Edit: Just got this note from "Father Anonymous". It's been posted elsewhere, including Rorate. We'll post it here too. he was a lot more respectful to Ed Peters than I would have been. There's no telling what's going on with Father McDonald.
Father Anonymous Responds
I would like to take a moment to thank Father Stuart MacDonald and Doctor Ed Peters for their ready willingness to dialogue regarding the canonical case of Father Guarnizo in the Archdiocese of Washington, DC. As canon lawyers, each of us sees that our canonical judgments are limited to the currently available information. The Truth is what we all seek.
By way of review, my defense had two parts.
Part 1 - Father Guarnizo sufficiently satisfied the conditions for canon 915.
Part 2 - I question the canonical liceity regarding Father Guarnizo’s “administrative leave”.
This article serves as a response to their various and thoughtful criticisms regarding certain points of my initial canonical defense of Father Guarnizo. I attempt to make my original points more explicit.
Father MacDonald, on his new blog, Musings of a Canonist, in reply to my article states:
“Fr. Anonymous does not reference his argument well. It is one thing to use Cardinal Burke as an authority, [Cardinal Burke states that Canon 915 exists primarily to prevent sacrilege while at the same time preventing our Greatest Good from being violated.] but be careful that you are not taking him out of context. Am I supposed to take Father’s word that he has read and understood the Cardinal’s essay? That his summary is correct?”
“Whoever, therefore, eats the bread or drinks the cup of the Lord in an unworthy manner will be guilty of profaning the body and blood of the Lord. Let a man examine himself, and so eat of the bread and drink of the cup. For any one who eats and drinks without discerning the body eats and drinks judgment upon himself.”
In describing the need to prevent sacrilege with unworthy receptions of the Eucharist, Cardinal Burke then goes on to quote a Scripture commentator.
“The focus remains on Christ, and Christ crucified, as proclaimed through a self-involving sharing in the bread and wine. If stance and lifestyle make this empty of content and seriousness, participants will beheld accountable for so treating the body and blood of the Lord..”
“From the Decretal Law, it is clear that Church discipline places an obligation on the minister of Holy Communion to refuse Holy Communion to persons known, by the public, to be in mortal sin. The discipline, faithful to the teaching of Saint Paul, safeguards the recognition of the most sacred nature of the Holy Eucharist, preventing public sinners from inflicting further grave damage upon their souls through the unworthy reception of the Holy Eucharist.”
After mentioning the ancient Roman Rituale, he quotes the Synod of Diamper:
“gives careful instruction regarding the vigilance of the local vicars, lest they sin gravely by offering the Sacrament to public sinners.”
Cardinal Burke then quotes Father Capello, a 1917 Code commentator:
“The dignity itself of the sacraments and the virtue of religion demand it, lest sacred things be exposed to profanation; the fidelity of the minister demands it, who is forbidden to give holy things to the dogs and to throw pearls before the swine; the law of charity demands it, lest the minister cooperate with those who unworthily attempt and dare to receive the sacraments, and offer scandal.”
In his conclusions, Cardinal Burke states the following regarding the denial of Holy Communion to manifest, public grave sinners:
“the discipline is not penal but has to do with the safeguarding of the objective and supreme sanctity of the Holy Eucharist and with caring for the faithful who would sin gravely against the Body and Blood of Christ, and for the faithful who would be led into error by such sinful reception of Holy Communion.”
“As [Blessed] Pope John Paul II reminded us, referring to the teaching of the Second Vatican Ecumenical Council, the Holy Eucharist contains the entire good of our salvation. There is no responsibility of the Church's shepherds which is greater than that of teaching the truth about the Holy Eucharist, celebrating worthily the Holy Eucharist, and directing the flock in the worship and care of the Most Blessed Sacrament. Can. 915 of the Code of Canon Law and can. 712 of the Code of Canons of the Eastern Churches articulate an essential element of the shepherds' responsibility, namely, the perennial discipline of the Church by which the minister of Holy Communion is to deny the Sacrament to those who obstinately persevere in manifest grave sin.”
Cardinal Burke makes it very clear that the purpose of canon 915 is to prevent sacrilege.
After questioning whether the purpose of canon 915 is primarily to prevent sacrilege, Father Macdonald then makes the point that:
“Dr. Huels is certainly an excellent canonist. But are we really going to rely on an argument he made for a commentary published in 1985 (merely two years after the promulgation of the Code, and before so many other magisterial teachings like Familiaris Consortio etc.)? Why not? Did Dr. Huels ever retract this statement?”
