Why should a biblical scholar take note of canon law? We might equally ask, why should the blogging son of a canon lawyer suddenly push onto the front stage an article written by his father almost six years ago? Why now? Thomas Peters, who calls himself “American Papist,” published a few days ago a blog post titled “Church Law says Permanent Deacons (and all clerics) are obliged to abstain from sex, notes Canonist Edward Peters {updated}” in which he states he has “been struggling to decide the appropriate way to help bring this issue before the Church’s attention.” After struggling for five years, he decided a post on his blog and a Twitter comment remarking on his “my controversial post showing that permanent deacons (& all clerics) are obliged to abstain from sex” would be best .
Since it appeared on my Twitter feed, and since I have taught biblical studies to candidates for the permanent diaconate and their wives for the past six or seven years, I was intrigued not so much by the post but by the actual article his father wrote in 2005. The canonist Ed Peters has also blogged on this article, here and here, but it is always best to go to the source and not a summation of the source. First of all, the article is erudite and clearly written and as a result comprehensible even for one who is not a canon lawyer, but still Ed Peters’ article “Canonical Considerations on Diaconal Continence” brought many of my worst fears, suspicions and prejudices regarding canon law to fruition. There is no discussion anywhere in this article on biblical teachings regarding sex and marriage. Although Jesus’ teachings on sex and marriage might be alluded to in this article, they are not cited once in the body of the paper or in the footnotes. I could not locate allusions to Paul’s writings at all in the body of the paper or in the footnotes. Apparently, they are irrelevant. The only biblical passage cited by book and chapter, and that in the last sentence of the entire article, is 2 Kings 22-23. The Bible seems hardly central to canon law, though one suspects it must matter somewhat. I have a suspicion as to why 2 Kings 22-23 is the only passage noted and I will come back to this passage at the end of this post. Another curiosity is why this article, published in Studia canonica, (2005), pp. 147-180 over five years ago, would suddenly be pushed back into the light of the blogosphere. Why now? I think that is related to current events and a certain countdown taking place for Ed Peters and I will discuss it, too, at the end of the post.
As I noted above, it is all credit to Canonist Peters that he writes so clearly and coherently that even a canon law rube can follow his argument. I can, however, comment most clearly on the biblical teachings regarding marriage, celibacy, continence and chastity, not the canon law, and that is what I will do initially. Following that, I will examine Ed Peters arguments with respect to the canon law, with all deference to his clear expertise, and show it to lack the human sensitivity and Christian charity that permeates the New Testament teachings on marriage and celibacy.
1. Jesus quite clearly points to the call to faithfulness ("continence") in marriage amongst his followers in Matthew 19, and even the call to celibacy for those able to accept it:
"So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate." They said to him, "Why then did Moses command us to give a certificate of dismissal and to divorce her?" He said to them, "It was because you were so hard-hearted that Moses allowed you to divorce your wives, but from the beginning it was not so. And I say to you, whoever divorces his wife, except for unchastity, and marries another commits adultery." His disciples said to him, "If such is the case of a man with his wife, it is better not to marry." But he said to them, "Not everyone can accept this teaching, but only those to whom it is given” (19:6-11).
Not only is faithfulness called for in marriage, however, but Jesus goes on to instruct his disciples that there are those for whom celibacy is the norm, who are called not to marriage but to serve the kingdom as “eunuchs” (Matthew 19:12), those who forego all sexual relations.
Later, Jesus speaks of the celibate life as the heavenly life: “For when they rise from the dead, they neither marry nor are given in marriage, but are like angels in heaven” (Mark 12:15). As a result, from the very earliest stages of Jesus’ formation of the Church, the celibate life has been a model of the heavenly Kingdom, a sign of eternal life. A few Jewish groups, such as the Essenes and the Therapeutae, codeterminous with or earlier than Jesus, also opted for the celibate life, though it was not widely common in Judaism. Later some Christian groups, such as the Encratites and some types of Gnostics, rejected sexuality even within marriage, but this has always been seen as a heretical stance in Christianity. Sexuality is a human good, given to us by God for procreation and the creation and sustenance of love within marriage.
