Excommunication of same-sex ‘marriage’ Catholic SCOTUS Justices for Heresy

From Ed Peters, distinguished canonist, on Catholic SCOTUS Justices (Kennedy, Sotomayor) who ruled for Obergefell v. Hodges:

Obergefell and canonical criminal law

Dcn Greg Kandra calls attention to a question floating around out there, namely, [QUAERITUR…]should Catholic justices who voted to impose “same-sex marriage” on America be excommunicated? We can deal with most of that question pretty quickly.

Excommunication can impact any Catholic (there are no exemptions for those in high civil office), but it can be incurred only for twelve specifically delineated crimes (CLSA Comm. 932, not counting a couple of excommunicable crimes listed outside the Code). Now, voting to impose “same-sex marriage” on a nation (or, taken more broadly, gravely damaging the common good) is not among the canonical crimes punished by excommunication, and even Canon 1399 (sometimes derided, if unfairly, as a “catch-‘em-all” penal norm) would not suffice for so-called automatic excommunication (a canonical institution that presents its own legal complications, but let that pass). In short, I see no excommunication readily imposable on Catholic justices who voted to impose “same-sex marriage” on America.

But, [But…] two points remain for Catholics to consider.

1. For reasons outlined here (chiefly that—aside from the compelling natural law demonstration that marriage is possible only between a man and woman, a demonstration that should be understandable as a matter of human reason—the Church teaches with infallible certainty that marriage is possible only between a man and woman) I think that some Catholic justices have, indeed, manifested their opposition to Church doctrine (Canons 750 § 2 and 1371, 1°), doing so, moreover, “in published writing” and in a way that “gravely injures good morals” (Canon 1369). The canonical sanctions referenced for such offenses are, however, ‘indeterminate’ (justa poena) and, I would hold, do not extend to excommunication. To be sure, a number of very important procedural steps would need to be observed before moving on these norms (and the track record of thinking-through, let alone enforcing, penal canon law has not been strong in our day) but, [But…] at the very least, the fact that such an argument can even be made suggests a basis for some kind of pastoral intervention toward those Catholic justices who hold that “law can recognize as marriage whatever sexual attachments and living arrangements it wishes”, let alone toward those who voted to impose “same-sex marriage” on America.

2. If, as seems likely, Church teaching that marriage can exist only between a man and woman is taught not just infallibly (as a ‘secondary object’ of infallibility) but as being divinely revealed (making it a ‘primary object’ of infallibility), then, a Catholic’s obstinate denial of such a truth is canonically “heresy” (Canon 751) punishable by excommunication (Canon 1364 § 1), an automatic one at that—and is not just ‘opposition to Church teaching’ punishable by a ‘just penalty’. I leave it to theologians to hammer out whether Church teaching on the male-female foundation of marriage is simply, but infallibly, Church doctrine (I am sure it is at least that) or whether it is part of divine revelation (I am strongly inclined to say that it is), but either way, prominent Catholics asserting that marriage is whatever the State wants to make it, is a grave ecclesiastical problem.

Grave Ecclesiastical Problem™.

Yes, I would say so.

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62 Responses to Excommunication of same-sex ‘marriage’ Catholic SCOTUS Justices for Heresy

  1. raitchi2 says:

    Dr. Peter’s writes, “CLSA Comm. 932, not counting a couple of excommunicable crimes listed outside the Code” and that there are 12 crimes. Does anyone know where to find these 12 crimes listed?

  2. Thomas Stewart says:

    As nothing has been yet done to the vocal proponents of the Kennedy heresy (“I personally oppose abortion, but…”) I’m not holding out much hope here.

  3. Ignatius says:

    Justice Scalia has said, time and again, that he thinks that natural law has no place in constitutional interpretation. Why the surprise, then?
    I believe that when he says in his dissidence in “Obergefell” that “The law can recognize as marriage whatever sexual attachments and living arrangements it wishes … It is not of special importance to me what the law says about marriage.” he merely states two points (i) according to the American Constitution -which does not refer to natural law- the law of the States can accord the treatment of marriage to every union (even homosexual, if the state legislature so wishes) and (ii) that being the case, it has no real importance what the law says about “marriage”.
    In countries such as mine, in which the courts and the laws have granted homosexual unions the status of marriage, that does not go against the written Constitution and really, makes “civil” marriage a joke about which no one cares about.
    He -and I with him- says that true marriage is, sadly, beyond the laws of man.
    Regards

  4. vandalia says:

    In the interest of clarity, note that when Dr. Peters says,

    at the very least, the fact that such an argument can even be made suggests a basis for some kind of pastoral intervention toward those Catholic justices who hold that “law can recognize as marriage whatever sexual attachments and living arrangements it wishes”, let alone toward those who voted to impose “same-sex marriage” on America.

    the Catholic Justice who he feels should be the subject of “pastoral intervention” is Antonin Scalia. It should also be noted that since Justice Thomas joined this opinion and presumably also holds that “the law can recognize as marriage whatever…it wishes”, he would also be the subject of necessary intervention.

  5. Charles E Flynn says:

    Prominent lexicographers asserting that marriage is whatever the State wants to make it should be in grave career trouble.

  6. Legisperitus says:

    I think I understand Justice Scalia’s reluctance to use natural law in constitutional interpretation. It’s rooted in his belief that the federal government has constitutionally limited powers and accordingly the federal judiciary has limited jurisdiction in cases arising under the Constitution or federal laws.

    Specifically, the federal courts are not supposed to invoke as a rule of decision “general common law,” which is the province of the state courts. Common law, when used by the state courts, can and probably should include principles of natural law.

    At least this is my understanding of Justice Scalia’s position. I imagine that if he were a state court judge he would be quite free in applying the natural law, but as a federal judge he feels constrained to use human positive law only.

