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After decades of disinterest, suddenly two Canon 1405 cases?
In the Light of the Law ^ | April 23, 2008 | Edward N. Peters, JD, JCD

Posted on 04/24/2008 10:11:49 AM PDT by NYer

POST ONE: Pope Benedict XVI is believed to be mulling over the possibility of expelling a bishop, Fernando Lugo, from the clerical state. That would certainly be a first under the 1983 Code (the Jacques Gaillot case in 1995 was not a precedent; Gaillot was removed from office, but not from the clerical state), and I'm pretty sure it never happened under the 1917 Code.

Lugo, though suspended and removed from ecclesiastical office, remains a cleric, but his election under a reformist banner to Paraguay's presidency upped the ante. Clergy are forbidden to assume civil governing offices (see
1983 CIC 285.3 and my negative conclusions about "Permission given to priest to run for political office", 2007 CLSA Advisory Opinions 60-62) and bishops in political office are at odds with, oh, about a dozen other norms.

Canon 290,3 says that removal from the clerical state can be granted (or imposed, if it comes to that) on deacons for "grave cause" or presbyters for "most grave cause". But the canon doesn't even mention dismissal of a bishop from the clerical state. It's as if no one could imagine it ever happening.

Lugo has reportedly offered to "resign" but it is unclear exactly what he meant by that, or he could face a penal process with the pope as judge per
1983 CIC 1405, 1. Ironically the pope could hear this matter as a case of judging "those who hold the highest civil office of a state" or he could hear it as a case of judging "bishops in penal matters." But regardless of which kind of case he considers, removal of a bishop from the clerical state, and not just from office, is an extremely serious action, something that hasn't happened for centuries.

Okay, so, maybe it's time it did.


Update, same day: A number of readers have asked about the import of the letter of Giovanni Battista Re asserting, among other things, that the removal of a bishop from the clerical state is impossible. This letter, standing alone, is insufficient to prove that point, however, if only because it was written in response to Bp. Lugo's petition for voluntary removal from the clerical state; Re's letter would not preclude the pope from imposing dismissal, in poena or otherwise.

As for folks confusing the clerical state, which can be lost, with the indelible character of holy orders, which can't be lost, consulite auctores probatos.

Hey, who wants to see a concise video report on this case that gets almost every technical term correct? Check out http://www.h2onews.org/_page_videoview.php?id_news=609&lang=en.

+++

POST TWO: How utterly ironic.

I had intended the above title, about the "two Canon 1405 cases" to refer to two possible applications of Canon 1405 in the one case of Bp. Fernando Lugo. But now I see another news item that would involve, of all things, Canon 1405 for a second, completely separate, time.

I refer to Richard Sipe's denunciation of, among others, Theodore Cdl. McCarrick (ret. Washington) on the grounds of sexual misconduct. I know next to nothing about Sipe, but his statement leaves little room for nuance: "I know the names of at least four priests who have had sexual encounters with Cardinal McCarrick. I have documents and letters that record the first hand testimony and eye witness accounts of McCarrick, then archbishop of Newark, New Jersey actually having sex with a priest, and at other times subjecting a priest to unwanted sexual advances."

The same Canon 1405 I referenced above reserves solely to the Roman Pontiff the right to judge all cases involving cardinals and, in penal matters, bishops. Under either heading, let alone both, the only person authorized to investigate, and if warranted judge, Sipes' allegations, is the pope. No ecclesiastical authority may move on this matter without the consent of the Roman Pontiff.

I do think, however, that in conscience, (though not by canon law given the abrogation of 1917 CIC 1935.2), Sipe is bound to send to the Holy See all the information he has about these matters, and not wait to be asked for it.


TOPICS: Apologetics; Catholic; Religion & Politics
KEYWORDS: canon1405; canonlaw; paraguay
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1 posted on 04/24/2008 10:11:49 AM PDT by NYer
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To: Salvation; narses; SMEDLEYBUTLER; redhead; Notwithstanding; nickcarraway; Romulus; ...

Ping


2 posted on 04/24/2008 10:12:50 AM PDT by NYer (Jesus whom I know as my Redeemer cannot be less than God. - St. Athanasius)
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To: NYer

is that anything like getting fired for being dumb?


