So I leave town for a few days and look at what happens!

Over on my friend Deacon Greg Kandra's blog The Deacon's Bench, things have been heating up a bit.  Deacon Greg posted some information about an opinion of noted canonist Dr. Edward Peters on the subject of clerical continence for married clergy, which would of course, include married (permanent) deacons.  Here's Deacon Greg's original post, and here is the link to Dr. Peters' position, well laid out with suitable references.  In response to Deacon Greg's post, Dr. Peters' son entered the lists with his own piece, found here.

So, why am I about to make a modest offering in this debate?  Long before Dr. Peters wrote his article in Studia Canonica, several theologians had offered similar positions which most other theologians dismissed as not being what was in the mind of the Church when renewing a diaconate permanently exercised; this rather abrubt dismissal was probably unfortunate, in that the questions raised should have been tackled directly.  I first became aware of the general argument: that married clerics following ordination ought to remain sexually continent, in 2002 when I arrived on the staff of the USCCB in Washington.  A theological paper had been sent to the Conference on the issue; it was ultimately decided that no action would be taken on it at that time.  Then, in 2005, Dr. Peters published his article in Studia Canonica.  I often inquired among canonist-friends whether they were going to develop any kind of response to the arguments presented, and most declined (and still others suggested that it might be helpful if I, as a theologian, would write a response).  I have always hesitated precisely because I am not a canonist, and Dr. Peters' arguments are made solidly from within a canonist's frame of reference.

However, because I belive the matter does warrant further discourse, I'm willing to make a modest effort.  I want to be perfectly clear, however, about two very important things:

1) What I am posting here is NOT an academic research piece for submission to a learned journal.  I may try to develop such a piece, but I caution my readers that this is a BLOG, and only a blog.  I hope that this may be of some help to readers with questions or concerns, but it does not present itself as any kind of definitive response.  At best it is an interim response.

2) As I said above, I am a theologian (Ph.D., the Catholic University of America), not a canonist.  That needs to be borne in mind.

OK, down to cases.

Here's the canon that is at issue. This is c.277 from the 1983 Code of Canon Law: § 1. Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy which is a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided heart and are able to dedicate themselves more freely to the service of God and humanity. § 2. Clerics are to behave with due prudence towards persons whose company can endanger their obligation to observe continence or give rise to scandal among the faithful. § 3. The diocesan bishop is competent to establish more specific norms concerning this matter and to pass judgment in particular cases concerning the observance of this obligation.

So let's begin with the definition of some of the key terms:

1) Celibacy can be defined as "the state of being unmarried."  In its broadest terms, as we sometimes hear it used in popular "culture", the term itself makes no assertion about a person's sexual activity or lack of sexual activity.  It is, simply, the state of being unmarried.  As we all know, unmarried persons often engage in sexual activity!  Obviously, within the Church, when we speak of celibacy, we generally include the understanding that a person is living appropriate within their state of life with regard to the sexual gift.  Therefore a Christian celibate (such as most Catholic presbyters in the Latin Church) would be assumed to be abstaining from sexual relations, since the Church teaches that the only proper use of the sexual faculty is within marriage.  Not married = no sex.

2) Chastity can be defined as the integration of one's sexual faculty within the context of that person's state of life.  The Catechism reminds as that ALL persons are called to chastity, whether celibate or married.  Again, popular culture, "chastity" is often equated with "abstinence" or "continence" when the meaning is actually much broader.  There is, for example, a married chastity which would include proper sexual activity within that marriage.

3) Continence is abstinence from sexual activity, either permanently (such as in the case of a professed religious who vows such continence) or temporarily.

Back to c. 277.  "Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy which is a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided   heart and are able to dedicate themselves more freely to the service of God and humanity."  The law states "clerics" -- and that certainly involves deacons -- are OBLIGED to observe perfect and perpetual continence. . . ."  So far, so clear.  Unless and until certain categories of clerics might be exempted from this obligation, it applies to all, including married deacons (by the way, for the record, I must point out for clarity that not all permanent deacons are married deacons; to reduced this question to "celibate priests" and "married deacons" would be a gross oversimplification, since we have married priests and we have celibate permanent deacons!). 