  7. Bea says:

    Theologians seem to muddle up God’s/Christ’s teachings.
    They think too much and believe too little. No reasonings of Sotomayor and Kennedy can be approved of by any theologian, so neither should their pastors/spiritual directors/bishops approve how they have voted. If any part of Catholic Belief is denied, then they are no longer Catholic but heretics and it is without a doubt an excommunicatable act. Their sin is public, it leads to public Catholic confusion (if not condemned publicly by their pastors/bishops AKA: “excommunication”)
    The teachings are very clear:
    Genesis 2:24
    Matthew 19:5
    “For this reason man shall leave father and mother and cleave unto his wife.”
    God did not say: “cleave unto his husband”

    The 4 sins that cry out to heaven:
    “they are sins that are singled out in Holy Scripture as crying out to God in a unique way.
    What sins are we talking about? Willful murder, unnatural sexual acts (sodomy), oppression of the poor (typically expressed as widows and orphans), and defrauding the laborer of his wages. These are the four sins that “cry to Heaven for vengeance,” and together they elucidate a good deal of Catholic morality, both personal and social.” quotes From newoxforreview.org

    Their sin (their vote) was public, it must be retracted publicly, the problem is the harm has been done and woe to them for those they have led astray. It may somehow, someday be reversed but, in the meantime………..

    Gays are now “feeling their oats” and they will not stop until demonically they reach into the depths of your souls and make you believe that ” being gay” is “normal”. The SCOTUS has given them this ammunition. (besides the “right” to fornicate with the Governments approval)

    Priests: Get your portable altars before these demons are totally unleashed.

  8. discens says:

    The justices are charged with the task of judicial review, i.e. of determining the constitutionality of legal enactments. Whey they’ve done that, they’ve done all they can or must do. If marriage defined any which way you please is not against the Constitution or is even required by the Constitution (on which matter the Supreme Court by convention and settled practice has final say), then so be it — at least until an amendment is passed. If the Constitution is in conflict with natural law, then what has to go is not the Supreme Court (which is the Constitution’s servant) but the Constitution. As I see it the Supreme Court justices, whatever they said in the recent decision, have done nothing against either faith or morals (for neither faith nor morals were at issue; just the meaning of the Constitution). Therefore they are entirely free of any fault against faith or morals. Justice Scalia may rest easy.

  9. pj_houston says:

    Is not Justice Scalia simply interpreting the U.S. Constitution as it is written? Isn’t that his job description? The problem here is not Scalia, but our reliance on the Constitution which replaced Christ as King with so-called religious liberty when our country was founded, hence it has always been doomed to fail (it just took 200 years). Yes, as a private Catholic, Scalia should promote marriage as only between a man and woman, but as SC judge is he not obligated to correctly interpret and uphold the Constitution?

  10. Markus says:

    I have always found it interesting how lawyers (civil or canonical) can justify positions. I look forward to the ruling by the “ULTIMATE SUPREME JUDGE” on some of these “supreme” court justice’s rulings.

    To a peasant like me, it appears like someone justifying their actions by saying, ” I stole the money and lied but it is OK because it was a civil matter and not a moral one.” Legal? Yeah, right.

  11. Andrew says:

    What is the effect of excommunication for the ecclesiastical community, for civil society, for the individual excommunicated? Is it a public reprimand? Is it an affirmation of the Church’s teaching? Is it some form of evangelization? Is it somehow akin to exorcism? There was a time when kings would submit to the Church’s authority, even taking on public penance when called to do so. But today the Church’s social status is one of disdain bordering on hostility. An excommunication of a judge would only serve to further alienate the Church from civil society. The Church would be accused of playing politics. Many questions: no answers.

  12. Perhaps the time has come to amend canon law so that these situations can be addressed properly and expeditiously. However, if our leaders don’t have the nerve to apply existing canons appropriately, one can scarcely imagine them having the nerve to grab that bull by the horns either.

  13. Bosco says:

    If the POTUS can intervene by way of public tub-thumping and fear-mongering in the media while SCOTUS is still hearing and deliberating on an issue before them, then certainly a respected religious personage may morally enlighten an erring justice or two, for the sake of their souls, once the decision has been adjudicated and decided. A pastor has a duty to his flock, and a judge is no less exempt from moral correction than a straw hat salesmen or a president.

  14. juergensen says:

    If Tony Kennedy had ruled that the U.S. Constitution counts black slaves as worth only “three fifths of all other Persons” (it does – Art. I, Sec. 2, Cl. 3), he would have been summarily excommunicated by the Church for simply reciting what is in a legal document. But for ruling against God and Christ and the Church, the Church will do absolutely nothing to this “Catholic”. Well, except for the honorary degrees Georgetown and Notre Dame are sure to bestow upon him.

  15. Dr. Edward Peters says:

    Yes, I saw Justice Thomas joining Scalia but am inclined to cut him some slack as the import of the line might not impress a reader as much as it should have hit the writer. Still, I agree, Thomas should have distanced himself from the bad line(s) in an otherwise terrific dissent.

    Re current excommunications, I think they run as follows but would appreciate folks letting me know if I missed something:

    Apostasy. Canon 1364 § 1.
    Heresy. Canon 1364 § 1.
    Schism. Canon 1364 § 1.
    Violation of the Sacred Species. Canon 1367.
    Physical attack on the pope. Canon 1370 § 1.
    Absolution of an accomplice in sexual sin. Canon 1378 § 1.
    Pretended celebration of the Eucharist by one not a priest. Canon 1378 § 3.
    Hearing confession / pretending to absolve when incapable of absolving. Canon 1378 § 3.
    Conferring episcopal orders without papal mandate. Canon 1382.
    Receiving episcopal orders without papal mandate. Canon 1382.
    Direct violation of the seal of Confession. Canon 1388 § 1.
    Violation of the seal of Confession by others. Canon 1388 § 2.
    Procuring abortion. Canon 1398.

