The Virus and the Bishops: Twisting Canon 223 to Further an Agenda

Q:  We contacted our bishop in protest, because he is insisting we can only receive Communion in the hand.  A canon lawyer replied on his behalf, claiming that Canon 223.2 gives the bishop power to “regulate the exercise of rights which are proper to the Christian faithful.”  He concludes that the bishop has the power to “regulate” how we receive Communion, because of the virus….  How can this be right?  I’m sure if this was true you would have mentioned it…. –Hillary

A:  This and similar sorts of questions reveal a truly disturbing trend nowadays among far too many of the Catholic hierarchy, who are seeking to legally justify their outrageous abandonment of the Catholic faithful entrusted to their care by banning them from attending Mass and receiving the sacraments, “because of the virus.”  (See “Do Bishops Have the Authority to Cancel Masses Completely?” and “Can Priests Cancel Public Masses, and Say a Private Mass Instead?” for an in-depth discussion of this.)  It’s disturbing, because it reveals a deliberate abuse and misuse of the law which actually challenges the whole purpose of having laws in the first place.

Philosophers, jurists, and political scientists can easily spend their entire careers discussing the fundamental reasons why every society has and needs laws.  But in a nutshell, you could say that laws that are well written exist, not to tie us in knots and prevent us from doing the things in life that we genuinely need to do, but to provide guidance on how we can correctly do those things, without confusion and uncertainty.  In other words, law in general is meant to help us, not to harm us—and this goes for canon law as well.

Bearing this in mind, here’s how you’re supposed to use canon law (or other law, for that matter): You tentatively decide that you’d really like to do X, but you aren’t totally sure that X is lawful.  You search through the code to find out whether X is legally permissible or not—and if it is, great!  But if it isn’t, you conclude that you’ll have to forego doing X.  In the end, what you do is not necessarily what you wanted, but it’s what you understand is in accord with the law.  You’ve just applied the law in the correct way, and done what is right—and you’ve also seen firsthand how true it is that the law serves as a guide.

But the scenario described in Hillary’s question clearly did not result from this sort of proper application of the law.  On the contrary, it demonstrates how you’re not supposed to use canon law: You decide that you are going to do X, but someone rightly objects that X is contrary to the law.  Instead of deferring to the law, you do X anyway, all the while insisting that X does not violate the law.  To buttress your claim, you frantically flip through the code in search of something, anything, that you can distort and/or take out of context, so that you can argue that X is lawful.  You’ve just misused the law in order to do what you want, not what is objectively right.

Needless to say, this is not how it works.  And one elementary method to refute the argument of someone who misuses law in this way involves applying another pretty basic principle, inherent in any legal code: laws can’t contradict each other.  For example, if some legal code contains a law saying, “Every citizen over the age of 18 always has the right to do X,” then there cannot simultaneously be another law saying, “Nobody can do X on civil holidays.”  As should be evident, if the law asserts that some people can “always” do X, that necessarily means they can do X on civil holidays as well, right?  And if somehow a law was passed which conflicts with another existing law, well, one or the other has to be changed.  No society can function for very long with a legal code that can correctly be cited in justification of two polar opposites!  As we’ll see in a minute, this has a direct bearing on the issues our questioner raises here, about a bishop who is insisting that the faithful can no longer receive Holy Communion on the tongue, “because of the virus.”

As was discussed at great length in “Can We be Required to Receive Communion in the Hand, Because of the Virus?” the Catholic Church has affirmed time and time again, in document after document, that receiving Holy Communion on the tongue is the norm, and the faithful cannot be denied this method of receiving Communion if they so wish.  The Church has never, ever permitted that norm to be disregarded—on the contrary, even when the H1N1 Swine Flu was raging back in 2009-2010, the Vatican explicitly asserted that Communion on the tongue cannot be forbidden.  In fact, we saw that the only method of receiving Holy Communion which is not an absolute right, and which can be refused in certain situations, is Communion in the hand!   This undeniable, inarguable fact could not be more black-and-white than it already is.

The norm is what it is, not because some Vatican bureaucrat randomly decided this in years gone by, but because the Church’s attention on this question is firmly focused on reverence for Our Lord in the Blessed Sacrament.  The Church has always had concern that the Eucharist be received by the faithful in as reverent a manner as possible.  There’s a good reason why for well over a millennium, nobody was permitted to touch the Host except an ordained cleric, whose hands are consecrated.  As St. Thomas Aquinas put it centuries ago in his Summa Theologica,

Because out of reverence towards this sacrament, nothing touches it, but what is consecrated; hence the corporal and the chalice are consecrated, and likewise the priest’s hands, for touching this sacrament. (III, q. 82, a. 3, co.)

Thus there’s a lot more going on in this “debate” than a mere disagreement over matters of personal preference.  Those millions of Catholics around the world who adamantly refuse ever to touch the Host have centuries of not just liturgical tradition, but sacramental theology on their side.  And by being so cavalierly dismissive of this position, an astonishing number of Catholic bishops and priests are displaying an indifference to this manner of physically displaying veneration for the Eucharist that is shocking.

