Canon Lawyer Fr. Gerald Murray: The Content of the Responsa "Goes Beyond What Is Canonically Possible"

Another learned canonist takes a look at Traditionis Custodes and the Responsa ad dubia, and the contradictions and ambiguities between them.

From Rorate Cæli

By Peter Kwasniewski, PhD

Recently two canon law evaluations of the Responsa ad dubia of the Congregation for Divine Worship have been published. The first is written by Dominican Fr. Pius Pietrzyk, OP, STL, JD, JCD, and was published by Edward Pentin here. The second is an interview of Diane Montagna with Fr. Gerald Murray, a canon lawyer well known from his many appearances on EWTN; the full text may be found here. Both canonists maintain that Traditionis Custodes and the Responsa are canonically valid instruments and carry legal force; yet both candidly recognize the irregularities, contradictions, and messy ambiguities in and between the documents, not to mention the innumerable pastoral crises they have occasioned. Both counsel bishops to make full use of their unimpeded canonical rights to dispense from harmful or irrelevant provisions and, in general, to do what is needed to meet the laudable spiritual aspirations and basic sacramental needs of their flocks. Gratefully acknowledging permission from The Remnant, we reproduce below some key passages from Fr. Murray's interview.—PAK

The Apostolic Constitution Pastor Bonus regulates the activities of the various Congregations of the Roman Curia. Article 15 states that “questions are to be dealt with according to law…yet with pastoral means and judgments, attentive to justice and the good of the Church and especially to the salvation of souls.”

[A]s an instruction, any new norms can only be legally binding about those matters specifically treated in TC. An instruction about a document cannot go beyond what that document itself establishes.

The dispensing powers granted in canon 87 may be used as judged appropriate by a bishop in his diocese. Such a decision is not a form of disobedience of TC or the Responsa, but rather a pastorally justified exercise of a bishop’s legitimate authority for the “spiritual welfare” of the faithful of his diocese….

[In regard to seeking a dispensation for the use of parish churches for the TLM:] There is no need to seek from CDW what he already enjoys by virtue of the general law of the Church.

Caring for the spiritual welfare of the faithful by allowing those who find inspiration and strength in TLM to worship in this extraordinary form of the Roman Rite was precisely the reason why Pope Benedict issued Summorum Pontificum [SP]. Such pastoral care extends to all those who desire to worship in this manner, and Pope Benedict never intended that there would be a cut-off date, such that anyone born after the Novus Ordo came into use was ineligible to attend the TLM. What is good in and of itself, including an immemorial form of Catholic worship, should be promoted by the Church. Any implication that Catholics who did not grow up attending the TLM before Vatican II ought not to attend the TLM is pastorally insensitive and ignores the fact that many younger Catholics have been peacefully attending the TLM since Pope John Paul II liberalized its celebration 33 years ago in 1988.

I would argue that since TC makes no provision withdrawing the permission found in article 9 §1 of SP for the celebration of the sacraments of Baptism, Confirmation, Penance, Marriage, and the Anointing of the Sick, that permission is still canonically in effect following the promulgation of TC…. TC did not abrogate SP as a whole, but only those provisions of SP that “do not conform to the provisions of” TC. The new restrictions on the use of the Roman Ritual, and the prohibition of the Roman Pontifical, found in the Responsa are not found in the text of TC, and contradict the unabrogated provisions of article 9 of SP. What TC does not mention is clearly not regulated by TC. The Responsa offers authoritative instructions about provisions that are not found in the document it is clarifying, and in doing so goes beyond what is canonically possible. Thus, there is a well-founded doubt that these provisions enjoy canonical force.

I would argue, in any event, that the unabrogated provisions of SP 9 remain in effect as a papal Motu Proprio prevails over an instruction such as the Responsa of the CDW, even with its papal approbation. It is interesting to note that SP does not grant permission for the administration of the sacrament of Holy Orders according to the Roman Pontifical in use in 1962. The Ecclesia Dei congregations, however, enjoy the use of the older Roman Pontifical according to their pontifically approved constitutions, which retain their force and are not in any way modified by TC or the Responsa.

