Why St. Thomas Becket was Martyred

Many people who venerate the name of Thomas Becket (and/or love the movie with Richard Burton and Peter O’Toole that carries his name) likely do not understand the cause for which he was martyred, and if they did learn it, would likely be scandalized given our current presuppositions concerning the prerogatives of the omnipotent State as opposed to those of the relatively impotent Church.

For you see, one of the major points-of-contention between King Henry II and Archbishop Becket was the attempt by the king to bring “criminous clerics” under the immediate jurisdiction of the royal courts rather than the ecclesiastical courts. Becket himself had no desire to be lenient with these priests—quite the contrary—but he suspected (rightly, as it turns out) that the king would use the coercive power of the royal courts to threaten church officials with punishment in order to bring them more and more under his control.

“St. Thomas seems all along to have suspected Henry of a design to strike at the independence of what the king regarded as a too powerful Church,” the Catholic Encyclopedia tells us.

With this in view, Henry summoned the bishops at Westminster (1 October, 1163) to sanction certain as yet unspecified articles which he called his grandfather’s customs (avitæ consuetudines), one of the known objects of which was to bring clerics guilty of crimes under the jurisdiction of the secular courts. The other bishops, as the demand was still vague, showed a willingness to submit.

It may be that the king was honestly intent on a scheme of judicial reform, and that he found that the growing jurisdiction of the ecclesiastical courts (the publication of the “Decretum Gratiani” and the increased study of the canon law had made them very popular) was an obstacle in his way. But Becket, who knew him well, suspected that Henry was deliberately striking at the privileges of the Church….

Becket was right to be suspicious, as it turns out, for in fact, when the substance of these vague “customs” was at last revealed, it turned out that Henry had crafted them to transfer all sorts of causes—many regarding Church property rights, for example—from the jurisdiction of the ecclesiastical courts to that of the King’s Courts. So too, appeals to Rome were limited, excommunication of the king’s officers and great vassals largely prohibited, and appropriation by the king of the revenues of bishoprics and abbeys sanctioned.

Does this start to ring a bell? The secular powers of the state begin a juridical process saying they merely want to punish “criminous clerics”—and of course, who could be opposed in principle to that? But as events unfold, the same laws are eventually used to dispossess the Church of its money, property, and traditional rights and privileges.

Do people now begin to understand why the New York Times and the Boston Globe (both owned by the same huge media corporation) trumpeted the pedophile scandal with stories daily. Have they followed up with an equal number of stories about the problems of pedophilia in public schools and in the general population? Not even close. Why do you suppose that is? Might it be because certain institutional powers have an interest in diminishing the authority of the Catholic Church, especially when it comes to issues such as abortion, euthanasia, and gay marriage?

Interesting, is it not, that several years hence, the only group in America that actually seems to still oppose sexual relations between adults and emerging adult teens is the Catholic Church. If both parties consent, it is increasingly argued, what’s the big deal?

I have no desire whatsoever to defend the clerics guilty of violating their sacred vows before God let alone the laws of the land. They have a serious Judge to face—one who insisted that “whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened around his neck and to be drowned in the depth of the sea” (Mt 18:6). And yet, by the same token, these men, as all human persons, deserve due process of law. So it is that one must distinguish clearly between efforts designed to bring real justice in accord with the truth, and those which are mere pretenses designed primarily to weaken the Church, the institution most likely to oppose the omnipotent claims to power of the State apparatus.

Most of us in the modern world can’t even imagine a legal system not under the complete control of the state—indeed, increasingly, under the jurisdiction of the federal government and especially federal judges. Law, Americans increasingly assume, following the guidance of the so-called “legal realists” who dominate the law schools, is simply what judges do. Maybe we need a broader perspective—not only that of the founders (for whom federal power was always meant to be balanced by that of state and local jurisdictions), but also that of Becket, for whom “lawfulness” wasn’t merely a function of the commands of the state.

Canon Law and Due Process
In an earlier article in Crisis, in which I argued that we needed more well-trained canon lawyers and staff to work on diocesan tribunals, I made the following comment:

It is not sufficiently appreciated, for example, that the scandal of pedophile priests was in many ways a failure of bishops to use their tribunals properly. There were canonically prescribed processes in place to have each of those cases adjudicated before a tribunal. But many bishops chose instead to replace centuries of pastoral wisdom and canon law with the latest fads coming out of the psychological schools. Talk about selling one’s birthright for a mess of pottage. If each of those accusations of priestly misconduct had been properly adjudicated before a tribunal, as they were supposed to have been, rather than bypassing the process so that the bishop could handle things “quietly,” “on the down-low,” “unofficially,” we may have seen a very different outcome.

