Does an erroneous conscience oblige us

This post continues the series on the authority of conscience.

It seems that an erroneous conscience does not oblige us to act in accordance with our conscience.

1. For the obligatory force of conscience is derived from the necessity of pursuing a good or avoiding an evil that conscience judges as something necessary to be chosen or avoided. But when conscience is in error, that which is judged to be an indispensable good or to be evil is not actually such. Therefore, an erroneous conscience does not oblige us to choose or avoid it.

2. Again, an erroneous conscience may be in contradiction to a higher law, such as the divine law. But a lower rule of our behavior, as conscience, cannot overrule a higher rule such as the divine law. Rather, when two rules conflict, we are obliged to follow the higher one. Therefore erroneous conscience at least does not always bind.

But against this stands the authority of St. Thomas Aquinas, who states that “every will at variance with reason, whether right or erring, is always evil.” (ST I-II, q. 19, a. 5) Therefore even an erring conscious obliges the will to follow it.

Further, the Church assembled in Council of Vatican II teaches, “In all his activity a man is bound to follow his conscience in order that he may come to God, the end and purpose of life.” (Dignitatis humanae 3). The Catechism similarly states: “A human being must always obey the certain judgment of his conscience.” (CCC 1790)

I respond that, as stated previously, conscience is a judgment by which constraints, or rules for action in relation to the attainment of happiness are known as applicable to specific concrete actions. Conscience always proposes something as a rule for a concrete action, which is to be done or avoided; for example, “I must complete this work assignment, as I have promised to”, or “I must not receive Holy Communion, because sacramental confession is necessary before every Holy Communion, and I have not been to confession since my last Holy Communion” Whether the rule or the application therefore is objectively correct, by conscience we hold something as a rule for a concrete action. And, given that conscience is erring, the discrepancy between the “objective” truth of the matter and the judgment of conscious is unknown. Otherwise conscious would not be erring, but still deliberating or doubtful.

Since we can and mustchoose the good and choose to avoid evil inasmuch as it is known to us, we are therefore obliged by conscience, even when this conscience is mistaken.

It is worth noting, however, that the feelings that correspond to conscience may sometimes counterfeit conscience, producing quasi-judgments about what we should do. For example, an emotionally and physically abused spouse might feel guilt at the thought of separating from an abusive spouse, and, corresponding to this guilt, the thought “I can’t do that!” They might continue to have such feelings and thoughts, even have careful, prayerful discernment that has lead to a prudent decision to separate, for their good and the good of the children.

We are not, in principle, bound by these feelings and thoughts, and especially not when they are in contradiction to the true judgment of conscience, which is not a feeling or impression, but a judgment of our mind according to the truth as best we are able to know it.

The response to the first is apparent from this. When a man has an erring conscience, he is not obliged to follow that conscience in virtue of the objective good or evil in the action in question, but in virtue of the good or evil which he believes to be in it. Thus, if a man believes that chewing the consecrated host when receiving Holy Communion is wicked, he is obliged to avoid choosing to do that, not because it is objectively a bad thing to do, but because his will relates to it in the way that he understands it, as a bad thing to do.

To the second we may reply that a higher rule can override the obligation of a lower rule only when the two rules can be separated from each other. For example, if a bishop orders that a priest remain in pastoral duty in his diocese rather than transfer to another diocese or pursue contemplative life, the pope could overrule this ruling of the bishop. But if the higher rule is only applied through the mediation of the lower rule, the higher rule cannot nullify the lower rule. If, for example, the priest could only knew the decision of the pope through the bishop’s order, he would be obliged to what the bishop claimed the pope had decided, whether the bishop was telling the truth or not. But morally binding laws are applied to specific acts through the judgment of conscience, and therefore we are bound to follow conscience, though it at times be objectively mistaken.

The authority of conscience: does conscience oblige us?

Having examined the nature of conscience, we continue to consider the obligation following from it. And first, whether conscience obliges us?

And it seems that it does not, because

1. No one is bound except by some authority superior to himself. But one’s conscience is not superior to oneself. Therefore one is not bound by conscience.

2. The same authority that can oblige a man, can also free him from obligation. But conscience cannot free a man from obligation, therefore it cannot oblige him.

3. Conscience recognizes not merely obligatory goods and evils that one must avoid, but also that which is better, yet not obligatory. For example, it might in some case be just to demand the return of a debt while being better to forgive it. But a man is not obliged to that which is better. Therefore he is not obliged by conscience as such.

4. No one is obliged to the impossible. But sometimes conscience urges to contradictories, and therefore to the impossible. For example, if someone unwittingly caused a fire that led to horrible loss of human life and pain, another person might be urged by conscience to lie about some circumstances in order to spare that person from distress over what he did, while still in conscience perceiving the lie as a moral evil. Or a military office might feel himself obliged to destroy a plane with innocent hostages that is being used as a missile and would kill far more people if not destroyed, yet perceive the destruction of the plane as murder. Or the leaders of a state might, to deter nuclear attack, intend nuclear retaliation if attacked with nuclear weapons, thus being ready in principle to actually carry through with a retaliation that kills many innocent people in order that the present threat of retaliation be credible.

