The Rights of the Laity

Author: Charles M. Wilson


Charles M. Wilson

A Thesis

Submitted to the Faculty of Oblate School of Theology in Partial Fulfillment of the Requirements for the Degree of Master of Theological Studies
May, 1991

Table Of Contents

I. Introduction
II. The History Of Canon Law
III. The 1983 Code
IV. Understanding And Interpreting Rights In The Church
V. The Current Situation In The U.S.
VI. Specific Areas Of Concern
VII. Available Remedies
Administrative Recourse
Informal Procedures
VIII. Recommendations
Access and Publicity
IX. Conclusions And Reflections
List Of Appendices


It is the objective of this thesis to examine various approaches which have been taken concerning the recognition and protection of the rights of the lay members of Christ's faithful in the United States and to consider ways by which this recognition and protection may be enhanced.

Although a detailed historical treatment of ecclesial rights and the Church's legal system is beyond the scope of this thesis, a very brief review of the development of canon law is included to provide some perspective, to show that a concern for legal remedies for injuries suffered from the exercise of ecclesiastical governance is not a recent phenomenon and to show that the hierarchical structure of the Church and a respect for personal rights are not necessarily mutually exclusive.

As this thesis will show, there is no lack of published studies treating the recognition and protection of ecclesial rights in general. However, there is very little available information on specific cases, with the exception of the very few which have been covered by the news media. Therefore, the case files of the St. Joseph Foundation, of which the writer has served as Executive Director since 1984, have been the primary source of such data which, it must be noted, is not claimed to be representative of the Church in the United States as a whole.

In view of the difficulties involved in obtaining information on the practical application of those canons which define rights, the writer is especially grateful for the kind assistance of Rev. Msgr. Cormac Burke, Auditor of the Roman Rota, Count Neri Capponi, Associate Professor of Canon Law at the University of Florence and Advocate of the Roman Rota and of the Apostolic Signatura, and Mr. Duane L.C.M. Galles, J.D., J.C.L. Also, I wish to take this opportunity to express my gratitude to the Directors of the St. Joseph Foundation for making possible my graduate studies and to all those who have assisted in the preparation of this thesis.

I. Introduction

The very word "right" can mean the opposite of wrong or it can mean that which is just. (1) It is, of course, the latter meaning which is the subject of this work.

In today's society, considerable attention is devoted to the topic of rights, especially the rights of certain groups or classes of people. Although governments are most often seen as a threat to human rights, the Catholic Church as well has borne a portion of such accusations. There are those, both within and without, who see the Church as reactionary and oppressive and who conclude that its law and teaching authority are somehow incompatible with the recognition of rights. (2)

This writer shares the opinion of some canonists that not only is the above conclusion incorrect but that there is a natural harmony between rights, properly understood, on the one hand and the authority of the Church on the other. By a proper understanding of rights, we mean those goods which are justly due to each person as a creature of God and a member of a community, especially that living community founded by Christ, the Catholic Church. This "personalist" understanding of rights gives equal recognition of the duties owed to other persons as well as the community as a whole. There is another, somewhat different, understanding of rights which places primary emphasis on the individual, whose interests may not always be the same as those of the community. As might be expected, this notion gives less recognition to the duty side of the rights/duties equation.

Although personalist and individualist understandings of rights are not necessarily opposed to each other at all times, the focus of the latter is usually concentrated on the rights of individuals versus an institution, such as civil government. In general, human rights can have as their source our basic dignity as persons or they may arise from our citizenship of a particular nation or membership in a certain community such as the Church. Also, a particular office, position, state of life or some other factor may be a source of specific functional rights. History shows that governments are frequent violators of rights, whatever their source.

The Church itself, as the institution founded by Christ, cannot be oppressive; but we know all too well that those who exercise authority in its name are not free of human weakness. Our rights, whether they arise from membership in the Body of Christ or from some other source are not violated by the Church and cannot be held above the Church, as we can say sometimes that certain natural rights can be held above the state. Therefore, when we talk about vindicating our rights in the Church, we see the Church properly as the protector of our rights, not our oppressor. It is quite possible that those who see the law and magisterium of the Church as necessarily opposed to the recognition and respect of rights are speaking from an individualist rather than a personalist point of view and may have created a false dichotomy. Another rather obvious possibility is that they fail to draw the proper distinction between acts of the Church and acts of individuals who exercise the power of governance in the Church.

The true relationship between rights and authority was discussed recently by Msgr. Cormac Burke, in an address to the Roman Academie Center of the Holy Cross, who said, "Communion with Christ and with others in Christ: This is the great pastoral theme and aim of Vatican II. This pastoral concern evidently presupposes not only a possibility of communion, but a right to communion; a right of access to Christ. Here we see how quickly the pastoral and the juridical interlink, because once we speak of rights we are of course speaking in juridical terms. Rights, after all, need to be defined, so that people know their own rights and the rights of others; so that they know what is owed to each one and what each one owes to others. Rights also need to be defended, so that each one is in fact given what is due to him. And this is where law and authority necessarily enter since, without law and authority, there can be no proper definition, and especially no proper defense, of rights.

"It will help our exposition if we take a deeper look into the content of the right to 'communio.' The right to 'communio' is the right to find the Grace, Truth and Will of Christ in and through the Church, using the means that Christ himself has instituted and left us. Canon 213, one of the most basic canons in the new Code, says tersely: 'Christ's faithful have the right to be assisted by their Pastors from the spiritual riches of the Church, especially by the Word of God and the Sacraments.' ...Canon 762 further stresses part of this, also in terms of a right: 'The People of God are first united through the word of the living God and are fully entitled'—they have the full right—'to seek this word from their priests.'" (3)

As Msgr. Burke noted, the words of cc. 213 and 762 are identical to the conciliar documents, Lumen Gentium (No. 37) and Presbyterorum Ordinis (No. 4). Although the rights defined belong to clerics as well as laity, it is evident that, by emphasizing what the people have a right to expect from their pastors, "the Council is evidently speaking in particular of the rights of the laity." (4) (Emphasis in original.)

II. The History Of Canon Law

If one claims that his or her right has been violated, this assertion is often answered by a denial, if not a counter claim. The resolution of competing claims is a basic purpose of any legal system, and Our Lord himself acknowledged that disputes would arise among Christians when he laid down the first juridic norm. (5) Later, St. Paul admonished the Christians of Corinth for bringing one another before pagan courts and, at least by implication, suggested that they should see to the establishment of their own means for adjudicating competing claims. (6)

From these very simple beginnings, the Church's legal system grew more complex over the centuries. As one might expect, it borrowed first from the civil procedures in effect at the time in the Roman Empire and later from some elements of German tribal law. Whatever their sources, Church laws in the first millennium consisted of decisions of the Bishops of Rome which over time acquired legal force, regulations of individual bishops which came to be observed in other dioceses and eventually throughout the Church and the disciplinary pronouncements of ecumenical councils, beginning with the First Council of Nicea in A.D. 325. (7)

As the Church grew, and the Roman Empire disintegrated, it became increasingly difficult to keep track of new ecclesiastical legislation and even more difficult to determine what laws were still in force. In the mid twelfth century an Italian Camaldolese monk by the name of Gratian unofficially compiled, edited and published all of the accumulated legislation which could be verified as being in force.

Although not official, what came to be known as the Decretum Gratiani (Gratian's Decree) was, for a time and for all practical purposes, accepted as the fundamental text of Church law. The first collection which had legal force was composed by St. Raymond of Pennafort and promulgated by Pope Gregory IX in 1234 as the Liber Extravagantium (so called because it was outside the Decretum). Other collections were issued by Boniface VIII in 1298 and John XXII in 1317. In 1500, canonist John Chapuis edited the previous collections and added to them subsequent papal decretals. These works are what came to be called the Corpus Iuris Canonici, or Body of Canon Law. (8)

The decrees of the Council of Trent and successive popes added to the legislation in force until the next ecumenical council, Vatican I, was convened in 1870. According to Bouscaren and Ellis, "Canon law at that time resembled an ancient ruin buried beneath the drifting sands and accumulated debris of a thousand years. The work of bringing order out of this chaos was seen to be necessary; many bishops present at the [First] Vatican Council had demanded that a revision be undertaken, but the task was so stupendous that it appeared to be beyond the power of anything short of a general council of the Church."(9)

The revision of the Corpus Iuris Canonici and the promulgation of the first Codex Iuris Canonici in nineteen centuries of Church history came about sooner than the fathers of Vatican I might have imagined. On the Feast of St. Joseph in 1904, Pope St. Pius X issued his aptly named encyclical, Arduum sane munus, which started the process of creating the first universal code of law for the Church. The work took more years than remained in the earthly life of Pius X, so the Codex Iuris Canonici was promulgated by his successor, Benedict XV, on Pentecost, May 27, 1917, to become effective on Pentecost, May 18, 1918. The Code consisted of 2,414 canons and was an enormous improvement over the previous patchwork. (10)

Even though the 1917 Code was the clearest, most complete and harmonious system of laws in the history of the Church, it was not long before the need for revisions became obvious. Less than fifty years after its promulgation, Pope John XXIII announced on January 25, 1959 that he intended to call a general ecumenical council and to create a Pontifical Commission to revise the Codex Iuris Canonici.

The Pontifical Commission elected to wait until the close of the Second Vatican Council in November, 1965, before beginning its work, which was completed on October 29, 1981, when the new Code was presented to Pope John Paul II, who personally studied it for a year and, after making some changes in the text, promulgated it on January 25, 1983, 24 years to the day after Pope John XXIII had called for a revision. The new Code has been called, with good reason, "the last document of Vatican II." (11)

Unfortunately, the new Code has been viewed improperly by some, in much the same way as was Vatican II, as a complete break with the past. While it is shorter than the 1917 Code by 662 Canons, many are identical or nearly identical and one can easily identify the sources (fontes) of many canons as not only from the previous code but from such venerable works as the Decretum Gratiani and the Liber Sextus of Boniface VIII. (12)

III. The 1983 Code

The definition and protection of the rights of the faithful is a fundamental purpose of the 1983 Code of Canon Law. This is stated clearly by the Holy Father himself in the Apostolic Constitution, Sacrae disciplinae leges: "Since the Church is established in the form of a social and visible unit, it needs rules, so that its hierarchical and organic structure may be visible; that its exercise of the functions divinely entrusted to it, particularly of sacred power and of the administration of the sacraments, is properly ordered; that the mutual relationships of Christ's faithful are reconciled in justice based on charity, with the rights of each safeguarded and defined; and lastly, that the common initiatives which are undertaken so that Christian life may be ever more perfectly carried out, are supported, strengthened and promoted by canonical laws." (13)

The Pontifical Commission for the Revision of the Code of Canon Law formulated ten principles to guide its work, the sixth and seventh of which are particularly pertinent.

[6] "The use of power in the Church must not be arbitrary, because that is prohibited by the natural law, by divine positive law, and by ecclesiastical law. The rights of each one of Christ's faithful must be acknowledged and protected, both those which are contained in the natural and divine positive law and those derived from those laws because of the social condition which the faithful acquire and possess in the Church." (14)

[7] "The principle must be proclaimed in canon law that juridical protection applies equally to superiors and to subjects so that any suspicion of arbitrariness in ecclesiastical administration will entirely disappear.

