THE CATHOLIC UNIVERSITY OF AMERICA The Obligation of Perfect and Perpetual Continence And Married Deacons in the Latin Church A DISSERTATION Submitted to the Faculty of the School of Canon Law Of The Catholic University of America In Partial Fulfillment of the Requirements For the Degree Doctor in Canon Law By Anthony K. W. McLaughlin Washington, D.C. 2010 UMI Number: 3403486 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. UMI 3403486 Copyright 2010 by ProQuest LLC. All rights reserved. This edition of the work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, MI 48106-1346 The Obligation of Perfect and Perpetual Continence and Married Deacons in the Latin Church Rev. Anthony K. W. McLaughlin, J.C.D. Director: Rev. Robert J. Kaslyn, S.J., J.C.D. Through the reception of diaconate a man becomes a cleric. Canon 277 §1 states: “Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of Heaven and therefore are bound to celibacy. ” Accordingly, it would seem that clerics have two distinct obligations: sexual continence (no sexual relations) and celibacy (no marriage) with continence presented as the fundamental norm. With the restoration of the permanent diaconate by Paul VI in 1967 and the admission of married men to this order, a fundamental question arises: “Are married deacons, though dispensed from the obligation of celibacy, unless their wife dies, obliged to observe perfect and perpetual continence?” The dissertation has five chapters. Chapter one presents a general historical overview of clerical continence, chastity and celibacy in the Latin Church. Chapter two examines the 1917 code’s dispositions on clerical continence, chastity and celibacy. Chapter three follows both the discussions of the Fathers at the Second Vatican Council and post-conciliar norms concerning the restoration of the permanent diaconate in the Latin Church. It also presents the conciliar teaching on sexuality and marriage, with particular focus given to the compatibility of marriage and orders. Chapter four examines canon 277 §1 of the 1983 code, with special attention given to the revision process. Chapter five considers whether married deacons in the Latin Church are obliged to observe perfect and perpetual continence. The dissertation demonstrates that how one understands the law of continence is dependent upon how one understands the law of celibacy. If celibacy is understood narrowly as the legal condition of being unmarried then only celibate clerics are bound to observe the law of continence (the “Celibacy School”). However, if celibacy is understood broadly in terms of the lex continentiae, no sexual relations post ordinationem, then married deacons are bound to observe the law of continence (“the Continence School”). In clarifying the fundamental issues and analyzing the implicit suppositions of the two “schools” this dissertation will help to illustrate why the obligation of continence for married deacons is even a question. This dissertation by Anthony McLaughlin fulfills the dissertation requirement for the doctoral degree in canon law approved by Robert J. Kaslyn, S.J., J.C.D., as Director, and Kurt Martens, J.C.D., and John J. M. Foster, J.C.D., as Readers. ____________________________________ Robert J. Kaslyn, S.J., J.C.D., Director ____________________________________ Kurt Martens, J.C.D., Reader ____________________________________ John J. M. Foster, J.C.D., Reader ii Table of Contents List of Abbreviations xi Acknowledgments xvi Introduction 1 CHAPTER ONE Historical Overview: Ecclesiastical Legislation and Magisterial Teaching Concerning Clerical Chastity, Continence and Celibacy from the Council of Elvira until the 1917 Code 6 A. Fundamental Terminology 7 1. Cleric 7 2. Human Sexuality 10 3. Chastity 11 4. Continence 14 5. Celibacy 15 6. Continence, Celibacy and the Story of Paphnutius 16 B. The Origins of Clerical Celibacy: Bickell versus Funk 21 C. Ecclesiastical legislation from Elvira, 305 until Nicea, 325 23 1. Council of Elvira, 305 23 2. First Council of Arles, 314 33 3. Council of Ancyra, 314 35 4. Council of Neocaesarea, 314 39 5. The First Ecumenical Council of Nicea, 325 40 D. Influence of Sects Antithetical to Sex, the Body and Marriage 43 iii E. Magisterial and Conciliar Teachings: Nicea to Leo the Great 50 1. Synod of Rome, 386 and Second Council of Carthage, 390 50 2. Third Council of Carthage, 401 51 3. Papal Teaching 53 a. Pope Siricius: Directa and Cum in unum 53 b. Pope Innocent I: Etsi tibi, Dominus inter and Consulenti tibi Decretals 58 c. Pope Leo I 60 F. Continence and the Wives of Clerics 62 G. Second Council of Trullo, 692 64 H. Magisterial and