By way of background, this section of the Code is referring to matters relating to all orders of the clergy.  So, we have to find if there is anything that might exempt married or permanent deacons from any of these things.  Other canons in this section, for example, legislate that clerics are obliged to wear clerical attire, that they are to avoid secular occupations and so forth.  Many of these things simply could not apply to permanent deacons, who most often work in the secular world (I was a career Navy officer!  It would have been tough to wear clerical attire while on duty!).  So, we find at the end of this section of the Code something I like to call "the deacon's canon."  It's canon 288, and it reads:

The prescripts of cann. 284, 285, §§3 and 4, 286, and 287, §2 do not bind permanent deacons unless particular law establishes otherwise.

Interesting point: Notice that c. 277 about clerical continence isn't there!  So, so far, Dr. Peters appears to be correct.  The law does not seem to remove the obligation for perfect and perpetual continence in the case of permanent deacons.

According to Dr. Peters' original article, during the preparation of the new Code of Canon Law, such a statement, removing this obligation for permanent deacons, was included.  However, for no known reason, it was removed prior to the promulgation of the Code.  The problem for me is this: Its absence from the Code does not seem dispositive.  It's not there.  No one in authority has explained why it is not there.  It just isn't.   Therefore, I don't believe I can take that silence or absence to reach any fully substantiated conclusion; neither can Dr. Peters: he can't use "silence" to prove his case any more than I can use it to make mine.  However, what may I nonetheless infer from that silence?  One, I can infer that Dr. Peters' conclusion is correct and that married clerics are bound to continence.  Two, I can infer that there was a mistake made and that particular statement exempting deacons was left out simply by a clerical (no pun intended) error.  Three, I can infer that those responsible for the drafting of the Code felt that such a statement was not necessary because of other statements in the Code itself which would indicate this obligation did not bind married clerics.  For sake of argument, I'm going with inference #3.  Here's why.

What else does c. 277 say?  After it imposes the obligation, it goes on to use a very important, and I submit, critically important Latin word, ideoque.  Ever since I first read Dr. Peters' article in Studia, this word has troubled me.  Ideoque has a variety of meanings, most usually translated as "therefore."  In the English translation of the canon above, "and therefore are bound to celibacy. . . ."  Now having studied Latin myself for many years, I'm never far from the wonderful Latin Dictionary by Lews and Short, and the entry for ideo offers the meanings of "for that reason, on that account, therefore."  So it seems quite clear that, while continence is the fundamental "value" being addressed in the canon, this continence is to be lived out ("for that reason") in the celibate state.  Celibacy flows from the desire for continence.

But here's my question: If clerical CELIBACY flows from the desire for clergy to be CONTINENT, then wouldn't the very removal of the requirement for CELIBACY in the case of certain clerics not also remove the requirement for CONTINENCE?  (I'm not shouting here; I'm simply typing for emphasis.)  All clerics are to be continent.  Therefore, all clerics are to be celibate.  But not all clerics are celibate.  Therfore, not all clerics are continent.

In the case of married permanent deacons, clerical celibacy is not required.  According to c. 1042:  a candidate for orders who is married is "impeded" from ordination "unless he is legitimately destined to the permanent diaconate."  So, with the removal of the obligation of clerical celibacy, it would seem to me that likewise the obligation for clerical continence is removed.  If the church wishes all of her clergy to be continent, then all of her clergy must be celibate.  If there is a category of clerics for which celibacy is not obligatory, then it seems reasonable to infer that the church does not wish to impose continence either.

