The high-water mark of the Kasperites

The third set of the reports of the circuli minores were released today. According to Raymond Arroyo, five groups clearly support the Kasperite proposal, two clearly oppose, and the rest are unclear. Rorate comes up with a different count. Rorate argues that most circuli are unfavorable to the proposal. There are thirteen circuli, so less than half of the circuli clearly support the proposal with Arroyo’s numbers. This half-jives with the reports yesterday that there was overwhelming opposition among the Synod fathers to the proposal.

We were struck by some of the language, aided hugely by Google Translate, in Germanicus’s report:

Die Diskussionen zeigen deutlich, dass es einiger Klärungen und Vertiefungen bedarf, um die Komplexität dieser Fragen im Licht des Evangeliums, der Lehre der Kirche und mit der Gabe der Unterscheidung weiter zu vertiefen. Einige Kriterien können wir freilich nennen, die zur Unterscheidung helfen. Das erste Kriterium gibt der hl. Papst Johannes Paul II. in FC 84, wenn er dazu einlädt: „Die Hirten mögen beherzigen, dass sie um der Liebe willen zur Wahrheit verpflichtet sind, die verschiedenen Situationen gut zu unterscheiden. Es ist ein Unterschied, ob jemand trotz aufrichtigen Bemühens, die frühere Ehe zu retten, völlig zu Unrecht verlassen wurde oder ob jemand eine kirchlich gültige Ehe durch eigene schwere Schuld zerstört hat. Wieder andere sind eine neue Verbindung eingegangen im Hinblick auf die Erziehung der Kinder und haben manchmal die subjektive Gewissensüberzeugung, dass die frühere, unheilbar zerstörte Ehe niemals gültig war.“ Es ist deshalb Aufgabe der Hirten, zusammen mit dem Betroffenen diesen Weg der Unterscheidung zu gehen. Dabei wird es hilfreich sein, gemeinsam in ehrlicher Prüfung des Gewissens Schritte der Besinnung und der Buße zu gehen. So sollten sich die wiederverheirateten Geschiedenen fragen, wie sie mit ihren Kindern umgegangen sind, als die eheliche Gemeinschaft in die Krise geriet? Gab es Versuche der Versöhnung? Wie ist die Situation des verlassenen Partners? Wie ist die Auswirkung der neuen Partnerschaft auf die weitere Familie und die Gemeinschaft der Gläubigen? Wie ist die Vorbildwirkung auf die Jüngeren, die sich für die Ehe entscheiden sollen? Eine ehrliche Besinnung kann das Vertrauen in die Barmherzigkeit Gottes stärken, die niemandem verweigert wird, der sein Versagen und seine Not vor Gott bringt.

Ein solcher Weg der Besinnung und der Buße kann im forum internum, im Blick auf die objektive Situation im Gespräch mit dem Beichtvater, zur persönlichen Gewissensbildung und zur Klärung beitragen, wie weit ein Zugang zu den Sakramenten möglich ist. Jeder muss sich selber prüfen gemäß dem Wort des Apostels Paulus, das für alle gilt, die sich dem Tisch des Herrn nähern: „Jeder soll sich selbst prüfen; erst dann soll er von dem Brot essen und aus dem Kelch trinken. Denn wer davon ißt und trinkt, ohne zu bedenken, daß es der Leib des Herrn ist, der zieht sich das Gericht zu, indem er ißt und trinkt. (…) Gingen wir mit uns selbst ins Gericht, dann würden wir nicht gerichtet.“ (1 Kor 11, 28–31)

(Emphasis supplied.) You may note that the two major sources in Germanicus’s outline of Cardinal Kasper’s own penitential path are Familiaris consortio no. 84, which has been the subject of much discussion over the last couple of years, and Paul’s dire warning in 1 Corinthians 11. The bit from Familiaris consortio is the standard German misquoting, which makes it sound like John Paul supported a pastoral determination based upon individual circumstances. He did not: that bit is just a prelude to the “However, the Church reaffirms her practice, which is based upon Sacred Scripture, of not admitting to Eucharistic Communion divorced persons who have remarried” portion, which is what was important. No surprise, though. However, we were especially interested to see Paul’s warning quoted in the context of an internal forum solution. That seems to be new.

