Canon 915 and the Buenos Aires guidelines.

In the wake of the promulgation of the Buenos Aires Amoris Laetitia guidelines as the authentic magisterium of Pope Francis, many critics of the Buenos Aires guidelines have been quick to assert that Canon 915 of the Code of Canon Law still closes off the sacraments in cases where the Vicar of Jesus Christ has expressly opened them.

Leading the charge against the Buenos Aires guidelines has been Dr. Edward Peters, a professor of canon law at Sacred Heart Major Seminary in Detroit:

“Unless canon 915 itself is directly revoked, gutted, or neutered, it binds ministers of holy Communion to withhold that most august sacrament from, among others, divorced-and-remarried Catholics except where such couples live as brother-sister and without scandal to the community.”

“Nothing I have seen to date, including the appearance of the pope’s and Argentine bishops’ letters in the Acta Apostolicae Sedis, makes me think that Canon 915 has suffered such a fate.”

Strong words from Dr. Peters.  But let's consider whether there really is any contradiction between Canon 915 and the Buenos Aires guidelines.

Canon 915 states:

Can.  915 Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion.

The Buenos Aires guidelines state:

6) In other more complex circumstances, and when a declaration of nullity could not be obtained, the aforementioned option may not be in fact feasible. However, a path of discernment is also possible. If it is recognized that, in a specific case, there are limitations that mitigate liability and guilt (see AL 301 - 302), particularly when a person considers that he or she would fall into a further fault by damaging the children of the new union, Amoris laetitia opens the possibility of access to the sacraments of Reconciliation and the Eucharist (see AL notes 336 and 351). These, in turn, dispose the person to continue maturing and growing with the strength of grace. 

Do the Buenos Aires guidelines state, "those who obstinately persevere in manifest grave sin are to be admitted to holy communion"?  No.  In fact, in paragraph 7, they state:

"7) But we must avoid understanding this possibility as an unrestricted access to the sacraments, or as if any situation justified it. What is proposed is a discernment that adequately distinguishes each case. For example, special care requires "a new union that comes from a recent divorce" or "the situation of someone who has repeatedly failed their family commitments" (AL 298). Also when there is a kind of apology or ostentation of the situation itself "as if it were part of the Christian ideal" (AL 297). In these more difficult cases, pastors should accompany with patience trying some way of integration (cf. AL 297, 299)."

Cardinal Francesco Coccopalmerio, president of the Pontifical Council for Legislative Texts, states in the final paragraphs of Chapter 3 of his "Commentary on Chapter Eight of Amoris Laetitia" that the foregoing language, which quotes from Amoris Laetitia paragraph 297, is describing precisely the kind of situation in which a person should be excluded from Holy Communion, i.e., paragraph 7 of the Buenos Aires guidelines is explaining the situation in which Canon 915 applies:  when a person is being obstinate.  

Paragraph 6, in contrast, opens the sacraments of Penance and the Eucharist to persons who are not obstinate, but face complex circumstances that mitigate liability and guilt.  The person in paragraph 6 has already, in paragraph 3, demonstrated to a priest "his right intention and his good intention to place his whole life in the light of the Gospel and to practice charity".  

Paragraph 300 of Amoris Laetitia describes this person:

For this discernment to happen, the following conditions must necessarily be present: humility, discretion and love for the Church and her teaching, in a sincere search for God’s will and a desire to make a more perfect response to it.

A person who is sincerely searching for God's will and desires to make a more perfect response to it is not being obstinate.  That a person can both have a sincere intention to make a more perfect response to God's will and at the same time face concrete circumstances that make practicing continence not feasible should not be controversial.  Pope Francis and the Argentine bishops do not give any examples of what complex circumstances there may be in which continence is not feasible because they do not want to engage in casuistry, but all we have to do is think of the millions of women around the world trapped in abusive second (third, fourth, fifth ...) marriages with no way out, no legal, economic or social recourse, and the very real threat of physical harm should they try to leave.  And lest we think that such cases are extreme third world problems, perhaps we should take a closer look at just how many Americans are living in situations of such virtual slavery, with incompetent and corrupt police departments and courts that offer no help at all.  

That's just one of many examples where there may be mitigating circumstances that reduce or even eliminate culpability, but it's telling that the critics of Amoris Laetitia always seem to refer to "the couple" practicing continence as if they were a single decision making unit rather than two individuals who each have to make their own decision, one of whom might be desiring to make a more perfect response to God's will while the other might be threatening harm at the mere mention of God's will.

