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Analysis: The sacramental shutdown, coronavirus, and canon law

By Ed Condon and JD Flynn for CNA

(Image: CNA)

Washington D.C., Mar 26, 2020 / 02:01 pm (CNA).- The coronavirus pandemic has caused disruption around the world. To politics, economics, and to the life of the Church: most especially to the steady regularity of her sacramental life, which many Catholics see as the anchor of consistency amid a world of chaos.

“Stat crux dum volvitur orbis,” the Carthusians say— The cross is steady while the world turns.

But while the cross remains steady, restrictions on public liturgies and access to church buildings have made the sacramental life of the Church less visible to most Catholics, and less available.

The guidance of the Holy See has served as the framework for many liturgical restrictions: the Vatican announced its cancelation of public Holy Week liturgies before the Italian government could try to impose it, and signalled to local ordinaries that they could do the same.

The Holy See has also issued instructions on how to modify certain sacramental celebrations, among them the sacrament of penance, in light of the global effort to slow the spread of the coronavirus pandemic.

But in the U.S., some bishops have announced policies that extend beyond the guidance of the Holy See, and have left canonical experts, and some clerics, wondering about their legality.

It is unclear when, and if, the Holy See will step in with additional guidance, or issue judgments about the canonical legitimacy of some diocesan policies.

In some U.S. dioceses, bishops have told priests they are barred from hearing confessions, or baptizing except in cases of “extreme emergency.”

On Wednesday, the Archdiocese of Newark circulated a memo to “all serving in the archdiocese” reiterating various policies already in force and issuing new directives. Among the new policies, vicar general Monsignor Thomas Nydegger announced that “the Sacrament of Reconciliation is suspended until further notice with the exception of an extreme emergency.”

On Thursday, spokesperson for the Archdiocese of Newark told CNA that “an ‘extreme emergency’ is understood to be ‘danger of death,’ in pericolo mortis, in canonical legislation.”

“Danger of death” is a technical canonical term, referring to the proximate danger of death from a particular cause. In that technical sense, “danger of death” does not include a generalized fear of danger of death, even if well founded.

Restriction of the sacrament of confession to “emergency cases,” especially if such cases are understood to refer only to “danger of death” in the technical sense, is an effective blanket ban on access to the sacrament for most Catholics, most the time- even while the right to the sacrament is enshrined in canon law.

Canon 843 §1 of the Code of Canon Law states that “The sacred ministers cannot refuse the sacraments to those who ask for them at appropriate times, are properly disposed, and are not prohibited by law from receiving them.”

Canon 988 §1 requires that “A member of the Christian faithful is obliged to confess in kind and in number all serious sins committed after baptism.”  While the minimum requirement of the law is for all Catholics to confess at least once a year, the Church recommends the season of Lent as a special time for confession in preparation for Easter.

The website of the U.S. bishops’ conference explains that “it is necessary to confess one’s mortal sins to a priest in the Sacrament of Penance in order to receive forgiveness from God.”

Beyond the restriction of confession, other diocesan norms have raised questions about canonical legitimacy.

The Archdiocese of Kansas City last week conveyed to priests that cell phones can be used during sacramental confession, as long as both priest and penitent can see one another during the call. The archdiocese even suggested that priests use a Google Voice number in order to avoid distributing their cell phone numbers.

The archdiocese declined to comment to CNA about the suggestion, and especially about the privacy concerns that the use of the Google Voice platform, or an unsecured cell phone, might represent for a sacrament ordinarily offered in strictest secrecy.

But whether the archdiocesan policy is canonically permitted is, at the moment, ambiguous. A Peruvian bishop last week rescinded a permission he’d granted for confession-by-phone, because, he said, it was not clear to him that the Holy See would permit such a thing, even if it were sacramentally possible.

Clarity on the question, especially as more dioceses face “shelter in place” orders, seems likely to become immediate for many priests.