It certainly looks like the Kasperites are in retreat. After all this strife—after two general assemblies of the Synod, after all the various media skirmishes, after everything—the best they could do was propose an internal-forum solution, tempered with Paul’s warning in 1 Corinthians 11? It hardly seems worth it. Of course, they may know something we don’t know.

Elizabeth Scalia and uncomfortable nihilism

Elizabeth Scalia has upset the apple cart in a big way today, asserting at Aleteia,

We are a church of faith and reason. I believe every word of the Creed. I believe every word articulated from the mouth of Christ Jesus, and I mean to obey the doctrine and dogma that have grown from his teachings and the traditions. I believe marriage is indissoluble and that divorce does not exist in Catholic marriages, but findings of nullity do. But belief does not automatically confer understanding. What I understand today is that we are all deeply in need of medicine, and none of us can defile the purity that is Christ, nor can the Holy Eucharist defile any one of us.

(Emphasis supplied.) Elliot Milco has a witty, devastating rejoinder, based on a children’s catechism.

For our part, we note that it is true: not one us can defile Christ’s purity. However, by that reasoning, all manner of shocking abuses of the Eucharist are No Big Deal. The lunatics and blasphemers who would abuse the living Flesh and Blood of the mighty God can’t defile God’s purity-beyond-purity. So, why should we get worked up if there’s an occasional black mass? Or if some perplexed protestant sticks the Eucharist between the pages of the hymnal, not knowing (1) that he shouldn’t approach the Sacrament and (2) what to do with the Sanctissimum once he has?

The reason, of course, is that we have an innate sense that one shouldn’t do those things to God. He deserves better. He deserves better than we can possibly give him, but we can at least do our utmost. One also has the sense that God is, in fact, hurt by abuses of his Precious Body and Blood, which he gave up on Calvary for us. At bottom, Scalia’s argument confuses injury with insult. We may not be able to diminish God’s purity-beyond-purity, but we are certainly capable of offending him, both in what we do and what we fail to do. And it seems to us that taking the Eucharist unworthily, given the witness of the Apostle, is surely an offense to God.

There is an uncomfortable nihilism at bottom here. If our ability to harm God is the sole meaningful criterion, then there is no meaningful criterion.

Devolution, Moneyball, and the children’s game

One of the most memorable moments in Moneyball—a good, though flawed, sports movie in many respects, sports movie—is when the scout is recruiting young Billy Beane. He says,

We’re all told at some point in time that we can no longer play the children’s game, we just don’t… don’t know when that’s gonna be. Some of us are told at eighteen, some of us are told at forty, but we’re all told.

(Emphasis supplied.) For context, Beane thought about playing college ball for Stanford and then looking at a career in the majors. The scout pooh-poohs the idea, suggesting that if Beane wants to be a big-league ballplayer, then he needs to go be a big-league ballplayer. The scout, in short, is addressing Beane’s desire to have it both ways. That‘s the children’s game.

Elliot Milco has a piece at The Paraphasic that is about the Holy Father’s apparent intent to forge ahead with collegiality and synodality. He argues, in short, that Francis’s plans are un-Catholic and disastrous for the Church. Worse than anything poor Pope Paul let happen. And he suggests that we will all find ourselves in greater sympathy with the SSPX if those plans come to fruition. We have expressed earlier our doubt that those plans will, in fact, come to fruition, not least since Francis has yet to achieve some of the big-idea items of his agenda. (Items, by the way, which will be necessary for the broader plans described: you can’t start devolving power to the peripheries as long as Pastor Bonus remains good law.) In the meantime, Milco urges us all to do as Catherine of Siena did and provide the Holy Father with our thoughts, encouragement, and, if necessary, fraternal correction.