"This end can only be achieved by avenues of recourse wisely provided by the law which allows a person who thinks his or her rights were violated at a lower level to have them effectively restored at a higher level." (15)

As the American canonist, James A. Coriden, notes: "The prominent attention which the Commission and the Synod gave to rights in advance of their formulation highlights the central importance they have in the new code." (16)

The 1917 Code listed the rights of clerics (cc. 118-144), religious (cc. 592-631) and the holders of certain offices. However, there was little mention of the rights of all the faithful except in c. 87 (Baptismate homo constituitur in Ecclesia Christi persona cum omnibus christianorum iuribus et officiis...) and c. 682, the counterpart of c. 213 of the 1983 Code. (17) There was no description in the 1917 Code of just what rights all Catholics possessed in the Church. (18) By contrast, the 1983 Code contains several lists of rights as well as obligations. Among them are the right to work to foster the spread of the Gospel (c. 211), the right to manifest public opinion (c. 212.3), the right to receive spiritual assistance (c. 213), the right to worship according to the prescriptions of one's own rite (c. 214), the right of association and assembly (c. 215), the right to reputation and privacy (c. 220) and the right to vindicate one's rights in the competent forum (c. 221). In addition to the rights of all Christian faithful, the laity have the right to work to spread the message of salvation (c. 225.1), the right to educate their children (c. 226.2), the right to freedom in temporal affairs (c. 227), the right to acquire a knowledge of Christian doctrine (c. 228) and, if they are employed by the Church, the right to decent compensation (c. 231).

While most of the rights of the faithful are included in the aforementioned canons, there are many references to rights in other sections of the Code. For example: all persons have the right to embrace and observe that religious truth which they have recognized (c. 748.1); parents have the right to choose the most suitable means for the education of their children (c. 793.1); and all persons have the right to marry unless prohibited by law (c. 1058).

IV. Understanding And Interpreting Rights In The Church

Most Americans, Catholic and non-Catholic alike, associate the word "rights" with our federal and state governments and, especially, their judicial branches. Although it has been exactly 200 years since the Bill of Rights was added to the Constitution of the United States, our national history has recorded grievous abuses of civil rights and the struggle to make a more just society continues. Nevertheless, especially in comparison to other nations, there appears to be a general consensus that civil rights are as respected here as they are anywhere else.

Even though American Catholics may be quite conscious of their civil rights, this writer has not found any data which would indicate if Catholics perceive their Church as a model of justice or, indeed, if there is any widespread concern about ecclesial rights. However, there has been no shortage of pronouncements by Church leaders or articles on the subject in scholarly journals. In addition to those already mentioned, the former include the following words from Justice in the World, issued by the Synod of Bishops in 1971: "While the Church is bound to give witness to justice, she recognizes that anyone who ventures to speak to people about justice must first be just in their eyes. Hence we must undertake an examination of the modes of acting and of the possessions and life style found within the Church herself." (19) Among the numerous scholarly articles, of special interest is the Canon Law Society of America's Permanent Seminar Study, "Promoting and Protecting Rights in the Church," published in The Jurist in 1986. (20)

In summary, the literature surveyed in preparation of this thesis emphasizes the same understanding of human rights as expressed by Msgr. Burke in his work cited earlier. That is, viewed from a Catholic perspective, a right is more than simply a license to exercise choice, to be free of certain forms of oppression or to do as one pleases. While a Catholic understanding of rights would surely include due condemnation of the coercive restriction of the freedom of choice, it would direct its primary focus on our exercise of rights as members of a society and, hence, give equal recognition to what we owe to others and what others owe to us. An excellent and succinct expression of this understanding was offered in 1974 by Professor Stanislaus Kowalczyk, of the Catholic University of Lublin, in reference to the possibility of a Christian-Marxist dialogue on human rights which subsequent developments have happily rendered unnecessary:

"Christianity understands the person as a substantial individual reality...The free, self-conscious individual is the subject of all the rights that are necessary for the harmonious development of personality in society. Christian personalism, however, repudiates selfish, anarchic individualism, which interprets social life as a game played by rational egoists. An individual develops fully integrated personality only within a community. Thus, individual rights are organically related to the individual's duties toward society. (21) With this understanding in mind, Catholic laity are challenged to exercise their rights in the Church as citizens rather than subjects while keeping in mind that they need to avoid the excessive and destructive individualism so prevalent in modern culture and that the true objective is a deeper religious union. (22) In essence, then, the basis of ecclesial rights is clearly theological. This point was made by Archbishop Zenon Grocholewski, Secretary of the Apostolic Signatura, in a presentation to the Archsodality of the Roman Curia in 1985, as follows:

"In any case, the recognition of the rights of the faithful in the Church does not come only from one or another philosophical or ideological consideration; it comes especially from their theological foundation. Consequently these are oriented primarily toward making it possible and effective for each Christian to realize his or her own vocation in the Church and toward encouraging and facilitating the attainment of eternal life." (23)

Recognizing the "personalist" understanding and theological foundation of specific rights in the Church makes interpretation of the relevant canons less difficult, especially for one not trained in canon law. In the first place, as noted earlier, most of the rights defined in the Code are found in Book II, Part I, Title I: "The Obligations and Rights of All the Christian Faithful," and Title II: "The Obligations and Rights of the Lay Christian Faithful." These headings alone reveal that cc. 208-231 contain not only an ecclesiastical bill of rights but an ecclesiastical bill of obligations as well.

Some individual canons also reflect the balance of rights with responsibilities. Canon 212, for example, defines the responsibility of obedience (#1), the freedom to manifest our needs to Church authorities (#2) and the right to make known privately and publicly, our opinions on matters pertaining to the good of the Church. With respect to the lay Christian faithful, c. 225 takes the dualistic notion even further by defining the work of spreading the divine message of salvation as an obligation and a right at the same time. Moreover, the weighing of rights and responsibilities is seen in the restrictions placed upon exercise of rights by c. 223; i.e., the common good of the Church, the rights of others and the duties owed to others. Paragraph 2 of the same canon invests ecclesiastical authority with the competence to regulate the exercise of rights in the interest of the common good.

There is, to be sure, the danger of over emphasizing responsibility to the common good to the extent that the free exercise of legitimate rights may be unduly restricted. To maintain a proper balance, c. 18 must be considered since it sets forth the rule that laws which restrict the free exercise of rights are subject to a strict interpretation. That is to say that the meaning of the term in question must be limited to the minimum that it can honestly include. (24)

The rule of strict interpretation of laws which restrict the exercise of rights is not new. The Latin text of c. 18 is identical with its counterpart, c. 19 of the 1917 Code, which has its source in the venerable Rule of Law of Pope Boniface VIII: "It is fitting that odious things be restricted and favorable ones extended." (25) Accordingly, not only must laws which restrict rights be interpreted strictly but the benefits of laws which establish rights must be applied to as many and to as great an extent as honest interpretation will allow. (26)

The more technical aspects of interpreting canon law are beyond the competence of this writer and the scope of this work. Nonetheless, with English editions in general circulation, a point made by one canonist, Ellsworth Kneal, is of some interest because it is very likely that non-canonists who read the Code will interpret the canons in light of their own cultural point of view. Referring to c. 17, he observes:

"This canon has a familiar ring. It is almost a verbatim reproduction of the earlier canon. But one thing is missing and it is significant. 'Recourse is to be had to parallel passages,' of what? The 1917 Code said 'parallel passages of the Code.' But those words were omitted here. I suggest that this was not a casual omission. Rather, it is the opening of a window to a much larger view of interpretation, namely, the cultural one. This is the first of the four places in which we will begin interpretation of the law. "We are referred now not simply to parallel places in the Code, but to parallel places in the worshiping life of the community, to the Weltanschauung out of which we view the law. this is another way of saying that our human condition cannot be evaded. It is going to affect the way in which we view and implement law, and hence the very texture of human life. Whether it be a texture of tranquility or a texture of oppression, all of the socio-economic, political condition in which we live is going to have its effect upon interpretation. Obviously, we will be referring to the localized culture: the way in which interpersonal relationships are pursued, the local norms, the level of sophistication, the degree of formality in which people move in their normal relationships with each other. The whole human context becomes the first filter through which the law is brought to us. "Another place—or framework, filter, or grid—with which we will measure the revised Code lies in what is now a much-expanded theology of Church. This brings us obviously to the directions which were laid out in the Second Vatican Council and particularly in Lumen gentium. The Church is not the pyramidal, monarchical, authoritative, monolithic structure as it was viewed so often. Rather, it is now looked upon in an almost gentle fashion, as a single people of God. Particularly, all the baptized are recognized. From that central canon of the revised Code, canon 204, the baptized are empowered and not merely captive. The Church is viewed as a communion, a community characterized by love, justice, charity, and joy. All the members share in responsibility for its mission." (27)

It should be noted that other canonists have a more restrictive understanding of the term "parallel passages," and would attach less significance to the omission of the words "of the Code." For example, James Coriden offers this definition: "'Parallel places' means other provisions of Church law wherein the same matter is treated under a different aspect, the same language is used, or the same principle is applied." (28)

V. The Current Situation In The U.S.

Making assumptions about a religious organization with 57,019,948 members, 186 dioceses and 19,860 parishes is surely risky. (29) If more data were available, drawing definite conclusions on matters pertaining to religion still would be almost impossible because faith cannot be measured by numbers. Each soul is of infinite value and the power of prayer and sacrifice is incalculable. Therefore, spiritual things are, in the final analysis, simply incommensurable. (30) Even so, bearing this in mind, there is enough evidence available to support the assertion that there is, at least in the United States, a disparity between the proclamation of rights in the Church in principle and respecting their exercise in practice.

Writing in The Jurist in 1985, James Coriden acknowledged that there is a perception of an "unjust Church" and supported his conclusion as follows:

"The denials of rights, non-feasance of office and capricious behavior which affect the ordinary people in the pews—and for which there is no redress—are the failures which so powerfully convey the impression of a church without justice. Some familiar examples:

schools closed without adequate consultation of parents; parish communities without any serious attempt at Christian education or spiritual formation; communities subject consistently to woefully inadequate preaching, negligent and non-participatory liturgical celebrations; churches where no financial accounting is made to the people; parish staff persons terminated without evaluation or explanation; parish facilities denied to groups because the nature of their discussions is judged to be controversial; dioceses where there are no avenues for the expression of opinions or recommendations, no realistic participation in policy-making.

"It is only fair to say that sometimes these abuses are alleged and not actual. Sometimes they are imagined or exaggerated or temporarily justified by circumstances. And sometimes almost nothing can be done about them because of the quality of available personnel or simple human frailty. But often such abuses are real and remedies are possible. Instead of responding to the complaints and vigorously seeking remedies, a bishop or pastor invokes the time-honored policy of stonewalling. The institution can always outlast the aggrieved individual. And the impression of callous unfairness grows.

"Even when no solution to an abusive situation is evident, great good can be accomplished by a fair hearing. To have one's "day in court," to be taken seriously and treated with dignity, to be listened to and heard out—just that alone revives a sense of fairness and relieves powerlessness and alienation.

"The abuses mentioned above are all rights failures. They are related to the rights claims of church members asserted in the 1983 code. Rights which are declared but undefended are a mockery; when the claims cannot be vindicated, the rights are useless. Any society which fails to provide remedies for wrongs, reasonably adequate and available mechanisms for the redress of grievances, ways to insist on the basic claims which are constitutionally asserted, is not a just society. For those very reasons our Church is perceived by many of its members, as well as by outside observers, to be an unjust church." (31)

Similar statements have been expressed by others, among them Rev. Joseph A. Komonchak, Associate Professor of Religion and Religious Education at the Catholic University of America, who said:

"More than a few lay people have noted that their rights to participation in the church have not always been better respected by the addition to the traditional clerical hierarchy of a new and larger body of 'professionals' and 'experts.' It is an occupational hazard of bureaucrats to believe that they know better than the people in the field how things should be done. And if they turn to management theories elaborated for business and government for ideas on how to plan for the church's future, it is not surprising to hear complaints that the church appears much more like a giant and impersonal organization than like a living community of brothers and sisters—a complaint, by the way, that by no means is aimed only at episcopal or papal targets!" (32)

The two examples given above were by no means the only or the earliest expressions of concern over rights in the Church in the United States. (33) In 1968, prompted in part by the action of the 1967 Synod of Bishops on the subject, the Canon Law Society of America undertook a study on the implementation of due process, the report of which was adopted by the National Conference of Catholic Bishops in 1969, and recommended for optional diocesan use. After some minor revisions, the report received a Nihil obstat from Pope Paul VI on October 23, 1971, and was published by the N.C.C.B. the following year. (34)

The Canon Law Society of America has, in addition to its work on due process procedures, taken a number of steps to further the protection of rights in the Church. Among them are the following. In 1969, it sponsored a symposium entitled, "The Case for Freedom: Human Rights in the Church"; in 1975, it organized the Permanent Seminar to provide research on major canonical and theological problems, the fourth study of which was "Promoting and Protecting Rights in the Church" in 1986 and, in 1987, it published its study, Due Process in Dioceses in the United States 1970-1985. (35) It stands to reason that these and other significant actions would not have taken place if the Society did not believe that there are some problems with regard to respecting ecclesial rights.

