Category: theology

Pope Francis on Amoris laetitia and reception of Communion by Divorced and Remarried Persons

Pope Francis's comments in an interview (see a transcript and the video of his comments at 1P5) support the interpretation of his intent that I proposed in my previous post, namely that the pastoral practice in dealing with divorced and remarried persons who desire accompaniment by the Church and to live within it, should be somewhat more like the pastoral practice in dealing with persons who, objectively and voluntarily, reject various points of Catholic doctrine and unity, but who desire a certain union with the Church, and/or who have limited access to the sacraments in their own church or ecclesial community. He affirms that there are new, concrete possibilities opened up that did not exist prior to Amoris laetitia, yet at the same time, that to say that alone — "I could say, 'yes, period.', but that would be too small an answer" — without seeing that in the larger context would be a mistake.

In the case of the orthodox, it is clear enough to most people that there are reasons why an orthodox christian is not in a position to accept, e.g., the Church's teaching on the authority of the pope — because he grew up learning to see the Church's teaching as wrong, a human deviation, etc. — and that the Church's acceptance that these persons can in good faith reject the pope's authority does not imply any lessening of the doctrine itself. It does imply, however, this doctrine is not manifestly true to each and every person of good will.

If there are similar externally perceptible reasons why individual persons are not in a position to accept the Church's teaching on the indissolubility and unity of marriage and/or the restriction of genital intercourse to marriage, and the Church accepts these, this similarly does not imply a lessening of the doctrine of indissolubility and unity of marriage itself. It does, however, imply, just as in the case of the orthodox and the authority of the pope, that the Church's doctrine on marriage is not manifestly true to all of good will, not even to all Catholics of good will.

There is, of course, a difference between the orthodox who does not accept the Church's teaching, and a Catholic who does not accept it, namely that the Catholic claims to be Catholic. This could be a reason to maintain a different practice in the two cases, not because of there being a difference in regard to whether one or the other is manifesting persevering in sin or not, but because one claims to be a Catholic, to be with and live with the Catholic Church, and the other does not.

 

Amoris Laetitia and Reception of Communion by Divorced and Remarried

In this post I want to consider what the exhortation Amoris Laetitia seems to suggest regarding the reception of Communion by divorced and remarried Catholics, in relation to canon law and to previous statements about it.

According to canon law, nn. 915 (which forbids admitting to Communion those who obstinately persist in manifest grave sin) & 916 (which forbids receiving Communion in a conscious state of sin), as interpreted by the pontifical council for legislative texts in its declaration concerning the admission to Holy Communion of those who are divorced and remarried, those who are divorced and remarried may receive Eucharistic Communion without separating from each other under the following conditions:

  • For serious motives they are not able to separate
  • They intend to refrain from acts proper to spouses
  • They have received the sacrament of Penance with this intention
  • They receive in such a way as to avoid scandal

If we generalize these conditions somewhat and refer them to that which gives them their moral and ecclesial significance, we can say, those who appear to be publicly persisting in sin can receive Eucharistic Communion when:

  • For serious reasons they are not able to remove that which gives the public appearance of persisting in sin
  • They intend to refrain from sin
  • They reasonably believe themselves to be in the state of grace, or at least should not reasonably conclude that they are in a state of sin (*)
  • They receive in such a way as to avoid leading other persons to disrespect of the Eucharist or of the good that seems to be contradicted by their public apparent sin

How do these conditions compare with the conditions for non-Catholics, and in particular, Orthodox oriental Christians, to receive the Eucharist from a Catholic minister? (As I pointed out five years ago in that post on the Church's declarations on the matter, this allowance of non-Catholics to receive Communion is the basis of one of the strongest arguments that the Church's current legislation on the reception of Communion by the divorced and remarried is not in its entirety a necessary consequence of the nature of Eucharist and marriage.) Canon 844 § 3 requires that:

  • The non-Catholic members of the oriental Churches ask on their own for the sacraments
  • The non-Catholic members of the oriental Churches are properly disposed.

Since these Christians are in a public state of material schism or material heresy, why doesn't canon 915 exclude them from Eucharistic Communion?

