If They'd Made Me Pope: Three Cool Reforms to Canon Law

Latae sententiae considered harmful

The Council of Trent, by Pasquale Cati da Iesi, fresco in Sta. Maria in Trastevere, Rome (1588)

Several years ago, I visited a Dominican friend of mine who was being ordained to the transitional diaconate in Washington, D.C.. When I jokingly mentioned that either one of us could be elected pope, he laughed right in my face and said I would be a terrible pope. (He added that so would he.) My friend was right, of course, but it still got me thinking harder: what makes a good pope? What should a pope actually do?

Now we have a new pope, so, on the off chance Pope Leo XIV is browsing De Civ looking for ideas, this ongoing series says what I’d do If They’d Made Me Pope.

---

Over the past several installments, I have proposed lots of changes in the Church and in the papacy, some of them fairly radical.

Not this week. The Pope, as supreme legislator, has plenary authority to reform canon law, the body of law which governs Catholics and the Catholic Church. There are parts of canon law that I would reform. They aren’t catastrophes. They aren’t corrupting the Church’s capacity to carry out her mission. They aren’t making children vulnerable to sexual abuse.

They’re just kinda dumb.

---

End “Automatic” Excommunication

Under the 1983 Code of Canon Law, some crimes bear penalties “latae sententiae,” that is, “with judgment [already] brought.” These crimes include, among other things:

• Apostasy, heresy, or schism

• Physical force against a bishop

• Divulging anything learned from a penitent in confession

• Stealing the Eucharist for sacrilege

• Absolving an accomplice in adultery (for example, if a priest has sex with a married woman and then hears her confession for adultery)

Anyone who does these things¹ is, according to the Code, immediately and automatically excommunicated without any further action by a bishop.

This does nobody any good whatsoever.

These things are all already mortal sins.² The penalty for mortal sin is eternal damnation. This divine penalty is imposed by God Almighty.³ This is the worst thing that can happen to a person. There is no greater penalty.

Excommunication is not a divine penalty at all, but merely an ecclesiastical penalty. Excommunication bars the excommunicant from receiving the sacraments, indulgences, burial, intercessions, and other spiritual goods that are within the gift of the earthly Church. It deprives them of all rights and privileges within the visible Church, including access to certain spiritual benefits and graces.⁴ This is awful, but it is also somewhat redundant: someone who has committed a mortal sin is already cut off from the sacraments (except confession), and his access to the graces of the Church is, at least, considerably reduced.⁵

The chief purpose of excommunication, then, is not to add a worse penalty on top of the penalty for mortal sin (which is impossible), but to make the penalty for extremely serious sin real and tangible in this life, rather than letting it be a big surprise in the next. Excommunication publicly warns the serious sinner that his soul is in peril so serious even the half-blind hierarchy of the Roman Catholic Church has noticed it. It is also done to publicly warn others who might be tempted to follow the excommunicant’s sinful example that they really had better not.

These functions are important chiefly because the excommunicant almost always denies that he has actually done anything wrong. He is going around telling people that his specific heresy isn’t really a heresy, or that obedience isn’t really necessary in this case, or that “our love is purer and holier than your love for that silly husband of yours, so there’s nothing really wrong with it, but let me absolve you anyway, just to soothe your conscience.” This is because the root of much sin, perhaps most sin, is elaborate self-deception. If we were honest with ourselves about our sins, we would be too horrified to commit them, so we lie to ourselves. Excommunication is designed to puncture those illusions through the shock of punishment.

Excommunication latae sententiae fails to serve this purpose. If the excommunicant is already lying to himself about whether he’s going to Hell, he’s perfectly capable of lying to himself about whether he can go to Mass. In practice, the main people who are actually affected by the latae sententiae statutes are those suffering from the disorder of scrupulosity. These unfortunates are prone to accusing themselves of having committed an excommunicable offense, then panic about it. The other people affected by latae sententiae excommunications are confessors, who have to follow a special (sometimes paperwork-laden) procedure to lift the excommunication (while also absolving the sin). This burden appears, at best, useless.

However, excommunication latae sententiae is worse than merely useless. It’s pernicious. Latae sententiae excommunications were preserved in the twentieth century in part because bishops didn’t want to put up with excommunicating everyone who, by law, needed to be excommunicated. As dioceses got larger, it became more difficult for bishops to look out for their flocks in this way, and these ineffective “automatic” excommunications became a convenient excuse not to bother with actual excommunications—the ones that actually have the effect of warning the sinner of his peril. “During the 1967 synod of bishops, Bishop Taguchi of Japan judged latae sententiae penalties practical lest bishops be overburdened by the task of deciding penal cases.”⁶ This strikes me as more evidence that modern bishops need much smaller dioceses, as I argued earlier in this series.

