Commentary: Immigration and 'canonical penalties'

Jun 14, 2018 / 16:02 pm

The United States Conference of Catholic Bishops is meeting this week in Fort Lauderdale for its annual spring session. The bishops have had serious discussion about a number of issues, among them immigration. On Wednesday, their discussion took an unexpected turn.

Speaking on the topic of the Trump Administration's immigration and asylum policies and enforcement, Bishop Edward Weisenburger of Tuscon, Ariz., suggested that the Church might consider subjecting Catholics involved in the enforcement of immigration policy to "canonical penalties."

It was an arresting suggestion, and one which caused a bit of a stir on social media.

As the bishops discussed immigration and human dignity, Bishop Weisenburger posed the following question which, for context, deserves to be quoted at length:

"In light of the canonical penalties that are there for life issues, I'm simply asking the question if perhaps our canonical affairs committee could give recommendations, at least to those of us who are border bishops, on the possibility of canonical penalties for Catholics who are involved in this? I think the time is there for prophetic statement. I also think that even though what I am saying might be a little risky or dangerous, I think it is important to point out that canonical penalties are there in place to heal. First and foremost to heal. And therefore, for the salvation of these people's souls, maybe it's time for us to look at canonical penalties."

Bishop Weisenburger holds a licentiate in canon law. As he began his remarks, he described himself self-deferentially as a "plumber canonist" focused on "keeping things moving through the pipes," rather than an expert in legal theory. And made clear that he was posing a question for further reflection, not offering a well-developed plan of action. But his question does merit reflection.  

Although I am not a member of the USCCB's committee on canonical affairs, I would like to offer a few thoughts, from the perspective of a canon lawyer, and one deeply concerned with the crisis of human rights at the border.

First, it is not immediately clear what the bishop meant by referring to those "involved in this."

The bishops' discussion covered a number of specific immigration issues; it is not clear whether Weisenberger meant that penalties might incurred through the separation of children from parents, the rejection of morally deserving asylum applications, or the general, and deplorable, tone and language used by some parts of the administration in the discussion of immigration issues - language that offends the human dignity of would-be immigrants and asylum applicants.

We also do not know if Bishop Weisenburger had in mind something as specific as punishing individual Border Patrol officers, ICE agents, or court officials enforcing the policy of separating children from parents, or whether he meant a broader sense of cooperation with federal immigration laws.

"This" is a small word for a very big and complicated issue. Before the canonical affairs committee could offer any sort of advice, the scope of the question needs to be made clearer.

But even from first glance, it can be said that, however well-intentioned the bishop is, immigration policy is not a subject that lends itself easily to canonical legislation and penalties.

For a start, canonical penalties are not easily imposed. Many Catholics, for example, are familiar with the concept of latae sententiae excommunication, by which a penalty is incurred by committing some forbidden act. But latae sententiae excommunications are not a simple concept.  

In order for a latae sententiae penalty to have canonical effects - to, for example, bar a Catholic from Holy Communion - the penalty has to be imposed or declared by a competent authority.

It seems unlikely that Bishop Weisenburger had in mind a system whereby individual bishops name individual Catholics for punishment.

Bishop Weisenburger was right to say that, in the vast majority of case, penalties are imposed medicinally by the Church, for the reform of the offender and for their own good. But for that reason, the Church requires that offenders be warned and called to reform before penalties are imposed. Exactly how Catholics "involved" in problematic immigration enforcement could be effectively warned is hard to see. Would ICE officers, for example, be placed in a position where their bishops told them to quit their jobs or be prepared to refuse to uphold the law?  

Indeed, when we try to apply the concept of canonical sanctions to those involved in immigration enforcement, matters get even more complicated.        

Assume, for example, that Bishop Weisenburger had a narrow and specific application in mind: that individual law enforcement officers physically separating families should be subject to canonical penalties.

To what act would a canonical penalty be attached? Bishop Weisenburger referenced existing canonical penalties for "life issues," but these penalties are only incurred through very specific acts - the taking of human life through abortion or homicide.

If the act of physically removing a child from their parents on behalf of the government were to become the basis for a canonical penalty, would the penalty apply in all circumstances, or only on a case-by-case basis? If it applied to all cases, this would seem to negate the possibility that in some cases, even if rarely, the child's welfare might clearly be otherwise at risk. If it is to be applied selectively, who would be the judge of when, and how, and what information would be used to make that judgment?

Those establishing such a norm would need to discern whether there are legitimate circumstances in which children could be separated from their parents, and carefully discern the implications of directing Catholics to disobey their legal obligations.

Bishop Weisenburger called rightfully for a "prophetic statement" against a public iniquity. The problem with his canonical suggestion is that prophetic witness of the Church does not naturally lend itself to the language of canon law, still less penal law.

Speaking just before Bishop Weisenburger, Bishop Oscar Cantú of Las Cruces spoke about the need for "public visible gestures," noting specific successes in closing abortion clinics through "constant and peaceful" means, including prayer vigils. He proposed that similar vigils outside federal courts hearing asylum and immigration cases might be suitable. Both bishops referenced Cardinal Joseph Tobin of Newark's proposal that bishops visit the detention centers where children are held, to draw public attention, and hopefully censure, to them.

Those suggestions seem more constructive, plausible, and practical. They also have the benefit of targeting the policies and processes against which the bishops want to speak, rather than targeting individual Catholics. Federal policy and the administration's efforts should be the focus of the Church's efforts, at least for the time being.

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Bishop Weisenburger referred to himself as the sort of bishop who usually shies away from using the "sledgehammer" of canonical penalties. This is a common sentiment among bishops. But in truth, penal law is not a sledgehammer, or some other instrument of blunt force. Penal law is, as the bishop later said, very strong medicine indeed. Strong medicine must be used carefully, with a clear diagnosis of the problem, its causes, and a plan for treatment. We are not yet there on the border.