our canonical judgments are limited to the currently available information. The Truth is what we all seek.

    By way of review, my defense had two parts.
    Part 1 – Father Guarnizo sufficiently satisfied the conditions for canon 915.
    Part 2 – I question the canonical liceity regarding Father Guarnizo’s “administrative leave”.

    This article serves as a response to their various and thoughtful criticisms regarding certain points of my initial canonical defense of Father Guarnizo. I attempt to make my original points more explicit.

    Father MacDonald, on his new blog, Musings of a Canonist, in reply to my article states:

    “Fr. Anonymous does not reference his argument well. It is one thing to use Cardinal Burke as an authority, [Cardinal Burke states that Canon 915 exists primarily to prevent sacrilege while at the same time preventing our Greatest Good from being violated.] but be careful that you are not taking him out of context. Am I supposed to take Father’s word that he has read and understood the Cardinal’s essay? That his summary is correct?”

    It is easy to verify Cardinal Burke’s explanation of the purpose of Canon 915. The application of canon 915 prevents sacrilege. His Eminence begins by quoting St. Paul in his first letter to the Corinthians.

    “Whoever, therefore, eats the bread or drinks the cup of the Lord in an unworthy manner will be guilty of profaning the body and blood of the Lord. Let a man examine himself, and so eat of the bread and drink of the cup. For any one who eats and drinks without discerning the body eats and drinks judgment upon himself.”

    In describing the need to prevent sacrilege with unworthy receptions of the Eucharist, Cardinal Burke then goes on to quote a Scripture commentator.

    “The focus remains on Christ, and Christ crucified, as proclaimed through a self-involving sharing in the bread and wine. If stance and lifestyle make this empty of content and seriousness, participants will beheld accountable for so treating the body and blood of the Lord..”

    The Cardinal goes on to include quote after quote emphasizing the same message. Canon 915 is simply a juridical translation of the Church’s perennial duty to safeguard the Eucharist from sacrilege. The Cardinal quotes Blessed John Paul II, the Council of Trent, the Catholic Catholic Catechism of the Church, the early Church Fathers such as St. John Chrysostom, St. Basil and St. Augustine, approved theologians and St. Francis of Assisi. He also quotes the Decretal of Pope Gregory IX:

    “From the Decretal Law, it is clear that Church discipline places an obligation on the minister of Holy Communion to refuse Holy Communion to persons known, by the public, to be in mortal sin. The discipline, faithful to the teaching of Saint Paul, safeguards the recognition of the most sacred nature of the Holy Eucharist, preventing public sinners from inflicting further grave damage upon their souls through the unworthy reception of the Holy Eucharist.”

    After mentioning the ancient Roman Rituale, he quotes the Synod of Diamper:

    “gives careful instruction regarding the vigilance of the local vicars, lest they sin gravely by offering the Sacrament to public sinners.”

    Cardinal Burke then quotes Father Capello, a 1917 Code commentator:

    “The dignity itself of the sacraments and the virtue of religion demand it, lest sacred things be exposed to profanation; the fidelity of the minister demands it, who is forbidden to give holy things to the dogs and to throw pearls before the swine; the law of charity demands it, lest the minister cooperate with those who unworthily attempt and dare to receive the sacraments, and offer scandal.”

    In his conclusions, Cardinal Burke states the following regarding the denial of Holy Communion to manifest, public grave sinners:

    “the discipline is not penal but has to do with the safeguarding of the objective and supreme sanctity of the Holy Eucharist and with caring for the faithful who would sin gravely against the Body and Blood of Christ, and for the faithful who would be led into error by such sinful reception of Holy Communion.”

    “As [Blessed] Pope John Paul II reminded us, referring to the teaching of the Second Vatican Ecumenical Council, the Holy Eucharist contains the entire good of our salvation. There is no responsibility of the Church’s shepherds which is greater than that of teaching the truth about the Holy Eucharist, celebrating worthily the Holy Eucharist, and directing the flock in the worship and care of the Most Blessed Sacrament. Can. 915 of the Code of Canon Law and can. 712 of the Code of Canons of the Eastern Churches articulate an essential element of the shepherds’ responsibility, namely, the perennial discipline of the Church by which the minister of Holy Communion is to deny the Sacrament to those who obstinately persevere in manifest grave sin.”