Against this is the authority of St. Thomas Aquinas, and the Catechism of the Catholic Church: “A human being must always obey the certain judgment of his conscience. If he were deliberately to act against it, he would condemn himself.” (CCC 1790)

I respond: to impose an obligation on a moral or free agent means to make that to which he is obliged necessary, not in the sense that he is absolutely unable to do anything else, but in the sense that his freedom is constrained, so that he may not do anything else, if he is to attain his end.

Some such constraints are given by nature and are known to man as natural law, while others are imposed by positive divine decree and known through revelation, accepted in faith.

These constraints have a basis in reality itself. For example, since life and the ability to performs acts of life is a presupposition for living well, or happiness, preserving one’s life and capacity for living activities is necessary for happiness. (Or, in a case of conflict, preserving the life of others, whom one loves as oneself.) Since man’s perfection is found above all in knowing and loving, pursuing truth and truth, for example, is necessary for happiness.

Yet the way that these constraints, or precepts of natural law or positive divine law, constrict the will in its freedom, is by being known by man, and known in their application to his potential action, as constraining or prohibiting him from performing certain actions, or requiring him to perform certain actions, if he is to attain his end.

But the knowledge of the constraints on actions in relation to the attainment of happiness, or morally obligatory precepts, as applied to action, is nothing other than conscience. Therefore conscience obliges the will.

Ad 1. To the first argument against this position, it should be noted that though conscience is not superior to oneself, it is the recognition of an order superior to himself, whether the order of nature or of the divine truth. And so one can be bound by conscience, which sets one in relation to a superior order that is not at one’s own disposal.

Ad 2. To the second we respond that in the sense we are considering here, of moral obligation, conscience does indeed free a man from obligation to a duty of which he is not aware, unless his limited or erroneous conscience results from his fault, and he could and should have known of an objective law or precept obliging him.

Ad 3. To the third we respond that conscience obliges according to the nature of conscience’s judgment. Where conscience recognizes a necessary good or an evil that must be unconditionally avoided, it obliges absolutely. Where the judgment is of a good, but not a necessary good, it obliges one to respect that good as a good, and not treat it as an evil, but does not absolutely oblige to that good.

Ad 4. To the fourth we respond that when a man seems urged in conscience to contradictories, damned if he does and damned if he doesn’t, presupposes an incomplete or erroneous conscience. By “incomplete” I mean that some link in the moral connection between the ultimate end is missing or does not have unconditional force. In the first example, “causing or allowing distress” is not absolutely incompatible with the order to man’s complete good. If the principle “distressing people is bad” is taken as a principle only applicable for the most part, and therefore producing a merely provisional judgment about what the man should do, this judgment, since it is not final or definitive, is not properly conscience, yet in common parlance may be termed “doubtful” conscience. Conscience in this incomplete sense is, in and of it itself, not binding, the common opinion to the contrary notwithstanding, and with respect to conscience of this kind we grant the argument that conscience which urges equally to contradictories is not binding. We shall however consider the question of doubtful conscience in greater detail later.

If the general notion “distressing people is bad” is taken as a principle for an absolute judgment that this “must” not be done, this judgment of conscious is erroneous, being based on a false supposition. As also in speculative matters two arguments, at least one of which proceeds from false premises, may lead to contradictory conclusions, so also a judgment of conscience, proceeding from a false premise, may contradict another judgment of conscience considering the action and circumstances from a different perspective. Now an erroneous conscience does bind, as we will explain in the next article. Consequently, if a man were to be immovably stuck in an error, such that he believed that "doing this deed now" and "not doing this deed" now are both absolutely wrong, he would be so bound as to be unable to perform any action morally, as also a man can for physical or emotional reasons be restrained from performing any moral action. However, in general a man can correct his conscience, if in no other way, then at least by considering the fact that the contradiction of the two contrary conclusions “I must unconditionally do this now”, and “I must unconditionally not do this now”, necessarily implies an error in at least one of the trains of thought. Having drawn this conclusion, he will now have an incomplete or doubtful conscience, and what was just said above will apply.

A similar account applies to the other two examples.

What is conscience?

In the current series of posts I am taking up the question of the morally binding force of authorities. Since conscience mediates the morally binding force of other authorities, before continuing to the question of external and legal authority, we should consider conscience in more detail. This consideration will take the form of a disputed question.

1. Is conscience a judgment of reason?

2. Does conscience oblige us?

3. Does an erroneous conscience oblige us?

4. Does an erroneous conscience excuse us?

5. Does a doubtful conscience oblige us?

It seems that conscience is not a judgment of reason, but rather

a feeling

1. Conscience seems rather to pertain to affective movements than to reason. For we speak of the pangs or remorse of conscience, which is a kind of sorrow, and the Catechism of the Catholic Church also says that contrition is a stirring of conscience. (CCC 1453) But remorse and contrition are affective movements, of will rather than of reason. Therefore conscience pertains to will rather than to reason.

