QUAERITUR: decree about excommunications of SSPX bishops

I have received several emails asking about the juridical effect of the lifting of the excommunications of the SSPX bishops in January 2009.

Some are saying that the decree means that there never were excommunications in the first place, some are wondering what the decree meant with the “no longer has juridical effect”.

Let’s take a look at the decree.

But first, remember that back in 1988 the Congregation declared, imposed the excommunication.  The SSPX incurred the excommunication by the fact of what they did.   In Ecclesia Dei adflicta John Paul II said they incurred the excommunication.  But the Congregation for Bishops removed doubt about that by issuing a decree.

Years and year later…. with my emphases.

DECREE REMITTING
THE EXCOMMUNICATION “LATAE SENTENTIAE”
OF THE BISHOPS OF THE SOCIETY OF ST PIUS X

In a letter of 15 December 2008 addressed to Cardinal Dario Castrillon Hoyos, President of the Pontifical Commission “Ecclesia Dei”, Mons. Bernard Fellay writing also in the name of the other three Bishops consecrated on 30 June 1988 requested once again the removal of the excommunication latae sententiae formally declared by a Decree of the Prefect of this Congregation for Bishops on 1 July 1988. In his letter, Mons. Fellay stated, among other things, that “we continue firmly resolute in our desire to remain Catholics and to put all our strength at the service of the Church of our Lord Jesus Christ, which is the Roman Catholic Church. We accept her teachings in a filial spirit. We firmly believe in the primacy of Peter and in his prerogatives, and for this reason the current situation causes us much suffering”.

His Holiness Benedict XVI in his paternal concern for the spiritual distress which the parties concerned have voiced as a result of the excommunication, and trusting in their commitment, expressed in the aforementioned letter, to spare no effort in exploring as yet unresolved questions through requisite discussions with the authorities of the Holy See in order to reach a prompt, full and satisfactory solution to the original problem has decided to reconsider the canonical situation of Bishops Bernard Fellay, Bernard Tissier de Mallerais, Richard Williamson and Alfonso de Galarreta, resulting from their episcopal consecration.

This act signifies a desire to strengthen reciprocal relations of trust, and to deepen and stabilize the relationship of the Society of St Pius X with this Apostolic See. This gift of peace, coming at the end of the Christmas celebrations, is also meant to be a sign which promotes the Universal Church’s unity in charity, and removes the scandal of division.

It is hoped that this step will be followed by the prompt attainment of full communion with the Church on the part of the whole Society of St Pius X, which will thus bear witness to its genuine fidelity and genuine recognition of the Magisterium and authority of the Pope by the proof of visible unity.

On the basis of the powers expressly granted to me by the Holy Father Benedict XVI, by virtue of the present Decree I remit the penalty of excommunication latae sententiae incurred by Bishops Bernard Fellay, Bernard Tissier de Mallerais, Richard Williamson and Alfonso de Galarreta, and declared by this Congregation on 1 July 1988. At the same time I declare that, as of today’s date, the Decree issued at that time no longer has juridical effect.

Rome, from the Congregation for Bishops, 21 January 2009

Cardinal Giovanni Battista Re
Prefect

So, the SSPX bishops were excommunicated.  Now they are not.   The decree of 2009 nullified the decree of 1988 in respect at least to the four SSPX bishops named.  The 2009 decree doesn’t mention the other bishops who, in 1988, incurred the excommunication.  I don’t know how the decree can be interpreted to mean more. Some are saying that by saying that the older decree no longer has juridical effect, that means that even Archbp. Lefevbre is not to have been considered ever excommunicated.  I think that says too much.  Two Popes and the Congregation thought they were.  I’ll go with their opinion.

In any event, the four SSPX bishops are now able to go to confession again.  The other two bishops excommunicated in 1988 no longer have that opportunity.  We entrust their souls to the mercy of God while thanking God that the four still living still have some time to work things out.

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31 Responses to QUAERITUR: decree about excommunications of SSPX bishops

  1. chcrix says:

    I wonder if there could be some discussion on this:

    I always had an issue with JP2′s excommunication of the leaders of SSPX. (Keep in mind this was during my decades outside of the church – I had more of a spectator mentality). Think of names like Weakland and Mahoney (and I’m sure there are dozens more in the US church and let’s not even imagine what could be said about the European churches). Why were the SSPX chaps excommunicated but these other folks seemed to cruise on from year to year unmolested? [I am not sure that that is a helpful question.]

    I understand that the actions of Archbishop Lefebvre (probably spelled that wrong) did incur automatic excommunication. But these people were ‘weak’ in terms of influence in the church – safe targets. Others, whose views and actions were (IMO) far worse were untouched.

    Was this a matter of political calculation on the part of the Vatican? Was the Pope even entirely in control of the machinery of the Vatican? I don’t have any information, but it always looked somewhat calculated and ‘safe’. I’d love to find that there was some solid orthodox reason for the difference in treatment, because it colors my perceptions of JP2.

    [I am not sure to what extent "politics" protected bishops who ought to have been corrected in some way by the Holy Father. However, illicit episcopal consecration is such a dire attack on the unity of the Church that it had to be dealt with, particularly because the law states that the very act of doing it incurs a penalty. The other bishops you might mention didn't do anything that would have involved an automatic penalty. We can, of course, argue about what sorts of things do more damage, such as decades of heterodox preaching which can result in the loss of souls, but the law doesn't cover every possible misuse of Holy Orders.]

  2. Pete says:

    As has already been said elsewhere,

    Excommunication is separation form the Church. [It is at least separation from the sacraments. While excommunicated, you cannot even receive absolution unless it is part of your larger reconciliation.] Now there are priests who leave the Society of St. Pius X after having received ordination from one of her bishops. According to Church law and practice, a priest who receives Holy Orders outside the Church (i.e., from a bishop who though validly possessing the episcopal powers has nevertheless separated himself from the Catholic Church) is prohibited (upon return to the Catholic Church) from ever exercising the priestly powers conferred at his illicit ordination. [That is what usually happens. The priest is readmitted to communion as if he were a layman.] He retains the indelible mark of the priesthood but is permanently forbidden to exercise the related powers. [Except, of course, in danger of death.] Yet, Bishop Fellay explained, whenever a priest ordained by a Society bishop left the Society but wished to remain a priest, the Holy See allowed him to exercise priestly powers (e.g. FSSP, Institute of the Good Shepard, Sons of the Most Holy Redeemer). The legal conclusion is inescapable: The SSPX priests were not ordained “outside the Church”. [That conclusion is not "inescapable". Bp. Fellay doesn't have the authority to interpret anything concerning the Church's laws. Also, in order for the SSPX priests to exercise priesthood, they have first to declare their intent to "adhere" to the Church through a formula adhaesionis. While the priest is still formally with the SSPX he may not exercise priesthood. If the SSPX priest begins to work with legitimate authority, then he can be given faculties.]

