Evolution of the Policy and Function of Excommunication in the Roman Catholic Church

Robert C. Keitamo

J.D. Candidate, 2014

For the paper requirement to LAW 353-01 (Fall 2013)

and satisfaction of the Supervised Analytical Writing Requirement

[First Draft]

I. Introduction

In 2013, the Roman Catholic Church celebrated the election of Jorge Mario Bergoglio as its 266th Pope. Assuming the name Franciscus, or Francis, and belonging to the relatively progressive order of the Jesuits, he was soon hailed as the pontiff who would modernize the Church.[1] Out of a storm of media coverage, Pope Francis called for a shift of the Church’s attention away from abortion, contraception, and homosexuality, even affirming that homosexual orientation was not, in itself, sinful.[2] To many, it signaled a break from his conservative forebears, Popes John Paul II and Benedict XVI.[3] While this shift is arguably one of focus rather than one of substantive dogma (abortion, contraception, and homosexual acts, for example, are still considered sinful), does this nevertheless signal a relaxation of Church attitudes with regard to punishment of clergy and laity? The Church, after all, can be described as a legal system in itself; it has a Canon Law, codifying both civil and criminal doctrines, procedures, rules of evidence, trial guidelines, remedies, and punishments.

One of the most well known punishments under Canon Law is excommunication. It is also the most poorly understood. Is excommunication as extreme and ostracizing as the Amish Meidung? Or is it a remedial measure, designed to reform an individual’s behavior so that it may conform to the rest of society?

Excommunication has no true parallel in the American criminal law. Like American criminal law, excommunication considers how a Catholic’s thought and acts (mens rea and actus reus) affect the Church society as a whole. Unlike American criminal law, however, Canon Law also considers how the Catholic’s thoughts and acts affect his relationship to his or her god, focusing not merely on temporal penalties, but supernatural ones. Further, the issue of how, when, and by whom excommunication is imposed runs contrary to what a secular American may think of as Due Process.

II. Background

a. Excommunication’s Place Within the Canonical Legal System

Excommunication is one of a handful of different kinds of penalties in the Catholic Church. Penalties fall into two general groups, expiatory penalties and censures (or “medicinal” penalties).[4] Conceptually, expiatory penalties are closest to American criminal laws; for our purposes, it is sufficient to know that that under an expiatory penalty, a perpetrator commits a crime (or delict), is discovered, punishment is imposed, and the perpetrator must make amends.[5]

Excommunication, however, is classified as a censure or medicinal penalty. The policy behind it is to serve as a “wake-up-call” to the perpetrator, calling him or her to return to conformity with Church doctrine.[6] Excommunication may or may not require the perpetrator to stand trial, and the consequences may even be left up to the perpetrator to self-enforce.[7] The mechanics will be discussed in Part IV.

b. Governing Heads and Jurisdictions

It is essential to understand basic structures within the church relevant to excommunication. The Church’s society is divided between the clergy and laity.[8] Members of both divisions may be excommunicated.

The clergy comprises of the ordained men, akin to the governing bodies within a government.[9] The clergy is further subdivided as follows in ascending hierarchy: priest, monsignor, bishop, archbishop, cardinal, and the Pope.[10]

The laity comprises of the regular congregation. Also within the laity are deacons, various orders of nuns, and brothers.[11]

The Church is also divided and subdivided geographically into units that also serve a jurisdictional function. The smallest unit is a parish, headed by one or more priests.[12] Parishes are grouped into dioceses headed by a bishop.[13] Dioceses are then grouped into archdioceses or “ecclesiastical province”) headed by an archbishop (or “metropolitan” of an ecclesiastical province).[14] The head of the Church as a whole, rather like a capital in a civil system, is the Holy See in the Vatican,[15] within Rome’s city limits. There are other nuances within this structure, but are outside the scope of this paper.

The governing law is codified in the Canon Law, which has undergone many different iterations, the most current being the Codex Iuris Canonici (1983) (hereinafter 1983 CIC).

c. Rites of Passage

The CIC provides for res sacrae, or sacraments. These are essentially rites of passage necessary for a Catholic to achieve what their doctrine teaches is salvation after death.[16] There are seven recognized rites divided into three groups: initiation, service, and healing. [17]Excommunication carries implications for each of these sacraments.