It’s worse than mere convenience, though. Because modern bishops are selected, fundamentally, for middle-management skills, I am fairly convinced (without concrete evidence) that they sometimes decide not to make a public declaration about a latae sententiae excommunication because they don’t want to cause a controversy. Latae sententiae penalties help bishops convince themselves that there’s no need for them to act, because the excommunication is automatic! The sinner has already been punished! So why make a fuss? Why stir things up by announcing the punishment?

The reason, of course, is that non-enforcement causes considerable scandal to the faithful (who only see a law going unenforced), while allowing the excommunicant (who likely does not believe herself excommunicated) to remain in a state of confusion.

These sanctions are accomplishing no good, and sometimes actual harm. If you don’t want to take it from me, take it from Ed Peters. Christopher Armstrong⁷ spends 350 pages exploring the arguments on either side through the past century and ultimately comes down against them, too. Over the past couple centuries, the Church has gradually whittled down the number of latae sententiae penalties in the Code from well over two hundred to barely a dozen. If I were pope, I’d finish the job. Make it zero.⁸

End Mandatory Canonical Form for Marriage Validity

Believe it or not, the Church generally recognizes everybody’s marriage. If two unbaptized people marry, the Church deems it a natural marriage. A natural marriage is a real marriage that can only be dissolved under extraordinary circumstances, although it is not considered a sacrament.⁹

Unlike most sacraments, no priest is required for sacramental marriage, because the actual ministers of the sacrament are the bride and groom themselves. This makes the sacrament fully accessible to Protestants. Thus, if two baptized¹⁰ Protestants marry, the Church deems it a sacramental marriage, just as real and as valid (and as indissoluble) as any marriage between two Catholics in a wedding Mass—who, of course, enjoy the fullness of this sacrament and all the others.

However, there is one glaring exception to this, which has caused generations of confusion for Catholics and the Catholic-adjacent:

Anyone baptized Catholic (not just Christian, but specifically Catholic) must marry in the Church, with the Church’s specific permission, typically with a priest, and typically in an actual church building in a standard Catholic wedding rite, or the marriage is invalid. It’s not a natural marriage. It’s no wedding at all.

This creates a peculiar situation.

If two born atheists marry in a seaside ceremony, with a “minister” who’s just one of their friends who ordered a license online the week prior, where the wedding readings consist of a Khalil Gibran poem and Justice Anthony Kennedy’s closing paragraphs from Obergefell v. Hodges,¹¹ and the wedding party performs the Harlem Shake on the way out, nevertheless, as long as the bride and groom do exchange vows that actually vow marriage, it’s a 100% valid marriage and a Catholic marriage tribunal will consider it presumptively valid even if you later divorce in the eyes of the secular state.

On the other hand, if one of those two atheists was actually baptized Catholic at the age of two months, but her family left the Church a few months later and raised her as an atheist, and she doesn’t even know she was baptized… then, according to Catholic canon law, her marriage doesn’t exist. Nothing happened. It doesn’t even matter if our atheist has an elaborate high-church Anglican-style wedding using the exact form of the Catholic wedding Mass of several hundred years ago. Since she was baptized Catholic, and doesn’t have the permission of a cleric, she is incapable of marriage. Nothing happens.

Oh! Nothing happened! (Scene)

There’s actually a pretty good reason for this. Several hundred years ago, young men wanted to have sex with young women (surprise), but many women insisted upon the security of marriage. The couple would sneak off for the weekend to the countryside and privately elope. Since marriage is a sacrament that requires no priest, this counted. The husband would then have his way with his new wife.

Upon their return to the village, however, the man would deny the marriage. He might admit to the sex, but insist that they never married. Since there were no witnesses to the marriage, the woman was left pretty much up a crick: there was no proof of the marriage, so, even though the marriage was real and binding (and the husband a true scoundrel) there was nothing the Church could do about it. (At the time, the Church, not the secular state, was the final authority over who was and was not married, which is why its decisions mattered so much in practice.¹²) Early attempts to require a minister for marriage went awry when randos started roving around declaring themselves valid ministers of marriage. Oh, and requiring witnesses wasn’t necessarily sufficient, either, because there were also more than a few kidnap marriages, where the bride would be kidnapped, forcibly married (which is invalid), and then all the witnesses (friends of the husband, naturally) would insist they saw the bride freely consent to the marriage.

Strange times, right?

