[Editor’s note: On Jan. 6, Crux published a piece by Father Paul Keller describing a hypothetical set of circumstances in which he would administer Communion to a divorced and civilly remarried Catholic based on Pope Francis’s document “Amoris Laetitia.” Distinguished American canonist Edward Peters responded on his “In the Light of the Law” blog, and Crux asked permission to use that response, in a version reworked by Peters at our request.]

In trying to apply Pope Francis’s document Amoris Laetitia to a hypothetical but plausible request for holy Communion by a divorced and civilly remarried Catholic, Father Paul Keller’s “Case study in communion for the divorced/remarried” makes a number of serious errors.

Correcting even some of those errors will take time, but it would be time justified in that Keller’s essay illustrates very well how typical pastors reading Amoris according to its plain sense (and not, lawyer-like, parsing various problematic phrases just narrowly enough so as to support a more traditional interpretation) are likely to stumble into accepting what I view as the central flaw in Amoris, namely, assuming that, in the final analysis, an individual Catholic’s assessment of his or her own conscience is the sole criterion that governs a minister’s decision to give holy Communion to a member of the faithful.

That assumption, however it arose and no matter who promotes it, is wrong.

Canonically, the case Keller posits is straightforward: his fictitious “Irma” entered into a presumptively valid marriage, her husband “Francisco” wrecked it, and Irma (probably justifiably on these facts) divorced him. While I agree with Keller that little about Irma’s story suggests that her marriage to Francisco was canonically invalid, tribunals are better at spotting potential grounds of nullity than are typical parish priests, and they know how to proceed in so-called ‘unlocatable respondent’ cases.

Still, Keller is right not to get Irma’s hopes up for an annulment but, as matter of canon law, nothing prevented Irma from receiving holy Communion to that point. Irma, however, recently entered a civil marriage with “Tony” and has been living with him, sexually actively, for some time.

Her current situation, according to unanimous Catholic tradition, is adultery (indeed, given the civil marriage, it is “public and permanent adultery”) and again, according to hitherto unquestioned Catholic principles, renders Irma ineligible to approach for holy Communion and, should she approach for it anyway, prevents Catholic ministers from giving her Communion.

Now on to some of the mistakes Keller makes in assessing Irma’s situation and advising her otherwise.

First mistake: Keller writes, “As I respond [to Irma’s request for Communion], I must follow the guidelines that Pope Francis described in Amoris Laetitia, issued after the discussions and discernment of two Synods of Bishops on family life.”

Wrong. In administering holy Communion to a member of the faithful, Roman Catholic ministers are bound not by “guidelines” supposedly fashioned from a single, ambiguous, and highly controverted papal document, but instead by the plain and dispositive text of another papal document, one called the Code of Canon Law, and by the common and constant interpretation accorded such norms over many centuries.

Equipped only with Amoris, however, it is not surprising that Keller would not advert to these norms in his discussion. Amoris never mentions them, either.

Second mistake: Keller writes that Irma “told me that Tony thought the idea [of their living as brother and sister] was crazy. As they were only 26 years old, Irma was afraid of what might happen to their relationship if they were no longer able to grow in their love through physical intimacy.”

Keller accepts, apparently without demur, Irma’s description of her objectively adulterous sexual relations as a way “to grow in love.” He thus radically fails to speak the truth in love to a child of God consulting him as a priest of the Church and minister of Christ’s sacraments.

Any priest so acting, let alone one acting in confession, would have to account for such a failure at Final Judgment. Moreover if, as a confessor, Keller approved Irma’s choice to engage in sexual relations with Tony, he has committed the crime of solicitation in confession.

Third mistake: Keller says that Irma “didn’t think Tony could handle the prospect of committing to complete celibacy for the next 70 years. Plus, both she and Tony wanted to have at least two or three more children.”

Setting aside 26-year-old Irma’s callow estimate of human life-spans and the sexually active period therein, Tony is not bound to observe “celibacy” at all. Nothing in Keller’s essay suggests that Tony is not free to marry immediately. Granted, he is not free to marry Irma because, as Keller admits, Irma is already married, but Keller’s point regarding Tony as not free to marry is simply wrong.