2. Again, to say that someone has a guilty conscience seems to mean the same as saying that he feels guilty about it. Therefore conscience is a matter of feeling rather than judgment.

or a faculty within us

3. Further, it seems to be a part of us rather than an act, such as judgment. For according to the Letter to the Hebrews, The blood of Christ shall “purify our conscience from dead works.” (Heb 9:14) But dead works, or sins, are present in a subject. Therefore conscience is a power or part of the soul, rather than an act of judgment. The same thing is implied by the Catechism, which says that “The principles of the moral law… are written in the conscience of every man” (CCC 1860)

4. Again, conscience judges us about what we have done. But a judge is one who sets down a judgment, rather than being the judgment itself. Therefore conscience is not a judgment, but a faculty of judging.

or a voice outside us

5. Further, granting that conscience in some way pertains to reason, it seems to be external to us rather than within us. For conscience speaks to us, telling us what is right and wrong. Therefore conscience is not our own judgment, but the voice of another in us.

6. If it is said that this voice is actually our own voice to ourselves, as we also encourage ourselves and tell ourselves to do various things, the Catechism seems to exclude this account, when it says that “when he listens to his conscience, the prudent man can hear God speaking.” (CCC 1777)

or a directive given to our mind, which we may or may not accept

7. Again, granting that conscience is a judgment of reason, since it is said to manifest the moral law or even God himself to us (CCC 33, 46, 1706, 1776, 1778), it seems not to be a conclusion, but rather a principle of reason.

8. Further, a man sometimes acts contrary to his conscience. But every voluntary action presupposes a judgment that such action is good. Therefore conscience is not the human judgment about what is to be done.

But against these positions, St. Thomas Aquinas defines conscience as the application of knowledge to some action, (ST I q. 79, a. 13) but knowledge is applied to a thing by an act of reason. Therefore conscience is an act of reason.

Again, according to the Catechism, “Conscience is a judgment of reason whereby the human person recognizes the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed.” (CCC 1778)

I respond: to clarify this question and resolve the difficulties and doubts concerning it, we must consider the manner in which we act humanly and introspectively know ourselves as actors.

All properly human action, in contrast with involuntary actions and reactions such as blinking, jerking away after touching a hot pan, and the like, presupposes deliberation or a judgment about the action.

When we deliberate, we may begin either from our end or from a set of immediately available options. For example, I might reflect on the fact that I desire to be happy, or to be united with God, or to do God’s will, and continue on to consider how I may attain attain this end, what are possible or perhaps necessary ways and means to this end. For example, I might do (continue doing) active ministry, or I might become a hermit or monk. I may, on the other hand, consider a more or less limited set of options for immediate action, when someone proposes, for example, “we’re having a party tonight, would you like to come?”, or I consider, “shall I eat a sandwich or a salad for lunch?” where my consideration begins with concrete particular possibilities.

Various potential goals, apprehended by a judgment of the intellect, “knowledge is good (for me) and part of happiness; health is good; freedom from coercion is good” may provoke a desire, a wish or longing for them. Such desire may in turn be recognized and expressed in words (with the power of reason): “I would like to understand God, myself and the world better; I would like to be (to remain) healthy”.

Similarly the possibilities with the consequences and circumstances they entail can be apprehended by intellect: “if I go to the party I can eat tasty food; I can meet and talk to so-and-so; I will have pleasure in the food, music and company and enjoy myself.” Some of these things may arouse my desire for them and consequently incline me to go to the party. I may recognize my desire as such and express it in words such as: “I would like to go to the party and enjoy it.”

Action is properly and fully human only when these two chains of reasoning are linked up, or one the chain starting on one end is completed on the other end. That is, when I refer a concrete chosen behavior at least implicitly to an ultimate end, which I intend “for it’s own sake”, not because it would desirable for the sake of something else.

I need not, of course, always make every step in this chain explicit. Assuming I have previously made a reasonable decision “pursuing my studies or writing is at the current period of my life a major component of a happy and holy life”, and this evening is needed for studies or preparation for work, I might merely consider “going to the party excludes studying, but I still need to study this evening.” Granting that I can reasonably presume, at least implicitly, that there is not a particularly special importance to the party, which might overrule some of my general decisions and considerations, this general consideration suffices to make a reasonable and prudent choice “not to go to the party,” but rather to study, as usual. In virtue of a previous general choice of a way of life, in which academics are an important part, the choice to study on this evening is already implicitly ordered to the further goal of a happy and holy life, even without explicitly averting to it.

What kind of relationship can particular objects of desire have to the last end (happiness as that which fulfills all human desire)?

A. I may recognize something as containing all that I desire in itself: God.

B. Some things may be like parts of that end, inasmuch as I take joy or pleasure in them in themselves: knowledge of the truth, or the unfettered use of my various human faculties, physical and mental, which I may experience in play, study or work, conversation, friendship, or contemplation. I seek these not merely as “means”, as I might take a slightly bitter pill to remedy a headache, but as ends, desirable as such. Nonetheless none of them are complete happiness, so I further want to enjoy these goods as parts of a whole happy existence and life.