In at least one U.S. diocese, the Archdiocese of Chicago, priests have been told that during the pandemic, the emergency celebration of baptism requires permission of the bishop— despite canonical norms permitting anyone, even a layperson, to celebrate baptism in a true emergency, in which, presumably, an ordinary minister of baptism can not be quickly reached.

At the moment, it is unclear how much authority various diocesan restrictions- on both the ministers of the sacraments and their would-be recipients- actually carry. The policies seem to be, at the very least,  praeter legem, beyond the law.

To be sure, some bishops would contend that these restrictions are regrettable but necessary to save lives and halt the spread of disease.

The threat of the pandemic to human life is so immediate, they would argue, that extraordinary measures are necessary – even to the point of denying the faithful their right to the sacrament of mercy.

On the other hand, this argument rests on the immediate nature of the public health emergency, which itself seems to contradict the new restrictions.

The premise that the danger of death is real and universal creates a rational feedback loop. For example, the same extreme circumstances said to justify sweeping limits on priests hearing confessions at the same time triggers the Church’s de iure permission and duty for all priests, even laicized ones, to hear confessions and absolve sins.

Meting out what is, and is not, permissible is likely to become an urgent priority for the Vatican’s canonical and sacramental offices – it may be already. While the fog of war, so to speak, has mostly shrouded decisions in the early months of the global pandemic, if the status quo continues, hard questions from Catholics are going to require clear answers.

Canonists will likely insist that the law already provides for most emergency circumstances, and that making new policies on the fly, in the middle of a crisis, is rarely a good idea. But public health officials and others are likely to push for ongoing stringent measures, and with good reason.

While it seems quite clear that bishops worldwide are acting in good faith to respond to a crisis, eventually they too will want definitive norms upon which to hang local policies.

Universal law  – and the universal legislator, Pope Francis – is likely to soon face calls from those bishops for a systematic treatment of those questions- especially if members of various bishops’ conferences find themselves locked in disagreement.

While the Vatican has issued some policies, Pope Francis has also warned in recent days that “Drastic measures are not always good.”

“May the Lord give [pastors] the strength and also the ability to choose the best means to help,” the pope said at the beginning of Mass March 13.

“Let’s pray for this, that the Holy Spirit may give to pastors the ability for pastoral discernment so that they might provide measures which do not leave the holy, faithful people of God alone, and so that the people of God will feel accompanied by their pastors, comforted by the Word of God, by the sacraments, and by prayer.”

While no serious canonists question the bishop’s right – even prudence – to suspend the public celebration of the Mass during an emergency, the liceity of other suspensions is decidedly less clear. Amid the various unforeseen and unexpected challenges of a global pandemic remains the salvation of souls – the supreme law of the Church.

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  1. A good argument in favor of availability based on the canons. However bishops who possess Apostolic authority raise the issue of prudent measures during extreme emergency. Tradition on the other hand seems to better reveal the mind of the Church, and with that the will of God. Christ for example avoided certain towns when threatened. Nevertheless He gave us all the ultimate measure of faith we celebrate during Holy Week. Military chaplains particularly Catholic are known for heroism during combat. St Aloysius Gonzaga as well as other saints risked death some died as did Aloysius caring for the dying during the Plague. As did St Charles Borromeo at Milan when Archbishop closed churches during the Black Plague but permitted priests to offer the sacraments outside. Borromeo himself tended to the dying conveying the sacraments. Rome is where that kind of leadership example should be exhibited. And directives to make saving sacraments available. Valor is a very good thing. Moral courage seems sidelined during this crisis.

    • An addendum here is warranted. Italian priests are chiding “those traditionalists who deem themselves more traditional than authentic tradition by childishly complaining that Mass has been stopped. During which we have been asked to live this, without whining like capricious babies” (see Youtube Traditional Fathers Crespi and Stefano). They rightly argue Mass is not stopped. We are offering the sacrifice for all. We are hearing confessions anointing the dying [when permissible because of quarantines]. The Holy Spirit armed with grace is drawn down upon the faithful even the unfaithful by intention who are facing death unprepared. Laity are not exempted from charity to join priests in offering prayer and sacrifice for the salvation of others. That is how we demonstrate our faith, not by useless complaints and futile excursions into the law. Live the faith.