I'm not aware of any even semi-authoritative account, but suggest that the presumption is made that they are not culpable for their schism or heresy, and that this is a common and public presumption. Consequently:

  • they are not able at the time to cease from the public schism, as that would be contrary to their convictions in conscience
  • They are well-disposed, having confessed any grave sins they are aware of and intending to avoid them in the future, etc.
  • It is common knowledge that orthodox are sincerely convinced of their position rather than moved by bad-will, so their receiving communion on their own request causes no great scandal with respect to the obligation to seek and adhere to the true Church.
  • There is no general invitation made to non-Catholics to receive, so it remains clear that it is not a normal, but an exception for them to receive

Would canon 915 require excluding from Eucharistic Communion a divorced and remarried Orthodox Christian who is permitted Communion in his own Church? Or would not the common and public presumption of good-will apply to them in this matter just as much as it does in regard to their schism, so that the objective disorder, the objective sin of adultery would not be an instance of "manifest grave sin" in the sense intended by canon 915?

Are there also particular circumstances in which there can be and is a de facto, common, and reasonable presumption of good-will on the part of divorced and remarried Catholics? If so, the objective disorder and sin as such would be per se no greater grounds for exclusion from Eucharistic Communion than the objective disorder and sin of the separated Orthodox Christians is.

As I pointed out in my previous post, Pope Francis seems to deliberately avoid an express mention of Eucharistic Communion with divorced and remarried Catholics. But the tenor and trend of comments made at multiple places in the exhortation suggests, I think, this view and the corresponding pastoral practice.

What would this look like, concretely? Something along the following lines, perhaps? Everyone in a parish knows that a couple in an irregular marital-like union discussed their situation with the pastor, everyone knows that they would have talked about the Church's teaching on marriage and the Eucharist in their talks with the pastor, and everyone knows that they would not go up to receive unless after those talks with the pastor they were doing the best to follow their conscience (whether trying to abstain from sexual intercourse with each other, or whether yet unable in conscience to accept/believe that abstinence from sexual intercourse was God's will for them).

The big question is, is such a thing really possible, and is it really desirable? How is the congregation going to determine whether a given couple is only going to go up to receive if they are sincerely doing their best to follow their conscience, without classifying people into the "good, sincere and well-intentioned folks" and others who are less well-regarded by the congregation? If the congregation cannot determine that, and the pastor has to allow communion to one couple who have had talks with him (including confidential talks pertaining to the interior forum), and refuse communion to another, is that not a violation of the interior forum?

I note, however, that this big question was, in a sense, just as much a question prior to Amoris laetitia, even if it was pertinent to much fewer couples. If a divorced and remarried couple was refraining from sexual intercourse with each other, it was still the big question, how can they receive Communion in such a way as to avoid scandal?

(*) Cases could, at least, in principle occur where a divorced and remarried person is not guilty of the sin of adultery: e.g., (1) a woman with good reason divorces a husband who abuses her and their children, he goes missing in war, she remarries, he turns out to be alive again, and from the time she discovers that, she ceases marital intercourse with her new partner; or (2) a catholic turned protestant who was married in the Catholic Church is led to believe his first marriage was declared invalid by the Church, he remarries as a protestant, then later converts to Catholicism, and discovers there was no declaration of nullity by the Church)

Amoris Laetitia – Gospel and Grace of Marriage and Family

I've just finished (quickly) reading Pope Francis's Exhortation Amoris laetitia. Here a first few remarks on it.

  1. While at times wordy, there is a great deal of good, deep and concretely helpful advice in the exhortation for families and those who accompany them: about love and emotion, attentiveness to and communication with one's spouse, mutual forgiveness, educating children, the changes in the relationship of spouses to each other as children are born, grow up and leave, about various possibilities and ways for the Church to bring the Gospel to individuals, couples, and families, etc.
  2. The responsibility of the State is touched upon in a number of cases, but mostly just in passing.
  3. An underlying concern in the entire document seems to be: that the Gospel, the call, and the grace of God be spoken and extended to all persons here and now, not only when they are or become willing to hear and accept it in its totality, not only when they themselves take initiative to learn and embrace it. "Pastoral care for families has to be fundamentally missionary, going out to where people are. We can no longer be like a factory, churning out courses that for the most part are poorly attended." (Paragraph 230)
  4. This concern manifests itself most directly in chapter 8, titled "accompanying, discerning and integrating weakness". The tension between the fullness of the Gospel of marriage and family and the family situations of weak and sinful human beings is not to be resolved by abandoning the Gospel with its ideal of marriage and accepting those irregular situations as normal in the world of today, nor by abandoning those human beings who have not yet accepted or have deviated from God's plan for marriage and family. This tension must be upheld.
  5. The Pope does not make an express statement on the hot-button issue of Communion for divorced and remarried persons, but implicitly addresses it and locates it within this general concern, that God's call and mercy be extended to divorced and remarried persons, not only when they are able and willing to recognize and follow God's call in its fullness, but even when they recognize and/or follow it only imperfectly and with admixture of error, weakness and sin.