3 posted on 04/24/2008 10:15:05 AM PDT by devane617 (My Kharma Ran Over Your Dogma)
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To: devane617

It comes closer to getting fired for hanging the boss in effigy on the town square.


4 posted on 04/24/2008 10:29:52 AM PDT by ArrogantBustard (Western Civilization is Aborting, Buggering, and Contracepting itself out of existence.)
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To: NYer

So what does “expelling from the clerical state” mean? If he’s removed from office, he’s no longer a bishop but he’s still a priest and can perform priestly duties, but if he’s “expelled,” he’s a layperson? Is this like a double secret excommunication?

}:-)4


5 posted on 04/24/2008 10:36:44 AM PDT by Moose4 (http://moosedroppings.wordpress.com -- Because 20 million self-important blogs just aren't enough.)
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To: Moose4
No, "removed from office" means he's still a bishop, can still exercise ministry as a bishop, but he isn't in charge of anything. (He's the "bishop of ..." nothing at all.)

"Expelled from the clerical state" means that, while he retains the charism of Holy Orders (which cannot be removed), he can't licitly exercise any clerical ministry in ordinary circumstances.

("in ordinary circumstances" -- even an ex-priest or ex-bishop "expelled from the clerical state" could hear the confession of a person in danger of death and validly absolve them. That would be an extraordinary circumstance.)

6 posted on 04/24/2008 10:45:53 AM PDT by Campion
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To: NYer
Pope Benedict XVI is believed to be mulling over the possibility of expelling a bishop, Fernando Lugo, from the clerical state

So Abp. Milingo (the Moonie) was excommunicated but not expelled from the clerical state?

7 posted on 04/24/2008 10:48:33 AM PDT by Campion
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To: Campion

OK, that makes sense. So how does excommunication fit in there—that’s a complete expulsion from the Catholic Church, right? Can’t take Communion, go to confession, anything?

(Sorry for all the questions...I’m Presbyterian but this is very interesting to me.)

}:-)4


8 posted on 04/24/2008 10:54:10 AM PDT by Moose4 (http://moosedroppings.wordpress.com -- Because 20 million self-important blogs just aren't enough.)
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To: Moose4
Excommunication isn't exactly "expulsion from the church," but it prohibits the excommunicand from receiving any of the sacraments, including confession, until he formally repents of the crime which caused the excommunication.

"Formally repents" means that stops committing the crime and makes his repentance known to a cleric competent to remove the excommunication. (May be a priest, bishop, or the Pope, depending on the offense.)

I would think that a cleric who is excommunicated is de facto "removed from the clerical state" but would be automatically reinstated if he repented. Someone formally removed from the clerical state, though, would not be automatically reinstated, nor usually reinstated at all.

9 posted on 04/24/2008 11:25:42 AM PDT by Campion
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To: Campion
Dear Campion,

“I would think that a cleric who is excommunicated is de facto ‘removed from the clerical state’ but would be automatically reinstated if he repented.”

I don't think that's exactly the case. Archbishop Lefebvre was excommunicated, but remained a cleric, albeit unable to legitimately exercise any actions tied to his clerical state. He was still an archbishop, still a member of the hierarchy of the Church, even though he couldn't exercise any of the authority thereof.

On the other hand, someone dismissed from the clerical state is no longer part of the hierarchy of the Church.

The net effect, while excommunicated, seems the same, and the distinction may be without a difference. But I think that the distinction remains.

And when the Trinitarians taught me, they DID call me “the Little Jesuit.” ;-)


sitetest

10 posted on 04/24/2008 11:33:21 AM PDT by sitetest (If Roe is not overturned, no unborn child will ever be protected in law.)
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To: sitetest

That’s basically what I was trying to say. Thanks for adding some clarity.


11 posted on 04/24/2008 11:41:02 AM PDT by Campion
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To: sitetest; Campion

The crux of the matter is whether it is possible to reduce a bishop to the lay state. Most authorities believe it is not.

The only thing the Pope can do in this situation is remove the bishop from his diocese and his activity, because nobody, including a bishop, can licitly continue this without the ultimate permission of Rome.