    Note: A number of canonical crimes are punishable by an indeterminate penalty (iusta poena). Canonists are divided about whether “iusta poena” includes excommunication. Canon 1393, especially when read in light of Canon 1326 § 1, 1º, seems to allow for excommunication in the face of contempt for earlier lighter sanctions.

    Technical recording of real or simulated Confession. CDF dec. de sacramenti Paen. (23 sep 1988).
    Divulging recording of real or simulated Confession. CDF dec. de sacramenti Paen. (23 sep 1988).

    Violation of conclave secrecy. Universi Dominici gregis (1996) n. 58.
    Simony in the election of the Roman Pontiff. Universi Dominici gregis (1996) n. 78.
    Abetting civil interference in a papal election. Universi Dominici gregis (1996) n. 80.
    Entering voting compacts in a papal election. Universi Dominici gregis (1996) n. 81.

    Attempting to ordain a woman. CDF, dec. De delicto attentatae (29 mai 2008).
    Woman attempting to receive ordination. CDF, dec. De delicto attentatae (29 mai 2008).

  16. Alsatian says:

    Maybe I’ve been missing something all these years, but I always assumed that the “male-female foundation of marriage” was, in fact, solidly a part of divine revelation, and was, moreover, integral to the divine creation of humankind. Scripture seems very clear on this point. I find it a touch confusing that Dr. Peters should deem this matter not definitively settled as being of divine revelation. If this is still an open question, then this is indeed a “great ecclesiastical problem”.

  17. Supertradmum says:

    The Pope excommunicated the Mafia, why not these people?

  18. While Justice Scalia’s remark was unfortunate, I’m thinking he might well clarify it in a couple of ways:

    > I was being hyperbolic, as I often am;
    > I really meant that in my role as a judge, I’m indifferent to the question, because it’s a question of what legislators do, not judges.

  19. robtbrown says:

    Ignatius says:

    Justice Scalia has said, time and again, that he thinks that natural law has no place in constitutional interpretation. Why the surprise, then?

    That’s not exactly correct.

    Scalia has said that he writes for those who read SCOTUS decisions, and that audience is law professors and law students–almost none of whom recognize natural law. That is why he resorts to separation of powers arguments.

  20. mlmc says:

    vandalia- you misinterpret the role of a SCOTUS judge as envisioned by Scalia. The role of the judge is to interpret the law in light of the text as commonly understood at the time it was written. He cannot apply natural law-only the law as written at the time. The constitution doesn’t say what you or I want- it says what it clearly states. Therefore, in Scalia’s view there is no right to SSM-no one who wrote the constitution at that time thought so-but since it wasn’t covered it is left to the states-unless one engages in “purposefulism”. That is the school of many on the left-the problem is whose purpose/spirit of the law do you use? Remember there are 435 legislators voting on the law & the president- with many different ideas of the purpose of the law- whose do you rely on? If you say the committee reports, you must realize the reports are written by junior staffers (who have no input into the purpose) & often not read by anybody who does vote on the law (remember the Obamacare law itself was read by nobody- much less the numerous subcommittee & committee reports.) So the liberal judges inject there own ideas of the purpose of the law- and we have the rule of judges not the people (or the rule of Justice Kennedy since he is the usual swing vote). That is what Scalia opposes not natural law, which isn’t enshrined in the constitution.

  21. Seamus says:

    I wonder whether those who argue that judges who rule that same-sex couples are entitled to have their “marriages” recognized by the state should be excommunicated take the same position with regard to divorcees? I can’t see any reason why they should, but I never see divorce and remarriage listed among the “non-negotiables” for Catholic politicians and judges. And if we’d held the line better on the latter issue, we might never have gotten to the one of same-sex marriage. (In fact, I’d be willing to offer a deal to the SSM advocates: we’ll recognize your marriages if you agree that they are for life. I don’t think I’d get any takers.)

  22. Massachusetts Catholic says:

    If a Catholic priest who is pastor of a parish participates in a same-sex marriage, is there an automatic penalty to be applied? Or is any action to be taken completely up to the bishop/archbishop of his diocese?

  23. robtbrown says:

    Re whether marriage is part of Divine Revelation:

    God reveals Himself in two ways–naturally and supernaturally. Marriage therefore can be known via both the Natural Law and Supernatural Revelation. The same is true for moral law, the existence of God, and the existence (and immortality) of the human soul.

  24. vandalia says:

    @mlmc,

    For clarity, that is not simply my opinion, but it is the opinion set out in several posts by Dr. Edward Peters who I will venture know more about Canon and Civil law than anyone else who reads or posts on this board.

    Second, (and these are my own words) the theory of law you propose is in conflict with the Teachings of the Catholic Church. It is essentially the same philosophy as those who argue that politicians can separate their political office from their faith. A Catholic Judge cannot rule in a manner that is inconsistent with Natural or Divine Law no matter what the circumstances. To the extent that a theory of “original” or “literal” construction demands that a Judge do so, it is clearly incompatible with the well established Tradition of the Catholic Church and must be rejected. One simply cannot place a theory of judicial restraint above the clear Teachings of the Church.

    Also, I will say with absolute certainty that Supreme Court Justices write their own opinions. A comparison with the legislative process simply does not hold.