There seems little doubt that, from their own words and actions, the National Conference of Catholic Bishops, the Canon Law Society of America and some members of the Catholic academic community are sensitive to the need to recognize the rights of the faithful and to see to it that these rights are respected in the day to day life of the Church. Moreover, after seven years' experience and research, this writer has found no evidence that there is any significant support for the proposition that the current situation with regard to rights in the Church is satisfactory and that no remedial action is necessary.

Although the conclusion that the N.C.C.B., the C.L.S.A. and Catholic academia see, to a greater or lesser degree, a "rights problem" in the Church, there is very little data to support a conclusion as to whether this perception is or is not shared by the laity. To be sure, there are two organizations, The Association for the Rights of Catholics in the Church and the St. Joseph Foundation, which have as their stated purpose the protection of ecclesial rights but, although their theological viewpoints are far apart, neither has a large following. The files of the latter show that since 1984 some 200 Catholics have made individual complaints and an additional 3,000 or so have signed petitions alleging a rights abuse of one kind or another. However, in a body with over 57,000,000 members, these numbers cannot be regarded as representative.

An inference can be drawn perhaps from the Notre Dame Study of parish life, which found that "active, registered parishioners in our study feel comfortable with selecting which of the Church's teachings they will espouse and which they will reject." (36)

If most Catholic laity in the United States feel free to make these decisions for themselves, one can hardly say that they see their Church as oppressive and unjust. If they do view the Church as such, apparently they do not fear any retribution for their selective obedience to its teachings.

Another inference may be drawn from the Canon Law Society's report on due process. From 1970 to 1985, a total of 939 cases were submitted to due process procedures in 69 dioceses. Six of these dioceses accounted for 632 of the cases, or 67% of the total. (37) Of this total, 224 involved employment issues, so no more that 715 cases could possibly have been initiated by lay, non-employees. Even in the unlikely event that all 715 were submitted by laity, this number of cases over a fifteen year period is hardly indicative of a groundswell of dissatisfaction. If indeed a substantial portion of the American laity feel their rights are being abused, then either they are not aware of the due process system, do not have much confidence in it or are overly deferential to Church authorities. In view of the findings of the Notre Dame Study, the latter does not seem likely and, considering the absence of empirical data, the remaining possibilities are that the laity, as a whole, are satisfied or else they are confused, indifferent or disillusioned. The degree to which any or all of these last three elements influence the attitudes of lay Catholics on the subject of ecclesial rights is not known.

To summarize the current situation in the U.S., in the opinion of the writer, it can be said that there is a fairly high level of concern over the recognition and protection of the rights of the faithful on the part of canonists and that the bishops have shared this concern to the extent of approving a due process procedure. However, the level of concern among the laity, whatever it may be, has not yet manifested itself in any concrete and measurable way.

VI. Specific Areas Of Concern

The 1983 Code contains elements of the 1917 Code as well as elements of the earlier legal tradition of the Church, but for the first time there is now a universal Code which was developed on a theological framework, the three ecclesiastical offices of teaching, sanctifying and governing. (38) Therefore, the following discussion of specific areas of concern will correspond to these offices.

A. Teaching

The rights of all the faithful to a Christian education is stated clearly in c. 217 and, for the lay faithful in particular, in c. 229. Because c. 748 defines the right of all people to embrace that truth which they have recognized, the Church claims the freedom to erect its own religious education programs, schools and institutions of higher learning so that Catholic doctrine is taught and interpreted in complete fidelity. As Joseph Cardinal Ratzinger said, "This freedom of the Church to teach her doctrine is in full accord with the students' corresponding right to know what that teaching is and have it properly explained to them." (39)

Although an evaluation of Catholic education is far beyond the scope of this thesis, it is appropriate to note the fact that there has been a decline of 20 percent in the number of students enrolled in Catholic secondary and elementary schools in the ten year period from 1980 to 1990, following a 30 percent decline in the preceding decade. (40) Even more disturbing is the fact that the 20 percent decline in school enrollment between 1980 and 1990 was matched by a decline in C.C.D. enrollment by the same percentage. Obviously, a growing proportion of Catholic children are receiving no formal religious instruction at all. (41)

Any change in the quality of religious education is far more difficult to measure than the change in enrollment. The St. Joseph Foundation has received many complaints from parents alleging that their children were not getting an adequate catechetical formation in Catholic schools and C.C.D. programs. Some members of the hierarchy have expressed similar concerns while others have defended the quality of religious education. For example, at the meeting between Pope John Paul II, Vatican officials and 35 U.S. archbishops held in Rome on March 8-11, 1989, Cardinal Ratzinger observed:

"...To a large extent, this area [catechetics] has been turned over to the so-called professionals. This, in turn, has led to an excess of experimentation, which often makes the actual topic vanish from sight, and to a confusion of voices, making it all the more difficult to recognize that of the Gospel. The problem becomes more evident if we think about the relationship between bishop and theologians who are no longer active in just the quiet realm of academic research and teaching. They frequently perform their quite dissonant concert for all the public with the instruments of the mass media in such a way that their voice drowns out that of the bishop-evangelist. Despite all the indisputable efforts by bishops to proclaim the word, theologians in many parts of the world have taken the place of the bishop as teacher. Although much good has also come to pass in this way, on the whole the result has to be seen predominantly as one of uncertainty and confusion: The contours of the faith are vanishing behind reflections which ought to be illuminating it." (42)

At the same meeting, the Archbishop of New York observed: "Years of confusion and diversity in catechetical instructional materials used in both Catholic schools and in catechetical programs outside Catholic schools have left an entire generation in a state of ambiguity." (43) On the other hand, Bishop Raymond Lucker, episcopal advisor of the National Conference of Diocesan Directors of Religious Education, disagreed vigorously with the assessments of Cardinals Ratzinger and O'Connor. (44) In summary, while perhaps no one can say with much certainty what the state of catechetical instruction may be, the controversy will undoubtedly continue.

The practical problem with regard to respecting rights concerning Catholic catechetics appears to center around the relationship of parents to those in charge of catechetics on the parish and diocesan level. According to the information supplied by the St. Joseph Foundation, the children of six families have been removed because of what appear to be only the well founded and reasonably stated objections of their parents to various aspects of the catechetical programs. Some twenty five additional families have reported express or strongly implied threats that the same thing would happen to their children if the parents did not keep silent. Considering the thousands of schools and parishes and the hundreds of thousands of students in the United States, it might be argued that such a small number of complaints is meaningless. Conversely, in Christ's Church, it could be said also that one is too many.

Even though a majority of the problems reported involve parents versus parish or diocesan authorities, there are cases where the aggrieved parties were teachers. In one instance, all the C.C.D. teachers in a parish protested the content of the catechetical program and, after the diocesan bishop responded by suspending all Masses in the parish, the case was appealed to Rome. (45)

Another and possibly the most vexing problem in the area of teaching is classroom sex education. those who have serious reservations do not object to instructing students in the principles of Catholic sexual morality or the discussing of human reproduction in science classes. What they are concerned about is the classroom presentation of explicit sexual anatomical and methodological information in the classroom, especially to elementary age children. The central points of the controversy are the possibility of psychological trauma, the lack of any objective data which supports the efficacy of classroom sex education and the violation of parental rights to decide the circumstances under which such information is presented to their children.

B. Sanctifying

Without worship and spirituality, religion loses its purpose. No one would say that there is any chance that Catholics will abandon worship and spirituality but in view of the atmosphere of political, economic and social crises of our time and the moral challenge they pose to Christians, matters like liturgy and prayer may seem to be of secondary importance. However, as Cardinal Ratzinger notes: "But the question of the moral standards and spiritual resources that we need if we are to acquit ourselves in this situation cannot be separated from the question of worship. Only if man, every man, stands before the face of God and is answerable to him, can man be secure in his dignity as a human being. Concern for the proper form of worship, therefore, is not peripheral but central to our concern for man himself." (46)

This central concern is reflected in two canons which, in a manner of speaking, are the foundation upon which all other ecclesial rights rest. The first, c. 213, guarantees the Christian faithful access to the spiritual goods of the church, "especially the Word of God and the sacraments," and its constitutive nature is recognized in the commentary by Fr. James Provost: "All Christians have a right to receive help from the spiritual goods of the church. This right is rooted in baptism; it is not a privilege granted by church authorities but a claim rooted in the action of Christ that empowers Christians to seek the services of the sacred pastors. These latter have the obligation to see that this help is made available." (47)

Canon 214 is the second foundational statute, and it guarantees both the right of the Christian faithful to worship in accordance with lawful norms and confirms their freedom "to follow their own form of spiritual life consonant with the teaching of the church." The meaning of the first clause of this canon is self evident, as Fr. Provost's commentary illustrates: "Each person by baptism belongs to a specific Ritual Church sui iuris (c. 111). Although any Christian in full communion may worship according to any of the Ritual Churches in communion, the ceremony itself must be in accord with the liturgical law of that particular Ritual Church. For the Latin Church this is emphasized by canon 846.

"As indicated in canon 846, the right to worship according to the prescriptions of one's own rite carries with it the obligation on the part of the sacred ministers to celebrate that worship in keeping with the appropriate liturgical books. Those who fail to do so may be denying members of the congregation a basic right." (48)

According to Fr. Provost, the meaning of the second clause of c. 214 is especially clear: "It is contrary to the right guaranteed in this canon to prohibit a given form of spirituality or to require that only certain ones be observed by people in a given locality. Religious freedom applies within the Church as well as in society, and this is its most visible application." (49)

Based on practical experience, this writer is aware of two problems which involve possible violations of c. 214. The first is the reported frequent occurrences of unauthorized additions, deletions or changes in the Mass. Such lack of compliance has effects which those who are responsible for the abuses may not realize. In the words of theologian Germain Grisez:

"There are several reasons why priests ought to be especially conscientious in observing Church law. First, compliance with the law maintains unity among the clergy and solidarity with the bishop; noncompliance is divisive. Division seriously impedes the work of the Church. Second, compliance (except in the rare case in which a law truly is inapplicable) serves the people; noncompliance arrogantly imposes upon them personal judgments instead of the proper authority of the Church. Third, compliance sets a good example of obedience; noncompliance sets a bad example of self-will.

