“An examination of the circumstances in which Archbishop Lefebvre proceeded to consecrate bishops in light of canons 1321, 1323 and 1324 raises at least a significant doubt if not a reasonable certainty against the validity of the declaration of excommunication pronounced by the Congregation of Bishops.” This is the conclusion of a thesis in canon law defended in Rome and highly commended by the jury.
Fr. Gerald E. Murray is not a traditional priest. He serves in the Archdiocese of New York. However in June 1995 he did brilliantly defend his thesis at the Gregorian University in Rome on the controversial subject: “The Canonical Status of the Lay Faithful Associated with the Late Archbishop Marcel Lefebvre and the Society of St. Pius X: Are they Excommunicated as Schismatics?” Despite this thorny topic, he earned his licentiate and in doing so provided a very important study, of which the American magazine The Latin Mass made a detailed analysis; here are some insights from it.
According to the decree of the Congregation for Bishops (Cardinal Gantin, July 1, 1988), “The priests and faithful are warned not to support [i.e., assent to] the schism of Archbishop Lefebvre, otherwise they shall incur ipso facto the very grave penalty of excommunication.” In the motu proprio, Ecclesia Dei adflicta, John Paul II said: “Everyone should be aware that formal adherence to the schism is a grave offence against God and carries the penalty of excommunication decreed by the Church's law.”
Yet, Murray notes, no precise or even general indication is given as to what acts are considered to constitute adherence or assent. “This lack of precision on the part of the Holy See leads to a reasonable doubt about the question of whether the lay faithful who are associated with the Society of St. Pius X commit a schismatic act, for example by attending one of its chapels or by cooperating with its activities.” The priests and the lay faithful affiliated with the Society at the time of the schism “are neither excommunicated nor schismatic, as far as I can tell, because the Vatican never said that they were.”
But Murray goes further: these priests and these lay faithful cannot be excommunicated if Archbishop Lefebvre himself is not. Now there are serious doubts as to whether the latter is liable to excommunication latae sententiae. There are two sorts of excommunication:
Cardinal Gantin’s decree does not pronounce the former; rather, it “declares” that Archbishop Lefebvre, the four bishops consecrated and Bishop de Castro Mayer incurred the latter. In the first case, there would have been nothing left to say; in the second case, the matter can be examined in the light of Canon Law.
Now Canon Law lists the conditions in which the penalty is applied automatically, and the exceptions that annul it. The argument from “necessity” has been examined minutely by canonists: “No one is liable to a penalty who, when violating a law or precept: ... acted under the compulsion of grave fear, even if only relative, or by reason of necessity or grave inconvenience, unless, however, the act is intrinsically evil or tends to be harmful to souls” (Canon 1323 §4).
Canon 1324 §8 adds another element of subjective evaluation: it is enough for the person who committed the offense to have “believed” (putavit) that he was in the abovementioned circumstances, in other words, for that person to have thought he was driven by necessity. Murray is making the case against the Code itself. In comparison to the 1917 Code, it introduces this factor of the guilty individual’s subjective judgment, which is new. Previously, for each delict [canonical offense], objectively defined, there was a penalty; “you knew where you stood.”
But, he asks, isn’t the pope, as the legislator, above Canon Law? Can’t he change it? Yes, but he did not do so. As long as he has not changed the law, he is bound by it. Was John Paul II unaware of that? “I must reply that the pope himself is not a canonist; and the opinion that was given to him was the one that was published in L’Osservatore Romano, in a communique saying that the state of necessity foreseen in canon 1323 was inapplicable. I think that his advisors told him that Lefebvre did not have the right to appeal to canons 1323 and 1324.... I think that his advisors were wrong, because the Lefebvre case is just an example showing that, whereas the old Code was altogether clear, the new one is much less rigorous....”
Murray continues: “Nevertheless, the pope could say: ‘Forget about those canons. I rule that these people are excommunicated by my own authority, unless they submit to my judgment as of tomorrow.’ But the pope did not proceed in that way. He acted according to the opinion of his advisors and according to the Canon Law in force.... And if the canonical penalties are dubious insofar as Lefebvre himself is concerned, then they are at least that dubious insofar as the laity affiliated with the Society are concerned.”
As for the question about schism, Murray cites the most authoritative commentators to show that Archbishop Lefebvre’s act does not correspond to accepted definitions of schism. “We should carefully distinguish schism from pure and simple disobedience. A schism presupposes a systematic, habitual refusal to be dependent” (Fr. Mattheus Conte a Coronata). “Schism would be clear if the refusal to obey attacked the authority per se... when someone rejects a precept or a judgment of the pope pronounced in the exercise of his office, not recognizing him as a superior...” (Fr. Congar). “Schism must not be confused with disobedience. The latter is a simple transgression, against papal law, for example; the former is a deliberate, voluntary rejection of communion and therefore a rebellion” (Alphonse Borras)—which is manifestly not the case with the Society of St. Pius X.