This piece got us thinking, though maybe not how best to write a letter to the Pope outlining our concerns. It got us thinking about Moneyball. (Also, the Mets are playing for the pennant.) The fundamental aspect with the major problems confronting the Church is that they are all variations on the children’s game. The liberals want to have it both ways. Affirm doctrine about marriage, but permit those in objectively sinful situations to approach the living Flesh and Blood of the mighty God. Affirm the unity and universality of the Church, but give episcopal conferences the authority to vary doctrine and practice from region to region. Require petitioners to prove nullity to a moral certainty, but give bishops thirty days in which to sort everything out. Maintain a hierarchy, but let the faithful mark the direction of the Church. But you can’t play the children’s game forever.

Sooner or later, you have to make a choice, though. And it is in making those choices—almost always hard choices—that problems creep in.

What needed to be said

Writing in Crisis, Sean Haylock has a remarkably good piece on Christopher Hitchens. An excerpt:

Hitchens took on matters of profound importance, and he did it with a fierce passion. But when I think of the rhetoric he deployed, and the vehemence with which he deployed it, I can’t help but see him as a demagogue and a charlatan. One of his most oft-repeated quotes is “That which can be asserted without evidence can be dismissed without evidence.” This is, from the perspective of both science and philosophy, a recipe for obscurantism and intellectual irresponsibility, and a disastrous idea for anyone with an interest in truth to take to heart. Its appeal is the same as much of Hitchens’ rhetoric: when invoked it provides the intoxicating pleasure of putting your foot down in an argument. It’s a flashy rhetorical gambit that says, “I need say no more.” Though happy to present himself as a champion of science, Hitchens was clearly ignorant of the philosophy of science and its most important developments in the twentieth century; otherwise, he would not have uttered a remark so redolent of verificationism. Popperians must shudder when they hear that quote.

Hitchens was also an avowed advocate of irony, seeing himself as a participant in the “all-out confrontation between the ironic and the literal mind.” One wonders whether he would have appreciated the irony that a fierce critic of the cult of personality should have become the object of just such a cult. Today he is worshipped (if I said idolized it would be only a minor exaggeration) by multitudes of devotees who fiercely defend him against any criticism. It is not to doubt the sincerity of his unbelief to observe that his refusal to make any concessions to the faithful in the course of what was surely an agonizing and in some ways humiliating death has made him, for some, a kind of atheist martyr. I don’t imagine his death from throat cancer gives pause to those who thrilled (and thrill still) at the sight of him moodily sucking on a cigarette, or swilling whiskey in his palm. He is not the first iconoclast made icon, and he will not be the last epicurean undone by his appetites and yet emulated by the young.

(Emphasis supplied.)

Exit strategies

There is a growing sense that, notwithstanding the concerns expressed by many about the composition of the Synod and its procedural dispositions, that the Kasperite proposal for communion for the divorced and remarried is not achieving lightning success among the Synod fathers. Robert Royal has a lengthy essay at The Catholic Thing about where the Synod is. He notes,

One hears through the grapevine that Archbishop Cupich has made several proposals in his small language group, which have been opposed nearly unanimously. So while the media pays most attention to stories like his and those even farther out, on the fringes of the Synod, the reality is that majorities of the Synod Fathers seem really to be where Catholics have always been on those hot-button issues. And, it’s a reasonable hope, that will be reflected in the final decisions to come from the Synod Fathers this week.

At the beginning of the Synod, it would have been greatly reassuring to know that significant majorities of the Synod Fathers did not favor Communion for the Divorced and Remarried (CDR), let alone proposals about “welcoming” gay couples and those who are cohabiting – the three things the media and “the world” believe make the difference whether this has been a “successful” Synod for Pope Francis. That might even have prevented the media, Catholic and not, from creating a false sense of a Synod in chaos. Synods going back to the early centuries of Christianity have been beset by controversy, sometimes even violence. Many things might yet come out of this synod that will puzzle the faithful on top of the puzzlement many already feel. But the worst has probably been avoided – though no doubt even a tolerable final statement may, in the wrong hands, lead to considerable mischief.