1. Initiation Rites

(a) Baptism. Baptism is the first rite, which represents an individual’s entry into the Church society.[18] While an individual may enter the Church at any age, the sacrament is typically performed on very young infants. For purposes of excommunication, it is important to understand that the modern view of baptism is that it permanently creates a member of the Church, i.e. once a Catholic, always a Catholic. This is true regardless whether the individual is excommunicated or renounces his or her faith.[19] Canon Law has made it almost impossible to leave to Catholic faith once baptized.[20]

(b) Confirmation. Confirmation is usually performed at adolescence, around an age of reason, for purposes of strengthening the baptismal bond, and therefore, the bond to the society regardless of excommunication or renunciation.[21]

(c) Eucharist. Also known as communion, this sacrament “completes the Catholic initiation.”[22] In this rite, a clergyman and his congregation essentially reenact the last supper of Jesus. The clergyman, typically a priest, offers the congregation to consume a wafer of bread and wine, which Catholics believe has been transubstantiated, i.e. miraculously converted into the body and blood of Jesus.[23] Excommunication of clergy may remove the clergyman’s ability to administer communion. Excommunication of laity may remove the layman’s ability to receive it.

2. Service Rites

Matrimony and Holy Orders are typically entered into when the Catholic reaches adulthood. Both of these rites entail a kind of status within the church—married or ordained. A Catholic may not be both simultaneously.

(a) Holy Orders. Holy Orders refers to the entry of an individual into the clergy, i.e. the ordination of a Catholic into the priesthood.[24] It is useful to think of priests has holding a kind of executive function—the enforcement of Church doctrine upon his congregation.[25] Church doctrine is to be upheld, and breaks from this duty could mean consequences for the priest, including excommunication.[26] For example, ordination of women, officiating same-sex weddings, and advocating pro-choice policies each run contrary to Church dogma, and priests may be punished to the point of excommunication for engaging in these practices. Specific cases are discussed below.

(b) Matrimony. Catholic marriage is the lifelong covenant between one man and one woman for the purpose of procreation. Under current Canon Law, a marriage is ended only upon annulment. Excommunications might be enforced for offenses against married status, including adultery, abortion, or bigamy, in the case where an individual who is married in the Church subsequently divorces under civil law, and marries another without obtaining annulment from the previous marriage.[27]

3. Healing Rites

(a) Penance. Common called Confession or Reconciliation, this sacrament by which a Catholic is absolved of his delicts by a cleric.[28] Canon Law provides that sufficient penance has four elements: (1) sincere contrition of the penitent, (2) confession to a priest, (3) priest’s absolution of the penitent, and (4) fulfillment of absolution.[29] The rite requires the Catholic (penitent) to confess his or her sins to a priest. The exchange may be held with both parties behind a partition so the identity of the penitent may be kept anonymous. The priest uses his discretion to absolve the penitent of his or her sins. A priest may, for example, prescribe for the penitent a series of prayers (e.g. two decades of the rosary, five Hail Marys, etc.) by which the penitent’s sins are to be forgiven by God. The rite is performed commonly at death, as it is commonly held tradition that the soul cannot enter into salvation as immediately without a clear conscience.[30] Excommunicated clergy are forbidden from administering this sacrament.[31]

(b) Extrem Unction. Commonly called the Last Rites or Anointing of the Sick is performed by a priest on Catholic who is near death or dead.[32] The rite might be viewed as a final steppingstone for the Catholic to enter into a state of salvation. Arguably, the priest acts as a gatekeeper. It is in the priest’s discretion to administer the rite, provided the person does not “persevere obstinately in grave sin.”[33] Therefore, it follows that an individual who perseveres in a state of excommunication may not be eligible to receive the rite.

d. Other Privileges of Membership in Catholic Society

There are many other rights and responsibilities implied when maintaining good standing within Church society. Two of the most relevant for purposes of excommunication are ritus and crypta.

(a) Ritus. Ritus denotes the ability of a Catholic to celebrate Mass. This includes the right to take holy water, pray in church, and receive communion.[34]

(b) Crypta. Crypta is the right to a Catholic burial. A remnant of ancient Jewish doctrine, a non-Catholic may not be buried in a Catholic burial ground, as it is thought to desecrate the site. Further, a vitandus excommunicant (discussed below) is thought to desecrate a Catholic burial ground.[35]

e. Active and Passive Activities in the Church

Lastly, it is important to distinguish between active and passive participation in Church activities. Different kinds of excommunication use the distinction when prescribing the conduct of the excommunicated individual.