What Pope Francis seems to be suggesting regarding Communion for divorced and remarried persons I'll take up in a separate post. (Here a previous post on Church statements on the reception of Communion by divorced and remarried Catholics.)

Does Believing Something Make it More Certain?

When I choose to believe something, do I thereby consider it to be more certain than I considered it before having chosen to believe?

In favor of this: belief implies holding to something as true, rather than as possibly true or probably true; when I choose to believe something for which the evidence is merely probable, I assent to as true, whereas previously I assented to it as probably true, and so I consider it more certain than I did before believing.

Against this: if surely assenting to something implies that I can treat that as an sure truth in itself, I will necessarily consider my belief to be infallible. Suppose, for example, the evidence strongly suggests that someone is telling the truth. I choose to believe that he is in fact telling the truth. Now I know I hold the belief that he is telling the truth. And I know that in all cases in which I hold a belief that X is true and in which X is true, my belief that X is true is true. So if my belief allows me to take the proposition "X is true" as sure in itself, I will conclude that there is it is absolutely certain that my belief is true. This is manifestly unreasonable. Therefore, giving credence to something does not entail or allow me to treat it as certain in itself. A similar problem will follow if I treat it as more certain than before, except to the extent that my belief is in fact evidence of its being true.

The problem here seems to be that we're comparing apples to oranges in comparing the firmness of assent in believe with my estimation of the certainty of some matter (= subjective certainty established by reasoning). To the extent that belief involves choice, and so an act of will moved by the good, whereas my subjective estimation of an objective probability or certainty does not involve choice (per se) but perception, the subjective certainty arising from will may be analogous, but is not directly comparable to the subjective certainty arising from perception or reasoning.

Commitment of Faith

Can (religious) faith entail an absolute commitment to the one in whom we place faith and his word, such that one should hold that "no circumstances could arise in which I would cease to believe", (see the middle of this post, and this post and discussion) as marriage is a commitment to a person such that one intends and may hold that "under no circumstances will I cease to be faithful to this person"? Or must any rational person admit the (at least theoretical) possibility of certain things that would make it rationally and morally necessary to cease believing?

Since faith by definition is about things that we do not see to be true, there is no inherent contradiction in faith as such being contradicted by things we do see to be true, such an absolute assent of faith seems to imply an assent to the content of faith so strong that one would desire to hold to it as true, "even if it (the content of faith) were to be false". Can such faith be justified?

Consider the following situation: a woman has grounds to suspect her husband is cheating on her; there is a lot of evidence that he is; even when she asks him and he tells her that he is not, she must admit that the sum of evidence including his testimony is against him, and he probably is cheating. Still, she decides to believe him. I argue that the very act of believing him entails a commitment to him such that once she has given faith to his word, while it is still in fact possible that she is believing him though he is actually lying, this possibility is less relevant for her than it was prior to her giving faith. In this sense, after faith, the "if it were to be false" becomes less of a consideration for the believer, and to this degree she wills faith "even were it to be false".

A more detailed analysis of the situation: various persons present her with claims or evidence that her husband is cheating on her. Before confronting him or asking him if he is, she collects various evidence for and against it. She decides that since believing him if he is dishonest is not without its own evils, if the evidence that he is cheating (after taking into account the evidence constituted by his statement on the matter) constitutes a near certainty that he is cheating — let's say, over 95% probability that he is cheating — that she shouldn't believe him if he says he is not, but must either suspend judgment or maintain that he is cheating. Now, suppose the man says that he is not cheating, and the evidence is not quite that much against him, let's say, the evidence indicates a 90% probability that he is cheating, and a 10% probability that he is not. She makes the decision to believe him. Since she would not decide to do so unless she believed that it were good to so, she is giving an implicit negative value to "believing him, if he is in fact lying", a much greater positive value to "believing him, if he is speaking the truth", and consequently an implicit positive value to "believing him," (even though he is probably lying).

Going forward, she is presented with an easy opportunity to gather further evidence about whether he is in fact cheating. She must make a decision whether to do so. If she is always going to make the same decision at this point that she would have made if she had not yet decided to believe him, it seems that her "faith" she gives him and his word is rather empty. A given decision to pursue further evidence, while not incompatible with faith, is a blow against it — to the extent that, out of fidelity to him, she accepts his claim as sure, she must operate either on the assumption that further evidence will vindicate him, or that he is innocent despite the evidence. But to the extent she operates on one of these assumptions, there is no need to pursue further evidence. Pursuing evidence, therefore, implies abstracting from her faith in him. To pursue evidence because it is possible that further evidence will be even more against him and provide her with enough grounds to withdraw her assent to his claim of innocence means giving that faith a lesser role in her life and relationship with him, and is thereby a weakening of the exercise of that faith. Consequently, if that faith is a good thing, then, having given such faith, she must be more reluctant to seek a greater intellectual resolution of the case by greater evidence than she was before she had given it.

