Guarding the Flock: A Canon Lawyer’s Advice to Bishops on Latest Vatican Crackdown on Tradition
Written by Diane Montagna | Vatican Journalist
The Church Militant
New York canonist Father Gerald Murray has said that a recent Vatican document on applying Traditionis Custodes goes beyond what is canonically possible in restricting the celebration of most of the traditional sacraments and that bishops are free to dispense with its disciplinary provisions if they judge them to be unfavorable to their flock.
In an interview with The Remnant, Father Murray discusses in detail the canonical questions surrounding the Responsa ad dubia issued on December 18, 2021 by Archbishop Arthur Roche, Prefect of the Congregation for Divine Worship and the Discipline of the Sacraments (CDW), and approved one month prior by Pope Francis.
Although he contends the Responsa is “an instruction having the force of law,” he also firmly maintains that a bishop is able to apply or not apply its disciplinary instructions for the “spiritual welfare” of his flock.
He further argues that a bishop need not ask the CDW for a dispensation to allow the celebration of the traditional Latin Mass (TLM) in parish churches, and he questions the canonical regularity of the requirement found in the Responsa that bishops must seek authorization from the CDW to grant permission to a newly ordained priest to offer Mass using the 1962 Missal. The latter, he said, also represents an “unwarranted interference” in the bishop’s role of moderating the liturgical life in his diocese.
Father Murray, co-author (with this journalist) of the forthcoming book “Calming the Storm: Navigating the Crises facing the Catholic Church and Society” (Emmaus Road Publishing, 2022), also discusses how the Responsa impacts Ecclesia Dei institutes, the “anomaly” it creates of SSPX priests enjoying papal authorizations denied to canonically regular priests, and questions over the entire legitimacy of Traditionis Custodes.
Bishops, he said, need to make known their concerns about this document to the Holy See.
Here is the full interview with Fr. Gerald Murray.
Bishops should make known to the Holy See that they are disturbed and upset about the harsh measures being taken against their faithful who attend the TLM.
Diane Montagna (DM): Fr. Murray, canonically speaking what sort of document is the Responsa ad dubia (e.g., instruction, law, decree, or administrative act)? As such, what legal force does it have, and is it subject to the Church’s law?
Fr. Murray (FM): The Apostolic Constitution Pastor Bonus regulates the activities of the various Congregations of the Roman Curia. Article 15 states that “questions are to be dealt with according to law…yet with pastoral means and judgments, attentive to justice and the good of the Church and especially to the salvation of souls.” Article 18 states: “Decisions of major importance are to be submitted for the approbation of the Supreme Pontiff…” It further states that a congregation “cannot issue laws or general decrees having the force of law or derogate from the prescriptions of current universal law, unless in individual cases and with the specific approbation of the Supreme Pontiff.”
The Responsa expresses a will to hasten what Pope Francis wrote in his Letter accompanying TC, namely that he wants the bishops to cooperate with him in doing away over time with the celebration of the Traditional Latin Mass (TLM).
The Responsa ad dubia (Responsa), which is addressed to the Presidents of Bishops Conferences, is not in the form of a law or a general decree but rather seems to fall into the category of an instruction according to canon 34 of the Code of Canon Law. Yet this title is not given to the document by the Congregation for Divine Worship (CDW). Instructions “set out the provisions of a law [in this case, Traditionis custodes (TC)] and develop the manner in which it is to be put into effect” and “are given for the benefit of those whose duty it is to execute the law, and they bind them in executing the law” (canon 34 §1).
The Prefect of the CDW, Archbishop Arthur Roche, in his letter presenting the Responsa, states that the CDW received “several requests for clarification on [the]correct application” of TC. He obviously considered that the CDW’s answers to these requests would constitute a “decision of major importance” needing papal approbation. He states that Pope Francis was informed of the Responsa and that he assented to their publication. I thus conclude that the Responsa is an instruction having the force of law, binding the bishops of the Church to carry out the provisions of TC according to what the Responsa state, always, of course, in accordance with the general law of the Church which retains its force and guides us in the proper understanding and application of the Responsa.
The various determinations in the Responsa, which is neither a law nor a decree, are “decisions of major importance” that have been published at the direction of the Pope, and thus bind all bishops, not simply those who submitted one or more dubia. I also conclude that the “assent” given by Pope Francis to the publication of the Responsa is the legal equivalent of a papal “specific approbation” of a law or decree, thus giving this instruction the force of law. Thus, the provisions of the Responsa are binding upon the bishops and others who have canonical responsibility for seeing that the laws of the Church are observed, always keeping in mind the general law of the Church regarding the bishop’s power to dispense in disciplinary matters which retains its force unless specifically set aside by the Pope.
The diocesan bishop already has the power to dispense from this prohibition according to canon 87 §1. There is no need to seek from CDW what he already enjoys by virtue of the general law of the Church.
DM: You mention the Pope’s assent. In his introduction to the Responsa, Archbishop Roche writes that Pope Francis, “in the course of an audience granted to the Prefect of this Congregation on 18 November 2021, was informed of and gave his consent to the publication of these Responsa ad dubia with attached Explanatory Notes.” Can you say more about what sort of approval this is, canonically speaking? And does such approval render it an act of the legislator or of the dicastery?
FM: The papal “assent” makes this document an act of the pope, the supreme legislator, thus making it not subject to canonical recourse, meaning you cannot lodge a canonical complaint against the Responsa with the CDW. Canon 333 §3 states: “There is neither appeal nor recourse against a judgement or a decree of the Roman Pontiff.” The Responsa is neither a judgement nor a decree, but I think it falls within the scope of this canon by an analogy of law, meaning that as an instruction specifically approved by the pope the Responsa enjoys the same immunity to canonical recourse as does a decree.
