The Cuomo-Communion Controversy

Hardly a generation ago, a canon lawyer’s remarks that a divorced man openly cohabiting with a divorced woman was ineligible to receive Holy Communion would have been greeted with a polite yawn, as if to say, “Of course he can’t be given Communion. Tell us something we don’t already know.” But then, a generation ago, most Catholics were generally aware of the fundamentals of sacramental discipline, or, at the least, of those aspects of sacramental discipline that went back to the Apostolic Age.

Earlier this year, New York Governor Andrew Cuomo, a divorced Catholic man who lives with television celebrity Sandra Lee (also divorced, but not Catholic), was given Holy Communion at a well-publicized Mass celebrated by Bishop Howard Hubbard of Albany. But my comments against Cuomo’s taking Communion, instead of occasioning yawns, provoked dozens of broadcast news segments, hundreds of newspaper articles, and thousands of web posts. My assertion that some things besides personal opinion can impact a Catholic’s eligibility to receive the Eucharist garnered nervous comments by bishops, open ridicule by left-leaning politicos, and several minutes of appallingly vacuous criticism by the odd quartet who make up The View.

The Cuomo-Communion controversy cannot be written off as hype generated by the secular media’s selective zeal for the separation of Church and state (a separation routinely invoked against Catholics critical of, say, legalized abortion, but conveniently ignored when Catholics support, say, social spending programs). Cuomo’s consistent support for legalized abortion and “gay marriage” has canonical implications, to be sure, and those must eventually be faced, but most of the media storm focused on my analysis of the governor’s being given Holy Communion despite his living arrangements, not his politics. It was, in other words, largely an issue internal to the Church. So, the widespread opposition-bordering-on-outrage leveled against my assertions must spring from deeper wells than partisan politics.

Indeed it does.

The Cuomo-Communion controversy revealed several “fault lines” in Catholics’ understanding of the relationship between canon law and pastoral practice, fault lines that can be traced, I think, to the antinomian earthquakes that shook Church and state in the 1960s and which fractures in thinking are still active today. Deeply distrustful, even resentful, attitudes toward canon law arose in Catholic circles immediately after Vatican II. While perhaps somewhat muted today, significant antinomian attitudes still linger, leaving many in the Church deprived of a proper understanding of the vital role that Church law should play in the life of faith.

Ignorance of the Catholic Church’s basic lines of authority

Perhaps the first fault line exposed in the Cuomo-Communion controversy concerned widespread ignorance of the most basic elements of Church organization.

In the Catholic Church, primary ecclesiastical authority is vested in popes and bishops. This “hierarchic structure” is not just a system inherited from ancient Christians who had uncritically modeled Church governance on Imperial Roman rule. Popes and bishops are in charge of the Church fundamentally because Jesus wants them to be in charge. To be sure, many groups of faithful contribute vitally to the mission of the Church, but none of them can supplant those men who by divine law “are constituted pastors in the Church, so that they are teachers of doctrine, priests of sacred worship, and ministers of governance” (Canon 375). Furthermore, if the Lord had wanted lawyers, qua lawyers, to run his Church, his rebukes of the Scribes and Pharisees would have been less frequent and more nuanced.

Ignorance of even the most rudimentary aspects of ecclesiastical governance, however, leaves many persons within the Church, and nearly all persons outside the Church, bereft of a context within which to situate canonical commentary on ecclesiastical practice. Naturally, those who do not understand ecclesiastical authority are more likely to guess at who holds it. As my résumé contains what look like a couple of lines mentioning “the Vatican,” many concluded that I must be pretty high up on the Church’s organizational chart. I must disappoint.

In May of 2010, I was appointed a Referendary of the Apostolic Signatura by Pope Benedict XVI. Basically, a referendary combines the research duties of a law clerk in an appellate court with the advisory duties “of counsel” in a law firm. I analyze, when asked, canonical issues that might come before that tribunal, but I do not litigate, decide, or even vote on cases.

Since well before my appointment to the Signatura, and many times since, I have stressed that my opinions on Church law stand or fall solely in virtue of the arguments I muster for them. Canon law provides clear rules for determining how much legal authority various officials or documents might enjoy in the Church. According to those rules, referendaries of the Signatura—let alone blogs by canon lawyers—do not even show up as blips on the ecclesiastical policy-making radar screen. I have more chance of influencing the PTA at my daughter’s high school to lower ticket prices for sporting events than I have authority to make ecclesiastical policy or to speak for the Holy See.

But headlines such as “Vatican lawyer condemns Cuomo” grab considerable attention, and they dominated the day. Ironically, Georgetown Jesuit Thomas Reese’s derisory description of me as “this guy sitting in Detroit” was, in its contemptuous way, closer to the truth regarding my lack of authority in the Church than were secular headlines proclaiming that “the Vatican” had declared against Cuomo’s reception of the Eucharist. The Vatican did no such thing.