Many of us have probably had experience with this problem in other professional settings. An institution with a perfectly reasonable process for dealing with conflicts or accusations of harassment gains an administrator who anoints him- or herself as wiser and more sensitive than the rest and thus better able to “handle the problem” than those duly appointed to the task. The sad results usually reveal once again the wisdom of the common law tradition that demands twelve persons on a jury rather than one, just as it reveals the reasons why we put more trust in the due process of law rather than simply taking our conflicts for summary judgment before the throne of a king: the passions and prejudices of an individual need be checked and balanced by the judgments of others.

For the record, there are canonical regulations governing accusations against priests, and they are not at all unclear or obscured by legal jargon. Furthermore, provisions of Canon 1620 A stipulate that a sentence suffers from a “defect of irremediable nullity” (that is to say, it should be judged null and void) if “it was rendered by an absolutely incompetent judge” (thus the need, as I have argued, for capable, well-trained canon lawyers, who have experience judging difficult cases such as these) or “the right of defense was denied to one or the other party.” How many accused priests are currently being provided adequate representation and defense? How many are being afforded the due process set down by canonical law?

It will not do to complain, as I suspect someone will, by asking: “What about the rights of the victim?” Clearly guilty priests should be punished; there is no question about that, just as guilty rapists should be punished. The question we are asking now is whether the person accused is in fact guilty, and what is the best way to determine this fact? I am going to suggest below that bishops should not simply “wash their hands of the problem” in either of two ways: by passing the judgment off to a psychological therapist (as was done before) or by passing the judgment off to a secular tribunal (as is being done now).

But before we concern ourselves with the accused-who-are-not-yet-proven-guilty, there is something else that needs to be said—as unpopular as this will be—even with regard to those found guilty of some fault. According to Canon 1350, a priest still has a right to those things which are necessary for a decent living. Ecclesiastical authorities cannot simply cast a priest aside, abandoning him to his own devices for fear of appearing to keep company with those now deemed to be like the proverbial “tax collectors and sinners.”

Due Process, Justice, and Truth
Make no mistake: sin is sin, and should be judged rightly; indeed few institutions have been more unstinting in insisting on the guilt of sin, mostly against enormous opposition from a society steeped in emotivism and relativism, than the Catholic Church. But observing the rules of due process is not “legalistic”; it is essential both for discovering the truth of what actually happened and for determining guilt. Casting aside these proven principles of right order, crafted to bring the passions of the mob as well as the coercive powers of the state into a calm obedience to the truth, is to take as one’s model not someone like Becket, but rather that charlatan judge Pontius Pilate, whose cynicism was so great that it led him to throw up his hands in disdain at the crucial moment and ask: “Truth? What is that?” Justice is rarely achieved by turning accused men over to the soldiers and to the mob with the resigned cry of “Okay, you decide!”

Showing publically that one respects the rule of law—that as John Adams once put it, we have “a government of laws, not of men”; that is, that we are subject to an ordered and predictable rule of law rather than merely the whims of powerful men—is crucially important for restoring the credibility that has been squandered. Consider Bishop Thomas Paprocki of Springfield, Illinois, who in a statement supporting the denial of communion to stanchly pro-abortion Senator Dick Durban of Illinois stated: “Senator Durbin was informed several years ago that he was not permitted to receive Holy Communion per canon 915 of the Code of Canon Law.” Adding this last little bit shows that this isn’t personal. This isn’t just one bishop’s “little snit” with an individual member of his diocese. This is a legal sanction in accord with the canons of the Church. Bishop Paprocki has a duty to perform, and he did it.

And yet, to take the reverse case, when the former Archbishop of Los Angeles Roger Mahoney claims as he did in an open letter, that: “Nothing in my own background or education equipped me to deal with this grave problem,” he is making a comment that is both disingenuous (step 1 in dealing with sin: you stop it) and revealing. Every bishop has on his shelf a copy of the Code of Canon Law. In it, he would have found everything he needed procedurally to deal with each case. It was his choice to ignore those canonical statutes in favor of just winging it.