We now have an opportunity to revisit the term “manifest” as stated in canon 915. Father Macdonald refers to a quote from Professor John Huels regarding the term “manifest” which stated
"a manifest sin is one which is publicly known, even if only by a few."
I am unaware of Dr. Huels retracting or contradicting himself regarding his definition of “manifest.”
This term “manifest” rests upon a stable and continuous canonical position from the 1917 Code of Canon Law. “Manifest” means that which is publicly known. What does the adjective “public” mean? Thanks to Dr. Ed Peter’s monumental work in translating the entire 1917 Code from Latin into English, here is the canon 2197:
A delict [canonical crime] is
1º “public, if it is already known or is in such circumstances that it can be and must be prudently judged that it will easily become known”.
Father Woywod, a 1917 Code canonist, in A Practical Commentary on the Code of Canon Law, on canon 2197 states that:
“The distinction between occult and public offenses is explained in general terms by the Code. Canonists have given more specific rules by which one may judge whether an offense is to be considered publicly known… It is maintained by many canonists that at least six persons in a small town or community must know of the offense before it can be called public.”
Although ethics cannot be reduced to mathematics, six persons is not a lot of persons to satisfy the condition for a crime to be canonically “public”!
In this work, Moral Theology, the theologian Father Heirbert Jone, OFM remarks
“If a public sinner wants to receive the sacraments in a place, where his delicts are unknown, then the sacraments must be also denied him there, if his delicts will become known in this place soon.”
“That one be no longer considered a public sinner, it is generally sufficient that he be known to have gone to Confession. If he is living in a proximate, voluntary occasion of sin (e.g. in concubinage) he must, as a rule, first give this up. In the example given, he must likewise repair public scandal (e.g., by disapproving of a wayward life.)”
Was Barbara Johnson’s ongoing lesbian relationship with Ruth Gresser manifest? Here Father Macdonald quotes the obituary (which was available on cards for the funeral in the church.) The recently deceased lady was described as the
“beloved and adored mother of Larry Johnson of Bluemont, VA, Nita Johnson of Rockville, MD, Michael and Robyn Johnson of Laytonsville, MD, Beverly Johnson of Gaithersburg, MD, Barbara Johnson and Ruth Gresser of Silver Spring, MD and Rose Fikak of Arlington, VA“.
Father Macdonald points out that
“Only one sibling is named with his spouse. Other female siblings are listed with their married names and no mention of the spouse. There is no reason to suspect that Ruth is a gay partner. There is no way to tell that she is her gay partner. Precision. Precision. Precision.”
However, “reasonableness” is an assumed principle in the law. What was reasonable for Father Guarnizo to assume there in the church during the funeral that morning? Barbara Johnson had introduced her lover Ruth Gresser minutes before the Mass. During the funeral Barbara Johnson sat next to her lover Ruth Gresser in the front pew. Upon reading the obituary, as a sibling of Barbara Johnson, it would becompletely reasonable to know the homosexual relationship of Ruth Gresser and Barbara Johnson at least at the time of the funeral. Upon reading the obituary, a sibling who does not know the identity of Ruth Gresser before the funeral would naturally ask the questions “Who’s Ruth Gresser?” “Why is she listed as a close family member to my mother?” “Why is her name next to Barbara Johnson’s? It would beincredibly bizarre if Barbara Johnson’s siblings did not inquire into the relationship between Barbara Johnson and Ruth Gresser.
According to traditional thought of many canonists, how many people need to know for a offense to be public? Six. How many immediate family members does Barbara Johnson have according to the obituary notice? Six (not including Ruth).
On top of that, add the great host of the recently deceased’s sisters, nephews, nieces, grandchildren and friends who would have naturally asked that same question. “Why is Ruth Gresser on the obituary as a daughter-in-law and sitting in the front pew?” People talk about each other at intimate family gatherings such as funerals.
Again, does this satisfy the term “public”? Here is Ed Peters’ translation of the 1917 Code, canon 2197
A delict [canonical crime] is
1º “public, if it is already known or is in such circumstances that it can be and must be prudently judged that it will easily become known”.
Given this definition of “public”, I disagree with Father Macdonald and Ed Peters. It was prudent for Father Guarnizo to judge that the lesbian relationship between Barbara Johnson and Ruth Gresser would at least “easily become known” at the time of funeral.
Father Macdonald and Ed Peters do not seem entirely convinced of the well-respected Father William Woestman’s explanation of the relevant words of canon 915, i.e., “obstinately persevering in manifest grave sin.”