DM: On several points, which we’ll look at more in detail later, the Responsa seems to go beyond or against Traditionis Custodes. You have said that, in your view, this document seems to fall under the category of an instruction. Can such a document legitimately go beyond the document it is intended to clarify?
FM: Given that the Responsa were published with papal “assent” they express the mind and intention of the pope concerning the meaning and application of TC. It is clear that various provisions in the Responsa go beyond the provisions of TC and regulate matters not raised in TC. This manner of answering doubts about the meaning of TC by issuing new binding legal provisions would be beyond the competence of the CDW, and thus subject to canonical recourse, if the document had been published without the “specific approbation” of the pope. The papal “assent” given to the Responsa constitutes the necessary “specific approbation” of these new provisions, making this document an act of papal legislating. This instruction enjoying specific papal approbation can establish new canonical norms regarding the provisions of TC because that approbation makes it an act of the supreme legislator who manifestly intends that such new norms enjoy legal force in the Church. But as an instruction, any new norms can only be legally binding about those matters specifically treated in TC. An instruction about a document cannot go beyond what that document itself establishes.
DM: Can an instruction issued by the prefect of a Vatican dicastery restrict or override the prerogatives of bishops and priests established in the Code of Canon Law or the Second Vatican Council, e.g., a bishop’s power to dispense from the law (canon 87 §1)?
FM: The provisions of canon 87 §1 that permit the diocesan bishop, for reasons of “spiritual welfare,” to dispense from disciplinary “universal laws and those particular laws made by the supreme ecclesiastical authority for his territory or his subjects” remain in place, unless the pope specifically reserves such dispensation to himself or to some other authority. No such reservation is stated in TC nor in the Responsa.
I would argue that since TC makes no provision withdrawing the permission found in article 9 §1 of SP for the celebration of the sacraments of Baptism, Confirmation, Penance, Marriage, and the Anointing of the Sick, that permission is still canonically in effect following the promulgation of TC.
DM: The Responsa ad dubia was published five months after Traditionis Custodes. Within this timeframe, although a few bishops used TC to crack down on the traditional liturgy in their dioceses, many more bishops responded with a “wait and see” policy. The general reaction of bishops is consonant with reports that, in response to a 2020 survey of bishops by the Congregation for the Doctrine of the Faith (CDF), the majority favored continuing forward with a careful and prudent application of Summorum Pontificum. To many, the Responsa seems focused on corralling the bishops into a determined outcome regarding the traditional Latin Mass. What is your view?
FM: The Responsa expresses a will to hasten what Pope Francis wrote in his Letter accompanying TC, namely that he wants the bishops to cooperate with him in doing away over time with the celebration of the Traditional Latin Mass (TLM). He instructed them: “It is up to you to proceed in such a way as to return to a unitary form of celebration and to determine case by case the reality of the groups which celebrate with this Missale Romanum. Indications about how to proceed in your dioceses are chiefly dictated by two principles: on the one hand, to provide for the good of those who are rooted in the previous form of celebration and need to return in due time to the Roman Rite promulgated by Saints Paul VI and John Paul II, and, on the other hand, to discontinue the erection of new personal parishes tied more to the desire and wishes of individual priests than to the real need of the ‘holy People of God’.’” Pope Francis concluded his Letter with another appeal to unify all Latin Rite Catholics in the celebration of the Novus Ordo Mass: “Upon you I invoke the Spirit of the risen Lord, that he may make you strong and firm in your service to the People of God entrusted to you by the Lord, so that your care and vigilance express communion even in the unity of one, single Rite, in which is preserved the great richness of the Roman liturgical tradition.”
DM: Considering the nature and extent of the canonical duties of a bishop, may a bishop disregard this document, especially whenever he finds it goes against or is more restrictive than the law contained in Traditionis Custodes?
FM: Bishops may not disregard the Responsa as they are obliged to obey the Supreme Pontiff when he issues canonical norms to govern the activity of the Universal Church. This obedience is carried out according to the Code of Canon Law and other universal laws that regulate the exercise of papal and episcopal authority. The dispensing powers granted in canon 87 may be used as judged appropriate by a bishop in his diocese. Such a decision is not a form of disobedience of TC or the Responsa, but rather a pastorally justified exercise of a bishop’s legitimate authority for the “spiritual welfare” of the faithful of his diocese.
The Responsa offers authoritative instructions about provisions that are not found in the document it is clarifying, and in doing so goes beyond what is canonically possible.
DM: Archbishop Roche justifies several of his responses (e.g., 1, 2, 5) by invoking TC art. 7, which states: “The Congregation for Divine Worship and the Discipline of the Sacraments and the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, for matters of their particular competence, exercise the authority of the Holy See with respect to the observance of these provisions.” How is this authority limited?
FM: Canon 87 §1 grants power to diocesan bishops to dispense from disciplinary laws when he judges this to be advisable for the “spiritual welfare” of his flock. The general law of the Church grants this power, which can only be taken away by the Roman Pontiff when he “specially reserves” the power of dispensation “to the Apostolic See or to some other authority.” He has not done so in either TC or the Responsa.
Response to question 1
DM: Let’s look more closely at the canonical issues in several of the responses. The response to question 1 regards TC’s provision forbidding the celebration of the 1962 Mass for ‘groups’ in parish churches. The Congregation for Divine Worship says that a bishop may ask the congregation for a dispensation from this provision. Is the granting of such dispensations really reserved to the congregation? And is the CDW here violating canons 87 and 18 of the Code of Canon Law by assigning to itself this authority?