Active participation includes receiving sacraments such as communion, as well as reading, serving the altar, and bringing bread and wine to the altar during Mass for consecration.[36] Passive generally includes other duties, such as simply attending Mass.[37]

III. Excommunication Before the 1983 Code

Before the 1983 CIC, excommunication was generally divided into two main types: major and minor. Of the major type, there were vitandi and notorii excommunications. Of the minor type, there was tolerati excommunication. Each type denoted differing degrees of graveness of the offense underlying the excommunication, and varying consequences with regard to how the Church society was to interact with the excommunicant and what the excommunicant was and was not allowed to do.[38]

a. Vitandi: “Bell, Book, and Candle” Excommunication

Much like the Church itself, the punishment of excommunication has evolved vastly over the centuries. The popular view of excommunication today, however, is informed by the popular medieval view of shut Bibles, tolling death bells, and candles being snuffed out (the “bell, book, and candle”) symbolizing the offending party’s fall from grace and sentence to eternal damnation in the afterlife. Another popular view is of edicts from the Vatican publicly identifying the offender. Indeed, these images have bases in fact. Some are even grounded in well-documented incidents against prominent heads of state whose actions, for various reasons, the Vatican believed were an affront to Church dogma. This popular image generally refers to major excommunication of the vitandi classification, by which the individual was excluded from both active and passive participation in the Church.[39]

Historically, excommunication was used as a coercive governing tool. The censure was threatened or inflicted “to secure observance fasts and feasts, the payment of tithes, the obedience of inferiors, the denunciation of the guilty, [and] to compel the faithful to make known to ecclesiastical authority matrimonial impediments and other information.”[40]

For those accused of a particularly grave sin, the Church practiced a rather ominous ritual which came to be known as the “bell, book, and candle.” In this ritual, a bishop called out for the offender during Mass, asking him to repent for his sins. The bishop also called upon those in the congregation to assist in reforming the offender. If the offender persisted, he would be formally condemned during Mass, in the presence of the congregation. The Mass would proceed as usual until the Gospel was read. The bishop, along with twelve priests dressed in purple would ascend the altar. All thirteen would hold lit candles. Excommunication declarations would be made and the candles would be thrown to the ground and extinguished by foot.[41]

The excommunicant in this case was considered a vitandus—he or she was publically shunned and must be avoided from the church community until he is repentant. The Council of Constance (1414-18) prescribed that vitandi and their offenses were to be publically identified. No formal requirements were set forth for these publications, merely that the public was given notice to avoid the excommunicant.[42]

In the midst of the Reformation, King Henry VIII oversaw the conversion of England from a Catholic country to a protestant one. Though the narrative of these events is not widely agreed upon,[43] it is established that King Henry VIII was publically excommunicated by Pope Clement after Parliament, on behalf of Henry VIII, passed The Ecclesiastical Appeals Act of 1532, eliminating appeals on all matters, religious or otherwise to the Pope, establishing the King of England as the final legal authority.[44] This provided the legal basis for which Henry VIII supplanted the Pope as head of the Church in England.[45]

Perhaps the most well known instance of public excommunication was the Regnans in Excelsis, the papal bull in which Pope Pius V declared Henry VIII’s daughter, Queen Elizabeth I, a heretic and excommunicated. The Regnans further declared Elizabeth I stripped of her royal title, and those who continued recognizing Elizabeth I as queen would similarly be excommunicated.[46]

Vitandi excommunication is considered the most severe form of punishment, cutting off the individual from the society. It is, however, more lenient than the Amish Meidung, in that the ostracism is in place only where reasonable; it did not sever the relationship between family spouses, parents, children, servants, or subjects, unless there was some other compelling cause otherwise[47] (most notably, Queen Elizabeth I).

b. Notorii

Excommunicants designated notorii are found guilty of a public and manifest misdemeanor or have been subject to a declaratory sentence. As such, they excluded from partake in active, but not passive, rites. In other words, the individual is expected to attend Mass, but may not take communion. He or she is also forbidden a Catholic burial unless there is evidence of repentance.[48]

c. Tolerati

Tolarati, or the tolerated, are those guilty of secret offenses. This form of excommunication requires no declaratory judgment by the clergy. Rather, the stigmatizing effect comes from the toleratus having performed the act itself and recognizing privately that the act constituted a sin implicating excommunication.[49]

Though this classification may seem toothless by reason of it private nature and in comparison to or modern legal systems for its lack of apparent stigma among the communicty, one could imagine that a Catholic committing an act implicating a classification of toleratus might still feel stigmatized by the threat of divine, omniscient judgment.

IV. The 1983 Code, Breakdown of Classifications, and Modern Process

This section discusses 1983 reforms of the Canon Law and the resultant breakdown of the classifications of excommunicants, as well as the apparent relaxation of the effect of excommunication upon the accused.