Father Macdonald says
“It’s fine to cite another excellent canonist, Fr. Woestman, “the public reception of Communion by a public sinner implies that the Church and her ministers somehow condone the public serious sin,” But how does that quotation contribute to the argument which is precisely about what constitutes a “public” sinner. I agree with Fr. Woestman’s statement, but not with Fr. Anonymous’ conclusions.”
Ed Peters mentions that
“And we all agree with Woestman, the question is, what do the words W uses mean in canon law?”
"Needless to say, the same principles [as contained the sources just referenced] apply to everyone whose habitual lifestyle is manifestly gravely sinful, e.g., the unmarried "living together," homosexuals or lesbians in a public relationship, those actively participating in the performance of abortions, drug traffickers, gang members."
Those are the steps to Father Woestman’s argument. If someone disagrees with the conclusion, the onus is on him to disprove or reject one of the premises. Which premise or step does Ed Peters reject? Although already stated, Ed Peters holds:
"withholding Holy Communion from those divorced and remarried outside the Church is an application of Canon 915 (see, e.g., Kelly, in GB&I COMM  503), but I need not prove that point to show that withholding the Eucharist from divorced-and-remarrieds, that is, those who status is de iure public, is appropriate under, among other things, the 1994 CDF Letter on Communion for Divorced and Remarried Catholics, n. 6. Of course, as Johnson is apparently not divorced and remarried outside the Church, and because Guarnizo did not suspect her of being so, his implicit appeal to the CDF letter and/or c. 915, fails in law and in fact."
On this point, Father Macdonald concurs with Ed Peters since
“It’s also fine to cite papal documents etc. but we need to understand that those very documents are dealing with cases of de iure objective sin: the divorced and remarried, the voting records of politicians. By public declaration of law, those situations become manifest and obstinate. The question we are dealing with is how to apply those arguments to the similar case of objective sin which is not de iure public.”
What is all this talk about “de iure”?
Traditional canon law makes the distinction between “infamia de iure” and “infamia facti”. Infamia(infamy) is the loss one’s good name. “Infamy de iure” (infamy from the law) can be contracted by the commission of certain crimes, the decision of a judge or the reception of a penalty. For example, infamia de iure would take effect, following canonical heresy as stated in Canon 751.
Can. 751 “Heresy is the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith; apostasy is the total repudiation of the Christian faith; schism is the refusal of submission to the Supreme Pontiff or of communion with the members of the Church subject to him.”
Infamia de iure and Infamia facti are not necessarily exclusive of one another.
Father Macdonald argues that in the citations Father Woestman offers
“we need to understand that those very documents are dealing with cases of de iure objective sin: the divorced and remarried, the voting records of politicians. By public declaration of law, those situations become manifest and obstinate. The question we are dealing with is how to apply those arguments to the similar case of objective sin which is not de iure public.”
Given that Father Macdonald and Ed Peters agree that those who are divorced and remarried may be denied Holy Communion because of infamia de iure. Objectively, according to their respective moral objects, a public active homosexual relationship is worse than a situation of divorce and remarriage.
Logically, Father Woestman is using a simple but effective “a fortiori” argument.
“A” is a situation of divorce and remarriage.
“B” is a public and active homosexual relationship
1. The priest has a canonical obligation to deny somebody who is infamous de iure because of “A”.
2. Suppose “B” is a situation morally worse than “A” and “B” is publicly known.
3. If infamy is consequent upon “A”, then infamy must definitely be consequent upon “B”.
Moral theology, the spirit of the law, the mind of the legislator and logic are on the side of Father Woestman in this case. Must we wait for homosexual unions to be civilly “legalized” in order apply canon 915 if such cases are already publicly known?
In this case, Father Woestman is correct to conclude that
"needless to say, the same principles [as contained in the sources referenced in A Canonical Defense of Father Guarnizo] apply to everyone whose habitual lifestyle is manifestly gravely sinful, e.g., the unmarried "living together," homosexuals or lesbians in a public relationship, those actively participating in the performance of abortions, drug traffickers, gang members."
If drug traffickers and gang members are infamous, but not infamous “strictly de iure”, then surely active and public homosexuals are also infamous.
Later on, Father Macdonald remarks
“Finally, and most egregiously, Fr. Anonymous fails to cite the source of his summary of Prof. Beal’s argument, “John Beal, a well-known canonist at Catholic University, argues that “administrative leave” can only take place after a formal judicial penal process has been initiated, and not during the information-collecting preliminary investigation.” It’s that little word ‘only’ that Fr. Anonymous has inserted in his summary.”