      • Oh please. I live in Italy, and when this is over, the faithless, hypocritical “Italian priests” whom you mention won’t be able to walk down the street. I’m not threatening them, for the record.
        The priests who I know are secretly risking arrest in order to minister to the faithful in Italy are all foreigners. People here will remember this.

    • You make good points, but I think that it was when Jesus wanted to go to pray for (and raise) Lazarus that his disciples pointed out that it was dangerous for him to enter that part of the Country – He went anyway so as not to leave Lazarus devoid of life.

  2. Do the Bishops even believe that the Catholic Church is divinely instituted by Christ and that there is no salvation outside of it? This crisis is starting to mount significant evidence squarely in the no column.

    • The real Roman Catholic and Apostolic Church believed. Throughout the Church History she was solidly standing on Solid Rick spreading
      The teaching of Jesus Christ giving all the powerful sacraments all the times in times of peace in times of wars in times plagues, famines, dangers etc because
      The Church believed that Christ is in the “ boat” in the storms. The Sacraments what the Catholic Church distributed in good time and in bad in sickness and in health in all dangerous stormy frightening
      time ha e the power the strength the healing etc to the members. No Sacrifice of the Holy Mass no Sacred Sacraments offered and distributed to the members of the Catholic Church removes the strength the courage the spiritual life and the stamina of the soul!
      What about if the doctors would not go to the Hospitals the nurses and nurses aids and important hospital staffing would not go to the hospitals because of the virus of any kind?? Though that effects only the body?
      What about those whom Christ chose to be the doctors
      Of the soul and the surgeons of the souls in the confessionals? Is this fearful refusal okayed by the Founder and the Only Landlord of the Catholic Church? Do we or do we not believe in the Pentecostal
      Holy Spirit? He could give the chosen servants the necessary safeguards even in the dangerous COVID-19 time as well! “Oh little faith…” most of the people happy to see what our President Trump and his special staffers are tirelessly doing day and night for the benefit of everybody for everybody’s safety
      What about if they would stop all their fearless fight against the coronavirus? What would all people would say? Wake up Catholics:” believe in God and believe in me!!!!” Jesus is the only One who said and says today
      “I have conquered the world”. When we pray
      “Jesus I trust in you” doer really???
      Or we just say it but not believe!
      Without open doors of the Church without the Sacrifice of the Holy Mass without the Life giving Sacraments there is no hope no cure no safety no faithful Catholic life. It’s really the culture of death.
      We started the third millennium with the spiritual motto:
      God appointed responsible shepherds open the the Doors and the Sacraments wider than ever to Jesus Christ to his Mother and to the Sheep!!!

  3. I think far too little, bordering on zero, effort has been made by bishops to figure out a way to administer any and all Sacraments, including public Mass, in a manner which keeps worshippers reasonably safe, and safer than a grocery store…
    no bare hand on wafers, maintain spacing, wipe pews every time anybody leaves, all sneezes/coughs MUST be contained/muffled (amazing how little I see of that in church or while shopling, even now), eliminate all common contact points such as one person doing all door holding, pack away missals and hymnals for duration, have someone check temperatures before entry and turn away anyone running above 99 (and anyone in their group, and they can bring own thermometer), hold more Masses for all who wish to take a chance…think of ANY way to make it work…require Playtex gloves, whatever….it CAN be done and y this could last for over a year, and they SHOULD have already licked this…same as society will need to function soon DESPITE this, so should also our “pastors” have been finding a way..

    But, instead, they just follow civil authorities in their bungling and oppressive ways…and follow more a liability fear reaction than any true pastoral concern.