  25. Giuseppe says:

    Chief Justice Roberts, joined by Justice Scalia and Justice Thomas join, opens his dissent saying that laws about marriage (including who may marry) are legitimate grounds for states (voters or legislators), and that, as a matter of constitutional law, the states have the option to expand the definition of marriage. Is Dr. Peters suggesting that a Roman Catholic judge could not write (nor sign onto) the following:

    “Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

    But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’

    Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”

  26. Bea says:

    Andrew says:
    “What is the effect of excommunication for the ecclesiastical community, for civil society, for the individual excommunicated? ….. An excommunication of a judge would only serve to further alienate the Church from civil society. The Church would be accused of playing politics. Many questions: no answers.”

    We do the right thing or we do not. When we start thinking of consequences, we inevitably do the wrong thing.

    One of my favorite saints, patron saint of lawyers, St. Thomas More says:
    When public judicatories are swayed by avarice or partiality, justice, the grand sinew of society, is lost.
    — Utopia, Bk 2. (1516)

    We have reached this state of the game because the right thing was not done/said out of human respect for decades. If the Church continues to lay back on doing/saying what is right in the Eyes of God and prefers to do what is deemed “right” in the eyes of man, we will continue on the downward slope towards heresy. I don’t see how excommunication can be avoided.
    As to Catholic politicians et al it is their duty to act according to the dictates of their conscience, the Constitution protects (or is supposed to protect) that very conscience that should prompt a Just vote. If the constitution fails to do this (which I believe it does not fail to do) then our politicians must enact a law that protects man’s conscience as an act of true freedom.

  27. robtbrown says:

    mlmc says:

    vandalia- you misinterpret the role of a SCOTUS judge as envisioned by Scalia. The role of the judge is to interpret the law in light of the text as commonly understood at the time it was written. He cannot apply natural law-only the law as written at the time.

    In so far as natural law is referenced in the Declaration of Independence, it can serve as a hermeneutic for the Constitution. Thus there is no reason why it could not be used by Scalia in writing opinions.

    As I said above. he doesn’t use the natural law argument because he thinks most who read SCOTUS opinions only recognize positive law.

  28. Kathleen10 says:

    This decision takes away the right of states to decide for themselves as to whether or not to recognize sodomy as marriage, which, if I understand correctly, was a solid system for democracy, and allowed for dissension. When DOMA was in effect (Defense of Marriage Act), we were fine with it, but now the opposition was given the hammer to smash us with, and we are profoundly not fine with it. What can be said, the enemy has America by the throat, and is throttling us with all he’s got. The left is just the tool. Our culture has been turned upside down and the effects are going to be harsh, and we don’t even know the half of it yet. Certainly children will suffer more than anybody, but we’re all going to suffer.
    Maybe there is a legal remedy, maybe not. This is all new territory. There are very ominous signs, because tyrants are in charge, and the tyrants are diabolical. They also have many helpful minions, while our side seems to have it’s hands tied. We must say things go their way. We have lost almost every battle possible in the last how many years? One hates to be a pessimist, but nothing seems to favor us, while the other side celebrates often, and now this.
    Still we know the ultimate victory is ours.
    For any remedy, I have put all my faith in Christ and him crucified. And His mother, who will crush the serpent under her heel. People have failed miserably and our American Experiment has gone sour. If I have any hope in human beings at all, it is that in 2016 the American people will so earnestly get out the Republican vote that no Democrat will have the slightest chance to get into our White House, which will, if we are blessed with a solid candidate, enable us to check and reverse much of the horror of this administration. This would be a great blessing for the United States, but there is a long way to go between now and then. Still, it is almost time to get politically active, to support the political cause, to volunteer and make a difference. The left does it very well. This next election has to be our most critical election of American history. We can’t afford to miss it.

  29. Ignatius says:

    To robtbrown
    You say: “Scalia has said that he writes for those who read SCOTUS decisions, and that audience is law professors and law students–almost none of whom recognize natural law. That is why he resorts to separation of powers arguments.”
    Not quite.
    Here (minute 41.30) you can hear from Justice Scalia own lips that natural law has no place in US constitutional interpretation: https://www.youtube.com/watch?feature=player_detailpage&v=DaoLMW5AF4Y#t=2485

  30. Papabile says:

    Going after Scalia on this one sentence, taken outside his whole philosophy of original is proof texting in the extreme. It matters not what the law says, because he believes it is outside the jurisdiction of the court.

    He was commenting in his role as judge, within the limits of his jurisdiction.

    If Mr Peters knew Either of these two men, he would know Scalia fundamentally believes in natural law, end Thomas does too.

    Additionally, Thomas his own wife practically ran a program at Heritage dedicated to advancing the concept of naural law. Both she end her husband think alike.Never mind the fact she also ran the Madison Fellows program there.

    If Pieters wants to attack Scalia’s approach to his originalist interpretation of the Constitution and his textual approach , that would be appropriate.

    Scalia As answered similar questions on this multiple times to great effect. Either Peters simply discounts Scalia’s approach to reading the Constitution (which would be legitimate, and an appropriate attack) , is being disingenuous and just conducting caluminous attacks, or has not taken the simple initiative to more deeply explore his reasoning.

    My view is it is close to calming.

  31. Benedict Joseph says:

    Rude reality. Judges Kennedy and Sotomayor don’t give an iota whether they are excommunicated or not. They don’t care. [Are you psychic?] We need to digest that. Neither do the legions of Catholics in world. What’s the worst that can happen? They are whoever they say they are, they are the ultimate arbiters of truth, right and wrong, life and death. We know this sad reality. If they were to be excommunicated they would find it an ecclesiastical offence against inclusiveness – nothing more or less than that. The ecclesiastics who could engineer their excommunication don’t perceive it as being much about anything either. Total social and ecclesiastical disorientation.