The 1983 Code replaced the 1917 Codex Juris Canonici, and generally addressed the liberalizing effect of the Second Vatican Council. For our purposes, it is sufficient to know that the 1983 made the vitandi, notorii, and tolerati classification apply only in limited circumstances. Most offenses are considered tolerati, whereas vitandi are rare.

c. Elements of Culpability

The four elements of guilt required for triggering excommunication are:

(1) Age of majority (16 years old);

(2) The full use of reason;

(3) Sufficient moral liberty; and

(4) Knowledge of the law and penalty.[50]

The similarities and differences between guilt in our American criminal law and Canon Law are interesting. Both impose a reasonable person standard as a measure of culpability. A diminished capacity to reason, in both systems, logically diminishes a person’s culpability.

Both consider whether the person acted freely. In the American system, this implicates defenses such as necessity, duress, and self-defense.[51] Similarly under Canon Law, a defense is available that the accused lacked liberty due to fear.[52]

The difference, however, is that under the American system, it is generally true that ignorantia legis non excusat—ignorance of the law does not excuse.[53] Under Canon Law, the accused must have had knowledge of the basic tenets of Canon Law, and even the consequences of acting in contravention of that law. This element is concerned with contumacy—whether the accused had contempt for the Church’s laws. Further, it implies that the delict must have been willful. In other words, the offender must have had the state of mind to break intentionally with Catholic teachings.

b. Key Terms and Definitions

To describe who or what excommunicates a Catholic, the excommunication may be ab jure or ab homine (by law or by judicial act, respectively.) In an excommunication ab jure, the individual is punished by the law itself. In an excommunication ab homine, the individual is sentenced after a criminal trial.[54]

To describe the type of sentence incurred, all modern excommunications are either latae sententiae or ferendae sententiae. Under a latae sententiae, an individual is excommunicated at once, by reason of performing the offense without the need for an ecclesiastical hearing. Under ferendae sententiae, an individual is presumed to have offended the Church doctrine, stands trial, and is excommunicated only after the trial and a sentence is handed down by an ecclesiastical judge.[55]

To describe the stigmatizing effect and the individuals standing in relation to the rest of the society, excommunication is classified as either public or occult. In other words, once an excommunication sentence is realized it is either made widely known by declaratory judgment or by notoriety of the act underlying excommunication, or it is secret, known to almost no one but the offender. It is up to the offender to self-enforce the consequences of excommunication.[56]

Finally, Canon Law considers whether the sentence is binding in forum externum or in forum externum. A sentence in forum externum is valid in all ecclesiastical jurisdictions, whereas a sentence in forum internum is valid in the offender’s own jurisdiction.[57]

c. Process

1. Latae sententiae

Latae sententiae might be closest in comparison to strict liability crimes under American law. Canon Law, in fact, states that an excommunication is latae sententiae ipso facto if the law says so.[58] For example, “A person who procures a completed abortion incurs a latae sententiae excommunication.”[59] Abortion is specified as implying this particular kind of penalty. Under latae sententiae and a strict liability crime, culpability attaches by virtue of performing the act itself. But in contrast to strict liability, a Catholic is only faced with latae sententiae if he is aware of the wrongdoing, whereas under an American strict liability criminal statute, the maxim that “ignorance of the law is no excuse” usually informs the legal analysis. The delicts giving rise to latae sententiae (e.g. abortion), however, could be seen by a reasonable Catholic as obviously violative Canon Law, for example, as over-speeding down a highway could be seen as obviously violative of a civil state’s vehicle code to a reasonably prudent driver.

For another comparison, because a Catholic latae sententiae can incur a penalty without notice or a trial in which he or she can confront witnesses in person, the Canon Law of excommunication can arguably be described as lacking what a modern American legal system would call Due Process.[60] All these things being considered, a latae sententiae excommunication seems foreign in comparison to the American penal system for its treatment of the perpetrator’s state of mind and rather ad hoc modes of enforcement. A person punished latae sententiae essentially excommunicates himself.[61] It is plausible that a Catholic, reading the Canon Law of censure might ask himself, “am I or am I not excommunicated? And if so, what am I to do about it?” Catholics do believe in absolution, and it may be expected of a reasonably prudent Catholic facing such doubt to undergo the sacrament of Confession--which may, in effect, satisfy and lift the excommunication (discussed below). Nevertheless, this lack of overall clarity may be counterintuitive to a student of American law, where policy favors predictability of law.[62] The vagueness of Canon Law, furthermore, seems alien in an American system where the void for vagueness doctrine informs statutory interpretation.[63]

The most common offenses implicating latae sententiae include:

· Apostasy, or joining a non-Christian religion such as Islam, or perhaps renouncing ones faith for atheism or agnosicism;[64]

· Heresy, or rejecting Catholic dogma, such as advocating pro-choice policies, same-sex marriage, or ordination of female priests;[65]

· Schism, or breaking from the Catholic Church to form ones own sect;[66]

· Abortion;[67] and

· Being an accomplice to any of the above.