(Emphasis supplied.) Of course, no one really thinks that the matter will be resolved with the Synod vote, one way or the other. Cardinal Kasper didn’t take “no” from St. John Paul, he didn’t take “no” from Cardinal Ratzinger, and there is no reason to think he’ll take “no” from Francis. Assuming, of course, Francis is inclined to say “no.” The Kasperites undoubtedly have their exit strategy marked out. And, while it might involve a strategic retreat from this position, it by no means involves capitulation at any level. The battle will continue! And the Holy Father has very helpfully drawn the battle lines for us. Royal, again:

The place where Coleridge and other Synod Fathers seem to want to turn now is partly to the possibility of local bishops’ conferences having local jurisdiction. (We’ll have to see whether that Plan B surfaces in the Final Document as an end run around the significant majority that wishes to keep the doctrinal clarity on key points where it has been for 2000 years.) But partly – in Coleridge’s case it’s a more personal thing – bishops are still asking: are there ways to “accompany” people in hard situations without really changing doctrine? Are there ways to speak of sexual sins without changing doctrine (or denying they are sins)? It’s worth keeping an eye on how that will play out. “Changes in language” are never merely changes in language.

(Emphasis supplied.) An “end run”! Le mot juste! That is exactly what devolution is for the Kasperites—an end run around the conservative bishops who say nice things about Wojtyla and Ratzinger even now. An end run around Cardinal Sarah, Cardinal Napier, and the other Africans. An end run against Cardinal Müller and the doctrinal watchdogs. Of course, Ross Douthat has argued—convincingly, we think—that devolution will result in Rome assuming even more importance, since someone has to mediate between the Germans, the Africans, and everyone else. But there will be time for that later. What matters in the hic et nunc—our computer just auto-corrected hic to chic, which seems hugely appropriate in this context—is that the Germans get what they want.

However, it seems as though there is a glimmer of hope that the Kasperites might not get what they want. We have commented elsewhere that conservatives on Catholic blogs and on Twitter have spent a lot of time preparing to discredit the result of the Synod. The fix was in all along. The bishops should just walk out in protest. You, undoubtedly, are as familiar with the various lines of argument as we are. But Royal tells us that the liberals, if thwarted, have their lines of argument, too:

But the dramatizers have one thing right: the voices coming out in these last few days seem to be trying to create a narrative according to which the resistance to a more open Church stems from groundless animus at best, something more crudely “conservative” (or sinister) at worst.

(Emphasis supplied.) In other words, if the Synod fails to produce the long-hoped-for goal, the Kasperites will start in about the bishops who simply don’t like the Holy Father and the bishops (read: Africans) who are simply biased against the divorced-and-remarried and men and women struggling with same-sex attraction. Cardinal Kasper’s slip to Edward Pentin last time about the African bishops was but a sneak peek at the furious denunciations of the bishops who stood up for two thousand years of orthodoxy.

Confirmation bias

In our post “Synodality and the end of ultramontanism,” we made the point:

However, we are far from sure that the way to combat this spiritually unhealthy attitude is to start spinning off essentially Roman functions to the regional episcopal councils. That seems like a multiplication of the problem, rather than a reduction. It is unlikely that the newly juridically empowered episcopal conferences will engage in tentative, faintly self-deprecating expressions of their authority. No, it seems like quite the opposite will happen: they will insist on their authority. So, we’ll get, instead a distorted sense of the pope’s power, a distorted sense of the power of a plethora of episcopal conferences. Out of the frying pan, eh?

(Emphasis supplied.) Ross Douthat, on Twitter, has made an important point that we think is closely related:

And unlike Canterbury, Rome will retain power to reimpose uniformity. So Vatican/papal politics will be *more* contested, not less. Every papal conclave, every synod, will have the crazy feel of this month. The center won’t cease to matter; it will matter more.