Jesus himself does not speak much of the married life beyond this, but the Apostle Paul does in a number of passages. It is stated by Paul that some of the Apostles, including Peter, are married. In Paul’s defense of his apostleship to the Corinthians he asks, “Do we not have the right to be accompanied by a believing wife, as do the other apostles and the brothers of the Lord and Cephas?” (1 Corinthians 9:5). The clear impression is that a number of apostles, relatives of Jesus active in the Church and Peter himself are all married. There is no sexual limitation placed on this marriage. Earlier in the letter, when responding to Corinthians who wished not to have sexual relations with their wives, Paul said, “Do not deprive one another except perhaps by agreement for a set time, to devote yourselves to prayer, and then come together again, so that Satan may not tempt you because of your lack of self-control” (1 Corinthians 7:5). While Paul preferred that all were like him, having the gift of celibacy, Paul understood the marital relationship as one that should continue to be consummated sexually, even if the partners took time off for spiritual devotion.
In the Pastoral Epistles, Paul (though many doubt his authorship of these letters) states that each order of clergy may be married once, whether bishops, elders, or deacons (see Titus 1 and 1 Timothy 3). The passage which deals directly with deacons is found in 1 Timothy 3:8-13:
"Deacons likewise must be serious, not double-tongued, not indulging in much wine, not greedy for money; they must hold fast to the mystery of the faith with a clear conscience. And let them first be tested; then, if they prove themselves blameless, let them serve as deacons. Women likewise must be serious, not slanderers, but temperate, faithful in all things. Let deacons be married only once, and let them manage their children and their households well; for those who serve well as deacons gain a good standing for themselves and great boldness in the faith that is in Christ Jesus."
The only limitation placed on deacons with respect to marriage, as with all of the clergy, is that they be married only once. It is clear that sexual relations are a part of their marital relationship as they are to “manage their children and their households well.”
If I was to sum up the limited NT material examined here with respect to deacons, understanding that the Church has taught for some time in the West that Bishops and Priests cannot marry, it is that they can be married once and that they are to remain faithful to their wives, even after her death, but that sexual relations are assumed to be a part of their marital relationship, as no limitation is mentioned with respect to this by Paul. Indeed, when Paul responds to married couples in Corinth who would like to remain perfectly continent while married, Paul rejects this as a proper solution except for short periods of time. Frankly, the current practice of the permanent diaconate in the West, only restored in 1967, seems to align with the biblical teachings.
2. What then bothers Ed Peters about the current practice of the married permanent diaconate in the Roman Catholic Church? It is that they have sex with their wives. In his article he writes that “there is no doubt, of course, that by expressly admitting married men to the permanent diaconate, the canonical obligation of clerical celibacy, a secondary or derivative good distinguishable from the more fundamental obligation of continence set forth in c. 277 § 1, is abrogated for such men. But no canonical provision makes any reference, let alone an express one, to lifting the clear and unqualified obligation of continence binding all clerics already established. Indeed, the extraordinary phrase "with the consent of his wife" suggests just the opposite” (153). Peters argues that the phrase “the consent of his wife” indicates that she is to agree to forego sexual relations with her husband in order for him to become a permanent deacon. This is not at all clear to me, or other commentators (see the footnotes in his article), or the Church for that matter since permanent deacons do have sex with their wives currently, but Peters says that it “seems strained” to imagine a woman’s consent has to do with the “practicalities of domestic life” or the burden placed on a family by his diaconal responsibilities (154). Actually, consent being necessary due to the great stress placed on a family does not seem a strained explanation at all, as I have witnessed the great sacrifices husband, wife and children all make when a man becomes a permanent deacon. What seems strained is attributing it all, again, to sex when the practice of the Church is quite clear: married deacons may have sexual relations with their wives.