Of course, the case of a Catholic having committed these delicts must meet the four elements of culpability to trigger a question of excommunication.

Modern examples of the Canon Law of excommunication at work are abundant and pervade even into civil society.

Example 1:

Notable implications of excommunication include those against then-House Speaker Nancy Pelosi, D-CA, and then-Vice Presidential nominee Joe Biden.

In 2008, Biden arrived at the Democratic National Convention, as there was growing speculation over whether his Catholicism and pro-choice stance would help or hurt the Democratic Party in the upcoming presidential election. When asked about his views on Meet the Press, Biden answered, “It’s a personal and private issue.”[68]

In response, Archbishop of Denver Charles J. Chaput publicly called upon Joe Biden to refrain from receiving the sacrament of communion. Numerous conservative Catholics, incensed by Biden’s pro-choice position began calling for his excommunication.[69]

Nancy Pelosi, another pro-choice Catholic politician, was similarly warned not to receive communion by the Archbishop of Washington George Niederauer in 2010.[70] She faced criticism from conservative Catholics regarding her pro-choice statement on a Meet the Press interview.[71]

Consider the words of then-Cardinal Jorge Bergoglio in 2007:

We must adhere to ‘eucharistic coherence’, that is, be conscious that they cannot receive Holy Communion and at the same time act with deeds or words against the commandments, particularly when abortion, euthanasia, and other grave crimes against life and family are encouraged. This responsibility applies particularly to legislators, governors, and health professionals.[72]

Speculation therefore arose in March 2013 before the ascension of Cardinal Bergoglio to the Papacy as to whether Biden and Pelosi, who were expected to attend the Mass for the new Pope, would receive communion.[73] It would seem that under Canon Law, both Biden and Pelosi were excommunicated latae sententiae[74] as essentially being accomplices to abortion in their roles as pro-choice public officials.

These incidents raise interesting questions as to whether Biden and Pelosi’s offenses were public or occult. While two archbishops publicly criticized Biden and Pelosi that they not were formally excommunicated ferendae sententiae with a declaratory judgment. In this respect, an excommunication would be occult, and therefore valid in forum internum. In other words, the punishment would not be valid in the Vatican. On the other hand, excommunication may be public by virtue of the notoriety or publicity surrounding an individual’s alleged wrongdoing. In the end, however, during the Papal Mass both Biden and Pelosi received communion amid questions over whether they had excommunicated themselves latae sententiae.[75]

Example 2

On September 18, 2013 Father Greg Reynolds, a priest in Melbourne, Australia received a letter in Latin from the Vatican informing him that he had been automatically excommunicated by Pope Francis. Reynolds incurred a latae sententiae excommunication though no explanation was given in the document.[76]

A separate letter sent to his archdiocese cited Reynolds’ support for female ordination as a primary reason for the censure. In addition, Reynolds had been vocal about his support for gay rights, and performed (unofficial) same-sex wedding ceremonies on the steps of Parliament. Reynolds founded a group called Inclusive Catholics, which supports female ordination and gay rights. Reynolds affirmed, "I firmly believe in the Primacy of Conscience and that loyal dissent is an important part of any healthy organization.”[77]

2. Ferendae Sententiae

A ferendae sententiae excommunication is rarer but more familiar to an American system of conviction, trial, and sentencing; the stigma of penalty is not binding until the perpetrator has been given a judicial hearing and a final determination is handed down by a cleric, most commonly a bishop.[78]

But how does one know if a delict implies ferendae sententiae excommunication? The key words to look for in the Canon Law are “to be punished with a just penalty.” For example, Canon 1398 provides, “A person who joins an association which plots against the Church is to be punished with a just penalty.” The 1917 CIC originally included language that imposed ferendae sententiae for membership in the society of Freemasons. The 1983 CIC iteration of the same code omitted this language, but it remains that tenets of Freemasonry are incompatible with the tenets of Catholicism. Nonetheless, theoretically membership in such a fraternity would give rise to the process for ferendae sententiae excommunication.[79]

