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Archbishop Fernández’s apparent confusion over excommunication and canon law

The 1983 Code does not, and the 1917 Code did not, deprive divorced-and-remarried Catholics per se of ecclesiastical funeral rites.

Archbishop Victor Fernandez, rector of the Catholic University in Argentina, talks with Jesuit Father Antonio Spadaro, editor of La Civilta Cattolica, as they leave a session of the Synod of Bishops on the family at the Vatican Oct. 14, 2015. (CNS photo/Paul Haring)

According to Archbishop Víctor Manuel Fernández, or perhaps Austen Ivereigh who was reporting on the prelate’s position: “In the case of norms forbidding killing and stealing, for example, the norms are absolute, admitting of no exceptions; yet it is questionable … whether taking life in self-defense is killing, or taking food to feed a hungry child is stealing.”

However such confused formulations of moral principles came to be offered as examples of critical thinking in the Church, one can’t respond to every misstatement of Church teaching floating around these days and so I limit myself to commenting only on some assertions made by Fernández/Ivereigh about what canon law supposedly held and holds in regard to divorce, remarriage, and admission to the sacraments and sacramentals.

“Over the past century alone,” Fernández per Ivereigh claims, “there have been important changes even in the area of the discipline concerning the divorced and remarried, [such as] the example of their being denied a church burial, which was one of the effects of excommunication of the divorced and remarried that was possible under the 1917 Code. The lifting of that ban was opposed … with the same arguments against their receiving Communion now.”

Okay, two problems: (1) Catholics were not excommunicated under the 1917 Code for being divorced and remarried; and (2) divorced and ‘remarried’ Catholics are still recognized as figuring among those to whom ecclesiastical burial may be denied.

Re: the first problem. In a blog post some three years ago, I noted that, contrary to common perception, the 1917 Code did not excommunicate divorced-and-remarried Catholics; in fact, the closest that universal law came to doing so was to excommunicate Catholics who violated canonical form in marrying and, given that most divorced Catholics who ‘remarried’ did so in violation of canonical form, divorced and ‘remarried’ Catholics could be excommunicated but—again, to be clear—such Catholics, like all who married ‘outside the Church’ (which is lots of Catholics), risked excommunication for violating form and not for being divorced and ‘remarried’. I further noted that while bigamy was a crime under the Pio-Benedictine Code, the penalty for bigamy was “infamy” and only if later combined with obduracy, might it result in excommunication or not. Finally I noted that divorced and ‘remarried’ American Catholics could be excommunicated for being divorced and ‘remarried’, but only under American legislation. Why the Argentine Fernández or the Briton Ivereigh should be concerned about that local possibility in their discussion of the universal law of the Code escapes me.

In any case, Pope Paul VI abrogated the old Code’s excommunication for Catholics violating canonical form in 1970, and he lifted the particular American excommunication for divorce and ‘remarriage’ in 1977. Thus, both sanctions went off the books while the 1917 Code was still in effect and, whatever factors led to these changes, they were not changes to the status of divorced-and-remarried Catholics excommunicated under some canon of the 1917 Code because divorced-and-remarried Catholics per se were not excommunicated by the 1917 Code.

Re the second problem. The 1983 Code does not, and the 1917 Code did not, deprive divorced-and-remarried Catholics per se of ecclesiastical funeral rites. Rather the new law (1983 CIC 1184 § 1 n. 3) and the old law (1917 CIC 1240 § 1 n. 6) both call/ed for public and manifest sinners to be deprived of ecclesiastical funeral and Mass. Pio-Benedictine commentators regularly cited divorced-and-remarried Catholics as examples of ‘public and manifest sinners’, and few Johanno-Pauline commentators dispute that example (how could they, given CCC 2384?), although they do rightly underscore what, in fact, both codes called for, namely, pastoral discernment by local ordinaries in concrete cases which, in turn, means that, as a practical matter, cases of denial of ecclesiastical burial for ‘public sin’ will be very few. In short, canon law in this area has always had more flexibility built into its application than most non-canonists would have spotted.

But finally, beyond the fact that the canon law on funerals which Fernández/Ivereigh seem to think has greatly changed has basically remained the same, and besides the fact that the law on funerals law has always been more flexible than Fernández/Ivereigh seem to realize, there are serious difficulties in trying to parlay changes in laws regarding sacramentals (such as burial, over which the Church has great authority) into arguments for changing laws regarding sacraments (such as the Eucharist, over which the Church has much less authority). But, while discussions of these difficulties are worth having, if only for their ability to clarify wider issues, little clarity can be expected when inaccuracies about and muddled formulations of basic moral and canonical categories plague their presentation from the outset.