    • Great points Bob. A few days ago the Bishop of Tyler Texas was standing on a street corner holding a Monstrance while blessing the people driving by. Contrast that with an email sent out by the pastor of Our Lady of the Rosary church in San Diego (forwarded by a friend) with a picture of the pastor, Fr. Joe Tabigue, seated behind his desk dressed like Darth Vader complete with black helmet and plexiglass face shield, reminding parishioners of ways to continue their financial support of the parish while he’s hunkered down in his office.

      When this is over and our churches reopen, I wonder how many more people will fall away from the Church when they discover how convenient it is to watch Mass online or on TV in their pajamas, and how spiritually inept most of our bishops and priests seem to be; hunkered down in their rectories worried more about paying the bills than about the welfare of the souls of their faithful.

    • Can I just say that this is what I’ve been saying for the past few weeks. NOT A SINGLE ONE EVEN BOTHERED TO TRY!! Why is it so easy for them to deprive the people of the Holy Sacrifice of the Mass and the sacraments? Because they themselves no longer believe!

      This silent apostasy is also most likely why we this plague has been visited on us.

      • I agree, there are too many to call themselves priests yet they are just like the unbelieving heathens of so-called modern society that dismisses God entirely. There are still many good priests I’m sure out there, but also too many that make no effort to be responsive to those begging for spiritual warfare assistance or even spiritual advice, they should not have the privilege or honor of calling themselves a man of the church.

  4. In a unique pandemic such as the one we’re living through, when an extremely contagious virus forces us to separate six feet from one another and to maintain “social distancing”; when physical death threatens the vulnerable, the elderly and the poorest (the homeless, many of whom are mentally ill); when we ourselves can be the agents of contamination to others; do you really think that God, who is Love itself, a “merciful and compassionate” God, concerns Himself first and foremost, in an unprecedented human health crisis, with following certain canons in the Code of Canon Law ?? Will God, “rich in mercy” reject an act of sincere contrition of one of His sons or daughters “in the Son”, when the Sacrament of Penance is unavailable for whatever reason; or will Love itself insist on the exact fulfillment of Canon 988§1???
    Though the Grace of God works through the sacraments in the Ordinary life of the Church, is that that grace imprisoned to those sacraments, especially in this extraordinary time of plague?

    • Reading all the messages concerning the closure of the Catholic Church’s services, most condemn the effort of preventing people from suffering the effects of the coronavirus. the church is suppose to protect its people from such suffering. The worst info I get from all these negative writers, is that they do not know God. In the 18th century the world suffered a flu epidemic that kill millions. The innocent as well as the guilty of sin paid the price That God allowed the epidemic around the world in Withdrawing His protect to teach the world to do His willmor pay the price. Such as happening today, coronavirus is with us without the protection of our Lord because we are not doing His will but only ours.We need to listen to His message and return His Love with our Love.
      message and we need to return to DOING His will. When that happens, God will return His protection. People

  5. No good priest will deny the faithful the right to the sacraments, regardless of what is going on or what “orders” he has received. Holy orders trump anything else, especially unjust directives even if they come from bishops. We are now seeing the extent of the faithlessness in the Church and it is utterly depressing. It’s time the laity started calling for more courage in their bishops.

  6. Does not all this legalistic panic imply that there is nothing worse than physical death? Grave, where is thy victory? Apparently, it began anew in Wuhan.

  7. Where is the separation of church and state in this situation. The bishops should remind the state that they don’t want us in their business so they should keep out of ours in this matter. To allow them to shudder Christ’s church and prevent the faithful from accessing the sacraments plays into the hands of the devil. We are adults who can make their own decisions.

    It is in times such as these that we have more devotional services,greater access to penance and reception of the Holy Eucharist.

    They tell us that Christ said to be not afraid, so let us not be and reopen the church.

    This will pass but the pandemic of abortion will continue,this is where we should focus our energies and those of our elected officials to put an end to this unspeakable horror.