Nevertheless, Peters forges ahead arguing that according to 1983 CIC c. 277 §1 “all clerics, including married permanent deacons” are bound “to the obligation of ‘perfect and perpetual continence for the sake of the kingdom of heaven.’ In that case, obviously, the husband's choice to accept ordination and to assume its burdens, including continence (albeit without celibacy) would leave the wife without the opportunity to exercise her legitimately acquired conjugal rights. It is in the face of her own loss of conjugal rights, I suggest, and not because of some vague notions of marital harmony—and even less to canon law having granted one person a power of personal preference over another's ability to receive a sacrament—that the 1983 Code recognize a wife's extraordinary power of veto over her husband's desire to seek the sacrament of orders” (155). It is here that my own limitations with canonical language come into play because, as Peters says, the married deacon is not celibate, but is called to “perfect continence.” Yet, I understand celibacy as a forgoing of marriage and so all sexual relations, while continence is a state of sexuality proper for one’s place, as a single person, as a celibate cleric or religious or as a married person. In that case, the sort of continence one is called to is dependent upon whether one is married or not.
Now, Peters also says that “no commentator on the 1917 Code holds licit the use of marriage by men in major orders” (159). That is precisely the case because as Peters has written three pages earlier there was no permanent diaconate in 1917: “Because the permanent diaconate was not (re)instituted in the West until 1967, no provisions in the 1917 Code specifically discuss permanent deacons and their obligations in regard to continence or celibacy”(156). That reality might have had something to do with the lack of discussion of the permanent diaconate, though Peters relies heavily on the canons of 1917 in his own discussion. It should also be said, as Peters himself writes on page 161, that the word “continence” is not even used in the code of 1917, only the word “chastity.” It is up to those more learned than me to determine if these two words are identical or equivalent under the canon law. He writes on page 162 that “given the ample demonstration that, under the 1917 Code, continence was strictly required of all clerics in major orders, even married ones, and ...there is no exemption for married deacons in this regard.” Is it proper to write this when there was no permanent married diaconate in 1917 and when the word “continence” is not even used in that code?
3. Peters then begins to examine some later documents. Paul VI's General Norms for Restoring the Permanent Diaconate, Sacrum diaconatum ordinem, mentions age based restrictions (35) for the permanent diaconate in nos. 5 and 12, but does not discuss continence at all. There is, however, a further note that the wife’s consent is necessary before her husband can be ordained in no.11. Ed Peters takes this to indicate again that this consent is to “perfect continence,” to forego all sexual relations, even though the phrase is not mentioned at all and even though consent can certainly be seen as consent to the changed status of her spouse and the subsequent changes in her family in general (165-166). I do not see this at all speaking to a “perfect continence” on the part of the married deacon and his wife. Later Peters cites another document. He writes, “in 1998, the Congregation for Catholic Education and the Congregation for the Clergy issued a complex of documents beginning with a "Joint Declaration and Introduction" (Joint Declaration) prefacing the Congregation for Education's "Basic Norms for the Formation of Permanent Deacons" (Basic Norms) and the Congregation for the Clergy's "Directory of the Ministry and Life of Permanent Deacons" (Directory)” (172). This is what the Directory says in no.61:
"Married deacons should feel especially obliged to give clear witness to the sanctity of marriage and the family. The more they grow in mutual love, the greater their dedication to their children and the more significant their example for the Christian community....This love grows thanks to chastity which flourishes, even in the exercise of paternal responsibilities, by respect for spouses and the practice of a certain continence. This virtue fosters a mutual self-giving which soon becomes evident in ministry (emphasis added)." (172)
This is a beautiful passage which in its focus on “mutual love,” “children,” and a “certain continence” speaks to a properly ordered sexual relationship not a lack of one. A “certain continence” is certainly different than the “perfect continence” to which Peters earlier referred from the 1983 CIC 277 and might be more akin to that which the Apostle Paul referred in 1 Corinthians 7.