    With regard to the ‘lifting’ of the excommunications, and notwithstanding the fact that the first sentence mentions only four of the six bishops subject to the former decree, the final sentence clearly states that the former decree “no longer has juridical effect.” That means the former decree ceases to legally exist. If the decree claiming Archbishop Lefebvre and Bishop de Castro Mayer are excommunicated latae sententiae has no juridical effect, the declaration with respect to them has been withdrawn as well. [We don't know that. Furthermore, the late Archbishop would not be able to avail himself of the sacrament of penance at this point. We should get a canonist involved.] To avoid this obvious conclusion, the language needed merely to say “with respect to these four bishops only,” the former decree has no juridical effect; or “except as regards Archbishop Lefebvre and Bishop de Castro Mayer” the former decree has no juridical effect. The declared excommunication latae sententiae against Archbishop Lefebvre and his trusted ally in 1988 was removed without mentioning either of them by name. To do so would likely have elicited another episcopal rebellion. [Interesting claim. We don't know that, however.]

  3. Re: why were the SSPX bishops excommunicated at all, when others were spared?

    Because when the pope sent the head of the CDF to talk to other people, they apparently made nice and pretended to obey (except for a couple guys who acted stupid instead, and got their teaching authority taken away or other stuff). Whereas, when the pope sent the head of the CDF to beg and plead with Archbishop Lefebvre, they did disobey, openly, while said CDF dude Ratzinger was right there. Flaunting disobedience may be stupid or stubbornly honest; but that’s definitely the way to make sure your bosses lower the boom on you, even if they sympathize with your position and are trying to avoid punishing you. Especially since, with dissidents, they can’t be sure if they really understand that disobedience is bad, whereas with obedient people, they know you know perfectly well what you’re doing and what the penalties mean.

  4. Tim Ferguson says:

    First of all, we need to understand just what excommunication is. Excommunication is NOT “kicking someone out of the Church.” As the Church understands herself, that is simply not possible – semel catholicus, semper catholicus. Anyone baptized or received into the Church is a member of the Church. I often explain it in familial terms – you can’t leave your family. You can stop talking to them, move away, have no association with them, even change your name – and your family can disown you, but ontologically, you’re still part of the family.

    Excommunication is a penalty meted out upon Catholics which deprives them of the right to celebrate or receive the sacraments (licitly), or exercise ecclesiastical office or place acts of governance (validly, if the excommunication is imposed or declared), benefit from privileges previously granted (c. 1331). A person who is excommunicated is still bound by divine and ecclesiastical law (e.g., an excommunicate is still bound to attend Mass on Sundays and Holy Days under pain of sin) and can still exercise all those rights except those of which he has been deprived (e.g. he still has the right to his good reputation – c. 220, has the right to spiritual assistance from his pastor – c. 213, can bring action in an ecclesiastical trial – c. 1476, and so forth).

    The penalty of excommunication is utilized under certain very strict conditions, and is intended primarily to caution a person (and by example, the whole Church) about the seriousness of his actions, and to encourage greater fidelity to the Church. It is not intended to be a lifelong punishment, nor is it an exercise of some infallible judgment on the state of someone’s soul.

    I would argue that there’s no need to lift the excommunication that was declared on Archbishop Lefebvre and Bishop de Castro Mayer, since, at the time of their death, the excommunication ceased to have effect. A deceased person is incapable of exercising ecclesiastical office, cannot govern, and cannot receive or celebrate the sacraments. Lifting the excommunication on the dead would have no canonical effect – it would be like extending voting rights to all the American women who died before 1920. There could be some symbolic value (not that that would be worthless, mind you), but a juridical decree is not typically the place for symbolic action.

  5. Prof. Basto says:

    The decree of 2009 nullified the decree of 1988 in respect at least to the four SSPX bishops named.

    Actually, Father, it was not a nullification. Nullity has to do with validity. When something is null, it is invalid ab ovo.

    The analisys of juridical acts and negotia takes place in three plains: existance, validity and effectiveness.

    For instance, when parties sign a contract, the contract exists.

    If the contract is against the law or has some flaw (because one of the parties was coerced into signing it, for instance), the validity of the contract is affected and the contract can be declared null.

    If the contract is valid, then the question of its effects ensues. There may be a clause in the contract establishing that a condition needs to take place so that the obligations assumed in the contract take place. In that case, while the condition is not implemented, the contract exists, is valid, but is still deprived of effect.

    The excommunications existed, they were never subsequently declared invalid by the Church (no nullity ab ovo was recognized here, unlike in the case of St. Joan of Arc), and they were simply lifted, removed, the penalty ceased, came to its end, so that the decree issued when it was first imposed no longer has effect.

  6. Jordanes says:

    It is impossible to a remit a penalty that was never imposed. Ergo, the excommunications were valid. No other interpretation of Pope Benedict’s merciful, generous act is possible. If the excommunications were invalid, he would not have remitted them, but would have declared that they were never, ever valid, and explained why.

  7. I don’t understand. “At the same time I declare that, as of today’s date, the Decree issued at that time [Ecclesia Dei adflicta] no longer has juridical effect.” That seems pretty straight forward to me. How can that be interpreted in any other way than all juridical effects of Ecclesia Dei adflicta, including the excommunications of all parties concerned, no longer exists? I fail to see how that’s saying too much. It seems perfectly logical to me.

  8. Prof. Basto says:

    Mr. Werling,

    Just one correction. The “decree issued at that time” is not Ecclesia Dei adflicta; it is the decree of the Congregation for Bishops issued one day before the Apostolic Letter Ecclesia Dei.

    Ecclesia Dei adficta is not a decree of excommunication. The Decree of the Congregation for Bishops, that began with the words “Dominus Marcellus Lefebvre” was. It was issued one day prior to Ecclesia Dei, and it was that decree, signed by the then Prefect of the Congregation for Bishops, Card. Bernardin Gantin, that declared that the two ordaining prelates and the four ordained had incurred latae sententiae excommunication.

