Seeking a loophole to keep the
Eucharist
By PATRICIA LEFEVERE
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
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