    Cardinal Burke makes it very clear that the purpose of canon 915 is to prevent sacrilege.

    After questioning whether the purpose of canon 915 is primarily to prevent sacrilege, Father Macdonald then makes the point that:

    “Dr. Huels is certainly an excellent canonist. But are we really going to rely on an argument he made for a commentary published in 1985 (merely two years after the promulgation of the Code, and before so many other magisterial teachings like Familiaris Consortio etc.)? Why not? Did Dr. Huels ever retract this statement?”
    We now have an opportunity to revisit the term “manifest” as stated in canon 915. Father Macdonald refers to a quote from Professor John Huels regarding the term “manifest” which stated

    “a manifest sin is one which is publicly known, even if only by a few.”

    I am unaware of Dr. Huels retracting or contradicting himself regarding his definition of “manifest.”

    This term “manifest” rests upon a stable and continuous canonical position from the 1917 Code of Canon Law. “Manifest” means that which is publicly known. What does the adjective “public” mean? Thanks to Dr. Ed Peter’s monumental work in translating the entire 1917 Code from Latin into English, here is the canon 2197:

    A delict [canonical crime] is

    1º “public, if it is already known or is in such circumstances that it can be and must be prudently judged that it will easily become known”.

    Father Woywod, a 1917 Code canonist, in A Practical Commentary on the Code of Canon Law, on canon 2197 states that:

    “The distinction between occult and public offenses is explained in general terms by the Code. Canonists have given more specific rules by which one may judge whether an offense is to be considered publicly known… It is maintained by many canonists that at least six persons in a small town or community must know of the offense before it can be called public.”

    Although ethics cannot be reduced to mathematics, six persons is not a lot of persons to satisfy the condition for a crime to be canonically “public”!

    In this work, Moral Theology, the theologian Father Heirbert Jone, OFM remarks

    “If a public sinner wants to receive the sacraments in a place, where his delicts are unknown, then the sacraments must be also denied him there, if his delicts will become known in this place soon.”

    “That one be no longer considered a public sinner, it is generally sufficient that he be known to have gone to Confession. If he is living in a proximate, voluntary occasion of sin (e.g. in concubinage) he must, as a rule, first give this up. In the example given, he must likewise repair public scandal (e.g., by disapproving of a wayward life.)”

    Was Barbara Johnson’s ongoing lesbian relationship with Ruth Gresser manifest? Here Father Macdonald quotes the obituary (which was available on cards for the funeral in the church.) The recently deceased lady was described as the

    “beloved and adored mother of Larry Johnson of Bluemont, VA, Nita Johnson of Rockville, MD, Michael and Robyn Johnson of Laytonsville, MD, Beverly Johnson of Gaithersburg, MD, Barbara Johnson and Ruth Gresser of Silver Spring, MD and Rose Fikak of Arlington, VA“.

    Father Macdonald points out that

    “Only one sibling is named with his spouse. Other female siblings are listed with their married names and no mention of the spouse. There is no reason to suspect that Ruth is a gay partner. There is no way to tell that she is her gay partner. Precision. Precision. Precision.”

    I agree with Father Macdonald. A internet viewing of the obituary, would not likely lead somebody to suspect that Barbara Johnson is the lesbian lover of Ruth Gresser.

    However, “reasonableness” is an assumed principle in the law. What was reasonable for Father Guarnizo to assume there in the church during the funeral that morning? Barbara Johnson had introduced her lover Ruth Gresser minutes before the Mass. During the funeral Barbara Johnson sat next to her lover Ruth Gresser in the front pew. Upon reading the obituary, as a sibling of Barbara Johnson, it would be completely reasonable to know the homosexual relationship of Ruth Gresser and Barbara Johnson at least at the time of the funeral. Upon reading the obituary, a sibling who does not know the identity of Ruth Gresser before the funeral would naturally ask the questions “Who’s Ruth Gresser?” “Why is she listed as a close family member to my mother?” “Why is her name next to Barbara Johnson’s? It would be incredibly bizarre if Barbara Johnson’s siblings did not inquire into the relationship between Barbara Johnson and Ruth Gresser.