C. Other things may be means to those parts of happiness or to happiness altogether, which are desirable only because they lead to something else.

Of these parts of happiness (B) and of means to happiness or its parts (C), there are three types. (1) Some actions are compatible with complete happiness and further the attainment of it, e.g., the enjoyment of a meal that upholds our health. Of these, some are necessary for happiness, e.g., preserving one’s life and seeking truth, while others are optional but not necessary for happiness, e.g., eating sweets or wine. (2) Other things are opposed to complete happiness, as they detract from significant parts of happiness, yet are compatible with a life directed towards complete happiness, e.g., the enjoyment of a tasty but definitely unhealthy meal or drinking a bit too much wine, when the value of the taste and enjoyment and any other circumstances in favor of that meal do not “justify” eating that meal or drinking so much. (3) Still other things are altogether incompatible with a life directed towards complete happiness, such as (apart from extraordinary circumstances) eating a meal that will kill us, because we are, say, deathly allergic to it.

The assessment, or judgment, of these types of acts can be expressed as (1) “I may enjoy this meal” or “I should eat to nourish myself”, or (2) “I should not eat this junk food” or “I should not drink that much”, or (3) “I must not eat those peanut bars”. In christian language, these three types of acts are good acts, venial sins and mortal sins.

We make similar judgments about ourselves in relation to previously performed actions or non-actions. “I should not have eaten so much”, “I should have studied more.”

Such judgment, by which we direct ourselves to or from a future action with a view to our ultimate end, or judge ourselves in relation to a current or past action, is conscience in its original sense.

However, because, especially on the basis of our emotions, we are readily inclined to set aside or ignore this judgment of conscience, nature has equipped us with particularly strong feelings that support the judgment of conscience: pride in the thought of acting according to our judgment or shame in the thought of acting against it, pride and self-admiration after having acted according to it or shame and remorse after having acted against it.

Since the human way of knowing proceeds from what is perceived by sense to what is known by intellect, that which is closer to sensation normally makes a more fervent impression on us than what is more intellectual. Consequently these feelings, designed to be subsequent upon conscience and to support it against those things that could distract us from paying attention to conscience, sometimes take on the name of conscience, as the effect and what manifests is named from that which it manifests. This occurs especially in regard to its negative judgment, when one speaks about having a guilty conscience, since the feeling of shame is particularly felt.

Again, the habits and customs by which conscience is formed so as to be effective and objectively correct, sometimes receive the name conscience, as a cause is named from the effect.

In summary, conscience names principally the judgment by which we assess or judge an action or behavior (including “not acting” inasmuch as that is voluntary) in relationship to our final end, but can also refer to the feelings naturally consequent upon such an assessment, or to the habitual character that enable us to form correct judgments of conscience.

Ad 1 and 2. To this the response to the first and second objection is evident. To the first it may, however, also be said that in the express “pangs of conscience”, the “of” signifies precisely that this mental pain proceeds from conscious as from its cause, and similarly, contrition is a stirring of conscience, in that it is stirred up or caused by conscience.

Ad 3. To the third it may be said that conscience is cleansed from dead works, not as through those works were in it as in a subject, but inasmuch as an earlier conscience or judgment of the guilt of past works, is followed by conscience or judgment of the guilt forgiven through Christ. And the principles of the moral law are said to be written in the conscience, in the sense in which conscience names the principles of judgment.

Ad 4. To the fourth we should say that properly speaking, conscience is the very judgment about what we have done. However, inasmuch a judgment already formed about an action, or the subsequent feeling of guilt, manifests the truth of what we have done despite any desire we might have to ignore it, this judgment stands to us now as a judge of our action.

Ad 5. A similar response can be made to the fifth objection, which proceeds from the experience of conscience as a voice or interlocutor. While the judgment of conscience is finally the judgment of our own reason, it is able to enter into further considerations as though it were independent of us, as indeed it may be independent of a separate train of thought. We have this experience especially when the judgment of conscience is so evident as not to demand any deliberation and proceeds directly from a universal consideration. For example, I might be thinking about playing an elaborate prank on someone and taking pleasure in the idea of it. Then I realize that the prank would involve a direct lie about a serious matter, and therefore should not be done. Since the two trains of thought (having fun, wrongness of lying) are opposed, I may even mentally put the two arguments together in the form of a dialog “it would be fun”, “but you shouldn’t lie! Playing the prank would be lying, therefore you shouldn’t play the prank!” so as to form the final judgment about playing the prank “I shouldn’t play the prank.”

Ad 6. To the sixth objection, that in conscience God speaks to us, we respond that every created truth is a participation in and flows from divine truth. So every true practical and moral judgment such as conscience derives from the divine and natural law, by which we are ordered to our end, know our end, and recognize fundamental principles on how to attain that end, of which the most fundamental is “do good and avoid evil.” Inasmuch as it corresponds to the truth about us and our actions, conscience, a judgment or declaration about what we should do, manifests to us the divine mind, which knows the truth of our actions more perfectly than we do, but which we do not know directly. Thus, in our own prudent judgment about our action, or conscience, we recognize God’s understanding of it. In this sense we may take conscience as a mode of God speaking to us.