FM: The first question presented in the Responsa is: “When it is not possible to find a church, oratory or chapel which is available to accommodate the faithful who celebrate using the Missale Romanum (Editio typica 1962), can the diocesan Bishop ask the Congregation for Divine Worship and the Discipline of the Sacraments for a dispensation from the provision of the Motu Proprio Traditionis custodes (Art. 3 § 2), and thus allow such a celebration in the parish church?” The answer is “Affirmative.” The diocesan bishop already has the power to dispense from this prohibition according to canon 87 §1. There is no need to seek from CDW what he already enjoys by virtue of the general law of the Church.
Bishops are authorized to confer the sacrament of Holy Orders using the older Roman Pontifical on behalf of the Ecclesia Dei.
The response to this first question is followed by an Explanatory Note that states:
“This Congregation, exercising the authority of the Holy See in matters within its competence (cf. Traditionis custodes, n. 7), can grant, at the request of the diocesan Bishop, that the parish church be used to celebrate according to the Missale Romanum of 1962 only if it is established that it is impossible to use another church, oratory or chapel. The assessment of this impossibility must be made with the utmost care.”
This provision does not indicate that a dispensation from the prohibition of celebrating the TLM in parish churches contained in TC article 3.2 is specially reserved to the Apostolic See and therefore cannot be granted by the diocesan bishop (canon 87 §1). Thus, the bishop is not obliged to seek such a dispensation from the CDW.
DM: The Congregation goes on to require that celebrations of Holy Mass using the 1962 Missal not be advertised in parish bulletins, a provision which clearly goes beyond Traditionis Custodes. Is the CDW overstepping its authority here in attempting to micromanage parish bulletins?
FM: This provision is remarkable. The language, however, is not that of a strict prohibition. The Italian language version of the Responsa, which is presumed to be the standard text from which the English language version was created, states: “non è opportuno che venga inserita nell’orario.” The English translation of “non è opportuno” is “it is not appropriate, it is not opportune, it is not suitable, it is not fitting.” This language is not a strict prohibition, but rather a judgement of the CDW on what it finds appropriate for insertion in the parish bulletin. One can disagree with that judgement for a good reason. A plainly good reason would be that a parish bulletin by its nature is meant to inform parishioners and other interested persons about all the activities carried out on a regular basis at the parish.
We have the anomalous situation in which priests of the SSPX, who are in a canonically irregular situation, are authorized by Pope Francis to use the Roman Ritual, while most canonically regular priests are denied this possibility.
DM: Archbishop Roche has said publicly that promoting the TLM is a problem. In a recent interviewwith Catholic News Service, he said: “What was clearly the case from the questionnaire that the Holy Father put out from the Congregation for the Doctrine of the Faith was that this was not simply now caring for those who found it difficult [to move forward with the Novus Ordo Mass], but this was actually promoting the liturgy that existed before the Council.” Given the declaration of Sacrosanctum Concilium 4 that “holy Mother Church holds all lawfully acknowledged rites to be of equal right and dignity [and] that she wishes to preserve them in the future and to foster them in every way,” how can the promotion and preservation of the historic Roman Rite be a problem to be solved?
FM: Caring for the spiritual welfare of the faithful by allowing those who find inspiration and strength in TLM to worship in this extraordinary form of the Roman Rite was precisely the reason why Pope Benedict issued Summorum Pontificum [SP]. Such pastoral care extends to all those who desire to worship in this manner, and Pope Benedict never intended that there would be a cut-off date, such that anyone born after the Novus Ordo came into use was ineligible to attend the TLM. What is good in and of itself, including an immemorial form of Catholic worship, should be promoted by the Church. Any implication that Catholics who did not grow up attending the TLM before Vatican II ought not to attend the TLM is pastorally insensitive and ignores the fact that many younger Catholics have been peacefully attending the TLM since Pope John Paul II liberalized its celebration 33 years ago in 1988.
Response to question 2
DM: The CDW’s response to question 2 restricts the use of the Roman Ritual and forbids the use of the Roman Pontifical. In doing so, it goes beyond Traditionis Custodes. Are bishops therefore within their right to disregard it, employing canon 18 or 87? And is this restriction of a bishop’s powers ultra vires?
FM: TC does not mention the Roman Ritual, the Roman Pontifical, nor for that matter the Roman Breviary (whose use is also not treated in the Responsa) that were in use in 1962. TC simply mentions the 1962 edition of the Roman Missal. Article 8 of TC states: “Previous norms, instructions, permissions, and customs that do not conform to the provisions of the present Motu Proprio are abrogated.” I would argue that since TC makes no provision withdrawing the permission found in article 9 §1 of SP for the celebration of the sacraments of Baptism, Confirmation, Penance, Marriage, and the Anointing of the Sick, that permission is still canonically in effect following the promulgation of TC. Likewise, TC did not abrogate article 9 §3 of SP which states: “[o]rdained clerics may also use the Roman Breviary promulgated in 1962 by Blessed John XXIII.” TC did not abrogate SP as a whole, but only those provisions of SP that “do not conform to the provisions of” TC. The new restrictions on the use of the Roman Ritual, and the prohibition of the Roman Pontifical, found in the Responsa are not found in the text of TC, and contradict the unabrogated provisions of article 9 of SP. What TC does not mention is clearly not regulated by TC. The Responsa offers authoritative instructions about provisions that are not found in the document it is clarifying, and in doing so goes beyond what is canonically possible. Thus, there is a well-founded doubt that these provisions enjoy canonical force. I would argue, in any event, that the unabrogated provisions of SP 9 remain in effect as a papal Motu Proprio prevails over an instruction such as the Responsa of the CDW, even with its papal approbation. It is interesting to note that SP does not grant permission for the administration of the sacrament of Holy Orders according to the Roman Pontifical in use in 1962. The Ecclesia Dei congregations, however, enjoy the use of the older Roman Pontifical according to their pontifically approved constitutions, which retain their force and are not in any way modified by TC or the Responsa.