In the act of giving faith, one makes a commitment to the person and his word; if such a commitment is good, and the breaking of such a commitment bad, then the value of that faith is thereby increased. So "believing him, if he is in fact lying" becomes overall less negative than it was prior to giving faith, and "believing him, if he is speaking the truth" becomes overall a greater positive value. Believing makes the possibility that objectively what one believes might be wrong less subjectively relevant, and makes one generally operate on the assumption that what one believes will not be proven false.

These considerations don't give a direct answer to the original questions, but do shed some light on them. If even faith given to persons in individual cases and in a limited respect entails a certain unwillingness (though not an absolute and unqualified unwillingness) to act upon the possibility that one's faith might not correspond to the truth, much more so in the case of religious faith given in relation to God and the whole of one's life.

Why are miracles rare?

Why are miracles rare? And might they be rarer today than in past times?

Let's take as the working definition of miracle, an event that cannot reasonably be explained by natural causes or laws and that, in its context, gives substantial credibility to a claim that it is caused by God apart from natural causes, and/or to a claim that a person is speaking for God or doing God's will.

It is evident that such events are rare, at least today, in western society. Why are they?

One modern explanation, of course, is that miracles never happen, that apparent miracles are the result of misinterpreting events, and that since we now both understand natural causes better, and know better the limitations of our knowledge, it rarely happens that what can't (yet) be explained by natural causes can't simply be attributed most reasonably to chance and/or to the limitations of our knowledge.

But suppose we don't accept the premise that miracles never happen, and assume some genuine miracles occur. Why might they be a rare occurrence? At least two philosophical and two theological answers suggest themselves.

(1) Because it is self-contradictory for them to be frequent, as if they were frequent, they would necessarily have some overall determinate intelligible pattern, at least statistically — and that especially if they are to give credibility to a claim about their connection with God — and would thereby be part of the natural intelligible order of the universe, and in this sense explainable by natural laws.

(2) Because God places great value on the natural order, which would be undermined if things such as miracles that cannot be assigned a proper place IN that order were to occur frequently. And God places value on it because of its order, or intelligibility.

(3) Because of our lack of faith. (Cf. Mt 21:21, Mk 11:23, Lk 17:6)

(4) Because of man's lack of faith in general. (Cf. Mk 5:6-7, "He could not do any miracles there" and Mt 13:58 "He did not do many miracles there because of their lack of faith")

These two philosophical explanations for why miracles are rare correspond fairly closely to the most common philosophical arguments for why miracles are impossible. Noteworthy about them is that they both suggest that genuine miracles will be less frequent the better man understands nature. The better he understands nature, and sees patterns within it, the more easily would an event that was previously explained as due to a special divine intervention, yet still within the mysterious workings of the world, be now either assigned a place within the natural order, or seen as deeply contrary to the natural order.

Can we prove the efficacy of prayer?

Can we prove the efficacy of prayer?

Is it possible to demonstrate that praying affects the outcome of the matter prayed for, makes it more likely to occur? A number of studies have been made that seek to answer this question, or at least to provide evidence one way or another.

But prior to making or considering any such studies, what should we expect from them a priori?

In the previous blogpost, on praying for temporal goods, I argued that, if holiness does not correlate with an increase in any particular temporal goods such as health, wealth, intelligence, or the like, then we should not expect prayer to, in general, merit any increase in such goods, but only to help ensure that our use of those goods, or our way of dealing with a lack of those goods, helps us to attain heaven.

Here I give another argument that our a priori expectation should be that such studies of prayer will long-term be inconclusive or find no evidence for the efficacy of prayer, because God respects not only natural causes and laws that act necessarily, but also natural causes that act for the most part and the corresponding statistical laws.

To show that prayer is efficacious means showing that, under given conditions X, when Y is prayed for (in manner M), after controlling for the influence of the prayer on the prayer P, who makes the prayer, and any involved subjects S, who hear the prayer, Y is more likely to occur than when Y is not prayed for (in manner M). (Strictly speaking, even this won't strictly show that prayer is efficacious by reason of a non-human or supernatural power, as the prayer could be efficacious in virtue of a mental or spiritual influence  of the subjects P and S on the person or thing prayed for.)

