Divorce and the duties of Catholic lawyers

Civil lawyer C. T. Rossi, in his essay Permission for Divorce and the Catholic Lawyer’s Dilemma, complains that “the Church has done little to educate its legal practitioners about their responsibilities as Catholic lawyers”, complains that it is sometimes difficult for attorneys to know whether it is “morally safe for them to assist a potential client”, and complains about prelates “who refuse to lift a finger to assist in the moral burdens that American Catholic lawyers face every day.”

My initial reaction to Rossi’s litany of woes, however, (something akin to “Okay. So, deal with it.”), is insufficient given that, not only does Rossi aim these complaints-qua-accusations at “the Church” herself, but he manages to mangle nearly every point he addresses and, in regard to the Jesuit Felix Cappello, he truly, truly, embarrasses himself. Where to begin?

How about with the canard that “the Church has done little to educate its legal practitioners about their responsibilities as Catholic lawyers”.

Has Rossi ever, I mean ever, picked up a classical moral theology text book, perused a collection of reliable Catholic Q&A columns, or read a canonical journal? Virtually everyone one of these publications has dealt many times with the duties of Catholic lawyers toward their clients and the civil legal system. How can anyone remotely familiar with the Catholic moral tradition not be aware of the frequent treatment that these questions have been accorded by esteemed thinkers in the Church? Unless, that is, one is not really so familiar with the Catholic moral tradition, in which case, though, one is hardly in a position to accuse the Church of not addressing these serious issues.

What’s that? Can’t find reliable textbooks on moral theology? Okay, how about googling “John Paul II”, “lawyers”, and “divorce”, which is it all it took me to find reports on that sainted pope’s famous 2002 address to the Roman Rota in which he considered exactly the questions Rossi claims the Church has neglected. Frankly, I think that the pope’s rhetoric in that address was a bit narrow (or better, the word “divorce” needs to be understood the way the canonical tradition understands it) but at least I have a right to an opinion on it because I’ve actually read the address. I see no evidence that Rossi has even heard of it—unless he skipped it as an inconvenient counter example to his claim about the Church not addressing his concerns. Which I frankly doubt.

Rossi refers to a controversy between ‘Mary’s Advocates’ and a local bishop about whether Catholics need a bishop’s permission to file for divorce. He mentions my published commentary on the canon law in this area and notes the remarks of another canonist who takes a different position. Rossi, not being a canon lawyer, declines (at first) to arbitrate the dispute. Fine, although the impression that my article (extended and supported by pertinent citations) has been effectively countered by talk-show remarks from another lawyer is an impression that Rossi should have cautioned against.

But, in any case, having just admitted his lack of qualifications to weigh in on this canonical argument, Rossi attacks bishops for their (alleged) disregard of “Catholic lawyers … right to see canon law enforced [by] the local bishop giving or withholding approbation of a civil divorce proceeding”! Does Rossi not see it? That is the precise point at issue, whether bishops have to issue such rulings in the first place! So, is Rossi qualified to conclude that bishops have such an obligation, or not? I say, not. Not at all.

But finally—and what really got me to sit down and make this reply—were Rossi’s painfully and obviously ignorant remarks about Felix Cappello, S.J., who was probably the finest canonist-moral theologian of the 20^th century—you know, the tradition Rossi shows no signs of ever having actually studied.

Cappello makes, among many other points in this area, the time-tested and universally-accepted observation that, under certain circumstances, confessors can leave penitents ‘in good faith’ about a situation that the penitent is, in fact, wrong about, but not wrong with what the tradition would recognize as a ‘studied will’. Rossi crudely casts this advice as a “don’t ask, don’t tell”, something that “arguably promotes some of the favorite vices of the modern day Church: sloth, cowardice, and pride”, and suggests that Cappello’s position (whom Rossi refers to in scare-quotes as a “renowned Roman canonist”) believes “it’s easier for the churchmen if the sheep remain blind.” That’s not just wrong to the point of ridiculous, it’s insulting to the memory of a man whose reputation for holiness perdures decades after his death.

What Cappello (and every other trustworthy moralist who has ever addressed the matter) knew was that “material error” is bad, but “formal error” is spiritually worse and that the first duty of a spiritual physician is to do no harm! Cappello’s advice, by the way, it would doubtless surprise Rossi to find out, was offered by his colleague, the Dominican Prummer, in regard to advising civil lawyers about divorce cases, writing, “In practice a confessor should not cause disquiet to any Catholic advocate who cannot refuse to undertake such cases without very serious inconvenience, provided that there is no scandal and nothing more is intended than the civil effects of the divorce.” Prummer, Handbook (1956) n. 949 (my emphasis). Why should civil lawyers get some slack here, while their clients don’t?

The Servant of God Felix Cappello is buried in the St. Ignatius Church in Rome, a few feet from where his well-worn confessional stall stands today. Rossi might stop by there some day and peer through its glass panel. He would see therein a seat littered with slips of paper left there by pious faithful asking for the great man’s intercession or thanking him for favors that some think he has accorded.

Rossi might also ask for the grace to avoid accusing the Church of a negligence she has not shown and ask forgiveness for his mean remarks against the memory of a fine priest about whom he knows nothing.