HAS CANON LAW BECOME A DEAD LETTER?
The Sinner’s Veto

November 2017By Jake Neu

Jake Neu is an attorney at Bradley Arant Boult Cummings, LLP, in Nashville, Tennessee.

In Chicago during the tumultuous year of 1968, a group of about 40 activists gathered to protest the slow pace of public-school integration in the city. The protestors, including comedian-turned-mayoral-candidate Dick Gregory, believed that school superintendent Ben Willis was dragging his feet, and that powerful mayor Richard Daley could take steps to make Willis do the job quicker. Carrying signs, chanting, and singing songs, the group marched from Grant Park to City Hall and then to Mayor Daley’s home some five miles away in a quiet residential neighborhood.

The protestors arrived at Daley’s house about 8 PM and continued marching, singing, and chanting until 9:30. As they did, a crowd of hecklers gathered to shout them down. Some began to throw rocks and eggs. The marchers refused to respond with similarly aggressive activity and continued their constitutionally protected marching and singing. The police who escorted the protest had acted admirably to protect the marchers throughout the event, but now they feared a riot. The lieutenant in command asked Gregory and his marchers to leave. When they refused, the police arrested the marchers — not the hecklers. Gregory was later convicted under Chicago’s disorderly conduct ordinance.

The Supreme Court unanimously overturned the conviction in Gregory v. City of Chicago, a decision best known for Justice Hugo Black’s concurring opinion in which he attacked this kind of “heckler’s veto.” Black recognized that a city could issue prospective ordinances to regulate the time, manner, and place of protests, including outlawing marches in residential neighborhoods after dark. But Chicago did not have such an ordinance. The disorderly conduct ordinance used to convict the marchers was so broad and deputized the police with such power that, in Black’s words, it made the city’s government “one of men, rather than of laws.” The marchers were arrested and convicted solely because they had disobeyed the police command to leave in the face of aggressive and unlawful action by hecklers, and not due to any act they themselves had committed. This did not pass constitutional muster.

Although Black himself did not coin the phrase, the idea that the government cannot enforce a “heckler’s veto” has gained significant force in First Amendment law. In the strict legal sense, it is not the heckler who vetoes a person’s right to free speech by shouting him down, though the term is often used today to mean that; rather, it is the government that vetoes free speech by silencing the speaker out of concern for the safety of others, which might be compromised by the heckler’s disruptions. Since the 1960s courts have held time and again that while the government can impose reasonable restrictions on the time, place, and manner of political speech in the name of public safety, it cannot prohibit that speech merely because it is likely to cause offense to others who might then react in a way that causes harm.

In short, moral agency and state punishment apply to each actor separately. The speaker is responsible for his speech, which is constitutionally protected unless it veers into direct incitement of violence. The heckler is responsible for his own reaction, which can be just as vocally provoking, but which cannot become physically abusive or disorderly either. But when the government enforces the heckler’s veto to prevent the speaker from speaking, it legitimizes the abusive conduct of the heckler.

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The idea that we are ultimately responsible for our own moral actions, no matter the context, is central to Jewish and Christian morality as well. After conquering the Holy Land, Joshua admonished the Israelites to decide whether to follow God’s law, and he clearly stated his own allegiance: “If it seem evil unto you to serve the Lord, choose you this day whom ye will serve…but as for me and my house, we will serve the Lord” (24:15). St. Paul reminded the Romans that “every one of us shall give account of himself to God” (14:12). St. Peter told his readers that those who think it “strange” that Christians do not “run with them to the same excess of riot…shall give account to Him that is ready to judge the quick and the dead.” Christians are to remember that “the end of all things is at hand; be ye therefore sober, and watch unto prayer” (1 Pet. 4:4-7).

Numerous saints also exemplify a commitment to the defense of the faith, despite the potential for harm to themselves or others. Think of St. Peter himself. He planned to flee persecution in Rome — perhaps because he might better serve the Church alive than dead. Then he met Christ on the Appian Way and returned to his martyrdom. Or St. Athanasius, who was exiled five times from his diocese because he would not compromise with the Arians. His followers would suffer under Arian rule, but Athanasius was responsible for his own decision to adhere to the faith, not for any adversity that followed. Those who agreed with him were similarly responsible for their own moral choices.

