Why We Need More Canon Lawyers

We’ve all known administrators who were hired to do a certain job, but when they found they couldn’t do that job, they either tried to do everyone else’s job or else tried to change the job into something else completely.  This problem is not uncommon, for example, among functionaries who do fund-raising for colleges.  They get themselves hired promising that they can sell ice cubes to Eskimos, but then when you ask them to sell a solid liberal arts education to students who desperately need one, they change the subject and then try to change the institution.

Something similar now appears to be happening among some bishops when it comes to marriage and divorce.  They were put into a position to do a very difficult job: protect the institution of marriage in a culture that has largely forgotten what marriage is.  Finding that job exceedingly difficult, some of them want to change the subject and then change the institution.

I’ve written elsewhere about the grave sorrows that arise when a diocese doesn’t handle annulments well.  In that article, I wrote:

Bad music, ugly churches, lousy preaching all annoy the faithful, but they’ll often keep coming back—for a while, at least. Mishandle an annulment, on the other hand, and they’re done. I’ve seen the situation far too often: A faithful, dedicated Catholic approaches the Church for an honest judgment about whether a marriage was valid or not, and they are greeted with rudeness, petty bureaucratic delays, lost paperwork, bad advice, misdirection, and at times, even outright lies.

 

The faithful deserve better. They need an honest determination whether they were in fact married or not based on an open and transparent process with clearly defined standards of evidence. They should be afforded this judgment within a reasonable time, and the process should be clearly explained to them beforehand and at every stage along the way.

It’s easy to get so busy taking care of the day-to-day business of running parishes that you forget the little side affairs that carry an extraordinary degree of importance in the lives of the people involved. The pain and bitterness caused by a mishandled annulment proceeding isn’t going away anytime soon.

In fact, I would suggest that many of the wounds the Church currently faces when it comes to the problem of so many “divorced” and “remarried” Catholics have been self-inflicted, given that one of the biggest causes of stress and confusion in such circumstances comes in instances when couples after a civil “divorce” (which they must obtain before they apply for a decree of nullity) are unsure of the decision of the diocesan tribunal, but having been assured by some diocesan official or other that their case was “strong,” and a decision not forthcoming for several years, they, having been left in a kind of marriage “limbo,” decide that dating again might be an acceptable (indeed, even wise, “healthy”) option.  How long do we really expect such couples to wait in limbo for a decision?  When they don’t hear anything for years, of course they assume that things will go as they hope, the rule in law generally being:  “Silence implies consent.”  And once they’ve started dating, sharing their lives with each other in that way two people do when they are courting, are we really to expect they’ll just break it all off and go “cold turkey” if and when the tribunal finally, after two or three years, curtly says “no” to their petition of nullity?  At the very least, one or the other of the two is likely to see this long delay on the part of the Church as having cruelly “strung them along,” setting them up for one of the most heartbreaking disappointments of their lives.

Tribunals and diocesan web sites will often claim that annulment proceedings take somewhere between twelve to eighteen months.  And sometimes this is the case.  But actual statistics are often impossible to come by, and other web sites will admit that it can take between two to three years to process an annulment case.  As Fr. Becket Soule, O.P., has pointed out in a 2009 document for the Knights of Columbus Preserving the Sanctity of Marriage: The Catholic Teaching on Annulment:

The time cases take to process varies greatly. It depends on what type of case it is, how difficult the case is, whether the witnesses cooperate, whether they have very much to say, whether the respondent opposes, whether there are any contradictions in the evidence, etc. Many delays take place when the petitioner does not answer letters or changes address without informing the tribunal.

Fr. Soule might also have noted (in what is an otherwise excellent document) the additional problem of trying to contact petitioners and witnesses when the tribunal itself fails to keep track of the relevant contact information.  It is simply a fact of modern life that we Americans are a mobile population, and Catholics, like other citizens, move often.  The problems caused when an institution fails to be able to keep track of such shifts are legion.  Anyone who doubts this hasn’t moved recently and had to deal with forwarding mail, changing power companies, establishing new utilities, altering insurance, and keeping all credit card companies and various creditors appraised of one’s updated billing address, a task that customarily involves multiple calls to each separate organization with promises from the person at the other end of the line that, yes, this time, the relevant information actually has been changed on the computer.

But behind all the other potential difficulties Fr. Soule mentions above, there is this one other glaring problem he mentions last after all the rest:  “The sheer number of cases being presented today is another major cause of delays,” he says quite rightly, “as is the lack of adequate staffing at many tribunals” (emphasis mine).