In other words, since it will be Rome’s job to moderate between the newly empowered episcopal conferences, the inclination and disposition of Rome will be even more important. That is, Douthat suggests that we could get a differently distorted sense of papal power (in addition to whatever distortions creep in through the works of the episcopal conferences).

Not a happy thought.

Laughing places

Elliot Milco at The Paraphasic has a good piece today, called “Joke Theology,” which begins,

When things get especially bad, and seem to be on a downward trajectory, it’s easy to get bogged down in outrage and bitterness.  Outrage and bitterness, unfortunately, tend not to do anyone any good, and they tend to create an attitude of passivity and victimization.  Developing a habit of passive victimization merely tends to perpetuate one’s passivity and victimization, so you can see that when we get bogged down in our outrage and bitterness, it only tends to magnify our problems in the long run.

(Emphasis supplied.) We have commented, elsewhere, about the increasingly frantic, even toxic, vibe in tradition-minded circles, especially on Catholic blogs and on Twitter. Just look at the Synod coverage, which has gone from outrage over the heterodox Relatio post disceptationem last October (the “Forte Intervention,” perhaps) to a sense that the fix is in and that orthodox prelates should abandon the Synod before it reaches its preordained conclusion. In other words, just as Milco says, we have reached a point of passivity and victimization, where the only acceptable option is, as they say, to take your marbles and go home (or to the nearest camera).

He goes on to say,

But one of the best things to do with error is to make a joke of it.  The Most Reverend Archbishop Blase Cupich tells us that conscience is inviolable.  Now whenever someone asks for permission or advice, I joke “I’ll accompany you in whatever path you choose to take.” or “Who am I to judge?”  Someone asks whether the weather is nice.  I joke: “The sun is always shining—in our hearts.”  One of my favorite lines is “We are Church!”  I repeat it frequently, often at random.  Spontaneity adds to its intrinsic silliness.

(Emphasis supplied.) Now we’re talking! The correct response to almost any self-serious, deeply committed idealist who happens to be wrong is usually a joke. Because you’re not going to win an argument with them on the merits. There will always be an exception or a different interpretation of a prooftext in support of their argument. But a joke—so long as it is actually funny—is fundamentally unanswerable. The best they can do is huff “That’s not funny” or “This is no laughing matter.” But, of course, it is.

Kasper and Germanicus’s Thomism

Xavier Rynne II, in his Letters from the Synod column for the Catholic Herald, discourses briefly upon the Germanicus group’s invocation of the Angelic Doctor in its second report:

The German-speaking group’s report then quotes St Thomas Aquinas on the virtue of prudence, as if the “Common Doctor” would agree with the approach just sketched. But if the German circulus would read a little further in Aquinas’s Summa Theologiae, they’d discover this: “Prudence includes knowledge both of universals, and of the singular matters of action to which prudence applies the universal principles” [emphasis added].

St Thomas’s point is that prudence is precisely the virtue that rightly guides the individual to put the universal principle into action in his life. In fact, some might argue that the “law of graduality” being advocated by various Synod fathers veers dangerously close to what Aquinas called the vices of counterfeit prudence: “craftiness,” which prescribes morally illicit means to obtain a desired end, and “inattentiveness,” where one does not listen to (or even rejects) the Divine Law out of a love for creaturely goods, which could include a desire for human honour, or an excessive respect for persons.

Thomas Aquinas also teaches us that some actions are always and everywhere wrong, because they’re incompatible with the life of sanctifying grace. Thus he cites adultery as an example of an act that has “an intrinsic moral deformity, and can never be rightly done”. Which is to say, adultery is always and objectively a mortal sin. And one who is guilty of mortal sin aggravates his guilt if he receives the Eucharist without first repenting. For an unrepentant grave sinner, Aquinas says, receiving the Eucharist is spiritual poison, not spiritual medicine. Like all truly Catholic theologians, Aquinas understands that the sacraments do not work magically: if a person will not repent of grave sin, not even the Sacrament of Penance can confer sanctifying grace, because there is an obstacle to grace in person’s will.