Father Macdonald rightly states that I failed to properly cite the source of Professor John Beal’s argument regarding canonical “administrative leave”. Professor Beal, a well-known canon lawyer who teaches at Catholic University in Washington, DC is clear about the necessity to apply “administrative leave” in the context of a penal trial. Here is his short but relevant text in Studia Canonica, volume 27/2, 1993, pp. 315-316.
“Canonical tradition, the text and context of c. 1722, the mind of the legislator and parallel passages in the Oriental Code all lead to the same conclusion. “Administrative leave” may be imposed only after the completion of a preliminary investigation. The accused must be cited and given an opportunity to respond, at least extrajudicially, to the allegation and to the proposal to impose “administrative leave. This initial citation and hearing can occur before the penal process if formally inaugurated, either in conjunction with the Ordinary’s decree initiating the penal process or subsequently. However, “administrative leave” can only be imposed in connection with a penal process, whether actual or imminent. It cannot be imposed on the basis of accusation alone. This conclusion is settled law, inconvenient law perhaps, but still the law.”
In other words, Professor Beal is saying, if “A” exists, “B” must exist. If there is an licitly imposed “administrative leave”, then a penal process must exist for liceity.
Canon 1722, the analogous “administrative leave” norm states:
“to prevent scandals, to protect the freedom of witnesses, and to guard the course of justice, the ordinary, after having heard the promoter of justice and cited the accused, at any stage of the process can exclude the accused from the sacred ministry or from some office and ecclesiastical function, can impose or forbid residence in some place or territory, or even can prohibit public participation in the Most Holy Eucharist. Once the cause ceases, all these measures must be revoked; they also end by the law itself when the penal process ceases.”
Beal mentions that
“Since it has become commonplace in canonical circles in North America to refer to the precautionary restrictions articulated in c. 1722 as “administrative leave,” this article reluctantly bows down to this common usage.”
Beal then makes the point that administrative leave can mean one or more of the precautionary measures mentioned in canon 1722.
His colleague at Catholic University, Professor Thomas J. Green, also concurs on this issue. In the Canon Law Society of America’s new commentary on the Code, Professor Green states in a foonote on canon 1722 that
“For a thoughtful examination of this canon, see J. Beal, “Administrative Leave: Canon 1722 Revisited,”… He argues persuasively that the measures (i.e. administrative leave) envisioned here are operative onlyafter a formal process has been initiated, not during the preliminary investigation.”
Professor Green thus contradicts Father Macdonald who states
“I would be willing to bet a lot of money that Prof. Beal would not argue that ‘administrative leave’ can only take place after a judicial process has been initiated.”
“prohibiting the accused from the exercise of the sacred ministry or of some ecclesiastical office and position, or imposing or forbidding residence in a certain place or territory, or even prohibiting public participation in the blessed Eucharist”… should be revoked when the reason for which they have been imposed cease; they are imposed by the Ordinary, but “’after consulting the promotor of justice and summoning the accused person to appear”’. Such measures are allowed by law only for the penal judicial process.”
Frans. Daneels, O. Praem., a Promoter of Justice for the Signatura, in a paper titled “The Administrative Imposition of Penalties”
“There is a decree of the Congresso of the Signatura of April 22, 1997 which in the motivation seems to uphold the thesis of J. Beal, at least indirectly.”
Canonically, how is administrative leave imposed? Professor Beal answers that
“the imposition of such “administrative leave” requires an administrative decree governed by the rules on such decrees (cc. 35-58).”Canons 50 and 51 are helpful to understanding the imposition of this decision, an administrative decree of executive weight that has a negative impact.
Can. 50 "Before issuing a singular decree, an authority is to seek out the necessary information and proofs and, insofar as possible, to hear those whose rights can be injured.
Can. 51 “A decree is to be issued in writing, with the reasons at least summarily expressed if it is a decision.”As the person whose rights were injured, was Father Guarnizo properly consulted regarding information and proofs according to canon 50 before receiving the decision of the “administrative leave”? Father Guarnizo declares:
"I would only add for the record, that the letter removing me from pastoral work in the Archdiocese of Washington, was already signed and sealed and on the table when I met with Bishop Knestout on March 9, even before he asked me the first question about the alleged clash."Here is the Archdiocese’s statement regarding Father Guarnizo’s “administrative leave.
