Posted on 07/03/2015 4:54:47 AM PDT by markomalley
From Ed Peters, distinguished canonist, on Catholic SCOTUS Justices (Kennedy, Sotomayor) who ruled for Obergefell v. Hodges:
Obergefell and canonical criminal law
Dcn Greg Kandra calls attention to a question floating around out there, namely, [QUAERITUR…]should Catholic justices who voted to impose “same-sex marriage” on America be excommunicated? We can deal with most of that question pretty quickly.
Excommunication can impact any Catholic (there are no exemptions for those in high civil office), but it can be incurred only for twelve specifically delineated crimes (CLSA Comm. 932, not counting a couple of excommunicable crimes listed outside the Code). Now, voting to impose “same-sex marriage” on a nation (or, taken more broadly, gravely damaging the common good) is not among the canonical crimes punished by excommunication, and even Canon 1399 (sometimes derided, if unfairly, as a “catch-‘em-all” penal norm) would not suffice for so-called automatic excommunication (a canonical institution that presents its own legal complications, but let that pass). In short, I see no excommunication readily imposable on Catholic justices who voted to impose “same-sex marriage” on America.
But, [But…] two points remain for Catholics to consider.
1. For reasons outlined here (chiefly that—aside from the compelling natural law demonstration that marriage is possible only between a man and woman, a demonstration that should be understandable as a matter of human reason—the Church teaches with infallible certainty that marriage is possible only between a man and woman) I think that some Catholic justices have, indeed, manifested their opposition to Church doctrine (Canons 750 § 2 and 1371, 1°), doing so, moreover, “in published writing” and in a way that “gravely injures good morals” (Canon 1369). The canonical sanctions referenced for such offenses are, however, ‘indeterminate’ (justa poena) and, I would hold, do not extend to excommunication. To be sure, a number of very important procedural steps would need to be observed before moving on these norms (and the track record of thinking-through, let alone enforcing, penal canon law has not been strong in our day) but, [But…] at the very least, the fact that such an argument can even be made suggests a basis for some kind of pastoral intervention toward those Catholic justices who hold that “law can recognize as marriage whatever sexual attachments and living arrangements it wishes”, let alone toward those who voted to impose “same-sex marriage” on America.
2. If, as seems likely, Church teaching that marriage can exist only between a man and woman is taught not just infallibly (as a ‘secondary object’ of infallibility) but as being divinely revealed (making it a ‘primary object’ of infallibility), then, a Catholic’s obstinate denial of such a truth is canonically “heresy” (Canon 751) punishable by excommunication (Canon 1364 § 1), an automatic one at that—and is not just ‘opposition to Church teaching’ punishable by a ‘just penalty’. I leave it to theologians to hammer out whether Church teaching on the male-female foundation of marriage is simply, but infallibly, Church doctrine (I am sure it is at least that) or whether it is part of divine revelation (I am strongly inclined to say that it is), but either way, prominent Catholics asserting that marriage is whatever the State wants to make it, is a grave ecclesiastical problem.
Grave Ecclesiastical Problem™.
Yes, I would say so.
Can. 1399 In addition to the cases established here or in other laws, the external violation of a divine or canonical law can be punished by a just penalty only when the special gravity of the violation demands punishment and there is an urgent need to prevent or repair scandals.
Can. 750 §1. A person must believe with divine and Catholic faith all those things contained in the word of God, written or handed on, that is, in the one deposit of faith entrusted to the Church, and at the same time proposed as divinely revealed either by the solemn magisterium of the Church or by its ordinary and universal magisterium which is manifested by the common adherence of the Christian faithful under the leadership of the sacred magisterium; therefore all are bound to avoid any doctrines whatsoever contrary to them.
§2. Each and every thing which is proposed definitively by the magisterium of the Church concerning the doctrine of faith and morals, that is, each and every thing which is required to safeguard reverently and to expound faithfully the same deposit of faith, is also to be firm-ly embraced and retained; therefore, one who rejects those propositions which are to be held definitively is opposed to the doctrine of the Catholic Church.Can. 1371 The following are to be punished with a just penalty:
1/ in addition to the case mentioned in ⇒ can. 1364, §1, a person who teaches a doctrine condemned by the Roman Pontiff or an ecumenical council or who obstinately rejects the doctrine mentioned in can. 750, §2 or in can. 752 and who does not retract after having been admonished by the Apostolic See or an ordinary;
2/ a person who otherwise does not obey a legitimate precept or prohibition of the Apostolic See, an ordinary, or a superior and who persists in disobedience after a warning.
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.
Can. 1364 §1. Without prejudice to the prescript of can. 194, §1, n. 2, an apostate from the faith, a heretic, or a schismatic incurs a latae sententiae excommunication; in addition, a cleric can be punished with the penalties mentioned in can. 1336, §1, nn. 1, 2, and 3.
§2. If contumacy of long duration or the gravity of scandal demands it, other penalties can be added, including dismissal from the clerical state.
Now if excommunication doesn't apply, I'd imagine that Canon 915 would apply in the case of Kennedy:
Can. 915 Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion.
With his rants pertaining to both Windsor and Obergefell, I would think that this would qualify as "obstinate perseverance in manifest grave sin" in the case of Kennedy. In the case of Sotomayor, well, she's a self-identified "former Catholic" who goes to church for family occasionso only, so it doesn't really matter too much in her case.
The canon seems to indicate that not only “COULD” he be that he “SHOULD” be.
How often are people excommunicated?
One can only conclude that the Church is complicit in the destruction of US religious principles if it doesn’t excommunicate judges who support gay marriage and/or abortion.
The church hierarchy has been notoriously loath to use excommunication against heretical politicians who are causing injury to the Church. Cowardice? Reluctance to lose big liberal donors? All of the above?
Stakes. Kerosene.
Pelosi is the one who really ought to be excommunicated, because she runs around trying to redefine Catholicism to be identical to her brand of liberalism. If she's going to pretend to be a theologian or catechist, it's entirely appropriate to treat her like a heretical one.
[How often are people excommunicated?]
They will ultimately be held accountable.
They are not in the Supreme Court to uphold the canons of the Catholic Church. They are there to uphold the tenets of the the Constitution (the two are compatible)
There will be hell to pay.
Read Thomas’ dissent
Can 1364 §1 says: Without prejudice to the prescript of can. 194, §1, n. 2, an apostate from the faith, a heretic, or a schismatic incurs a latae sententiae excommunication
Latae Sententiae means that it is automatic: in other words, as soon as he became a heretic, he was excommunicated -- no trial is needed.
But there are times where a bishop will make a declaration of excommunication -- confirming that something that happened automatically has, in fact, happened. For example, when Bishop Paprocki made a declaration of excommunication for Mary F. Keldermans (for participating in a "woman ordination"). But such a thing is the exception rather than the rule.
For an answer, please refer to the passage from St Catherine of Siena (How injustice reigns in the above-mentioned wicked ministers ; and that particularly in that they do not correct their subjects.)that I provided a few days ago in this post.
Alas, that’s exactly on point.
Don’t forget Sotomayor!
The Catholic Church has so many canons and catechisms a person might think it is impossible to be a good Catholic.
But then, confession and some “Hail Marys” or high political office seems to be able to fix that.
From another thread:The Empire changed all that by concentrating the power in one individual. As the individual went, so went Rome.
Abortion is the main excommunication issue. It has been crying out for action for decades.
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