Q: A priest in residence at my parish is defending the bishop’s decision to lock all the churches indefinitely … claiming that there is canonical precedent for doing this. He says the same thing was done during the Spanish Flu of 1918, so this isn’t the first time. Is this true? –Alessandra
A: In “The Virus and the Bishops: Twisting Canon 223 to Further an Agenda,” we saw that an astonishing number of bishops these days are trying to force-fit the law to their illegal actions, in order to justify their violations of the rights of the faithful to attend Mass and receive the sacraments, “because of the virus.” What Alessandra describes here is yet another example of exactly the same thing. On the surface, this might at first sound like a convincing argument—but in reality, it contains multiple errors both of fact and of law.
The argument has recently been made in numerous dioceses that in 1918, the Church responded to the Spanish Flu in the same way that it did to the Coronavirus in early 2020: it closed churches, cancelled Masses, and prevented the faithful from receiving the sacraments indefinitely. The conclusion that is drawn from this statement is that what Catholic bishops have been doing in recent months isn’t unique or unprecedented, since it has been done before—and therefore it is legitimate.
There are two separate, directly relevant issues here which both warrant discussion. The first involves the concept of legal precedent (a matter of law), while the second concerns what really happened when the Spanish Flu was raging a century ago (a matter of fact). Let’s start by examining the claim that what the Church (allegedly) did in 1918, in response to the Spanish Flu, constitutes a legal precedent that justifies what many Catholic bishops around the world have been doing for the past couple of months.
If you look up the word precedent in an average dictionary, you’ll find two different definitions:
(1) In its generic sense, a precedent is something which happened in the past, and may be used in future as an example, when dealing with a similar situation.
(2) The word also has a more specific legal meaning: a legal precedent is a judicial decision, which may be binding in future on other courts, or which may at least guide other courts as an indication of past practice.
Which definition of precedent would apply in this case? Well, those who promote this argument can’t claim that there was a judicial decision in any ecclesiastical court to close the churches back in 1918, because there clearly wasn’t any! And to be fair, they don’t appear to be alleging that there was. Note that even if there had been some kind of a court ruling (or even an administrative decision from the Vatican) explicitly approving of mass-closures of churches and universal cancellation of Masses in 1918, it still wouldn’t have constituted a binding legal precedent—because canon law explicitly tells us that judicial and administrative acts are binding only on those to whom they were given (c. 16.3). Broadly speaking, therefore, there is no such thing as “a judicial decision that establishes a legal precedent which is binding in future cases” in the Catholic Church. Thus we can eliminate the second definition of the word precedent in the preceding paragraph.
By default, that leaves us with the first, generic definition. Promoters of this claim seem to be suggesting that the mere fact that all the churches were (allegedly) closed during the Spanish Flu somehow makes the closure of churches in 2020 “because of the virus” legally okay. In short, they are asserting that because Catholic clergy (allegedly) did X in the past, that ipso facto means X is lawful now.
It’s ridiculously easy to demolish this argument, whether you happen to have a law degree or not. In order to be valid, this assertion must assume that no action done in the past ever violated the law. Otherwise, you could commit even the most egregious crime today and claim that it was lawful, simply because it had also been committed in years gone by! A few concrete, historical examples should illustrate how truly ludicrous this argument is.
1) In “Could Women Ever be Ordained Deaconesses?” we saw that a big argument which is often used in support of women’s ordination to the diaconate is the undeniable historical fact that deaconesses existed in the early Church, in at least one geographical region of the world. In reality, it is not at all clear that these women were actually being ordained, and were considered to be members of the clergy. But even if they were, subsequent church councils forbade deaconesses altogether, and the prohibition exists to this day. Given the spotty and inconclusive nature of the historical evidence, we don’t know precisely what was happening back then: it could be that women were being “ordained,” and the Church later ruled that this constituted an abuse, which had to be ended. It should be obvious that if an abuse took place in the first few centuries of Christianity, and church authorities then officially banned the practice, it doesn’t constitute a precedent for ordaining deaconesses today—quite the contrary.