I contend above that TC did not abrogate the provisions of SP 9 permitting the use of the Roman Pontifical for the administration of the sacrament of Confirmation. I also note that there is an exception regarding the use of the Roman Pontifical for the conferral of Holy Orders which should have been noted in the Responsa, namely that bishops are authorized to confer the sacrament of Holy Orders using the older Roman Pontifical on behalf of the Ecclesia Dei congregations which, by their constitutions, enjoy the use of the older liturgical books including the Roman Pontifical.

These papal authorizations [of the SSPX to grant absolution and witness marriages] were not rescinded by TC nor by the Responsa. So we have the anomalous situation in which priests of the SSPX, who are in a canonically irregular situation, are authorized by Pope Francis to use the Roman Ritual, while most canonically regular priests are denied this possibility…. Pope Francis’ praiseworthy generosity is denied to priests who fully submit to his authority, unless they are part of the small number assigned to personal parishes dedicated to celebrating the TLM. These permissions again highlight that the assertion that only the reformed liturgical books make up the lex orandi of the Church is refuted by this papal authorization to continue using the older rites.

Is it likely that the SSPX will continue to seek to be fully reconciled with the Church knowing that this papal authorization is no longer given to most priests of the Latin Rite? How is it just that disobedience is, in effect, rewarded with the authorized use of older liturgical rites in the hope of restoring full unity with the Church, while priests who are obedient to the Pope are prohibited from using those same rites under the contention that such use promotes disunity in the Church?

The unity of the Church does not depend upon “a single and identical prayer” but rather on the common profession of the Catholic Faith, the due submission to the Church’s pastors, and the reception of the sacraments which are celebrated in a variety of liturgical rites in both the Eastern Catholic Churches and in the Latin Rite (Ambrosian Rite, Ordinariate Rite for former Anglicans, Dominican Rite, et al.). The continuing, if restricted, papally authorized use of the TLM also demonstrates that the unity of the Church in no way depends upon a uniformity of liturgical practice. Seeking to enforce liturgical uniformity in the Latin Rite would logically entail suppressing all the other liturgical rites currently in use in the Latin Church. Otherwise, it could be reasonably concluded that the goal expressed in TC and the Responsa of a uniformity of the lex orandi of the Latin Rite really means the suppression of only one expression that is different from the reformed liturgical rites. Hence it would not be uniformity that is sought, but rather the suppression of the TLM alone.

The clear presumption of this question [Dubium #3] is that a priest who chooses not to concelebrate at the Chrism Mass or at other Masses, as is his right, is suspected of not recognizing the validity and legitimacy of concelebration itself. The Responsa states: “The explicit choice not to take part in concelebration, particularly at the Chrism Mass, seems to express a lack of acceptance of the liturgical reform and a lack of ecclesial communion with the Bishop…” That is an unwarranted suspicion and presumes that it is likely that the priest rejects concelebration as valid and legitimate, rejects the liturgical reform as a whole, and lacks ecclesial communion with the bishop in addition. Such rash conclusions about the intentions of priests who choose not to concelebrate Mass cast these men in the position of being presumed guilty of grave offenses for simply exercising their canonical right to celebrate Mass individually.

No priest can be canonically compelled to concelebrate Mass as canon 902 states that “priests may concelebrate the Eucharist; they are, however, fully entitled to celebrate the Eucharist individually.” Thus, a decision to not concelebrate Mass is perfectly lawful in itself, and should not form the basis for a suspicion that any particular priest who makes the choice not to concelebrate does so because he “does not recognize the validity and legitimacy of concelebration.” Only direct evidence that a priest believes that concelebration of the Mass is invalid and illegitimate should lead to that priest being asked by his ecclesiastical superior to correct this erroneous contention or face canonical sanctions. Concelebration remains a free choice of every priest, with the possible exception of the Mass celebrated at his priestly ordination where the ritual presumes that the newly ordained priest will concelebrate the Mass with the ordaining bishop from the point immediately following his ordination.