Ad 7. To the seventh objection, that conscience manifests the moral law to us, we might reply that this language in the Catechism may come from Cardinal Newman, who appears indeed to see conscious more as an innate, independent source of knowledge than as the judgment applying universal knowledge to particular situations, and that, following Thomas Aquinas, conscience presupposes knowledge of the moral law (synderesis) rather than manifesting it.

We might better respond, however, that we come to know universals through particulars, and consequently, though the judgment of conscience always presupposes a certain knowledge of what is good and bad, this moral knowledge may be clarified and discerned more perfectly through reflection on the judgment of conscience in a multitude of cases.

Ad 8. To the eight objection we note that it may sometimes happen that conscience is mistaken and subsequently corrected. For example, a person sick with the flu might believe he is obliged to get up and attend Mass on Sunday, on the grounds that Sunday attendance is obligatory. Upon further reflection, or after discussion with a trustworthy person, he may come to the judgment that he should not attend, as he would risk his own health and/or risk infecting other persons. In this case, a first judgment of conscience commanding or forbidding an action is set aside, and another judgment formed, and a man acts according to the second judgment.

It however also happens that man, without a change of conscience, performs an act contrary to his conscience. Thus someone may be aware of the grave obligation to attend Sunday Mass, but, having had a disagreement with the pastor or another parishioner, does not want to see that person. In this case, the one ultimate judgment of the act “I must do this to be obedient to the Church and (so) fulfill God’s will” he ignores, and proceeds from another judgment “I would be uncomfortable seeing that person” to the choice “I shall not go to Mass, but remain home, to avoid seeing that person”. This judgment finding goodness in staying home does not relate it to the ultimate end, and therefore does not constitute conscience.

Thus, we grant that the eighth objection indeed proves that conscience is not just any human judgment about what is to be done, but hold conscience to be a particular kind of judgment about what is to be done, namely one relating it to the last end, as for example compatible with, necessary for, or incompatible with that end.

Authority in Church history – blind obedience or personal judgment

We find two opposite approaches to obedience in Church history, one, that puts such value on obedience as to marginalize nearly every other consideration, another, that would measure every obedience by how well an authority corresponds to the truth or to authentic christian tradition – as judged by the one who was expected to obey.

The practice and teaching on obedience in the Catholic tradition has likely tended rather to excess in the way of blind obedience than to excess in the way of personal judgment. A tendency thereto is at any rate not surprising, given that the christian tradition, going back to Christ, e.g., “He who hears you, hears me” (Lk 10,16) and to St. Paul, has seen in the obedience owed to man, an obedience “to the Lord”, to God himself. (Eph 5: 21; Col 3:22-24)

Blind/unconditional obedience in the spiritual tradition

“8. Once a man who wanted to become a monk came to see Sisois of the Thebaid. The hermit asked him, ‘Have you any ties in the world?’ He said, ‘I have a son.’ He said to him, ‘Go and throw him in the river, and then you can be a monk.’ He went to throw his boy into the river, but the hermit sent a monk to stop him. He was already holding his son ready to throw him in, when the brother said, ‘Stop! What are you doing?’ He said, ‘The abba told me to throw him in.’ The brother said, ‘Now the abba says, do not throw him in.’ So he left his son, and came back to the hermit; and tested by such obedience he became a strong monk.” Sayings of the desert Fathershttps://erenow.net/common/the-desert-fathers/15.php

“That it might be more thoroughly tested whether he would make affection and love for his own flesh and blood of more account than obedience and Christian mortification (which all who renounce the world ought out of love to Christ to prefer), the child was on purpose neglected and dressed in rags instead of proper clothes… And further, he was exposed to blows and slaps from different people, which the father often saw inflicted without the slightest reason on his innocent child under his very eyes… And when the Superior of the Cœnobium saw his steadfastness of mind and immovable inflexibility, in order thoroughly to prove the constancy of his purpose, one day when he had seen the child crying, he pretended that he was annoyed with him and told the father to throw him into the river. Then he, as if this had been commanded him by the Lord, at once snatched up the child as quickly as possible, and carried him in his arms to the river's bank to throw him in. And straightway in the fervour of his faith and obedience this would have been carried out in act, had not some of the brethren been purposely set to watch the banks of the river very carefully, and when the child was thrown in, had somehow snatched him from the bed of the stream, and prevented the command, which was really fulfilled by the obedience and devotion of the father, from being consummated in act and result.”

And this man's faith and devotion was so acceptable to God that it was immediately approved by a divine testimony. For it was immediately revealed to the Superior that by this obedience of his he had copied the deed of the patriarch Abraham. (John Cassian, Institutes, Book IV, Ch. 27,28) https://www.newadvent.org/fathers/350704.htm

Blind/unconditional obedience in theology

First Rule. The first: All judgment laid aside, we ought to have our mind ready and prompt to obey, in all, the true Spouse of Christ our Lord, which is our holy Mother the Church Hierarchical.