    According to traditional thought of many canonists, how many people need to know for a offense to be public? Six. How many immediate family members does Barbara Johnson have according to the obituary notice? Six (not including Ruth).

    On top of that, add the great host of the recently deceased’s sisters, nephews, nieces, grandchildren and friends who would have naturally asked that same question. “Why is Ruth Gresser on the obituary as a daughter-in-law and sitting in the front pew?” People talk about each other at intimate family gatherings such as funerals.

    Again, does this satisfy the term “public”? Here is Ed Peters’ translation of the 1917 Code, canon 2197

    A delict [canonical crime] is

    1º “public, if it is already known or is in such circumstances that it can be and must be prudently judged that it will easily become known”.

    Given this definition of “public”, I disagree with Father Macdonald and Ed Peters. It was prudent for Father Guarnizo to judge that the lesbian relationship between Barbara Johnson and Ruth Gresser would at least “easily become known” at the time of funeral.

    Father Macdonald and Ed Peters do not seem entirely convinced of the well-respected Father William Woestman’s explanation of the relevant words of canon 915, i.e., “obstinately persevering in manifest grave sin.”

    Father Macdonald says

    “It’s fine to cite another excellent canonist, Fr. Woestman, “the public reception of Communion by a public sinner implies that the Church and her ministers somehow condone the public serious sin,” But how does that quotation contribute to the argument which is precisely about what constitutes a “public” sinner. I agree with Fr. Woestman’s statement, but not with Fr. Anonymous’ conclusions.”

    Ed Peters mentions that

    “And we all agree with Woestman, the question is, what do the words W uses mean in canon law?”

    In his explanation of the words “obstinately persevering in manifest grave sin.” found in his work Sacraments Initiation, Penance and Anointing of the Sick”, Father Woestman, OMI quotes the Roman Rituale, Blessed John Paul II’s letter Familaris Consortio, Cardinal Joseph Ratzinger as Prefect of the Congregation for the Doctrine of the Faith, the Catechism of the Catholic Church, the Pontifical Council for Legislative Texts. These same sources are referenced in my defense of Father Guarnizo. He concludes that”

    “Needless to say, the same principles [as contained the sources just referenced] apply to everyone whose habitual lifestyle is manifestly gravely sinful, e.g., the unmarried “living together,” homosexuals or lesbians in a public relationship, those actively participating in the performance of abortions, drug traffickers, gang members.”

    Those are the steps to Father Woestman’s argument. If someone disagrees with the conclusion, the onus is on him to disprove or reject one of the premises. Which premise or step does Ed Peters reject? Although already stated, Ed Peters holds:

    “withholding Holy Communion from those divorced and remarried outside the Church is an application of Canon 915 (see, e.g., Kelly, in GB&I COMM [1995] 503), but I need not prove that point to show that withholding the Eucharist from divorced-and-remarrieds, that is, those who status is de iure public, is appropriate under, among other things, the 1994 CDF Letter on Communion for Divorced and Remarried Catholics, n. 6. Of course, as Johnson is apparently not divorced and remarried outside the Church, and because Guarnizo did not suspect her of being so, his implicit appeal to the CDF letter and/or c. 915, fails in law and in fact.”

    On this point, Father Macdonald concurs with Ed Peters since

    “It’s also fine to cite papal documents etc. but we need to understand that those very documents are dealing with cases of de iure objective sin: the divorced and remarried, the voting records of politicians. By public declaration of law, those situations become manifest and obstinate. The question we are dealing with is how to apply those arguments to the similar case of objective sin which is not de iure public.”

    What is all this talk about “de iure”?

    Traditional canon law makes the distinction between “infamia de iure” and “infamia facti”. Infamia (infamy) is the loss one’s good name. “Infamy de iure” (infamy from the law) can be contracted by the commission of certain crimes, the decision of a judge or the reception of a penalty. For example, infamia de iure would take effect, following canonical heresy as stated in Canon 751.

    Can. 751 “Heresy is the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith; apostasy is the total repudiation of the Christian faith; schism is the refusal of submission to the Supreme Pontiff or of communion with the members of the Church subject to him.”

    Infamia facti (literally, infamy of fact) would come about with the loss of one’s good name in the eyes of the community by being known, for example, as a drug dealer.