Conciliar Teachings: Gregory VII to Trent 70 1. Pope Gregory VII: The Gregorian Reform 70 2. First Lateran Council, 1123 71 3. Second Lateran Council, 1139 73 I. Gratian and his Concordia Discordantium Canonum 74 J. From Trent until the 1917 Code 77 1. Council of Trent, 1545-1563 77 2. Exclusion of Married Men from Major Orders 82 3. Dispensations: Exceptions Prove the Rule 84 K. Conclusion 88 CHAPTER TWO Canonical Dispositions of Clerical Chastity, Continence and Celibacy in the 1917 Code 91 iv A. Canon 132 §1 93 1. Clerics in Major Orders 94 2. Prohibition on Marriage: Obligation of Celibacy 99 3. The Source of the Obligation of Celibacy 99 4. Penalties for the Violation of the Obligation of Celibacy 100 a. Excommunication 101 b. Deprivation of Office 102 c. Degradation 102 5. Irregularity 103 6. Dispensation from the Obligation of Celibacy 104 a. Dispensation for Subdeacons and Deacons 107 b. Dispensation for Presbyters and Bishops 108 7. The Power of the Ordinary to Dispense from the Obligation of Celibacy 108 8. The Obligation of Chastity 110 9. Sacrilege and the Obligation of Chastity 111 10. Penalties for Violation of the Obligation of Chastity 113 11. Canonical Dispositions to Protect the Obligation of Chastity 116 12. Post 1917 Code Legislation Concerning Formation in Chastity 119 B. Canon 132 §2 121 1. Minor Clerics and Marriage 122 C. Canon 132 §3 123 v 1. The Impediment of Marriage for the Reception and Exercise of Orders 123 2. Prohibition on Bigamy 125 3. The Latin Church and Married Eastern Clergy 127 4. Prohibition on Ministry of Married Eastern Clergy 129 D. Canon 133 §1 132 1. Clerics and Forbidden Cohabitation with Women 132 E. Canon 133 §2 135 1. Clerics and Permission to Cohabit with Women 135 F. Canon 133 §3 136 1. The Local Ordinary and the Cohabitation of Clerics 137 G. Canon 133 §4 138 1. Presumption of Concubinage 138 H. Post 1917 Code Magisterial Teaching on Celibacy 138 1. Benedict XV 138 2. Pius XI 139 3. Pius XII 140 J. Conclusion 142 CHAPTER THREE Conciliar and Post-Conciliar Teaching Concerning Celibacy and the Restoration of the Permanent Diaconate 144 A. The Second Vatican Council, 1962-1965 146 1. Lumen gentium: The Dogmatic Constitution on the Church 146 vi 2. The Restoration of the Permanent Diaconate 151 3. The Movement towards a Restoration of the Permanent Diaconate 157 4. Perfectae caritatis: Decree on the Adaptation of Religious Life 166 5. Optatam totius: Decree on the Formation of Priests 168 6. Presbyterorum ordinis: Decree on the Ministry and Life of Priests 173 7. The Relation of Sexuality and Marriage to Holy Orders 180 8. Notion of Conjugal Relations and Marriage Prior to the Council 181 9. The Dignity of Marriage and Family 185 B. Paul VI and Post-Conciliar Teaching on Celibacy 190 1. Sacrum diaconatus ordinem: Norms Governing the Restoration of the Permanent Diaconate 190 2. Ad pascendum: Clarifying the Role of Deacons 195 3. Sacerdotalis caelibatus: On Priestly Celibacy 196 4. Ultimis temporibus: On the Ministerial Priesthood 202 C. John Paul II: Celibacy and Marriage 206 1. Redemptor hominis: Encyclical on the Mystery of Redemption 206 2. Novo incipiente: Holy Thursday Letter to Priests 207 3. Familiaris consortio: Apostolic Exhortation on the Marriage and the Family 209 D. Conclusion 211 CHAPTER FOUR The 1983 Code and the Obligation of Clerical Chastity, Continence and Celibacy 215 A. The Revision Process 216 vii 1. Coetus Studiorum de Sacra Hierarchia 216 2. 1977 Schema de Populo Dei: Canons 135 and 136 217 3. 1980 Schema Codicis Iuris Canonici: Canons 250 and 251 221 4. Coetus Studiorum de Matrimonio: Canon 1040 224 5. The 1982 Schema Codicis Iuris Canonici: Canons 279 and 280 227 B. 1983 Code of Canon Law 232 1. Canon 277 §1: The Obligation of Continence and Celibacy 233 2. Canon 1042 §1: The Impediment of Marriage 242 3. Canon 1031 §2: Married Men Seeking Orders 244 4. Spousal Consent 245 5. Canon 1037: Public Acceptance of Celibacy 248 6. Canon 1087: The Impediment of Sacred Orders 250 7. Canon 1394 §1: Penalties for Violation of Celibacy 256 8. Canon 1395: Penalties for Violation of Chastity 258 9. Canon 291: Dispensation from Celibacy 261 10. Readmission to the Clerical State 265 11. The Pastoral Provision 265 12. Vatican Statement on the Ordination of Married Men 269 C. Conclusion 270 CHAPTER FIVE The Obligation of Perfect and Perpetual Continence and Married Deacons in the Latin Church. Canonical Considerations 273 A. The Two “Schools” 278 viii B. The “Continence School” 279 1. Married Deacons and the Obligation of Perfect and Perpetual Continence 279 2. The Impediment of Digamy to Orders 281 3. Moral Qualities 282 4.