However, in terms of the sacrament, he still remains a bishop, just as you and I still remain baptized Christians (with the mark on the soul) no matter what we do, even if we wish to renounce it. Renouncing it is simply not possible, because it has effected an ontological change. There have been leftist idiots in Spain who have sued the Church (and won!) to get the parish to remove their baptismal record. But the bad news is that, record or no, it still happened, and things will not go well for them on Judgment Day.

Therein lies the problem.


12 posted on 04/24/2008 12:26:05 PM PDT by livius
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To: livius
Dear livius,

I don't know why a bishop couldn't be reduced to the lay state.

The ontological mark on the soul of a deacon or priest is just as permanent as that on the soul of a bishop. Reduction to the lay state has nothing to do with this ontological reality.

To be reduced to the lay state is merely to be dismissed from the hierarchy of the Church.


sitetest

13 posted on 04/24/2008 12:33:49 PM PDT by sitetest (If Roe is not overturned, no unborn child will ever be protected in law.)
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To: sitetest

The bishop receives the fullness of the priesthood, and that’s why he can ordain priests and other priests cannot.

This may be something that the Church can control - for example, when I was a kid, only bishops could confirm, but then it was announced that priests could confirm. So I’m not sure how far the delegation goes.

But a bishop and a priest are on two different levels. Being made an “un-cardinal,” if such could be done, would be dismissal from the heirarchy, because “cardinal” is essentially a title and can be removed. But being a bishop is something entirely different, and this is the problem in trying to get rid of them.

Why do you think there are questions over Anglican orders? If somebody - some dissident follower of Henry VIII - wanted to ordain somebody, he could and probably did. So in that case, the question is about the licitness. However, Rome has already decided that Anglican orders are not valid, so perhaps this gives us an idea of what might happen.

Basically, I think the Pope’s fear is that bishops will leave and start ordaining priests and consecrating other bishops.


14 posted on 04/24/2008 1:21:55 PM PDT by livius
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To: livius
However, in terms of the sacrament, he still remains a bishop

As I said, the charism of Holy Orders cannot be removed from the soul. However, that is as true of the priesthood or diaconate as it is of the episcopacy.

Expulsion from the clerical state merely means that the person cannot licitly function as a cleric in any capacity.

15 posted on 04/24/2008 1:23:30 PM PDT by Campion
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To: livius
Dear livius,

“The bishop receives the fullness of the priesthood, and that’s why he can ordain priests and other priests cannot.”

I understand that.

“But a bishop and a priest are on two different levels.”

That's true.

“Being made an ‘un-cardinal,’ if such could be done, would be dismissal from the heirarchy, because ‘cardinal’ is essentially a title and can be removed.”

That's true, too.

“But being a bishop is something entirely different, and this is the problem in trying to get rid of them.”

But this is similar to the problem with priests. Each is changed ontologically with the reception of orders, whether only priestly, or episcopal.

Whether one is laicizing a priest or a bishop, the ontological nature of Holy Orders remains. The priest remains a priest and the bishop remains a bishop.

The clerical state, however, is merely the fact of being part of the hierarchy of the Church. A priest is part of the hierarchy, as is a bishop. A priest can be removed from the hierarchy. No effect on the nature of the mark on his soul as a result of being ordained, but by being removed from the clerical state, he is no longer part of the hierarchy. Why not a bishop?

There may be some other argument to be made, but I don't think it's because of the ontological change made by the reception of Holy Orders, as all three, deacon, priest, and bishop all are changed ontologically, and that change is permanent and eternal.

“Why do you think there are questions over Anglican orders?”

There aren't really any questions concerning Anglican orders, generally. They're invalid.

And that's because under the protestantizers, the Anglicans no longer intended to do what the Church does, which is to ordain men who in part can offer the sacrifice of the Mass and sacramentally hear confessions and grant absolution.

“If somebody - some dissident follower of Henry VIII - wanted to ordain somebody, he could and probably did. So in that case, the question is about the licitness.”

No, the Church teaches that Anglican orders were not a matter of licitness but of validity.

“Basically, I think the Pope’s fear is that bishops will leave and start ordaining priests and consecrating other bishops.”

Yes, but that's a prudential question. It's not a question of whether or not a bishop CAN be laicized, only a question of whether it's a good idea, or not.

And not laicizing Archbishop Lefebvre certainly didn't stop HIM from illicitly consecrating bishops.