In 1969, the Church granted 338 annulments in the US; in 1974, the number was 28,918; and in the 1990s roughly 40,000 per year were granted.  Clearly, we’ve got a problem; indeed, we’ve got a series of problems.  The first has to do with the way we do marriage preparation.  I’ll leave that subject for another day.  The other has to do with trying to deal with an onslaught of legal cases with the number of canon lawyers that were barely sufficient to keep up with the demand twenty years ago.  When a business has too many new orders that its current staff can’t keep up, what does it do?  It adds more staff.  In many dioceses, the Church simply hasn’t kept up with the changing demographics.

Papal Reflection on the Annulment Crisis
Too many tribunals in this country are dramatically understaffed, both in terms of well-trained, pastorally experienced canon lawyers as well as the necessary staff to help facilitate the smooth and efficient resolution of their caseloads. This despite the exhortation in the Vatican’s 2005 “Instruction to be Observed by Diocesan and Inter-Diocesan Tribunals in Handling Causes of the Nullity of Marriage” (Dignitatis Connubii) that “it falls to the Bishops, and this should weigh heavily on their consciences, to see to it that suitable ministers of justice for their tribunals are trained in canon law appropriately and in a timely manner, and are prepared by suitable practice to instruct causes of marriage properly and decide them correctly.”  Moreover it was Blessed John Paul II (soon to be St. John Paul II) who in his last address to the Roman Rota in 2006 made a point of admonishing the world’s bishops that the work of their diocesan tribunals was of the upmost importance and thus not something from whose operations they could remain “detached”:

In my annual Addresses to the Roman Rota, I have referred several times to the essential relationship that the process has with the search for objective truth. It is primarily the Bishops, by divine law judges in their own communities, who must be responsible for this. It is on their behalf that the tribunals administer justice. Bishops are therefore called to be personally involved in ensuring the suitability of the members of the tribunals, diocesan or interdiocesan, of which they are the Moderators, and in verifying that the sentences passed conform to right doctrine.  Sacred Pastors cannot presume that the activity of their tribunals is merely a “technical” matter from which they can remain detached, entrusting it entirely to their judicial vicars.

The newly elected Pope Benedict XVI was to renew that call the very next year in his very first address to the Roman Rota in 2006 (“I associate myself in spirit with precisely what my venerable Predecessor said to you in his Address last year”), emphasizing that:  “Every system of trial must therefore endeavor to guarantee the objectivity, speed and efficacy of the judges’ decisions.”

Given the concern I’ve expressed above for those who are faced with badly-handled annulment proceedings—mishandle an annulment, and you’ll likely lose a Catholic forever—one might imagine that I would be especially happy with recent suggestions that annulment proceedings be “streamlined,” perhaps allowing a parish priest to make such decisions.  Let me assure you, were one to imagine that, one would be wrong.

The pressures currently being exerted on the Church to “regularize” the situation of divorced-and-remarried Catholics, including recent proposals that those who are not “canonically married” be permitted to receive the Eucharist, were precisely the same ones being made during the pontificates of Benedict XVI and John Paul II and to which both responded vigorously.  So, for example, Pope Benedict in his 2006 address pointed to what he considered the false dichotomy facing the Church:

On the one hand, it would appear that the Synod Fathers were asking the ecclesiastical tribunals to strive to ensure that members of the faithful who are not canonically married regularize their marital situation as soon as possible and return to the Eucharistic Banquet.

On the other, canonical legislation and the recent Instruction would seem instead to limit this pastoral thrust, as though the main concern were rather to proceed with the foreseen juridical formalities at the risk of forgetting the pastoral aim of the process. This approach conceals a false opposition between law and pastoral ministry in general.

What, according to Pope Benedict, would serve to resolve this “false opposition between law and pastoral ministry”?  One thing alone:  “love for the truth, which is,” he says, “the fundamental meeting point between canon law and pastoral ministry.”  “The canonical proceedings for the nullity of marriage,” says Pope Benedict, “are essentially a means of ascertaining the truth about the conjugal bond. Thus, their constitutive aim is not to complicate the life of the faithful uselessly, nor far less to exacerbate their litigation, but rather to render a service to the truth” (emphasis mine).