    Infamia de iure and Infamia facti are not necessarily exclusive of one another.

    Father Macdonald argues that in the citations Father Woestman offers

    “we need to understand that those very documents are dealing with cases of de iure objective sin: the divorced and remarried, the voting records of politicians. By public declaration of law, those situations become manifest and obstinate. The question we are dealing with is how to apply those arguments to the similar case of objective sin which is not de iure public.”

    Given that Father Macdonald and Ed Peters agree that those who are divorced and remarried may be denied Holy Communion because of infamia de iure. Objectively, according to their respective moral objects, a public active homosexual relationship is worse than a situation of divorce and remarriage.

    Logically, Father Woestman is using a simple but effective “a fortiori” argument.

    “A” is a situation of divorce and remarriage.
    “B” is a public and active homosexual relationship

    1. The priest has a canonical obligation to deny somebody who is infamous de iure because of “A”.

    2. Suppose “B” is a situation morally worse than “A” and “B” is publicly known.

    3. If infamy is consequent upon “A”, then infamy must definitely be consequent upon “B”.

    Moral theology, the spirit of the law, the mind of the legislator and logic are on the side of Father Woestman in this case. Must we wait for homosexual unions to be civilly “legalized” in order apply canon 915 if such cases are already publicly known?

    In this case, Father Woestman is correct to conclude that

    “needless to say, the same principles [as contained in the sources referenced in A Canonical Defense of Father Guarnizo] apply to everyone whose habitual lifestyle is manifestly gravely sinful, e.g., the unmarried “living together,” homosexuals or lesbians in a public relationship, those actively participating in the performance of abortions, drug traffickers, gang members.”

    If drug traffickers and gang members are infamous, but not infamous “strictly de iure”, then surely active and public homosexuals are also infamous.

    Later on, Father Macdonald remarks

    “Finally, and most egregiously, Fr. Anonymous fails to cite the source of his summary of Prof. Beal’s argument, “John Beal, a well-known canonist at Catholic University, argues that “administrative leave” can only take place after a formal judicial penal process has been initiated, and not during the information-collecting preliminary investigation.” It’s that little word ‘only’ that Fr. Anonymous has inserted in his summary.”

    Father Macdonald rightly states that I failed to properly cite the source of Professor John Beal’s argument regarding canonical “administrative leave”. Professor Beal, a well-known canon lawyer who teaches at Catholic University in Washington, DC is clear about the necessity to apply “administrative leave” in the context of a penal trial. Here is his short but relevant text in Studia Canonica, volume 27/2, 1993, pp. 315-316.

    “Canonical tradition, the text and context of c. 1722, the mind of the legislator and parallel passages in the Oriental Code all lead to the same conclusion. “Administrative leave” may be imposed only after the completion of a preliminary investigation. The accused must be cited and given an opportunity to respond, at least extrajudicially, to the allegation and to the proposal to impose “administrative leave. This initial citation and hearing can occur before the penal process if formally inaugurated, either in conjunction with the Ordinary’s decree initiating the penal process or subsequently. However, “administrative leave” can only be imposed in connection with a penal process, whether actual or imminent. It cannot be imposed on the basis of accusation alone. This conclusion is settled law, inconvenient law perhaps, but still the law.”

    In other words, Professor Beal is saying, if “A” exists, “B” must exist. If there is an licitly imposed “administrative leave”, then a penal process must exist for liceity.

    Canon 1722, the analogous “administrative leave” norm states:

    “to prevent scandals, to protect the freedom of witnesses, and to guard the course of justice, the ordinary, after having heard the promoter of justice and cited the accused, at any stage of the process can exclude the accused from the sacred ministry or from some office and ecclesiastical function, can impose or forbid residence in some place or territory, or even can prohibit public participation in the Most Holy Eucharist. Once the cause ceases, all these measures must be revoked; they also end by the law itself when the penal process ceases.”

    Beal mentions that

    “Since it has become commonplace in canonical circles in North America to refer to the precautionary restrictions articulated in c. 1722 as “administrative leave,” this article reluctantly bows down to this common usage.”

    Beal then makes the point that administrative leave can mean one or more of the precautionary measures mentioned in canon 1722.