  32. Dr. Edward Peters says:

    Too many rabbit trails to chase down here, so, I’ll just say this: the most common error being made here is assuming that civil judges MAY not resort to Natural Law unless they are somehow expressly authorized to do so by the legal system in question. In which case, people arguing so have a problem not so much with me but with Church teaching, and much (if not most) of the Western Legal Tradition until about 100 years ago. I don’t blame them, of course. There has been a massive failure to teach Natural Law in Church and state academe for a couple hundred years, and various mis-invocations of Natural Law have confused others. But, it still is what it has always been, binding on the consciences of judges. I shan’t convince anyone otherwise in a combox thread, I know, but perhaps a few perceptive souls will look into Natural Law on their own. I’d start with Heinrich Rommen, and maybe read Lon Fuller next.

  33. Daniel W says:

    Ed Peters complains about Scalia’s statement that “It is not of special important to me what the law says about marriage,” claiming that “a Catholic may never, under any circumstances, say that marriage is not the permanent union of a man and woman.”

    Personally I think Scalia is way in front of Peters intellectually. Scalia reminds me of St Thomas More, who was able to agree with Henry VIII as head of the Church in England according the the law of Christ. Lawyers have to be good with words.
    “Marriage” is a very vague word (“equivocal”) in English, whereas matrimony is used univocally, ie it is far more precise. If, according to convention, we can say that we can marry two ideas, I can’t see why we can’t that two men can be married. That’s what Scalia means, he means he doesn’t care what if we use the word “marriage” to describe a bigamous contract.
    On the chopping block, or even more so if a member of my family were on the chopping block, I could be pressured to say two men can marry, but I would mean the same way as two ideas can marry.

    It is matrimony that is clearly defined by Church doctrine, not marriage. I will defend that term with my life.

    Friends who agree with ssm have often changed there mind when I point out the etymology of matrimony – the task of motherhood. Calling an agreement of two homosexuals “the task of motherhood” is an insult to you mother and mine. Even my friends in homosexual relationships won’t go that far!

    However, what Ed Peters refuses to acknowledge is that in these USofA now, the bishops have to confront what to do about Can. 1071 §1.2/ : Except in a case of necessity, a person is not to assist without the permission of the local ordinary at: a marriage which cannot be recognized or celebrated according to the norm of civil law;

    In other words, priests who understand what marriage is, (Can. 1055) “The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring …” should from now on seek permission from their local before celebrating a wedding, because real marriage is no longer recognized in these USof A! There no longer exists a law recognising the commitment of a man and women to look after the children that may be conceived in their relationship, all we have now is a law recognizing the right “intimacy”!

  34. Imrahil says:

    As a humble annotation to the comment of Dr Peters,

    the most comprehensive study of Natural Law known to me (and, so it seems, known to the German jurisprudence community, who still know the term even if they reject the concept) is the book “Das Naturrecht”, which means “Natural Law”, though the somewhat narrowing translation of the title was Social Ethics, by Fr Johannes Messner.

    No need to subscribe to all Fr Messner says, and the very length of the volume makes it difficult to distillate specific commands. But it has an imprimatur.

  35. pfreddys says:

    Unfortunately the ship sailed on this along time ago. In 1973, according to many sources including the book The Supremes the justice who had the “catholic” seat on the bench: Justice Brennan actively pursued a case in which the laws of child murder, that is abortion could be overturned. A thunderous excommunication, preferably from Paul VI might have done a lot of good at the time; perhaps I dream too much.

  36. mlmc says:

    the declaration of independence has no bearing on the constitutionality of any law- it was written before the constitution which is the compact governing our state. It is akin to those who quote Jefferson’s letter about a wall between Church and State existing- when in fact that phrase has no bearing because it is not in the constitution- it is just in a letter by Jefferson. You can use neither a letter by Jefferson nor the Declaration of Independence to make law. While I may prefer natural law & believe in many of its arguments- it is not operative in questions of the constitution since it is not codified in that document. Justice Scalia personally believes in much of natural law but cannot use it to rule on constitutional questions because it is not in the constitution. He has said that if he is forced (that is if because he follows the constitution) to rule against his conscience he would have to resign rather than do so. I wish we could use natural law-but the constitution isn’t about what i want. Altho I would like to read natural law into the purpose of the constitution, the danger is that those who seek to read purpose into the constitution jeopardize all our rights- the left will soon restrict our free exercise of religion by claiming the founders never intended to allow bigots to hide behind religion(and those who oppose SSM must be bigots). By trying to use purpose or intention in interpreting the law we risk losing our freedom because we cede to much power to the judiciary. We already see this starting in claims by Obama that we have freedom of worship rather than use the correct term- free exercise of religion. There is a significant difference.

  37. TomD says:

    Daniel W, I think you’ve made an interesting point. This is an “opportunity” for Catholics, and our culture generally, to begin to make a more meaningful, and hopefully consequential, distinction between marriage and Holy Matrimony, a distinction that has become confused and lost in our culture and among many Catholics.

    Even though we often think of marriage in the sacramental sense, Holy Matrimony is the sacrament. Marriage has become a term, whether we like it or not, loaded with meanings, primarily of a secular and civil nature. Civil marriage has evolved into a kind of legal partnership, albeit with some notions, like “love” and “commitment” carrying over from earlier meanings, but in a largely fanciful, romantic sense.

    In this sense, as Justice Scalia said, marriage can mean anything within a secular culture. Polyandry, polygamy . . . it’s all possible for marriage now that it has evolved into primarily a legal partnership and a constitutional, civil “right.” What we as Catholics need to do is to draw a sharp distinction with Holy Matrimony, in our catechesis and in our attitudes and practices, and fight to retain the true meaning and significance of Holy Matrimony. It appears that we have lost marriage.

