The Roche Rescript Comes With All the Zeal of Saul the Pharisee

Since the Mystical Body of Christ is made up of the Faithful, Christ might well ask, 'Arthur, Arthur why persecutest thou me?'

From the Catholic Herald

By Diane Montagna

Still breathing threats against the Church’s ancient liturgy with a zeal reminiscent of Saul the Pharisee in Acts 9:1, Cardinal Arthur Roche has now begun strong-arming bishops to “ensure the correct application” of Pope Francis’s 2021 apostolic letter restricting the Traditional Latin Mass (TLM), Traditionis Custodes.

The latest crackdown by the prefect of the Dicastery for Divine Worship and the Discipline of the Sacraments has come in a rescript that severely restricts the freedom of bishops in matters of the TLM and their autonomy as “directors, promoters, and guardians of the entire liturgical life” in their dioceses (Canon 835 §1).

The 21 February rescript, signed by Cardinal Roche, and approved by Pope Francis during a private audience one day prior, states that the Pope has confirmed that diocesan bishops must obtain permission from the Dicastery for Divine Worship to use a parish church in their diocese for the TLM, erect a personal parish for the celebration of the usus antiquor, or allow a newly-ordained priest to offer Mass using the 1962 Roman Missal.

Pope Francis has also decided that bishops who up to now have exercised their dispensing authority (given to them in Canon 87 §1) must inform the Dicastery for Divine Worship which will decide either to affirm or overrule those decisions.

The rescript became an urgent necessity for Cardinal Roche amid growing opposition to his crackdown on the traditional liturgy, continuing resistance from bishops to his desired implementation of Traditionis Custodes, and mounting criticism from canonists that he had been exceeding his remit and venturing into canonical lawlessness. 

Letters and Lawlessness?

Since December, Cardinal Roche has been sending letters to US bishops who had cited Canon 87 §1 of the Code of Canon Law as their reason for not asking permission from Rome to allow the Traditional Latin Mass in parish churches. That canon stipulates that a bishop may dispense the faithful from “universal and particular disciplinary laws” (eg certain provisions of Traditionis Custodes) when he judges it to be for their spiritual good.

In one of these letters, sent to a bishop in California, Cardinal Roche insisted that his dicastery alone had the power to dispense from the provisions of Traditionis Custodes to allow a parish church to be used for the TLM. The same holds true, he said, for granting permission to a newly-ordained priest to offer the Mass using the 1962 Missal. 

Cardinal Roche also stipulated in this letter that, should the bishop petition the dicastery for a dispensation to allow the TLM in a parish church, he must submit a report detailing “the number of participants at these Masses” and recounting “the steps being taken to lead the faithful who are attached to the antecedent liturgy” to the Novus Ordo.

The letters reiterated several of the disciplinary instructions Cardinal Roche had issued a year prior in his Responsa ad dubia (on applying Traditionis Custodes) but which many bishops had not implemented and which a number of canon lawyers have described as an overreach.

In an interview following the release of the Responsa, New York canonist Father Gerald Murray argued that the document went beyond what was canonically possible on certain points and that bishops were free to dispense with its disciplinary provisions for the spiritual welfare of their flock. 

Cardinal Roche’s more recent letters were therefore a further attempt to tighten the screws, but canonists continued to maintain that bishops did not need to petition Rome for a dispensation to allow the TLM to be celebrated in parish churches. 

In comments to the Catholic Herald before the rescript was issued, Fr Murray noted that Cardinal Roche “seems to presume that the diocesan bishop lacks the power to dispense from this rule, which power is granted to him by Canon 87 §1, because he seems to presume that such dispensation has been reserved to the Holy See.” 

“The problem with this claim,” Fr Murray said, “is that nowhere does Traditionis Custodes state that dispensation from the prohibition of allowing the use of a parish church is reserved to the Holy See.”

He continued: “The provisions of Canon 87 §1 that permit the diocesan bishop, for reasons of ‘spiritual welfare,’ to dispense from disciplinary ‘universal laws and those particular laws made by the supreme ecclesiastical authority for his territory or his subjects’ remain in place unless the Pope specifically reserves such dispensation to himself or to some other authority. No such reservation is stated in Traditionis Custodes nor in the Responsa.”