For example, if, in given weather conditions, when a farmer prays for rain it is more likely to rain within the next two weeks than when he does not pray, this shows the efficacy of his prayer, at least unless his prayer itself is partly caused by a modification of the conditions insufficiently controlled for, e.g., if he prays when he feels "in his bones" that it is high time for rain.

Or again, if patients overall have a 35% chance of recovery from a given illness in a given condition overall or when their recovery is not prayed for, and a 37% chance when their recovery is prayed for, after controlling for any direct influence of the prayer upon the patient by way of his knowing that someone his praying for him, of the doctor's who treat him knowing that someone his praying for him, etc., this would demonstrate the efficacy of prayer for healing.

A strict demonstration of the efficacy of prayer in this sense seems impossible without a miracle of providence or something approaching thereto. By that I mean the happening/working of an event possible in itself, yet with a chance less than 1 over the the number of events occurring in the entire observable history of the universe. For example, tossing a dice 1000 times in a manner such as to actually give it each time an equal probability of each number from one to six, yet in fact always getting three. Since nature is a principle not only of what is necessary, but  also of what is for the most part, such an occurrence is as much praeter or contra naturam as any event such as the instantaneous regrowth of a limb.

A true demonstration of the efficacy of prayer would involve an event (or conglomerate of events considered as one) with just such a low probability. For, given that one has indeed controlled for all natural confounding factors, the efficacy of prayer would be demonstrated in that, e.g., the persons prayed for recover more frequently than the odds given all natural causes, and that in a long-term consistent manner. For 37 out of 100 persons to recover given that each has a 35% chance, has a significant chance of happening, for 370 out of 1000 a significant, but significantly smaller chance, for 3,700 out of 10,000 an even lower chance, and so on. So, for this sort of thing to happen consistently is humanly speaking certain not to happen by natural causes, and is thus a miracle of providence.

Now, given a context in which miracles of the obvious sort are rare, whether that is because God generally upholds the laws of nature he created, or because God is "a God who hides himself", it seems most reasonable to assume that miracles of providence will be similarly rare.

Consequently, to claim to a scientist, "when you consider the results when people are prayed for, you can conclude with certainty that a non-human or supernatural being is involved in answering prayers," is making as much a claim to God's working a miracle in the case as to claim "when you consider the result you're about to see — this person's arm, which was amputated, growing back within one hour — you can conclude with certainty that a non-human or supernatural being did it."

If this argument is right, our a priori expectation should be that all studies of the efficacy of prayer will, taken together, conclude with either "no evidence for the efficacy" or "inconclusive"; the evidence in the latter case tends either to show that prayer makes the event more likely, or that it makes it less likely, but is in a range that doesn't allow for any conclusion with certainty.

This conclusion may be discomfiting to some, as seeming to deny any value to prayer, but it's significance for prayer is ultimately the same as what was argued for the in the previous blogpost, that we should expect no temporal recompense for either holiness or piety, but only the grace — actual grace and the workings of providence — to use the temporal goods we have so as to attain union with God.

Praying for temporal goods and the reward of the righteous

Do the saints tend to be healthier, wealthier, and wiser than the rest of mankind? Do holy farmers, e.g., overall enjoy better crops, healthier children, etc., than industrious and careful but less holy farmers? Most Catholics, I believe, would without too much hesitation say "no". We don't associate holiness with temporal or outward prosperity bestowed by God. And this is also the catholic tradition. ("Whether temporal goods fall under merit," Summa theologiae, I-II, q. 114, a.10)

And yet, when we consider praying for good crops, healthy children, health for ourselves, and the like, we tend to assume that those who pray for them are more likely to receive them than those who do not, or at least to think that if we pray for them, we are more likely to receive them than if we do not. But should we really expect God generally to reward these particular acts of piety with temporal goods to a greater degree or in a different manner than he rewards charity and holiness with temporal goods?

The problem is, I suspect, that we haven't radically assimilated a necessary condition of prayer, namely that we ask for temporal goods only inasmuch as they are conducive to salvation. (Summa Theologiae, II-II, q. 83, a. 6). We at any rate frequently do not consciously think of this qualification when we pray for good weather for an outing or event, or other such things. We don't exclude it, perhaps, so that we would desire good weather and ask for it even if we knew it would be less conducive to salvation than bad weather would be. But it's not so present in our minds.

But if those who are righteous, and therefore merit eternal life and what leads to eternal life, do not, in general, enjoy more of these various temporal goods, we may gather that more temporal goods are not, in general, more conducive to salvation than less temporal goods. Consequently, we shouldn't expect, on average, to become richer if we pray for money than if we don't, nor, on average, to be healthier if we pray for health than if we don't, and so on for other temporal goods.