"These points can be illustrated by the many arbitrary, usually minor, and seemingly insignificant variations in the liturgy one encounters today. Such variations lead to disagreements, irritation, and uncooperativeness among priests. Virtually all of them are ill-considered, and they often compel the faithful to tolerate things they rightly find repugnant. Finally, an easygoing approach to the liturgy detracts from its sacred character, while at the same time suggesting that Christians may do as they please in very important matters." (50)

The Fathers of the Second Vatican Council established the general liturgical norms now in force and, in particular, decreed that regulation of the liturgy depends on the Apostolic See and, as far as the law determines, on the diocesan bishop. As this same norm expressly declared: "Therefore, no other person, not even if he is a priest, may on his own add, remove, or change anything in the liturgy." (51) Three years later, the Sacred Congregation of Rites considered it necessary to repeat this admonition. (52) Despite the clarity of these documents, the Sacred Congregation for Divine Worship felt compelled to restore "discipline and order in the celebration of the Eucharist" by reviewing once again the true principles of the reform of the liturgy. (53)

In 1980, Pope John Paul II reminded all the bishops that the celebrant who presides over the Eucharistic assembly "cannot consider himself a 'proprietor' who can make free use of the liturgical text and of the sacred rite as if it were his own arbitrary personal style." (54) Following the Holy Father's letter, the Sacred Congregation for Sacraments and Divine Worship identified a number of specific abuses, called for corrections and affirmed: "The faithful have a right to a true liturgy, which means the liturgy desired and laid down by the church." As recently as December 4, 1989, the Holy Father reiterated his criticism of those who persist in abusive innovations. (55)

The second problem concerns access by those evoking a sincere desire and attachment to the Mass celebrated according to the 1962 typical edition of the Roman Missal, popularly and mistakenly called the Tridentine Mass. Many bishops in the U.S. have responded favorably to petitions for the use of the 1962 Missal. Currently, there are 53 Masses offered every Sunday in 42 dioceses and 58 Masses celebrated once or twice per month in 42 other dioceses. However, other petitions have been denied for the very vague reason that there is "no need" or that the "Tridentine Mass" would be "divisive." There is a question as to whether the denial of such a petition without sufficient cause might be an abuse of episcopal discretion, if not the denial of a privilege in the sense of c. 76. (56) An interesting sidelight to the controversy is the result of a Gallup Poll showing that if the old Mass were available, 8 percent of Catholics would attend always, 17 percent would attend frequently, 51 percent would attend occasionally and only 23 percent would never attend. (57)

C. Governing

The power of governance can be exercised by a number of people in a number of ways according to the norms ofcc. 129-44. As in the case of catechetics and liturgy, it is beyond the scope of this thesis to attempt an analysis of the power of governance per se. Therefore, all that will be done here is to note the basic elements of the office of the diocesan bishop and some aspects and examples of the exercise of discretion. We find a basic description of the office of bishop given by the Second Vatican Council in Lumen Gentium: "The bishops, in as much as they are the successors of the apostles, receive from the Lord, to whom all power is given in heaven and on earth, the mission of teaching all peoples, and of preaching the Gospel to every creature, so that all men may attain to salvation through faith, baptism and the observance of the commandments...That office, however, which the Lord committed to the pastors of his people is, in the strict sense of the term, a service, which is called very expressively in sacred scripture a diakonia or ministry." (58)

The way this office is to be exercised was set forth in the same document: "Sent as he is by the Father to govern his family, a bishop should keep before his eyes the example of the Good Shepherd, who came not to be waited upon but to serve (cf. Mt. 20:28; Mk. 10:45) and to lay down his life for his sheep (cf. Jn. 10:11). Taken from among men and oppressed by the weakness that surrounds him, he can compassionate those who are ignorant and erring (cf. Heb. 5:1-2). He should not refuse to listen to his subjects whose welfare he promotes as of his very own children and whom he urges to collaborate readily with him." (59)

The pastoral duties of the diocesan bishop are set forth principally by the Fathers of Vatican II in the Decree on the Pastoral Office of Bishops in the Church. The conciliar teaching is embodied in the Code of Canon Law, in canons 383(1), 386(1) and 387. Moreover, his duty to see that the laws of the Church, especially those which pertain to the ministries of word and sacrament, are observed as defined in c. 392.

The diocesan bishop does not exercise the power of duties of his office as a legate or mere subordinate of the pope and the diocese is not merely a division or branch of the universal Church. The Catholic Church is made up of what are called particular churches, each one possessing all the necessary elements which belong to the others and to the universal Church. "In these communities, though they may often be small and poor, or existing in the diaspora, Christ is present through whose power and influence the One, Holy, Catholic and Apostolic Church is constituted." (60)

Bishops, of course, are not accountable in the exercise of their power of governance to those subject to them. At the same time, canonists have noted that those who are subject to discretionary administrative power are entitled to some kind of consultation before decisions which affect their legitimate interests are made. One such canonist is John P. Beal, who said:

"The substantive justice of discretionary decisions is certainly important. However, the manner in which discretionary authority is exercised and the way in which interested persons perceive these exercises of discretionary authority are not merely subjective considerations peripheral to justice. Over and above any particular right or interest of individuals that may be moderated by administrative authority, persons—and a fortiori Christians—have a right to be treated in a manner that comports with their human and Christian dignity. The concrete requirements for treating persons in a manner consistent with their human and Christian dignity are not always clear.

"Nevertheless, a fundamental requirement of fair, decent treatment of persons is that individuals have some opportunity for meaningful participation in decisions that affect their status or interests. Such participation is an expression of 'the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one.'

"Both in civil society and in the Church, broad discretionary authority can create the climate in which officials can, in fact, be unjust as well as the climate in which their actions can be perceived as unjust. The perception of injustice can easily erode legitimacy of the authority of civil and ecclesiastical officials and the moral authority of their decisions. When church authorities exercise their discretion in a manner that is, in fact, unjust or when affected individuals and the faithful at large perceive their discretionary decisions as unjust, the consequences of real or perceived injustice reach far beyond the individual case. The very credibility of the church as a herald of the gospel is called into question." (61)

Examples of perceived abuses of discretionary authority abound, but there are two subjects which have caused considerable controversy which bear mentioning, i.e., the closure of parishes and the renovation of parish church buildings. In an age of rapid demographic changes in areas which were once heavily Catholic and when dioceses have come under heavy financial pressures, it is inevitable that decisions to close or consolidate parishes will be made. It is equally inevitable that many if not most of these decisions will be painful and will cause opposition, some of it quite abrasive, as illustrated by the following excerpt from a newspaper column by the Rev. Andrew Greeley:

"A year ago I reported in my analysis of the Sun-times study of the archdiocese that half the laity thought there was a lot of corruption in the church, a lot of priests were surprised and angry. 'What do they mean by corruption?'

"'Do you think, I replied, 'that they don't remember the financial scandals of the [John] Cardinal Cody years? Do you think they are unaware of the arrogance and incompetence that went into school and parish closings? Do you think they are ignorant of the pedophile scandals?'

"'Will you get off that?' they often reply. 'We're sick of hearing from you about pedophelia.'

"They're not willing, however, to do anything about putting our own house in order. The priesthood thinks it has a monopoly on the Catholic heritage but it is not open to conversion by it.

"Joseph Cardinal Bernardin has not eliminated the corruption, not because he is dishonest personally, but because he is afraid to share the power—and perhaps terrified of the mess all around him.

"Everyone wants to sustain the schools and charitable works that the church does. Everyone wants to be generous. But it does not seem unreasonable to ask for truth as a price to be paid for generosity." (62)

This writer has received information from pastors and parishioners throughout the United States and has assisted in parish closure cases in the Archdioceses of Chicago, Cincinnati and Detroit and the Dioceses of Albany, Davenport and Pittsburgh. In these instances, it was not so much the closures themselves which prompted the objections of the people as it was the perception that the decision process was flawed. However, at the same time, it must be acknowledged that some criticisms of diocesan officials were unfair.

Renovating or demolishing parish churches is usually even more controversial than closing a parish because the community itself remains intact and the wounds resulting from differences between parishioners themselves and between parishioners and Church authorities remain open. In many cases, the matter is complicated because the church building is historically and architecturally significant. This was the subject in an article by J. Randall Cotton in a periodical published by the Philadelphia Historic Preservation Corporation, the relevant portion of which follows:

"Since 1963 the worship spaces of most Roman Catholic churches worldwide, including thousands of historic ones, have been altered in order to accommodate changes in the liturgy that were instigated by the Second Vatican Council (commonly known as 'Vatican II'). The majority of these changes have been accomplished with minimal disruption and in a spirit of harmony. But 25 years after the first Vatican II documents and a myriad of subsequent post-conciliar papers and commentaries, there is still controversy in a number of cases. Consider the following:

"Parishioners at St. Stephen's church in Hamilton, Ohio, have enlisted the aid of the St. Joseph Foundation—an organization that assists Catholic laity in vindicating their ecclesial rights—to assist them in opposing proposed renovations to the historic 1853 building. They fear that renovations to the oldest church in Butler County will go far beyond minimal Vatican II liturgical standards. Many feel the present worship space is already in conformity with Vatican II and wish to preserve threatened features, including the sanctuary arrangement, works of art, pews, statuary and the communion rail.

"The leadership at the Church of Notre Dame in Manhattan is moving forward with plans to dissect an original marble Beaux-Arts reredos (a screen behind the altar) at the landmark 1914 church. In order to move the high altar forward, it would be separated from the reredos despite the fact that a Vatican-II-conforming free-standing altar was installed 20 years ago. The Ad-Hoc Committee for the Preservation of Notre Dame claims that the integrity of the bronze bas-reliefs depicting the death and resurrection of Christ would be destroyed in the process. One critic said, 'They are destroying a work of art. It's like sawing a painting or sculpture in half.'

"Despite pleas from laity and local preservationists for a more conservative renovation, in 1986 the Archdiocese of Indianapolis undertook a $1.5 million renovation of the 1905 Saints Peter and Paul Cathedral. Included was the removal of the marble high altar, two marble side altars, all the pews, communion rails, four marble nave altars, Stations of the Cross, the marble pulpit, and the bishop's and celebrant's chairs. The main doors, lighting fixtures and balcony were also altered, and some artwork by the well-known Rambusch firm of New York was painted over. Most of the displaced artifacts were sold to liquidators in Dayton, Ohio.

"In 1984, a small group of parishioners in Freeburg, Missouri, sued the Diocese of Jefferson City over the removal of sculptures from two side altars. The parish petitioners argued that the bishop could only hold the church property in trust for the congregation. A lower court ruled that it was a liturgical rather than a proprietary issue and that it had no jurisdiction in the case. The U.S. Supreme Court upheld the decision by refusing to hear the case.

"In all these cases, one common denominator is a clear difference between certain parishioners and the clergy in their interpretation of the Vatican II position regarding worship spaces. But another underlying point of contention is the perception that decisions regarding alterations are being made without adequate input from or sympathy for the attitudes of the parishioners." (63)

The central issue in renovations appears to be really the distinction between what liturgical laws require and what is deemed desirable by liturgical experts. In this regard, it is useful to recall the words of Fr. Komonchak quoted earlier. (64)

Controversies have existed in the Church for centuries and surely will continue. While the Church may not be able to provide a just and amicable resolution to every dispute or misunderstanding, the Church should serve as an example for society. The examples cited in the text of this thesis and in the appendices are not claimed to be typical of the United States as a whole, but they do indicate that there is room for improvement. (65)

VII. Available Remedies

Not every mischief demands a remedy. Forbearance and forgiveness are essential elements of Christian life, as Catholics are reminded by the norms of the Spiritual Works of Mercy, i.e., to bear wrongs patiently and to forgive all injuries. There are times, however, when such considerations as the common good or the protection of innocent parties may require that steps be taken to seek a remedy for an abusive or unjust act. Then, the means established by the Church may be considered.

A. Tribunal

Most people think of diocesan tribunals as courts which hear nothing but matrimonial cases and, almost without exception, their perception is correct. Nevertheless, c. 1400(1) appears to envision a trial involving some other type of case, but c. 1400(2) excludes controversies arising from acts of administrative power. There has been one non-matrimonial trial reported recently which involved a case of rights and defamation before the Vancouver Regional Tribunal. (66)

The Roman Rota is known to accept non-matrimonial cases and, according to c. 1404(3), is the tribunal of first instance in contentious cases to which a bishop is a party. The chances of a rights case reaching the Rota are remote and, in any event, would require the services of a qualified canonist. As most rights cases involve acts of administrative power, it is difficult to see the Rota or a diocesan tribunal as the proper forum except as a relatively rare exception.