This anomaly of canonically irregular priests enjoying papal authorizations denied to canonically regular priests highlights the problems with TC and the Responsa.
DM: In the response to question 2, Archbishop Roche says that the diocesan bishop is not authorized to grant permission to use the Roman Pontifical (which contains sacraments normally conferred by a bishop, such as ordination and confirmation), but it does not say that he cannot use it himself. May he?
FM: This is an interesting question. Canon 17 states: “Ecclesiastical laws are to be understood according to the proper meaning of the words considered in their text and context.” The Responsa states: “After discernment the diocesan Bishop is authorized to grant permission to use only the Rituale Romanum (last editio typica 1952) and not the Pontificale Romanum which predate the liturgical reform of the Second Vatican Council.” Strictly taking the words as written, the diocesan bishop is not authorized by the Responsa to grant permission to another bishop to administer Confirmation in his diocese using the older Roman Pontifical, but it does not say that he himself is not authorized to use the Roman Pontifical. It is poorly written, as it should have specified that both the diocesan bishop and any other bishop are not authorized to use the Roman Pontifical. This I believe is the intent of the Responsa. Therefore, the context of the Responsa indicates that all bishops are not authorized to use the Roman Pontifical. But I contend above that TC did not abrogate the provisions of SP 9 permitting the use of the Roman Pontifical for the administration of the sacrament of Confirmation. I also note that there is an exception regarding the use of the Roman Pontifical for the conferral of Holy Orders which should have been noted in the Responsa, namely that bishops are authorized to confer the sacrament of Holy Orders using the older Roman Pontifical on behalf of the Ecclesia Dei congregations which, by their constitutions, enjoy the use of the older liturgical books including the Roman Pontifical.
DM: In the Year of Mercy, Pope Francis gave faculties to the SSPX to use both the Roman Ritual and the Roman Pontifical. Doesn’t this prove that these books and rites are in fact part of the lex orandi of the Latin Church and are not “abrogated”?
FM: In a letter of September 1, 2015, Pope Francis wrote:
“A final consideration concerns those faithful who for various reasons choose to attend churches officiated by priests of the Fraternity of St Pius X. This Jubilee Year of Mercy excludes no one. From various quarters, several Brother Bishops have told me of their good faith and sacramental practice, combined however with an uneasy situation from the pastoral standpoint. I trust that in the near future solutions may be found to recover full communion with the priests and superiors of the Fraternity. In the meantime, motivated by the need to respond to the good of these faithful, through my own disposition, I establish that those who during the Holy Year of Mercy approach these priests of the Fraternity of St Pius X to celebrate the Sacrament of Reconciliation shall validly and licitly receive the absolution of their sins.”
Is it likely that the SSPX will continue to seek to be fully reconciled with the Church knowing that this papal authorization is no longer given to most priests of the Latin Rite?
A year later he extended this faculty beyond the Holy Year in his Apostolic letter Misericordia et misera of November 20, 2016:
“For the Jubilee Year I had also granted that those faithful who, for various reasons, attend churches officiated by the priests of the Priestly Fraternity of Saint Pius X, can validly and licitly receive the sacramental absolution of their sins. For the pastoral benefit of these faithful, and trusting in the good will of their priests to strive with God’s help for the recovery of full communion in the Catholic Church, I have personally decided to extend this faculty beyond the Jubilee Year, until further provisions are made, lest anyone ever be deprived of the sacramental sign of reconciliation through the Church’s pardon.”
A Letter of the Pontifical Ecclesia Dei Commission dated March 27, 2017, approved by Pope Francis, and signed by Gerhard Cardinal Mueller states regarding the celebration of marriages by priests of the Society of St. Pius X [SSPX], founded by Archbishop Marcel Lefebvre:
“[T]he Holy Father, following a proposal by the Congregation for the Doctrine of the Faith and the Pontifical Commission Ecclesia Dei, has decided to authorize Local Ordinaries the possibility to grant faculties for the celebration of marriages of faithful who follow the pastoral activity of the Society, according to the following provisions. Insofar as possible, the Local Ordinary is to grant the delegation to assist at the marriage to a priest of the Diocese (or in any event, to a fully regular priest), such that the priest may receive the consent of the parties during the marriage rite, followed, in keeping with the liturgy of the Vetus ordo, by the celebration of Mass, which may be celebrated by a priest of the Society. Where the above is not possible, or if there are no priests in the Diocese able to receive the consent of the parties, the Ordinary may grant the necessary faculties to the priest of the Society who is also to celebrate the Holy Mass, reminding him of the duty to forward the relevant documents to the Diocesan Curia as soon as possible.”
These papal authorizations were not rescinded by TC nor by the Responsa. So we have the anomalous situation in which priests of the SSPX, who are in a canonically irregular situation, are authorized by Pope Francis to use the Roman Ritual, while most canonically regular priests are denied this possibility. The Responsa states:
“The diocesan Bishop is authorized to grant permission to use only the Rituale Romanum (last editio typica 1952) and not the Pontificale Romanum which predate the liturgical reform of the Second Vatican Council. He may grant this permission only to those canonically erected personal parishes which, according to the provisions of the Motu Proprio Traditionis custodes, celebrate using the Missale Romanum of 1962.”