There is another positive reference to the sexual relationship of the married permanent deacon in Basic Norms no. 68:
"For married candidates, to live love means offering themselves to their spouses in a reciprocal belonging, in a total, faithful and indissoluble union, in the likeness of Christ's love for his Church; at the same time it means welcoming children, loving them, educating them and showing forth to the whole Church and society the communion of the family." (173)
Peters suggests that “welcoming children” could refer to children welcomed before ordination or to adopted children (173). This is foolish and even silly if adoption is taken as its only possible meaning; it is quite obvious that a normal means by which a married couple welcomes children is through sexual intercourse and the text is not given in a past tense, but a continuing present tense, the participial form. The couple will continue to be open to “welcoming.”
4. The overarching question for me, especially in light of the actual practice of the Church with respect to permanent deacons and the biblical teaching of Paul, is what is at stake in this argument for Ed Peters? What’s the point? What is so troubling about married permanent deacons having sexual relations with their wives? What Ed Peters argues conjures up the ghosts, past, present and future, of a Church that has trouble with sex, even in its properly ordered place. Something a little bit off with sex, isn’t there? If only God could have done a better job with that. Not, “no sex, please, we’re British,” but, “no sex, please, they’re deacons.” Except it is not the Church that has a problem with married permanent deacons having sex with their wives, it is Ed Peters. How that is Peters has figured this all out, but the Church has not, going its merry way, oblivious to its own teaching, save for the Knight on the white charger coming to save it from itself. I will admit my own problems, as a New Testament scholar, with canon law, but those who hearken to it must also understand the biblical teaching, in this case that of Paul and Jesus, remains relevant to the practice of the Church. Jesus and Paul suggested that not all could forego sexual relations, but only those who were called to such a life. Paul wished all could be like him, but not everyone shared in his gift. To those who were married, therefore, which included deacons, elders and bishops in his own day and beyond, Paul suggests that a period away from sex for a married couple be temporary not permanent. The Church has returned to a married permanent diaconate and it has chosen the wise, inspired counsel and practice of the Apostle Paul instead of that of Ed Peters. If permanent deacons are to be perfectly continent, they ought not be married, but married permanent deacons ought to have sex with their wives. It’s the Christian thing to do and according to the law and practice of the Church.
5. Now, I want to return to my initial questions. Ed Peters refers to no biblical teaching in his article of thirty-four pages, as I noted above, but one: 2 Kings 22-23. What takes place in these two chapters? In these passages, King Josiah calls back the Israelites from their idolatrous ways and back to the law of God. I encourage everyone to read these two chapters for I believe that Ed Peters sees himself either as the High Priest Hilkiah who found the lost book of God’s law and delivered it to King Josiah or as King Josiah calling the people back to the Law, in which the King destroyed the idolatrous shrines, killed some of the pagan priests and returned the people back to the true law of God. Either way it indicates that he feels the Church has followed an idolatrous or pagan path in allowing married permanent deacons to have sex with their wives. This is a strange biblical passage with which to draw an analogy to the married permanent diaconate, especially given the biblical evidence from the NT, which allows and encourages sexual relations in marriage even for deacons, and apostolic practice in the ancient Church which did so also. He might not like the current practice, clearly he does not, but it hardly seems the equivalent of an abandonment of the covenant or idolatry. What position would this place the Orthodox Churches in for instance who allow priests to marry? Would they be guilty of abandoning the covenant and idolatry too? Peters is, indeed, willing to state that current practice might be “contrary to divine law”(178).