One other possible but unlikely way in which a non-matrimonial case could be brought before a tribunal would be if the rights or temporal goods of a juridic person represented by the diocesan bishop were at issue. Then, according to c. 1419(2), the appellate tribunal would judge the action in first instance.

B. Administrative Recourse

There is one canonical process which the faithful can employ as a means of redress against injuries or violations of rights arising from the exercise of administrative power. The particulars of this process, called administrative hierarchical recourse, are found in cc. 1732-39 of the 1983 Code. As defined by canonist John P. Beal: "It is a legal remedy available to any person who believes that he or she has suffered injury from the administrative act of an ecclesiastical official, or will suffer damage if an administrative decision already made is executed." (67)

The procedures specified in cc. 1732-39 were not included in the 1917 Code but that does not mean that administrative recourse is something entirely new. In fact, in practice is predates the Codex Iuris Canonici and was recognized in principle at least as early as the fourth century. (68) According to Justin D. McClunn:

"Recourse implies the exercise of a person's right to defend himself against probable or possible injustice or injury. Since this right of defense derives from the natural law itself, one may say that in substance the possibility of seeking recourse is a postulate of the natural law, while in its form, that is, in the formalities which must attend it, the possibility of seeking the recourse effectively is a benefit granted by human positive law. Every man has the right to protect himself against probable and possible violation of any of his rights. It is positive human law that determines how he is to exercise this protection and defense. Hence every complete legal system, both ecclesiastical and civil, includes remedies to be used by members of society against the possible judicial and extra-judicial violations of their rights." (69)

Like a trial, administrative recourse is a formal process and, as such, it is seen by the Code as a last resort (c. 1733). There is very little information concerning the results of the recourse process, and the one survey which was published reveals there were only thirty-six administrative appeals to the Holy See during the fifteen years from January 1, 1969, to December 31, 1984, thirty-one of which involved clergy or religious. (70)

In the period from January 1, 1987, to April 30, 1991, the St. Joseph Foundation assisted in twenty-one recourses to the Holy See, nineteen of which were appeals by laity and two by clergy. So far, eleven cases have been decided by dicasteries, four of which have been appealed to the Signatura. From the point of view of the petitioners, the results have not been encouraging as ten congregational decisions favored the bishop, as did three decisions of the Signatura. Ten cases are awaiting decisions by congregations and one by the Signatura.

In general, administrative recourse can be complex, though normally not as complicated as a tribunal process, so the assistance of a canonist is recommended.

C. Informal Procedures

The only published report on informal procedures is the Due Process in Dioceses in the United States 1970-1985, cited previously. Besides the results reported in Chapter V, it is interesting to note that in only 495 of the 939 total cases was a decision reached. (71)

The St. Joseph Foundation has assisted in just seven informal "due process procedures." Two were decided in favor of the pastor whose decision was being challenged; three were ignored by the diocesan due process office; one was abandoned by the initiator and one was abandoned after the challenged priest refused to participate.

Unfortunately, it is difficult to comment on the experience of due process cases due to the lack of substantive information.

VIII. Recommendations

It is easy to see why aggrieved laity are unwilling to approach the person whom they view as responsible for the alleged offense, especially if that person is a priest or religious. The traditional deference Catholics have shown to the clergy and religious is a formidable barrier to open communication and one which such authorities have been known to exploit to their advantage. In other words, however much practices regarding clerical or religious attire may have changed in recent years, hiding behind the collar or the habit remains a widely used tactic and, moreover, it is one which lay professionals have, in a manner of speaking, adopted.

The aggrieved laity face a further disadvantage in that they lack knowledge of such subjects as canon law, theology, liturgy or Church history. They rightly fear that they would be made to look foolish if they attempted to plead their own case. They know that they face professionals who have more knowledge, experience and resources, so it is virtually inevitable that they will decline to participate in a process in which they see the opposing parties as unequal.

A. Counsel

This writer is of the opinion that the due process system will not fulfill its potential until aggrieved individuals have access to professional counsel who can analyze their case, properly prepare it and, if necessary, represent the party in much the same way as a civil lawyer. Therefore, an experimental program to recruit and train civil lawyers to advise and assist aggrieved Catholics should be established.

The St. Joseph Foundation has been contacted by some fifty lawyers in dioceses throughout the country and is consulting with several individuals who have degrees in both canon and civil law to determine what the next steps should be.

B. Access And Publicity

People cannot use a recourse which they do not know exists. If they have a grievance and do not use a process which would facilitate reconciliation, the situation can deteriorate to the point where healing becomes nearly impossible, as this writer has witnessed personally on many occasions. (72)

It would be quite easy to establish a position staffed by someone who had good listening and analytical skills who, ideally, might have a background in social work or one of the other helping positions. This "Grievance Clerk," or whatever title is used, should be a lay person who can conduct an initial interview with a complainant, determine whether there is a substantial issue of justice rather than something peripheral such as a a personality conflict or a lack of pastoral sensitivity.

Even if there is no substantive injustice, this does not mean that the Grievance Clerk's work is done. The fact that a complaint was made at all is some indication that, at the very least, someone's feelings are bruised and a neutral third person could serve in an important way to bring about a reconciliation between the parties and restoration of harmony in the community.

If it appears that a violation of rights has taken place, then the Grievance Clerk would explain the available processes such as conciliation, mediation and arbitration. It is not envisioned here that skilled counsel would be employed at this point unless required by some special complexity such as the involvement of a group of persons or the need by one of the parties for expert assistance.

Finally, it is critically important that the existence and availability of the office of Grievance Clerk must be made known on a continuing basis.

IX. Conclusions And Reflection

A. Conclusions

With very little, other than merely anecdotal data, upon which to base conclusions perhaps it would be more accurate to call them impressions or opinions. Whatever word one may choose to define them, I would offer the following:

1.There is every reason to believe that the vast majority of those who exercise authority in the Church in the United States are fair-minded people who make a sincere effort to be just in the exercise of their offices.

2.Because those who exercise authority in the Church are subject to the same human weaknesses as those who do not, mistakes will be made and injustices will occur in the governance of the Church.

3.The above notwithstanding, the Church cannot afford to take a complacent or fatalistic approach to violations of the rights of its members.

4.While progress has been made, much work remains to be done, particularly on the parish and diocesan level. Keeping in mind that many problems are pastoral rather than canonical in nature, the due process procedures need to be improved and expanded.

At this point, it should be noted that many complaints do not involve a violation of someone's rights. It may be that a decision was mandated or announced in a way that was perceived to be insensitive. Conversely, perhaps a perfectly proper act of governance was challenged publicly by intemperate and inaccurate statements. In any event, although neither the law nor rights were violated, the mission of the community will be impaired until peace and harmony are restored.

As those who are involved in trying to increase the scope and enhance the effectiveness of the Church's remedies for the abuse of rights should remember always the advice of the Fathers of the Second Vatican Council as they pursue their work:

"The Church, 'like a stranger in a foreign land, presses forward amid the persecutions of the world and the consolations of God,' announcing the cross and death of the Lord until he comes (cf. 1 Cor. 11:26). But by the power of the risen Lord she is given strength to overcome, in patience and in love, her sorrows and her difficulties, both those that are from within and those that are from without, so that she may reveal in the world, faithfully, however darkly, the mystery of her Lord until, in the consummation, it shall be manifested in full light. (73)

B. Reflection

In the current legal debates over the separation of church and state and the political controversies over the rights of various groups within our society, religion in general and Catholicism in particular, are often portrayed, explicitly or implicitly, as threats to the free exercise of human rights. This is as inaccurate as it is regrettable because the basic foundation of human rights can be seen in the account of the creation of all humans in the image and likeness of God, in marked contrast to the prevailing Oriental ideology of the time that only the king, and not his subjects was so created. Ironically, the most appalling atrocities in this century were committed, not in the name of Christianity, but by such idealogues as Hitler, Stalin and Pol Pot, who had embraced various forms of militant opposition to religion. (74)

The Catholic Church possesses a rich theological tradition of the recognition of human dignity, notably on the Christological level in that God bestowed unique dignity on human beings in the person of Jesus Christ. (75)

The dignity of the laity was recognized by the Second Vatican Council by entrusting lay Catholics with the exclusive mission of sanctifying the temporal order. (76) This duty was given to the laity alone, as already noted earlier in reference to c. 225(2) and provides the linkage between the realization of the rights defined in the Code of Canon Law and the theological mission which the lay faithful are obliged to pursue. The right of access to the word of God, to the sacraments, to a liturgy celebrated in accordance with lawful norms and to a Catholic religious formation is essential to the accomplishment of that mission.

If all the rights of the faithful are honored in practice as well as in theory, then the laity will be aided in their mission by a Church which serves as an example to all people. This thought was expressed in a particularly moving way by the German theologian and bishop, Most Rev. Walter Kasper, when he delivered the Cardinal Dearden Lecture at the Catholic University of America in 1990, and his words provide a fitting end to this thesis:

"The Church is an expert in matters of humanity, Pope John Paul II has rightly said. Yet this title places an obligation upon the Church. It must be a mirror of justice. An atmosphere of freedom, trust and mercy must reign in the Church, and govern relations between the faithful, and between the magisterium and theologians. The Catholic Church must be a Church with a human face. The service that the Church can perform for the realization of human rights consists not merely in verbal appeals, however important they may be, but also in setting an example itself by doing right. The Church's commitment to the foundation, interpretation, and defense of human dignity and human rights is gauged not just by its words, but far more by its action and life. Least of all by the Church must the thirst for justice and the yearning for humanity be disappointed. (77)

List Of Appendices


The four appendices consist of documents and arguments from actual cases in the files of the St. Joseph Foundation. So that these materials may be properly understood, the following particular points should be noted:

1. Three of the four cases (A, B and D) received extensive coverage in the news media and the details have been made public. The other (C) involves nothing of a private or personal nature and is included here with the permission of the petitioners. Therefore, it was not deemed necessary to delete the names of persons or places.

2. No attempt is being made here to re-argue the cases. Only those documents necessary to support a canonical or pastoral point are included.

3. Original documents are used if possible. Copies have been made if the original is difficult to read or reproduce.

4. Although the four cases here are similar to many others in the files of the St. Joseph Foundation, it is not alleged that these kinds of tensions or problems are typical of parish life in the United States.



1. Brief of the case and CLSA advisory opinion


1. Statement of the Facts

2. Analysis by Duane L.C.M. Galles, J.D., J.C.L.

3. Letter to the Bishop of New Ulm from Count Capponi

4. Letter to parishioners of St. Boniface from Bishop of New Ulm


1. Letter to Ms. Emerson from Archbishops Hunthausen and Murphy

2. Brief of the case


1. A summary of the facts

2. Petition to the Bishop of Crookston from Ralph Smith, Esq.

Appendix A

Case Synopsis


This case involved a controversy over the right of parents to withhold their children from sex education programs in a Catholic school. In the context of the case, the term sex education is understood to mean the presentation of explicit information on sexual anatomy and methodologies, including the prevention of sexually transmitted diseases, in a classroom setting to children of both sexes. It does not include instruction in the principles of sexual morality or the biological aspects of reproduction as one would normally encounter in a high school biology course.

There are three general objections to the kind of sex education described. First, some professionals in the field of psychology, emotional development, psychiatry and medicine have expressed concern that the presentation of such explicit information could have a traumatic effect upon some children. Second, there are no known studies which show that sex education has any beneficial effects. Finally, as the following brief argues, many parents believe that classroom sex education violates their right to determine just when, where, by whom and under what circumstances this delicate information will be presented to their children.

