Since the beginning of the new year, the opposition to Pope Francis has intensified in its determination to fan the flames of division in the Church. Recently, some Catholic media outlets have attempted to undermine the authority of the pope by exploiting the so-called “liturgy wars” — conjuring up accusations that Vatican Cardinal Arthur Roche is violating canon law and attempting to snatch away authority from the pope and diocesan bishops in order to impose restrictions on the celebration of liturgical rites antecedent to the Second Vatican Council.

Traditionis Custodes, the July 2021 motu proprio issued by Pope Francis that abrogated Pope Benedict’s 2007 document Summorum Pontificum, has stirred up considerable debate within the Catholic Church. With this document, which restricts the use of the pre-Vatican II Latin liturgical rites, Pope Francis intends to return the Church “to a unitary form of celebration,” and affirms that the liturgical reforms of Sts. Paul VI and John Paul II “constitute the unique expression of the lex orandi of the Roman Rite.” Since its promulgation, however, some Catholics have sought to find ways to undermine the authority upon which this apostolic letter stands and to hinder its implementation.

One popular tactic that has been promoted on traditionalist websites and has frequently been employed — especially by US bishops — is to invoke Canon 87 §1 in the Church’s Code of Canon Law to dispense their dioceses from the norms imposed by the papal directive. This canon states, “A diocesan bishop, whenever he judges that it contributes to their spiritual good, is able to dispense the faithful from universal and particular disciplinary laws issued for his territory or his subjects by the supreme authority of the Church.” In other words, there are circumstances where a bishop can decide to waive a norm for the faithful in his diocese.

One common example of bishops in the United States invoking Canon 87 §1 is when they dispense with the obligation to abstain from meat when St. Patrick’s Day (March 17) falls on a Friday. Another area where diocesan bishops frequently invoke Canon 87 is in response to Catholics who request dispensations from ecclesiastical law concerning marriage. For example, a Catholic may request a dispensation allowing them to marry a non-Catholic spouse in a Protestant* ceremony due to tensions with the family. Dispensations in these cases are frequently granted. Although the law states that Catholics must abstain from meat on all Fridays during Lent (with few exceptions) and that Catholics must be married in a Catholic ceremony, the bishop has the authority to dispense with the law when he judges that it contributes to their spiritual good.

With that in mind, the following sentence in Canon 87 §1 is key. It says, referring to the diocesan bishop: “He is not able to dispense, however, from procedural or penal laws nor from those whose dispensation is specially reserved to the Apostolic See or some other authority.” In other words, a bishop would not be allowed to dispense his diocese from certain norms, such as lifting the excommunication of “a person who uses physical force against the Roman Pontiff” (CIC 1370 §1). Only the “Apostolic See” — the pope or those to whom he delegates authority — may do so. Language along the lines of “Dispensation from … is reserved to the Apostolic See” is sprinkled throughout the Code of Canon Law and many other official documents from the pope and the Vatican.

Dispensations from Traditionis Custodes

Because the norms established by Traditionis Custodes went into effect immediately, some bishops, such as Knoxville’s Bishop Richard Stika, invoked canon 87 as a temporary measure in order to more effectively coordinate the implementation of the motu proprio in their dioceses. In the Knoxville case, the bishop issued a dispensation from Article 3§2 of Traditionis Custodes, which stipulates that the bishop may establish worship locations for groups attached to the Tridentine liturgy, but not “in the parochial churches.” Bishop Stika wrote, “Owing to the fact that currently all of the places where this Mass is offered are in parochial churches, with no readily available alternatives, for the good of the faithful, I temporarily dispense from this provision for the sake of the common good (canon 87 §1). It is my hope that in the course of time and with due clarification from proper authority, we will be able to arrive at a sound solution to this provision of the new document.”

Other bishops, however, invoked canon 87 without any indications that they viewed their dispensations as a temporary measure. For example, Bishop Glen Provost of the Diocese of Lake Charles issued a decree dispensing his diocese from most of the norms imposed by Traditionis Custodes, stating, “There is no prohibition in either particular law or universal law against the celebration of any sacrament in the usus antiquior in any parish, chapel, or oratory of the diocese.”