    His colleague at Catholic University, Professor Thomas J. Green, also concurs on this issue. In the Canon Law Society of America’s new commentary on the Code, Professor Green states in a foonote on canon 1722 that

    “For a thoughtful examination of this canon, see J. Beal, “Administrative Leave: Canon 1722 Revisited,”… He argues persuasively that the measures (i.e. administrative leave) envisioned here are operative only after a formal process has been initiated, not during the preliminary investigation.”

    Professor Green thus contradicts Father Macdonald who states

    “I would be willing to bet a lot of money that Prof. Beal would not argue that ‘administrative leave’ can only take place after a judicial process has been initiated.”

    In his commentary on Canon 1722 in Penal Sanctions, Penal Remedies and Penances…, Cardinal Velasio De Paolis, former Dean of the Faculty of Canon Law at the Pontifical University Urbaniana in Rome, former secretary of the Supreme Tribunal of the Apostolic Signatura, when speaking of the aspects of “administrative leave”, makes a similar point:

    “prohibiting the accused from the exercise of the sacred ministry or of some ecclesiastical office and position, or imposing or forbidding residence in a certain place or territory, or even prohibiting public participation in the blessed Eucharist”… should be revoked when the reason for which they have been imposed cease; they are imposed by the Ordinary, but “’after consulting the promotor of justice and summoning the accused person to appear”’. Such measures are allowed by law only for the penal judicial process.”

    Frans. Daneels, O. Praem., a Promoter of Justice for the Signatura, in a paper titled “The Administrative Imposition of Penalties”

    “There is a decree of the Congresso of the Signatura of April 22, 1997 which in the motivation seems to uphold the thesis of J. Beal, at least indirectly.”

    Canonically, how is administrative leave imposed? Professor Beal answers that

    “the imposition of such “administrative leave” requires an administrative decree governed by the rules on such decrees (cc. 35-58).”
    Canons 50 and 51 are helpful to understanding the imposition of this decision, an administrative decree of executive weight that has a negative impact.

    Can. 50 “Before issuing a singular decree, an authority is to seek out the necessary information and proofs and, insofar as possible, to hear those whose rights can be injured.
    Can. 51 “A decree is to be issued in writing, with the reasons at least summarily expressed if it is a decision.”
    As the person whose rights were injured, was Father Guarnizo properly consulted regarding information and proofs according to canon 50 before receiving the decision of the “administrative leave”? Father Guarnizo declares:

    “I would only add for the record, that the letter removing me from pastoral work in the Archdiocese of Washington, was already signed and sealed and on the table when I met with Bishop Knestout on March 9, even before he asked me the first question about the alleged clash.”
    Here is the Archdiocese’s statement regarding Father Guarnizo’s “administrative leave.

    “Father Marcel Guarnizo’s assignment at St. John Neumann Parish is withdrawn and he has been placed on administrative leave with his priestly faculties removed until such time as an inquiry into his actions at the parish is completed. Father Guarnizo is a priest of the Archdiocese of Moscow, Russia, and has been serving in the Archdiocese of Washington since March 2011 as parochial vicar at the parish.

    This action was taken after Bishop Barry C. Knestout, Vicar General and Moderator of the Curia for the Archdiocese of Washington, received credible allegations that Father Guarnizo had engaged in intimidating behavior toward parish staff and others that is incompatible with proper priestly ministry.

    Given the grave nature of these allegations, and in light of the confusion in the parish and the concerns expressed by parishioners, Father Guarnizo is prohibited from exercising any priestly ministry in the Archdiocese of Washington until all matters can be appropriately resolved with the hope that he might return to priestly ministry.”

    Why is the existence of the penal process and its observance so important? The Ordinary’s correct application of the penal process correctly ensures a canonical atmosphere for Father Guarnizo’s right of defense including an advocate who may give canonical advice. After receiving a report of credible information, the Ordinary initiates a preliminary investigation. The Ordinary may then decree a judicial penal process to be initiated. Thus, the promoter of justice presents a libellus or petition of accusation to a judge. The promoter of justice must support the accusation, organize proofs and argue the case. The burden of proof is upon the promoter of justice to demonstrate to the tribunal the guilt of the accused with moral certainty. Of course, the accused must be cited or summoned for this case. Also “administrative leave” must end when the penal case ends or even when there is no longer a reason for them.