Or consider St. Thomas More, who was beheaded for not explicitly acquiescing to King Henry VIII’s adulterous marriage. His fellows tried to convince him to recite the schismatic oath, perhaps to continue the fight further. In Robert Bolt’s theatrical retelling, A Man for All Seasons, the Duke of Norfolk implores More to “do as I did and come with us, for fellowship.” More responds, “And when we die, and you are sent to Heaven for doing your conscience and I am sent to Hell for not doing mine, will you come with me, for fellowship?” In the words of the play’s treacherous Cardinal Wolsey, if More “could only see facts flat-on, without that horrible moral squint,” he might have saved his head — but he also would have lost his soul. Yet Christians are called to see with, and then act upon, “that horrible moral squint.” Parents remind their children that they must do what is right, even if it is not easy or popular. Christians may do a good many things that prudence could counsel when confronting a particular evil, but they must not actively choose a sinful response.

Despite the traditional Christian emphasis on personal moral responsibility, it is fashionable today to use extreme and rare moral dilemmas to call into question what the truly “moral” or “merciful” action would be. The recent movie Silence, for example, presents two Jesuits who apostatize by renouncing Christ in order to spare Japanese Christians from torture. The movie poses the question of whether Jesuit priest Sebastião Rodrigues’s renunciation was, in fact, a supremely Christian act of love. Whatever the viewer might think, the response of the early Christian martyrs would have been a clear no. Standing before God and man, a Christian must refuse to renounce the faith, even if it means another person will, as a result, kill him or someone else.

Of course, we must not write off the salvation of those who do not pass that awful test. But we must call such apostasy what it is — a sin, one that may be repented of, yes, but a sin nonetheless. The Church cannot “journey with” or “try to understand” that sinful act. She must denounce it and call the sinner to repentance. To accept apostasy as a morally good act, even in the circumstances portrayed in Silence, is to give a third party authority over what makes an act good or evil.

Following Fr. Rodrigues’s lead results not in a “heckler’s veto” but a “sinner’s veto.” Like the government, the Church believes that each person is responsible for his own moral choices. The Great Commandment of Christ is to “love the Lord your God with all your heart, and all your soul, and all your mind, and all your strength” (Mt. 22:37). Like the U.S. Constitution’s First Amendment, the Great Commandment cannot be nullified simply because another person creates a morally difficult choice. That person is an independent actor, whom the Church must admonish. To accept Fr. Rodrigues’s act as morally good merely justifies his sin because his torturer sinned first. By such logic, God should have kicked Eve out of Eden but let Adam hang around because she placed him in an “impossible” situation when she handed him the forbidden fruit.

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No one expects the Catholic Church to adopt the sinner’s veto when it comes to apostasy. But consider instead the position of those who, following Amoris Laetitia, would permit couples in “irregular situations” to receive Holy Communion. Francesco Cardinal Coccopalmerio, president of the Pontifical Council for Legislative Texts, recently described a hypothetical couple who put the sinner’s veto in play. He asks us to consider a woman civilly married to a previously married-and-divorced man. They have three children and have been together for ten years. The woman now desires to repent, embrace the Church’s teaching on marriage and remarriage, and “live as brother and sister.” In response, the husband says he will kill himself if she does this. Coccopalmerio asserts that it would be “impossible” for the woman in this situation to live a Christian life according to Catholic doctrine. Therefore, simply because she had expressed the intent to repent, but was unable to carry it out, she should be admitted to Holy Communion.

For a supposedly nuanced scenario, Cardinal Coccopalmerio’s hypothetical lacks the nuance needed for it to make sense. Ignore for now the near impossibility of this “impossible situation.” (It involves a man who is somehow both in a loving relationship and emotionally abusive to the point of threatening suicide if the woman doesn’t have sex with him. Loved ones of alcoholics are counseled not to enable the drunkard’s actions because he threatens harm to himself. This hypothetical couple seems no different.) Ignore also his implication that either the man or the woman is entitled to sex with the other. They are not, because they are not sacramentally married. The scenario also leaves out many real-world facts that might make it less morally ambiguous. For example, Coccopalmerio presents the situation statically, as if neither person can do anything to change the situation, and he merely accepts the explicit statement of intent — on the part of both parties. But the wife could seek psychological treatment for her husband, ask him to talk to a priest or attend couple’s counseling. Yet Coccopalmerio doesn’t consider whether she might do those things; he is content with her abstract claim that she intends to live a virtuous life. In a recent interview, Coccopalmerio asserted that a priest “can tell if [the penitent] is misleading you,” but his scenario does not even consider how to test intent. It merely accepts the stated desire as sufficient on its face. This has never been the Catholic standard for Christian holiness, or for receiving Communion. L’enfer est plein de bonnes volontés ou désirs, St. Bernard of Clairvaux once wrote — “Hell is full of good wishes and desires.”