    While we may have thought of marriage and matrimony as interchangeable, in fact they no longer are. Putting a silver lining on it, or trying to anyway, maybe the secular world has done us a favor, forcing us as Christians to draw a clearer distinction between marriage and matrimony, and elevating the sacrament of Holy Matrimony to its rightful importance.

  38. Paul M. says:

    Daniel W said because real marriage is no longer recognized in these USof A!

    You’ve got it backwards. Marriage law in the U.S. is now overly broad, yes, but it is so broad that natural and sacramental marriages are still included, along with a bunch of other things that aren’t marriage.

    So, no, no priest has to get permission from an ordinary to witness marriages right now on the grounds that the marriage wouldn’t be recognized by the civil law. That the civil law recognizes other quasi-sexual relationships is unfortunate, but it still recognizes real marriage.

  39. robtbrown says:

    Ignatius,

    Scalia qualifies his comments about natural law having no part in judging by then noting two exceptions: US Constitution and existing law. In so far as the Constitution is the consequence of Natural Right theory of govt (cf Bill of Rights as well as the Declaration of Independence), Scalia is cleverly linking himself to Natural Law.

  40. robtbrown says:

    Daniel W,

    If Thomas More had, as you say, agreed that Henry VIII was Head of the Church of England, he would not have had his head cut off. He said that Henry could be considered Head as far as the Law of Christ allows. such a qualification would prevent Henry from usurping Papal Authority, which of course was the intent of the Oath of Supremacy.

  41. jazzclass says:

    Have we not forgotten Canon 1364? Would you not say that by approving these laws you are committing apostasy or heresy?

  42. JabbaPapa says:

    Interesting and informative article — though I think it could have been improved by a question of excommunication on grounds of blasphemy against the Sacrament of Holy Matrimony.

    Regarding which …

    Massachusetts Catholic : If a Catholic priest who is pastor of a parish participates in a same-sex marriage, is there an automatic penalty to be applied? Or is any action to be taken completely up to the bishop/archbishop of his diocese?

    The answer to these is, AFAIK, yes and yes — basically because it depends what you mean by “participates”. A priest who turned up at his homosexual brother’s “wedding” reception for family reasons is “participating”, though of course not to the same degree as one who counterfeited the Marriage rites for two men in his parish church.

    But if you mean “participates” as in he gets “married”, then AFAIK he would be automatically both excommunicated and stripped of priestly rights, with more precise penalties and conditions also to be decided by the Church Court and by his Ordinary. To start with, because of the gross violation of his priestly vows. There’s no automatic loss of priestly status, which must be decided by the Court/the Ordinary, but there would be loss of the faculty to provide the Sacraments and perform the other priestly duties. IIRC and if I’m not mistaken, caveat emptor.

  43. Vincent says:

    I’m English, so I don’t understand how anyone can defend a system that allows for the constitution to be reinterpreted over night. But that’s by-the-by. When King Alfred the Great wrote his law code (doombook) in the 850s, he stated that all laws came from God; that the law was an active development of these laws. So he began the law code with the Ten Commandments.

    How far has ‘civilisation’ fallen, that now there are those who would argue that you cannot state the natural law, the law of God, as the basis for human law. It is surely worth noting that to support, publicly, anything which is contrary to God’s Law, and therefore the Church’s Law, is to cause grave scandal, which is forbidden under the fifth commandment.

    On that note, Daniel W, you claim that Thomas More accepted Henry VIII as Head of the Church in England. This isn’t really true; he a) resigned from his position before the King’s Great Matter came up, and b) when asked whether he accepted the king’s claim to be Head of the Church in England, didn’t actually say anything… That is slightly different from actually accepting something…

  44. JonM says:

    Happy July 4th, Fr. Z and all.

    A couple of quick thoughts:

    First, the theory of legal positivism is nearly universal within our framework, unfortunately. Cardinal Burke addresses this point in some of his writing. So, the issue about how Justice Scalia approaches legal determination is one, entirely separate issue.

    With respect to the canonist on the matter of the written majority ruling in Obergefell, I must disagree. Justice Kennedy speaks clearly per his conviction that homosexual unions are on par with actual marriage. This is manifest scandal as such a preposterous suggestion contradicts even natural law that any unbaptized soul is capable of discerning.

    In effect, the majority decision speaks glowingly of same sex ‘relationships.’ In other words, sodomy is obliquely proclaimed as a positive good. Again, this should be abhorrent to a Christian mind.

    Now, during desegregation, there were threats of excommunication if anyone resisted. Morally speaking, segregation is not an intrinsic evil (indeed, its application certainly can be.) In fact, I think there were some laymen excommunicated on the issue of opposition to school integration by Archbishop Rummel.

    Thus, with all respect to the canonist, I am afraid he is overthinking the matter. Justice Kennedy at once engaged in grave scandal and, crucially, effectively mandated to the entire country that discrimination on the basis of same sex union is to oppose an ‘intrinsic constitutional right.’

    In effect, any Christian business owner who openly identifies as a believing Roman Catholic or conservative Christian of some sort has a target on his back lased by the Supreme Court itself. One almost certainly will be sanctioned into bankruptcy if he says ‘sorry, we do not provide direct services for homosexual events/celebrations.’ While this often was the case before, Justice Kennedy directly and materially will be responsible for future such cases.

    To suggest that this is not grounds for immediate formal excommunication, one is forced to wonder just what the point is to confess relatively trifling matters of personal bad habit.

  45. robtbrown says:

    mlmc says,

    the declaration of independence has no bearing on the constitutionality of any law- it was written before the constitution which is the compact governing our state. It is akin to those who quote Jefferson’s letter about a wall between Church and State existing- when in fact that phrase has no bearing because it is not in the constitution- it is just in a letter by Jefferson.