Granted, as a single man Tony is morally bound to practice continence and Keller should clarify this point for those who routinely confuse “celibacy” and “continence” (although Keller himself seems not to know the difference), but we need to be clear: Tony is not bound to celibacy based on Irma’s situation.

Fourth mistake: Keller writes, “Although I have not said so to Irma, I have wondered if it would be better for her to attend a non-Catholic church.”

Thank God a priest of the Catholic Church has not made such a reprehensible suggestion to a lay Catholic coming to him with urgent moral questions. Still, as Keller mentions this idea twice, he needs immediately to eliminate from his mind any notion about advising a penitent to commit some other objectively grave sins (e.g., ceasing to attend Mass on Sundays or even joining another faith) so as to ‘sooth’ guilty feelings experienced over an earlier grave sin.

Good grief, should we even have to say this?

Fifth (and central) mistake: “If [Irma] were to just come up for communion, I couldn’t deny her. First of all, everything I know about her relationship has come from within the sacrament of Confession. Outside of the sacrament, I can’t ‘use’ that information in any way, certainly not by publicly denying her communion.”

There are numerous errors here.

For starters, if (I say if) the only knowledge Keller has of Irma’s situation is her confessing, albeit not repenting of, an adulterous civil marriage, then of course he cannot withhold holy Communion from her. But then, had Irma, under the seal of confession, admitted to — I don’t know — killing the pope, Keller could not publicly withhold Communion from her either, though I doubt Keller would want to “accompany” Irma to the point of justifying her deed in conscience.

By invoking the ‘seal of confessional card’ Keller makes his sample case even more pastorally useless than it essentially was from the outset.

That said, while Keller’s information might be solely confessional matter, it is all but certain that others (Keller says Irma’s relatives moved to America too) know about her situation, as will her friends over time, and they will come to know how “the Church” responds to it. If Keller thinks earlier, foreign country marriages will never come to light, and that priests’ actions during the time they knew about such marriages will not later be questioned, he’s terribly naive.

Finally, and central to the operation of the routinely ignored Canon 915, Irma’s status as canonically-civilly married to Francisco in El Salvador and as civilly married to Tony in the USA is a matter of public record—even if some of the public records are difficult to access in this unusual case—and public records are sufficient bases upon which to take public actions such as withholding holy Communion from certain Catholics in accord with law.

Even beyond questions of Keller’s actionable knowledge, we now begin to see the fundamental problem of his approaching Communion distribution questions for divorced-and-remarried Catholics as Amoris seems to approach them, that is, without any reference to the requirements of the Church law, specifically Canon 915, which, as has been stated many times, requires Catholic ministers of holy Communion to withhold the sacrament from those who “obstinately persevere in manifest grave sin.”

There is no question that Irma’s case fits the classic situation of “public and permanent adultery” in canon law. Ministers confronted with such public facts should withhold the sacrament upon pain of dereliction of their duties under Canon 915.

But, dear reader, do you see how pastors, relying only on the import of Amoris, could walk right into Keller’s error?

Amoris assumes, without ever exactly stating it, that individual consciences (which can be very complex, often deal with hard cases, might be only partly informed, are never fully knowable to another, and so on) are the final arbiter of whether a would-be communicant must be given the sacrament.

Amoris, never mentioning Canons 915 or 916, seems to think that some process of pastoral “discernment” or “accompaniment” can lead divorced-and-remarried Catholics, even those not committed to a continent relationship as befits all non-married persons, to the point where, having satisfied themselves that they are not sinning, may approach for holy Communion, and the minister, irrespective of the communicant’s objective public status, must distribute it to them.

In other words, Canon 915, the central, historically uncontested, and canonically unambiguous norm controlling ministerial decisions to distribute holy Communion in such cases, is simply ignored.

It is the pervasive and steadfast refusal of nearly all “Amoris supporters” (I dislike the term, but it saves time) to face squarely the ancient tradition behind, and the unambiguous interpretation of, Canon 915 that dooms virtually all defenses of Amoris so far to irrelevance at best and to pastoral and even doctrinal disasters at worst. One cannot coherently discuss reception of holy Communion by divorced-and-remarried Catholics while ignoring the plain text of Canon 915.

