Canonical Basics

The Question:

The bishop of Birmingham, Alabama has decreed a new law for his diocese, which took effect on November 18, 1999. A letter with a copy of the decree was sent to the priests of the diocese containing background information. The decree reads:

In churches and shrines, as well as oratories where Mass is open to the public, the priest celebrating the Eucharist at a freestanding altar is to face the people.

 

At any Mass that is or will be televised for broadcast or videotaped for public dissemination, the priest is to use a freestanding altar and face the people.

 

Is this valid?

The Answer:

The Saint Joseph Foundation has received many requests for comment on this legislation.

In his covering letter, the bishop refers to a "well-intentioned but flawed and seriously misdirected movement…in which priests have been encouraged "on their own initiative without permissions of their local bishops to take liberties with the Mass by celebrating in a manner called ad orientem." The movement to which the bishop refers is not a new one but is a practice that has existed in the Church since the earliest times, continues today, and is practiced universally. However, it is not an exclusive posture and has no doubt been eclipsed quantitatively by the versus populum posture.

The bishop is incorrect when he declares that "no one may act in this regard without the permission of the bishop." A lower level legislator would invalidly usurp the authority of the Apostolic See or the conference of bishops were he to exercise the prerogatives reserved to an authority at a higher level. A diocesan bishop is required to moderate the liturgy in his diocese in accord with the norm of law. He may not on his own authority derogate from the prescriptions of the approved liturgical books without provision in the law or a special mandate.

Bishop Foley declares that a legal custom has been established that Mass at a free standing altar is celebrated facing the people; but the custom of which he speaks seems to attach to an inanimate object, the altar, rather than a community of persons, as required by canon 23. A thing, even if it is universitas rerum (a universal thing) and a juridic person, is incapable of introducing a custom. Indeed, there is serious doubt that any community in the diocese capable of introducing a custom has celebrated Mass exclusively versus populum with the intention of introducing a law. What has taken place in the diocese of Birmingham gives rise to fashion, not custom.

There is also serious doubt whether the practice of celebrating versus populum, which is contrary to the universal law that presumes the ad orientem celebration of certain parts of the Mass, has been observed for thirty continuous years, as required by canon 26. Furthermore, the prohibition in the law of the diocese against a future custom of celebrating ad orientem must yield to the immemorial custom.

It must be emphasized that one may invoke custom in defense of one’s position, as the bishop has done in this instance, and that such invocation, if valid, should suffice in defense of the prescriptions of the law. Here, the bishop has taken the further and curious step of establishing a contrary law.

As it pertains to the celebrant facing the people "at a freestanding altar," the decree, in one sense, accords with the norms of the Missale Romanum. Indeed, when a congregation is present, the celebrant is required to face the people for some parts of the Mass. But if the particular legislator intends this posture as the exclusive posture for the entire Mass, then he has invalidly attempted to enact legislation contrary to that of the Supreme Legislator.

To the new law of the diocese of Birmingham, which is certainly invalid, the bishop has added a penal offense to the catalog of delicts in the universal law and perhaps to the particular law as well. Bishop Foley has made it clear that a violation—not of obedience but a violation of the posture or of the television blackout—renders the offender liable to penalties, even suspension. While this might apply to residential priests, it is questionable that it would apply to visiting presbyters or bishops. Such clerics are usually not granted—nor do they need—faculties of the bishop of Birmingham, so there is nothing to withdraw. Also, there is doubt as to whether a diocesan bishop could penalize a priest not of his jurisdiction.

Bishop Foley’s obvious target, Mother Angilica, has commented on EWTN about the decree with remarkable and commendable restraint. As far as we know, hers has been the only comment made by an affected party. The portion directed to priests obviously does not apply, but she might well become involved with the portion concerning televised Masses.

One who believes his or her rights have been violated by the legislative decree of a diocesan bishop is always free to appeal to the Holy See. However, canons 1732-1739 on recourse against administrative decrees cannot be invoked because the act is legislative rather than administrative. It appears that according to the Apostolic Constitution, Pastor Bonus, the Pontifical Council for the Interpretation of Legislative Texts is competent to determine that diocesan law is not in accord with universal law. Another way in which Bishop Foley’s decree could be challenged is by the appeal of a priest who was penalized for disobeying it. An appeal of a penalty immediately suspends its effect (c. 1353), so the priest would not suffer unduly while the appeal ran its course. The defense would be based upon the assumption that one cannot be penalized for violating an invalid decree.

The matter is now undolding before our eyes and we must await the outcome.