Critics of the Buenos Aires guidelines retort that the Pontifical Council for Legislative Texts defined in a year 2000 declaration that "obstinate persistence" looks only to the objective situation, not the subjective attitude of the person:

obstinate persistence, which means the existence of an objective situation of sin that endures in time and which the will of the individual member of the faithful does not bring to an end, no other requirements (attitude of defiance, prior warning, etc.) being necessary to establish the fundamental gravity of the situation in the Church. 

That was, of course, the discipline of the Catholic Church under Familiaris Consortio - the Church looked at the objective situation of the divorced and remarried and denied access to the sacraments of Penance and the Eucharist unless "they" took on the duty to live in complete continence.  This discipline required both the man and woman in a new civil union to commit to continence.  If only one of the persons desired to live in continence, the Church, at least officially, did not offer a path toward reconciliation and access to the Eucharist.

The Buenos Aires guidelines explicitly change this.  They retain the prior discipline of Familiaris Consortio in paragraph 5:  "when both are Christians with a path of faith, the commitment to live in continence can be proposed".  The Buenos Aires guidelines go on to note the obvious:  there may be "other, more complex circumstances," e.g., one of the partners might desire continence, and the other might not.  This is a change in discipline, and the Pope has made it his authentic magisterium.

Undeterred, critics will insist that the year 2000 declaration of the Pontifical Council for Legislative Texts set forth a divine law that the Church cannot change.  The document declares, "The prohibition found in the cited canon, by its nature, is derived from divine law and transcends the domain of positive ecclesiastical laws: the latter cannot introduce legislative changes which would oppose the doctrine of the Church."  The canon itself may derive from divine law, but the council's interpretation of "obstinate persistence" does not.  The council's definition of "obstinate persistence" is so strained - completely ignoring the subjective mindset of the person and looking exclusively to the objective situation, a definition that would make sense only if, at the very least, the word "obstinate" were dropped from the canon - it clearly reflects a prudential decision at the time to bring canon law into conformity with the express intentions of the Pope as stated in Familiaris Consortio.

Now that church discipline has changed with Amoris Laetitia, the same principle applies:  canon law needs to be interpreted in a manner consistent with the Pope's express intentions.  The current head of the Council for Legislative Texts, Cardinal Coccopalmerio, has done exactly this.

But, the critics rejoin, doesn't the council say, before giving its definition of "obstinate persistence":

Any interpretation of can. 915 that would set itself against the canon's substantial content, as declared uninterruptedly by the Magisterium and by the discipline of the Church throughout the centuries, is clearly misleading. One cannot confuse respect for the wording of the law (cfr. can. 17) with the improper use of the very same wording as an instrument for relativizing the precepts or emptying them of their substance.

Perhaps, but note that this is not an appeal to divine law, but to the Magisterium and discipline of the Church.  Who has supreme authority over the Magisterium?  Who has supreme authority in matters of Church discipline?  Pope Francis.

Moreover, the discipline of the Church, however many centuries it may have previously been in force, has changed with Amoris Laetitia.  The Buenos Aires guidelines make this clear:  "Amoris laetitia opens the possibility of access to the sacraments of Reconciliation and the Eucharist".  This is the authentic magisterium of Pope Francis, the "official teaching of the Church" according to Cardinal Coccopalmerio.  This may be a change of immense historical significance, changing centuries of past discipline.  It may even be an "interruption" of past magisterial declarations.  But it is an interruption the Pope has the power to make.  Divine law does not exclude persons in a state of mere venial sin from the sacraments.  Church law may have excluded such persons from the sacraments for good prudential reasons in the past, but Pope Francis has now opened a path for those in a state of venial sin to access the sacraments.

Pope Francis has not done this by changing the canon, rather he has simply observed:

"Neither the Synod nor this Exhortation could be expected to provide a new set of general rules, canonical in nature and applicable to all cases. What is possible is simply a renewed encouragement to undertake a responsible personal and pastoral discernment of particular cases, one which would recognize that, since 'the degree of responsibility is not equal in all cases', the consequences or effects of a rule need not necessarily always be the same."  AL 300

The Pontifical Council for Legislative Texts established that canon law needs to be interpreted in a manner consistent with the Magisterium and the church's discipline.  And that means in conformity to the Pope's express intentions.  The Pope is, after all, the sole author and ultimate interpreter of canon law.  Canon law is a way for the Pope to bind the Church, not a way for the Church to bind the Pope.  Pope Francis has made it clear that the Church is now to look at both the objective and the subjective side of sin to determine if there are limitations that mitigate liability and guilt.  Accordingly, the Church can no longer apply Canon 915 by looking solely to the objective situation and refuse the Pope's instruction to recognize that, since the degree of responsibility is not equal in all cases, the consequences or effects of the canon need not necessarily always be the same.