The controversy began when eight sets of parents objected to the introduction of one sex education text series, Benziger Family Life Program, in a parish school in the Diocese of Victoria, Texas. They approached the principal who agreed to release their children from class while the texts were used, but this permission was withdrawn by order of the diocesan superintendent of schools.

The parents eventually submitted the dispute to the Council of Conciliation and Arbitration of the Archdiocese of San Antonio because, at the time, the Diocese of Victoria had no school office of its own and the Superintendent of Schools for San Antonio served in the same capacity for Victoria. Sadly, the case was withdrawn when the parents became disillusioned and either enrolled their children in other schools, taught them at home or moved elsewhere.

Appendix A-1

Canon 226

Right of Parents to Withdraw Children from Sex Education Classes in Catholic Schools or Religious Education Programs. (78)

The following facts and arguments are submitted for the purpose of seeking a canonical opinion from the Committee on Advisory Opinions of the Canon Law Society of America.

The Facts

The Benziger Family Life Program (hereinafter called "the Program") was published in 1958 and has since been the subject of controversy concerning its doctrinal and pedagogic adequacy. When the Program was introduced in the Archdiocese of Washington, D.C., the archbishop, who at the time was William Cardinal Baum and who had granted it an imprimatur, received so many complaints that he asked the Archdiocesan Committee for Doctrine to determine if the imprimatur should be withdrawn. While the committee did not recommend withdrawal, it did conclude that "the doctrinal content of the Benzinger (sic) Family Life Program is not adequate." The committee also stated that "...serious inadequacies exist in these books which render them inappropriate for use in the classrooms of Catholic schools and in CCD programs. These texts are inadequate not because of what they say, but because of what they fail to say."

The Program was introduced three years ago at the school in question, later removed and reintroduced in the spring of 1987. Eight families approached the school principal and asked that their children be excused, and he agreed to do so. However, the superintendent of schools instructed the principal, "Do not release any child from the obligation to attend this officially approved part of the total curriculum of Elementary School if the reason presented by the parents is their personal reservations about the content of the course or its implementation."

The parents have requested that the superintendent reconsider his position and are now awaiting a reply.

The Law

As one would ordinarily expect, the 1983 Code of Canon Law clearly reaffirms the sacramental nature of marriage. Thus it is not surprising that a definition of the duties of parents toward their children is to be found in Book IV, Title VII, Canon 1136. "Along with the duty of providing for their children's education, the law also states that parents have a right to do so. This right is grounded in the essence of marriage itself and may not be usurped or curtailed by others, including the state. Only in extreme cases, when parents are incapable of fulfilling their duties to the extent that the good of the children is seriously threatened, is this right forfeited."

The duties and rights of parents are similarly recognized in Canon 226: "In its struggle with civil authorities who wish to take over schools and to monopolize the educational enterprise, the Church has insisted that parents are the primary educators of their children and therefore have the primary right and duty to determine how that education will be carried out. The Council applied this position internally in the Church as well as in the Church-State struggle that occasioned it. Continuing this attention to parents within the Church's own activities, at various stages in the revision process canons have been added until now there is a veritable bill of parental rights and obligations scattered throughout the revised Code.

"This Canon is the foundation for the rest. Based on Gravissimum Educationis 3, it clearly applies within the Church's own legal system the principle that parents have the primary right and duty to see to the education of their own children. While this obligation and right are not absolute but must respect the requirements of the common good (in the temporal order and in the Church), they are so fundamental as to lead to further specifications on behalf of parents."

Parental duties and rights within the context of the Catholic educational system are again noted in Book III, Title III. "The first paragraph (of Canon 793) contains two fundamental assertions of parental rights and responsibilities regarding their children: (1) parents have both the obligation and the right to educate their offspring: this is a simple statement of the natural law, and it is derived from the fact that the parents conferred life on their children; . . . (2) Catholic parents have the duty and the right to select the most appropriate means and schools for the Catholic education of their children; the duty ('officium') implies both the grave obligation to see to the formation of their children in the Catholic faith in the best way open to them, and the right to make the determination, among the means of schools available, of those which are most suitable for their children. For this duty and right of selection to be meaningful, there must exist some options from which to make choices."

Canon 796 imposes the obligation of mutual collaboration on parents and teachers. It is presumed that the latter would include principals, superintendents and others who exercise authority in Catholic schools. "Both parents and teachers are admonished in the Second paragraph to work as partners in the educational process; parents are urged to cooperate with the schoolteachers, and the teachers to collaborate with the parents, listening to them and starting associations for them."

The Code of Canon Law is silent on education in human sexuality, but the subject is dealt with in other documents which have the force of law. The Apostolic Exhortation, Familiaris Consortio, states quite clearly: "Sex education, which is a basic right and duty of parents, must always be carried out under their attentive guidance, whether at home or in educational centers chosen and controlled by them. In this regard, the Church reaffirms the law of subsidiarity, which the school is bound to observe when it cooperates in sex education, by entering into the same spirit that animates the parents."

In its Guidelines for Sex Education, Educational Guidance in Human Love, the Sacred Congregation for Catholic Education stated: "The family has an affective dignity which is suited to making acceptable without trauma the most delicate realities and to integrating them harmoniously in a balanced and rich personality. The document thus places additional emphasis on the point: "From what has been said above ..., the fact remains ever valid that with regard to the more intimate aspects, whether biological or affective, an individual education should be bestowed, preferably within the sphere of the family." In recognizing that some parents may face difficulty in instructing their children in matters pertaining to sexuality, the Congregation also suggests, "...if parents do not feel able to perform this duty, they may have recourse to others who enjoy their confidence." The use of the words "feel" and "may" would seem to clearly imply that the initiative in taking such recourse is the proper prerogative of parents.

Should a difference of opinion arise between parents and school authorities over specific sex education programs, the National Conference of Catholic Bishops has declared: "Parents have a right and duty to protest programs which violate their moral and religious convictions. If protests based on well-founded convictions and accurate information are unsuccessful, they have a right to remove their children from the classes, taking care to cause as little embarrassment to the children as possible." This same principle was included in the Charter of the Rights of the Family, issued by the Holy See. "Parents have the right to insure that their children are not compelled to attend classes which are not in agreement with their own moral and religious convictions. In particular, sex education is a basic right of the parents and must always be carried out under their close supervision, whether at home or in educational centers chosen and controlled by them."

The Argument

We feel compelled to state that the focus of our argument is not over the merits of the Benziger Family Life Program or whether it should be a part of the curriculum at school. Although we do agree with the conclusion of the Committee for Doctrine of the Archdiocese of Washington that the Program is indeed unsuitable, the issue here is the exercise of our parental right to withdraw our children from a particular course, for what we believe are serious reasons, without having to remove them from school.

We would argue that the law is clearly in support of our position that parents have a duty and right to make important decisions with respect to the moral formation of their children, especially when sex education is involved. As the situation now is at school, concerned parents can only acquiesce to their children's participation in a program they believe is seriously flawed or remove them from the school. If they choose the latter, the only alternatives are to place their children in public schools, enroll them in a Catholic school some thirty five miles distant or attempt to educate them at home. In the face of such choices, parental rights become meaningless.

The Question

Are the parents correct in asserting a canonical right to withdraw their children from the sex education program in question without being required to withdraw them from the school?


The above brief is well argued; it draws upon good authorities, and it has real merit. But it is not a convincing canonical argument. The canons do strongly assert the rights and responsibilities of parents for the nurture and education of their children, but they do not specify those rights and responsibilities to the extent or in the detail that the priest is trying to apply them. (79) One will search in vain for canonical authority for actions so specific.

Permit me to comment briefly on the sources cited in this brief. The Committee on Doctrine of the Archdiocese of Washington has no special authority or standing. It is a group of people whom the Archbishop asked to advise him. The group was probably no more distinguished than the consultors used by the Benziger company on its Family Life Program.

The brief has cited some of the commentators (including me) on the Code of Canon Law (on canons 1136, 226, 793 and 796). The commentators try to furnish explanations of the church's laws, but their opinions do not have the force of law nor any other special authority. Their comments do serve to highlight the Code's attention to parental rights and responsibilities, but they do not suggest that parents have a right to pick and choose among the curricular offerings of a school. (80)

The other four invoked in support of the argument for the right to withdraw do not have the force of law (as asserted in the brief). They are teaching documents with varying levels of doctrinal (as over against disciplinary or legal) authority. (81) In my opinion one cannot deduce from those sources a strictly enforceable canonical right. However, the documents are authoritative and they are to the point. Indeed, the National Catechetical Directory, Sharing the Light of Faith, is quite explicit (in number 191) on the issue under discussion here.

Even though I do not agree that parents are correct in asserting a canonical right to withdraw their children from the sex education program in question, I would conclude that parents have a strong and legitimate interest in this matter, an interest and a concern that should be attended to. There may be other remedies besides withdrawing their children from the program. Perhaps the program can be altered or supplemented so as to make its contents acceptable to the parents.

James A. Coriden, J.C.D., J.D.

Appendix B

Case Synopsis


The volunteer teachers of the elementary C.C.D. program at St. Boniface Parish in Stewart, Minnesota, became concerned over the incorporation of what they believed were the teachings of the controversial theologian, Matthew Fox, O.P., in the curriculum. Since St. Boniface did not have a pastor in residence, they first approached the parish Pastoral Minister, Sr. Annette Fernholz, S.S.N.D. and, when they received no satisfaction, they took their complaints to the parish council and the pastor, Rev. Dennis Becker. Other pertinent facts leading up to the formal recourse are included in the extract from the brief of the case which follows the synopsis.

The parishioners who supported the teachers petitioned the Holy See for relief on August 11, 1989. Although their appeal was rejected by the Congregation for Clergy, the objectives of their petition were attained. However, the interesting points concerning penalties made by two canonists were never answered formally, although this writer has been informed unofficially that the Congregation took them seriously.

It appears that the parish is now on the road to reconciliation and harmony even though there are some residual problems.

Appendix B-1

The Facts

St. Boniface Parish, which celebrated the centennial of its founding in 1987, is located in the city of Stewart, a small rural community some sixty miles west of Minneapolis. The first European settlers, who arrived in the area in the mid-nineteenth century, were predominantly German and their descendants are among the approximately one hundred and thirty families in the parish today.

The parish church was constructed in 1903 and has been well maintained and supported by the people. The church has been extensively remodeled several times, most recently in 1983 at a cost of $120,000. As of January 31, 1989, the parish debt was only $5,000.

For most of its existence, St. Boniface has been fortunate enough to have a resident pastor. Rev. John G. Cooney served from 1980 until his retirement in 1987, after which the parish has been part of a "cluster," defined by the Diocesan Plan for Parishes as "a grouping of several parish communities served by at least one priest, one or more pastoral administrators, and possibly other staff members." The parishes of St. Boniface and St. Anastasia in the City of Hutchinson compose a cluster, with two priests, Revs. Dennis E. Becker and Richard C. Gross in residence at the latter.

Sister Annette Fernholz, S.S.N.D., was appointed pastoral administrator of St. Boniface Parish, effective August 1, 1988. Within four months of her assuming her position, some of the CCD teachers began to have questions concerning the content of the parish catechetical programs. Many of those questions concerned the alleged incorporation of elements of Creation Centered Spirituality and the views of Fr. Matthew Fox, O.P., who is now observing a one year sabbatical from teaching, public speaking and writing at the request of the Holy See. Although the validity or accuracy of the questions are not the object of this recourse, it is necessary to note the fact that they were raised because of subsequent actions taken by diocesan authorities. Statements containing particulars of the parishioners' concerns are appended as part of this petition.

During the month of April, the concerns which had generally been limited to the teachers and their families became known to and discussed by the parish community at large. Sister Annette's teaching methods were discussed at several parish council meetings; some parishioners wrote letters of complaint to the Bishop of New Ulm and the Apostolic Pro-Nuncio and a two-day retreat conducted by Dr. Charles Lofy was held at the behest of Fr. Becker on April 25 and 26. On April 25 the teachers presented their position to the parish council and, four days later, six of them submitted their resignations citing as their reason the curriculum and methods introduced by Sr. Annette.