    The Apostolic Letter that was issued by Pope John Paul II one day after the publication of the decree of excommunication added to the condemnation of what was termed “a schismatic act” and
    asked the Bishops to recognize and accept the legitimate aspirations of those attached to the traditional liturgical discipline of the Church by means of a generous application of the 1984 indult that permitted the celebration of the TLM (the indult promulgated by the decree “quattuor abhinc annos”). The Apostolic Letter also established a Pontifical Commission (the Pontifical Commission Ecclesia Dei) both to oversee the requests for use of the TLM, as well as to deal with the task of ” facilitating full ecclesial communion of priests, seminarians, religious communities or individuals until now linked in various ways to the Fraternity founded by Mons. Lefebvre, who may wish to remain united to the Successor Peter in the Catholic Church, while preserving their spiritual and liturgical traditions, in the light of the Protocol signed on 5 May last by Cardinal Ratzinger and Mons. Lefebvre”. So, groups such as those that came to form the Priestly Fraternity of St. Peter (former adherents of the SSPX that were reconciled with Rome) came under the jurisdiction of the Commission.

    Thus, you can see that “Ecclesia Dei” was not in itself the decree of excommunication; the decree of excommunication preceded it, and the Apostolic Letter Ecclesia Dei instituted measures to deal with the aftermath.

    It is to that 1988 Decree from the Congregation for Bishops that the 2010 Decree from the same Congregation alludes.

    By the way, the norms of both Quattuor abhinc annos and Ecclesia Dei adflicta affecting the right to use the Traditional liturgy had already been explicitly superseeded by the norms contained in the Apostolic Letter Summorum Pontificum when that document was issued in 2007.

  9. Athanasius says:

    First of all, we need to understand just what excommunication is. Excommunication is NOT “kicking someone out of the Church.” As the Church understands herself, that is simply not possible – semel catholicus, semper catholicus. Anyone baptized or received into the Church is a member of the Church. I often explain it in familial terms – you can’t leave your family. You can stop talking to them, move away, have no association with them, even change your name – and your family can disown you, but ontologically, you’re still part of the family.

    With respect, this is contrary to what the Church has historically and consistently maintained on excommunication. Excommunication means that one is no longer within the visible bounds of the Church, and will not be saved unless before his death he reconciles with that same authority, or by some other act of mercy by God.

    In fact your statement shows that you have made very little study of excommunication in the tradition, which makes many distinctions. The Patristic use of excommunication is separated into two categories, “Mortal”, and “Medicinal”. The former refers to depriving the excommunicate from the Mass, prayers of the faithful or participating in public recitation of scripture actively or passively. Churches were notified and no one was to receive the excommunicate into communion. St. John Chrysostom for instance speaks of the delivery of the excommunicate to satan (Hom. 15, in I Cor, PG 61,123) The latter on the other hand represents more what you speak of, the exclusion from Church life as a pennance.

    This develops further into the medieval period and eventually into the 1917 (a truly brilliant canon law compared to the modern mess) of Major and Minor excommunication, then vitandi and tolerati respectively. Minor excommunication represented deprivation from the reception of the sacraments, while major excommunication (which remains in the 1917 and de facto, just not by name in the 1983) refers to being deprived of membership in the visible Church. The old canon law also makes distinctions between penalties which are medicinal and vindictive. Excommunicates were (and are still) not allowed to be buried in consecrated ground, nor are they able to receive the sacraments, which is the same practice for non-Catholics. Canon 2266 of the old code explicitly declared that Excommunicated vitandi (literally those to be shunned, whose offenses were so great the faithful were to have no communion with them in sacred or profane matters) were not counted as members of the Church.

    In short, the distinctions among excommunications both with respect to tradition and what is presently in force are much more distinct than what you wrote. I would recommend this for reading: Excommunication

  10. The four bishops consecrated by Archbishop Lefebvre are not the only clerics of the SSPX to have been excommunicated, either latae sententiae or ferendae sententiae, and one of the difficulties for the laity in approaching priests of the Society is found here. For example, I am aware of priests in the SSPX who were ordained elsewhere and later joined the Society, and in each case, the priest in question was excommunicated by his bishop as a final attempt to convince him to return to full communion with the Church and with his Ordinary.

    In other words, the remission of the excommunication of the four original bishops is just the beginning of what will be a very complicated matter of reconciling the clerics of the SSPX to the Church. If, that is, the work ever begins. And that depends entirely upon the clerics of the SSPX.

  11. danphunter1 says:

    “In any event, the four SSPX bishops are now able to go to confession again.”
    I wonder where the four bishops go to confess their sins?
    An FSSP priest
    IBP
    Diocesan
    ICRS
    Hmmmm

  12. Tim Ferguson says:

    You are correct on many points, Athanasius, not least of which is my lamentable ignorance of development of the Church’s teaching on excommunication. However, I thought the question on the table of this post was not what the Church has taught over the years on the subject of tradition, but about the effects and extent of a decree that was issued under the regime of the 1983 Code, and with the understanding that that Code, and the definitions it utilizes are currently in effect.

    I would be ready to admit that, had Archbishop Lefebvre and Bishop de Castro Mayer had committed their delicts and had been excommunicated prior to the promulgation of the 1983 Code, then they could be understood to have been shunned and not considered as members of the Church. However, that seems like a useless exercise in historical theorizing.

    The Church currently teaches, canonically, that excommunication is NOT exclusion from the Church.

  13. Fr_Sotelo says:

    I think that Tim Ferguson and Prof. Basto have clarified the issue well: 1) What no longer has juridical effect is the decree from the Cong. of Bishops, issued by Cardinal Gantin. Ecclesia Dei would still have an effect as a teaching document of the Roman Pontiff. 2) It is not necessary to mention Lefebvre and Castro, or to comment on their juridical status, because they are dead, and neither canon law, or its penalties, or changes of penalties, apply to them. 3) The decree which remits the excommunication does not use the word “null” or “nullity” and so Gantin’s original decree was a validly imposed sentence. Like Prof. Basto states, it merely mentions that there is no longer juridical “effect.” The decree cannot go back in time and change what was. My take is that it makes no sense for the SSPX bishops to state through Fellay that they are in “much suffering.” If you are not excommunicated, or if you think the sentence is without any real effect, why would you be in “much suffering” and why would you bother writing the Pope? It seems like a childish game we play when we try to dance around what, for Bishop Fellay, was a very serious issue.