Fr Murray also explained that “for a newly-ordained priest to obtain authorization from his bishop to celebrate the Traditional Latin Mass, the promulgated Italian text of Traditionis Custodes states that the bishop is simply required to ‘consult’ with the Holy See. The later official Latin translation of Traditionis Custodes [whose existence was unknown until Cardinal Roche issued the Responsa] changed the wording to say that the bishop must ‘ask for permission’ from the Holy See to give such an authorization.” 

“This substantive change in law carried out through an unannounced changing of the original wording when producing a translation is most irregular,” the canonist observed. 

Noting that the English, Italian and Spanish versions of Traditionis Custodes on the Holy See website still do not include the change found in the Latin version, Fr Murray said “this confusion and inconsistency can give rise to a doubt that this changed provision enjoys legal force. An Apostolic Letter is not subject to re-writing by a translator unless the change is specifically authorized and promulgated by the Pope. There is no evidence that this occurred in the case of the Latin translation.” Other canonists have made similar arguments.

To overcome his opposition and forge ahead in laying waste to the Church’s ancient rites, Cardinal Roche needed to convince Pope Francis to put into legislation what he had been trying to enforce without proper canonical backing: hence the rescript. 

Operation Rescript

In comments to the Catholic Herald on the day the rescript was issued, Fr Murray insisted it was “evidence that Cardinal Roche understood that reasonable doubts existed about his claim that bishops could not dispense various provisions of Traditionis Custodes using Canon 87 §1.”

He observed:  “The rescript states that Pope Francis ‘has confirmed’ three things ‘about the implementation of his motu proprio Traditionis Custodes’ which were not stated in Traditionis Custodes; namely, that only the Holy See can grant permission to newly ordained priests to celebrate the Traditional Latin Mass, that diocesan bishops cannot dispense from the prohibition of a parish church being used for the celebration of the Traditional Latin Mass, and that they cannot dispense from the prohibition of the erection of personal parishes for such celebrations.” 

Fr Murray noted that this new legislation “further withdraws from diocesan bishops their ordinary power to decide the most pastorally beneficial approach to take in these matters.” And he called it “regrettable” as “both a diminution of the pastoral authority of bishops and as an unmistakable sign that the Holy Father has decided that Catholics attached to the ancient liturgical heritage of the Church do not deserve the same place in the Church as the other faithful.” 

“Banishment from parishes and restrictions on young priests who would like to be of pastoral service are harsh and repressive measures which are undeserved and manifestly contrary to the Pope’s call for going out to the peripheries,” he said. Meanwhile, a source close to the Dicastery for Divine Worship has confirmed to the Catholic Herald that no permissions have or will be granted to priests ordained since Traditionis Custodes.

Appearing on The World Over on Thursday, 23 February, Fr Murray summed up the situation, saying: “It’s a persecution of Latin Mass Catholics, plain and simple. And it can’t be justified by saying this is going to help promote the mission of the Church. This is damaging the Church.”

One question that arises is how the dicastery will enforce the rescript given its severely limited resources? Will Cardinal Roche himself “enter house after house” to banish traditional Catholics from their spiritual home?

Reports have it that the prefect has sought an Apostolic Constitution with still more sweeping measures against the traditional Roman Rite. Whether this recent act is a more limited response to this alleged request, or a foretaste of more to come, only time will tell.

But another and perhaps more pressing question is why Cardinal Roche needs to exert such pressure on diocesan bishops, when the majority were – supposedly – unhappy with the application of Benedict XVI’s Summorum Pontificum. 

Pope Francis said in Traditionis Custodes that “the wishes expressed by the episcopate” in a consultation of bishops, carried out in 2020 by the Congregation for the Doctrine of the Faith, called for a crackdown on the traditional Latin liturgy. And in his accompanying letter to the motu proprio, he said that he was “responding to [their] requests.” 

The Vatican has never disclosed the results of this consultation, something which “remained mysterious” even to Benedict himself. 

Extensive leaks of the 2020 consultation have appeared, however, and seem to tell a rather different story about episcopal reaction to Benedict XVI’s 2007 motu proprio, with many testimonies to its fruitfulness and the peace it achieved. In fact, they revealed that the message from the majority of bishops was to continue with a prudent and careful application of Summorum Pontificum.

Questions of ecclesiastical prudence are never for the faint hearted, but in the present case it might be worth recalling the warning of Saul’s own teacher, Gamaliel, to the Sanhedrin in Acts 5:39: “If it is of God, you will not be able to overthrow them. You might even be found to be opposing God.”