(Emphasis supplied and footnotes omitted.)

We are reminded that Prof. Thomas Heinrich Stark has noted that Cardinal Kasper reads Aquinas through a Kantian-Hegelian lens. Back in July, Edward Pentin ran an interview with Prof. Stark, in which the good professor noted,

 have said several times, “As far as I understand him,” because the problem with this sort of theology is that it is difficult to understand, not because one has to be very intelligent to understand it, but because it is not coherent, in my opinion. And one can only figure it out if one understands the language they use. I mean, it’s not only Kasper; it’s very many people of influence in modern theology. If one reads this language carefully, one can easily see an admixture of imitating [Martin] Heidegger and the influence of Existentialism, some pieces from [Emmanuel] Kant and Hegel, which are read into Thomas Aquinas. They read Thomas through the lens of Hegel and Kant, which simply cannot be done, in my opinion. And they mix up various philosophical positions that really can’t be put together in a coherent, logical way.

The way they attempt to intertwine all of their theories forms a sort of pseudo-dialectic that is not really logical and coherent, and they put it in such a way as to provide an opportunity to get away with novel theories without being under the critical view of the magisterium, because they can always shift to the right and then to the left, as need be.

(Emphasis supplied.)

Synodality and the end of ultramontanism

We have said throughout the Synod process that, regardless of the outcome of the communion-for-the-divorced-and-remarried issue, the Holy Father has already achieved an enormous victory. For the past year, everyone has acted as though the Synod has a say in the matter. That is, if the Synod votes one way or the other, that vote will be dispositive somehow. Of course, that is not the case, juridically speaking. But the response to the Synod has not been to point out that its deliberations and final products are, frankly, just a lot of paper. It has been to treat the Synod like A Big Deal.

This is, apparently, exactly what the Holy Father wanted. At a ceremony marking the fiftieth anniversary of the creation of the Synod, he said,

From the beginning of my ministry as Bishop of Rome I intended to enhance the Synod, which is one of the most precious legacies of the Second Vatican Council. For Blessed Paul VI, the Synod of Bishops was meant to keep alive the image of the Ecumenical Council and to reflect the conciliar spirit and method. The same Pontiff desired that the synodal organism “over time would be greatly improved.” Twenty years later, St. John Paul II would echo those sentiments when he stated that “perhaps this tool can be further improved. Perhaps the collegial pastoral responsibility can find even find a fuller expression in the Synod.” Finally, in 2006, Benedict XVI approved some changes to the Ordo Synodi Episcoporum, especially in light of the provisions of the Code of Canon Law and the Code of Canons of the Eastern Churches, promulgated in meantime.

We must continue on this path. The world in which we live and that we are called to love and serve even with its contradictions, demands from the Church the Church the strengthening of synergies in all areas of her mission. And it is precisely on this way of synodality where we find the pathway that God expects from the Church of the third millennium.

In a certain sense, what the Lord asks of us is already contained in the word “synod.”  Walking together – Laity, Pastors, the Bishop of Rome – is an easy concept to put into words, but not so easy to put into practice. After reiterating that People of God is comprised of all the baptized who are called to “be a spiritual edifice and a holy priesthood,” the Second Vatican Council proclaims that “the whole body of the faithful, anointed as they are by the Holy One, cannot err in matters of belief and manifests this reality in the supernatural sense of faith of the whole people, when ‘from the bishops to the last of the lay faithful’ show thier total agreement in matters of faith and morals.”

(Translation courtesy of Il Sismografo, which reproduces a working translation by Fr. Tom Rosica.) Of course, anyone who read Evangelii gaudium, no. 32, knew that Francis has a vision of a less centralized Church, in which the regional episcopal conferences have far more doctrinal and juridical authority than they currently do. We have said, elsewhere, that the dream appears to be treating the episcopal conferences like regional parliaments, with the Synod up on top of them, like a sort of federal parliament.