    Athanasius: While you are correct about the 1917 distinctions of the sentence of excommunication, and its understanding, I believe the 1983 Code omits those and the ideas presented by Tim Ferguson now have the force of law.

  14. mdillon says:

    I have a question that is on this same line of thought. Since the latae sententiae excommunications of Bernard Fellay, Bernard Tissier de Mallerais, Richard Williamson and Alfonso de Galarreta been lifted, can a Catholic attend, with a clear conscience, the Masses offered of the Priestly Fraternity of St. Pius X and not “incur ipso facto the very grave penalty of excommunication.”

  15. Prof. Basto says:

    I’m not a canonist but it seems to me that current cannon law treats excommunication solely as a medicinal penalty. Not as a vindictive punishment.

    Can. 1312 §1 establishes the penal sanctions in the Church in two categories, the first being that of the medicinal penalties, also known as censures. According to that canon, censures are listed in canons 1331-1333.

    Censures exist alongside expiatory penalties. Then there is the category of the “penal remedies and penances”, which are not strictly speaking penal sanctions: penal remedies try to prevent delicts, and penances are used as a replacement for a penal sanction or as a means of increasing the penalty.

    Excommunication is a censure, that is, a medicinal penalty . It is dealt with in canon 1331, the first canon of the chapter “censures”. The effects of excommunication are described in canon 1331:

    “Can. 1331 §1. An excommunicated person is forbidden:

    1/ to have any ministerial participation in celebrating the sacrifice of the Eucharist or any other ceremonies of worship whatsoever;

    2/ to celebrate the sacraments or sacramentals and to receive the sacraments;

    3/ to exercise any ecclesiastical offices, ministries, or functions whatsoever or to place acts of governance.

    §2. If the excommunication has been imposed or declared, the offender:

    1/ who wishes to act against the prescript of §1, n. 1 must be prevented from doing so, or the liturgical action must be stopped unless a grave cause precludes this;

    2/ invalidly places acts of governance which are illicit according to the norm of §1, n. 3;

    3/ is forbidden to benefit from privileges previously granted;

    4/ cannot acquire validly a dignity, office, or other function in the Church;

    5/ does not appropriate the benefits of a dignity, office, any function, or pension, which the offender has in the Church.”

    So, that is what excommunication entails.

    Now, of course the Church respects the memory of its members. So, if someone is dead, and died subject to a decree of excommunication, and later it is found that the penalty imposed or declared was not incurred in the first place, then a declaration of nullity of the decree of excommunication will take place.

    Similarly, if it is found that the excommunication was valid, but that the person repented before death, and manifested the wish to be reconciled and to have the penalty remitted, and if remission was not granted in life only because news of the good disposition of the person in question failed to reach the ecclesiastical authority in time, then certainly the Church can grant a retroactive remission of the censure, effective ex tunc, from the date when the person who is now dead expressed forgiveness. Such a retroactive remission from the time when the person was still living has the goal of rehabititating the person’s reputation, making it known that he died in formal communion, reconciled with the communion of the Church.

    In the case of the SSPX excommunications, they were not declared null, they were remitted. That is, the penalty ended. Just like a jail term that reaches its end.

    So, the declaration that the persons in question were under excommunication no longer has effect. The penalty existed (it was imposed, in that case by the law itself, since it is a latae sententiae punishment; the public declaration of the penalty also existed, because a formal decree of excommunication was issued), the penalty declared was valid (the offense was commited, it was a true canonical delict, and no legal factors were present that meant the penalty should not be declared, so that the declaration was in full accordance with the Church’s canon law), or at least it is presenly considered by the Church and judged as valid, and must therefore be assumed by all as valid (because it was never declared otherwise; because the Church treats the penality as having been validly declared – otherwise there wouldn’t be a decree of remission, but a decree of nulity – the fact that the penalty was incurred was confirmed by the Pope, the supreme ecclesiastical legislator and judge, in the language of an Apostolic Letter, Ecclesia Dei, after the decree of excommunication was issued and the Church treated the excommunication as in force between 1988 and 2009. Nevertheless, since it is not an infallible pronouncement, nothing prevents the Church in the future from re-examining the question in the future and from concluding that the excommunications were for some cause not incurred in the first place, so that neither a decree of excommunication nor a decree of remission should have been issued, but a decree of nullity was appropriate instead. But, just like marriage, nullity is not to be presumed. The action of the Church, especially because it was later confirmed in the language of a papal document, is to be taken and assumed as valid unless and until otherwise declared by the same Church).

    So, we have here a decree of excommunication that exists, that is valid, or is to be considered as valid, and that was producing its effects in relation to six people (the two consecrating prelates and the four consacrated bishops). What effects were those? The effects of excommunication as it currently exists as a penalty in the Church, namely, the effects dictated by the Code of Canon Law, particularly in canon 1331.

    When each of the consacrating bishops died, the effect of the excommunication ceased regarding them, as the effects of excommunication prescribed by law concern only the living. The dead were now under the jurisdiction of the tribunal of Our Lord Jesus Christ, judge of the living and of the dead.

    Current canon law does not prohibit the holding of a Catholic funeral and burial of people who are under excommunication. At least, excommunication alone is not sufficient for denial of ecclesiastical burial. To have a Catholic burial denied, one has to be included in the list of canon 1184 §1 and, if any doubt occurs, the judgement of the local bishop prevails, under canon 1184 §2.

    Canon 1184 states:

    “Can. 1184 §1. Unless they gave some signs of repentance before death, the following must be deprived of ecclesiastical funerals:

    1/ notorious apostates, heretics, and schismatics;

    2/ those who chose the cremation of their bodies for reasons contrary to Christian faith;

    3/ other manifest sinners who cannot be granted ecclesiastical funerals without public scandal of the faithful.

    §2. If any doubt occurs, the local ordinary is to be consulted, and his judgment must be followed.”

    But the Code allows for the granting of ecclesiastical funeral even to non-Catholics: “Can. 1183 §3. In the prudent judgment of the local ordinary, ecclesiastical funerals can be granted to baptized persons who are enrolled in a non-Catholic Church or ecclesial community unless their intention is evidently to the contrary and provided that their own minister is not available.”

