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.

About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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  1. Gregg the Obscure says:

    top ten Catholic/”catholic” online hotheads (from all angles and alphabetically)

    Fr. Anthony Cekada
    Simcha Fischer
    Dawn Eden Goldstein
    Jas. Martin
    Robert Mickens
    Mark Shea
    Steve Skojec
    Michael Sean Winters
    Michael Voris
    John Zmirak

  2. Kathleen10 says:

    God bless some of those “hot heads”. Honestly, we have become so milque-toast it’s a fright to imagine we are only now just entering the first phases of persecution for our faith and we are ready to beat down our own who just may have enough zeal to protest our beatings. I am referencing just a few on this list, others here seem like they would be happy to do the beatings. One even promised to knit by the guillotine.
    Yes, there should be penalties of a public kind. It is a grave scandal to see infanticide celebrated, our buildings of international reknown used to shout our abortions to the world. But this is the same man, I think, who said if you are a conservative, there is no PLACE for you in New York. Or was that the Communist Deblasio (Wilhelm)…I can’t remember, all diabolical Marxists sound the same these days.
    God help us. Our babies are being murdered moments before (or during) their natural birth, and our bishops are cowering and abandoning children to the wolves (the children who managed to get past the first executioner) because they perceive they are “being bullied” with words.

  3. LeeGilbert says:

    Are there no canonical penalties against bishops who do not “end the charade?”

    Then again, what is the point of canonical penalties if neither the people of New York nor Gov. Cuomo give a damn about canonical penalties? Time was when the Pope would have placed the entire state under interdict, but the people’s lack of faith and the Bishop of Rome’s (and all bishops at this point) lack of moral authority would only provide our many comedians with an abundance of material. It is bad enough that the Catholic Church has become a fount of scandal and a stench in the nostrils of many people, at this point issuing canonical penalties would likely make us a laughing stock as well.

    We are scandalized at Gov. Cuomo, but I wonder if the angels are scandalized at us for we average Catholics ( for lack of a better term) are living at such a low ascetic, devotional level that the Church is, to use Newman’s term, out of grace. It would seem that we have as much need to repent as Gov. Cuomo, for would not he have the grace and wisdom to govern better if we were praying for him and the unborn with sufficient fervor and earnestness to bring down grace from Heaven? Gov. Cuomo is in a very bad way, but so are we.

  4. hwriggles4 says:

    Bishop Scharfenberger, the newer bishop of Albany, was not afraid to voice his concerns. Life Site News covered this, and Fox and Friends Weekend had him on this morning. Please thank him, you can’t take the Brooklyn out of the bishop.

  5. ChesterFrank says:

    I don’t understand how excommunication relies strictly on the abortion issue. It seems more accurate to think that this Governor has distanced himself so far away from the Catholic Church that he should not be considered a member of that Church. Cardinal Dolan had once said that the Governors political party had abandoned the Church. Excommunication is simply recognizing what Governor Cuomo and many of the Catholic leaders of the Democrat party have already done. They walked out. Cuomo’s lighting of the Empire State building at the signing of that law was illuminating a pillar of Baal. In Cuomo’s case I often wonder if he doesn’t view the Statue of Liberty as a pagan idol. Is that statement unjustified? The Bishop of Albany has expressed his concerns on how this prominent Catholic politician is harming his flock, he mentioned a fear of Catholics being persecuted. This is a charade. Cuomo is no longer Catholic, that is obvious. The Democrats are anti Catholic to the point that it is dangerous for Catholics to associate with them. I wonder if someone were to be the fly on the wall at some of the Catholic institutes of higher learning (Universities) around Albany (Sienna, College of St Rose) or NYC (Fordham): would their be anger or fear at this states actions, or would their be a complacent smile? Where is the angry screaming at the pulpit? Bishop Scharfenberger, Cardinal Dolan and all those under their authority should be screaming so loudly this Sunday they shouldn’t be able to talk again for a week.

  6. FrAnt says:

    The Bishops of NY wrote a letter to Catholic NYers informing them of the content of the Reproductive Health Act asking for some prayers that the Act would not go through. Meh! Then after the signing, we received a copy of the Bishops’ response to the Act passing. In essence, is said that the Bishops of NY were “sad” the Act was passed into law.

    On January 21st my diocese of Rockville Centre celebrated the martyrdom of our patroness, St. Agnes. To think that this 12 or 14-year-old girl would rather be dragged naked through Rome than to give up her virginity is more morally strong than Bishops who are “sad” about abortion and infanticide now legal under their noses. If this is not a teaching moment for Catholics and the world, then nothing is or ever will be.

  7. Greg Hlatky says:

    I wish one of these bishops had loudly and clearly said what they could say: “Governor Cuomo, your soul is in mortal peril. The time for your repentance is short.”

  8. John Grammaticus says:

    It seems to me that a huge part of the problem is that there seems to be ambiguity over which Bishop has authority to enact canonical penalties in the case of politicians are registered in one jurisdiction e.g. California but spend the majority of their time in another e.g. Washington. As Cumuo has demonstrated this problem exists even on the state level except in places like rode island and wyoming where the territorial extant of the diocese is the same as the state.

    [Where the person has domicile: Albany and, because he has a residence there, NYC.]

  9. teomatteo says:

    “…end the charade”. Thirty years ago it was called a seamless garment now its called a charade.. My my.

  10. Glennonite says:

    The lighting of the Empire State building was a symbolic, ‘giving the finger’ to God. God knows how to respond to towers erected to the ‘greatness’ of man’s ‘accomplishments’. This is gonna go biblical really fast from here on. Pillars of Salt-style biblical.

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  12. Charivari Rob says:

    Not the Empire State Building, though – it’s the Freedom Tower at World Trade Center.

    Empire State Building is under private ownership (I have no idea which point of view they would favor) and it would be something of a stretch to think the Governor could “order” the lights there (though I’m sure the owner/operator would at least hear him out)

    Freedom Tower – I’m not sure who owns/leases or operates it, but the site is controlled (to some extent) by the Port Authority of NY & NJ and Governor of NY appoints half of the board of PANY&NJ, so I’m wouldn’t be surprised if he can in fact order the color of that building’s lights.

    Freedom Tower – that’s the one built on the site of (and abutting the memorial for) 2700+ murders – including 11 unborn children. Apparently, the Governor didn’t enable “ironycheck” along with spellcheck and grammarcheck on his word processor.

  13. LarryW2LJ says:

    One has to wonder, if indeed any of these pro-choice “Catholic” politicians were ever to be formerly excommunicated – would their response be anything more than, “Oh well, I guess that’s the way the ball bounces.”

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