In his letter preceding the decree, Bishop Provost justified this decision with the assertion that, “I am unaware of anyone in this community who has expressed opposition to the Second Vatican Council, much less denied its legitimacy. As well, those who have chosen to discuss with me their devotion to the usus antiquior have insisted upon the validity of the reformed liturgy. With this in mind, I would be grossly negligent, if not callous, to implement any restrictive law while at the same time ignoring these realities.” In the conclusion of his letter, he wrote, “In offering this preface to my Decree, I ask your prayers for the Church. As She journeys cautiously over these troubled waters, pray that God will guide Her as He promised and that the gates of Hell shall not prevail ( cf. Matthew 16: 18).”

Other diocesan bishops have followed suit in extending dispensations to Traditionis Custodes without any implication that such restrictions are temporary or due to practical restraints. These include Archbishop Alexander Sample of Portland, Oregon, who invoked Canon 14 as well (“Laws, even invalidating and disqualifying ones, do not oblige when there is a doubt about the law”). In his decree, the bishop of Springfield, Illinois, Thomas Paprocki, justified his wide dispensation with the assertion that “it will contribute to the spiritual good of the faithful.” Denver Archbishop Samuel Aquila used identical language in his decree. Many other bishops have followed suit.

The Vatican Response

In December 2021, responding to the widely varied interpretations of how Traditionis Custodes should be understood and interpreted, the Congregation (now Dicastery) for Divine Worship and the Discipline of the Sacraments (DDW) issued a lengthy Responsa ad Dubia (responses to questions). The Responsa begins with a letter from the DDW’s prefect, Archbishop (now Cardinal) Arthur Roche. Its opening paragraph states that these responses were published, “after having carefully considered them, having informed the Holy Father and having received his assent.”

Following the letter, the document states, “The Supreme Pontiff Francis, in the course of an Audience granted to the Prefect of this Congregation on 18 November 2021, was informed of and gave his consent to the publication of these RESPONSA AD DUBIA with attached EXPLANATORY NOTES.” I noted at the time of its publication that this way of phrasing papal approval is fairly novel, but it is identical to the wording found in the Vatican document regarding the blessings of same-sex couples. It seems to reflect the Holy Father’s trust in the work of the curial dicasteries in their areas of competence. Nevertheless, it is impossible to doubt that he has granted assent to this document, and that he approved its provisions by official act.

These are clear indications that the Responsa ad Dubia document represents the mind and will of the pope regarding the implementation of Traditionis Custodes. There is also no question that he did so personally. In a February 2022 article for The Tablet, Christopher Lamb wrote that Cardinal Roche told him that the Responsa, “which some have said are unduly restrictive, were a response to specific questions he had been asked by bishops. He took the document directly to the Pope last November, who signed it off.”

This document addresses the question of Canon 87 directly, and it points to Article 7 in Traditionis Custodes as indicative that the Vatican must approve dispensations from its norms. It says that “the Congregation for Divine Worship and the Discipline of the Sacraments, which exercises the authority of the Apostolic See for material within its competence (cf. Traditionis custodes, n. 7), received several requests for clarification on its correct application.”

This mirrors Article 7 of Traditionis Custodes itself, which says, “The Congregation for Divine Worship and the Discipline of the Sacraments and the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, for matters of their particular competence, exercise the authority of the Holy See with respect to the observance of these provisions.” In other words, Pope Francis explicitly delegated the authority of the Holy See to the DDW, led by its prefect, Cardinal Roche.

Some might argue that the ability to reserve dispensations from the requirements of Traditionis Custodes does not fall into the DDW’s “particular competence.” The March 2022 Apostolic Constitution Praedicate Evangelium on the Roman Curia, however, states clearly that “Its areas of competence include all matters that pertain by law to the Apostolic See concerning the regulation and promotion of the sacred liturgy and vigilance in ensuring that the laws of the Church and the liturgical norms are faithfully observed in every place” (Art. 88).

Furthermore, the constitution also says, “The Dicastery is responsible for the regulation and discipline of the sacred liturgy with regard to the use – permitted according to the established norms – of liturgical books in use prior to the reform of the Second Vatican Council” (Art. 93). As prefect of the DDW, Cardinal Roche is its representative, according to Praedicate Evangelium’s Article 14, which says, “The curial institution is governed by the Prefect, or equivalent, who heads it and acts in its name.”

The new constitution also includes provisions to ensure the accountability of curial prefects and to establish that they are working in communion with the pope:

Art. 31

1. It is a binding norm that nothing grave and extraordinary be transacted unless the Roman Pontiff be previously informed by the head of a curial institution.