I'd like to see a better reason put forth why bishops can't be laicized than what's been presented so far.


sitetest

16 posted on 04/24/2008 1:59:47 PM PDT by sitetest (If Roe is not overturned, no unborn child will ever be protected in law.)
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To: sitetest
No effect on the nature of the mark on his soul as a result of being ordained, but by being removed from the clerical state, he is no longer part of the hierarchy. Why not a bishop?

Frankly, I'm not sure it's ever been done. Do you know of any cases where a bishop has been laicized? This alone would be enough to stop the Pope from doing anything to them.

However, he could remove them from their sees, and I sure wish he would. But there is always the question of whether they would then set up their own church, which wouldn't surprise me in the least; and in that case, their heresy would be perpetuated.

17 posted on 04/24/2008 2:08:13 PM PDT by livius
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To: livius
Dear livius,

Here is an article at Catholic Encyclopedia that, towards the end, discusses degradation from the clerical state:

http://www.newadvent.org/cathen/04049b.htm

Here's the money quote:

“LOSS OF CLERICAL PRIVILEGES

“Although the sacramental character received in Sacred orders may not be obliterated, yet even the higher orders of clergy may be degraded from their dignity and reduced to what is technically called lay communion.”

I wouldn't say that this is dispositive, but I offer it as additional support to the concept that bishops may be degraded to the lay state.


sitetest

18 posted on 04/24/2008 2:09:36 PM PDT by sitetest (If Roe is not overturned, no unborn child will ever be protected in law.)
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To: Campion

A priest has functions delegated by his bishop (and this is Apostolic in its foundations) and they can be withdrawn. The question is whether a bishop, once he has the “fullness of the priesthood,” can ever have his functions withdrawn.

It was a problem among the Orthodox, notoriously prone to splintering, because then bishops would set out on their own, find a kindred spirit, and consecrate other bishops (it took two or possibly even 3 in the Orthodox churches) and then suddenly you’d have another church. Bad priests are a problem, but they’re not as much of a problem as bad bishops, and I think the Pope is trying to work this out.

BTW, if we were serious about the “pedophilia problem,” we’d look at the dioceses that had the biggest problems ....and then look at their bishops. Because that’s where the rot came from.


19 posted on 04/24/2008 2:15:05 PM PDT by livius
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To: livius
Dear livius,

“Frankly, I'm not sure it's ever been done. Do you know of any cases where a bishop has been laicized?”

I really don't know.

I'm merely following the path of speculation as to whether or not it can be done.

A little googling comes up with this article:

http://people.vanderbilt.edu/~james.p.burns/chroma/penance/pentill.html

Here's the money quote:

“However, after the Decian persecution, many clergy were seeking readmittance, including some born and/or ordained in schism.(2) Given their numbers, geographic spread and leadership positions, the old methods were inadequate and the practices of the Novatianists, ‘no reentry’ or ‘reentry by rebaptism’, were being marginalized. The common answer for the laity was admission after a protracted penance.(3) In general, readmitted clergy were reduced to the lay state.(4)

“The problem was not the readmission of clergy per se, but the anomalous state of the bishop during and after penance. There are two ways to understand this situation. One is a focus on form and the other on function. In terms of form, the member of the clergy had already received a ritual gesture of the presence of the Spirit in ordination. Would the repetition of the gesture in penance give the lie to the first administration and somehow retroactively proclaim it invalid?(5) With regard to function, the bishop was supposed to be the minister of reconciliation. However, as a penitent, he was himself in a liminal state, and therefore unable to minister to others. In fact, a bishop who was doing penance would have been able to exercise very few episcopal duties, certainly not liturgical ones.(6) An occasional alternative was the exclusion of the bishop from penance, leaving his judgment to God, but the usual practice was degradation. The degraded cleric would not do penance; degradation was considered penance enough.(7)”

According to this article, during the whole Donatist mess, bishops were sometimes degraded to the lay state.

Don't ask me to vouch for this assertion. ;-)

As well, I have bouncing around in the very recesses of the back of my mind snippets of quotations from degradation ceremonies that once were used, and I do vaguely recall degradation rites that specifically applied to bishops.

But that's dependent on my feeble memory.


sitetest

20 posted on 04/24/2008 2:21:02 PM PDT by sitetest (If Roe is not overturned, no unborn child will ever be protected in law.)
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