It could be reasonably concluded that the goal expressed in TC and the Responsa of a uniformity of the lex orandi of the Latin Rite really means the suppression of only one expression that is different from the reformed liturgical rites.
Pope Francis’ praiseworthy generosity is denied to priests who fully submit to his authority, unless they are part of the small number assigned to personal parishes dedicated to celebrating the TLM. These permissions again highlight that the assertion that only the reformed liturgical books make up the lex orandi of the Church is refuted by this papal authorization to continue using the older rites. It should be noted that the SSPX was not given authorization by Pope Francis to use the Roman Pontifical.
DM: As you mention, we now have a situation where the SSPX’s use of these liturgical books and rites is accepted and normalized, but their use by diocesan priests is being severely restricted. Doesn’t this reality render both Traditionis Custodes and the Responsa contradictory and nonsensical? Are bishops well within their rights to disregard this, employing canon 14, according to which a law that is doubtful or contradictory, especially when restrictive, does not oblige?
FM: This anomaly of canonically irregular priests enjoying papal authorizations denied to canonically regular priests highlights the problems with TC and the Responsa. The Pope is very generous in providing for the valid administration of the sacrament of penance and the valid reception of marriage vows by SSPX priests. In Misericordia et misera, Pope Francis states that his motivation for authorizing SSPX priests to validly absolve in the sacrament of penance while remaining in a canonically irregular status is “[f]or the pastoral benefit of these faithful, and trusting in the good will of their priests to strive with God’s help for the recovery of full communion in the Catholic Church…”. Thus the papal authorization of SSPX priests, who only use the sacramental rites found in the older Roman Ritual, to administer the sacrament of penance carries with it the hope of promoting the “recovery of full communion in the Catholic Church.” Is it likely that the SSPX will continue to seek to be fully reconciled with the Church knowing that this papal authorization is no longer given to most priests of the Latin Rite? How is it just that disobedience is, in effect, rewarded with the authorized use of older liturgical rites in the hope of restoring full unity with the Church, while priests who are obedient to the Pope are prohibited from using those same rites under the contention that such use promotes disunity in the Church?
As the leaked documents from the survey of the world’s bishops regarding SP revealed, the majority of responding bishops were either positive or neutral about the TLM in their dioceses.
DM: In his explanatory note to question 2, Archbishop Roche asserts: “The Motu Proprio Traditionis custodes intends to re-establish in the whole Church of the Roman Rite a single and identical prayer expressing its unity, according to the liturgical books promulgated by the Popes Saint Paul VI and Saint John Paul II, in conformity with the decrees of the Second Vatican Council and in line with the tradition of the Church.” You note that it’s highly unlikely that the SSPX would seek to be completely reconciled with the Holy See at this point. What, in your view, are the implications for the Ordinariate established by Benedict XVI?
FM: The unity of the Church does not depend upon “a single and identical prayer” but rather on the common profession of the Catholic Faith, the due submission to the Church’s pastors, and the reception of the sacraments which are celebrated in a variety of liturgical rites in both the Eastern Catholic Churches and the in the Latin Rite (Ambrosian Rite, Ordinariate Rite for former Anglicans, Dominican Rite, et al.). The continuing, if restricted, papally authorized use of the TLM also demonstrates that the unity of the Church in no way depends upon a uniformity of liturgical practice. Seeking to enforce liturgical uniformity in the Latin Rite would logically entail suppressing all the other liturgical rites currently in use in the Latin Church. Otherwise, it could be reasonably concluded that the goal expressed in TC and the Responsa of a uniformity of the lex orandi of the Latin Rite really means the suppression of only one expression that is different from the reformed liturgical rites. Hence it would not be uniformity that is sought, but rather the suppression of the TLM alone.
No priest can be canonically compelled to concelebrate Mass as canon 902 states.
Response to question 3
DM: The third question in the Responsa is: “If a Priest who has been granted the use of the Missale Romanum of 1962 does not recognize the validity and legitimacy of concelebration – refusing to concelebrate, in particular, at the Chrism Mass – can he continue to benefit from this concession?” The answer is “Negative.” Is this effectively an attempt to force concelebration in violation of Canon 902?
FM: The clear presumption of this question is that a priest who chooses not to concelebrate at the Chrism Mass or at other Masses, as is his right, is suspected of not recognizing the validity and legitimacy of concelebration itself. The Responsa states: “The explicit choice not to take part in concelebration, particularly at the Chrism Mass, seems to express a lack of acceptance of the liturgical reform and a lack of ecclesial communion with the Bishop…” That is an unwarranted suspicion and presumes that it is likely that the priest rejects concelebration as valid and legitimate, rejects the liturgical reform as a whole, and lacks ecclesial communion with the bishop in addition. Such rash conclusions about the intentions of priests who choose not to concelebrate Mass cast these men in the position of being presumed guilty of grave offenses for simply exercising their canonical right to celebrate Mass individually.
No priest can be canonically compelled to concelebrate Mass as canon 902 states that “priests may concelebrate the Eucharist; they are, however, fully entitled to celebrate the Eucharist individually.” Thus, a decision to not concelebrate Mass is perfectly lawful in itself, and should not form the basis for a suspicion that any particular priest who makes the choice not to concelebrate does so because he “does not recognize the validity and legitimacy of concelebration.” Only direct evidence that a priest believes that concelebration of the Mass is invalid and illegitimate should lead to that priest being asked by his ecclesiastical superior to correct this erroneous contention or face canonical sanctions. Concelebration remains a free choice of every priest, with the possible exception of the Mass celebrated at his priestly ordination where the ritual presumes that the newly ordained priest will concelebrate the Mass with the ordaining bishop from the point immediately following his ordination.