Let's look at more sources.  The Eastern Catholic Churches have married clergy.  What does the Code of Canons of the Eastern Churches have to say about all of this that might help our interpretation?  Let me invoke again my disclaimers above: I am not a canonist, nor have I made a scientific study of the Codes, especially the CCEO, but in my rather cursory review, I found NO mention whatsoever of continence, clerical or otherwise.  In the section of the law pertaining to clerics, however, I did find these three canons to be pertinent:

CCEO, canon 373: "Clerical celibacy chosen for the sake of the kingdom of heaven and suited to the priesthood is to be greatly esteemed everywhere, as supported by the tradition of the whole church; likewise, the hallowed practice of married clerics in the primitive church and in the tradition of the Eastern Churches throughout the ages is to be held in honor."

CCEO, canon 374: "Clerics, celibate or married, are to excel in the virtue of chastity; it is for the particular law to establish suitable means for pursuing this end."

CCEO, canon 375: "In leading family life and in educating children, married clergy are to show an outstanding example to other Christian faithful."

Now I may have missed something, but I find it interesting that none of this invokes "continence" in specific.  As noted in our definitions above, a celibate cleric would be bound to continence, and all clerics are bound to chastity, but those are not the same thing.  Not only are we speaking of the same Catholic Church here, we must acknowledge that the Eastern Catholic Churches have as venerable a history as the Latin Church (and in some ways even more ancient), so an appeal to any historical connection between clerical continence and celibacy must account for this silence on the point in the Code of Canons for the Eastern Churches.

Dr. Peters refers to this ancient historical connection.  Even granting and respecting any such historicity, however, does not bind the church in perpetuity, either.  While we honor our history we are not necessarily and in every instance restricted to it.  And here we enter into the next chapter of the discussion.

Space doesn't permit me to do much more here, but let me pose the next question: What was it that the church was intending with the renewal of a diaconate permanently exercised?  Was it simply a return to the ancient diaconate of patristic times, or was this to be an ancient order re-envisioned for the contemporary church?  I have argued extensively elsewhere the latter position, so I won't recount all of that here.  New wine should go into new wineskins, so maybe it IS time that the law in the Latin church be modified accordingly to be clear on this point.  The great canonist Fr. Jim Provost once pointed out that what remained to be done in future revisions to the Code of Canon Law was for a more complete and substantive treatment of the permanent diaconate in its own right, and I strongly support that insight.  Fr. Provost also offered his own critique of the position taken by Dr. Peters by focusing the mutual rights acquired by a married couple through the celebration of the sacrament of Matrimony.

Finally, let me conclude with a final reflection.  Law serves the Church.  Law is to reflect the theology of the Church.  As the Church and her theology changes, so too must the law.  So, to interpret the law, it seems to me (a theologian) one must first look at the theological sources for the law.  Such a theological hermeneutic seems to me quite obvious.  So, when considering the permanent diaconate, what has the church had to say about all of this OUTSIDE of the law?

At no point, in any conciliar or post-conciliar official document has there ever been a single statement that directed permanent deacons were to remain continent following ordination.  It is not in any of the Council documents, it is not in any papal statements, nor is there any mention of it in any of the several documents promulgated by the Holy See concerning the nature and exercise of the permanent deacon.  No pope, no dicastery, has ever exhorted their married deacons to observe continence; in fact, we have been encouraged to be completely faithful and diligent in carrying out all of the responsibilities, duties and dimensions of family life.  Interestingly, for many deacons and their wives who have had children AFTER ordination, there has been no public outcry that some kind of canon has been violated, or has such a deacon been dealt with by means of loss of faculties or suspension from ministry.  If such a connection as posited by Dr. Peters was of such importance to the Latin Church (it clearly is not in the Eastern Churches), you would think that SOMEONE in authority would have acted accordingly.  In this case, theological and pastoral praxis seems to provide a powerful hermeneutic for approaching the law.

Therefore, it seems to me that, clearly, the mind of the church is such that there is NO expectation of clerical continency by married deacons, despite Dr. Peters' claims.  Perhaps he is correct that the law should be changed to prevent any similar misunderstanding in the future.