Topic category:  Other/General

My article titled "Pope Gives Pelosi Pre-excommunication Warning" was linked at Wall Street Journal" (http://obama.wsj.com/article/03az3p23qme1A?q=Joe+Biden) and USAToday(http://content.usatoday.com/topics/topic/Religion+and+beliefs/Leaders,+Experts/Joseph+Ratzinger) and the phrase "Pre-excommunication warning" was used by Raymond Arroyo, News Director of the Eternal Word Television Network (EWTN) and host of the "The World Over With Raymond Arroyo," a weekly news show that focused last Friday on the brief Pope Benedict XVI-Speaker Pelosi private meeting last Wednesday.

"Pre-excommunication warning" is shorthand for warning before a formal declaration of excommunication.

In fact, a person excommunicates actually himself or herself.

When it becomes known that a person has done so and that person nevertheless pretends to be "in full communion" with the Roman Catholic Church, it becomes necessary for appropriate officials of the Roman Catholic Church to formally declare that fact, in order to avoid sacrilege, public scandal and public confusion and to encourage that person to repent and return to full communion with the Church.

Unsurprisingly, the liberal media either overlooked or ignored the pre-excommunication point and pointed attention elsewhere.

For example, Time published an article by Douglas Kmiec treating the meeting as more of the same when it comes to Church tolerance of prominent pro-abortion politicians while claiming that the Pope was urging judges to implement Church policy instead of follow the law.

Professor Kmiec:

"...the statement on abortion that Pope Benedict XVI issued earlier this week after meeting with Nancy Pelosi....was quite predictable, given her pro-choice stance and her position as a high-ranking Catholic Democrat. The Holy Father simply made clear their differences on the issue and reminded the American politician of her responsibilities as a Catholic to protect life 'at all stages of its development.'

" What was quite surprising, and overlooked, had to do with a different branch of the U.S. government. If you read it carefully, the statement is actually quite radical — perhaps unintentionally so. The brief message — just two short paragraphs — draws no distinction between the moral duties of Catholic policymakers and Catholic judges to work against abortion.

"...until now, the Church had not formally instructed judges [to restrict abortion judicially]. As written, the Pope's statement has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists and perhaps all other Catholics who sit on the bench in the lower federal and state courts."

Professor Kmiec jumped on the use of the word "jurists" instead of "lawyers in the two-paragraph press release issued by the Vatican press office quickly after the meeting.

Edward Whelan, President of the Ethics and Public Policy Center, dispelled the confusion created by the word choice and Professor Kmiec in a Bench Memo at National Review Online.

Mr. Whelan:

"...Kmiec assumes that the term 'jurists' is equivalent to 'judges'.... Wikipedia states: 'In most of Continental Europe any person who possesses a degree in law is called a jurist.' If that’s correct, the statement is better read as setting forth the moral duties that Catholic lawyers (and law-school graduates) have. Judges, of course, also have law degrees, but it would be unnatural to read a general statement about the duties that lawyers have as necessarily applying to judges—all the more so to those exercising judicial power in a system of separated powers, as opposed, say, to administrative judges. (Another illustration of the point that the general directive need not apply to those whose station in life renders it inapplicable: Consider a cloistered monk who has a law degree.)

"Even if the statement does apply to American judges, all it says is that 'jurists' should 'work in co-operation with all men and women of good will in creating a just system of laws capable of protecting human life at all stages of its development.' Kmiec turns this into an 'admonition to "jurists" to undertake an activist, law-changing role'. But the statement doesn’t compel that reading. If one understands the judicial interpretation of laws to be part of the creation of a system of laws, then the statement would permit American judges to play their proper role (which includes not inventing constitutional 'rights' to abortion).

"And...the Press Office statement is only that—a Press Office statement, one occasioned by Nancy Pelosi’s visit and undoubtedly carefully reviewed for that purpose. All the less reason to imagine that it represents some sort of 'sharp break with the past' on the duties of Catholic judges."

What Professor Kmiec "overlooked" is that Pope Benedict XVI used the private meeting to give Speaker Pelosi a pre-excommunication warning and now that he has done so personally and she has disregarded it, church officials in the United States need to take appropriate disciplinary action against Speaker Pelosi.

Professor Kmiec should read (probably re-read) the memorandum written by then Cardinal Ratzinger (now Pope Benedict XVI) in 2004 after some distributors of Holy Communion, including Cardinal McCarrick, had found an excuse for the sin of disregarding Canon 915 and knowingly giving Communion to pro-abortion nominally Catholic politicans: personal uncomfortableness.