Ninth Rule. Finally, to praise all precepts of the Church, keeping the mind prompt to find reasons in their defence and in no manner against them.

Tenth Rule. We ought to be more prompt to find good and praise as well the Constitutions and recommendations as the ways of our Superiors. Because, although some are not or have not been such, to speak against them, whether preaching in public or discoursing before the common people, would rather give rise to fault-finding and scandal than profit;

Thirteenth Rule. To be right in everything, we ought always to hold that the white which I see, is black, if the Hierarchical Church so decides it.

St. Ignatius, Spiritual Exercises (emphasis added), https://www.ccel.org/ccel/ignatius/exercises.xix.v.html

Ignatius here calls for more than external obedience to precepts of the Church and of superiors, but considers “thinking with the Church” to require one from abstaining from critical words or even thoughts against them.

And that, even when they are imprudent, as long as they do not command “manifest sin”.

3… The superior is not to be obeyed because he is highly prudent, very good, or qualified by any other gift of God our Lord, but rather because he holds his place and authority—as eternal Truth has said, “He who hears you hears me, and he who despises you despises me.” Nor, on the other hand, should he be any less obeyed in his capacity as superior if he is less prudent, for he represents the person of him who is infallible wisdom and who will make up for any shortcomings in his minister

… 7 … Whoever aims at making a complete and perfect oblation of himself must, in addition to his will, offer his understanding. … He must not only have the same will as the superior bur also be of the same mind as he, submitting his own judgment to the superior’s to the extent that a devoted will is able to influence the understanding.

8. For while the understanding does not enjoy the same freedom as the will and by nature gives its assent to whatever is presented to it as true, nevertheless, in many matters where the evidence of the known truth is not compelling, it can, by the will’s intervention, incline to one side rather than the other; and in such matters every truly obedient person should incline himself to think the same as his superior.

… 11. For if we look to the purpose of obedience, it is just as possible for our understanding to be mistaken about what is good as it is for our will. Hence, if we think it right to conform our will to the superior’s to prevent it from going wrong, we should also conform our understanding to his to keep it from going wrong. “Do not rely upon your own prudence,” says Scripture.

“Letter on Obedience” https://jesuitportal.bc.edu/research/documents/1553_ignatiusonobedience/

The only restriction on this absolute obedience in action, will and intellect is where “manifest sin is evident.” (Ibid, 24.)

While St. Ignatius, reacting to the protestant rejection of church authority, is particularly extreme, similarly citations from the christian tradition could be multiplied.

Personal judgment

The christian tradition knows also the maxim “an unjust law is no law.” (St. Augustine, De Libero Arbitrio i, 5 “A law which is not just does not seem to me to be a law.” “Lex mihi esse non videtur, quae iusta non fuerit.”

This principle, made famous in the 20th century by Martin Luther King, citing St. Augustine and Aquinas (https://www.csuchico.edu/iege/_assets/documents/susi-letter-from-birmingham-jail.pdf) provides a corrective to blind obedience. While a superior’s authority may be derived from God and from Christ, and so in obeying him one may be obeying Christ, the superior does not always truly represent God, and therefore need not always be obeyed, indeed in some case must not be obeyed.

But who may judge a law to be unjust or unreasonable? Some groups connected with the Franciscans, such as the Beghards, seem to have been convinced that the rule of Francis and poverty were so in accordance with the gospel, that any decree from the pope modifying or diminishing them would be unjust and therefore not binding.

They say that if the pope changes something in the rule of Saint Francis, adds something to it, or subtracts something from it (especially concerning the vow of poverty), or if he annuls the aforesaid rule, he acts against the gospel of Christ and neither a Friar Minor nor anyone else is required to obey him in the matter, however much he may command it or excommunicate those not obeying him, because such excommunication would be unjust and not binding. (Bernhard Gui, Inquisitor’s Manual: https://sourcebooks.fordham.edu/source/bernardgui-inq.asp)

According to the moral theory of probabilism, it would seem, indeed, that whenever an individual is sincerely in doubt about whether a law or command is unreasonable or unjust, and, consequently, sincerely in doubt about whether that law or command is morally binding on him, he is morally free to obey or not to obey.

Joining the idea that unjust or unreasonable laws are not binding with the theory of probabilism that in the case of sincere doubt we are not bound, but free, we end up, in effect, with an altogether opposite approach than the blind obedience favored by many christian authors. Since an unjust law is not binding and might even be contrary to a higher law, one is not only permitted but may be obliged to consider whether a given law is just or unjust. And in the event of any serious doubt, one is not bound to follow the law.

The dilemma

Blind obedience may lead you to cover up sexual and moral abuse, to ride roughshod over the conscience of those deemed beyond reason, whether those are the “woke” or the “deplorables”, or to cooperate in a new holocaust.