2) More recently, a Czech Catholic bishop “ordained” several women as priests in 1970, as a way of dealing with a shortage of clergy in the former nation of Czechoslovakia, then under Soviet occupation. As was discussed at length in “Can Women be Ordained Priests?” this was unquestionably invalid, as the Church does not recognize the ordination of women. Yet some proponents of women’s ordination continue to insist that because this Czech bishop invalidly “ordained” some women on one occasion 50 years ago, that somehow makes it possible to ordain women today—even though it was invalid (and therefore illegal) back then, and is still invalid/illegal today.
3) God alone knows how many cases of clerical sexual abuse have occurred around the world in the past century or so. This certainly amounts to a precedent, in accord with the first definition of the term listed above. Shall we accept that it’s perfectly okay for a priest to molest a child today, because child molestation is known to have been committed by some priests in the past?
The fact is, if the Church wants to approve of past actions (the legality of which may or may not have been clear at the time), it can do that. The Pope can amend the law, and/or the appropriate Vatican congregation can issue a decree, stating that something questionable that was done in the past is now recognized as okay. Procedurally, it’s not complicated!
So did Rome approve of the (alleged) closure of churches and cancellation of Masses and the sacraments because of the Spanish Flu, back in 1918? Even without doing any research at all, we can safely say that the answer is a resounding no. That’s because, as we saw in “The Virus and the Bishops: Twisting Canon 223 to Further an Agenda,” laws cannot contradict each other. Therefore, what would have happened if the Vatican had in some way given official approbation to the possibility that “when an epidemic involving a dangerous disease is raging, the faithful can be deprived of Mass and/or the sacraments until it dissipates”? Answer: it would have been necessary simultaneously to amend any and all laws that have always asserted with no exceptions that diocesan bishops and parish clergy have the obligation to minister to the faithful, and the faithful have the right to receive the sacraments for their spiritual wellbeing (cf. cc. 213, 383, 387, 519, 528.2, 843, etc.). And of course Rome has never done anything of the sort.
On top of that, as has been discussed multiple times in this space (in “Can Priests Cancel Public Masses, and Say a Private Mass Instead?” and “Are We Under Interdict? Sanctions, Part V,” for example), in 1983 Pope John Paul II issued a new Code of Canon Law, which specifically abrogated previous law (c. 6). So even if in bygone years, some sort of formal, universal approval had been given to the closure of churches, cancellation of Masses, and deprivation of the sacraments in certain circumstances … such a policy would have been cancelled out by the new code, which asserts no such thing.
So much for the argument that the Church’s reaction to the Spanish Flu of 1918 established a legal precedent for the clergy completely abandoning the faithful in 2020 “because of the virus.” Such an assertion contains numerous errors of law.
But while we’re on the subject, what exactly was the Church’s reaction to the Spanish Flu of 1918? When people like the priest at Hillary’s parish claim that the clergy today are reacting just like they did back then, they’re implying that certain historical events took place—but which evidence suggests didn’t even happen.
Back in 1918, the so-called “Spanish Flu” killed at least 50 million people around the world, including many children. If you dig through old newspaper accounts, looking for evidence that “because of the virus,” bishops all around the world voluntarily closed all the churches in their dioceses, cancelled all Masses, and denied the sacraments to the faithful for an indefinite period in 1918 … you don’t find it.
In the heavily populated Diocese of Brooklyn (just outside New York City), it appears that some churches were closed by government officials—so Masses were celebrated outdoors instead. The Catholic clergy and religious sisters stepped up to the plate to tend to the sick in Catholic hospitals, and a number of priests subsequently died of the flu themselves. The same was true in Philadelphia, where the Archbishop gave parish priests permission to use the parish buildings as makeshift hospitals, where religious sisters joined them in nursing the flu victims. Although the Archbishop advised (not ordered) priests and sisters to wear masks when tending the sick, a fair number of Philadelphia priests succumbed to the Spanish Flu nonetheless.