The benefits to this scheme are obvious. On one hand, the authority of some of the Roman dicasteries, most notably the stick-in-the-mud Congregation for the Doctrine of the Faith and maybe the Secretariat of State, would be unquestionably diminished by such an arrangement. Any administrative or doctrinal authority devolved out the conferences necessarily comes at their expense. On the other hand, minority positions would be unquestionably strengthened. When you’re pitching to the pope in a spirit of parrhesia, you can advocate for, well, different ideas without worrying about the doctrinal watchdogs coming after you. Don’t believe us? Just point your browser toward any other Catholic blog and scroll through the archives for October 2014 and October 2015.

It seems to us, however, that this proposal ultimately is looking toward a post-ultramontane world. We have our doubts whether the Holy Father will reign long enough to implement the scheme he outlines, given his other priorities. Even important projects with a lot of support take time: Francis has yet to rewrite Pastor Bonus, for example, notwithstanding the fact that Curial reform was a big issue at the Conclave at elected him. So, as we say, we are far from sure that we will see Francis fully implement the ideas he articulated today. Nevertheless, Francis’s pontificate seems to be one long demonstration against the idea that the pope is the focal point of the entire Catholic world. There are particular churches, he reminds us. There are regional (and national) groups of churches. Perhaps these particular churches, these episcopal conferences, should get some authority.

And, to some extent, we are not sure we disagree with the Holy Father. Maybe it is time to look past the ultramontanism prevalent today. Of course, the ultramontanism prevalent today was not what was intended when Pius IX solemnly defined the dogma of papal infallibility. We are not sure, furthermore, that the papal cult of personality was a direct effect of Pastor aeternus. Elliot Milco has pointed out that Pastor aeternus is awfully narrowly tailored in its operative terms. And Father John Hunwicke has noted that it was really Pius XII who started the globetrotting and introduced some of the more sentimental customs associated with the pope. But it is beyond dispute that the combination of the limited dogma of papal infallibility and the papal cult of personality is absolute dynamite. It leads directly and inevitably to the attitude that the pope’s every statement is a perfect, infallible expression of doctrine. This is not so good.

However, we are far from sure that the way to combat this spiritually unhealthy attitude is to start spinning off essentially Roman functions to the regional episcopal councils. That seems like a multiplication of the problem, rather than a reduction. It is unlikely that the newly juridically empowered episcopal conferences will engage in tentative, faintly self-deprecating expressions of their authority. No, it seems like quite the opposite will happen: they will insist on their authority. So, we’ll get, instead a distorted sense of the pope’s power, a distorted sense of the power of a plethora of episcopal conferences. Out of the frying pan, eh?

Forests, trees, and bombshells

It seems like an age ago that Mitis iudex Dominus Iesus, the Holy Father’s motu proprio modifying matrimonial cases in the Latin Church, was the subject of debates about “Catholic divorce.” For our part, we think that in many respects, Mitis iudex is very traditional and seeks to restore aspects of the 1917 Code jettisoned in the 1983 Code. In particular, the 1917 Code emphasized the role of the bishop as ordinary judge of the first instance in his diocese (1917 CIC 1572 § 1), including his right to preside over the tribunal personally (1917 CIC 1578). Furthermore, the restoration of the metropolitan tribunal as default appellate tribunal also reinstates a practice under the 1917 Code (1917 CIC 1594 § 1). But no one has so far been especially interested in the ways in which the Holy Father has restored prior practice. Everyone has been especially interested, however, in the processus brevior—the shorter process conducted by the diocesan bishop personally.

One concern has been that the processus brevior will become the default procedure for matrimonial cases. Francesco Cardinal Coccopalmerio, president of the Pontifical Council for Legislative Texts, the dicastery responsible for providing authentic interpretations of legislation, has apparently sent a letter to a priest advising that the processus brevior may be harder to get into than one first thought. The Catholic Herald reports:

A top Vatican official has clarified the use of fast-track annulments amid disagreement among canon lawyers.

