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Seeking a loophole to keep the Eucharist

Special Reports Writer

The people of St. Verena's Parish in Volkertshausen, a small town in southwest Germany, want what every Catholic parish wants -- a Sunday eucharistic celebration.

But their young pastor, Fr. Engelbert Ruf, already oversees three other parishes in the area of Lake Konstanz, and his archbishop, Oskar Saier of Freiburg/Breisgau, has asked him to take on the duties of a fifth parish in 1997. Ruf replied that he cannot take on the added duties.

Fearing that they might see the day when the Eucharist became unavailable, some parishioners stumbled across what they thought was a solution to a priestless predicament. They responded to an article published last year in the newspaper Kirche und Volk (Church and People) reporting the availability of married priests to serve Germany's priestless parishes.

However, the solution quickly drew an objection from the local archbishop and stirred a whirl of discussion in canon law circles. Some canonists think the folks of St. Verena's may have discovered a canonical loophole.

The German Union of Married Priests based its offer on an interpretation of Canon 1335 in the 1983 revised Code of Canon Law. It states that the censure against a suspended priest is lifted "whenever it is necessary to take care of the faithful who are in danger of death" or "whenever a member of the faithful requests a sacrament ... for any just cause whatsoever."

Parishes like St. Verena's are lucky to see their pastor every other Sunday. When a priest is not present, lay persons read the Sunday texts and distribute preconsecrated hosts.

"Liturgies of the Word conducted by lay persons are the rule" in many parts of Germany, said Gunther Feininger, who heads St. Verena's pastoral council. "I fear soon we will not be able to have the Eucharist any longer," he told the Sudkurier, the Konstanz newspaper, in January.

The German Union of Married Priests counts some 600 members, including 350 married priests. About 10 percent of the 350 are willing to celebrate the Eucharist in areas where the priest shortage is critical. Germany has an estimated 3,000 to 4,000 priests who have left active priesthood, according to theologian Heinz-Jurgen Vogels, a married priest who is the union's president.

On Jan. 1 the presidents of the councils of the four parishes Ruf serves -- in Volkertshausen, Beuren, Hausen and Schlatt -- met with Ruf and agreed to ask Klaus Rudershausen, a married priest who had served Volkertshausen as a deacon during his seminary years, to celebrate the Eucharist.

Vote for married priest

Nine days later all 40 members of the four parish councils convened and voted unanimously to seek the services of a married priest in order to maintain a weekly eucharistic liturgy in their churches. When Rudershausen was unavailable for the first scheduled service Jan. 19, the parishioners summoned Vogels.

Vogels gladly accepted, believing this would be the first time in Germany, if not in Europe, in which the laity had publicly sought the services of a married priest in order to have access to the Eucharist. But it was not to be.

On Jan. 11 the wife of one of the parish councilors mentioned the plan to the local dean. He insisted that their action not go forward. If the parish did not cancel the Mass, he would inform the archbishop.

The dean asked Ruf not to allow Vogels to say Mass because he is a dispensed priest -- one who had been granted laicization in order to marry. Ruf refused.

"The archbishop interfered so strongly -- calling and writing to Ruf -- that the parishioners feared their pastor would be suspended," Vogels told NCR in a telephone interview. The Mass Vogels intended to celebrate was replaced by a Liturgy of the Word attended by some 200 parishioners. All those attending stayed for a discussion, which Vogels held after the service, and for which the vicar general, Fr. Otto Bechtol, gave his permission.

What was described by the local press and by Vogels as a "dialogue" ended with the entire parish calling unanimously for the services of a married priest in order to preserve the Eucharist.

Two days later one of Germany's leading canon lawyers lent support to the parishioners when he said that the tiny parish "seems to have discovered a loophole in the law."

In a Jan. 21 interview with Germany's Catholic News Agency, Klaus Ludicke of Münster said that Canon 1335 "speaks of exceptions that would allow even priests who have acted against the celibacy law and therefore have been suspended from their office, to administer the sacraments." Previously such priests were forbidden to administer the sacraments following marriage. Canon 1335, Ludicke said, envisions "situations in which no other priest is available."

Ludicke, author of a four-volume commentary on the Code of Canon Law, also noted that 1335 lifts the prohibition against administering the sacraments "if a penalty which has been incurred automatically by force of the law has not been declared publicly."

According to his interpretation, the bishop must do more than write a letter to a priest who seeks and obtains dispensation from his celibacy vow. The bishop must, Ludicke said, undertake a canonical process outlined in Canon 1720 whose final act is a formal declaration of suspension "by a degree of punishment."

Such a process was never undertaken against Vogels, who was ordained on Feb. 2, 1959, sought and received laicization under Pope Paul VI and married on Feb. 2, 1979. "I chose the same date to show that the two sacraments are compatible," said Vogels, author of Celibacy -- Gift or Law?