    So, as you see, excommunication alone is no reason for denial of burial. A notorious state of schism, however, would warrant such denial. Is the “schismatic act” of the Econe Consacrations equal to a persistent state of schism, so that the SSPX bishops can be termed “notorious schismatics”? I don’t know. Also, weren’t Mons. Lefebvre and Mons. de Castro Mayer buried in SSPX and St. John Vianney Priestly Union funerals respectively. If those were shismatic groups, then those would not be Catholic funerals, but funerals of the schismatic organizations.

    Anyway, the above canon shows that eventual denial or illegitimacy of the Catholic burial is not a product of excommunication itself. The effects of excommunication are those of can. 1331.

    So, the decree of excommunication was no longer in effect regarding Mons. Lefebvre and Mons. de Castro Mayer because they were already dead, and no longer members of the Church militant. By the beggining of 2009 it remained in effect solely regarding the four consacrated bishops, all still living. And, regarding them, the penalty was remitted. So that, from the moment of remission, the decree issued at the time of the Econe Consecrations lost all its juridical effect.

  16. Geoffrey says:

    I am no SSPX apologist. I regard them with great reservation. That said I must note that it is interesting that the SSPX did not recognize the excommunications (who excommunicated ever does?) but the decree itself states they “requested once again the removal of the excommunication latae sententiae formally declared by a Decree of the Prefect of this Congregation for Bishops on 1 July 1988″.

    Why ask for its removal if they didn’t believe it applied to them? Perhaps there is some hope in this?

  17. Prof. Basto says:

    CORRIGENDUM: It seems I’ m making lots of mistakes today. In one post I mentioned the 2010 decree, when the decree of remission was actually issued in 2009. In another post I wrote “canon law” with two letters n. Sorry.

  18. Pete says:

    Sorry Father but your relies “we don’t know that” and questioning Bp. Fellay’s authority to interpret fail to address the points made.

    Father, I presume you agreed with the statement “He retains the indelible mark of the priesthood but is permanently forbidden to exercise the related powers. [Except, of course, in danger of death.]”

    I presume that you also accept the fact that ex-SSPX priest are now exercising their priesthood in the FSSP etc.

    So how do you get from the “permanently forbidden” to “now exercising”? What has Bp. Fellay missed (formula adhaesionis is irrelevant)?

    Three things stick in my mind from the various discussion that surfaced when the excommunications were first ‘lifted’: i) the language was ambiguous enough for both sides to claim ‘victory’, ii) the reasons for the ‘lifting’ were to be published at a later date in the L’Osservatore Romano (they haven’t as yet), and iii) that Canon Law was explicit in requiring some form of penitence by the bishops before an excommunication could be lifted – none did – but the excommunications were ‘lifted’ anyway.

  19. Athanasius says:

    Two points:

    Canon 316 states that: “One who might have publicly abandoned the Catholic faith, or defected from ecclesiastical communion or who might have been punished with an excommunication whether declared or imposed cannot validly be received into public associations.”

    This means that whatever is present in apostates someone who has withdrawn from communion with the Church is also present in those being excommunicated. The canon declares them to be essentially in the same category, which can only be non-membership in the Church.

    Second, the new code, unlike the 17, does not define what an excommunication actually is. Therefore it can only be drawing a definition from the old code and the distinctions of the tradition which preceded it, being that those who are under any major excommunication and not a mere penalty are not counted as members of the Church. If they were members, what would be wrong with them being apart of associations of the faithful which does not necessarily involve reception of sacraments? Just scandal? If that were the case the code would not need to put them in the same canon with those who also are not members, apostates and schismatics, it could make a separate canon defining that excommunication no longer means one is out but they still can’t join public associations of the faithful.
    Even #1463 of JPIIs catechism does not define it, it only says it is the most severe penalty. Neither does it overturn the tradition, which is questionable for a catechism to do in the first place, but given that it doesn’t even do that the tradition is still in force until otherwise noted by the lawgiver.

  20. Supertradmum says:

    Athanasius, You wrote that “I would argue that there’s no need to lift the excommunication that was declared on Archbishop Lefebvre and Bishop de Castro Mayer, since, at the time of their death, the excommunication ceased to have effect. A deceased person is incapable of exercising ecclesiastical office, cannot govern, and cannot receive or celebrate the sacraments. Lifting the excommunication on the dead would have no canonical effect – it would be like extending voting rights to all the American women who died before 1920. There could be some symbolic value (not that that would be worthless, mind you), but a juridical decree is not typically the place for symbolic action.” It is not merely symbolic or medicinal in value, but also proscriptive as to the receiving of the sacraments of the Church. I dare to say that those men were not allowed the Sacrament of the Sick, or Extreme Unction, under the circumstances.

    As to funerals, Prof. Basto,
    In most dioceses, one cannot have a Catholic funeral any longer unless one is a member, albeit inactive member, of a parish. Non-Catholic members of families who expressed a desire to be part of the Catholic Church before death may be given a Catholic funeral. Non-Catholics who are part of practicing families may be given rites at the cemetery, but not a funeral Mass. This is a practice seen abused more than not. Public sinners especially, or those is outward schism, have more of a duty to return to the Church publicly than those who are private sinners. May I suggest that the bishops who died before the lifting of the excommunication, which was real and was lifted, need out prayers and the Mercy of God. thank God for the lifting of the excommunications, which we all hope is an action which will lead to unity.

  21. Prof. Basto says:

    I don’t know if excommunication can be considered a part of the Church’s “tradition” with all that importance.

    Certainly, there is “a tradition” of there being a penalty called excommunication. But the meaning of this concept over time is not the same, because the contents of the penalty changed over time.

    Not always the former distinction between minor and major excommunication existed; it was created, and then it was reppealed.

    It seems to me that excommunication under the pre-1917 Canon Law meant one thing; when the 1917 Code was promulgated, the content of the legal institution called excommunication changed; with the promulgation of the 1983 Code, the legal institution called excommunication changed again. Excommunication now only exists in the form instituted by the 1983 Code, as the 1917 Code was completely and expressly abrogated.

    Excommunication under the 1983 Code is something that differs greatly from what excommunication was in the 1917 Code. The 1983 Code lists what the effects of excommunication are. Not “exclusion from the Church”, but rather the imposition of the prohibitions detailed in canon 1331.

