Msgr. Pope and canonist Ed Peters on NY Gov. Cuomo: “It is time to end the charade”

Canonist Ed Peters responded to Msgr. Charles Pope’s implicit request for canonical clarifications in the matter of NY Gov. Cuomo and his complicity… nay, rather, full-throated promotion of infanticide.  If there were ever a case of application of the law to a highly visible public figure who identifies as Catholic, committing scandal, it is Cuomo and his promotion of abortion.

Let’s see Peters:

From Msgr Pope’s lips to the bishops’ ears

Msgr. Charles Pope, on no one’s Top Ten List of Catholic Hot-Heads, [I’d like to see that list!] captures the sense of faithful Catholics everywhere when he writes, regarding the major role that New York Gov. Andrew Cuomo played in pushing, signing, and celebrating [he didn’t just stand by, he played a highly active role] that state’s new, gruesome abortion law, that Cuomo-qua-Catholic must now face ecclesiastical consequences [gosh!  What are those?  Ecclesiastical what? Ohhhh yeaaaaah… I remember something about them.] for his egregious actions. Pope acknowledges, though, that he is not a canon lawyer and seems implicitly to ask for input from those who are regarding possible consequences. My thoughts follow.

1. Cuomo is already barred from the reception of holy Communion per Canon 915 (a sacramental disciplinary norm, not a penalty) in light of his openly living with a woman to whom he is not married. This matter was widely discussed back in 2011. My understanding is that Cuomo, to his credit, has not approached for holy Communion since that matter was aired.

2. Regardless of Cuomo’s ineligibility for holy Communion on other grounds, his conduct in regard to New York’s new abortion law also suffices, in my view, to bar him from holy Communion per Canon 915. If information should reach ecclesiastical authority that Cuomo is, despite the foregoing, being given holy Communion by ministers under their authority, Church leaders should act immediately to prevent such administration. Canons 375, 381, and especially 392, among others.  [And they must publicly state that he must not receive.  They should issue directives to their dioceses.]

3. Cuomo is not liable for excommunication for abortion under penal Canon 1398. I have made this argument many, many times and won’t repeat it here. Neither is he, in my view, liable for prosecution as an accomplice to abortion per Canon 1329.  [His participation in the successful of an abortion is not proximate enough.]

4. Cuomo has, however, committed acts that, in my view, suffice to invoke penal Canon 1369 against him. That possibility occasions some observations for Catholics forming their expectations about exactly who in the Church could be doing exactly what in a case like this.

[NB] 4 A) Penal jurisdiction in this matter rests with the bishop of Albany (as the place where some or all of the canonically criminal conduct was committed, per Canon 1412) and/or with the archbishop of New York (as the place where Cuomo apparently has canonical domicile, per Canon 1408). They are authorized to initiate canonical penal procedures under Canons 1341 and 1717, among other norms. Neither the state nor national episcopal conference has jurisdiction here.

4 B) The 1983 Code prefers that penal matters be tried judicially but an administrative penal process is not precluded. Canon 1342. Either way various rights of canonical defense are owed to Cuomo and would doubtless be honored. Canon 221, among others.

4 C) Canon 1369, as a penal law, must be strictly (i.e., narrowly) interpreted and applied. Canon 18. This means, among other things, prosecuting Cuomo only for acts that fall within the terms of the canon and not using a Canon 1369 prosecution as a pretext for punishing Cuomo for other acts, that, while offensive to the faith and to the faith community, are simply not embraced by its terms.