This argument doesn't exclude the possibility that for a particular group at a particular time (e.g., during some period of the Old Testament), it belonged to the divine pedagogy to lead his people to faith in him through temporal rewards, both for doing good and for praying to him. It argues only that such temporal rewards of righteousness or prayer don't belong to the christian dispensation in general.

This conclusion doesn't mean we shouldn't pray for temporal  things, but that we shouldn't, ultimately, pray for them in themselves, only inasmuch as they are possible means and contexts in which the "good Spirit" is given us. We should read the promise "how much more will your Father who is in heaven give good things to those who ask him", (Mt 7:11) in light of Luke: "how much more will your Father from heaven give the good Spirit to those who ask him?" (Luke 11:13) and the christian tradition of prayer, and so, when we pray for particular goods, pray for them only inasmuch as they might help us and others towards salvation.

Aquinas on permitting a priest to reveal a confession

Can a priest, with the penitent's permission, reveal to another person a sin which he knows under the seal of confession? Aquinas takes up this question in his Commentary on the Sentences of Lombard (In IV Sent., distinction 21, q. 3, a. 2 — translation of this article in the Supplement to the Summa, q. 11, a. 4).

He explains, there are two general reasons binding a priest to keep secret sins he has heard as a confessor, within confession. First, and most importantly, because in hearing a person's confession, the priest acts in behalf of God, and so knows the sins only as God's minister [or: knows the sin only as God does]. Secondly, in order to avoid scandal, that persons become unwilling or less willing to go to confession because they feel they cannot be confident that the priest will preserve the secrecy of the confession.

Aquinas goes on to say that the penitent can bring it about that what the priest previously knew only "as God" (or as God's minister), he know also "as man", and the penitent does this when he gives him permission to speak [to another person]. (quod facit dum eum licentiat ad dicendum). Consequently, if the priest then speaks to others, he does not break the seal of confession. But scandal could still be possible, if someone hears that the priest told what he heard in confession, without hearing that the penitent gave him permission to tell, and so the priest must take care to avoid scandal.

The interpretive crux of this article is, what does Aquinas means when he says that the penitent makes the priest know as man what he formerly knew as God "when he gives him permission to speak"? Commentators offer two quite different interpretations of the statement. According to one interpretation, when the penitent gives the priest permission to speak, he tells him again, now outside of confessor, the sin he wishes him to tell another person. According to the other, precisely by giving the priest permission to tell another person what the penitent told him in confession, he thereby enables the priest to know as a man what he formerly knew only as God's minister, and thereby to speak based on that knowledge outside of the sacramental context.

The principal argument in favor of the first interpretation is basically the following: Outside of confession, the priest cannot use the knowledge which he has from confession. Consequently, if the penitent tells him, "you can tell people what I told you last year in confession," the priest cannot use any knowledge of the confession to know what it is the penitent is giving him permission to tell. Even if he tells him some detail, "you can tell people what I told you in confession last year when I confessed being the one who burned that house down," the priest cannot use any other knowledge of the confession to know in more detail what the penitent was permitting him to tell.

Against this first interpretation, and in favor of the second interpretation, are these considerations: first, if the priest, even with the penitent's permission, cannot use the knowledge he has from confession, but has to reacquire it, then he can under no circumstances ever say anything about the confession, no matter how much the penitent gives him permission, and no matter how much the penitent retells outside of confession what he previously told him in confession. For on this hypothesis, if the penitent tells him "you can tell people what I told you in confession," and the penitent says "I told you X and Y", the priest would still be unable to use the knowledge he has from the confession to verify what the penitent is telling him. Thus he would only be able to say "he told me X and Y," or "he told me that he confessed X and Y," but not "he confessed X and Y". But for the priest to reveal what someone tells him outside of confession, or for a priest to say that someone told him that he confessed one thing or another, is in no way to reveal what he knew through confession. Thus the assertion that a priest, with the permission of the penitent, can reveal to another a sin that he knows under the seal of confession, would be meaningless. To be more precise, it would be only incidentally true — that which he happens to know under the seal of confession, he can reveal to another if he also knows it through another means, and the person who tells him in that other context gives him permission to pass it on.

Following up on this point, Aquinas in the immediately following article (both in the original text, the Commentary on the Sentences, and in the compiled Supplement to the Summa), asks whether a man may reveal that which he knows through confession and through some other source besides, and says that he can. According to the first interpretation of the article we are considering, it would be merely a particular case of this more general point, so it would be strange that Aquinas does not allude to this.