A priority for the upcoming generation of ecclesiastical leaders, then, must be to impart a better understanding of basic ecclesiology to the Catholic faithful, not one that indulges in the quasi-hagiographical descriptions of popes and bishops that were sometimes offered to earlier generations, but one conveying a right appreciation of divine mandates concerning who has governing authority in the Church, and who does not.

Evangelical demands are real, and so are canonical ones

The faithful’s understanding of the relationship between the Gospel and canon law was severely damaged by the antinomianism of the 1960s. Not surprisingly, the second fault line in the Cuomo-Communion controversy revealed continuing confusion regarding certain expectations for Christians set out in the Gospel and about how canon law reflects those expectations.

Over the last few decades catechesis in Western nations has thinned to the point that, for many faithful today, Christianity scarcely makes any demands upon them that, being the nice people they generally are, they would not have chosen for themselves anyway. As a result, though, nothing is so startling as the idea that the Gospel makes some demands on people that run contrary to their personal preferences, indeed, demands that require, throughout one’s life, real changes of heart and real changes of conduct.

Now, at the risk of merely asserting what should and could be proven if space permitted, let me just say that most Gospel demands which admit of external observation are reflected somewhere in modern canon law. I will go further and say that many of today’s most controversial canonical norms (such as canons on papal primacy, the permanence of marriage, and admission to the Eucharist) are those with very obvious Scriptural roots. Without proposing an untenable reduction of Scripture to canon law, the fact remains that contestation of many key canonical requirements in the Church is, in fact, contestation of many key Scriptural requirements for Christian living. Restoring awareness of this linkage between the Bible and the Code must be, then, another pastoral priority.

In the meantime, as suggested above, even pointing out objective evangelical and canonical demands is almost guaranteed to startle people these days, and when people are startled they often cry out in shock or anger against whoever or whatever is startling them. That certainly happened in this Cuomo-Communion case. But, while the outcry was loud, none of it seriously challenged my analysis of the three specific issues that underlie the case. It hardly could have, for my comments regarding Cuomo’s conduct, his approaching for Holy Communion, and the bishop’s administration of it, while critical of all three, were neither canonically novel nor personally judgmental.

A closer look at one aspect of the Cuomo-Communion controversy

Let us take a closer look at just one aspect of the Cuomo-Communion controversy, that concerning the lifestyle freely chosen by Cuomo and Lee.

As a general rule of Catholic morality, men and women are not supposed to live together without benefit of matrimony. See Catechism of the Catholic Church 2390-2391. The specific form of cohabitation in this case, to use the term proper to Church law and moral theology, is concubinage. It is a “lifestyle” quite well-known to human history.

To judge from the uproar, however, that greeted my use of the technical word concubinage, one would have thought that I had accused New York’s first couple of something more exotic than, well, concubinage. Few commentators were familiar with the term, and many ascribed vaguely meretricious connotations to it (ironic, considering that prostitution does not give rise to concubinage under canon law). In any case, such comments generated much heat, but little light. The simple fact remains that “concubinage” is a canonically and morally cognizable state which gives rise to several ecclesiastical consequences. It produces a matrimonial impediment (Canon 1093), it constitutes a crime for clerics (Canon 1395), and, most importantly for our discussion, it results in one’s exclusion from sacramental communion (Catechism 2390).

If few knew what concubinage was in canon law, none, it seems, knew that canon law has developed standards of proof for use in concubinage cases, standards that take into account, among other things, the fact that few people in concubinage specifically admit to the sexual element of their relationship. My reading of canonical experts in marriage law or matrimonial procedure (such as the great Cardinal Pietro Gasparri or the American Rotal judge Msgr. William Doheny) indicated that canonical “concubinage” can be demonstrated on the publicly known facts available in the Cuomo-Lee case. No one has plausibly suggested otherwise.

Cuomo and Lee have chosen a lifestyle seriously at odds with what the Catholic Church teaches about love and marriage. But the Church, that “expert in humanity,” to recall Paul VI’s classic phrase, is not naïve. She knows that cohabitation outside of marriage is increasingly common throughout the West. She understands that many factors can lead some couples into such relationships (factors such as gross immaturity or poverty or social discrimination), and she knows that the degree of scandal (in the classical sense of the word, meaning actions that set a bad example for others) arising from cohabitation varies widely from case to case.

But, seriously, are any of these excusing factors thought to be present in the Cuomo-Lee case? And is not the degree of scandal in this case heightened precisely by the notoriety that both parties bring to it and by the publicity attendant to the administration of Holy Communion to the Catholic party? One is free, I suppose, to argue that no instance of cohabitation should warrant withholding Holy Communion from a member of the faithful, but that is the argument that would have to be made, and nothing less, if the administration of Holy Communion to Andrew Cuomo is to be countenanced on these facts.