(Contrast this with the countless dioceses around the world today, where bishops have ordered the clergy to refuse Mass and the sacraments to the faithful—in many cases, even to those dying of the virus!—and commanded them to “self-quarantine” to protect themselves from the virus.)
Brooklyn wasn’t the only diocese where churches were closed and Masses were said outside. Because of the Spanish Flu, Masses were celebrated outdoors in at least one region of California as well—click on the photograph of one such Mass found here, to enlarge it and see for yourself. It could very well be said that “churches were closed because of the virus” in this diocese in 1918, but that does not imply that priests failed to minister to the faithful entrusted to their care.
In St. Louis, Missouri, civil authorities ordered all churches to close. Did the diocesan bishop meekly obey this unconstitutional demand? Hardly: records show that the Archbishop protested and did not comply, although he did dispense the faithful from their Sunday Mass obligation. As we saw in “Do Bishops Have the Authority to Cancel Mass Completely?” there’s a huge difference between a bishop telling the Catholic faithful that they don’t have to attend Mass (a common enough occurrence when bad weather strikes), and telling them that they can’t. What the Archbishop of St. Louis did was/is in full accord with the law and not out of the ordinary at all. In any case, at least one priest of the diocese was caught celebrating Mass for 200 people anyway (and no charges were filed against him). It’s interesting to note, by the way, that there is nothing to indicate that the bishop disapproved of this priest’s conduct.
Some of the evidence is ambiguous. For example, in Los Angeles, California, government officials ordered all churches to be closed in 1918. But there’s no evidence that the Catholic Archdiocese necessarily complied with the (unconstitutional) demand; in fact, we don’t know what the Archbishop of Los Angeles’ reaction was. Likewise, in Milwaukee, Wisconsin, health officials declared that churches had to close, but bars could remain open (sound familiar?)—but we know nothing of the Catholic Church’s response. It’s entirely possible that parish priests simply celebrated Masses in secret, behind locked church doors or in private homes, as some clergy (but sadly, not enough!) have been doing in 2020.
Along similar lines, civil authorities in Minneapolis, Minnesota demanded that all churches be closed because of the Spanish Flu, and this newspaper account asserts vaguely that “no Mass will be said in the Catholic churches today.” (Note that the article refers only to “today,” and certainly doesn’t indicate that Catholics were deprived of Mass and the sacraments indefinitely.) Although we don’t know how the Archbishop of Minneapolis reacted to this illegal order, it’s already clear that this sentence can’t be correct: even if churches were closed, priests would have been saying Masses inside on their own (or with at least an altar server, see “Can Priests Cancel Public Masses, and Say a Private Mass Instead?” for more on this), so Mass would indeed have been said in any case.
Much is being made these days of a parish priest in Birmingham, Alabama, who closed his parish church for at least two weeks in 1918, and publicly told the faithful that there would be no Mass on Sunday. What is strange about this situation, however, is that it appears the priest made this decision on his own, deferring to government officials himself—because no mention whatsoever is made of any authorization for this radical move by his superior, the diocesan bishop. If the Bishop of Birmingham had ordered the clergy to close the churches in obedience to civil authorities, then why is it that we only know of the closure of this one church? And if the Bishop of Birmingham had publicly authorized the closure of the parish churches, why don’t we have his own statement to that effect, which obviously would have out-ranked that of a solitary parish priest? Given such odd circumstances, it could very well be that this priest was in reality a renegade, the only one in the Diocese of Birmingham to accede to the government’s demands.