If the Holy See does not require bishops to seek permission to ordain a man to the priesthood whom the bishop finds suitable after lengthy and serious evaluation, why should the bishop be required to gain permission for granting authorization to that priest to celebrate the TLM?
Response to question 5
DM: The fifth question in the Responsa is: “Does the diocesan Bishop have to be authorised by the Apostolic See to allow priests ordained after the publication of the Motu Proprio Traditionis Custodes to celebrate with the Missale Romanum of 1962 (cf. Traditionis Custodes, n. 4)? The answer is “Affirmative.”
Archbishop Roche justifies his response by asserting that the Latin text, which he says is “the official text to be referenced” uses the word “licentiam,” which is “not merely a consultative opinion, but a necessary authorization given to the diocesan Bishop by the Congregation for Divine Worship and the Discipline of the Sacraments, which exercises the authority of the Holy See over matters within its competence. (cf. Traditionis custodes, n. 7).” However, when the Holy See published Traditionis Custodes on July 16, 2021, the Italian text was the “original text,” not the Latin. The daily bulletin of that day still indicates this on the Vatican website.
In fact, the Latin text did not appear on the Vatican’s website until mid to late November. This new Latin version, requiring a “licentiam,” (a previous binding consultation) alters the Italian original text of art. 4 of Traditionis Custodes, which only mentioned an obligatory previous consultation but a non-binding one. The official English translation and the other languages follow the Italian. If the Latin version is not the princeps, doesn’t the responsum violate can. 18 and Traditionis Custodes itself?
FM: This change found in the Latin version of the Responsa is stunning, given that the Responsa was issued on July 16, 2021, in Italian, with translations into English and German issued that same date. In the Italian original, the diocesan bishop was required to “consult the Apostolic See” about any request from a priest ordained after July 16, 2021, to be authorized to celebrate the TLM. In the Responsa, reference is made to the Latin text of TC, which is designated “the official text to be referenced”. As you noted, the Latin text was put up on the Vatican website in November 2021, months after the July 16th publication of the Italian text from which translations were made into other modern languages. The Latin text is clearly a translation of the Italian text into Latin, but it contains this substantive change in language which is, in fact, a change in law. The Italian version on the Vatican website, as of February 11, 2022, continues to state that the diocesan bishop “will consult the Apostolic See” before granting permission to newly ordained priests to celebrate the TLM. The English version, as of that same date, also continues to use the word “consult.”
Due submission to the Supreme Pontiff requires obedience to duly promulgated laws which regulate external behavior, not internal thoughts.
This procedure of changing a canonical provision from requiring a consultation with the Apostolic See to requiring an authorization from Apostolic See by changing the wording found in the previously issued Italian text (which the Holy See identified as the source from which the English and German translations were made) in the subsequently issued Latin text, now designated the official text, is an irregular way to modify legal obligations. The continuing discrepancy between the online Italian, English and Latin versions is remarkable. The imposition of a new obligation upon diocesan bishops via the issuance four months later of a Latin language version of a Motu Proprio dated July 16, 2021, that came into full legal effect on the day of its issuance, should have been done with prominent notification of this change to the world’s bishops, and should have clearly indicated that this change in law enjoyed specific papal approval.
The “Explanatory note” accompanying this new provision states: “This rule is intended to assist the diocesan Bishop in evaluating such a request: his discernment will be duly taken into account by the Congregation for Divine Worship and the Discipline of the Sacraments.” This is puzzling for two reasons: what assistance can the CDW provide regarding the suitability of a newly ordained priest to celebrate the TLM when the CDW has, apart from a rare exception, no information of its own about the priest? Isn’t the fact that the bishop decided to seek permission from the CDW to authorize the newly ordained priest to celebrate the TLM indicative, based on his own knowledge of the capabilities and characteristics of a man he judged suitable for ordination to the priesthood, that he is confident that this priest is suitable to celebrate the TLM? In other words, the presumption should be that a diocesan bishop will only seek permission from the Holy See for those newly ordained men who he knows are suitable and will not forward names of those whom he judges to be unsuitable. If the Holy See does not require bishops to seek permission to ordain a man to the priesthood whom the bishop finds suitable after lengthy and serious evaluation, why should the bishop be required to gain permission for granting authorization to that priest to celebrate the TLM? What is not asked by the Holy See regarding a greater matter (suitability for receiving the sacrament of Holy Orders) should not be asked of a lesser matter (suitability to celebrate the TLM), unless this new provision is not in fact about better certifying suitability to celebrate the TLM but about what the Responsa states in the next paragraph: “The Motu Proprio clearly expresses the desire that what is contained in the liturgical books promulgated by Popes Saint Paul VI and Saint John Paul II, in conformity with the decrees of the Second Vatican Council, be recognized as the unique expression of the lex orandi of the Roman Rite: it is therefore absolutely essential that Priests ordained after the publication of the Motu Proprio share this desire of the Holy Father.”
So a priest should not be asked to recognize something the CDW itself in practice does not recognize, namely that the TLM is not an expression of the lex orandi of the Roman Rite.