Finally, Aquinas certainly does not understand a priest's knowing what he heard in confession "as God" as excluding all use of that knowledge, but as excluding all use that would reveal a sin — as God covers sins that are submitted to him in penance, so must the priest, as God's minister, conceal sins submitted to him in penance. (In IV Sent. dist. 21, q. 3, a. 1, qa. 1, or supplement, q. 11, a. 1). Indeed, Aquinas opines that an abbot who learns in confession of a prior's sin that would make it disastrous for him to remain in office, he can relieve him of the office of prior on some other pretext, and thus avoid all suspicion of divulging the confession. (Note that it is now forbidden by canon law for those in authority to make any use for external governance of knowledge about sins received in confession at any time [CIC 984 § 2].)

Seal of Confession in Court – The Case in Louisiana

Recently the Supreme Court of Louisana made a decision pertinent to a civil lawsuit naming Rev. Jeff Bayhi and the Catholic Diocese of Baton Rouge as defendants. According to the official statement of the diocese, the decision of the Louisiana Supreme Court "attacks the seal of confession and the attempt by the plaintiffs to have the court compel testimony from the priest, Fr. Bayhi, as to whether or not there were confessions and, if so, what the contents of any such confessions were." (sic)

While the original lawsuit filed is itself under seal, the course of events implied by the published statements are as follows:

1. On July 6, 2009 the parents of a minor child filed a lawsuit alleging that Bayhi, having heard their child's confession regarding her abuse by a church member, was negligent in advising the minor regarding the alleged abuse and failed his duty to report the abuse as a mandatory reporter in compliance with the Louisana's Children Code. It also held the diocese vicariously liable for the alleged misconduct of Bayhi and for failing to properly train him regarding mandatory reporting of sexual abuse of minors.

2. The defendants made a motion in limine to prevent the plaintiffs from "mentioning, referencing and/or introducing evidence at trial of any confessions that may or may not have taken place" between plaintiffs' minor child and the priest, including testimony by the minor child herself about the confessions, on the grounds that nothing that was said in confession could lead to a mandatory duty to report; consequently, there could be no breach of the duty to report arising from anything said in confession, making any and all testimony regarding confessions, including testimony of the minor child, irrelevant to the alleged failure of duty to report.

3. This motion was denied by the court, on the grounds that the legal privilege of confidentiality in confession belongs to the one making a confession to a priest, and as such can be waived by this person. In addition, it noted an apparent inconsistency in the law, one provision of which states that clergy are excepted from being mandatory reporters for anything that is a confidential communication (603(15)(c)), and the mandating reporting "notwithstanding any claim of privileged communication." (609)

4. The decision was appealed to the First Circuit Court of Appeal, which agreed with the defendants, and thus granted the motion in limine, excluding from trial all evidence regarding confessions between the minor child and the priest. Regarding the claimed inconsistency in the law, it noted that the mandatory reporting "notwithstanding any claim of privileged communication" could not be interpreted to apply to priests as mandatory reporters, since that would make the exemption for clergy meaningless. (In addition, the appeals court found a peremptory exception of no cause of action, effectually dismissing all of the claims against Jeff Bayhi and the Church, on the grounds that he was not a mandatory reporter, that even if he were, it would be a matter of criminal law enforcement, not a civil cause, and that, finally, no standard is established by which his advice to the child could be judged negligent.)

5. This decision was appealed to the Louisana Supreme Court, which reversed the appelate court's decision; (1) it reversed the motion to exclude all evidence regarding confessions on the grounds that the legal privilege of confidentiality in confession can be claimed by the one who made a a confession to a priest, or by the priest on behalf of this person. Since the privilege belongs to the penitent, if the penitent waives the privilege, the priest cannot invoke it to protect himself; (2) it reversed the appelate court's dismissal of the case, on the grounds that the question of an alleged mandatory duty to report is here a mixed question of law and fact; two questions of fact in particular it held to be open: (a) whether the communications between the child and the priest were confessions per se, and (b) whether the priest obtained knowledge outside the confessional that would trigger his duty to report.

Some remarks:

Neither the appelate court's decision nor the supreme court's decision directly implies or supports the trial court's right to "compel testimony from the priest, Fr. Bayhi, as to whether or not there were confessions and, if so, what the contents of any such confessions were." The claim by the diocese the the plaintiffs attempted to have the court compel this testimony may or may not be true, but is not implied in the statements made by the appelate court and the supreme court, which deal only with the question of whether all evidence about the confessions, including the testimony of the child, may be excluded from the case.