The hierarchy of ecclesiastical courts also mirrors our three-tiered judicial system. Analogous to our trial, appellate, last resort courts are the diocesan and metropolitan tribunals, and the Supreme Tribunal of the Roman Rota or Apostolic Signature. Because delicts giving rise to ferendae sententiae are identified statutorily by the phrase “to be punished with a just penalty,” sentencing is discretionary. Thus, the punishment is to be considered on a case by case basis.[80]

d. Judgments and Satisfaction of Judgments

When a Catholic is excommunicated ferendae sententiae, the judgment is declaratory, and therefore is always made public by the notoriety of the delict among the locality and/or by publication of the delict by a Church authority. Further, the sentence is binding in forum externum, in all jurisdictions. The public excommunication may be removed only by public absolution.[81]

When a Catholic is excommunicated latae sententiae, the judgment may be either public or occult. With an occult judgment, the delict is secret and the perpetrator is expected to treat himself as excommunicated and confess the underlying delict. Unlike public judgments, the perpetrator here is not obligated to denounce himself before a cleric.[82]

What if an excommunicated individual, attending mass, seeks to receive communion? Canon Law 916 provides, “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.”[83] This indicates that only publicly excommunicated individuals are to be denied the sacrament. In other words, if a priest administering communion to his congregation knows that a certain individual has been publicly excommunicated, the priest must refuse to administer communion to that individual.

Canon 916 also excludes from the sacrament others persevering in manifest grave sin.[84] This seems to be a catch-all rule, but has the practical effect of carving out an exception for those subject to an occult judgment. If a sentence is occult, or private, it follows that the underlying delict it is not manifest to warrant a cleric denying the individual administration of communion. Furthermore, even if the priest is practically certain that a person has been privately excommunicated latae sententiae, he should not publicly refuse administration of communion. For example, a woman who is over 16, has full capacity to reason, was not under duress or coercion, and knew the Church’s official stance on abortion, but receives an abortion, could be automatically excommunicated latae sententiae. Assuming the delict was not widely known in the locality, but the priest was almost certain of its commission, the priest would not be in the position to refuse communion to the woman.

But finally, who may absolve the excommunicant, and thereby release him or her from the penalty and reinstate good standing with the Church society? Canon Law holds that satisfaction of judgment, or absolution, can be non-reserved or reserved.[85]

With regard to a private excommunication any confessor, e.g. a priest, bishop, etc., may absolve the individual. This is a non-reserved absolution. A special rule exists for the delict of abortion, however. Canon 1398 provides that the excommunicant confess, albeit privately, to any bishop.[86]

Yet some absolutions are reserved for bishops or the Pope. If an individual is excommunicated publicly by declaratory judgment, special rules apply. The rules are governed in part by the papal bull by Pope Pius IX, Apostolicae Sedis Moderationi, regulating censures and reservations of absolution.[87] But generally, it is sufficient to know that excommunications in foro externo are typically absolved by the judge who handed down the judgment. This can be by a bishop or the Pope.[88]

The Council of Trent between 1545 and 1563 settled that a broad exception applies to an excommunicant facing death. In such cases, the excommunicant can seek absolution from any priest, regardless of the nature or gravity his delict. Furthermore, the absolution can be valid even if the priest himself has been excommunicated.[89]

V. Conclusions

Overall, the practice of excommunication has been loosened over the centuries. The shift away from vitandi classifications, ominous stigmatizing rituals, and the rarity of ferendae sententiae penalties are all evidence of this shift. Perhaps this trend is influenced by secular, civil law having effectively pushed out the Catholic Church as the dominant influence on Western civilization.[90] The Church has faced numerous Reformations, the Enlightenment, and legislation establishing separation of church and state. It has also faced social shifts with regard to sexuality and gender, and a continuing loss of credibility due to the ongoing allegations of sexual abuse upon minors by clergy.[91]

The Pew Research Center indicates that the number of Americans who identify as “strong” Catholics is at a four-decade low, only 28%, down 15 points from the mid-1980s. Church attendance among all Catholics has also fallen from 47% in 1974 to 24% in 2012. Protestant attendance in comparison has been stable. The percentage of Catholics who claim “not very strong” identity has risen to 62%, up from 45% in 1990.[92]

In 2013, Pope Francis announced that the Church should shift its focus away from homosexuality, abortion, and contraception. A Quinnipac University poll indicated that 68% of American Catholics agreed with Pope Francis, while 23% disagreed.