Speaking of public statements from diocesan bishops, this article indicates that in Pittsburgh, Pennsylvania, health officials declared that all churches had to close, and “Roman Catholic Bishop Regis Canevin … agreed to the closures.” But if you look at Bishop Canevin’s actual statement, that’s not at all what he says:
The Department of Public Health throughout the country are (sic) taking unusual precautions to prevent the further spread of influenza which is already epidemic in a number of places. In some districts of Western Pennsylvania churches and schools are closed and all public meetings are forbidden. It is indeed a great hardship for Catholics to be deprived of the opportunity to assemble for Mass and other divine services in their churches; but when, in the judgment of the civil authorities, whose duty it is to safeguard public health, it becomes necessary to close churches and schools … the only rule for pastors and people is to co-operate with the civil authorities of their district, obey the laws, and comply with the regulations that are enacted for the common good.
In the city of Pittsburgh, churches are not to be open for public services; no congregation or group of persons is allowed to assemble in them. Public meetings are prohibited. In other districts local regulations govern. (See original notice here—scroll across to the fifth photo and click to enlarge.)
Readers who are lawyers will probably appreciate the carefully crafted wording of this statement, which must have been deliberate. Bishop Canevin repeats the content of the civil declaration, and states that clergy and laity are required to obey civil authorities—but nowhere does he actually come out and say that the Diocese of Pittsburgh will do so. He makes no definite assertions that Catholics will be unable to attend Mass anywhere, or that the sacraments will be denied to them; there aren’t any details of the diocesan closures provided here at all. In actuality, it’s hard to tell from this listless statement whether the Bishop of Pittsburgh was fully on-board with the demands of health officials … or whether he was seething in anger, and externally pretending to acquiesce while privately ordering his clergy to minister to the faithful clandestinely!
(By way of comparison, check out this specific notice from the Archbishop of New York City, showing how eagerly he prohibited all the faithful of the Archdiocese from attending Mass indefinitely in 2020, even though the law at the time still permitted gatherings of up to 20 people. As of this writing, all the Catholic churches of New York City are still closed!)
In Ireland this year, the bishops (with no urging from state officials) cancelled all Masses “until further notice”—because the government had banned gatherings of more than 100 people. Citing precedent, this priest told the press, “I think the last time for such an incidence would have been during the Spanish flu,” yet no actual evidence was provided one way or the other for the Irish Church’s reaction to the 1918 flu pandemic.
And in Holland, the Spanish Flu of 1918 prompted Catholic bishops to “slightly reduce both the number of parishioners at Mass and the duration of Mass itself.” One Dutch Jesuit priest “argued that the ‘power of the Eucharist’ would counteract the Spanish flu”; Catholics held “massive street processions,” and organized days of prayer when “the churches were packed.” It shouldn’t be surprising that the Catholic hierarchy today doesn’t seem to be citing the Catholic Church in Holland’s method of addressing the 1918 pandemic as a precedent.
All that being said, there’s plenty of uncertainty about what really was happening in many of the Catholic dioceses around the world during the time of the Spanish Flu. But it’s safe to say that whatever the clergy were doing, they decidedly were not acting in almost global unison to cancel all Masses indefinitely, lock churches, prevent the faithful from receiving any of the sacraments, and banning weddings and funerals! Anybody who claims that the way the Church responded to the Spanish Flu in 1918 was much like what the Church has been doing now in 2020, must be living in a fantasy land.
So to sum up, the argument that “the Spanish Flu of 1918 was a precedent for the Church closures because of Coronavirus in 2020” is utterly false. It is false for legal reasons, because past actions do not constitute “legal precedent” in the Church, and certainly not binding precedent; and it is false for historical reasons, because nothing the Church may have done in 1918 in response to the Spanish Flu is remotely akin to bishops’ nearly worldwide, wholesale shutdown of Catholic life altogether in 2020.
Make no mistake, what is happening in many Catholic dioceses throughout the world today has never been seen before in the nearly 2000-year history of the Catholic Church. Never before has anyone witnessed such wide-scale and complete abandonment of the faithful by the Catholic hierarchy—who are doing so not at the point of a gun, but voluntarily. No matter how you wish to define the term, there is no precedent for what is occurring in the Church this year “because of the virus.” None.