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Some Reflections Thomas Doyle, J.C.D. As we all know, Roy Bourgeois was threatened by the CDF with excommunication because he participated in a ceremony at which a woman was ordained. Roy’s response to the Congregation was made public but since then there has been no word about whether they have acted or not. I asked the question three days ago, and Charles McMahon responded that the scuttlebutt had been that the Vatican claimed that Roy had excommunicated himself. This set me to thinking how this could have happened. The Code of Canon Law lists only seven actions that result in "latae sententiae" or automatic excommunication. This means that as soon as one performs the actions the excommunication takes place. Like any other excom-munication it is subject to an appeal process. Automatic excommunications are not always publicly announced by the Church office-holders. In some cases, the excommuni-cation can be "declared" which means that it has additional effects. The seven automatic excommunications are: 1) Heresy, apostasy or schism (c. 1364) 2) Desecration of the Eucharist (c. 1367) 3) Violence towards the pope (c. 1370) 4) Absolution of an accomplice in a sexual sin (c. 1378) 5) Consecration of a bishop without a papal mandate (c. 1382) 6) Violation of the seal of the confessional (c. 1388) 7) Procuring an abortion (c. 1398) It appears that the only one applicable here is that connected with canon 1364, namely public "heresy, apostasy or schism." We can only conclude that the Vatican has determined that Roy publicly committed heresy, apostasy or schism. Based on the Code’s definition of each of these in canon 751, it seems that only heresy or schism would apply. Heresy is defined as the "obstinate post-baptismal denial of some truth which must be believed with divine and Catholic faith." Schism is the "refusal of submission to the Roman Pontiff or of communion with the members of the Church subjected to him." There are two important elements with any excom-munication based on this canon: the intention of the person accused and the subject about which the excommunication is based, in this case, participation in an illicit ordination ceremony. It’s clear from Roy’s response to the Congre-gation that he had no intention of separating himself from the Catholic Church and probably had no idea of the complexities or requirements for entering schism in the first place. Assuming that the "hook" being used by the CDF is heresy, this requires the public rejection of an article of faith. The restriction of ordination to priesthood to males is clearly enshrined in Canon Law, but is it an article of faith? It has never been officially defined as an infallible teaching that only men can be validly ordained unless one buys into the very dubious and non-historically based theory of "creeping infallibility." This theory is based on the notion that if the pope (popes) says (say) something enough times it eventually becomes infallible on its own. It would seem that the canonical foundation for this theory would be the concept of "prescription" or perhaps even "custom" which means that if something is done enough it can eventually have the force of law. This would be fine except that neither concept applies to doctrine. Creeping infallibility seems to be something like what is often referred to as "Irish logic": I said it because it’s so and it’s so because I said it. This is all like a chronic alcoholic telling himself over and over that he’s not a drunk and expecting the repetition to eventually change his reality. Perhaps another way to understand creeping infallibility would be by analogy with the alcoholic’s definition of insanity: Doing the same thing over and over again, expecting a different result. There is an important principle of Canon Law which must be applied in Roy’s case: "Laws which establish a penalty or restrict the free exercise of rights or which contain an exception to the law are subject to a strict interpretation." (C. 18) This means that if Roy is being accused of heresy the basis for the accusation must be strictly interpreted, that is, it must be something that is certainly a universally accepted and properly defined article of faith. The restriction of ordination to men is not such. Quae cum ita sint [since this is the case], if the Vatican believes that Roy has automatically excommunicated himself for heresy, then the pope must have, in a secret session, declared the restriction of ordination to men to be an article of faith and an infallible teaching. If this happened it was done clandestinely, or even better, according to the Vatican curial notion of procedural law, which essentially is that it’s perfectly acceptable for them to make up the rules as they go along. If the canonical procedural law was really based on the concept of objective justice, one could easily challenge such a clandestine and subjective process for created infallible teachings on the presumption that intentional departure from the required process would invalidate the act. But, apart from all the canonical games and attempts at twisting and parsing the words and actions to win the argument one way or the other, what we have I believe, is yet another symptom of a hierarchy gone way off the tracks. It excommunicates (or tries to) a man because he promotes ordination of women, a concept which severely threatens the power and control of the church's reigning patriarchal oligarchy. At the same time this same authority system rewards its own for enabling the spiritual destruction of the innocent through sexual and religious abuse and intenti-onally neglects to prosecute the commission of certain canonical crimes by bishops simply because they are bishops. To be specific, Bernard Law was rewarded for his gross negligence and misuse of power with a comfortable Vatican position and no bishop credibly known to have sexually violated a minor has ever been prosecuted and this number has included many. The revised Code contains another principle of its penal law that seems to have fallen by the wayside and that is the principle that penalties be used as a last resort (c. 1341) and that when applying penalties, the judicial process be used unless there are valid reasons for using the administrative means. This means that every pastoral avenue of negotiation and dialogue is to be exhausted before penalties are threatened. Furthermore when resorting to penalties the judicial process, which is more apt to ensure objective justice, is to be used. So, what do we have? Bishops telling people they can't go to communion because of how they vote or even better, excommunicating people because they disagree with them. The debacle of several U.S. bishops using the Eucharist as a political bargaining chip certainly goes a long way in establishing the belief that at least some Catholic bishops are not only ignorant of their own legal system but disdain it for their own subjective reasons. Perhaps the most glaring example of juridical insanity is that of Lord Ray Burke, formerly of St. Louis and now the Church’s chief assignments’ court judge. His interaction with the board members of St. Stanislaus parish is a classic example of the use of ecclesiastical power gone mad. He used the penal law as a club which apparently is his version of being pastoral. Some of the excommunicated board members recanted and are now back in the fold but the reasons for their actions are not quite as simple as fear of Burke or regret at having "disobeyed their archbishop." Several other members held firm. The parish is still run by the community and is independent because they have what Burke wanted but never got.....the legal title to the property and the checkbooks. The Burke-St. Stanislaus saga is the subject of a whole other examination but for our purposes it sheds some light on what has been happening to Roy. Patrick Edgar [an ARCC Board member] offered some very insightful com-ments which I would like to incorporate here: I believe that your final comments are particularly germane. One of the principles of Chaos theory is that systems tend to take on their most aggressive forms immediately before the chaotic episode transforms it. The irony is that the more these buffoons push and use every aggressive tactic they can come up with, the further they push themselves and the entire institution into a chaotic episode. Out of this come the most profound of transformations. So, if one wants to be optimistic, they are actually more responsible for the upcoming transformation than they can imagine. If one believes in the traditional concept of heaven, with God, Jesus, the Holy Ghost and the Virgin Mary looking down on all of us, they must be falling all over each other with laughter at the antics of the collection of consecrated buffoons who are blindly trying to shove the entire church back into the 15th century. I recall being at an AA meeting one time when a woman member said that the reason God created churches was because they don't have board games in heaven. *Note: this article began as a message Tom Doyle sent to the ARCC Board mailing list and was subsequently published in the ARCC newsletter ARCC Light 30.5 (Nov-Dec 2008).
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