Rome is responsible

Formal suspension processes are not taking place in Germany. "The penal code is not applied," Ludicke said. Hardly any canon lawyer in Germany occupies himself with such questions, he added.

Despite attempts -- by Cardinal Franjo Seper, prefect of the Congregation for the Doctrine of the Faith, and others -- to alter part of the canon in 1981 during talks on revision of the code, the commission did not see a necessity to act and kept the text as it was, said Ludicke, who maintains that "Rome itself is responsible for this problem."

Still, Ludicke believes that the code's revisers did not deliberately allow a canon that accommodates "ruptures in the discipline of celibacy." What is meant by "any just cause" in the canon has yet to be clarified, he said. Preserving the church's law on celibacy cannot be a just reason, he maintains, but the laity's "spiritual needs" are.

The ball is now in Saier's court, said Ludicke, and the prelate can act unilaterally -- without consulting Rome -- to forbid all married priests from celebrating the Eucharist in his diocese.

The wording of Canon 1335 is "unequivocal," Ludicke said. To prevent an entire congregation from acting according to the general law could prove difficult. "Today it isn't possible to declare an interdict over a whole parish as it was in the Middle Ages," he said.

Nevertheless, during the intervening weeks, Saier did act unilaterally, issuing a general decree that no suspended priest may celebrate Mass in the Freiburg-Breisgau archdiocese.

After the decree, the parish council was summoned Feb. 7 to Freiburg for a talk with the vicar general in a meeting that included "very open and emotional dialogue," according to some who attended.

Later that same day, 150 parishioners met in Volkertshausen and were told by the local dean that the archbishop was not able to change the law and that parishioners must content themselves with two Masses per month.

Vogels said the German action, while falling short of securing the services of a married priest, has nevertheless moved the discussion in some circles from celibacy to the rights of Catholics to have their spiritual needs met. Moreover, he argues that in Germany "whole parishes are in danger of death unless they get the Eucharist. Without the Eucharist, there is no life in the parish community."

Vogels, who attended a conference of married priests last summer in Brazília, Brazil, claimed that large numbers of Latin American Catholics have "gone to sects" because of "insufficient or no priests. They've only catechists who can't say Mass."

In fact one quarter of the world's parishes are without resident priests, Bishop Kenneth Untener of Saginaw, Mich., wrote in a pastoral letter on vocations Nov. 25. Vogels, using Vatican statistics, said that some 60,000 men have been dispensed since 1964 when "the possibility of being released from the celibacy obligation was invoked." Another 30,000 married in civil ceremonies, he said, not bothering to wait for Rome's dispensation, which can take up to 10 years, he said.

In the United States, there are some 22,000 to 23,000 married priests, of whom approximately "one-third would like to be reactivated" for full- or part-time work, said Terry Dosh of Minneapolis, a married priest who edits Bread Rising, a newsletter on church reform.

Would the German example or even recourse to Canon 1335's apparent loophole be the way to use these priests? Fr. James Coriden, canon law professor at Washington Theological Union, said he thinks not.

"I doubt it [the German example] will be relevant in the U.S. Whoever tries it will be cut off at the pass," he said. "I don't disagree with Ludicke. He's quite an authority." Still, those priests who have been dispensed are "forbidden to do what the German parishioners are asking," he said. "It's a condition of their rescript."

Whether U.S. bishops would use Canon 1720 to make a public declaration against a married priest seems unlikely in Coriden's view. "Our bishops have little taste for going through such formal processes," he said.

Rome's rule ignored

Coriden pointed to recent examples of North American bishops who had ordained married men as priests in Eastern rites that remain under Rome's rule. In December Melkite Catholic Bishop John Elya of Newton, Mass., ordained a married man with a wife and two children. And in 1994 Ukrainian Bishop Basil Filevich of Saskatoon, Saskatchewan, ordained a married man. Yet in 1929 Rome banned such ordinations in the United States and forbade them in Canada in 1930.

Canonists are divided on whether the new 1990 Eastern law code abrogates the previous ban. Jesuit Fr. Clarence Gallagher, dean of the Eastern canon law faculty at the Oriental Institute in Rome, told Catholic News Service last month that a dubium iuris or doubt of law exists and that in such situations the local bishop can give his dispensation.

So far Rome has said nothing to either bishop. " 'Who is silent gives consent' is an ancient principle of law," Gallagher said. Bishop Elya said he saw no reason to seek Rome's permission in light of the revised code. "I am very much in need of priests. I just used my own judgment," he told CNS.

Anthony Padovano expects that the German situation "will be replicated often and in many different parts of the world. A married priest may celebrate sacraments for people in danger of death," he noted. This danger "should be seen not only physically but spiritually and morally," said Padovano, a theologian and professor, who is president of CORPUS, the U.S. association for a married priesthood.