In this, Pope Benedict was merely echoing a theme repeated ceaselessly by his illustrious predecessor, John Paul II, throughout his pontificate:  namely, the crucial responsibility of all people to search for and be faithful to the truth.  Indeed, this was a message that, by his own admission, the pope had returned to time and again during his annual addresses to the Roman Rota:  namely, “the essential relationship that the process [of dealing with annulments] has with the search for objective truth.”  Having scolded “individual or collective interests” for attempting to resort to “various kinds of duplicity and even bribery to attain a favourable sentence” from tribunal officials, Pope John Paul went on to warn that,

in the current circumstances there is also the threat of another risk. In the name of what they claim to be pastoral requirements, some voices have been raised proposing to declare marriages that have totally failed null and void. These persons propose that in order to obtain this result, recourse should be made to the expedient of retaining the substantial features of the proceedings, simulating the existence of an authentic judicial verdict.

In other words, along with bribery, another form of “duplicity” would be deigning to create a sort of faux judicial process by which failed marriages could post facto be declared null—in effect “legitimizing” the process of Catholic “divorce”—“to ensure that members of the faithful who are not canonically married regularize their marital situation as soon as possible and return to the Eucharistic Banquet” (as Pope Benedict was later to characterize the one horn of what he considered a “false dilemma”).

Solution: Train New Crop of Canon Lawyers
We have a problem.  We need to solve the problem.  The Church’s tradition supplies us sufficient resources to know how to solve the problem.  What we need to do now is to train a new crop of canon lawyers and then staff diocesan tribunals adequately in order to do their job as several decades of popes have insisted it should be done:  namely, effectively and in a timely manner.

Dignitatis Connubii was written precisely with the stated intention “of providing for [annulment proceedings] to be instructed and decided more quickly and more securely’.”   “It must be stated,” the authors of Dignitatis Conubii continue,

that such rules [as laid down in this document] will be insufficient to achieve their stated purpose unless diocesan judges know the sacred canons thoroughly and are well prepared through an experience of tribunal work.  For this reason it falls to the Bishops, and this should weigh heavily on their consciences, to see to it that suitable ministers of justice for their tribunals are trained in canon law appropriately and in a timely manner, and are prepared by suitable practice to instruct causes of marriage properly and decide them correctly [emphases mine].

I would add to this simply that these newly trained canon lawyers should also then be required to meet regularly to share insights and best practices.  Such regular interactions, done wisely with fidelity to the Magisterium, might well bring us a new renaissance in wisdom and prudence related to the proper application of the relevant canons.

What we desperately need, rather than a change in the fundamental norms of the Church, are larger numbers of well-trained, pastorally experienced canon lawyers to staff diocesan tribunals around the country so that cases can be decided prudently, with pastoral sensitivity to the difficulties of the situation, and above all in accord with a sincere search for the truth.  But justice can’t be meted out effectively and in a timely fashion if there are too few officials and too little staff to keep up with the pressing caseloads.  The temptation will be either to “push through” cases that may need deeper scrutiny or to “push aside” cases that appear more complicated so that one can “get through” the pile of cases in the docket.  When there is an overload, “clearing cases” can become the sole criterion of an effective jurist, not necessarily prudent discernment of the truth.

Thinking that you can off-load this work on other lesser-trained officials or by “streamlining” the process is like thinking that you can off-load the work of adjudicating your traffic ticket onto the police officer who arrested you or onto that police officer’s fellow officer back at the police station.  Tyrannical regimes “streamline” the judicial process all the time.  We call them “kangaroo courts” because they’re a farce.  They’re usually very speedy, and undoubtedly rather “effective” in their own way; it’s simply that their connection to the actual truth of the matter and to justice is usually not altogether secure.

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.

(The single best article on this aspect of the problem remains “The Clergy Sexual Abuse Crisis and the Spirit of Canon Law,” by Fr. John J. Coughlin, O.F.M., 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,” pointing out that, “when canon law functions properly, it balances law and spirit in the life of the Church,” whereas: “The present crisis in the life of the Church may be attributed at least in part to a failure on the part of the bishops to observe the rule of canon law.”)

I’d hate to see the present crisis in the life of the Church worsened—again—by a failure on the part of bishops to respect the rule of canon law and the necessary role of expertly trained, well-run tribunals in matters that should remain subject to their prudential jurisdiction.

Where Can We Find More Canon Lawyers?
“More canon lawyers:  sounds nice, but it can’t be done.”  That’s likely to be the response my appeal will receive in certain quarters.  Then we’ll see a change of subject and a changing of the institution.  If I’d ever seen that work, I might be more open to the suggestion.  As it is, institutions and persons that have given in and sold their souls for thirty pieces of silver ended up, as we have seen with the pedophile scandal, without a soul and without the thirty pieces of silver either (following a long tradition that goes all the way back to Judas Iscariot).