Cardinal Francesco Coccopalmerio, president of the Pontifical Council for Legislative Texts, said that annulments could only be fast-tracked with the explicit consent of both parties.

His clarification, in a letter to a priest in the United States, surfaced as the subject was being contested at a conference of the Canon Law Society of America.

Canon lawyers say the intervention makes clear that the fast-tracking of annulments – introduced in the Pope’s landmark apostolic letter Mitis Iudex – will be rare.

(Emphasis supplied.) In other words, when spouse does not participate in the nullity proceeding the processus brevior is immediately off the table. This is not an insubstantial thing, either, since apparently about half of the nullity cases in the United States and England have an absent spouse.

Canonist Edward Condon, who noted that Cardinal Coccopalmerio’s letter emerged during a meeting of the Canon Law Society of America, adds,

In a letter responding to questions about the correct implementation of the reforms of Mitis Iudex, Cardinal Coccopalmerio, who was a full and formal member of the committee which drafted Mitis Iudex and is the head of the Vatican department charged with issuing authoritative legal interpretations, said the “explicit consent” of the respondent was a “condition sine qua non” for the short form process to be used. He also reaffirmed that the full process is properly termed the “ordinary process”.

(Emphasis supplied.) Condon also gives a little more context: Fr. Francis Morrisey, a Canadian canonist who was not part of the Mitis iudex drafting team but who apparently had been consulted by the team, argued that non-participation by one spouse could give rise to a presumption that he or she consented to the processus brevior. Fr. Morrisey also (it appears from Condon’s report) suggested that the processus brevior could be used as the default process in tribunals. Cardinal Coccopalmerio’s letter apparently knocked the wind out of both proposals.

To our mind, Cardinal Coccopalmerio’s interpretation is a very straightforward interpretation of Mitis iudex canon 1683, 1º, which reads, in Latin,

Ipsi Episcopo dioecesano competit iudicare causas de matrimonii nullitate processu breviore quoties:

 petitio ab utroque coniuge vel ab alterutro, altero consentiente, proponatur;

 recurrant rerum personarumque adiuncta, testimoniis vel instrumentis suffulta, quae accuratiorem disquisitionem aut investigationem non exigant, et nullitatem manifestam reddant.

(Emphasis supplied.) Neither Mitis iudex or the Ratio procedendi that accompanied it gives any indication that consent could be presumed to the processus brevior. Condon notes that, in canon law, consent generally requires an affirmative act of the will. (In American civil law, about which we know a little, we note, not showing up to court generally results in default judgments. That is not possible in nullity cases.) And now it appears that Cardinal Coccopalmerio has confirmed the literal text.

But presumably when both spouses are present and consent to the processus brevior, the case will proceed on the processus brevior. (But we wonder to what extent a bishop could cite MI canon 1683, 2º to refuse to admit a case to the processus brevior.) And, when we first read Mitis iudex, our first thought was not that the processus brevior would be leveraged to create “Catholic divorce,” but that it would it even easier for spouses to collude to obtain a constat de nullitate. (Collusion seems possible when a Catholic couple splits up, both spouses meet new folks, and both spouses want to get remarried in the Church.) Obviously, if parties are working together for the same end—civil lawyers might call such a thing a “friendly suit”—it is hard for a tribunal to thwart their ambitions. In the ordinary process, however, an instructing judge has more time to get to the bottom of things and the tribunal, often made up of a diocese’s serious canonists, can consider the evidence much more thoroughly. But given the time pressures and the fact that many bishops are not canonists, we wonder whether colluding spouses might be able to obtain a constat much more easily.

We note, too, that the Synod has taken up most of everyone’s attention lately. We hope that folks will not forget that our bishops need their subjects’ help in implementing Mitis iudex. Canon 212 § 3 applies to all sorts of things, not merely to Synod-related things.