From a statistical standpoint, it is plausible that the liberalizing of excommunication is related to the Church’s attempt to maintain relevance and maintain membership. Looking past the media coverage of Pope Francis’ statements, however, the Church’s official stance on homosexuality, abortion, and contraception have not substantively changed. Homosexual acts, abortion, as well as female ordination and other acts classified as delicts in the past are still delicts under 1983 CIC, and still factor in to imposing a censure on a Catholic.

Pope Francis did state, however, that “the church has sometimes locked itself in small things… in small-minded rules.” He went on to say that Catholics “want pastors… not bureaucrats or government officials.” With regard to homosexuals, he stated “it is not possible to interfere spiritually in the life of a person."[93] The statements implicate Pope Francis’s views on the church’s legal system, both procedurally and substantively.

To some, these statements indicate “a shift in approach, moving from censure to engagement.”[94] How this affects the law of excommunication remains to be seen, though it seems that it signals a trend of general easing of the burdens and stigma for delicts.

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[1] Lucy Field, A Fresh Beginning for the Catholic Church, The Positive (2013), http://thepositive.com/a-fresh-beginning-for-the-catholic-church/

[2] John Allen, Hada Messia, Pope Francis on Gays: Who am I to Judge?, CNN (July 29, 2013), http://religion.blogs.cnn.com/2013/07/29/pope-francis-on-gays-who-am-i-to-judge/

[3] See generally Michelle Boorstein, Elizabeth Tenety, Conservative Catholics Question Pope Francis’s Approach, Washington Post (October 14, 2013),

[4] 1983 Code c.1312, § 1.

[5] Cathy Caridi, J.C.L., Am I Excommunicated?, Canon Law Made Easy (January 25, 2008), http://canonlawmadeeasy.com/2008/01/25/am-i-excommunicated/

[6] Id.

[7] Id.

[8] Auguste Boudinhon, Laity, 8 Catholic Encyclopedia (Robert Appleton Co. 1910), available at http://www.newadvent.org/cathen/08748a.htm

[9] William Fanning, Cleric, 4 Catholic Encyclopedia (Robert Appleton Co. 1908), available at http://www.newadvent.org/cathen/04049b.htm

[10] Id.

[11] Boudinhon, supra.

[12] 1983 Code c.515 et seq.

[13] 1983 Code c.374, § 1

[14] 1983 Code c. 431, §1

[15] 1983 Code c. 1442-45

[16] Catechism of the Catholic Church (hereinafter CCC), 1127-29

[17] See generally, CCC, Part Two.

[18] See generally 1983 Code c. 849-878.

[19] Id. at 845.

[20] Id. at 111.

[21] Id. at 891.

[22] CCC 1322-23

[23] CCC 1333.

[24] Id. at 1539.

[25] Id. at 1540.

[26] See generally Boudinhon, supra.

[27] See generally 1983 Code c.1055-65. For regulation of annulment, see c.1682-1685.

[28] CCC 1422.

[29] Id. at 1450.

[30] Id. at 1470.

[31] Boudinhon, supra.

[32] CCC 1526-32

[33] 1983 Code c. 1007.

[34] Boudinhon, supra.

[35] Id.

[36] 1983 Code. c 1331.

[37] John P. Beal, New Commentary on the Code of Canon Law 63 (Paulist Press 2010).

[38] Boudinhon, supra.

[39] Id.

[40] Id.

[41] See generally Jan Jósef Janicki, The Rite of Excommunication as Contained in the Medieval Roman Pontifical, Uniwersytet Papieski Jana Pawła II w Krakowie, available at http://upjp2.edu.pl/download/czytelnia/janicki_rite.pdf.

[42] Boudinhon, supra.

[43] See generally Gregory Jounson, Competing Narratives: Recent Historiography of the English Reformation Under Henry VIII (Saint Louis University 1997), available at http://gregscouch.homestead.com/files/Henry8.html.

[44] 24 Hen 8 c 12.

[45] G. W. Bernard, The King’s Reformation 69-71 (Yale Univ. Press 2005).

[46] Pius V, Regnans in Excelsis, Feb. 25 1590, available at http://www.papalencyclicals.net/Pius05/p5regnans.htm.

[47] Boudinhon, supra.

[48] Id.

[49] Id.

[50] 1983 Code c. 1321-24.

[51] Model Penal Code § 3.05.

[52] 1983 Code c. 1324 § 1.5

[53] Model Penal Code §2.02. But see Lambert v. California, 355 U.S. 255 (1957) which held “[w]here a person did not know of [a particular law] and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.” An argument could therefore be made that American law is similar to Canon Law, but this exception generally applies only when knowledge of the law is an element of the crime.

