A Cure Worse than the Malady?

A Cure Worse than the Malady? Dismissal from the Secular Franciscan Order as de facto Consequence of an Imposed or Declared Excommunication

Patricia Bellm

Introduction

As Secular Franciscans are held to reread the General Constitutions, I do this on a regular basis. This time, Art. 58 made me pause. In its third paragraph it states:

The brother or sister [...] upon whom an excommunication is imposed or declared, by virtue of the very fact, ceases to be a member of the Order. [1]

The article goes on by advising the council of the local fraternity to keep communication channels open and to offer fraternal help to the excommunicated Catholic. Eventually, however, the council of a higher level will declare officially that the fact of his or her excommunication itself has already incurred: the cessation of the person being a member of the Secular Franciscan Order - making the “latae exclusio” known to the members of the Order. Once the National Council has confirmed the dismissal, it will be irrevocable and final. A readmission to the Order, be it on the regular path described in Title II of the General Constitution or following a formation of more penitential character, would - although not explicitly mentioned - involve revoking the decision made by the National Council, a decision that is explicitly irrevocable and final.

This seems to be a somewhat harsh consequence which the General Constitution ties ipso facto to a measure that Canon Law offers rather as a remedy than a punishment, namely excommunication. How does Canon Law understand excommunication and when is it applied?

Excommunication in Canon Law

Most communities know the penalty of putting a disobedient member outside of what is common to all (ex communis), i.e. the delinquent being no more in full communion with the rest of the community. Such measures have a long tradition in the Catholic Church when dealing with those who are “stubborn, disobedient, or proud, if they grumble or in any way despise the holy rule and defy the orders of their seniors” and who do not reform, even in the case of an excommunication from the Church.[2] It might be helpful, therefore, to explore the function of excommunication as a penalty in the Code of Canon Law.

The Church foresees an array of penal sanctions to respond to the wrong-doing of a Catholic, depending on the situation of the offense and its gravity, with the goal to restore justice, to reform the offender, and to repair potential scandal (c.1311).

In order to achieve these three goals, the law distinguishes two distinct categories of penalties: expiatory penalties, on one hand, and censures (or medicinal penalties), on the other (c. 1312, §1). Expiatory penalties, as the name suggests, seek to remedy a damage or injustice done to the ecclesial community by the offender. The penalties are given for a prescribed time or they can last forever. A further purpose of an expiatory penalty is the hope that it will deter other faithful from committing the same offense. For example, a lay person can be ordered to pay a certain sum for the Church’s purposes or can be excluded from certain offices or duties she or he might have held. The offender can also be prohibited from wearing religious dress (c.1336, §3.7°), which for a Secular Franciscan in the US could be interpreted as being prohibited from wearing the Tau. Again, these penalties deprive a Catholic of some spiritual or temporal good (c.1312, §2), either forever or for a determined or undetermined period (c.1336, §1).

In a different category, the law knows censures, or medicinal penalties. Their main intention is to help (and persuade) the offender to correct his or her wrongful behavior, with the goal of reintegrating the faithful into the life of the ecclesial community. Consequently, censures are therefore to be lifted when the person has shown obediences and, once again, respects the teachings, laws, and decrees of the Church, and - if necessary - has made reparation for damages inflicted.  It is this category in which we find excommunication (c.1312, §1, 1º) - a temporal penalty in which the offender has considerable agency as to when the penalty ends. As Antonine of Florence said: “Causa finalis est ut excommunicatus delictum suum recognoscat et ad Deum redeat.” - “The final aim ist that the excommunicated should recognize his wrongdoing and turn toward God.”

Art 58/3 of the General Constitution speaks of imposed or declared excommunications. The law knows offenses that incur a sentence not pronounced by a judge after a trial but automatically follow a wrong doing, by the very act of committing the deed. They are called latae sententiae. Excommunication is such a penalty that can be incurred automatically. For a lay person (and any accomplice who had an indispensable role in the crime), such offenses can be, for example, the attempt of a woman to receive sacred orders (Can. 1379, §3), actually procuring an abortion (Can. 1397, §2), or keeping consecrated species for sacrilegious purposes or throwing them away (c.1382, §1). It also is a bad idea to use physical force against the Roman Pontiff (c.1370, §1). Other offenses listed are apostasy, heresy or schism, all of which require a good knowledge of Catholic Doctrine in order to commit them and are therefore relatively infrequent among the ordinary faithful. Once an offense as such has been committed and has become public, the Church authority will officially declare the penalty that was automatically incurred (i.e. excommunication) and make its decision known to the ecclesial community along with the offense. Ecclesiastical tribunals can also impose excommunication as a medicinal penalty, after a judicial trial. In either event, declaration or imposition, the offender has been heard by the Church and was given a chance to repent.

In the minds of many Catholics, there might still linger a different notion of excommunication, based on the understanding of the previous Code of Canon Law from 1917. Before 1983, an excommunicated Catholic was indeed “excluded from the communion of the faithful.” (CIC-17 c. 2257§1). However, harking back to the teachings of the early Church Fathers[3], the Code of 1983 did not repeat this language, nor did Pope Francis include it when he reformed the Penal Code in 2021.[4] Being excommunicated does not mean that one is no longer part of the Church. Rather, the Catholic is simply no more in full communion.

One might be reminded of the disciplinary measure of “time-out!” with which parents separate quarrelsome youngsters from their siblings, both to award them time to think and also to clearly state: “That action was wrong!” Remorseful kids are allowed back to the dinner table, perhaps with the added chore of washing the dishes that night. Whatever it is, despite the gravity of the penalty, neither the child’s nor the Catholic’s “excommunication” is meant to last forever. Enveloped by the loving presence of the ecclesial community and their prayers, the offender is invited to repent of his or her stubborn refusal to obey the Church authority and to come back to the Table, and, like in the early church, several times if need be.[5]

Permanent dismissal

In contrast to the medicinal and temporal character of excommunication stands the “latae cessatio”, the automatic separation described in Article 58 GC, which is incurred ipso facto and will result in a dismissio which is, according to Article 23 of the Rule of the Secular Franciscans, permanent.

While the Church grants the offender considerable agency when the canonical penalty of excommunication will end by always keeping open a path of repentance, return, and full reintegration into the community of believers, the confirmed decision of the dismissal from the Secular Franciscan Order is permanent.

It seems that there is a true disproportionality between the “offense” (excommunication) and the ipso facto “punishment” laid down in the General Constitution. The first is a medicinal path of penance towards reintegration. The second is an act that closes the doors forever. A readmission is understood to be equivalent to revoking the decision of the National Council, which is - according to Art. 58/3 - irrevocable and final, and as such, although the Constitution does not say so explicitly - bars the penitent faithful from returning to the Order.

Is the Order of Penitents in line with Church Teaching?

It begs the question if it would not behoove the Secular Franciscan Order - which, after all, is the Order of Penitents - to show more mercy to a faithful who has stumbled and fallen. With what motivation does the Order of Penitents pronounce a punishment harsher than Mother Church who has considered that a medicinal, temporal penalty is the best approach to save the sinner’s soul (c.1752)? Have we become the Order of the Perfect? Would a measure such as suspension from certain aspects of fraternal life not be a better response, leading to a celebration after a penitential reintegration of the Franciscan siblings once the excommunication has been lifted by the ecclesial authorities (Luke 15:4–7/Matthew 18:10–14)? It might seem to be opportune to read the Signs of the Time and to resituate our Constitution, moving from the spirit of the 1917 Code and getting more aligned with the current (and ancient) teaching of the Church.