Setting aside its many flaws and taking the scenario at face value, Cardinal Coccopalmerio is wrong on the propriety of his moral conclusion. He has reversed the moral calculus by asserting that one cannot “stop the whole thing if that harms people.” This gives the husband’s threats veto power over the woman’s desire for holiness. The woman does not commit harm by acting virtuously; it is the husband, by his independent and immoral response to that virtuous act, who causes harm. The Church should encourage the virtuous wife to act on her good intention and counsel the husband to a better life or at least not to kill himself. But if the husband does commit suicide, the Church cannot see that as the fault of the wife. Coccopalmerio implicitly places the blame on the person least culpable for it. By so doing, he enforces the sinning husband’s veto and coerces the woman to act against her own conscience’s call to virtue.

Bad facts make for bad law, as lawyers often say. When a person seems to do right but technically violates the law, judges and juries instinctively try to stretch the law, sometimes to the breaking point, to let him off lightly. Cardinal Coccopalmerio’s hypothetical is an extreme example of bad facts, but it is no different from the casuistry of like-minded interpreters of Amoris Laetitia. Walter Cardinal Kasper, for example, claimed that Amoris Laetitia does not give “general permission” to divorced-and-remarried couples to receive Communion but permits “a spiritual and pastoral discernment judging case by case.”

The Maltese bishops’ implementation guidelines for Amoris Laetitia go even further, subordinating the priest’s independent and objective discernment on behalf of the Church to that of the “remarried” couple. The guidelines state that if “a separated or divorced person who is living in a new relationship manages, with an informed and enlightened conscience, to acknowledge and believe that he or she are [sic] at peace with God, he or she cannot be precluded from participating in the sacraments of Reconciliation and the Eucharist.” The Maltese bishops say many words about the priest’s accompanying the person on this road to obtaining an “enlightened conscience,” but in the end, the person’s subjective discernment is what prevails. Merely intending to feel “at peace” with one’s situation, without moving toward holiness, is apparently sufficient. The Maltese bishops in 2017 make the same mistake as the Chicago police in 1968: They substitute an emotional response to facts on the ground for the principles and doctrines that animate the law.

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Let us return to first principles. Christ taught that anyone who leaves a spouse and marries another commits adultery. This does not mean setting aside compassion, but, as we see elsewhere, it directs us to support with compassion those who seek to amend their lives. Christ tells the adulterous woman whom He saved from stoning that He does not condemn her, but He also tells her to sin no more. And when He encounters the woman at the well — a passage expressly cited in Amoris Laetitia — He gradually leads the woman to a greater understanding of Scripture, in part by admonishing her attempt to conceal her five marriages. Finally, St. Paul told the Corinthians that whoever eats the Body of Christ while aware of grave sin does so unworthily.

With the above in mind, it is clear that canon 915 applies precisely to these “irregular situations.” Canon 915 requires a priest to withhold Communion from those who persist in open and grave sin. For couples not sacramentally married, the issue of receiving Communion is not even raised until at least one person in the union desires to begin conforming his or her life to the Church’s teaching. Otherwise, they both persist in grave sin. Recognizing this nascent conversion to holiness renders irrelevant emotional sympathy for virtuous wives and their hypothetically suicidal husbands. Presented with the wife’s good intention, the Church must accompany her on the path to lived holiness, not make excuses based on her husband’s immoral response.

So yes, the virtuous wife should be entitled to the sacraments of Penance and the Eucharist — once she ceases intimacy with her husband. Does that mean there won’t possibly be occasional lapses in moments of passion? Of course not. But it does mean she should tell her husband that she intends to live according to Catholic teaching. And it means she needs to take some action to begin that process. The woman and a counseling priest can prudently determine how to initiate this move to holiness, even if it is messy and imperfect. And once she begins to abstain from sin, converting her good intentions into virtuous living, the priest can do what has long been standard practice for irregular situations — give the woman Communion in private, thereby mitigating any potential scandal resulting from public reception. But the priest should never counsel the wife simply to accept the sinful situation as “impossible” to resolve. That puts the Church’s moral force and authority on the side of the sinner’s veto.