But what if the bishop didn’t trust his tribunal to make such a judgment? Well, if a bishop can’t trust his tribunal to make a serious judgment of this sort, then how dare he force couples seeking judgments of nullity to take their cases before the same tribunal in which he himself puts no trust? If a bishop had reason to be unsure of his own tribunal, he should have fixed it. He should have gotten together the best canon lawyers and pastors in the country to engage in the kind of serious deliberations the severity of the situation warranted. And he should have invited them to meet each and every year thereafter to exchange ideas and discuss their approach to the resolution of cases.

Instead the problem was often dumped on the desk of some lower-level bureaucrat without the necessary authority to discipline the priests involved (let alone the authority to remove his faculties), or the bishop himself would just try to muddle-through guided only by his sense of his own spiritual sensitivity and the advice of one or two local psychologists peddling the latest psychological snake-oil therapies out of the universities.

Learning Not to Repeat Past Mistakes
Please understand, the current generation of bishops is not at fault for what happened in the 1960s and 1970s. Indeed, the current appeal to secular authorities arose precisely because certain bishops in the past acted not only irresponsibly, but also contrary to canon law. The result was that a later generation of bishops has been left scrambling trying to restore their credibility even though most of them did not cause the problem. And yet doubts remain that current bishops can be trusted either. This is unfortunate, but understandable. Actions speak louder than words.

The right approach now should be: “Let’s learn from the mistakes of the past and get back on the right track by establishing an ecclesiastical court system that can be trusted.” Restoring the proper role of the tribunals would clearly and publically separate these judgments from any personal animus or bias on the part of the bishop either in favor or in opposition to the accused, while not simply turning our priests immediately over to the whims of the secular court system with its politically ambitious prosecutors and highly-paid litigators who push for every-higher damages to line their own pockets.

You don’t regain credibility either with your priests or with the public-at-large by letting the secular courts handle all the complicated details of these matters, any more than a university would regain credibility if after a few highly-publicized cases of rape by several of their football players, they said: “In the future, we’ll just let the police handle these matters. But until the prosecutor presses charges or unless the kid is convicted in court, we’ll let him play.” University officials that don’t set out to make their own orderly, lawful determination of the facts of the case are generally thought to be covering up something. Deciding not to decide is to make a decision; it says “I don’t think this is important enough for me to spend time thinking about.” Consider how people judged Joe Paterno at the end, even though he turned everything he knew over to the proper authorities at his university. Right or wrong, most people didn’t seem to think simply “turning the matter over to the proper authorities” was sufficient.

When the Church shows that they have an orderly process—a very orderly and thorough, legal due process—for dealing with these claims of abuse, only then will the public once again have reason to trust the Church, and only then will bishops have a serious defense in the secular courts against those seeking to empty their “deep pockets” by suing them for “not doing enough.”

Remaining Faithful to the Laws of God and of His Church
So, to be clear: I agree that some bishops from the 1960s and 70s were tragically unfaithful. What I have tried to show is what they should have done if they had set out to be faithful. Like nearly everyone else, I judge that some bishops failed horribly to live up to their responsibilities and sinned gravely. The difference here is that I have a canonical standard against which to judge them, not merely the usual self-righteous indignation at a few horrible cases, without any sense of what could have been done differently. Many people suffer from the misconception that the bishops could have (or should have) just “thrown the trash out” after a summary judgment. That’s not justice. What they should have done was to have these cases properly adjudicated before an appropriately constituted ecclesiastical court. The problem is that some current bishops are also failing to live up to this standard and choosing to simply throw their priests to the legal wolves in the secular courts.

The question we must ask now is whether some bishops in the U.S. and elsewhere have under the current pressures from the secular authorities become like those who gave in to England’s King Henry II, assuming (as did their predecessors) that all legal functions properly belong to the state, and given this view, who are increasingly willing to turn over to secular authorities all determinations not only about guilt or innocence, but about, say, whether a couple is married or not, whether things like abortion and euthanasia are wrong, and whether marriage is something between a man and a woman. Too many in the Church seem to assume that if the state says something is a marriage, it is, and if the state dissolves it, it’s dissolved.