But why is this issue being raised again now in the last few days, in his son’s blog posts and his own, given that his article was written in 2005? I have a hypothesis and the clues come from the article itself. Peters notes that a custom which has taken place contrary to canon law might become law: “finally, however, because such a practice is, it seems certain, one actually "contrary to canon law," it could obtain force of law only if it was "legitimately" observed for "thirty continuous and complete years."The norm in question, of course, c. 277 of the 1983 Code, while consistent with earlier law, has itself been in place only for some twenty years” (178-179). Those words, of course, were published in 2005, but the year today, 2011, brings us to 28 years, only two from the "thirty continuous and complete years” which would make this practice law according to Peters. Yet, there is something else going on beyond this time-frame which I think troubles Edward and Thomas Peters and has lead to a flurry of recent activity with respect to an obscure article on canon law: the establishing of the Anglican ordinariate, which is bringing into the Roman Catholic Church something even worse than married deacons: married priests.
I think Peters is wrong, of course, about the law of the Church and ignorant of the biblical evidence. It is already the law of the Church to allow married permanent deacons to have sex with their wives, as it is for married priests who have been brought in from the Lutheran or Anglican churches for instance. I am equally certain Peters believes himself correct and I would grant him this goodwill. But why is this such a powerful issue for him? Why does it matter so much to him that married permanent deacons engage in licit sexual relations with their wives? Why does he want the Church to act against the clear teaching of the Apostle Paul with respect to married couples? Why would he want to create breaches amongst married couples? I cannot speculate, but to argue against the practice of the Church, the current teaching of the Church, and the biblical evidence by casting himself as the High Priest Hilkiah or King Josiah suggests issues beyond my competence as a biblical scholar.
John W. Martens
Follow me on Twitter @johnwmartens
A LAY canonist: what a perfect expression of a wolf in sheep's clothing. Although, misquoting Kipling one might say: the lay of the species is so much purer than the clerical.
And if that is not ad hominem enough: Coming from SHMS it surprises me not. I had my diaconal formation there in the 1970's and was ordained by Cardinal Dearden who's heavenly hand is doubtless being restrained from smiting the place.
Où sont les neiges d'antan?
http://canonlawblog.blogspot.com/2011/01/debating-complex-points-of-law-is-hard.html
I'm afraid I stopped reading when I read about the author's prejudice against Canon Law. Peters' article was a Canon Law article, not a Scripture article. You can find all the scriptural and traditional arguments underpinning the canonical position from studies such as Cohini's ''The Apostolic Origins of Priestly Celibacy.''
I will go back and read this post but when I have a little leisure and can put your ''fears, suspicions and prejudices regarding Canon Law'' to one side. I also agree with Peters.
I think you are absolutely right to be upset and frustrated about the debate, for all the reasons you raised from your perspective as a scripture scholar and not a canonist. The question being addressed by Ed Peters (and, I would argue, only by Ed who is a canonist and not by his son Tom, who is not) deals with a valid but very technical issue of canon law. It is a question that belongs to the pages of a canonical journal like Studia canonica, canon law classes, and the like, and isn't something to be paraded about to advance a certain agenda in the church or thrust on Catholics who are just trying to live out their faith the best they can.
You ask about the relationship between scripture and canon law, and for better or for worse, there isn't much of one. Really, canon law governs the human side of the church, the administrative side. Scripture governs the spiritual and theological. They do interlap somewhat, but also healthily remain separate.
As far as the issue of continence for permanent deacons, the debate seems to me to be the result of an institution that is very new in the church, the permanent diaconate. Its something that the church is still refining and defining. Just over a year ago a change was made to canon law regarding the diaconate (Omnium in Mentem). While deacons are rightly considered clerics, the law was changed to note that deacons do not participate in the ministry of Christ the Head, as priests and bishops do. This is a significant change that indicates, among other things, that our understanding of the diaconate is still developing.
This is related to Peter's discussion of clerical continence. In one sense he is rightly pointing out an inconsistency in the law that needs clarification, and this is what canonists are supposed to do. I would say he is contributing to the discussion to parse out its consequences and indicate what logically follows if nothing is changed. However, this must be done responsibly and with a constant eye to one's audience, and unfortunately it has been blown into politics as usual. This is damaging and scandalous to the faithful, and your blog post is exhibit A of that.