[54] Boudinhon, supra.

[55] Id.

[56] Id.

[57] Id.

[58] 1983 Canon c. 1314.

[59] Id. at c. 1318

[60] U.S. Const. Amend. V.

[61] Boudinhon, supra.

[62] See, for example, Michael Ena, Choice of Law and Predictability Decisions in Product Liability Cases, 34 Fordham Urb. L.J. 1417 (2006).

[63] Coates v. Cincinnati, 402 U.S. 611, 615 (1971).

[64] 1983 Code c. 1364.

[65] Id.

[66] Id.

[67] Id. at 1398.

[68] Julia Duin, Archbishop Scolds Pro-Choice Biden, The Washington Times (Aug. 26, 2008), available at http://www.washingtontimes.com/news/2008/aug/26/archbishop-condemns-bidens-pro-choice-stance/?page=all

[69] For example, see Laura Wood, Why Hasn’t Joe Biden Been Excommunicated?, The Thinking Housewife (Oct. 12, 2012), http://www.thinkinghousewife.com/wp/2012/10/why-hasnt-joe-biden-been-excommunicated/.

[70] Archbishop George H. Niederauer, Free Will, Conscience, and Moral Choice, Catholic San Francisco (Jan. 13, 2010), available at http://www.catholic-sf.org/news_select.php?newsid=&id=56744.

[71] Tom Brokaw, Nancy Pelosi, et al., ‘Meet the Press’ transcript for Aug. 24, 2008, http://www.nbcnews.com/id/26377338/#.Ul8bwRaDTww.

[72] Donovan Slack, Biden, Pelosi Take Communion Despite Threatened Backlash, Politico (Mar. 19, 2013), http://www.politico.com/politico44/2013/03/biden-pelosi-take-communion-despite-threatened-backlash-159786.html.

[73] Id.

[74] Robert T. Miller, Catholic Politicians and Excommunication, First Things (May 30, 2007), http://www.firstthings.com/onthesquare/2007/05/catholic-politicians-and-excom.

[75] Slack, supra.

[76] Elizabeth Dias, Pope Excommunicates Priest Who Backed Women’s Ordination and Gays, Huffington Post (Sept. 25, 2013) http://world.time.com/2013/09/25/pope-francis-excommunicates-priest-who-supports-womens-ordination-and-gays/

[77] Brian Roewe, Australian Priest, Advocate for Women’s Ordination Excommunicated, National Catholic Reporter (Sept. 24, 2013), http://ncronline.org/news/global/australian-priest-advocate-womens-ordination-excommunicated.

[78] See generally Cathy Caridi, J.C.L., Have Pro-Choice Politicians Excommunicated Themselves?, Canon Law Made Easy (Oct. 21, 2012), http://canonlawmadeeasy.com/2010/10/21/have-pro-abortion-politicians-excommunicated-themselves/.

[79] Id.

[80] Louis Naurois, Ecclesiastical Penalities, Encyclopedia of Theorlogy: A Concise Sacramentum Mundi 415 (Karl Rahner, ed.) (Burns & Oates 1975).

[81] Boudinhon, supra

[82] Id.

[83] 1983 Code c. 916.

[84] Id.

[85] Boudinhon, supra.

[86] 1983 Code c. 1398.

[87] Michael O’Riordan, Apostolicae Sedis Moderationi, 1 Catholic Encyclopedia (Robert Appleton Co. 1907), available at http://www.newadvent.org/cathen/01645a.htm.

[88] Boudinhon, supra.

[89] Id.

[90] Gerald O’Collins, S.J., Catholicism, preface. (Oxford Univ. Press 2003).

[91] David Gibson, Catholic Bishop Says Church’s Credibility on Sex Abuse is Shredded, National Catholic Reporter (Sept. 5, 2012), http://ncronline.org/news/accountability/catholic-bishop-says-churchs-credibility-sexual-abuse-shredded.

[92] Pew Research Center, ‘Strong’ Catholic Identity at Four-Decade Low in U.S., PewResearch (Mar. 13, 2013), available at http://www.pewforum.org/files/2013/03/Strong-Catholic-Identity-version-3-13-13-for-web.pdf.

[93] Eric Marrapodi, Daniel Burke, Pope Francis: Church Can’t ‘Interfere’ with Gays, CNN Belief Blog (Sept. 19, 2013), http://religion.blogs.cnn.com/2013/09/19/pope-francis-church-cant-interfere-with-gays/.

[94] Id.