Perhaps some need to be reminded who was given the power “to bind and to loosen.” And then they need to spend some time in prayer at the shrine of Thomas Becket, considering very seriously the cause for which he was willing to sacrifice his life.

Randall B. Smith


Randall B. Smith is Professor of Theology and current holder of the Scanlan Foundation Chair in Theology at the University of St. Thomas in Houston, Texas. He was also the 2011-12 Myser Fellow at the Notre Dame Center for Ethics and Culture.

  • john

    I think I get Smith’s point, but I’m missing one thing: even if the church’s tribunals are fair and efficient, would not the state STILL get involved in prosecuting crimes? Determining the validity of sacraments or heresy are important issues, but (for now) the state has no reason to intercede. In the case of child abuse, I fail to see how a church tribunal would be anything but a subcontracted evidence-gathering machine for a criminal trial in civil courts. Is it even remotely possible that a bishop could retain custody over a criminal priest (or church employee) no matter how rigorous his tribunal? On the other hand, the Uniform Code of Military Justice suggests that a parallel legal apparatus is possible–but the military prison at Fort Leavenworth is an important aspect of that apparatus. What might the church’s version of Leavenworth be?

    • nasicacato

      I’ve had the same thoughts. Suppose the police learn of an abuse accusation that a diocesan tribunal has been looking into for a few months. Wouldn’t this be construed as a cover up or at least a failure to report?

      • ForChristAlone

        Nothing implies that an ecclesiastical court would replace a civil court. Just as it work currently regarding marriage: a civil court might grant a divorce while an ecclesiastical court might determine that a current valid marriage remains intact.

        • nasicacato

          What happens if the ecclesiastical court finds them innocent? Then we will have instances where the Church was notified of abuse claims, found them credible enough to investigate yet ultimately did nothing against the accused. How, in the era we are now living in, does this not look like yet another cover-up to the press, the DA and the public?
          As much as I would like to believe this article, the more I think about it, the worse the idea seems. Please tell me if I’m missing something.

          • ForChristAlone

            Complaints brought to the ecclesiastical court could also be brought before civil magistrates who would determine whether civil laws were broken. The Church can and should not forfeit the right to govern itself. Cases are adjudicated against the backdrop of Canon Law. The two sets of laws – civil and ecclesiastical – are not meant to replace one another. They simply govern according to different sets of principles.

      • elarga

        Of course the state has a duty to prosecute if there is a crime: but prosecutors have a good bit of discretion, and if bishops had acted responsibly by properly disciplining priests guilty of misconduct, it is likely that there would have been far fewer cases, and less pressure on public prosecutors to act. By actually enabling the abusers (in many cases) bishops opened wide the door for public prosecutors to act.

      • JP

        I think the operations of a religious tribunal are immune from state investigations, civic proceedings, and criminal indictments. If for some reason, a policeman or prosecutor was able to obtain private papers or correspondence concerning, say, a tribunal investigation concerning an alleged sexual abuse by a priest on a minor, they could do nothing with it. It would be inadmissible.

        Under current law, if the tribunal did find that a priest in fact sexually abused a minor, the Bishop is obligated to inform local authorities. However, I think the “evidence” they found would be inadmissible in court; however, they could very well be called to give witness for the prosecution. Whether a judge allows it, is another thing.

  • ForChristAlone

    #1 Could we imagine for one moment the effect on the Church if this piece were to have written by a sitting episcopal authority rather than a layman? It would send out reverberations of cataclysmic proportions.

    #2 That being said, will this be sent to every Ordinary of every diocese in this country? It would be a wake-up call to most of them regarding the munera of teaching, sanctifying and governing that is their vocational calling – especially the one which refers to governance.

    • Howard

      Ain’t it the truth? Your comment reminds me of a question I asked almost 2 decades ago, when I first became curious about the Catholic Church. A friend kept quoting Chesterton, so I asked if Chesterton was a bishop. I’m not sure whose surprise was greater: mine that he was not, or his that I would think he might have been. There was a time, though, when bishops could think and write without sounding like regional managers for a mid-sized business.