For what its worth, in my own opinion I do not think the law envisions permanent deacons not having sex with their wives. You can make the argument strictly from what the law says that it does, but as you note, this is not consistent with our marriage theology and is overly casuistic. I chalk it up to an inconsistency in the law that is a result of an underdeveloped institution of the permanent diaconate that will eventually be clarified. Until then, we have to endure conversations like these that may be interesting for canonists, but need to be kept within their proper context.
One hopes (and I'm sure, in truth, that it does) that biblical scholarship is one of the sources that informs canon law and I appreciated its lens brought to bear on this topic!
In a case where the Church approves of a practice that seems to violate my interpretation of canon law, it seems the best course of action would be to figure out why my interpretation of that law is wrong rather than concluding that the Church is wrong for violating my interpretation of the law.
I didn't know that the first article was from 5 years ago- so, yes, the timing is interesting.
I pray for unity. The Anglican wave coming home is such a blessing. I pray that Orthodox wanting to submit themselves to Rome would be welcome- but reading some of the commenters and experts about celibcay, continency, etc....it is disheartening
Giving and receiving pleasure is part of what this unity is about. Maybe for some, pleasure is a quality that does not reflect the house of God well. This means, usually, that sexual pleasure is the miscreant. Why the church so often separates out sexual pleasure, as a focal point to zero in on pleasure as evil, is the question.
Pleasure, as a strong impetus for the good, is well understood by scholars, by musicians, by artists, by saints, by writers, by composers, by all who know that success is accompanied by pleasure, as is creative initiative. While pleasure is neither good nor bad in its own right, the church seems to take pleasure in reflections that see sexual pleasure as evil pleasure, or at least, as the least of the best possible choices for human activity. Giving or experiencing pleasure is our foretaste of the goodness of Heaven.
Sacrifice is a quality that goes hand-in-hand with pleasure, yet the hand-in-hand aspect is lost in the over-simplification, and in the basic mindless or simple-minded, over-stated approach, to the promise of sexuality that is meant and called to be the reflection of God’s love for us all. It is the sexual component of marriage that makes this so. While “some Christian groups, such as the Encratites and some types of Gnostics, rejected sexuality even within marriage, ... this has always been seen as a heretical stance in Christianity,” and the discussion should end there. Perhaps this discussion can hopefully burst forth in a new awareness of blessed matrimony.
A French proverb says that gratitude is the heart’s memory. There is no gratitude when the heart is cut out of memory. Romance in involved in all love, even in the idea of love, and romance helps us to understand the love of God as romance. Gratitude is a natural blessing of sexual pleasure. It is the male and female who can live the original intent of our Maker, by their full embodiment and embrace of this gift of marriage, where two become one. Einstein said that everything should be made as simple as possible, but not simpler. Marriage and its intimacies reflect the bounty of God, the bounty of gift, the bounty of giver, the bounty of creation, the bounty of heart, the bounty of romance, and to share this bounty is to enjoy an essential relationship between God and humanity. Marriage should be held in honor as the continuation of the work of the creator. To say that the gift and its intimacies are really meant to be something else, something both meant and understood as the absence of such bounty, is anathema to Bounty Itself.
May God bless us all, every one.
http://query.nytimes.com/gst/fullpage.html?res=9C0CEEDD113BF93BA25753C1A966958260
1) his ministry his "great and useful" to his diocese; 2) his children are young and require maternal care; 3) he has elderly parents, in-laws (or presumably other disabled adult relatives) who require care.
The reasoning is basically that if a deacon has to hire a nanny or nurse, the situation creates the scenario that Canon 277 is targeted at: a position of potential temptation and scandal.
The assumption is that if a deacon has a nurse or nanny living in his house to care for his kids or their grandparents, he might be tempted to have intercourse with her, and it's better to let him marry her than be in active sin or in constant temptation, or to have tongues wagging.
So doesn't that ruling by the Church imply that deacons are allowed to have sex with their wives?