As Hillary tells us, her bishop has illegally mandated that all Catholics receive Holy Communion in the hand “because of the virus,” and he claims that canon 223.2 allows him to do this.  Let’s take a look at what this paragraph actually says:

Ecclesiastical authority is entitled to regulate, in view of the common good, the exercise of rights which are proper to the Christian faithful.

This particular canon comes at the end of a sub-section of the code entitled “The Obligations and Rights of All the Christian Faithful” (cc. 208-223), which broadly states some of the rights and responsibilities that naturally flow from Catholics’ rebirth in Christ at baptism (cf. c. 208).  To cite just a couple of examples, the faithful are supposed to make an effort to live a holy life (c. 210), and they have the right to receive assistance from their spiritual pastors, especially the word of God and the sacraments (c. 213, a canon which we’ll return to in a moment).  And canon 223.2, the paragraph quoted above, is thus meant to be taken in context with the canons preceding it.

The official text of the Code of Canon Law is in Latin, and the Latin verb used in canon 223.2 and translated here as “regulate” is moderare.  Latin-English dictionaries provide various ways to translate this verb, such as direct, regulate, guide, moderate, control.  The Latin word is abstract, but not ambiguous!  This variety of translation-options should give English-speakers a good idea of what canon 223.2 intends to convey.

And what does canon 223.2 intend to convey?  Maybe it’s easier to explain first what it doesn’t mean.  This paragraph does not give church authorities the authority to deny altogether those rights which the law explicitly tells us belong to all Catholics.  Rather, it is indisputable that the verb moderare is used here because the Catholic hierarchy are meant to be providing guidance on how best to exercise those rights.  The canon most certainly doesn’t give church authorities carte blanche to throw the Church’s often restated universal sacramental norms out the window!  If it did, this would imply that those norms weren’t really norms at all, as any bishop could disregard them practically at will.  The Church’s laws in that case would be contradicting each other.

So, if you’d like to apply canon 223.2 correctly to the way that Catholics receive Holy Communion in the era of the virus, ecclesiastical authorities might perhaps make rules/recommendations that a cleric who is distributing the Eucharist must purify his hands after giving the Host to each communicant, and/or that the faithful must stand or kneel 2 meters/yards apart.  Or a diocesan bishop could require all parish priests to give a brief instruction to the faithful about how properly to receive Holy Communion on the tongue (closing your eyes, holding your head back, etc.), so as best to prevent the priest’s fingers from accidentally touching the communicant’s tongue.  Surely these would be fine examples of concern for “the common good”—because in this way Catholics would be showing care and consideration for each other, by doing their utmost to avoid potentially passing on the virus to their fellow Mass-goers.

At the same time, this sort of “guidance” would be entirely consistent with canon 213 (mentioned above), as well as the many Vatican documents already discussed in detail in “Can We be Required to Receive Communion in the Hand, Because of the Virus?”  Note that what has just been suggested doesn’t deny any Catholics their rights—it “just” regulates them, which is exactly what canon 223.2 tells authorities they can do.

In contrast, claiming that canon 223.2 permits bishops to eliminate completely the norm that Catholics can receive Holy Communion on the tongue is so flat-out wrong that one doesn’t know whether to laugh or cry.  It might be compared to a police officer who is assigned to a busy intersection during rush-hour, in order to “control” and “direct” (moderare) the flow of traffic … and decides that he will do this by forbidding everyone to drive their cars.  What reasonable person would conclude that this is a correct application of the directive?

Imagine what could potentially happen to the Church, if bishops could cite canon 223.2 and “the common good” to do whatever they wanted, without concern that they might be violating other laws in the process!  This would reduce us to a state where legally almost anything goes, as bishops could simply disregard any and all rights found in the Code of Canon Law and any other Vatican documents.  To cite only one of a billion possible examples, you might as well argue that in a crime-ridden diocese, canon 223.2 would permit a bishop to declare that henceforth, any penitent who confesses to having committed a violent crime will be identified to the police (in direct violation of canons 983 and 1388).  After all, a bishop could easily argue that this would promote “the common good,” couldn’t he?  The sheer absurdity of this sort of misapplication of canon 223.2 should be obvious to all.  Moderare does not mean “eliminate” or “totally disregard,” and bishops can’t violate universal law and hide behind canon 223.2 as some sort of shield.

And yes, they know this.

You don’t have to be a canon lawyer to see that diocesan bishops like Hillary’s need our prayers.  Someday they (like all of us) will have to stand before God and give an accounting of their actions, and the scene is frightening to imagine.  Let’s pray that by the grace of God, they will be able to show Him a life that involved showing reverence for Our Lord in the Eucharist, deferring obediently to universal law, and serving the Catholic faithful as true shepherds, in imitation of the Good Shepherd Himself.

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