  8. Our blessed mother must look down tempted to replace some bishops with grocery store managers as they seem to be the only ones who can control a crowd After this I’m sure there will be more Catholics falling into the arms of evangelicals

  9. God is above cannon law and above any”man made rules and laws:Although men who have written these laws feel inspired by God and I am sure are very holy.Couldn’t they be in err?. I belie ve God does not want us to risk our lives from a virus. Do you not think that the all forgiven lord knows our fears and health risks would not make exceptions in times of crisis?Its not the same as being a martyr.Although I think there should be a way to have confession from a distance.Face to face at a distance using your phone.Years ago some confessionals had a talk box to hear the priest so what would be the difference?Just because its “modern does not make it bad!

    • Thank you, Barry! You make so much sense in the midst of such lethal legalism!
      Though the Grace of God works through the sacraments in the Ordinary life of the Church, that grace is NOT imprisoned to those sacraments, especially in this extraordinary time of plague.
      God, “rich in mercy”, will never reject an act of sincere contrition of one of His sons or daughters “in the Son”, when the Sacrament of Penance is unavailable for whatever reason. Love itself will NOT insist on the exact fulfillment of Canon 988§1. Our God, “insane” with love for his children, is not a legalistic monster!

  10. Adam:
    ” A few days ago the Bishop of Tyler Texas was standing on a street corner holding a Monstrance while blessing the people driving by.”

    That’s amazing. God bless him. I wish all our bishops might do the same.

  11. The conclusion of this article states:

    “While no serious canonists question the bishop’s right – even prudence – to suspend the public celebration of the Mass during an emergency, the liceity of other suspensions is decidedly less clear. Amid the various unforeseen and unexpected challenges of a global pandemic remains the salvation of souls – the supreme law of the Church.”

    This conclusion is FALSE. I direct the reader to the following article that deals in detail with the canonical and moral theological issues presented:

    • Relying on JD Flynn for sound canonical counsel is like going to Earl Scheib and expecting to receive a world class paint job.

  12. To all those posters urging “HIDE! save lives!”, we have serious contagious diseases, always…this is NOT ebola and 90% fatality. It IS dangerous, and warrants precautions, but, with precautions taken, the world MUST learn to live with it or come crashing down.

    Anyone who thinks we can all hide in homes for a year or more until a vaccine is developed is an utter phony, as they sit in their safe houses while truckers, food processors, grocery clerks, refinery workers, utility workers, etc etc etc to keep their world food filled and comfy.

    If they can manage, then so can we, WITH proper precautions such as listed in my post above. We are going to need find a way or this world will dissolve into chaos, and spiritual medicine is just what the doctor ordered for staving off that collapse, and NOT privileged “pastors” screaming “SHELTER IN PLACE!!!”

  13. How many Bishops and priests in the United States were arrested by civil authorities for defying orders to close their churches or prevent large gatherings? How many sat in jail for a day, or a night, or an hour because of it?

    How many priests were banished to God-knows-where by their Bishops for defying their orders to close their churches?

    And all this during Lent, possibly Holy Week, and into Easter…

    Our Bishops will stand up and give foolish public speeches about the moral equivalency of abortion and climate change (we’re looking at you Bishop McElroy) in a
    disingenuous attempt to sway Catholic voters to support pro-abortion Democrats.

    If there’s any good that comes from the Great COVID-19 Sacramental Cessation, it might just be that all Catholics finally realize how feckless most of our Bishops and priests really are.

  14. “While no serious canonists question the bishop’s right – even prudence – to suspend the public celebration of the Mass during an emergency…”

    This is so offensive as to be almost hilarious. As a professor of theology at a Catholic university, I know many canonists and NONE of them agree with the conclusions drawn here. Not one! Do you define “serious” as “one who agrees with me”?

  15. The lockdown of the Church is politically motivated. Communist-influenced bishops are using COVID-19 as a tool to shut down the Church. However, priests are not obliged to heed episcopal orders to suspend Masses and sacraments. If they do, canon law permits the faithful to receive sacraments at independent churches like those of the SSPX or Greek Orthodox churches. Nor is a personal state of emergency required for this but one can receive daily at these churches until the COVID-19 “emergency” has ended.

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