4 D) Canon 1369 authorizes a “just penalty” against those who violate its terms. That broad (but not unlimited) phrase “just penalty” allows for tailoring the canonical consequences in specific cases to the wide variety of fact patterns that could be addressed in its light, here, everything from Cuomo’s speeches and comments in support of this abortion law to his ordering a ghoulish light show in celebration of its enactment.  [Lighting the Empire State Building!  If a penalty is to be tailored, a lot of fabric is going to be needed.  This is a big deal.] That said, while the notion of a “just penalty” is broad, there is some question as to whether it extends, at least immediately, to excommunication. Here is not the place to air that technical issue, but neither should its presence derail consideration of using Canon 1369 against Cuomo. Some justice is better than no justice and even if (I say, if) excommunication could not be imposed immediately on Cuomo, the Church could still impose some canonical sanctions for his conduct. If, moreover, such sanctions as could be imposed per Canon 1369 were ignored by Cuomo, Canon 1393 would allow for their augmentation, making the possibility of a “just penalty” reaching to excommunication stronger.

5) Canon 1399, known as the general penal norm, is also available for canonical use against seriously bad acts but only, in my view, if those acts are not otherwise addressed in penal law. Thus, for example, using Canon 1399 as a backdoor way to prosecute Cuomo for abortion (notwithstanding that Canon 1398 does not reach him) would not be correct. Identifying adequately what divine or canon law was supposed to have been violated by Cuomo in acting as he did, and identifying that law in such a way that nearly every other sinner would not be liable to criminal prosecution for violating it, is a difficult task. Not an impossible one, perhaps, but difficult. I say this, by the way, as a canonist who thinks Canon 1399 to be applicable against Uncle Ted.

6) Canon 1339 authorizes “rebuke” against one “whose behavior causes scandal”. That Cuomo’s conduct here causes classical scandal (CCC 2284) seems to me beyond question. Whether canonical rebuke adequately serves, however, the needs of the faith community for good order or Cuomo’s need for personal correction I leave to others to consider.  [A “rebuke”.  “Whereas you, Gov. Cuomo, actively promoted infanticide and committed horrendous scandal, we rebuke you.”   Yeah… that’s going to do it.]

7) Much of the above analysis would apply to Catholic legislators supporting abortion laws, but the canonical case against Cuomo is, in my view, so much the stronger that, if ecclesiastical action were not feasible, or taken, against him, it would be harder to see it being taken or succeeding against lesser figures.  [Hence….]

8) Two final notes for other prelates concerned about similar actions and actors in their territories.

8 A) Canon 915 is a sacramental disciplinary norm, not a penal canon, and its application requires no penal process. It is, and has long been, applicable to many prominent pro-abortion/euthanasia Catholic politicos and it has been correctly invoked by a few clear-thinking bishops. It at least cauterizes the wound inflicted on the Body of Christ by prominent Catholics acting in open disregard of fundamental Church teaching. It is not a cure-all, but it is a serious step toward healing.  [NB – These moves by Church authorities are medicinal.  They are not meant for revenge or simply for punishment, but to bring about conversion and a change of behavior.]

8 B) In terms of penal canon law the best time to move against a Cuomo-type crisis is, of course, before it happens, i.e., pro-actively instead of re-actively. [I am not well-informed on this.  Did the bishops of NY do anything while Cuomo was on his infanticidal jihad?] Because this post deals with what can still be done now, and not what should have been done before, I will simply observe that a penal precept could have, in my view, been issued against Cuomo on these facts (specifically against, say, his promoting or signing this death-dealing legislation) and in turn that precept could have been enforceable by canonical penalties up to and including excommunication. Canon 1319. The canonical prerequisites to such a penal precept could have been satisfied in this case, facilitating the Church in acting justly and in being seen to act justly. Cuomo’s conscience would have been confronted and the values of the Catholic community would have been protected. Again, this observation does not detract from assessing what can be done canonically, even now, in regard to Cuomo, but it does suggest that other bishops looking at similar problems arising in their Churches would do well to consider acting sooner than later.

Msgr. Pope ends his essay thus: “It is time to end the charade, even the lie, that Andrew Cuomo and others like him are Catholics in good standing. [Do I hear an “Amen!”?] They are not, and this must be made plain to them and to others. Join me in praying that Bishop Scharfenberger and other bishops in New York with jurisdiction will do what is right and necessary.”

I join him in so praying.