This change found in the Latin version of the Responsa [namely, that TC now requires not merely consultation about new priests saying the TLM but a licentia petitioned and received from Rome] is stunning, given that the Responsa was issued on July 16, 2021, in Italian, with translations into English and German issued that same date. In the Italian original, the diocesan bishop was required to “consult the Apostolic See” about any request from a priest ordained after July 16, 2021, to be authorized to celebrate the TLM. In the Responsa, reference is made to the Latin text of TC, which is designated “the official text to be referenced”. As you noted, the Latin text was put up on the Vatican website in November 2021, months after the July 16th publication of the Italian text from which translations were made into other modern languages. The Latin text is clearly a translation of the Italian text into Latin, but it contains this substantive change in language which is, in fact, a change in law. The Italian version on the Vatican website, as of February 11, 2022, continues to state that the diocesan bishop “will consult the Apostolic See” before granting permission to newly ordained priests to celebrate the TLM. The English version, as of that same date, also continues to use the word “consult.”

This procedure of changing a canonical provision from requiring a consultation with the Apostolic See to requiring an authorization from Apostolic See by changing the wording found in the previously issued Italian text (which the Holy See identified as the source from which the English and German translations were made) in the subsequently issued Latin text, now designated the official text, is an irregular way to modify legal obligations. The continuing discrepancy between the online Italian, English and Latin versions is remarkable. The imposition of a new obligation upon diocesan bishops via the issuance four months later of a Latin language version of a Motu Proprio dated July 16, 2021, that came into full legal effect on the day of its issuance, should have been done with prominent notification of this change to the world’s bishops, and should have clearly indicated that this change in law enjoyed specific papal approval.

The “Explanatory note” accompanying this new provision states: “This rule is intended to assist the diocesan Bishop in evaluating such a request: his discernment will be duly taken into account by the Congregation for Divine Worship and the Discipline of the Sacraments.” This is puzzling for two reasons: what assistance can the CDW provide regarding the suitability of a newly ordained priest to celebrate the TLM when the CDW has, apart from a rare exception, no information of its own about the priest? Isn’t the fact that the bishop decided to seek permission from the CDW to authorize the newly ordained priest to celebrate the TLM indicative, based on his own knowledge of the capabilities and characteristics of a man he judged suitable for ordination to the priesthood, that he is confident that this priest is suitable to celebrate the TLM?

In other words, the presumption should be that a diocesan bishop will only seek permission from the Holy See for those newly ordained men who he knows are suitable and will not forward names of those whom he judges to be unsuitable. If the Holy See does not require bishops to seek permission to ordain a man to the priesthood whom the bishop finds suitable after lengthy and serious evaluation, why should the bishop be required to gain permission for granting authorization to that priest to celebrate the TLM? What is not asked by the Holy See regarding a greater matter (suitability for receiving the sacrament of Holy Orders) should not be asked of a lesser matter (suitability to celebrate the TLM), unless this new provision is not in fact about better certifying suitability to celebrate the TLM but about what the Responsa states in the next paragraph: “The Motu Proprio clearly expresses the desire that what is contained in the liturgical books promulgated by Popes Saint Paul VI and Saint John Paul II, in conformity with the decrees of the Second Vatican Council, be recognized as the unique expression of the lex orandi of the Roman Rite: it is therefore absolutely essential that Priests ordained after the publication of the Motu Proprio share this desire of the Holy Father.”…

Thus, it appears that the CDW may use the occasion of deciding whether or not to grant permission to bishops to authorize newly ordained priests to celebrate the TLM to verify, nay to require, that the priest agrees with the Holy Father’s assertion that there is only one expression of the lex orandi of the Roman Rite, that is, the Novus Ordo Missae and the other reformed liturgical rites. This is puzzling and contradictory because the CDW, charged with regulating the lex orandi of the Roman Rite, is regulating who can celebrate the TLM, by asking that priests agree that the TLM is not an expression of the lex orandi of the Roman Rite. If that is true, then the priest needs no such permission from the CDW, as the CDW has no role in regulating something that is not recognized to be a liturgical expression of the lex orandi of the Roman Rite.

In point of fact, there is more than one expression of the lex orandi of the Roman Rite, and the TLM is one of them. The CDW recognizes this by asserting its competence to regulate who may celebrate the TLM. So a priest should not be asked to recognize something the CDW itself in practice does not recognize, namely that the TLM is not an expression of the lex orandi of the Roman Rite.