Eventually, the Church said, “Enough of this! Stop it! All of you! We are going to protect these brides!” From then on, you had to get married in your parish, in front of a priest, with witnesses, and published wedding banns announcing the nuptials to the whole community in advance, or it DID NOT COUNT.¹³ The Church used the very Keys to the Kingdom of Heaven to protect young women from bad men. If I’d been pope at the time, I’d have done the same thing.

However, this all went down several hundred years ago. Today, clandestine marriage doesn't exist anymore. Although the State has usurped marriage administration from the Church, frankly, the State does a bang-up job preventing people from getting married in secret. Since non-Catholics are not subject to canon law, they aren’t bound by this archaic requirement. Yet, for Catholics, the requirement remains.

As far as I can tell, the requirement for canonical marriage serves two purposes today:

1. It allows clever baptized Catholics who know the marriage laws (or foolish baptized Catholics who stumble into it) a get-out-of-marriage free card if they ever decide they want to marry somebody else, because—in the eyes of the Church—their first marriage was never valid to begin with. This is uncomfortably similar to the sort of abuse the law was invented to combat!

2. It (unjustly) deprives literally tens of millions of people worldwide (lapsed Catholics), many of them quite innocent, many of them in complete ignorance (!!), of the graces and other benefits of genuine marriage, whether natural or sacramental. I know a certain person who was raised in a different Christian religion, and who is unaware to this day that she was baptized a Catholic. This anachronistic portion of canon law makes it virtually impossible that she will ever be capable of contracting a true marriage, and she is neither aware of her disability nor in any way at fault for it.¹⁴

This is a terrible situation. It is inexplicable to me that it has persisted for so long.¹⁵ People think canonical form is some immutable part of the Church’s marriage theology, when it’s actually just a contingent response to a clandestine marriage problem that the world solved centuries ago.

To avoid a free-for-all and to protect the Church’s records,¹⁶ canonical form should still be required for liceity, so Catholics (who are aware of the requirement) would still have an obligation to follow it on pain of sin. However, it should no longer apply on pain of your whole marriage being fake, all your intimacy being fornication, your children being illegitimate, and your “spouse” being able to leave you at any time, especially not to people who are unaware of the requirement and have no reasonable way of knowing about it. The current law is bonkers.

Slow Your Roll, “Santo Subito”

The Catholic Church has lots of saints. I sort them into three buckets.

The first is the saints I don’t know anything about. Today is¹⁷ the feast of St. Ursula Ledóchowska, whom I’ve never heard of. A few days ago was the feast of St. Philip Neri, whom I’ve definitely heard of but I could not tell you one single biographical fact about him, even the millennium in which he lived.

The second is the saints I admire and look up to, like St. Thomas Aquinas, St. Celestine V, St. Peter, and—thanks to what I might generously call a persuasive special revelation delivered to me personally in October 2009¹⁸—St. Catherine of Siena, may her name be forever venerated.

The third bucket, however, is the saints that make me go, “Phew! If that jerk can make it to Heaven, I’ve got a pretty good shot!” To avoid controversy and/or lightning bolts, I will not give any examples of these here.

I am glad the Church has such a diversity of saints. However, I think one of the pope’s jobs is to keep the saints in Bucket #3 to a minimum, and I do not think we have done a particularly good job of that lately.

For example, take Pope St. John Paul II. We may be absolutely certain that it is in Heaven, because the decree of canonization infallibly declares it so. However, he was canonized a saint blindingly fast, in just nine years. Because we moved so fast—too fast—we were still learning new things about his involvement in the Fr. Maciel scandal literally the very month he was canonized! Now we have this prominent public figure of relatively recent vintage who was undeniably (albeit unintentionally) negligent about leaving kids vulnerable to predators who molested them, and grossly indifferent to the obvious failings of his own cardinals.

My family is second to none in its adoration of “John Paul the Great,” as we called him even while he was still alive. Some of his theological work was foundational. His work against communism, world-historic. His personal heroism during his youth is undeniable. There’s a six-hour biopic of John Paul my family used to watch every Easter. I would expect him to make it to Heaven even without the infallible decree that he’s made it.

Nevertheless, he should not have been canonized until all these things were fully known and processed by history and by others with an objective perspective. Instead, John Paul’s canonization was shoved through at breakneck pace by his real-life bff Benedict XVI, who idolized John Paul even while he was still alive and spent his papacy trying to shore up John Paul’s legacy. These are not the objective eyes a canonization needs!

Much of this goes back to the canonization reforms of 1969-1983, which streamlined the process. Most notably, the reforms effectively abolished the office of Promotor Fidei (more commonly known in English as “the devil’s advocate”), whose job was to offer the best possible arguments against canonizing the candidate. More importantly, they changed the waiting period—big time.

