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In the past several years, leaders of the Roman Catholic Church abroad — in Mexico, Peru, and Canada — have begun refusing or threatening to refuse Communion to Catholic politicians who have not taken a public position against abortion. In November 2003, Raymond Burke, a bishop in Wisconsin, brought this initiative to the United States. Burke issued a formal notification to public officials in his diocese. He declared that, in accordance with Canon 915, those who have not taken a public position against abortion “are not to be admitted to Holy Communion, should they present themselves, until such time as they publicly renounce their support” of abortion laws. Several other American bishops have followed suit. Although the bishops’ warnings apply broadly, special focus has centered on Sen. John Kerry, the Democrats’ presumptive nominee for president. Contrary to the Catholic Church’s unambiguous stand against abortion, Kerry has repeatedly voted for abortion rights. So in the eyes of the church, he is clearly wrong. But are the bishops right? Could Kerry be denied Communion under Canon 915 because of his unabashed support for Roe v. Wade? Probably not. Under the current terms of canon law, any punishment that Kerry may be due should be imposed not in this world, but in the next. WHO SPEAKS FOR GOD? It helps to begin with the two main branches of Christianity. Ever since Martin Luther nailed his complaints to the door, the underlying source of religious legitimacy in the Protestant tradition has been the encounter of the individual with the Divine, which, generally speaking, means the individual encounter with the Bible. God reveals Himself to the individual through Scripture; all else is commentary. Therefore, in Protestantism, there exists the conceptual possibility of individual deviation from clerical teaching, because the ultimate authority of such teaching remains the experience of the individual. The Catholic conception of religious legitimacy is very different. In the Catholic tradition, the source of legitimacy is the church itself as a teaching body. The Catholic encounters God not in private reading of the Word, but in the meeting of the church community. This meeting takes many forms: the Bible, of course, but also the teachings of the pope and the episcopate, the liturgy, the inspired writings of the church fathers, church custom, etc. As the late Catholic scholar and priest Gustave Weigel put it, “[t]he Book is not the proof but only a divine expression in human language of the Church’s teaching. Over the Book stands the Church, while according to the Reform conception, over the Church stands the Book.” At a high level of generality then, the Protestant tradition provides a freedom of individual deviation from clerical teaching that the Catholic tradition does not. To remain in a state of grace and good standing in the communion of the faithful, the Catholic simply cannot ignore the clear dictates of his church and act in accordance with his own conscience. In other words, the Catholic Church can tell its faithful what to do. Recently, the church did indeed issue instructions to Catholic politicians. In November 2002, the Vatican promulgated a doctrinal note from the Offices of the Congregation for the Doctrine of the Faith, written by Cardinal Joseph Ratzinger and Archbishop Emeritus Tarcisio Bertone. The note is directed “to the Bishops of the Catholic Church and, in a particular way, to Catholic politicians and all lay members of the faithful called to participate in the political life of democratic societies.” The note acknowledges that lay Catholics must conform to the political systems in which they live. The Catholic Church has great respect for the rule of law, and so does not ask Catholic members of Congress or Catholic judges to violate the Supreme Court’s constitutional commands on abortion or anything else. It does assert that Catholics have a duty to at least limit the harm done by laws enacted pursuant to Roe v. Wade. But if the politicians don’t, can the church really do anything about it? Is there any remedy or punishment available in the temporal realm? To answer this question, we turn to the procedures by which the Catholic Church must dispense such punishment, which are found — exclusively — in the Code of Canon Law. STRICTLY BY THE LAW Canon 1311 grants the church the power to punish Catholics for violation of its precepts. However, the church is constrained in its exercise of the penal function in various ways. The most important of these is found in Canon 18, which provides that penal statutes must be strictly interpreted. The current code has a specific canon imposing a penalty for abortion. Canon 1398 holds that “a person who procures a completed abortion incurs a latae sententiae excommunication.” (A latae sententiae penalty is imposed automatically by the act itself — as opposed to a ferendae sententiae penalty, which requires affirmative ecclesiastical intervention.) However, because canons imposing penalties must be strictly construed, Canon 1398 applies only to those