2. Decisions and resolutions concerning matters of major importance must be submitted for the approval of the Roman Pontiff, except decisions for which special faculties have been granted to curial institutions as well as sentences of the Tribunal of the Roman Rota and the Supreme Tribunal of the Apostolic Signatura issued within the limits of their proper competence.

3. With regard to special faculties granted to a curial institution, the Prefect or his equivalent is required to examine and evaluate periodically with the Roman Pontiff their effectiveness, viability, implementation within the Roman Curia and suitability for the universal Church.

Which brings us back to the Responsa. “Matters of major importance,” such as the implementation of Traditionis Custodes, must be submitted to the pope for approval. As the document’s introductory letter clearly states (and was personally confirmed in the Tablet article), it was personally approved during an in-person meeting between Cardinal Roche and Pope Francis. There is no reasonable basis to doubt that the Responsa ad Dubia is an authorized, authentic interpretation of Traditionis Custodes or that Cardinal Roche has been authorized by the pope to implement it according to the text of the Responsa.

Nevertheless, some papal critics have decided to do just that.

Roche’s “gamble”?

In a February 10 piece for the Pillar, JD Flynn suggests that Cardinal Roche is violating Church law and, with regard to Traditionis Custodes, the DDW is attempting to “centralize liturgical authority to itself, far beyond the dictates of canon law, and with very little resistance or correction.”

He goes on to describe the Responsa ad Dubia as “a big gamble in December 2021, when his office asserted a set of apparently normative interpretations of the pope’s liturgical policies, and reserved to itself some powers which had seemed in the actual text of Traditionis custodes to belong to diocesan bishops.” Flynn fails to mention the pope’s approval of the Responsa, although he has discussed it in the past.

Continuing along this line, Flynn accuses Cardinal Roche, in letters from his dicastery to diocesan bishops in the US, of making “a claim which has canon lawyers scratching their heads — namely that all provisions of Traditionis custodes are reserved to the Holy See, and that diocesan bishops, therefore, have no dispensing power over its norms.”

Flynn then argues, “The problem is that, on its face, Traditionis custodes does not actually claim that dispensations from its norms are reserved to the Holy See. Canon law says that laws which restrict the rights of bishops must be delineated explicitly, and the papal motu proprio does not address the prospect of dispensations at all.” He seems to reject outright the premise (and Cardinal Roche’s papally-approved statement) that Article 7 of Traditionis Custodes delegates such authority to the DDW.

If the pope delegates the authority of the Holy See to a cardinal prefect of the Roman Curia, we might need a reminder of what that authority is. According to canon law, the pope, “By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely” (CIC 331). If the pope says explicitly, “I reserve dispensations from this law to the Apostolic See,” then a prefect acting with papal approval has the same right. It is true that sometimes curial prefects have overplayed their hands or even “gone rogue,” but Pope Francis has not hesitated to step in when that has happened. In charity, we should recognize that Cardinal Roche is acting within the authority granted to him by the pope.

This isn’t the first time the Pillar has discussed the issue, but they have increased their level of assertiveness. Back in December 2021, shortly after the Responsa’s release, the Pillar raised concerns about the level of authority of the document, with more of a “just asking questions” approach than their current posture. This article, under the subheading “Does it bind?” questioned whether bishops were free to ignore the document. It said:

Canon lawyers have already begun asking whether the responses of the Congregation for Divine Worship and Sacraments actually bind diocesan bishops.

While they certainly give some sense of the mind of the Vatican on the issues, canonists note that the responses do not indicate they were approved by Pope Francis in forma specifica — and thus, they might not actually have the canonically legal effect of “authentic interpretations.”

Others suggest that the pope extended legislative authority over Traditionis custodes to the Congregation in article 7 of his motu proprio. While that’s not stated explicitly in the text, it might not be germane, since in order to be taken as binding norms, the Congregation’s responses would need to be published in the Acta apostolica sedis — the official legal journal of the Holy See.

Whether or not they bind, they seem to give a clear sense of the Vatican’s intention. What remains to be seen is whether the U.S. bishops who have interpreted Traditionis custodes very differently will amend their policies, or if instead, some might raise the legal question of the document’s authority.