    Violation of the prohibitons is always an illicit act; in some cases detailed in canon 1331 a prohibition affects the very validity of acts. But, although bound by several prohibitions (which include deprivation of the sacraments — exclusion of the communicatio in sacris), the excommunicate remains a member of the Church.

    The fact that canon 316 prohibits excommunicates alongside those who publicly abandoned the Faith or defected from ecclesiastical communion from being members of public associations does not mean that excommunicates are outside the Church. Firstly, it is a norm dealing only with the right of membership in association. It includes three categories of people (those who abandoned the Catholic Faith, those who defected from ecclesiastical communion, and excommunicates), prohibiting them specifically from being members of Catholic associations. The norm equates them only for that purpose, for that specific prohibition. But those categories are indeed different. Incurring excommunication is not the same as defecting from ecclesiastical communion, and is not the same as an abandonment of the Faith. If they were the same thing, the three categories needed not have been mentioned one after the other.

    And by the way, even under the old canon law, the Catholic Encyclopedia already stated that: “Undoubtedly the Church cannot (nor does it wish to) oppose any obstacle to the internal relations of the soul with God; she even implores God to give the grace of repentance to the excommunicated. The rites of the Church, nevertheless, are always the providential and regular channel through which Divine grace is conveyed to Christians; exclusion from such rites, especially from the sacraments, entails therefore regularly the privation of this grace, to whose sources the excommunicated person has no longer access”.

    So, even in its former latitude, excommunication was not a kind of damnation in that it did not deprive the excommunicate from the possibility of receiving Divine Grace. It did and it still does deprive the excommunicate of (legitimaly) receiving the Sacraments, that have been established precisely as the regular channels of grace, and that are profitable unto salvation.

  22. Thanks for the clarification, Prof. Basto.

  23. Athanasius says:

    Athanasius, You wrote that “I would argue that there’s no need to lift the excommunication that was declared on Archbishop Lefebvre and Bishop de Castro Mayer, since, at the time of their death, the excommunication ceased to have effect.

    Please look again, I did not write that. I have no interest in debating the issue of the SSPX excommunications, rather the traditional understanding of excommunication.

  24. Athanasius says:

    Excommunication under the 1983 Code is something that differs greatly from what excommunication was in the 1917 Code.

    Based on what? That is just supposition. “Excommunication” is not even defined in the new code.

    So, even in its former latitude, excommunication was not a kind of damnation in that it did not deprive the excommunicate from the possibility of receiving Divine Grace.

    I never said that, I said it excludes one from the visible membership of the Church, which has been the constant understanding in every age of the Church from the Apostles until seemingly 1983. Visible membership does not mean one is suddenly cut off from divine grace as such, but from visible membership in the arc of salvation. It does not mean one is cut off from grace absolutely, and I can’t think of a single Church father or writer on this subject who holds it does.

    There is another issue here. The argument that an excommunicate does not cease to be in the Church is not merely a canonical argument, it is also dogmatic which is why the tradition is binding here. St. Robert Bellarmine (de Conciliis lib. III, cap. IV) maintains that excommunicates cease to be members of the Church. I don’t have time at the moment to translate but I’ll summarize: He argues in the first place from St. Matthew’s Gospel: “If he will not hear the Church, let him be to thee as the heathen and publican.” (Matt XVIII:17) He draws other arguments from the Fathers, and finally from reason. In the first place, if excommunicates are deprived of all spiritual communication which is common to the members of the Church; consequently they are not members of the Church. Secondly excommunication has the same place in the Church that the penalty of death had in the Old Testament and still has in civil society; but by death men are entirely separated from society. Thirdly, excommunication is the most severe penalty which the Church can inflict; hence if excommunication does not deprive of membership in the Church, then there is a graver penalty that excommunication, namely, privation of membership in the Church. Fourthly, excommunication cannot be imposed except upon those who are contumacious; consequently it entails banishment from the Church; if excommunication was a penalty less severe than banishment from the Church, it would sometimes be imposed upon grievous sinners even though they were not contumacious. Lastly, when excommunicates are absolved, it was said (prior to the council) “Ristituo te unitati Ecclesiae et membrorum participationi” (I restore you to the unity of the Church and the participation of [her] members). For Bellarmine this was the sign that excommunicates were in fact outside the unity of the Church. Every treatise on dogmatic theology likewise holds that the excommunicates publicly condemned by the Church (vitandi) are not members. Thus if the Church is to publicly excommunicate one for graviora delcita, or some other offense, they are in fact outside the communion of the Church.

    So while all validly baptized persons can be said to be a member of the Church in the sense that per se they are subject to the laws of the Church, no one excommunicated retains the blessings of membership, and he loses also canonical communion in the external forum which is one of the requisites to full and perfect membership in the body of the Church. It is more than just becoming a dead member, which is the consequence of mortal sin.

    There is one other matter, heretics and schismatics are defined in the new code as non-members of the visible Church, so that when excommunications are applied to them these do absolutely constitute a formal “kicking out of the Church” in a certain sense, so this concept is not completely alien to the new code either.

  25. Prof. Basto says:

    Based on what? That is just supposition. “Excommunication” is not even defined in the new code.

    I say that excommunication now is something different then what it was in 1917 because that penalty now has different effects; it entails different things; specifically, the penalty now involves a narrower latitude of prohibitions for the excommunicate. For instance, in the current discipline, excommunicates are not shunned, they are not . The abandonment of the distinction between the vitandi and the tolerati represents a major shift. Also, excommunication no longer entails the denial of ecclesiastical burial, funeral and anniversary of death Masses.

    Please note that the 1917 Code, its can. 1240 §1, prohibited in its item 1 the burial of notorious apostates, heretics and schismatics, including members of massonic sects and other sects of the sort. That item is very similar to item 1 of the 1983 Code’s can. 1187 §1. However, the 1917 Code had an item 2 in its can. 1240 §2 that, in addition to those already barred by item 1 as apostates, heretics and schismatics, also prohibited the burial of those who died under excommunication or interdict, if the sentence of condemnation or declaration was issued. This item 2 of the 1917 Code’s can. 1240 §1 finds no correspondence in the 1983 Code.

    Also, under the 1917 Code, excommunication entailed the loss of the right even to assist the divine offices; and the excommunicates were even prohibited from hearing the preaching of the Word of God, under the express provision of can. 2559 §1 of the 1917 Code. That Code went on to state, in can. 2559 §2, that if a tolerati were to be merely passively assisting at the celebration of the divine offices or the preaching of the word of God, it was not necessary to have him expelled; but if a vitandi were so passively assisting, then he was to be expelled.