There are (basically) three “stages” on the road to canonization. First, there’s “Servant of God”, which basically means that evidence is being gathered to consider your candidacy for canonization. After that, if the evidence checks out that you were a decent person, you become a “Venerable.” After that, if the pope signs off and if there is at least one proven miracle to your name, you’re beatified as a “Blessed”, worthy of local veneration as a holy person. Finally, if all goes well, you get canonized as a “Saint”, which comes with an infallible declaration that you are in Heaven and everyone in the Church may freely ask you to intercede through prayer.

In the current code of canon law, the process cannot start until a candidate for sainthood has been dead for at least five years. However, the pope routinely waives this limitation for especially popular causes: Mother Teresa’s cause was opened just two years after her death; Sister Lúcia of Fatima waited three years; and Pope Benedict opened John Paul II’s cause less than six weeks after burying his old friend. After that, one proven miracle suffices for to make you a Blessed, and a second proven miracle, plus the approval of the pope, cinches sainthood.

In the 1917 code of canon law, the Servant of God investigations opened quite soon after your death. Then, it hit a wall. The next step would be discussing your heroic virtues to see whether to declare you a Venerable. However, under Canon 2101, the Vatican could not begin discussing your virtues until fifty years after your death. That’s why they gathered the evidence so early: by the time the investigations were ongoing, most people who personally knew the candidate would be dead! The pope could waive this time limit but, from what I know, he rarely did so. Maybe never.

Once the investigation started, it only got harder. Under the old code, a minimum of two miracles were needed for beatification—or as many as four miracles, depending on whether your eyewitnesses are still alive or gave testimony while living. Two more miracles were required for canonization. (Three in some circumstances.) This routinely took centuries. In his entire papacy, Pope Benedict XV (1914-1922) canonized only three people. One of them had been dead 58 years, the second for 230 years, and the third—St. Joan of Arc, you may have heard of her—was finally canonized 489 years after her death. This was pretty typical.

Pope John Paul II thought this process (which was very complicated) had picked up too much cruft through the centuries and needed to be slimmed down. He was probably right. However, in my own personal prudential judgment, he swung the needle too far in the other direction. The old rule “guard[ed] against fanaticism, allowing merely human enthusiasm to cool and become a stable and perduring flame of holiness,” as an anonymous EWTN author put it. We now allow merely human enthusiasm to change the whole timetable. I like Bl. Carlo Acutis very much, and I love the idea that I might have been trash-talked by a saint in a Halo lobby circa 2002,¹⁹ but I think there’s some reason to believe that his cause has been more or less a personal project of his grieving mother.²⁰ Even if that isn’t the case, the cause should be allowed to sit until the entire world may have moral certainty that it isn’t true. (Sorry, Bl. Carlo. If I’m pope, your canonization Mass is staying cancelled for a while.)

If I were pope, I would institute a compromise between the two systems. First, I would add another required miracle for beatification. Second, I would allow a cause for beatification to be opened five years after death. However, for canonization, I would restore the fifty-year law. This would allow the firm establishment of a confident local cultus surrounding the Blessed, it would motivate supporters and the Vatican to develop a prompt and thorough dossier before witnesses’ memories start to fade, and it would give people like Bl. Carlo Acutis’s mother something to strive after for their loved ones in their lifetimes. However, the fifty-year delay before the final step would ensure the infallible decree of canonization was held off until a new and dispassionate generation could examine the case.

Third, we have been on a really, really bad run of popes canonizing other popes whose reigns they remember fondly, sometimes with some appearance of political motivations. (How to mollify the progressives angry about the canonization of John Paul II? Canonize their hero, John XXIII, the same day!) This is so very curial, and it needs to stop. So my third law would be that, while a dead pope may be beatified after five years like everybody else, a dead pope may not be considered for canonization until one hundred years after his death. This would ensure that everyone who ever knew the pope was dead, and every controversy and intrigue of his life dead with them, so that the Vatican might see his legacy with clear eyes.

This is a prudential judgment, as are all things when you’re trying to strike a balance between “too restrictive” and “too lax.” I can’t prove I’m correct, because there’s no such thing as one “correct” answer on a judgment like this, but, after several (very mildly) scandalous high-profile canonizations, there’s good reason for the pope to pull back on the rudder, one way or another.

Next: Three Spicy Reforms to Canon Law.