On May 8, Bishop Raymond Lucker and Rev. Jerome Paulson, the Vicar General, came to Stewart and addressed a meeting of the parishioners. The text of their remarks is appended as part of this petition, but many of those in attendance have expressed dismay that no dialogue was permitted.

Although the characterizations of the parish community and various allegations of misconduct made by Bishop Lucker and Fr. Paulson are not the object of this recourse, the recurrant and co-recurrants feel obliged to note that they would vigorously and categorically deny such allegations.

The following Sunday, the parishioners were given the opportunity to express their preference for either closing the parish or entering a process of reconciliation. On Trinity Sunday, it was reported that 28 had chosen closure, 45 wished to enter a reconciliation process and 42 ballots were mutilated or otherwise indicated that neither option was acceptable. At least 100 adult parishioners did not vote at all.

A second opportunity to choose a reconciliation process was offered to the parishioners in a letter from Bishop Lucker dated June 14. The parishioners were assured that the reconciliation process would not involve psycho-therapy or group counseling. Those who had authorized this recurrant to act as their procurator accepted the notion of a reconciliation process and so advised the bishop in a letter which was dated June 21 and hand delivered by two parishioners, Elna Vacek and John Schilling. Mrs. Vacek and Mr. Schilling had a brief meeting with Bishop Lucker and Fr. Paulson. Their recollections of the substance of the discussion are appended as part of this petition. It should also be noted that the letter of acceptance was endorsed by 99 adult parishioners, and it is assumed that a number of additional responses were mailed directly to the chancery.

On June 25, 1989, a notice was distributed to the parishioners of St. Boniface at Mass, presumably under the authority of the Bishop of New Ulm, that the Blessed Sacrament would be removed and no Mass would be held for the foreseeable future.

Appendix B-2

"Regarding the Stewart matter, you mentioned that the bishop has decreed that there be no celebration of Mass nor worship of the Eucharist outside of Mass in the Church of Saint Boniface in Stewart until a reconciliation has occurred. I would view this as a medical penalty, one intended to correct the offender and reintegrate him into the community. It is in the nature of a selective local interdict. It is local because it applies only to one certain place; it is a selective interdict in that it only prohibits there certain ecclesiastical functions, viz., the celebration of Mass and the worship of the Eucharist outside Mass. Presumably other ecclesiastical functions such as the liturgy of the hours, marriages with no nuptial Mass, funerals with no funeral Mass can still occur there.

"In character the penalty inflicted seems perpetual, since it is to continue indefinitely and it is not for a determined period of time. It is not an expiatory penalty because it applies to all, innocent and guilty. Thus, no visiting priest—no matter how unconnected with Saint Boniface or its people—may there celebrate Mass. No innocent member of Christ's faithful even if newly arrived from Timbuctu may hear Mass there or even worship the Eucharist there outside of Mass. Clearly it is not then a penalty inflicted merely to repair a breach of public order, and so an expiatory penalty.

"Now canon 1312(1) limits medicinal penalties to those set forth in canons 1331, 1332, and 1333. Canon 1332 governs interdicts but as defined there inflicts penalties ONLY on the offenders, not on the innocent. In short, the type of local interdict inflicted in the Stewart case is not available under canon 1332. Indeed, it was abolished on the first Sunday of Advent, 1983, with the coming into effect of the 1983 Code. In short, the bishop here appears to have inflicted a penalty traditional and available under the 1917 Code but in 1983 abolished. The list of medicinal penalties in canon 1312(1) appears taxative and a local interdict is not on that list.

"Secondly, while a bishop is entitled to proceed to inflict penalties by administrative decree, under canon 1342(1) if a just cause, e.g., scandal, urges it, this right is not without limits. Canon 1342(2) lays down, for example, that no perpetual penalties can be inflicted by administrative decree. Clearly this is done to protect the rights of Christ's faithful to due process of law. But the penalty inflicted here runs for an indefinite time and so is perpetual. It follows that the penalty inflicted must be illicit. In short, the penalty inflicted is a medicinal penalty abolished by the 1983 Code and a perpetual penalty which under canon 1342(2) may not be inflicted by administrative decree.

"But even if the penalty inflicted had been a medicinal penalty permitted under the reformed law of 1983 and for a determined time and so inflictable by administrative decree, the process observed was totally without the merest dictates of natural justice. The offenders were not informed of the mischief complained of nor were they given an opportunity to be heard before sentence was imposed. Audi alteram partem, so basic a principle of natural justice as to deserve a place in the processual law even of Holy Mother Church. In the instant case the procedure followed smacks of the discredited (and abolished) process ex informata conscientia of canons 2186-2196 of the 1917 Code. But even if that discredited process were available in the reformed law, it is patent that this could not be a proper case for its use."

Appendix B-3

August 29, 1989

Weiers Et Al II/Lord Bishop Of New Ulm

The Right Reverend Raymond A. Lucker
Lord Bishop of New Ulm
1400 Sixth North Street
New Ulm, Minnesota 56073

My Lord,

As advocate of Mr. Weiers and the parishioners of St. Boniface in Stewart, Minnesota, Diocese of New Ulm, I have become cognizant with your Lordship's letter addressed to the said Mr. Weiers on August 15, 1989.

May I point out that although the new Code does not give a definition of ecclesiastical penalty, such a definition exists in canon 2215 of the old Code which says: "poena ecclesiastica est privatio aliouius bone ad delinquentis correctionem et delicti punitionem a legitima aucteritate inflicta." In virtue of canon 6, no. 2 of the new Code the aforementioned definition of a canonical penalty forms part also of the new Code. May I also remind your Lordship that Canon Law as a legal system is not concerned with form but with the substance of things, which means that it is not the nomen juris which counts in judging the nature of a legal act but what it actually is and the effects it determines.

Your Lordship's decree which forbids the celebration of Mass and removes the Blessed Sacrament from the Parish Church of St. Boniface, linked as it is with the presumed behaviour of the parishioners which incurs your Lordship's displeasure, is certainly "privation alicuius boni and delinquentis correctionem" and therefore a "poena ecclesiastica."

Furthermore the old Code defines "censura" or "poena medicinalis" as "Censura est poena qua homo baptizatus, delinquens et contumax, quibusdam bonis spiritualibus vel spiritualibus adnexis privatur, donec, a contumacia recedons, absolvatur." (Canon 2241). On the basis of the aforementioned principles to say "There will be no Mass here at St. Boniface in the foreseeable future until it has been determined that a reconciled community again exists. The Blessed Sacrament will not be reserved in the Church during this time," is tantamount to depriving the "contumacea" parishioners of St. Boniface of "quibusdam bonis spiritualibus" until they "a contumacia recedant." This censure (now abolished, because it struck both the guilty and the innocent) was in the old Code called local interdict.

It will be from now on for the Holy See to decide whether the presumed behaviour of the parishioners of St. Boniface which excites your Lordship's displeasure exists and is worthy of a penalty and whether the penalty which your Lordship has inflicted is opportune and above all legitimate and the procedure proper, meanwhile I respectfully and formally request your Lordship, in the interest of my clients, to declare the suspension of the penalty in accordance to canon 1353.

I have the honour to be, my Lord, your Lordship's obedient servant,

Neri Capponi

Appendix B-4

October 19, 1989

Dear Brothers and Sisters in Christ of St. Boniface Parish in Stewart, Minnesota,

I have been asked by His Eminence, Antonio Cardinal Innocenti, Prefect of the Congregation for the Clergy in Rome, to communicate to you the Congregation's decision to reject the petition for administrative recourse submitted by Mr. Rodney Weiers on behalf of some parishioners of St. Boniface Parish. I received the correspondence, which arrived at the Catholic Pastoral Center on Tuesday, October 17, when I returned to my office this morning. A copy is attached.

The petition has been, for some, a source of immense suffering and an expenditure of tremendous amounts of time and energy. The decision simply points us firmly in the direction desired from the beginning: to grow in faith, to be healed and reconciled and to learn some new ways to work together in serving the Lord in your parish.

We now must leave the petition behind us and focus all our energies, our hopefulness and enthusiasm on the reconciliation process which begins with the Mission weekend on November 10-12, to be conducted by Fr. Michael Monshau, O.P. and Sr. James Marie Pallas, O.P. It is my deepest hope and prayer that all parishioners of St. Boniface Parish are willing to follow the suggestions put forth in the retreat team's letter, which you received this past week. I pray, too, that you will be patient with yourselves, and with others, during this soul-searching process of rebuilding, reconciling and growing in faith, hope and love.

Let us keep each other in thought and prayer as we move forward with the work at hand, the reconciliation of St. Boniface Parish.

Sincerely yours in Christ,

Most Rev. Raymond A. Lucker
Bishop of New Ulm

Appendix C

Case Synopsis


This case originated when some 150 people in Vancouver, Washington, in the Archdiocese of Seattle, petitioned for the Mass according to the 1962 Missal. When this petition was denied, an appeal was made to the Holy See.

What is noteworthy about the case is the argument concerning episcopal discretion. Since this petition was submitted, the additional argument has been developed that the motu proprio, Ecclesia Dei granted a privilege as defined by c. 76 and that, according to c. 77, those for whom it is intended have a right to the benefits.

The case is still unresolved. Despite repeated requests from the Pontifical Commission Ecclesia Dei, the Archbishop of Seattle has not supplied the information needed to judge the matter.

Appendix C-1

Appendix C-2

Appendix D

Case Synopsis


St. Philip's Parish is the only Catholic parish in the city of Bemidji, Minnesota. In 1907 a handsome, gothic revival church building was erected and its steeple soon became a landmark, which all citizens of Bemidji, Catholic and non-Catholic alike, identified with their city, especially when returning home from their travels because the spire could be seen for several miles when approaching from the south. For eighty years, St. Philip's church was well maintained and seemed destined to be a permanent part of the landscape of Bemidji.

In 1987, an ad hoc building committee to consider the future needs of the parish was established by the pastor. The events which transpired over the succeeding two years, summarized in Appendix D-1, led to a decision to demolish the church and replace it with a new structure. The pleas from the community at large for the preservation of the old church and the eventual petition to the Holy See for administrative recourse by more than 500 parishioners were to no avail. The building was demolished at 5:00 A.M. on March 24, 1990.

This is a case where no one's rights were violated and all the steps required by law were taken before St. Philip's church was demolished. However, it is painfully obvious that there was not a true consensus among the parishioners and that there was a lack of pastoral sensitivity in the way the decision making process was conducted and later implemented.

The new church has been completed and is now in use, but the parish remains divided. Although precise data is not available, individuals close to the situation say that many of the parishioners who opposed the demolition attend Mass at a church some fifteen miles distant in the neighboring diocese of Duluth, others continue to attend St. Philip's, some do not attend Mass at all and a few have joined other denominations. Some indication of the disarray of the parish may be found in the fact that the budget had to be cut in the 1990-91 fiscal year and will be cut again for 1991-92, that the parish was unable to meet its commitment for the 1990-91 Diocesan Appeal drive and has raised only $6,000 of the $30,000 goal for 1991-92 and that $300,000 had to be borrowed from the parish school trust fund.

Accounts of the pastoral and financial condition of St. Philip's parish may vary according to the point of view of the source. It does seem clear that many parishioners do have feelings of anger and alienation which might have been avoided.

Appendix D-1

Appendix D-2


1.John A. Hardon, S.J., Modern Catholic Dictionary, (Garden City, Doubleday & Company, Inc. 1980) p. 469. See also S.T., IIa IIae, q. 57, art. 1.