Sixth mistake: Keller rephrases his claim that he is ‘constructively ignorant’ (my term) about Irma’s situation (in that he supposedly knows her situation only from Confession, so canonically he doesn’t “know” about it) so as to claim that it be wrong for him to withhold holy Communion from Irma.

But may I suggest that the opposite is true: Keller (not to mention the community, both now and over time) can have ‘constructive knowledge’ of Irma’s objectively irregular status in virtue of the fact that she has entered two public ceremonies each purporting to be weddings.

At the least, Keller’s phrasing of his dilemma might lead some to think that the canonically public status of a marriage, even of a civil marriage, is insufficient for action in the external forum unless such marriage status is also actually known by some unspecified portion of the community. That view of how law operates here is incorrect in itself but, by Keller’s own narration, a number of other people do in fact know about Irma’s first wedding and others will certainly come to know of it.

Seventh mistake: “Based on everything I know as a priest concerning sin, conscience, hope, Jesus, the teaching of the Church, and particularly the instruction the Church has received from Pope Francis in Amoris Laetitia, I tell Irma, ‘If you sincerely believe in your conscience that this is how Christ can aid your growth in holiness, then, yes. You may go to communion.’”

That advice is wrong (even as matter of Canon 916 on the communicant’s examination of conscience), but notice how Keller makes his decision to distribute holy Communion (under Canon 915, though Keller seems not to know about it) depend on Irma’s assessment of her conscience, and not his own duties as a minister faced with canonically public behavior.

I grant, perhaps based on things that Keller clearly does not know about “sin, conscience, hope, Jesus, the teaching of the Church, and particularly the instruction the Church has received from Pope Francis in Amoris Laetitia,” he might have innocently reached his conclusion and offered his advice, but his conclusions and advice are still wrong.

A man in Keller’s position, moreover, having been alerted to the possibility of so many errors in his thinking, and of such serious errors at that, is, I suggest, required to study these matters more deeply to bring his approach into line with Church teaching.

Final thoughts.

For readers who hoped that Keller’s essay might prove how wonderful it would be if we all read Amoris the way Keller and others think it should be read, four reactions to my post seem possible.

First: Peters has substantially misstated the law in regard to the reception of holy Communion by divorced-and-remarried Catholics and so he may be disregarded. To such persons, I extend the invitation to show me where I have substantially misrepresented the law controlling these situations.

Second: Peters is a heartless Pharisee who does not care about the pastoral problems of real people and so he may be disregarded. To such persons I say, that’s a rather tiresome ad hominem arising from the current antinomianism in the Church, but it leaves open the possibility that I might be correct. (Aside: why are critics of Amoris always being labelled ‘Pharisees’? Weren’t the Pharisees the ones trying to allow for divorce and remarriage?)

Third: Peters has stated the law correctly, but the law needs to change significantly. To such persons I say, please show us how the law can be changed without doing doctrinal-disciplinary damage to several aspects of matrimony, Confession, and the Eucharist.

Fourth: Peters has stated the law correctly, and the law’s general connection to pastoral integrity is evident. To such persons I say, we need to bring individual sacramental administration better into line with universal Catholic doctrine and discipline.

And a final, final thought.

Keller made up a plausible hypothetical to illustrate the advantages of his giving holy Communion to Irma, so may I offer a plausible hypothetical to illustrate its dangers?

One day, our civilly remarried and regularly communicating Irma’s doorbell rings. Francisco is standing there. His life bottomed out in prison, but by the grace of God and after pondering some hard truths heard from faithful Catholic ministers along the way, he has gone to Confession and now comes to beg forgiveness from Irma, being committed to resuming his spousal duties, chastened, humbled, and grateful for a second chance.

At which point he learns that Keller has smoothed the path for Irma to live in a false union with the apparent blessing of the Church. How does one compare Francisco’s failures (per Keller, failures arising out of pervasive poverty and drug-enhanced gang pressures) with Keller’s failure to speak rightly to a penitent while being safe in America, and faced only with questions from a confused Catholic woman?

Edward Peters is an American canon lawyer and an adviser to the Apostolic Signatura, the Vatican’s supreme court. He is a professor of canon law at the Sacred Heart Major Seminary of the Archdiocese of Detroit and maintains a canon law blog here.