(This post first appeared on the “In the Light of the Law” blog and is reprinted here by kind permission of Dr. Peters.)

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About Edward N. Peters 120 Articles
Edward N. Peters, JD, JCD has doctoral degrees in canon and common law. Since 2005 he has held the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit. His personal blog on canon law issues in the news may be accessed at the "In the Light of the Law" site.


  1. Excellent column and clarification on canon law regarding these issues.

    Most mortal sins do not have excommunication as an effect in the reality of everyday life. But sudden death might result in the ultimate excommunication.

  2. While there is seemingly alot of confusion, the era (error) of Francis has brought clarity in one respect: It is easy to see what side of the fence everyone is on.

  3. They don’t believe in mortal sin or sanctifying grace. They (these bishops and the pope) consider communion for anyone in such a circumstances as remarriage, gay marriage etc as merely a question of discipline, and regard efforts to uphold status quo ante as hard heartedness (or worse as some have said).

    Now, how they have risen to where they have is something to be pondered.

  4. From a moral theological perspective there is a point made, “Whether taking life in self-defense is killing, or taking food to feed a hungry child is stealing”. Fernandez Spadaro are arguing exceptions, which as they note are true. The Church has long held a right to defend oneself provided measure is taken if possible to avoid killing. Aquinas held one who is in dire need can secretly take from another. St Alphonse de Ligouri held the same. The principles are what clarifies exceptions. What the earth provides for Man’s nourishment is a universal good that must be made available to all. One of the reasons why we must give alms to the poor. The specific exception that Fernandez Spadaro refer to is communion for D&R. The error of the analogy is that a woman, this female person is not a universal good available to everyone. Why a man clings to his wife making the two one. The reason why marriage is indissoluble. What Fernandez, Spadaro, and apparently the Pontiff are trending toward is a Paradigm Shift in morality, which essentially is a change in logical consequence. Fr Spadaro’s 2+2=5 is real, from his perspective. Moral doctrine, canon law is referred to as “the tyranny of doctrine”. The premises of Amoris Laetitia are the basis for the Paradigm Shift, since “one can always discover exceptions to the rule” as purported in Aquinas ST 1a2ae 94, 4. Aquinas in ST 1a2ae 94, 4 actually speaks about conditions that change the practice of Justice but do not change the Nature of Justice, whereas the Pontiff makes a false analogy to the sacrament of marriage, and a presumed incompatibility of marriage being indissoluble. That is a clear error. Furthermore, the premise contained in Amoris Laetitia that one can be living in an objective state of sin, adultery and be in good conscience “doing the best they can” in worshiping God is a presumption that one is not living in sin. Conscience becomes the arbiter of good or evil. The Paradigm Shift is based on these two premises of Amoris Laetitia, and effectively disassemble the permanence of moral doctrine inclusive of canon law. The response to this Paradigm Shift is that non of it is definitive binding doctrine and must be rejected.

    • Fr….Proverbs 6:30-31 seems stricter than Aquinas but it might be a difference of dispensations ie the Sinai covenant promised affluence if one obeyed the 613 laws.

      Thieves are not despised
      if out of hunger they steal to satisfy their appetite.
      Yet if caught they must pay back sevenfold,
      yield up all the wealth of their house.

  5. Fernandez appears to believe every half truth ever told about the church, half truths that those who attack the church believe. So sad that the main man of Pope Francis is one of these guys who believes so many things that simply are not true. But now we know where the muddle known as Amoris Laetitia came from.

  6. Fr. Morello, isn’t this nominalism? And, it it is are we not facing much larger issue in the Church? Thank you I learn so much from you.

    • Yes Mike it is increasingly becoming a much larger,unprecedented issue.
      And correct it is a form of nominalism that reduces universal truths to mere words.

  7. In actual fact, the proscription of a public Catholic funeral for public and manifest sinners is rarely invoked. Arch. O’Malley attempted the weasel walk at Ted Kennedy’s funeral by having a low level functionary conduct the actual funeral mass. I am quite certain that the Almighty was very aware of what was going on.

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