  • Michael Paterson-Seymour

    In Scotland, the Church of Scotland can do exactly as you suggest, because the Ministers Act 1693 ordains “that the Lords of their Majesties Privy Councill and all other Magistrates Judges and Officers of Justice give all due assistance for makeing the Sentences and Censures of the Church and Judicatures thereof to be obeyed or otherways effectuall as accords”

    In other words, the civil courts will compel the appearance of witnesses, the production of documents, punish perjury and contempt, eject deposed ministers and otherwise make the proceedings of the courts of the Kirk “effectuall as accords” Without that assistance, they would often find themselves powerless to do justice

  • Everything seems to get on such a high-minded level when we make these issues of what to render unto Caesar and what to render unto God — when the main issue may really be just some grossly low-minded covering up of some grossly low-minded wrong-doing.

  • bill b

    I think the NY Times and the Boston Globe, unlike our Diocesan press, saved many Catholic children going forward by forcing the Bishops to meet in the Southwest and the above conspiracy theory regarding ulterior motives around abortion is imagination until the writer finds evidence in emails etc….prior to which its the sin of rash judgement or paranoia. The public school abuse is reported in the NY area constantly. Google “teacher sex with student” and a plethora of hundreds of accounts will come up. It’s reported as individual crimes rather than as an institution because it is not a cohesive community of like values that enunciates those values in preaching. Public school teachers don’t say Mass in the morning and then molest at noon. They are diverse religiously if they are not agnostic or atheist as teachers. We are an ideological community. Public schools are basically a place funded by taxes that has no ideological identity or consensus on chastity. That we preach very much on sexual issues made us an object of sensation to the world once we acted the very opposite of all the priest heroes in the films of the 1940’s.

    • michael susce

      “saved many Catholic children”…..so they can execute their own children in the future!….
      ” not a cohesive community”, “has no ideological identity or consensus on chastity”…..You cant be serious!
      And of course, the sexual scandal within the Church has nothing to do with homosexuality….. Your comments prove the assertion of the essay. Church is evil, government is good because the government has no ideological identity.

      • bill b

        So you know for a fact that the perhaps 6 writers at the NY Times and the Boston Globe who reported on the sex abuse scandal are each of them people who have had abortions or will have abortions in the future. And you know this without having Padre Pio’s charism of reading hearts. Maybe Satan has moved you into sins of the mind.

    • DE-173

      “They are diverse religiously if they are not agnostic or atheist as teachers.”

      Oh well then, messing with kids is no problem, right?


      • bill b

        How does that follow? What I’m pointing out is that public school crimes are reported as individual crimes not as public school institutional crimes. Google these words ” teacher sex with students”. It just goes on page after page and it is not Catholic schools….ergo…the media is in fact reporting them but as individuals.

        • DE-173

          “Public school teachers don’t say Mass in the morning and then molest at noon. They are diverse religiously if they are not agnostic or atheist as teachers. We are an ideological community.”

          You explain this statement.

          • bill b

            Issue no.1
            ” The corruption of the best is worst” is an old maxim that has a corollary in Wisdom 6:7 Douay Rheims… ” For to him that is little, mercy is granted: but the mighty shall be mightily tormented.”

            Culture but also God expects more from priests than from the ordinary public servant. When they fall, it is more catastrophic for everyone. America in the ’40’s films ascribed a respect to Catholic priests that was great and that was Hollywood doing that.
            Recently two ex Navy Seals were found dead under sinful circumstances. I felt awful. To me the best had fallen. And their wives were given an awful knowledge as were their kids. If I had just read that two guys died under those circumstances, I would have felt less shock.

            Issue no.2
            Public schools. We don’t see those who work for them as being moral leaders. We see them as people who wanted to teach children rather than work for a corporation in sales or marketing. Therefore it is not news of an unusual nature if they fall from moral rectitude because no one sees them as moral paragons of virtue from the start.

        • John O’Neill

          The key to understanding why the public school sex abuses are not more widely publicized is that a citizen cannot sue a public school district and a public school superintendent cannot be held liable for the crimes of the teaching staff. It is simply “show me the money”. I taught in a public school for years and saw instances of teacher/student sexual involvement get swept under the rug time after time; there was no advantage to parents to have their children’s names besmirched if there were no payout at the end. Last year the school district from which I retired had five publicized sex scandals; four where physical contact occurred and one which was deemed harassment; the guilty teachers were fired and the local authorities gave them a slap on the wrist. So much for the American political system taking care of its own.