    Imposing a decree of “administrative leave” (which should be temporary) outside of its context of the penal process is an abuse of power since there are since there there are no checks or balances to resist it. Unfortunately, the Dominican Father Angelo Urru, a Professor of Canon Law at the Pontifical University of St. Thomas Aquinas, in Considerations on Imposing Penalties in Specific Cases, sees this deficiency as a reality since:

    “at times these provisions [in canon 1722] are applied before the process begins or even before the preliminary investigation.”
    Professor Beal, Professor Green, Father Urru all hold that “administrative leave” must necessarily exist in the context of a penal case. As seen above, Father Daneels gives evidence and support for this position from a decision from the Apostolic Signatura.

    Again, if “A” exists, “B” must exist.

    “A” = licit “administrative leave”
    “B” = licit and valid “penal process”

    If there is an licitly imposed “administrative leave”, then a penal process must necessarily exist for liceity.

    Unfortunately, Father Macdonald and Ed Peters hold a contrary position stating:

    “This is not a penal case”

    “that does not mean that a penal process is the only time administrative leave can be used. In fact, canonists know that it is used in other scenarios (rightly or wrongly) and, without putting words in Beal’s mouth, he would know that. The use of penal canons in this issue is irrelevant.”

    Ed Peters also agrees that the penal case is irrelevant to the “administrative leave” precautionary measure of canon 1722.

    “c. 1722 is irrelevant to this case!”

    As a side note, Father Macdonald’s discourse on irregularities was interesting but not really relevant to this discussion of administrative leave. I agree with Ed Peters on this point.

    In short, from the press release of the Archdiocese of Washington, it is clear that “administrative leave” was imposed upon Father Guarnizo. The “administrative leave” canon is canon 1722. According to Professor Beal, “administrative leave” can only be imposed after the preliminary investigation with a necessary connection to a penal process. “Canonical tradition, the text and context of c. 1722, the mind of the legislator and parallel passages in the Oriental Code all lead to the same conclusion.” What then, is the canonical basis for the archdiocese to impose “administrative leave” on Father Guarnizo? If canon 1722 is not their archdiocese reason and the legal justification for the “administrative leave”, what is? If what Father Guarnizo stated about the imposition of the “administrative leave” is true, the conclusion is clear. The right of defense is being violated.

    Again, I’d like to thank Father Macdonald and Dr. Ed Peters for their openness to participate in a canonical conversation regarding Father Guarnizo. Although I am grateful for Ed Peters’ defense of canon 915 in the past, I substantially disagree with the position that he shares with Father Macdonald regarding the application of canon 915 to Father Guarnizo. Canon 915 is primarily about the safeguarding and defense of the Eucharist by its ministers. Those ministers in turn, such as Father Guarnizo, deserve a right of defense whether they are guilty or not. Every man has a right of defense, especially in the United States. The right of defense is a natural consequence of the enthusiasm we should have for the dignity of each human person which Blessed Pope John Paul II emphasized. The fact that a priest is not receiving his canonical right of defense in the Archdiocese of our nation’s capital is indeed a tragedy.

  18. Jerzy permalink

    Dear Father MacDonald,

    I would like to ask some simple question. Image yourself in the following situation.
    You are going to your church to celebrate the Mass, on your way you meet a group of parishioners discussing something with two women. These women approaches you and one of them says: I am Barbara Johnson, my companion is my lover and I’ve just said the other attendants of this Mass that I am grateful for your defense of my right to Holy Communion. Now I am going to take It from your hands. You are unable to answer because she goes away and her companion makes impossible for you to follow her.

    During the Mass Barbara Johnson actually presents herself to Holy Communion. How do you react (as an expert in Canon Law)?

    Best regards,
    Jerzy

    • It’s not a simple question you ask. That’s the point, too many people are trying to over-simplify it.
      If it is THE Barbara Johnson and I was sure of that, I would refuse her communion because now it is all very manifest, public, obstinate etc. If it were just a Barbara Johnson, I would, with great distaste and chagrin, give her communion, making sure that I tried to verify all the details after Mass so that, if true, she would not be admitted to communion in the future. And no, I am not going to re-explain why I would give her communion on that one occasion.
      Fr. MacD

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