I also note that it is problematic to assert that it is “absolutely essential” that priests ordained after the publication of TC share the “desire” of Pope Francis regarding the recognition of the reformed liturgical books as “the unique expression of the lex orandi of the Roman Rite.” Due submission to the Supreme Pontiff requires obedience to duly promulgated laws which regulate external behavior, not internal thoughts. Due submission cannot require the vague and indeterminate “sharing the desires” of any Supreme Pontiff as this would be a violation of the conscience of a priest who, for instance in the present case, was convinced that the provisions of SP of Pope Benedict XVI recognizing the TLM as a legitimate expression of the lex orandi of the Roman Rite, conform to a proper and historically accurate evaluation of the lex orandi. Compelling priests to accept the judgement of Pope Francis on a matter which is clearly subject to debate, that is, whether the Roman Rite has more than one expression of the lex orandi, as a condition of being authorized to celebrate the TLM would be an unjust use of the coercive power enjoyed by the CDW. 

Canon 1321 § 1 states the principle in penal law that only external violations of law are punishable: “No one can be punished for the commission of an external violation of the law or precept unless it is gravely imputable by reason of malice or of culpability.” This means that someone who internally disagrees with a law or precept, but nonetheless observes that law or precept in his external behavior, cannot be punished for this disagreement in thought. By an analogy of law, in the matter of granting an authorization for the celebration of the TLM, the denial of such authorization on the basis that the priest does not share Pope Francis’ desire that the reformed liturgy be recognized as the unique expression of the lex orandi of the Roman Rite is not canonically permissible.

As I stated above, apart from a very rare case, the CDW has no independent information regarding a newly ordained priest. The diocesan bishop who seeks authorization for a newly ordained priest to celebrate the TLM has already found him to be suitable. To second guess his judgement on a matter in which he is in possession of the most complete information about the priest is an unwarranted interference in his role of moderating the liturgical life in his diocese.

The required just cause for bination would include fostering the spiritual growth of the faithful who seek to worship God at the TLM. That just cause cannot be fulfilled when the priest is forbidden to binate celebrating the TLM. What this means is that a priest who would ordinarily celebrate a second Mass using the 1962 Missal in fulfillment of the just cause of providing spiritual assistance to the faithful devoted to the TLM, may only celebrate a second Mass using the reformed Roman Missal. This ignores the fact that responding positively to the faithful who seek to worship at the TLM where there is a scarcity of priests plainly qualifies as a just cause as set forth in canon 905 §2….

Would not the logic of that [curtailment of bination because the Novus Ordo is available] mean that, beyond simply the case of a bination, whenever and wherever the “current ritual form” of the Mass is available, the request of the faithful to participate in the TLM may be ignored since such a request does not give rise to either a “just cause” or “pastoral necessity”? Apart from depriving a diocesan bishop of a means for meeting the particular pastoral needs of his diocese, these restrictions on bination mean that the devotion of the faithful to the TLM may be disregarded and treated as of no pastoral significance calling for a generous response from the Church’s pastors. I can think of no other group of the faithful in the Church who are treated in this way.

Archbishop Roche wrote in his introductory letter to the Responsa: “As pastors we must not lend ourselves to sterile polemics, capable only of creating division, in which the ritual itself is often exploited by ideological viewpoints.” This sentence is revelatory of a mindset that seeks to justify the harsh and unmerciful treatment of a whole category of Catholics by, in effect, accusing them of bringing such treatment down upon themselves by their supposedly sterilely polemical, divisive, and exploitative ideological viewpoints. No examples of these viewpoints are given, nor are the names of the proponents of these viewpoints identified. The Holy See is here treating love for and defense of the TLM as an indicator not of a praiseworthy devotion to the Faith, but as the expression of viewpoints that “often” result in words and actions that harm the Church. This conclusion is not supported by my experience or knowledge of what has gone on in the Church since restrictions on the TLM were lifted by Popes John Paul II and Benedict XVI. It is, on the contrary, the recent actions taken to restrict and eventually eliminate the celebration of the TLM that have harmed the Church.

To read the entire interview, visit The Remnant. It should also be mentioned that a book-length interview of Fr. Murray conducted by Diane Montagna will be released in early April by Emmaus Road Publishing; it may be pre-ordered directly from the publisher or from Amazon.