  • Mary Catherine Sommers

    A group of colleagues, including myself, were talking recently after a lecture by Joseph Bottum about whether and to what extent the priestly abuse scandal caused the failure of “Catholic Moment” . Agreeing that it was a significant cause, we speculated about how long it would take for the Church to re-establish moral credibility. My own take: not in my children’s lifetime, because we had never owned the scandal. Bishops hadn’t handed out judgments per canon law, but first used private discretion and then, forced into the sunlight, abdicated their responsibilities to civil authorities. I’m not convinced there is any going back, but I am interested in Dr. Smith’s suggestion that we can. My archdiocese now has a committee which investigates charges, but whether there are any ecclesiastical penalties handed out, I do not know. They call civil authorities if indicated, which seems proper. What is our ” Ft. Leavenworth”? I, for one, would have felt satisfied if Cardinal Law had been confined to a monastery on an early Benedictine diet to do perpetual penance and it is no stretch to imagine Archbishop Becket imposing such a penalty.

    • bill b

      I believe he was confined to the restaurants of Rome and had three nuns as domestic help in his apartment. If they cooked French, he quite possibly had Lobster Medallions in Aspic Nicoise on meatless Fridays. San Bernadino Diocese was in the news one day or two only …as wanting to sue Cardinal Law’s regime for telling them Fr. Shanley had no problems after which they accepted him from Boston and he then bought a gay motel with another priest in their Diocese. The media then went silent on it and I assumed San Bernadino Diocese was urged to drop it by powers above them.

    • michael susce

      The Church still stands against these evils and has lost credibility but the government allows the execution of innocent children in the womb (which justifies the abuse of children: i.e. if you can kill a child you can certainly abuse the child) and the government is deemed credible. Hmmm.

    • DE-173

      Joseph Bottum has his own culpability in arresting the “Catholic Moment”.

  • John O’Neill

    I do not understand how anyone in this day and age can expect the central American government or the so called public prosecutors of the state to be the center of moral or ethical cases. The American government is a declared atheistic state which does not recognize the reality of morality and usually judges things as either legal or illegal which is determined by the deliberations of basically amoral politicians. Law and Morality have been totally separated in the New American State; to pretend that the public prosecutor has any connection to what is moral/legal or immoral/illegal is probably proscribed by the American court system.

  • DE-173

    I always found it interesting that the two flashpoint episodes between the English Crown and the Church involved a King named Henry murdering a former friend named Thomas.

    • RufusChoate

      What a great insight that humbles my own inflated view of how well I see patterns in history. Bravo Well played.

    • Thomas

      Good thing my cousin Henry hasn’t called me in years.

      • DE-173

        Is he a King?

  • Father Mark Gurtner

    Unfortunately, Professor Smith makes canonical errors in this article. Non canon lawyers who are not knowledgable about the law should not try to make canonical arguments. For example, “if it was rendered by an absolutely incompetent judge” has nothing to do with the personal ability of a judge to render a just decision. It refers to whether a judge has the jurisdiction to adjudicate the case.

    • Randall B. Smith

      The Author Replies:

      Father, thank you for your concern. You suggest, however, that I have made “canonical errors” (plural), but you only mention one possible candidate. Please re-read, if you would.

      First of all, what I argue is that we need more properly trained canon lawyers to staff tribunals adequately. Surely having a sufficient number of adequately trained canon lawyers answers to the problem of having judges with the proper faculties in the areas and jurisdictions where they are needed so desperately.

      Secondly, your rather restrictive and narrow interpretation of that canon is not entirely accurate nor adequate (which is understandable, quite naturally, in a short post). Can we agree to say for the time being that “competency” is a broader category that includes more than merely the “personal ability” of a judge to render a just decision? I do not claim anywhere in my article that “personal ability” is the sole factor in determining “competency.” I will suggest, however, that “competence” does involve adequate knowledge and training in the canon law. A tribunal judge who was found to have lied about having the necessary degree in canon law would certainly present a problem, would it not?

      Finally, as to your comment that “non-canon lawyers who are not knowledgeable about the law [please note the corrections in spelling] should not try to make canonical arguments,” let me say, first, that mine is a plea for more and better canon lawyers, which is not in itself a “canonical argument.” Mine is an argument for justice. That’s not a “canonical” issue; it’s a human issue. Second, you do realize how detached and pedantic that comment sounds, do you not?