We can reasonably assume that in December 2021 and in Flynn’s more recent article that the unnamed “canon lawyers” and “canonists” referenced in the article include Flynn and Pillar co-founder Ed Condon — of like mind on this subject, as indicated in a recent Pillar podcast — but they fail to identify whether the canonists they have consulted have particular expertise in papal authority or the Roman Curia. It is entirely possible that they are relying solely on the opinions of like-minded canonists within their social circle who are eager to find legal loopholes that might help stall the implementation of Pope Francis’s apostolic letter.

Cardinal Roche Responds

What’s most striking about this line of argument is how self-assured it seems, despite being both circular and completely detached from reality. When Pope Francis promulgated Traditionis Custodes, it was clear that he wanted it to be implemented. He tasked the DDW — and its prefect Cardinal Arthur Roche in particular — with ensuring its implementation. The document explicitly states that the DDW has “the authority of the Holy See with respect to the observance of these provisions.” In other words, they act on his behalf.

Then, in December 2021, aware that many US bishops were invoking Canon 87 in order to dispense their dioceses from the law he promulgated, Pope Francis approved a document confirming that dispensations from Traditionis Custodes are reserved to the DDW acting on behalf of the Apostolic See (it also asserts that the pope has granted them this authority). And yet, despite the fact that the pope approved this document, the Responsa ad Dubia, Condon describes it in the podcast as a “sort of Vatican FAQs” which “are not authoritative interpretations of Canon law.” According to the Pillar, it seems the entire document is meaningless because it doesn’t contain the specific magic words that they think it must have. (A position that conveniently aligns with their opinions.)

Later in the podcast, Condon claims that Cardinal Roche “is making an interpretation for which there is no obvious textual basis.” Flynn declares that Cardinal Roche has “asserted a prerogative, which the law does not actually give him, asserted a justification, which by the reading of any canon lawyer we know does not actually justify it.”

Once again, who are these canon lawyers? Are Flynn and Condon suggesting that the pope and the cardinal do not have access to canon lawyers? That Francis and Roche never bothered to ask any canon lawyers about issues that might arise from these documents? That a cadre of independent, ideologically aligned canonists in the US has unlocked —over and above the pope, the prefect, and the canonists that work with them — the secret to the pope’s power to delegate authority to curial prefects?

Flynn argues that Pope Francis, “while an inveterate legislator, has not shown much interest in questions about legal theory in the life of the Church.” Even if this was true, the pope is the supreme legislator and authentic interpreter of the laws of the Church. When the pope’s intentions are clear — as they are with Traditionis Custodes — what good does it do to step back and explore alternative interpretations in a theoretical bubble detached from the mind of the pope (and reality)?

In addition, the Responsa was published more than a year ago. Since then, Roche has not been forced to retract anything in the Responsa. In fact, Pope Francis made him a cardinal in August of last year. Pope Francis certainly didn’t hesitate to publicly correct the cardinal’s predecessor when necessary. Why would he hesitate if Cardinal Roche needed correction?

I reached out to the dicastery and received a response from Cardinal Roche, who said, “It is an absurdity to think that the prefect of a dicastery would do anything other than exercise the wishes of the Holy Father as clearly outlined in their mandate and the General Norms of Praedicate Evangelium. The article in the Pillar is not really an attack on me but on the Pope’s authority which for Catholics is an astonishing act full of hubris.”

Since the beginning of this papacy, many Catholics who disagree with Pope Francis’s mission, teachings, and initiatives have sought to exempt Catholics from accepting them. They cleverly frame disobedience as obedience and promote stalling tactics against the pope; like doctors of the law, they search for loopholes that allow them to ignore him. This behavior only serves to upset and confuse the faithful. The goal of those who play these games is more obvious than they seem to believe it is — they want to obstruct the implementation of Pope Francis’s reforms as much as possible, hoping to outlast him. I trust that God has larger, more ambitious plans.

* Correction, March 1, 2023: The original text said “Protestant and Eastern Orthodox.” In fact, while a dispensation is required when a Catholic marries a Protestant before a Protestant minister, this is not the case to marry validly in an Eastern Orthodox ceremony. A Catholic needs permission from the Catholic Church — not a dispensation — to marry licitly in the Orthodox Church (see Can. 1108 §1 and Can. 1127 §1). Thanks to canonist Pete Vere for the clarification. — ML

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Image: Flickr. Thanksgiving Mass Celebrated by Cardinal Arthur Roche. © Mazur/cbcew.org.uk. Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0).