Similarly well-settled (again, demonstrably so, space-permitting) are the other two points of the Cuomo-Communion controversy, namely, that if Catholics do cohabit as above, they should not present themselves for Holy Communion, and if, again on facts like those presented in the Cuomo case, Catholics do not refrain from presenting themselves for Holy Communion, the minister of Holy Communion should withhold the sacrament from them. None of this is canonical rocket science, but to critics who have never seen the Code of Canon Law, let alone studied it, it might come across that way.

But this, in turn, raises a question: were the implicit criticisms of canon law offered in the Cuomo-Communion controversy based on some fear that the canonical order requires an erudition beyond the ken of the common faithful? Or were canonical considerations of the Cuomo case assailed for simply having been offered?

Canon law versus pastoral practice

A fault line that very quickly emerged in the Cuomo-Communion controversy held that, even if canon law militated against Holy Communion being administered on these facts, questions about the faithful’s actual reception of Holy Communion are matters of “pastoral practice” and hence should not be settled by resort to rules. The implicit assumption here, in a powerful aftershock of antinomianism, is that canon law and pastoral practice are two entirely different things.

Certainly, there are many questions of pastoral practice that cannot be answered by looking up canons. Concrete pastoral direction for, say, a contracepting couple or for one who wants to balance pro-life activism with responsibilities at home and work, cannot be found by reading the canons on contraception or pro-life activism, because those canons do not exist. Life is too complex to be encompassed within 1,752 canons (or 1,546 canons if one is an Eastern Catholic).

Moreover, many canons in the Code scarcely impact pastoral practice. It is difficult to see a pastoral application for, say, Canon 141 on priority among successive delegates or Canon 707 on residence options for retired religious bishops. No one seriously argues that the faithful are bound to recall such canons in daily life or, at a minimum, to think about them during the Communion rite. In short, a good canon lawyer would agree that prudence must govern most practical pastoral decisions and would further acknowledge that, in matters of prudence, reasonable minds may disagree.

But some canons of the Code do have inescapably obvious pastoral implications and the canons on the reception and administration of Holy Communion figure prominently among them. Indeed, the whole purpose of Canons 915 and 916 is to direct concrete pastoral practice regarding participation in the Eucharist, there being no conceivable reason to have them in the Code otherwise. If every Catholic were the sole judge of his or her eligibility to receive Holy Communion, Canon 916 would be superfluous and probably presumptuous, and Canon 915 would be anachronistic to the point of being illegal. 

Canon 915. Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion.

Canon 916. A person who is conscious of grave sin is not to celebrate Mass or receive the body of the Lord without previous sacramental confession unless there is a grave reason and there is no opportunity to confess; in this case the person is to remember the obligation to make an act of perfect contrition which includes the resolution of confessing as soon as possible.

To be clear, I do not think that every pastoral question has a specific canonical answer. Nor, even in regard to those many pastoral questions that do have, at least in part, a canonical answer, do I think that those answers can necessarily be implemented overnight. Moreover, as outlined above, bishops, God bless them, have the primary responsibility for governing the Churches entrusted to them, while canon lawyers have no more authority for the implementation of canon law in the Church than professors in a law school have authority over the enforcement of civil law.

But one must resist the reduction of Canons 915 and 916 to mere fodder for final exams in canon law courses. These two norms are theologically-sound, pastorally-insightful, and time-tested manifestations of the great care with which the Church protects the Eucharist and by which she upholds the obligation of Catholic faithful and ministers to avoid giving scandal to one another. To explain Canon 916 carefully to the faithful, and to apply Canon 915 when unfortunate but relevant facts present themselves, is to perform a quintessentially pastoral service.

A brief note on the clergy sexual abuse crisis

Most of the hate mail I received following my remarks on the Cuomo case talked about nothing besides clergy sexual misconduct. It is a given, and likely to remain one for the rest of our lives, that anytime the Church asserts some restriction on human liberty or urges some reform of human conduct, even if only toward her own members, the clergy sexual abuse crisis will be thrown in her face. Apparently a religious organization with child abusers in its ranks not only has no business commenting on social problems (such as the bad example that a high government official gives against marriage by cohabitation), it has no right to enforce its standards of behavior on its own members. Lost on these critics is the irony of their calling for less enforcement of canon law in the wake of problems that arose in part from not enforcing canon law in the first place. Such calls only reinforce the lingering effects of antinomianism in the Church.

Going forward

Accusations of hypocrisy and Pharisaism are inevitable whenever one voices criticism of the conduct of another in the Church, whether that other is lay or clergy. These attacks must simply be borne—or perhaps better, offered up in penance for one’s own sins and for those of others—but they should not deter us from calling for authentic reform (in accord with Canon 212 § 3) where such reforms are needed, and from cooperating with such reforms when they are initiated (see Canon 212 § 1).  

In the meantime, to segregate canon law from pastoral practice in ecclesiastical life is to cut the faith community off from many centuries of accumulated pastoral wisdom.