Using the "danger of death" argument for a whole community is a "reach" in Coriden's view. But "access to the Eucharist is of such value to Catholics that we'd tolerate people not in good standing in order to have it," he said.

Fr. James H. Provost, who chairs the canon law faculty at Catholic University, saw the German example as "an exception in law, and exceptions have to be interpreted strictly."

Prior to 1983 priests who married were excommunicated, whereas now they are declared suspended. It is by doing the act that the penalty is incurred automatically, whether it is known about or not, he said.

If a married priest "flouts the law," he forces the bishop to declare the suspension, Provost said. That's why the revisers of canon law did not change the law, as suggested by Seper and others in 1981. They felt that the way to solve the problem -- or close the loophole -- is to declare the penalty rather than change the law.

Since the time of Jesus the church's law has been that "married men can be ordained priests, but ordained men can't marry," Provost said. This is basic for all Orthodox ordinations and is the reason why ordained men -- whether priests or deacons -- can't remarry if widowed, he noted.

The fact that we're accepting married priests from other denominations "means we don't recognize their ordinations as valid," he said. Since 1981 some 70 married Episcopal priests as well as half a dozen Lutheran, Methodist and Presbyterian clerics have become Catholic priests in the United States.

Provost said that there are many differences between the church's official line toward them and "what's happening in practice."

As far as the law of celibacy goes, he noted that people didn't like the rule when it was proclaimed 800 years ago. "The situation hasn't changed, but then neither has Rome's thinking on it."

If change comes, it won't arrive by canonical edict, but "will be won ultimately in the marketplace," said Msgr. Kenneth Lasch, a canonist who is pastor of St. Joseph's Church in Mendham, N.J. He pointed to poll after poll that indicate the acceptance of women priests and of a married clergy by growing percentages of American Catholics.

Polls don't change rule

But just as polls don't bend church rule, so also the case for a married clergy won't be made on the basis of a vocation crisis, but rather "on the valid premise that a married priesthood reflects the reality of Catholic life," he said.

The issue is theological and pastoral, Lasch stressed, and thus must be dealt with "in the minds and hearts of the people at the level of the ancient sensus fidelium."

While some still believe that the clergy in the Western church must be celibate, "many more believe that there's no reason why the gift of marriage and the gift of celibacy can't reside in the same person," Lasch said, pointing to the restored diaconate and the priesthood in the Eastern church.

But Jesuit Fr. Ladislas Orsy, author and lawyer, is more pessimistic. "It's terribly nice to think that something of such a long tradition will be overturned." Still he points to numerous times throughout history when the rule of celibacy could have been overturned, but was not -- not during the French Revolution, not during the anticlerical campaigns in Latin America and elsewhere, not at Vatican Council II and not even at a synod on priests in the 1970s when, Orsy said, Pope Paul VI was not against changing the rule.

Orsy, a visiting professor at Georgetown University Law Center, thought that so-called reform movements will have little impact on Vatican thinking about a married clergy. Collecting signatures -- whether they are from l.8 million Germans, 500,000 Austrians, 70,000 Swiss Catholics or 500 theologians -- "means nothing to Rome. This is the misguided thinking of those in a democracy. There is a deep instinct to discount these numbers in the Vatican: They don't know who the signers are or how qualified they are," the Hungarian priest said.

Orsy noted that in the case of accepting married clerics from the Anglican and other Protestant traditions into the church, "the law once held absolute has been broken. ... Because they found room for Anglicans and Protestants, they may find room for married priests," he said.

Msgr. Thomas J. Green, a professor of canon law at Catholic University, also believes that it's wise to study the experience that other churches have had with a married clergy before making any decision. To date the church has looked at individual married men who sought to convert to Catholicism rather than at the overall picture of a married priesthood and its effects on other churches, he said.

Green regretted that the church has not made "appropriate use of the services" of men who've left the priesthood to marry. "I believe we've been overly punitive," he said. Nevertheless, the importance of the German case -- he and other canonists noted -- is that it raises the broader question of the rights of the faithful to the sacraments.

"It's the obligation of our bishops to provide for this," Green said.

But allowing a married clergy will open a "can of worms" for the church, said Fr. John Jay Hughes, a consultant to the St. Louis archdiocese. "We'll see divorce, marital stress, extramarital affairs," he said.

Hughes, a celibate Episcopal priest, converted to Catholicism in 1960 and was ordained as a Catholic priest in 1968.

Hughes finds a great difference between clergymen in other denominations who convert to Catholicism and resigned married priests. "It's a difference between clear-headedness and being a bleeding heart," he said. He noted that many Episcopal priests have given up their careers to serve in the Catholic church. "Some are living on food stamps," he said.

"If a (Catholic) priest decides he can't live a celibate life, that's fine ... but he has to be willing to live with the consequences and not be clamoring to come back," Hughes said.

National Catholic Reporter, February 21, 1997