In short, bishops who support giving Communion to certain irregular couples put sympathetic facts ahead of canon law and the doctrine that informs that law. There may be some valid cases, but those require wrestling with real biblical principles and doctrines and a reasoned determination of whether canon law should apply. Cardinal Coccopalmerio and the Maltese bishops fail to provide that analysis in any potential scenario. (Neither, it must be said, does Amoris Laetitia.) In this sense, they are guilty of the same problem as Chicago’s disorderly conduct law prior to Gregory: They apply a countervailing exception too broadly and without any standard in a manner that nullifies a primary command of the lawgiver. Justice Black feared that granting such broad, arbitrary discretion to the police had led to a government of men rather than laws. One might similarly say that the Maltese bishops create a sacramental discipline based on a person’s subjective “discernment” rather than canon law.

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If the concerns driving Amoris Laetitia are really as exceptional as Cardinal Coccopalmerio’s hypothetical suggests, then it should be possible to derive narrow and particular exceptions, with reasoned guidance on how to apply them. Yet it is strange that such careful and deliberate considerations would require the effort of hundreds of bishops and two synods on marriage and family life. The lack of concrete examples in Amoris Laetitia suggests that they are too numerous to consider, and therefore exceptions will be granted much more freely than Coccopalmerio or the Maltese bishops admit. Again, priests have always addressed irregular situations, often in private and through simple and sometimes heroic virtue from the penitents. If this was all Pope Francis intended to say, he could have done so much less ambiguously. Vague and overbroad exceptions, as Justice Black well knew, become arbitrary tools in the hands of those who enforce them and often swallow up the primary law.

Justice Black’s opinion also provides a way out of this conundrum: Write more specific exceptions, expressed in a rationally applicable way. He points out that reasonable restrictions on speech are important for a harmonious society, but the government must always account for a person’s right to speak freely. Where constitutional rights are at stake, using too broad an exception, like using too big a hammer, squashes those rights that society has recognized as most important.

The bishops who ignore general principles to focus on particular exceptions treat canon law as arbitrary rules to trap the unwary. This is not the case. Canon law reflects the Church’s deliberate wisdom for faithfully carrying out the teachings of her Founder in a way that protects priests, laymen, and the community as a whole. The foundational law of a community, whether expressed in a written Constitution or the gathered wisdom distilled in a code or a tradition, reflects that community’s deliberate judgment on its most important values. When values come into conflict, the foundational law tells us which one takes priority. When speech and safety conflict, the U.S. Constitution declares free speech so valuable that the government must take care to protect a person’s right to express himself freely, even in the face of danger. Similarly, canon 915 expresses the considered judgment that people who commit public sins should not be given Communion lest they scandalize others and bring judgment upon themselves, in the words of St. Paul. This canon expresses the moral theology of the Church in a way that instructs everyone involved how to respond to the relevant moral and sacramental values in conflict — the expression of the original foundation of the law, the protection of sinners from further sin, and the need to access the grace of the sacraments. When one divorces those canons from the doctrines that inform them — as the Maltese bishops have done — they become arbitrarily applied, irrespective of their rationales for existing. The general rule sets a standard based on those rationales, and exceptions should be clearly intelligible. A broad and ambiguous exception inevitably leads to either the creation of a double standard or the erosion of the primary standard, both of which Amoris Laetitia expressly warns against.

When a government enforces the heckler’s veto by forcing a speaker to be silent or face arrest, it tells him that his constitutional right to free speech can be nullified at any time by the hostile reactions of others. When the Church enforces the sinner’s veto by counseling good people not to act on their good intentions, she tells them that the biblical injunctions to repent and act on a well-formed conscience are nullified by the sinful reactions of others. Being good citizens or faithful Christians means defending the rights and doctrines most central to our communities. And it means standing with those who act on those rights and doctrines, not with those who turn them into a dead letter.



DOSSIER: Marriage, Divorce, Annulments & the Assaults on Marriage

DOSSIER: Pope Francis





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