Joe Biden and a same-sex wedding: what can the Church do?

You may have seen this item—about the vice president presiding at a same-sex wedding—yesterday. Some readers and commenters have called for disciplining Biden, even to the point of excommunicating him.

It’s not that simple.

Canon lawyer Ed Peters writes:

Biden, a Roman Catholic, went out of his way to act with contempt for infallible Church teaching that marriage (everybody’s marriage, not just Catholics’ marriages) can only exist between one man and one woman.

In short, Biden is daring the Church to do anything about it. I say, Fine, but let’s begin with what the Church cannot, at present, do about it.

Excommunication (Canon 1331) is a canonical sanction that can be imposed only for certain types of canonically criminous conduct. Not all offensive behavior in the Church is a crime and not all Church crimes are punishable by excommunication. No canon excommunicates a Catholic for officiating at a “same-sex wedding” but Pope Francis or (long story made short) Cardinal Wuerl could issue legislation making such officiating an excommunicable crime. Canon law has long responded to changing pastoral needs with new legislation, and this seems to be one more example of where new law might assist the Church in dealing with a new and grave problem.

Even Canon 1364 (providing a latae sententiae excommunication for heresy), is not applicable here (at least, not yet), this, not because Church teaching on the man-woman requirement for marriage is not taught infallibly (it most certainly is taught infallibly), but because this Church teaching might (again I say, might) only be a teaching to be definitively “held” as opposed to one to be “believed”, and it is only the contradiction of objects of belief that trigger heresy canons, not matters to be held (Canons 750, 752, 1371). A scholarly consensus, on the other hand, that Church teaching on the man-woman requirement for marriage is “divinely revealed” (which view I think has much the stronger argument), or a formal declaration by Pope Francis to that effect, would settle this preliminary doctrinal question, raising the canonical issue to the level of heresy. But even then, one would still have to confront all the usual problems besetting other latae sententiae penalty cases. And they are many.

Canon 1369, a penal norm I think vastly underused in an age when Catholics routinely bash Church leaders and teaching in the main stream media, would be a stretch on the facts of this case, and canonical criminal law does not like stretches. Breaking the law/doctrine does not prove that one was attacking the law/doctrine itself. And the penalty envisioned by Canon 1369 is not excommunication anyway.

Canon 1379 on sacramental simulation (to which two Catholics attempting to enter a “same-sex marriage” would be, I think, susceptible) would not apply to the official witness (as Biden pretended to be) of such an act and, again, the penalty for violating Canon 1379 is not excommunication.

Read on to learn more.