When, please, were ‘adulterers’ actually ‘excommunicated’?

I hold amateurs to canonical standards when they venture canonical claims, so I certainly hold canonists to canonical standards when they venture canonical claims. Lawyers must respect the legal meaning of legal terms when discussing law, else, what’s the point of their expressing opinions on law?

Abp. Charles Scicluna, a highly credentialed canonist, recently asserted that “in the olden days, whoever was guilty of adultery was excommunicated. It was a proper excommunication. But now, in the Church’s law this is not so any longer…”

The phrase “olden days” does not have a canonical meaning, of course, but words like “adultery”, “excommunication”, and “Church law” do have canonical meanings. So here we have a canonist-prelate, while defending his shocking implementation of Amoris laetitia, contrasting his modern approach with a time wherein, supposedly, Church law punished adultery with excommunication.

But, may I ask, does any one actually know such days? Does Amorisand/or Scicluna’s implementation of it, represent a dramatic shift in how the Church has, till recently as far as anyone is aware, regarded certain Catholics? Let’s see.

The Johanno-Pauline Code of Canon Law, which is already 34 years old, does not excommunicate Catholics for adultery. Adultery is mentioned in only one canon of the 1983 Code (1983 CIC 1152) where it provides grounds for spouses to separate but not for an offender’s excommunication.

But perhaps Abp. Scicluna has in mind older olden days.

The Pio-Benedictine Code of Canon Law, which went into effect 100 years ago, did not excommunicate Catholics for adultery. The 1917 Code did criminalize adultery in c. 2357 § 2—using language that suggested that the adultery had to have been a crime under local civil law (see Dom Augustine, VIII: 415, but see Sipos, 860)—but even so, the canonical penalty for adultery was not excommunication, it was “exclusion from legitimate ecclesiastical acts until [the adulterer] gives a sign of returning to his senses.” And the “legitimate ecclesiastical acts” from which those convicted of adultery were excluded, you ask: things like working as a Church property administrator or as an ecclesiastical notary, or serving as a godparent at baptism (1917 CIC 2256, 2º)—i.e., things having little to do with excommunication.

But perhaps Abp. Scicluna has in mind even older olden days.

A good place to look for pre-1917 excommunications is Bl. Pius IX, const. Apostolicae Sedis moderatione (1869), in Gasparri, Fontes III: 24-31, but Pius’ reformed list of censures (including many excommunications) does not mention adultery. Is it possible that some universal excommunications survived the promulgation of ASM and that some of those excommunications dealt with adultery at least up until 1917? I suppose, but given that ASM does not mention adultery among the acts occasioning excommunication, the burden falls on those who would make that claim.

Having looked back, now, nearly 150 years and having found no evidence that adultery was canonically punishable by “a proper excommunication”, I have to wonder whether the archbishop really meant “adultery” when he said “adultery” (or did he mean perhaps “divorced-and-remarried” instead of “adultery”, two related but distinct phenomena?); whether he really meant “excommunication” when hesaid “excommunication” (or did he mean perhaps “withholding holy Communion” instead of “excommunication”, two significantly distinct phenomena); or whether he really meant “Church’s law” when he said“Church’s law” (or did he mean perhaps “particular legislation”, two rather distinct phenomena)?

Each of those topics can be, and should be!, usefully discussed in the context of Amoris, but that can’t happen until we are sure about what matters are on the table for discussion at any given point.

In sum, perhaps someone can let us know where canon law excommunicated Catholics for adultery; or perhaps someone can clarify whether the words used in this part of the archbishop’s interview expressed what he really meant; or perhaps the claim that Church law imposed excommunication on those who committed adultery, at least in the memory of anyone alive today, could be acknowledged as mistaken and withdrawn. Progress can be made, I think, by following any of these options.

An afterthought: by extending the notion of the “olden days” back several centuries to, say, the Council of Trent (ref. XXIV, chap. 8), one can find sanctions threatened against persons (including married persons) living in concubinage and thus one can see a form of “adultery” punishable by censures up to and including excommunication. Now, whether a Tridentine legacy on a socially noisome form of adultery (a norm that seems, in any case, to have been abandoned 100-150 years ago) justifies the Maltese bishops’ recent evisceration of Canon 915 in face of divorced-and-remarried Catholics (and inexorably before anyone who feels “at peace with God”), remains to be seen. One wonders just how old the “olden days” can be and still so vex people who never lived under them to the point that a modern norm such as Canon 915 and the values it protects today must be jettisoned. But as above, one has to know that’s what on the table for discussion before being able to discuss it usefully.