1. A few things outside the Code also carry “automatic” penalties, like violating the secrecy of a conclave.

2. Except, possibly, physical force against a bishop, under certain circumstances.

3. It’s more complicated than that, since, really, it’s closer to the nub to say that the mortal sinner chooses damnation and God, rather than clapping him in irons and sending him down there, only allows him the freedom to jump into the abyss himself. C.S. Lewis’s depiction of Hell in The Great Divorce strikes me as closer to the mark than a lot of cultural imaginings of the Last Judgment. But this would be a large digression. For today, it suffices to say that damnation cases are firmly in God’s jurisdiction, which no man, not even the pope, can usurp.

4. This sentence certified compliant with Auctorem Fidei #46, which clarifies that the effect of excommunication is not exclusively exterior.

5. There are some differences. For example, a mortal sinner is still obligated to attend Sunday Mass without receiving the Eucharist. An excommunicant is forbidden to attend Mass.

In past centuries, some excommunications carried an additional penalty of “shunning,” whereby the Faithful were required to avoid the excommunicant to some extent (which varied). This is no longer in the law.

6. This sentence taken verbatim from page 337 of A Critical Appraisal of Latae Sententiae Penalties in the 1983 Code of Canon Law, a dissertation by Christopher R. Armstrong published in (or as?) Canon Law Studies #548 in 1996, available with the right sort of ProQuest subscription here: https://www.proquest.com/dissertations-theses/critical-appraisal-i-latae-sententiae-penalties/docview/304293100/se-2

7. See previous footnote, and yes I did get his article from Ed Peters’s citation.

8. I am considering a proposed exception for people who back into parking spaces during Catholic school pickup. However, bell, book, and candle seems more fitting for these utter reprobates.

9. Of course, this assumes the essential requirements of a natural marriage are met: full, free consent between man and woman to be bound together in a union ordained to sexual intercourse and the consequent creation and education of offspring, whether or not these things actually occur.

The usual modern formula would have me say “between one man and one woman.” For Christians, that is certainly true. However, it’s actually a thorny and unsettled question whether polygamous marriages between unbaptized non-Christians are valid natural marriages or not. (If they are not, then the biblical Jacob never successfully married his great love, Rachel.)

(For what it’s worth, since I’ve already linked to him, Aquinas thought this could be reconciled by some very impressive divine epicycles. The question remains in dispute.)

10. The other sacrament that requires no priest is baptism, so any Protestant baptism with the right intention and a Trinitarian formula will generally do the trick in Catholicism’s view.

11. I’m not making that up. A dear and unbaptized friend of mine really did use Obergefell as one of her wedding readings. Her wedding was authentic.

12. I discussed this history of marriage administration, and its usurpation by the French Revolution and its successors, almost exactly ten years ago in my very long post, “Civil Marriage is Dead (And It Deserved To Die).” Among lots of other things.

13. My understanding is that the requirement for canonical form started bubbling up from local churches, then was promulgated through most of the Catholic world by the Council of Trent by the decree Tametsi in 1563. However, Tametsi was withheld from mission territory—including the barbarous frontier of the New World—so it was still possible to evade it. Ne Temere universalized it… in 1907, by which time the Church probably should have been thinking about winding it down.

14. Nor are those who baptized her, who sought only to save her from the clutches of Satan.

15. Once, probably ten years ago, I heard a canon lawyer defend the canonical form requirement by saying that it encouraged lapsed Catholics to return to the Church. It has been ten years, so I may be misremembering his argument, but this seems entirely backwards to me. Anyone who cares whether the Church recognizes his marriage is already thinking about returning to the Church… but might change his mind when he discovers that the Church thinks his marriage is fake and all his children are bastards!

16. “Maintaining good and accurate records” is a surprisingly important part of the Church Militant’s job. You might not expect that of a religion, but records are the basis of law, so any church with laws needs records, and the Catholic Church has a more comprehensive legal system than most.

17. It shouldn’t be the feast of St. Ursula Ledóchowska. As I write this, today is Ascension Thursday! Other feasts that fall on this day ought to be suppressed for this year! However, nearly every metropolitan in the United States has transferred the Ascension Feast to Sunday, which I think is “permissible, but lame.”

18. I am not telling this very weird, implausible story here, at least not today. You wouldn’t believe me. I wouldn’t believe me. Nevertheless, since that day, I am firmly convinced that St. Catherine of Siena was a very holy woman.

19. Pooh-poohers will say that I was probably never in a Halo lobby with Bl. Carlo Acutis. There were, after all, an awful lot of Halo lobbies, and I didn’t play that many times online. However, pooh-poohers are forgetting: saints can bilocate. Bl. Carlo Acutis could have been trash talking in every Halo lobby.

20. The linked article is kinda weird and I don’t understand the point it’s driving at, which I complained about at the time. Nevertheless, I’m unsettled, as I always am when we canonize someone so fast that his mom is still alive to see it.