The opposite extreme, refusing to grant legitimacy to whatever decision one holds is erroneous, whether a decision of church authority you reject because you hold it to be harmful to the Church, the election of the president – “not my president”, or a court decision, whether one such as Obergefell or Dobbs, if followed consistently, can spiral into schism, civil war, anarchy, or totalitarianism, the enforcement of the position of the strongest parties by brute force.

The mean of virtue

What are the alternatives?

Between “always obey”, and “obey only when the decision seems to you to be right”, there are a number of middle positions.

  • “Obey, unless you are sure (beyond doubt) that the law or command is wrong and seriously harmful”.
  • “Obey, unless you are sure (beyond doubt) that the law or command is wrong”.
  • “On matters of grave importance, obey, unless you are sure beyond doubt that the law or command is wrong; on matters of minor importance, if a law is merely probably harmful, it is not binding”
  • etc.

As is true of human and moral matters in general, it will not be possible to establish a definite golden mean that will be valid for all peoples and times, as virtue lies not in an absolute but in a relative mean. But we can try to establish a number of generally valid principles and guidelines to navigate in the murky conditions of a pluralistic civil and ecclesial society. In the next posts, I want to make an attempt at this, beginning with St. Thomas Aquinas’s account of authority and obedience.

Authority in the COVID-pandemic – the extremes of blind obedience or personal judgment

In the past two years, various health measures have been set down by governors, ministers or church authorities, such as restrictions on gatherings, prohibition of public Masses, or the wearing of masks. In the responses to these measures, two greatly contrasting approaches to obedience have revealed themselves.

Some argued: those are the rules, laid down by legitimate authorities, so you have to follow them, and to disobey them is sinful. (1)

On the other side, some argued that, e.g., wearing a mask would be a sin, because giving in to this unjust and unreasonable demand is supporting an unjust “system”. (2)

More commonly, it was argued that, if the claimed reasons for mask wearing could be called into doubt, mask wearing could not be mandatory. More or less “I don’t think masks are necessary, so I’m not morally obliged to wear one”

Taken to one extreme, obedience to authority’s dictate would leave no room for reason and conscience; taken to the other extreme, the subjection of the authority to the judgment of each individual would remove authority’s ability to regulate matters on which there is no consensus about what is reasonable.

What was particularly striking in this case was that many, generally reasonable persons, on both sides of the issue, considered the case to be so obvious that those who disagreed with them must be stupid, wicked, or both. In not a few cases, friendships were broken over the issue.

The contrast between the “authoritarian” and “discerning” or “libertarian” views of obedience was particularly vivid and evoked strong emotions in the past years. But these contrasting views have a long history in philosophy, politics, and the Church.

References

(1) Examples at:

https://www.reuters.com/article/us-health-coronavius-pope/pope-says-obey-rules-during-exit-from-coronavirus-lockdowns-idUSKCN22A0VM

http://www.jeffvanderstelt.com/blog/year/day/month/covid-19-submission-to-authority

https://sydneyanglicans.net/news/obeying-government-and-obeying-god/50660

https://ca.thegospelcoalition.org/columns/ad-fontes/my-threshold-for-civil-disobedience-in-a-covid19-world/

(2) (E.g., “it’s contrary to the common good to continue to go along with an attempted communist takeover of the United States, which is what’s happening.” – https://www.catholicnewsagency.com/news/45692/denver-archdiocese-fssp-evaluating-priest-who-told-catholics-to-disobey-bishop-on-mask-wearing

and https://www.lifesitenews.com/news/bishop-christians-must-refuse-covid-vaccine-derived-from-aborted-babies-even-if-it-means-martyrdom/ – while not quite explicitly stating this – I also know some people personally who argued along these lines)

Cancelling Public Masses, Natural and Political Justice

In the past weeks, ever more dioceses around the world have cancelled Masses either in conformity with civil law forbidding public gatherings, or on their own initative to help slow down the spread of the new corona virus SARS-CoV-2. Among not a few faithful churchgowers, this step has been hard to accept. Some have criticized it, on the grounds that, in the face of hardshpis, threats to man's physical health, and the like, the faithful need the sacraments and the public prayer of the Church MORE, not less, and that, in the past, when the Church was more conscious of its spiritual mission, this was its response to epidemics. This article by Msgr. Charles Pope, and this one by Fr. Jerry Pokorsky are fairly representative of the arguments made.

Some good responses have been made, such as Steve Skojec's or Rebecca Weiss's articles

Here I don't want to get into the details, but rather look more closely at the substance of the argument that cancelling public Masses can be reasonable and indeed obligatory, by reason of natural justice that prohibits risking the health of others without their consent except for a proportionate good in the same order. One might, legitimately, risk one's own health to some extent for the sake of spiritual goods (though even this can easily be excessive), one may not, except by way of just punishment, do bodily harm or induce grave risk of bodily harm to another merely for the sake of spiritual benefit.