As for the “impossibility” of finding a sufficient number of canon lawyers, I’m reminded of a little story from a priest visiting the archdiocese where I was doing graduate work during the 1980s—a diocese that has coincidentally had to pay out over a hundred million dollars in damages for just one of its pedophile priests. During that period, many people were clamoring for “married priests” and “women priests” (as some continue to do) because of a critical “priest shortage” in the diocese.  This visiting priest was from a diocese that had no “priest shortage,” and here is what he told me:  “This diocese if very strange,” he said.  “It is more than twice the size of my diocese at home, but they have no full-time vocations director.  The guy who does vocations work for them does part-time teaching at a local university, and he handles the diocese’s media services department too.”  “In my diocese,” he said, “which is much, much smaller, we have two full-time vocations directors and a substantial staff to follow-up on all calls, and we have no vocations problem.”  That made sense.  You get a return on things you show you care about. I’ve seen religious order after religious order die on the vine simply because they didn’t have the guts anymore to recruit.  They weren’t “beating the bushes” to locate any and all vocations they could find.  No, they did a one or two feckless “vocations weekends” per year, and then kicked back hoping against hope that their vocations “problem” would sort itself out. It didn’t.

As it is, you can count the major programs in canon law in this country on the fingers of one finger. And the number of graduates is like the number of births in Europe: not sufficient to meet the needs of replacement.  On the other side of this equation, I know about a half-dozen gifted men and women who have expressed deep interest in becoming canon lawyers who can’t get anyone in the Church to give them the time of day.  Why is that I wonder?  Is it because it’s so much easier to keep prevailing upon the Vatican that it’s absolutely necessary to “streamline the process” than it is to do the hard work of recruiting and training canon lawyers, just as it’s so much easier to keep prevailing upon the Vatican to change the regulations about married priests than it is to do the hard work of recruiting, training, and inspiring new priests?

As for the German bishops who seem so eager to make some of these changes, if the church in Germany were filled to the brim, overflowing with regular, devoted churchgoers, then I might be more inclined to pay attention to their views on this matter.  Having the German bishops lecture the universal Church about what it ought to do on the issue of annulments is a bit like having the Anglican bishops in England, where the churches are mostly empty, lecture the rest of the Anglican communion, including the bishops in Africa where Anglicanism is thriving, on what they should be doing about gay marriage and gay bishops.  It’s like a patient dying from lung cancer lecturing a group of healthy young men in the 1950s on the “solid medical reasons” why they should take up smoking.

Canon law is one of the least understood but most important elements necessary for the efficient, fair, and just functioning of the institutional Church.  One can bad-mouth the “institutional” Church all day in favor of a more “spiritual,” “heavenly” Church—that is, until one needs the institution to function well, which we do.  The Church is a sacrament; it is an incarnational entity.  We need the fleshy, material “stuff” of the institutional Church because we are not pure spirits; we live in a fleshy, material world with all its complex faults and problems.  “When canon law functions properly,” says Fr. Coughlin very wisely, “it balances law and spirit in the life of the Church.”

We help people by caring enough to invest in institutions that can help them in the very hard process of discerning the truth about their situation, not by changing the rules and skirting the truth.  John Paul II was right:  that’s just another form of duplicity.  Instead of them buying us off with a bribe, we buy them off with a falsehood.

Is the doctrinal teaching of the Church on marriage and annulment failing to “keep pace” with the times, or are ecclesiastical officials failing to do the hard work necessary to meet the authentic needs of the faithful in ways appropriate to the sacred office with which they have been entrusted?  Should we create a new streamlined “system” for dealing with annulments, or should we rely on the wisdom of our spiritual and canonical heritage and re-double our efforts to do the job with which we were entrusted and do it right?  I suggest the latter.  One’s first job is to be an institution people can respect.  If the institution shows it cares and treats its petitioners fairly and in accord with the fundamental principles of the faith, people may not always like it, but at least they’ll respect it.  If the institution can’t do that, changing its canonical procedures to accommodate the latest fad won’t help.  Didn’t we try that already?  The results weren’t pretty.  We lost our souls and the thirty pieces of silver.

Editor’s note: The image above entitled “Jesus Among the Doctors in the Temple” was painted by Paolo Veronese in 1558.

Randall B. Smith

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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.

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