    Excommunication today, under the 1983 Code, retains the core prohibition that is, the norm according to which excommunicates cannot receive the Sacraments (that norm was found in can. 2260 §1 of the 1917 Code, that also included the sacramentals in the prohibition; the norm of can. 1331§1, item 2 of the 1983 Code prohibits excommunicates from receiving the Sacraments, and, unlike the norm of the 1917 Code, it does not preclude excommunicates from receiving sacramentals). However, while this core prohibition regarding the reception of the Sacraments remain, there is a huge difference, in that not only are excommunicates now allowed to receive blessings and other sacramentals, but they are not under the current discipline barred from attending the divine offices and from assisting in a passive capacity at the preaching of the Word of God.

    So, yes, I think there is a huge difference here. Note that, as they are not to be expelled from the divine offices anymore, even excommunicates are now bound to attend Mass every Sunday and holy day of obligation. Excommunicates under the 1917 Code could not be considered bound by the precept if they for a legitimate reason (namely the Church’s legislation) were impeded from attending the celebration of the divine mysteries.

    Also, the norm of the 1917 Code (can 2.267) that commanded those bound by the Church’s laws to avoid even close relations with the excommunicate in worldly matters no longer exists, and that is also a big practical difference between what excommunication entailed in the former discipline and what excommunication now is under the current legal order of the Church.

    There is another issue here. The argument that an excommunicate does not cease to be in the Church is not merely a canonical argument, it is also dogmatic which is why the tradition is binding here.

    I’m not sure that you prove the existance of a dogma regarding this. You certanly quote the opinion of a Saint. But what about the principle semel Catholicus, semper Catholicus. How can one be said to no longer be a Catholic after one has been enrolled in the visible society of the Church? Note that the 1983 Code’s innovation in admitting a “formal act of defection from the Catholic Church” by means of which a Catholic ceased to be bound by certain norms of ecclesiastical law was much criticized and so the whole discipline concerning that formal act of defection was eliminated from the Church’s law in 2009 by means of the Motu Proprio Omnium in mentem, that amended the 1983 Code. This act of defection, when it existed (1983-2009) was just a juridicial thing, and even so much criticized, precisely because, theologically, once a Catholic, one is always a Catholic.

    Neither the Sacramental bond of membership in the Church (the Sacrament Baptism) can be erased (and that is obvious, I don’t think anyone in this discussion is disputing that), nor the juridical bond of membership in the Church, created when one is received into the Church’s visible society (a juridical reception takes place either in the moment one receives the Sacrament of Baptism in the Church or by the conversion to the Church and formal reception into it of a Christian baptized in another denomination, outside the society the Church) can be erased. That is, not only the Sacramental belonging to the Church is indelible; the juridical membership is also something that cannot be removed once it begins. The centuries old principle semel Catholicus, semper Catholicus requires even those who abandon the faith and become apostates to continue subjected not only to divine law but also to the norms of purely ecclesiastical law.

    And certainly, excommunicates, too, remain subject to the laws of the Church; which goes on to show that they are not outside the society of the Church, they are within it, just like those who are in prision are still members of our civil society and subject to the laws of civil society.

  26. vivaldi says:

    There is an interesting link at Rorate Caeli to an article from The Remnant about this subject. The article reaches conclusions based on gossip and second hand information, however it provides an insight into how both the Hierarchy and the SSPX understands and deals with the “exocummunication issue”. It even goes so far as to demonstrate how ordinary people such as myself can sleep at night after attending SSPX Masses and continue to recieve sacraments from SSPX Priests.

  27. Prof. Basto says:

    CORRIGENDUM. What a mess. I’m sorry again. All references to can. 2559 of the 1917 Code in my last post above should be read as references to can. 2259 of that Code. Sorry for the typo.

  28. Elizabeth D says:

    “semel Catholicus, semper Catholicus”

    Our Bishop had a PDF form available on our diocesan website, for those who want to declare that they are no longer part of the Catholic Church. I think I came across it while browsing the marriage related documents on the diocesan website. The idea might have been to prevent the situation of people who are no longer believing, practicing Catholics, who attempt to enter into a sacramental marriage. However, I can no longer find this form on the website. I also remember strong statements from our Bishop and from the diocesan Chancellor saying if there were people who disagreed with basic Catholic teachings (on abortion for instance) then they should leave and become Protestants. After some statements of that kind from the Chancellor I asked him what if this morally or doctrinally heterodox person believes in the Real Presence of Jesus in the Blessed Sacrament (ie, in the Catholic Church of course), should they still leave and become Protestant? He admitted he was not sure. I think I understand they were trying to protect Catholic identity and the ability of the Church to witness to the Truth which is diluted by heterodox people who call themselves and even their heterodox ideas “Catholic” but I am not that sure they are entirely right.

  29. Supertradmum says:

    Prof Basto,

    Is the form we have all seen in “Becket” completely wrong now? I thought that at one time the ex-communicant was damned, until he repented, as in the cases of Emperors Otto and Frederick II.

  30. JMody says:

    I’d like to call everyone’s attention to the point made by Ferrara and Woods in the Great Facade: consecrating bishops without the approval of the Holy See is grounds for excommunication, and all the more when the consecrator has been told not to do it.
    –> SSPX consecrated four bishops, denies the requirement to implement the “pastoral” changes of V-II, questions if some dangerous doctrinal issues are raised by the very ambiguous wording of the council documents, and is trying to adhere to what every Catholic was supposed to believe in 1962, and they were excommunicated.
    –> How many bishops have been consecrated by the Communist Chinese Catholic Patriotic Association, that sort of mega-diocese that answers to the Chinese government and Communist Party, preaches on the acceptability and propriety of abortion as mandated by said Party, and denies owing any allegiance or fealty to Rome? Well over a hundred — and how many were excommunicated by Vatican decree to acknowledge/call attention to a latiae sententiae state of excommunication??

    NONE.

    Is “denying” Vatican II then worse than supporting Communism and abortion or blatant schism (denying the Pope’s authority)?

  31. Prof. Basto says:

    Supertradmum,

    Not “wrong” no. But those liturgical formulas of solemn pronouncement of excommunication and anathema found in pre-conciliar editions of the Pontificale Romanum (and used in “Becket”) reflected what excommunication meant then.