The argument has two basic premises:

The minor premise: The gathering together of persons at Mass, even after taking the precautions that are in the power of church authorities (and even after taking the precautions that are in the power of each individual), poses a grave risk in the mid-term to the health and life of persons who have not chosen to accept this risk for the sake of spiritual benefit.
It is NOT merely a matter of the risk posed to those attending Mass; if that were to be the case, it might well be enough, at least in some cases, to ensure that those attending Mass are informed of the risk they are taking. The risk is that, as COVID-19 is infectious even before the onset of symptoms, one or more persons could be infected with COVID-19, quite possibly even without having any symptoms yet, and infect others present at Mass, and that these others will in turn infect others NOT present at Mass.

Note: If a similar risk would be present whether or not gatherings at Mass occur, the risk could not properly be attributed to the celebration of public Masses. So, if no other steps were being taken to mitigate the spread of the virus and sickness, the Mass probably could not be considered a great additional risk. The greater that steps are taken in other contexts to minimize risk of infection, the greater significance will the risk involved in the celebration of public Mass have.

The major premise: To cause grave risk to the health of persons who have not consented to accept this risk, except for the sake of bodily health or countering a greater risk of bodily harm, is contrary to natural justice and the fifth commandment.

Therefore, given the stated circumstances, for persons to come together for Mass is contrary to natural justice.

In some cases, such as in Italy or Germany, public Masses have been forbidden by political authorities. At least abstractly, the political authority, rather than the Church, is the competent authority to determine what means are required in relation to the end of bodily health of its citizens, and in this sense, given that the law is fair, not imposing an undue burden on one group as a means to the end (for example, prohibiting Masses but allowing sport events), the State does have competence to make such statutes. Of course if the state were to abuse its authority by imposing manifestly unreasonable statutes, neither the Church nor individuals would be bound to obey them. But given that the laws or statutes are in themselves reasonable or plausibly so, the Church does right, as a rule, follow them.

Zero tolerance policies for sexual abuse

The norms approved by the Bishop's Conference of the United States and given recognitio by the Holy See for dealing with allegations of sexual abuse of minors by priests or deacons, include two measures that could be described as zero-tolerance for sexual abuse.

  • Those guilty of such abuse are to be permanently removed from ecclesiastical ministry. "When even a single act of sexual abuse by a priest or deacon is admitted or is established after an appropriate process in accord with canon law, the offending priest or deacon will be removed permanently from ecclesiastical ministry, not excluding dismissal from the clerical state, if the case so warrants."
  • When there is adequate evidence of sexual abuse of minors, the cleric shall be removed from ministry until the investigative process is completed. "When there is sufficient evidence that sexual abuse of a minor has occurred, the Congregation of the Doctrine of the Faith shall be notified. The bishop/eparch shall then apply the precautionary measures mentioned in CIC, canon 1722, or CCEO, canon 1473—i.e., remove the accused from the sacred ministry or from any ecclesiastical office or function, impose or prohibit residence in a given place or territory, and prohibit public participation in the Most Holy Eucharist pending the outcome of the process."

The first of these provisions has substantial roots already in the 1917 code of canon law, which provides in canon 2359, that clerics guilty of a crime against the sixth commandment with a minor under the age of sixteen, are to be suspended, and in more serious cases deposed from the clerical state. This seems to be perfectly reasonable for the sake of the common good, given how harmful such crimes are to youth and to the Church. And speaking from the side of the clerics, my own feeling is that if I were ever to commit such a crime, I would likely feel obliged in conscience to give up the ministry. Though admittedly, it may be easy to feel this way, being confident that I will never do such a thing.

The second provision is somewhat vague, and probably has to be that way. In the process of investigating an accusation, one may find that the accusation "seems true", is probable, or "credible". Once a probable opinion of guilt has been formed, the provision to protect others and uphold the sanctity of the ministry by removing the accused cleric from ministry until the investigative process is completed seems fairly reasonable.

That an accusation "seems true", or is probable, presupposes some investigation, at least brief, of the accusation in question, cannot always be very quickly ascertained. I get the impression, though, that in some dioceses of the USA, when any accusation is received that is taken seriously enough to begin any real investigative process, the cleric is immediately put on administrative leave. If this is true, it may be ultimately counter-productive, encouraging those in persons of authority to try to avoid hearing accusations that might be true but are not very likely to be so. Again, review boards may come under pressure to make a quick decision regarding the credibility of an accusation. If the accusation seems to them very probably false, but with some small chance of being true, they are in somewhat of a dilemma: they can decide that the accusation is credible, which requires putting the accused cleric on administrative leave and possible damaging his reputation; or they can decided that the accusation is not credible, meaning that it will not be further investigated. But there will surely be middle cases, where after a very brief preliminary investigation, there remain insufficient grounds to take any action against the accused, but sufficient grounds to justify further investigation.

Guilt proven beyond doubt may justify imposition of penalties without exception, and probable guilt may justify measures taken without exception to safe guard children, but enough possibility of guilt to warrant further investigation does not always justify any immediate administrative measures.

Forcing a black-white decision (probably guilty on the one hand, or surely not guilty on the other hand) too quickly will probably lead both to injustice against some persons judged probably guilty who should not have been, and to injustice against further victims who should and could have been protected.

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.)

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.