    It is true that the DoI is not a legal document, but that does not mean that its concepts cannot be used in judicial hermeneutic. Penumbra of Rights, used in Roe v Wade, is, like Natural Law, not a specific mention of a legal text. The same is true for the Right to Privacy, which is a general concept based on various specific rights recognized, the unity of which is an obvious reference to Natural Law.

    Further, SCOTUS in certain decisions has made reference to foreign law, even though it has no legal status in the US. In fact, Breyer has said that he feels free to reference it in an opinion.

    And then there are the vague references to Equal Protection whenever the liberals want to introduce a new, previously undiscovered right . . .

  46. excalibur says:

    The DoI is one of the founding documents of the nation. It is referenced in ‘Enabling Acts’, wherein new states are to be created, (e.g.. Enabling Act of 1889), and is referenced in numerous SCOTUS decisions.

  47. mlmc says:

    emanations from penumbras are figments of liberal judges imagination & Beyer is wrong to look to foreign law. We are a nation of OUR laws as codified in the constitution- if not what is to prevent some judge from looking to the laws of evil regimes for inspiration. A living constitution is no constitution- it was written down so we could reference it but if a judge can alter its plain meaning, then it was a waste to write it down. It is in effect the contract of our society- and the reason one writes a contract is to prevent disagreements. But if you have a “living contract” (meaning a judge can alter its meaning) you have no contract, you have the rule of the judge. Hence Scalia’s claim we have moved from the jurisprudence of John Marshall to the aphorisms of fortune cookies in our legal reasoning. Of course leftwing judges look to other sources of inspiration since their desired outcomes are limited by the actual constitution. They are also not limited by their own statements- Justice Kagan said in 2010 that there was no right to SSM in the constitution-but lo and behold she has “evolved” fast!

  48. Massachusetts Catholic says:

    JabbaPapa,
    I am thinking of a case where a Catholic pastor attends the civil marriage of two male parishioners, , presided over by a member of the pastor’s congregation who is a Justice of the Peace. The pastor puts his hands on the couples’ shoulders and offers a blessing.

  49. Grumpy Beggar says:

    It might help perspective at some point to recall that excommunication never really contemplated having the one who incurs it, or its recipient, slated to be fed through the meat grinder , burned to a crisp over an open flame and then fed to the devil hounds for good measure : Its driving principle is more one of mercy – an extreme measure, an extreme chastisement as much as a punishment . . . all with the intention and hope of the chronically errant soul being ultimately saved from eternal damnation. It focuses on the individual.

    Let’s make the distinction : The way legislatures are set up today, excommunicating several Supreme Court justices , probably would not have any direct effect on overturning a law. ( I could be mistaken but) I believe usually when a law has been overturned , it wasn’t done by the same justices who caused the law to be enacted – otherwise contradictions would abound.

    Even, say, were one to excommunicate a head of state who possessed vetoing power for that specific law/bill , it still might be somewhat utopian to expect the excommunication to produce the overturning, or a rescinding of the law or bill as its direct consequence.
    Case in point:

    Vincent and Daniel W made honourable mention of St Thomas More . Good Sir Thomas and St. John Fisher , by their witness, let Henry VIII know what was coming. Still , after St. Thomas More and St. John Fisher were martyred in 1535 , the Bull of the 30th of August 1535 against Henry VIII had been suspended in the hope that Henry would mend his errant ways. Instead King Henry VIII went on a tear ransacking shrines and holy places and tombs of saints – with a power and vengeance , with an animosity and hostility that might well rival the hatred of the gay militants today . . . until, he was finally excommunicated in 1538 . But that didn’t stop him. Much like the gay militants of today, Henry VIII was blinded by power and hatred. In other words, he didn’t reall give a **** about anybody else.

    Excommunications or not, we need to remain aware of the amount of damage and harm this type of legislation will do to children. Mark 9:42 presents a pertinent sobering thought in this regard:

    “Whoever causes one of these little ones who believe (in me) to sin, it would be better for him if a great millstone were put around his neck and he were thrown into the sea. “

    Back in the post Ed Peters on SCOTUS Obergefell v. Hodges Dr. Peters is quoted:

    “As for whether we succeed in righting this wrong, that’s not our concern. The question we will be asked at Judgment will be, Did we try ?”

    My own personal interpretation I seem to draw from that sentiment, is:

    “ As for whether we succeed in righting this wrong, that’s not our concern. The question we will be asked at Judgment will be, Did we” . . . pray ?

    Persevering prayer can and does change things. Prayer and fasting can even suspend the laws of nature. I think pursuing that particular strategy is where my efforts would render more of an effect than hoping for an excommunication would.

  50. JabbaPapa says:

    Massachusetts Catholic : I am thinking of a case where a Catholic pastor attends the civil marriage of two male parishioners, , presided over by a member of the pastor’s congregation who is a Justice of the Peace. The pastor puts his hands on the couples’ shoulders and offers a blessing.

    hmmm, instead of informing them they may no longer present themselves for Holy Communion …

    Dunno, that’s a tricky one, and one I think for the Ordinary or other Church Authority.

    As a layman, I know I’d immediately cease attending services at that priest’s church, for the reason that he deliberately and publicly admits into his congregation, and presumably at the Communion, persons who have placed themselves outside the required State of Grace to receive any of the Sacraments — and indeed, that priest’s giving of a blessing, a sacramental, to those men is probably a blasphemy in itself.

    We’re all sinners, so giving Communion to a sinner is not a scandal in itself — but it is certainly a scandal, and a blasphemy, to give it to notorious public rebels against the Doctrine of the Faith.