The late Pope John Paul II had not left room for each distributor, or even bishop, to adopt his own policy on giving and refusing Communion in Ecclesia de Eucharistia:

“[I]n cases of outward conduct which is seriously, clearly and steadfastly contrary to the moral norm, the Church, in her pastoral concern for the good order of the community and out of respect for the sacrament, cannot fail to feel directly involved. The Code of Canon Law refers to this situation of a manifest lack of proper moral disposition when it states that those who 'obstinately persist in manifest grave sin' are not to be admitted to Eucharistic communion.”

This was reiterated in then Cardinal Ratzinger’s no longer confidential memorandum to Cardinal McCarrick and Bishop Wilton Gregory, then president of the United States Conference of Catholic Bishops on the “General Principles” with respect to “Worthiness to Receive Holy Communion.”

In that memorandum, delivered as guidance for the meeting of the United States Conference of Catholic Bishops, then Cardinal Ratzinger, then Prefect of the Congregation for the Doctrine of the Faith since 1981, stated succinctly, emphatically and unambiguously as follows:

“1. Presenting oneself to receive Holy Communion should be a conscious decision, based on a reasoned judgement regarding one’s worthiness to do so, according to the Church’s objective criteria, asking such questions as: 'Am I in full communion with the Catholic Church? Am I guilty of grave sin? Have I incurred a penalty (e.g. excommunication, interdict) that forbids me to receive Holy Communion? Have I prepared myself by fasting for at least an hour?' The practice of indiscriminately presenting oneself to receive Holy Communion, merely as a consequence of being present at Mass, is an abuse that must be corrected (cf. Instruction 'Redemptionis Sacramentum,' nos. 81, 83).

"2. The Church teaches that abortion or euthanasia is a grave sin. The Encyclical Letter Evangelium vitae, with reference to judicial decisions or civil laws that authorise or promote abortion or euthanasia, states that there is a 'grave and clear obligation to oppose them by conscientious objection. [...] In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to "take part in a propaganda campaign in favour of such a law or vote for it"' (no. 73). Christians have a 'grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God’s law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. [...] This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it' (no. 74).

"3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.

"4. Apart from an individuals’s judgement about his worthiness to present himself to receive the Holy Eucharist, the minister of Holy Communion may find himself in the situation where he must refuse to distribute Holy Communion to someone, such as in cases of a declared excommunication, a declared interdict, or an obstinate persistence in manifest grave sin (cf. can. 915).

"5. Regarding the grave sin of abortion or euthanasia, when a person’s formal cooperation becomes manifest (understood, in the case of a Catholic politician, as his consistently campaigning and voting for permissive abortion and euthanasia laws), his Pastor should meet with him, instructing him about the Church’s teaching, informing him that he is not to present himself for Holy Communion until he brings to an end the objective situation of sin, and warning him that he will otherwise be denied the Eucharist.

"6. When 'these precautionary measures have not had their effect or in which they were not possible,' and the person in question, with obstinate persistence, still presents himself to receive the Holy Eucharist, 'the minister of Holy Communion must refuse to distribute it' (cf. Pontifical Council for Legislative Texts Declaration 'Holy Communion and Divorced, Civilly Remarried Catholics' [2002], nos. 3-4). This decision, properly speaking, is not a sanction or a penalty. Nor is the minister of Holy Communion passing judgement on the person’s subjective guilt, but rather is reacting to the person’s public unworthiness to receive Holy Communion due to an objective situation of sin.'"

The gauntlet has been thrown, and it was thrown by Speaker Pelosi. Speaker Pelosi is continuing to choose to obstinately (and publicly) persist in manifest grave sin. By doing so, she has made it necessary for distributors of Holy Communion to refuse her and her bishop to proceed with her formal excommunication. The United States bishops will either support the Pope and obey canon law and use the appropriate penalties for persons who publicly (and proudly) exhibit "an obstinate persistence in manifest grave sin," despite the prominence and temporal power of such persons, or show themselves to be cowards and/or frauds. There is no 'middle way' for the bishops to travel any longer. The United States bishops will either step forward now and refuse and excommunicate the heretics, or Speaker Pelosi and other apostate "Catholics" will be the uncrowned princes of the Church--and we will all have to say that the Emperors have no clothes.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.