This paragraph reveals a concern that newly ordained priests may not “share this desire of the Holy Father” that what is contained in the reformed liturgical books “be recognized as the unique expression of the lex orandi of the Roman Rite…” Such recognition is “absolutely essential.” Thus, it appears that the CDW may use the occasion of deciding whether or not to grant permission to bishops to authorize newly ordained priests to celebrate the TLM to verify, nay to require, that the priest agrees with the Holy Father’s assertion that there is only one expression of the lex orandi of the Roman Rite, that is, the Novus Ordo Missae and the other reformed liturgical rites. This is puzzling and contradictory because the CDW, charged with regulating the lex orandi of the Roman Rite, is regulating who can celebrate the TLM, by asking that priests agree that the TLM is not an expression of the lex orandi of the Roman Rite. If that is true, then the priest needs no such permission from the CDW, as the CDW has no role in regulating something that is not recognized to be a liturgical expression of the lex orandi of the Roman Rite. In point of fact, there is more than one expression of the lex orandi of the Roman Rite, and the TLM is one of them. The CDW recognizes this by asserting its competence to regulate who may celebrate the TLM. So a priest should not be asked to recognize something the CDW itself in practice does not recognize, namely that the TLM is not an expression of the lex orandi of the Roman Rite.
I also note that it is problematic to assert that it is “absolutely essential” that priests ordained after the publication of TC share the “desire” of Pope Francis regarding the recognition of the reformed liturgical books as “the unique expression of the lex orandi of the Roman Rite.” Due submission to the Supreme Pontiff requires obedience to duly promulgated laws which regulate external behavior, not internal thoughts. Due submission cannot require the vague and indeterminate “sharing the desires” of any Supreme Pontiff as this would be a violation of the conscience of a priest who, for instance in the present case, was convinced that the provisions of SP of Pope Benedict XVI recognizing the TLM as a legitimate expression of the lex orandi of the Roman Rite, conform to a proper and historically accurate evaluation of the lex orandi. Compelling priests to accept the judgement of Pope Francis on a matter which is clearly subject to debate, that is, whether the Roman Rite has more than one expression of the lex orandi, as a condition of being authorized to celebrate the TLM would be an unjust use of the coercive power enjoyed by the CDW.
Canon 1321 § 1 states the principle in penal law that only external violations of law are punishable: “No one can be punished for the commission of an external violation of the law or precept unless it is gravely imputable by reason of malice or of culpability.” This means that someone who internally disagrees with a law or precept, but nonetheless observes that law or precept in his external behavior, cannot be punished for this disagreement in thought. By an analogy of law, in the matter of granting an authorization for the celebration of the TLM, the denial of such authorization on the basis that the priest does not share Pope Francis’ desire that the reformed liturgy be recognized as the unique expression of the lex orandi of the Roman Rite is not canonically permissible.
In the matter of granting an authorization for the celebration of the TLM, the denial of such authorization on the basis that the priest does not share Pope Francis’ desire that the reformed liturgy be recognized as the unique expression of the lex orandi of the Roman Rite is not canonically permissible.
DM: To follow up, in the response to question 5, Archbishop Roche says that: “This rule is intended to assist the diocesan Bishop in evaluating such a request: his discernment will be duly taken into account by the Congregation for Divine Worship and the Discipline of the Sacraments.” How is this not a case of a dicastery usurping the authority and role of local bishop as the main moderator and regulator of the liturgy?
FM: As I stated above, apart from a very rare case, the CDW has no independent information regarding a newly ordained priest. The diocesan bishop who seeks authorization for a newly ordained priest to celebrate the TLM has already found him to be suitable. To second guess his judgement on a matter in which he is in possession of the most complete information about the priest is an unwarranted interference in his role of moderating the liturgical life in his diocese.
Response to question 7
DM: According to response 7, the faculty granted by the diocesan Bishop to celebrate using the Missale Romanum of 1962 only applies to the territory of his own diocese. Are there any canonical problems here?
FM: The restriction to the territory of his diocese of the faculty granted by a diocesan bishop to celebrate the TLM to a priest under his authority will require that the priest seek this faculty whenever he travels outside of the diocese, even if the priest is seeking only a faculty for the private celebration of the TLM. This can be onerous, particularly if he is travelling in foreign countries where he is not planning to stay for any extended time.
It is, on the contrary, the recent actions taken to restrict and eventually eliminate the celebration of the TLM that have harmed the Church.
Responses to questions 10 and 11
DM: Questions 10 and 11 deal with bination, i.e., whether a priest may celebrate the Holy Mass using the 1962 Missal twice in one day, or after having already celebrated the Novus Ordo. In both cases, the explanatory note says: “It is not possible to grant bination on the grounds that there is no ‘just cause’ or ‘pastoral necessity’ as required by canon 905 §2: the right of the faithful to the celebration of the Eucharist is in no way denied, since they are offered the possibility of participating in the Eucharist in its current ritual form.” Is it not the bishop’s prerogative to judge whether there is a pastoral justification for bination?
FM: Yes, it is the bishop’s prerogative to judge when to allow priests to binate “for a just cause” (offer two Masses per day) and trinate “if pastoral need requires it” (offer three Masses per day). The Responsa removes that prerogative in cases of bination involving a request to celebrate the TLM as the second Mass. The Responsa states that a priest who is authorized to celebrate the TLM who has celebrated either the Mass of Paul VI or the TLM may not celebrate a second Mass that day using the 1962 Missale. The reason given for this prohibition is “there is no ‘just cause’ or ‘pastoral necessity’ as required by canon 905 §2: the right of the faithful to the celebration of the Eucharist is in no way denied, since they are offered the possibility of participating in the Eucharist in its current ritual form.”