2.S. Robert Lichter, Daniel Amundson and Linda S. Lichter, Media Coverage of the Catholic Church (Bala Cynwyd; The Catholic League for Religious and Civil Rights, 1991) (New Haven: The Knights of Columbus, 1991), pp. 5-9.

3.The text of Msgr. Burke's address, "The Pastoral Character of Canon Law," appears in Homiletic and Pastoral Review, March, 1988, pp. 27-36.


5.The Code of Canon Law: A Text and Commentary, James A. Coriden, Thomas J. Green, Donald E. Heintschel, eds., (New York/Mahwah, Paulist Press, 1985), p. 945.

6.See 1. Cor 5:12-23

7.T. Lincoln Bouscaren, S.J., and Adam C. Elles., S.J., Canon Law: A Text and Commentary, (Milwaukee, Bruce Publishing, 1946), p. 2.

8.Ibid., P. 3.

9.Ibid., p. 4.

10.Ibid., p. 7.

11.The Code of Canon Law: A Text and Commentary, pp. 4-22.

12.See Codex Iuris Canonici, Petro Card. Gasparri, ed., P.J. (Chicago, Kenedy & Sons, 1918). This edition provides the sources for each of the 2414 canons of the 1917 Code. A similar edition of the 1983 Code was compiled by the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law and published in 1989; but it gives only the corresponding canon of the 1917 Code wherever applicable. Therefore, one who wishes to discover the sources of the canons of the 1983 Code must have access to the Gasparri edition.

13.The Code of Canon Law: A Text and Commentary, p. xxvi.

14.Communicationes I (1969) p. 83, as quoted by James A. Coriden in "A Challenge: Making the Rights Real," The Jurist, 45 (1985):1, p. 7.



17.Codex Iuris Canonici, P.J. Kenedy & Sons, Chicago, 1918, p. 18.

18.Coriden, Commentary in The Code of Canon Law: A Text and Commentary, p. 134.

19.Synod of Bishops, Convenientes ex universo, November 30, 1971 in Austin Flannery, Ed., Vatican II: More Postconciliar Documents, (Grand Rapids, Wm. B. Eerdmans, 1982) p. 703.

20.See The Jurist, 46 (1986):1.

21.Stanislaw Kowalczyk, "The Possibilities of Christian-Marxist Dialogue on Human Rights," Soundings 67 (1974), p. 169-170, as quoted by John Langan, S.J., in "Can There Be a Human Rights Problem in the Church?" The Jurist, 46 (1986):1, p. 28.

22.Langan, op. cit., p. 41.

23.Bishop Zenon Grochelewski, "Theological Aspects of the Judicial Activity of the Church, The Jurist, 46 (1986):2, p. 553.

24.Ladislas Orsy, S.J., in The Code of Canon Law: A Text and Commentary, p. 36.

25.Reg. 15, R.I. in VI.

26.Orsy, op. cit., p. 37.

27.Ellsworth Kneal, "Interpreting the Revised Code," in The Art of Interpretation, (Washington, Canon Law Society of America, 1982), pp. 30-31.

28.James A. Coriden, "Rules for Interpreters," op. cit., p. 21.

29.See The Official Catholic Directory, (Chicago, P.J. Kenedy & Sons, 1990).

30.Michael Schwartz, Renewal and Retrenchment, U.S. Catholic Dioceses, 1980-1990, (Washington, Free Congress Foundation, 1990), p. 1.

31.James A. Coriden, "A Challenge: Making the Rights Real," pp. 2-3.

32.Joseph A. Komanchak in an address to the National Pastoral Planning Conference and the Parish and Diocesan Council Network at Nashville, Tenn., on March 10, 1987, printed in Origins, April 2, 1987, p. 738.

33.See James H. Provost, Ed., Due Process in Dioceses in the United States 1970-1985, Canon Law Society of America, Washington, 1987.

34.Ibid., pp. 1-2.

35.See John J. Folmer, "Promoting and Protecting Rights: An Introduction," The Jurist, 46 (1986):1, pp. 1-13.

36.Notre Dame Study of Catholic Parish Life as reported in Origins, April 24, 1987, p. 736.

37.Due Process in Dioceses in the United States 1970-1985, p. 94.

38.Peter M. Shannon, Jr., "Canon Law/Civil Law," The Jurist, 45 (1985):2, p. 620.

39.Joseph Cardinal Ratzinger, Letter to Fr. Charles Curran, Sept. 17, 1985, reprinted in Origins, March 27, 1986, p. 668.

40.Schwartz, op. cit., p.

41.The Official Catholic Directory, 1990, p. 40.

42.Origins 18 (March 23, 1989), p. 691

43.Ibid., p. 683.

44.Origins 18 (April 27, 1989), p. 790.

45.See Appendix B.

46.Joseph Cardinal Ratzinger, The Feast of Faith: Approaches to A Theology of the Liturgy, (San Francisco, Ignatius Press, 1986), p. 7.

47.The Code of Canon Law: A Text and Commentary, p. 147.

48.Ibid., p. 148

49.Ibid., p. 149

50.Germain Grisez, The Way of the Lord Jesus, (Chicago, Franciscan Herald Press, 1983), p. 285.

51.Sacrosanctum Concilium, No. 223: AAS 56 (1964), p. 97-138.

52.S.C. Rites, Tres abhinc annos: AAS 59 (1967), p. 442-448.

53.S.C. Divine Worship, Liturgicae instaurationes: AAS 62 (1970), p. 692-704.

54.Letter, John Paul II, Dominicae cenae, in Flannery, Vatican II: More Postconciliar Documents, p. 125-154.

55.Vigesimus Quintis, No. 11, in Origins 19 (May 25, 1989), pp. 17-24.

56.See Appendix C.

57.Washington Times, March 8, 1991, p. 6.

58.Lumen gentium, No 24.

59.Ibid., No. 27.


61.John P. Beal, "Confining and Structuring Administrative Discretion," The Jurist, 46 (1986):1, pp. 73-74.

62.Chicago Sun Times, April 11, 1991.

63.J. Randall Cotton, "ALTARations: Vatican II and Historic Church Interiors," Inspired, Vol. IV, No. 1, January-February, 1989.

64.See Note 31.

65.See Appendices

66.See The Jurist, 49 (1989):1, pp. 286-302.

67.John P. Beal, "Protecting the Rights of the Laity," The Jurist, 47 (1987):1, p. 158.

68.See Justin D. McClunn, Administrative Recourse, (Washington, The Catholic University of America Press, 1946).

69.Ibid., pp. 11-12.

70.James H. Provost, "Recent Experiences of Administrative Recourse to the Holy See," The Jurist, 46 (1986):1, pp. 144-145.

71.Due Process in Dioceses in the United States 1970-1985, p. 95.

72.See Appendix D

73.Lumen gentium, No. 28, in Vatican Council II: The Conciliar and Post Conciliar Documents, p. 358.

74.Bishop Walter Kasper, "The Theological Foundation of Human Rights," The Jurist, 50 (1990):1, p. 154.

75.Ibid., p. 159.

76.Apostolicam actuositatem, No. 7 in Vatican Council II: The Conciliar and Post Conciliar Documents, pp. 774-775.

77.Kasper, op. cit., p. 166.

78.During the course of the controversy, the procurator for the petitioners submitted the brief, which had been prepared by this writer, to the Committee on Advisory Opinions of the Canon Law Society of America. The complete text of the brief and the opinion of James A. Coriden, J.C.D., J.D., appeared in Roman Replies and CLSA Advisory Opinions (1988), pp. 54-59.

79.Fr. Coriden, of course, did not know the identity of the author and assumed he was a priest.

80.The parents never claimed that they had a right to pick and choose among the courses required by the school. They claimed that parental rights in the sensitive matter of sex education only were paramount.

81.Had the brief been written in 1991 instead of 1987, the writer would not have made such an assertion.



Acta Apostolicae Sedis, Commentarium Officiale, Rome, 1909.

Code of Canon Law: Latin-English Edition. Washington: Canon Law Society of America, 1983.

Codex Iuris Canonici Pii X Pontificis Maximi iussu digestus Benedicti Papae XV auctoritate promulgatus praefatione et Indice Analytico-Alphabetico ab Emo. Card. Gasparri auctus, Rome: Typis Polyglottis Vaticanis, 1917; reprint ed., Chicago: P.J. Kenedy & Sons, 1918.

Codex Iuris Canonici Auctoritate Ioannis Pauli PP. II promulgatus fontium Annnotatione et Indice Analytico-Alphabetico auctus, Rome: Libreria Editrice Vaticana, 1989.

Flannery, Austin, ed. Vatican Council II: The Conciliar and Post Conciliar Documents. Collegeville, MN: Liturgical Press, 1975.

Vatican II: More Postconciliar Documents. Grand Rapids: Wm. B. Eerdman, 1982.

The Official Catholic Directory: Anno Domini 1990. Chicago: P.J. Kenedy & Sons, 1990.

Reference Works

Bouscaren, T. Lincoln and Elles, Adam C. Canon Law: A Text and Commentary. Milwaukee: Bruce Publishing, 1946.

Burke, Cormac. Authority and Freedom in the Church. San Francisco: Ignatius Press, 1988.

Canon Law Society of America. The Art of Interpretation. Washington: Canon Law Society of America, 1982.

Coriden, James A., ed. Who Decides for the Church: Studies in Co-Responsibility. Canon Law Society of America, 1973.

Coriden, James A.; Green, Thomas J. and Heintschel, Donald E., eds. The Code of Canon Law: A Text and Commentary. New York/Mahway: Paulist Press, 1985.

Grisez, Germain. The Way of the Lord Jesus. Chicago: Franciscan Herald Press, 1983.

Hardon, John A. Modern Catholic Dictionary. Garden City: Doubleday & Company, Inc., 1980.

Huels, John M. The Pastoral Companion: A Canon Law Handbook for Catholic Ministry. Chicago: Franciscan Herald Press, 1986.

Lichter, Robert S.; Amundsen, Daniel; and Lichter, Linda S. Media Coverage of the Catholic Church. Bala Cynwyd, PA: The Catholic League for Religious and Civil Rights. New Haven: The Knights of Columbus, 1991.

Mallett, James K., ed. The Ministry of Governance. Washington: Canon law Society of America, 1986.

McClunn, Justin D., Administrative Recourse. Washington: Catholic University of America Press, 1946.

Provost, James H., ed. Due Process in Dioceses in the United States 1970-1985. Washington: Canon Law Society of America, 1987.

Ratzinger, Joseph Cardinal. The Feast of Faith. San Francisco: Ignatius Press, 1986.

Schwartz, Michael. Renewal and Retrenchment: U.S. Catholic Dioceses, 1980-1990.

Articles in Journals

Beal, John P. "Confining and Structuring Administrative Discretion." The Jurist, 46(1986):1:70-106.

"Protecting the Rights of the Laity." The Jurist, 47(1987):1:129-164.

Coriden, James A. "A Challenge: Making the Rights Real." The Jurist, 45(1985):1:1-23.

Cotton, J. Randall. "ALTARations: Vatican II and Historic Church Interiors." Inspired, Vol. IV, No. 1. January-February, 1989:4-16.

Folmer, John J. "Promoting and Protecting Rights: An Introduction," The Jurist, 46(1986):1:1-13.

Grochelewski, Zenon. "Theological Aspects of the Judicial Activity of the Church." The Jurist, 46(1986):2:552-567.

Kasper, Walter. "The Theological Foundations of Human Rights." The Jurist, 50(1990):1:148-166.

Langan, John. "Can There Be A Human Rights Problem in the Church?" The Jurist, 46(1986):1:14-42.

Provost, James H. "Recent Experiences of Administrative Recourse to the Holy See." The Jurist, 46(1986):1:142-163.

Shannon, Peter M., Jr. "Canon Law/Civil Law." The Jurist, 45(1985):2:618-630.