Are the Poncho Ladies Excommunicated?

Maybe not!

Here's Ed Peters, a canon lawyer, on the question: (scroll down to July 6 entry)

You see, there is no canon directly punishing the "ordination" of women. Canon 1382, which prohibits, upon pain of automatic excommunication, episcopal ordinations without papal mandate (e.g., the Lefebvre case) does not apply here, for these female “ordinations” were not to the episcopate, but to the presbyterate. Canon 1383, a little closer to our facts, prohibits bishops from ordaining priests without what are called “dimissorial letters" but, while the ladies did not have recognized dimissorial letters, the penalty for violating Canon 1383 is not excommunication, but only suspension. Besides, the "ordainers" were not bishops, and in any case the failure to complete some ordination paperwork is not likely to explain the sense of outrage that many Catholics understandably feel upon reading about these latest feminist shenanigans. Canon 1384 for its part punishes with “a just penalty” one who illicitly performs a “priestly function or other sacred ministry” but of course, sacramentally speaking, the women in these cases manifestly could not perform a priestly function (female ordination being impossible under Canon 1024 and a host of supporting Church teachings) and one cannot be punished for something one in fact did not do. There certainly is, however, Canon 1379 which threatens “a just penalty” for the simulation of a sacrament, but, while the “ordination” of a woman would fit squarely within the scope of this canon, interestingly, this norm was not cited as a basis for penal action taken by CDF in 2002. (I do not know whether Cdl. Barbarin relied on it earlier this week.)

So what exactly is going on here? How are these excommunications (CDF’s certainly, and perhaps Barbarin’s) being implemented?

Enter Canon 1319 § 1: “To the extent that one can impose precepts [directive orders] in the external forum because of one powers of governance, one can also impose determinate penalties by precept, with the exception of [what are known as] perpetual expiatory penalties” (my emphasis). In other words, Canon 1319, which applies to a huge swath of ecclesiastical authority figures, is being read by CDF (which dicastery, incidentally, received the canonically very important “specific approval” of Pope John Paul II for its action) as enabling penal actions in a wide range of situations not directly mentioned in the 1983 Code. And this, without even resorting to the oft-overlooked Canon 1399 (which already seems to offer considerable possibilities for broader-than-legislated penal actions in cases of seriously delictual behavior, an offer Church leaders have been slow to act on.)

Besides occasioning, then, this intriguing application of Canon 1319, these excommunications shed light on another question. To the extent that the values behind such Canons as 1379 and 1399 influenced the dicasterial and episcopal action in these cases—and clearly such norms are relevant even if they are not cited—the imposition of “excommunication” in situations that seem, at first glace, to warrant only the less specific “just penalty,” adds to the argument that "excommunication" need not be expressly listed as a penalty for a given crime in order for it, at some point at least, to be applicable to that crime. In brief, the strength of the hands of Church leaders faced with increasingly bizarre and disruptive behavior is waxing. It will be interesting to see what they do with it.

Excommunication is a "medicinal penalty" (see 1983 CIC 1312, distinguishing excommunication, by the way, from "expiatory" penalties not eligible for imposition under Canon 1319). The hoopla surrounding excommunication notwithstanding, it is fundamentally oriented toward bringing Catholics to repent of certain seriously wrong behaviors. Sometimes the penalty achieves its end, sometimes it doesn't. But Cdl. Barbarin is right to try it, and he gives a good example to his brothers who might face similar situations in their dioceses sooner than later.

Thus it would seem that the Poncho-ettes are not excommunicated until they're excommunicated, (or a fat lady sings.) However, as Peters notes in the second-last graph of this citation, they have managed to push the "excommunication" card much closer to the top of the deck, and one suspects that local Ordinaries will be given some latitude there.

That will save a lot of long-distance and postage costs.

HT: FreeRepublic/Curt Jester