“Father Marcel Guarnizo's assignment at St. John Neumann Parish is withdrawn and he has been placed on administrative leave with his priestly faculties removed until such time as an inquiry into his actions at the parish is completed. Father Guarnizo is a priest of the Archdiocese of Moscow, Russia, and has been serving in the Archdiocese of Washington since March 2011 as parochial vicar at the parish.
This action was taken after Bishop Barry C. Knestout, Vicar General and Moderator of the Curia for the Archdiocese of Washington, received credible allegations that Father Guarnizo had engaged in intimidating behavior toward parish staff and others that is incompatible with proper priestly ministry.
Given the grave nature of these allegations, and in light of the confusion in the parish and the concerns expressed by parishioners, Father Guarnizo is prohibited from exercising any priestly ministry in the Archdiocese of Washington until all matters can be appropriately resolved with the hope that he might return to priestly ministry."
Why is the existence of the penal process and its observance so important? The Ordinary’s correct application of the penal process correctly ensures a canonical atmosphere for Father Guarnizo’s right of defense including an advocate who may give canonical advice. After receiving a report of credible information, the Ordinary initiates a preliminary investigation. The Ordinary may then decree a judicial penal process to be initiated. Thus, the promoter of justice presents a libellus or petition of accusation to a judge. The promoter of justice must support the accusation, organize proofs and argue the case. The burden of proof is upon the promoter of justice to demonstrate to the tribunal the guilt of the accused with moral certainty. Of course, the accused must be cited or summoned for this case. Also “administrative leave” must end when the penal case ends or even when there is no longer a reason for them.
Imposing a decree of “administrative leave” (which should be temporary) outside of its context of the penal process is an abuse of power since there are since there there are no checks or balances to resist it. Unfortunately, the Dominican Father Angelo Urru, a Professor of Canon Law at the Pontifical University of St. Thomas Aquinas, in Considerations on Imposing Penalties in Specific Cases, sees this deficiency as a reality since:
“at times these provisions [in canon 1722] are applied before the process begins or even before the preliminary investigation.”Professor Beal, Professor Green, Father Urru all hold that "administrative leave" must necessarily exist in the context of a penal case. As seen above, Father Daneels gives evidence and support for this position from a decision from the Apostolic Signatura.
Again, if “A” exists, “B” must exist.
"A" = licit "administrative leave"
"B" = licit and valid "penal process"
If there is an licitly imposed “administrative leave”, then a penal process must necessarily exist for liceity.
Unfortunately, Father Macdonald and Ed Peters hold a contrary position stating:
"This is not a penal case"
"that does not mean that a penal process is the only time administrative leave can be used. In fact, canonists know that it is used in other scenarios (rightly or wrongly) and, without putting words in Beal’s mouth, he would know that. The use of penal canons in this issue is irrelevant."
Ed Peters also agrees that the penal case is irrelevant to the "administrative leave" precautionary measure of canon 1722.
"c. 1722 is irrelevant to this case!"
As a side note, Father Macdonald's discourse on irregularities was interesting but not really relevant to this discussion of administrative leave. I agree with Ed Peters on this point.
In short, from the press release of the Archdiocese of Washington, it is clear that "administrative leave" was imposed upon Father Guarnizo. The "administrative leave" canon is canon 1722. According to Professor Beal, "administrative leave" can only be imposed after the preliminary investigation with a necessary connection to a penal process. "Canonical tradition, the text and context of c. 1722, the mind of the legislator and parallel passages in the Oriental Code all lead to the same conclusion." What then, is the canonical basis for the archdiocese to impose "administrative leave" on Father Guarnizo? If canon 1722 is not their archdiocese reason and the legal justification for the "administrative leave", what is? If what Father Guarnizo stated about the imposition of the "administrative leave" is true, the conclusion is clear. The right of defense is being violated.
Again, I’d like to thank Father Macdonald and Dr. Ed Peters for their openness to participate in a canonical conversation regarding Father Guarnizo. Although I am grateful for Ed Peters’ defense of canon 915 in the past, I substantially disagree with the position that he shares with Father Macdonald regarding the application of canon 915 to Father Guarnizo. Canon 915 is primarily about the safeguarding and defense of the Eucharist by its ministers. Those ministers in turn, such as Father Guarnizo, deserve a right of defense whether they are guilty or not. Every man has a right of defense, especially in the United States. The right of defense is a natural consequence of the enthusiasm we should have for the dignity of each human person which Blessed Pope John Paul II emphasized. The fact that a priest is not receiving his canonical right of defense in the Archdiocese of our nation’s capital is indeed a tragedy.