directly participating in the abortion procedure. Though the church also views administrative or legislative support or facilitation of abortion as immoral, Canon 1398 does not apply to those engaging in that behavior. Burke, who is now archbishop of St. Louis, invoked Canon 915, which holds that Catholics “obstinately persevering in manifest grave sin are not to be admitted to Holy Communion.” He and other bishops have apparently assumed that a Catholic politician failing to take a public position against abortion commits a sin that is grave and manifest, and that he does it obstinately. But that interpretation is actually quite questionable. In fact, I suggest that it is wrong. GRAVE AND MANIFEST All members of the Catholic faithful have the right to receive all the sacraments (Canon 213), and in particular the Eucharist (Canon 912). In order to deny the Eucharist to a Catholic under Canon 915, the minister of Communion must be certain that the individual has committed an objectively grave sin, well-known to the community of the faithful, in which he persists after having been warned. With respect to Kerry, it’s unclear whether any of these conditions has been met. To the best of the public’s knowledge, he has not himself been sufficiently involved in any abortion to fall within the bounds of Canon 1398. He has, however, voted for a number of pro-abortion laws and publicly supported abortion rights. In light of the recent doctrinal note, such actions may be sufficient to constitute “grave sin.” Assuming that they do, given all the publicity and press attention focused on the senator’s position, the sin would almost certainly be “manifest.” But even assuming that, because the bishops in question reportedly have not spoken to Kerry, it remains unclear whether he has been sufficiently warned so as to “obstinately persist” in this sin. Moreover, even if Sen. Kerry has committed an objectively grave and manifest sin in which he has obstinately persisted, two problems still remain. First, because Canon 915 is directed to “individual ministers of communion” and requires them to conform their application of it to the needs and situation of their own community, the canon should not be applied by the church hierarchy to deny Communion to a given person in multiple communities. Deprivation of the sacraments is a penalty, and Canon 221 guarantees the faithful the right not to be punished except in accordance with the “norm of law.” Second, Holy Communion can be withheld only to prevent a “grave” scandal. According to a recent Commentary on the Code of Canon Law, the frame of reference for such scandal is not the bishops, but the community of the faithful. If the American faithful find it more scandalous to deprive public officials of Communion than to have Catholic public officials who are less than fervently pro-life — as seems quite likely given the current cultural landscape — then Communion should not be denied on the basis of Canon 915. IN THE NEXT LIFE None of this lets Catholic legislative officials off the hook, eternally speaking. If they choose to deviate from the clear teaching of the church, they must recognize that they do so at the peril of their immortal souls. Moreover, such legislators — and Sen. Kerry in particular — should be careful lest they run afoul of Canon 227. Kerry does not follow a number of the church’s teachings and yet describes himself as a “believing and practicing Catholic.” If he decides to argue that he really is a good, authentic Catholic, and that good, authentic Catholics can take the political stances he does, including supporting abortion rights, he may be found to violate Canon 227′s prohibition against advancing one’s own erroneous opinions as the opinions of the greater church. Catholic politicians wishing to take a public stance at odds with their church should also recognize that, despite strong arguments to the contrary, sanctions may yet be imposed against them. As noted above, some Catholic bishops — perhaps perceiving a “crisis” in the church — have shown themselves willing to stretch and bend canon law to impose punishments on Catholic politicians who are deemed “out of line.” Lastly, while vows are forever, canon law can change, and continued flouting of church teachings by prominent public figures just might provoke such an action. For now, the U.S. Conference of Catholic Bishops has voted overwhelmingly to leave the question of denial of sacraments up to the local bishops. But in the wake of the 2002 doctrinal note, a task force was appointed by the church to examine guidelines for American bishops on relations with Catholic politicians. That task force may develop a new mechanism for dealing with such politicians, create a new canon, or propagate a new understanding of their obligations. Its report is not due until after the November elections. In the meantime, Catholic politicians who verbally flout the church’s teaching on abortion are probably free from any punishment — in this world. Thomas D. Nolan III is a law student at the University of Virginia School of Law.

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