The question of whether there were confessions

Granting that the court were to hold the content of confession relevant, and that the legal privilege of confidentiality of the confession cannot be invoked by the priest, having been waived by the penitent, so that her testimony regarding the confession could be introduced as evidence in court, it remains a separate question whether the priest could be compelled to testify about the confessions, despite appealing to the freedom of religion together with the Church's prohibition of speaking about the contents of an individual's confession.

The facts do not seem to indicate any real reason for doubt about whether the child's communications with the priest fall within the confidentiality of confession (apparently the talks were made just before the evening Mass, in the time and place for the Sacrament of Reconciliation, and the girl herself described what she was doing as going to "confession"); still, it does seem in principle to be within the court's right to inquire as to the criteria by which the communications are held to be confession, or more precisely, within the confessional forum. (Otherwise a priest could theoretically claim that everytime someone had spoken with him, whether about finances, plans for a celebration, or anything else, it fell under the rubric of confession.)

According to the official statement of the Diocese, "Pursuant to his oath to the Church, a priest is compelled never to break that seal. Neither is a priest allowed to admit that someone went to confession to him." As pertinent to the case, the second statement is false, and indeed, the defendants argued precisely that certain testimony must be excluded because it fell under the confidentiality of confession!

A priest may not say whether someone actually confessed sins to him. But a person has to say or do certain things in the external forum in order for the context of confession to be established; for example, he has to come into the confessional, to say "Can you hear my confession, father?", or by some other means indicate his intention to present himself and his conscience in the confessional forum. Since these things by definition take place prior to confession, and thus in the external forum (or in some cases, an internal forum such as that of spiritual direction), they do not as such fall under the sacramental seal, and a priest may testify as to whether someone did or did not enter into the forum of confession, though prudence and justice demand a general confidentiality about exactly what someone says that indicated his wish to make a confession.

Indeed, in many places and for a long time, penitents would in various cases receive a certificate testifying that they had been to confession. Till today couples in Poland have to present certificates of confession in order to get married!

The official diocesan statement further maintains: "for a civil court to inquire as to whether or not a factual situation establishes the Sacrament of Confession is a clear and unfettered violation of the Establishment Clause of the Constitution of the United States."

While there may be legal nuances of which I'm not aware, it seems rather that a civil court's purporting to determine what establishes the Sacrament of Confession, or any other sacred matter, would be a infringement of the state into the religious sphere, but that it's inquiring into what establishes the Sacrament of Confession, and indeed, for purposes of civil consequence and liability, making a judgment in a particular case on the basis of principles given by a respective religious authority, is no infringement, and falls within its competence. If the state is to protect various goods connected with the exercise of religion, it has to be able to make some judgment as to what things pertain to religion. For example, many states of laws against desecration of places of worship. Now let's suppose I'm upset about spray-paint vandalism of my back-yard shed. So I take it on myself to declare it a sacred chapel, to raise the stakes for vandals… if a civil or criminal case is then brought against a vandal, the court will need to ask whether it is truly to be considered a place of worship.

The question of knowledge gained outside of confession

Since according to the allegations and the deposition testimony, Fr. Bayhi met with the man accused of sexual abuse, Mr. Charlet, concerning the "obsessive number of emails and phone calls" between him and the girl, there does seem to be a question about whether he had grounds for suspicion outside of what he learned in confession that would have resulted in a mandatory duty to report suspected abuse.

The question of the right to waive the confidentiality of confession

The diocese statement claims: "Church law does not allow either the plaintiff (penitent) or anyone else to waive the seal of confession."

Now, the penitent is not bound to begin with by the seal of confession. In this case the Church did not seek to exclude the penitent's testimony about confession on the grounds that it was forbidden for her to disclose the contents of the confession, but on the grounds that the testimony was irrelevant to the case, as nothing that the priest knew from confession could result in a duty or imply a breach of duty to report suspected abuse.

The issue rather concerns whether the penitent can release the confessor from the seal of confession, so that he can reveal to another person the content of a confession. The issue is not a simple one; St. Thomas Aquinas seems to indicate that the penitent can do so in some way; while there has always been disagreement, the majority of moral theologians and canonists maintain the same; and canon law presupposes it — canon 1757 §3 (2) of the 1917 code excludes priests at ecclesiastical trials from "giving testimony pertaining to matters known to them through confession, even if they have been freed from the obligation of the seal", and canon 1550 § 2 (2) of 1983 code similarly prohibits testimony at ecclesiastical trials "as regards everything which has become known to them by reason of sacramental confession, even if the penitent requests their manifestation". Due to its complexity, I'll take up the issue in a separate post.