      • Father Mark Gurtner

        Professor Smith,

        First, please know that I meant no disrespect toward you. Sometimes when we canon lawyers get in canonical arguments with each other we take the gloves off but there is no disrespect meant by our comments to each other. Please receive my words in this spirit.

        Concerning your rebuttal, I certainly agree with your general point about having trained and competent canon lawyers. However, your reference to canon 1620 regarding irremediable nullity of a sentence caused by a judge who is “absolutely incompetent” has a precise canonical meaning. I refers to whether a Tribunal has the jurisdiction to adjudicate the matter and it means ONLY that. A sentence cannot be declared irremediably null because, as you suggest, a judge does not have the personal capability (intellectual, by training, etc.) to render a just decision. Thus, my comment about this is not “pedantic.” Rather, my comment reflects the precise canonical meaning of this canon. Thus, someone who is not trained in canon law must be very careful about trying to use phrases from the law to make a point if they do not know the precise canonical meaning of those phrases.

        A second error that I see is your inference that Bishops are somehow in error if they handle these cases themselves and somehow in error if they do not entrust them to the Tribunal. Now I certainly agree that there have been bishops over the course of the last several decades who have tried to handle these cases “under the table” by not following any canonical process at all. However, there is a canonical process by which the bishop can handle these cases himself (called “extrajudicial decree” – see canon 1720). Thus, it is just as canonically legitimate for a bishop to proceed by “extrajudicial decree” in these cases as it would be for him to entrust the case to the Tribunal.

        I would further point out that it is not the diocesan bishop who makes the decision as to how to proceed in cases of sexual abuse of minors by clerics. Once the bishop has determined that there is “sufficient evidence” that sexual abuse of a minor has occurred, he must refer the matter to the Congregation for the Doctrine of the Faith, who will inform him as to how to proceed. It is the CDF who determines whether a case should be handled by a Tribunal or by the bishop himself. So, in your article you impute bishops for something that they do not even determine. This is another error.

        • Randall B. Smith


          Again, thank you for your thoughts. I am glad we agree on the need for more well trained and competent canon lawyers.

          This is not the place to go into particulars, but I would refer the interested reader to the article by Fr. John J. Coughlin, “The Clergy Sexual Abuse Crisis and the Spirit of Canon Law,” who writes: “From a purely anecdotal
          perspective, I am unaware of a single case in the United States during
          the past several decades in which a priest was dismissed from the
          clerical state as a result of the diocesan penal process stipulated in
          canon law…. [O]ver the course of several decades, many—and perhaps
          most—bishops declined to implement and enforce the rule of canon law.”
          He concludes that “the reduction of the culture of canon law was a
          contributing factor in the failure to employ the juridical structure to
          check abuse,” .

          I am quite aware of the futility of trying to tell a bishops what they MUST do. My article was about what bishops SHOULD do. If the bishops in the 60s and 70s had actually followed the process of referring each of these cases to the Vatican as you suggest, I have no doubt we would have had much less trouble.

          I have heard from two different parties with regard to such cases. On the one hand, there were those who earnestly wished to deal with the abusers in an orderly way to see them removed. When they asked about the proper canons, they were often told that they were being “legalistic.”

          On the other hand, there are the priests who have written me complaining of no representation, no written charges, no chance to review the evidence against them, and on and on. The canonical process is meant to protect both sides and guide the Church to the truth. No one can tell a bishop (verbally) that he MUST use a canonical tribunal. But priests do have rights under canon law, and they should be observed.

          • Father Mark Gurtner

            You will get no argument from me that, had the penal and process law been followed fully and completely since 1970 or so regarding sexual abuse of minors by clerics, we would never have had the sexual abuse crisis.

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  • W.L. Warren discusses these issues in his magnificent biography of Henry II. It’s a bit dated, but it shows that St. Thomas was right to be concerned though he was not right in the end about the extent of the Constitutions of Clarendon. (His murder was still wrong, of course, and Henry certainly instigated it and probably at one point did move towards what Becket claimed he was doing…but not in the end.) Also, canon law has developed sufficiently, so the Church realizes that the civil authorities ought to be involved as soon as possible and ecclesiastical law serves to punish clerics insofar as their actions are related to the clerical state. St. Thomas Becket didn’t make that distinction well, but Pope Alexander III and King Henry II did.

  • Also, the NYT Company no longer owns the Boston Globe; the owner of the Red Sox does.