    Since the “old” penalty of excommunication (pre-1983 excommunication) meant not only that the excommunicate could not receive the Sacraments, but also entailed exclusion of the excommunicate from the reception of even the simplest sacramentals; since the excommunicate could not have a Church funeral, anniversary of death liturgical celebrations or Masses said for his soul except private Masses; since the excommunicate, after the publication of the imposition or declaration of excommunication, was held to be vitandi and people were to avoid contact with him even in worldly matters; since an excommunicate was forbidden from attending the celebration of the divine mysteries even in a passive capacity, all this meant a total exclusion from the visible aspect of the Church. The restrictions regarding participation in the sacred mysteries were so great that they meant that the excommunicate was totally excluded from the regular channels of reception of grace providentially established and possessed by the Church (the Sacraments and the sacramentals).

    So, the person in that situation indeed seemed damned, since the excommunicate was completely excluded from the Sacraments, the sacramentals, and even from passive assistance at acts of divine worship.

    Ergo the harsh words used in the liturgical formulas of the past (that, by the way, and this is a marginal observation, were used in a time when the Church had the power to phisically force the defendant of a canonical trial to appear before ecclesiastical authority, and hence excommunication could be pronounced in the context of a liturgical action. Pronouncements in absentia were not meant to be the norm. Nowadays, liturgical ceremonies are no longer used to solmenly pronounce excommunications). It should be kept in mind, also, that those liturgical formulas were meant to terrorize (with a positive goal, of avoiding that others were to fall in the same error, and to terrorize the very person of the condemned into repentance), and so were part of the “medicine” and of the “example to others”. Of course there is a bit of exaggeration in the tone of those ancient formulas. The Church does not really condemn anyone to “damnation”. Her purpose is the salvation of souls, not the solemn handing of people to the devil and to the pit of “eternal fire”, mentioned in those formulas.

    The state of the excommunicate, however, if he did not repent, resembled a path to damnation, since the excommunicate was totally excluded from not only the Sacraments, but also from ecclesiastical burial, from the sacramentals, from passive assistance at the divine offices.

    But regarding this appearence of damnation, the Catholic Encyclopedia offers the following caveat: “Undoubtedly the Church cannot (nor does it wish to) oppose any obstacle to the internal relations of the soul with God; she even implores God to give the grace of repentance to the excommunicated. The rites of the Church, nevertheless, are always the providential and regular channel through which Divine grace is conveyed to Christians; exclusion from such rites, especially from the sacraments, entails therefore regularly the privation of this grace, to whose sources the excommunicated person has no longer access.”

    So, as you can see, only the regular channel of grace was blocked, but the Church never intended to oppose obstacles in the internal relationship of the soul with God.

    Now, all this was excommunication pre-1983. Why? Because now, under the reformed Canon Law in force, the excommunicate is no longer barred the Sacramentals, he is only barred from the Sacraments. Also, the excommunicate is no longer barred from ecclesiastical sepulture; Masses can be said for him as freely as for any other Catholic; the excommunicate is no longer held to be a vitandi; excommunication now does not affect the excommunicate’s right to attend the celebration of the divine offices in a passive capacity, and thus the excommunicate remains bound by the precept of attendance of Mass on Sundays and holy days of obligation.

    So, as you see, the modern penalty of excommunication as it exists in the post-1983 Canon Law is by no means a total separation from the visible society of the Church; one who has the right of ecclesiastical burial, who has the right (and in the cases where the precept binds, the duty) to attend passively the celebration of the divine mysteries, who has access to the sacramentals (even if he is barred from the Sacraments), cannot be said to be severed from the visible society of the Church.

    So, indeed, the liturgical formulas of the past, even if they acuratelly reflected what excommunication entailed then, they would not reflect what excommunication is now. Of course, the Church’s legislator has the right to change the conformation of the ecclesiastical penalies; the legislator can reform the Church’s penal laws to make them more harsh or less harsh. In 1983, excommunication was transformed into a less strict penalty than it once was; perhaps one day the legislator will again change the law, and excommunication will once more entail a wider array of prohibitions, keeping the excommunicate more isolated from the Society of the Church.

    But that is not the case with the penalty of excommunication as it currently exists in the Code of Canon Law in force, and that, the penalty of excommunication in its post-1983 latitude was the penalty imposed on the SSPX bishops. So, their excommunication has no other latitude but that dictated by the 1983 Code.

    Also (perhaps of an observation worthy note in this discussion regarding the concrete SSPX excommunications), the Catholic Encyclopedia offers the following considerations on the distinct categories of the invalid sentences and the unjust sentences of excommunication imposed or declared: “An excommunication is said to be null when it is invalid because of some intrinsic or essential defect, e.g. when the person inflicting it has no jurisdiction, when the motive of the excommunication is manifestly incorrect and inconsistent, or when the excommunication is essentially defective in form. Excommunication is said to be unjust when, though valid, it is wrongfully applied to a person really innocent but believed to be guilty. Here, of course, it is not a question of excommunication latæ sententiæ and in foro interno, but only of one imposed or declared by judicial sentence. It is admitted by all that a null excommunication produces no effect whatever, and may be ignored without sin (cap. ii, de const., in VI). But a case of unjust excommunication brings out in a much more general way the possibility of conflict between the forum internum and the forum externum, between legal justice and the real facts. In chapter xxviii, de sent. excomm. (Lib. V, tit. xxxix), Innocent III formally admits the possibility of this conflict. Some persons, he says, may be free in the eyes of God but bound in the eyes of the Church; vice versa, some may be free in the eyes of the Church but bound in the eyes of God: for God’s judgment is based on the very truth itself, whereas that of the Church is based on arguments and presumptions which are sometimes erroneous. He concludes that the chain by which the sinner is bound in the sight of God is loosed by remission of the fault committed, whereas that which binds him in the sight of the Church is severed only by removal of the sentence. Consequently, a person unjustly excommunicated is in the same state as the justly excommunicated sinner who has repented and recovered the grace of God; he has not forfeited internal communion with the Church, and God can bestow upon him all necessary spiritual help. However, while seeking to prove his innocence, the censured person is meanwhile bound to obey legitimate authority and to behave as one under the ban of excommunication, until he is rehabilitated or absolved.”