I can think of no other group of the faithful in the Church who are treated in this way.
Canon 905 §2 requires a “just cause” for bination and a “pastoral necessity” for trination. A just cause would also include a pastoral necessity, such as providing the faithful with the chance to fulfill their Sunday obligation in a large parish with a scarcity of priests and multiple scheduled Masses. The required just cause for bination would include fostering the spiritual growth of the faithful who seek to worship God at the TLM. That just cause cannot be fulfilled when the priest is forbidden to binate celebrating the TLM.
What this means is that a priest who would ordinarily celebrate a second Mass using the 1962 Missal in fulfillment of the just cause of providing spiritual assistance to the faithful devoted to the TLM, may only celebrate a second Mass using the reformed Roman Missal. This ignores the fact that responding positively to the faithful who seek to worship at the TLM where there is a scarcity of priests plainly qualifies as a just cause as set forth in canon 905 §2. The justification given in the Responsa is that there is neither a just cause nor a pastoral necessity to celebrate a second Mass that day using the 1962 Roman Missal for a group of the faithful “since they are offered the possibility of participating in the Eucharist in its current ritual form.” This means they can attend the New Mass, but not the TLM, even if the priest is willing to celebrate the TLM. Would not the logic of that mean that, beyond simply the case of a bination, whenever and wherever the “current ritual form” of the Mass is available, the request of the faithful to participate in the TLM may be ignored since such a request does not give rise to either a “just cause” or “pastoral necessity”? Apart from depriving a diocesan bishop of a means for meeting the particular pastoral needs of his diocese, these restrictions on bination mean that the devotion of the faithful to the TLM may be disregarded and treated as of no pastoral significance calling for a generous response from the Church’s pastors. I can think of no other group of the faithful in the Church who are treated in this way.
DM: Ultimately, these last two provisions, together with others, may also be said to contrast the suprema lex, according to which the action of the Church authorities should favor the salus animarum, a principle of divine law contained in the last canon, can. 1752. In your view, does the Responsa ad dubia violate the supreme law of the salvation of souls, and do you believe that bishops have a duty to resist or grant a dispensation to it?
FM: The salvation of souls is properly promoted when the Church provides spiritual nourishment and inspiration to the faithful, drawing on the spiritual treasures that the Church has safeguarded and promoted over the course of her pilgrimage on earth. Popes John Paul II and Benedict XVI heeded the pleas of numerous faithful Catholics to be allowed the freedom to worship according to the immemorial rites of the Church in use until the promulgation of the reformed rites after the Second Vatican Council. The fruits of this generosity are evident in the devotion and apostolic spirit of those growing number of Catholics who attend the TLM. Pope Francis decided to severely restrict the availability of the TLM because of his concern that, considered as a group, those who celebrate or attend the TLM are often causing disunity in the Church. He wrote in his letter accompanying TC: “Regrettably, the pastoral objective of my Predecessors, who had intended “to do everything possible to ensure that all those who truly possessed the desire for unity would find it possible to remain in this unity or to rediscover it anew”, has often been seriously disregarded. An opportunity offered by St. John Paul II and, with even greater magnanimity, by Benedict XVI, intended to recover the unity of an ecclesial body with diverse liturgical sensibilities, was exploited to widen the gaps, reinforce the divergences, and encourage disagreements that injure the Church, block her path, and expose her to the peril of division.
Following the issuance of TC there was no widespread public expression of gratitude to Pope Francis from the bishops of the world, thanking him for solving a serious problem that they themselves had perceived and for which they had sought a remedy from the Holy See.
I find this judgement to be misplaced and unsupported by evidence. Following the issuance of TC there was no widespread public expression of gratitude to Pope Francis from the bishops of the world, thanking him for solving a serious problem that they themselves had perceived and for which they had sought a remedy from the Holy See. As the leaked documents from the survey of the world’s bishops regarding SP revealed, the majority of responding bishops were either positive or neutral about the TLM in their dioceses. Bishops should make known to the Holy See that they are disturbed and upset about the harsh measures being taken against their faithful who attend the TLM. They should make known to the Holy See that they regret the tone of suspicion and even disdain found in both TC and the Responsa for those priests and lay people whose only “fault” is to love the liturgical patrimony of the Latin Rite and desire to experience it without being tempted, because the Supreme Authority in the Church mistakenly finds them to be causes of disunity in the Church, to choose to attend chapels served by priests who are canonically irregular, in search of what they were deprived of without consultation or warning, namely the TLM .
DM: Fr. Murray, do you have any other canonical concerns about the document? And is there anything you wish to add, as a canon lawyer or as a parish priest?
FM: Archbishop Roche wrote in his introductory letter to the Responsa: “As pastors we must not lend ourselves to sterile polemics, capable only of creating division, in which the ritual itself is often exploited by ideological viewpoints.” This sentence is revelatory of a mindset that seeks to justify the harsh and unmerciful treatment of a whole category of Catholics by, in effect, accusing them of bringing such treatment down upon themselves by their supposedly sterilely polemical, divisive, and exploitative ideological viewpoints. No examples of these viewpoints are given, nor are the names of the proponents of these viewpoints identified. The Holy See is here treating love for and defense of the TLM as an indicator not of a praiseworthy devotion to the Faith, but as the expression of viewpoints that “often” result in words and actions that harm the Church. This conclusion is not supported by my experience or knowledge of what has gone on in the Church since restrictions on the TLM were lifted by Popes John Paul II and Benedict XVI. It is, on the contrary, the recent actions taken to restrict and eventually eliminate the celebration of the TLM that have harmed the Church.