    Aquinas’ opinion on this sort of thing is that it is a heresy and a blasphemy to be in communion with a heretic, so I’d personally tend to think that priest, that Justice, and those two men would have automatically excommunicated themselves — but canonically, the case of the priest might still be one for his Ordinary to decide ; there’s clearly an argument he might suffer some lesser penalty instead, such as some penitential retreat and prayer. Particularly in such a case as a well-meaning but misguided act of doctrinal ignorance or confusion, based on a misunderstanding of the degree of pastoral care that homosexuals in one’s parish should be given, and the limitations of that care.

  51. robtbrown says:

    MLMC,

    Every hermeneutic is done in a certain light. When Scalia speaks of original intent, how does he know what it is? The text is surely one way. Another is being familiar with the thought at the time the Constitution was written.

  52. The Masked Chicken says:

    “Another is being familiar with the thought at the time the Constitution was written.”

    Well, we do have Federalist Papers and the private writings of Jefferson, Adams, Franklin, etc. al. It is not impossible to derive a reasonable estimation of the thoughts of the Framers. Personally, however, while I do not agree with the concept of a living Constitution and I think Art 1, sec. 8 is too vague, I like the idea of a Constitutional Convention every 100 to 200 years. Clearly, technology has changed societal structures in ways the Framers could not have imagined (the Constitution would have been very different if the telephone had existed in 1789). A true democracy tends to shift, pendulum-like (someone won a Nobel Prize for proving this), but a republic, bring more hierarchical, is more complex.

    The Chicken

  53. Pingback: Excommunication of same-sex ‘marriage’ Catholic SCOTUS Justices for Heresy | Fr. Z’s Blog | therasberrypalace

  54. ‘pressed this’ to WP blog <a href=https://therasberrypalace.wordpress.com/2015/07/06/excommunication-of-same-sex-marriage-catholic-scotus-justices-for-heresy-fr-zs-blog/
    gave a comment a screen shot and shared it.Thank you bea.Worth sharing. U 2 Fr Z for the original blog.

  55. Daniel W says:

    robtbrown and vincents:
    St More had no problem with the original text written by the bishops “so far as the law of Christ allows, supreme head of the English church”, because this provided a loop-hole explicitly giving canon law precedence over the King. St More resigned the day after this loophole was removed.
    Scalia is well aware that the word marriage is defined conventionally, ie according to agreed usage, and conventional usage is very broad, whereas the word matrimony is used in church definitions and requires more respect from Catholics.

  56. Daniel W says:

    Paul M:
    US Law does not recognize marriage as marriage.
    Now the canon I referred to does not explicitly require that civil law recognize the marriage as marriage, so you are right. The closest laws in the US now that recognize marriage would be those relating to paternity suits. These rely on the principle that a man who has intercourse with a woman is entering into an agreement to be jointly responsible for any children that result.

  57. Pingback: So-Called Same-Sex Marriage, Religious Freedom - Big Pulpit

  58. Uxixu says:

    Canon 915 should apply well before Excommunication.

    I was using my St. Andrew’s Daily Missal this weekend (one of the first since since before Easter I didn’t serve) and noticed it mentioned that sometimes a missive from the bishop would be in place of the Sermon. The first step should for the USCCB to admonish the US bishops to issue at least an abbreviated statement of Catholic teaching for the parish priests to proclaim from the Ambo so that there can be no doubt. The substance of Canon 916 should also follow.

    Then Canon 915 would be more than justified. For those continuing to defy the teaching, Excommunication could apply down the road instead of being abrupt.

  59. robtbrown says:

    Daniel W says:

    robtbrown and vincents:
    St More had no problem with the original text written by the bishops “so far as the law of Christ allows, supreme head of the English church”, because this provided a loop-hole explicitly giving canon law precedence over the King. St More resigned the day after this loophole was removed.

    Isn’t that what I said above?

  60. Daniel W says:

    robtbrown:
    No, you said “(More)said that Henry could be considered Head as far as the Law of Christ allows.”

    I said he did not have a problem with it, in other words he consented to this statement by the clergy, but I did not say that he actually said it. If you have a source for him being the author of the qualification “as far as the Law of Christ allows,” let me know.

  61. Ben Kenobi says:

    There’s a constitutional and otherwise quite cogent argument in favor of the traditional definition of marriage. It can be found in Reynolds vs the United States. Here, Reynolds argues that the definition predates the constitution but has been a core part of the Common Law. Glad to see Thomas avail himself of this argument. The constitution is the highest law, but it never claims to be the only one, nor does it abrogate the principles of the common law in the US which predate the construction of the constitution.

    That being said – the state does have a legitimate interest in the regulation of marriage. Always has, we either argue in favor for the state to retain the common law definition, or we argue that the definition ought to be something else. We don’t get to choose, “neutrality”, or “get the marriage out of the state”, for that asks the wrong question. Reynolds makes this argument quite clearly and argues that the definition is a federal matter insofar as there is a difference between the essential core of the institution and it’s peculiarities – the ages may change, but one man and one woman do not.

    The newfound right (wrong?) to be married seems to me a terribly confused piece of jurisprudence. Does a person have the right to divorce if the other party has a right to be married? Can they sue the other party for a breach of their fundamental 14th amendment rights? Or do the illiberal justices simply assume that the one wanting the divorce has a right to autonomy and self-actualization that trumps this newfound ‘right to be married’?

    In that sense, this is hardly a right to anything at all. To a piece of paper perhaps?

    How it will be interpreted is a right to dignity – which is much more expansive and broad – that their right to be happy trumps you and your right to anything else – be it free speech, religious exercise, etc. That is the core of the opinion. It has precious little to do with marriage and quite a bit with the right to shut down, publicly, any opposition to the cause.