Theology, law & women's ordination:

...A striking illustration of the operations of this principle occurred recently in the debates with the followers of Archbishop Lefebvre...

...There was also little in what Jesus said that offered much guidance on the issue and quite a bit in what Jesus did that suggested an answer contrary to the one that the council reached...

...There are a number of consequences of the fact that we are not dealing with an infallible teaching, most of them negative...

...What can a historian say about it...

...Having arrived at the notion that the essence of the sacrament consisted in the free exchange of consent between the parties, this doctrine, they argued, was irreformable...

...In the official commentary there are indications that this doctrine is irreformable, that it cannot be changed...

...Now there can be little doubt that the decisions of the Council of Jerusalem were momentous ones, that Peter and Paul were sharply divided on at least parts of the issue, and that Christian communities remained divided for some time on the subject...

...Those that said that clandestine marriages made by free consent of the parties were void were condemned by anathemas...

...They argued that the Mass of Pius V, the so-called Tridentine Mass, could not be changed because when Pius V promulgated the Mass he said that no one could change it...

...Perhaps what the pope is looking for is not a new type of exercise of the magisterium but a new understanding of certain kinds of church law...

...I offer it not only as my third and last historical reflection, but also as a way of thinking about Ordinatio sacerdotalis that may go some of the way toward reconciling the unease that many of us feel about it with the pope's obvious unease about contemplating changes in this field...

...This is a topic to which I will return...

...The missing link in the argument is supplied by Inter insigniores, which focuses on the function of the priest as representing Christ when he offers the sacrifice of the Mass...

...The torturing of the normal definition of marriage that is involved in some annulment cases is a cause of scandal, at least to some...

...On the other hand, questions of capacity to exchange that consent were matters within the power of the church to change...

...I write from the point of an historian of law, more particularly of canon law, about John Paul II's apostolic constitution on the ordination of women to the priesthood, Ordinatio sacerdotalis, which was issued just a year ago (see, Commonweal, June 17, 1994...

...In the tradition of the church, law is not just a matter of discipline, not just a matter of the will of a human legislator...

...The law does yield to contemporary pressures, to new arguments, to changes in society, but it yields slowly...

...The church has never ordained women to the priesthood...

...Otherwise, we will end up with a barefoot boy with shoes on, a non-infallible proposition that cannot be changed...

...The church can also make binding rules about topics which cannot be made matters for the magisterium because they are too far away from anything that might be said to be revealed...

...As reported in Acts 15, the Holy Spirit and the Council of Jerusalem decided that male Gentile converts did not have to be circumcised and that all Gentile converts had to follow only a quite modified version of Jewish law...

...In the tradition of the church, law is also found in revelation, and that law, the product of divine reason as well as divine will, is accessible to human reason and hence to legal methods of interpretation...

...Today we would probably say that the proposition that one does not have to become a Jew in order to become a Christian has been so widely and so consistently taught that it is an infallible teaching of the ordinary and universal magisterium...

...A number of bishops argued, however, that the church could not change the rule...

...The proposition to which we are asked to give assent is a proposition about what can be changed, that the church does not have the power to change its practice with regard to ordaining women to the priesthood...

...The notion of an order of bishops as successors to the Apostles probably does not come until the second century...

...What we have just described might be analogized to what we call constitutional law in our legal system...

...Traditional churches that have ordained women have experienced considerable disruption in doing so...

...So far we have not suggested that the arguments of Ordinatio sacerdotalis are wrong...

...There are a number of passages in Scripture that suggest the "sovereignty" of Jesus' choice of apostles...

...That strikes me as a very strange proposition indeed...

...Is there anything about the nature of the sacrament that requires that bread and wine be used...

...My focus here, however, is on the way that constitutional law proceeds when there is no amendment...

...At the same time, propositions that are not infallibly taught may be wrong...

...he "is able to act in the person of Christ as head" of the church...

...The long tradition of the church and the link between bread and wine and the Passover hagaddah would be cited in opposition...

...For a woman to perform this function would be, to say the least, to get the imagery mixed up...

...Today, this is the "Pauline privilege" that routinely allows nonsacramental marriages to be dissolved "in favor of the faith...

...But the fact that it is a matter of law does not necessarily mean that it can be changed, and it certainly does not mean that it can be changed easily.ainly does not mean that it can be changed easily...

...I declare that the church has no authority whatsoever to confer priestly ordination on women and that this judgment is definitively to be held by all the church's faithful...

...In this regard, the evidence of the tradition is quite different from that on another issue about the priesthood that is debated today, the ordination of married men to the priesthood...

...Any attempt to argue that women can be ordained priests must deal with three undeniable facts in the tradition: that Jesus, whose attitudes and behavior toward women were distinctly countercultural, did not chose any woman to be among the Twelve...

...In secular law this is the theory of sovereignty, and it turns out that the secular theory is largely an invention of medieval canonists, developed in the context of thinking about papal power...

...The striking use that both Paul VI and John Paul II made of the word "constitution" in writing about our issue suggests that both popes recognized that the rule about the male priesthood is a matter of law...

...Yet the council felt that the Holy Spirit had given it the authority to do what it did, and the church ultimately accepted it...

...Let us now exmaine, as we are obliged to do, the arguments for the proposition of Ordinatio sacer-dotalis...

...Now it is not only that Christ happens to have been a man...

...But canonists and theologians told the popes throughout the Middle Ages that the power of the keys extended to all unconsummated marriages...

...The theme on which we have focused is the broad authority that the church has felt that it has in the area of what we might call sacramental practice...

...Suppose, for example, that the bishops in the Far East asked permission to consecrate rice cakes and rice wine instead of wheat bread and grape wine, on the ground that rice was far more meaningful to the people of their region...

...The church cannot require us to give the assent of faith to a proposition that may be wrong on the penalty of excluding us from the communion of the faithful if we do not assent...

...It is only hinted at in Ordinatio sacerdotalis, and is not fully elaborated even in the longer Inter insigniores...

...The silence is broken only occasionally by arguments that are, in large measure, embarrassing...

...Let me take some examples from the history of the sacrament of marriage...

...That Jesus taught that marriages are indissoluble seems virtually certain...

...When the arguments supporting the practice are examined, they are not overwhelmingly powerful, and historically they were mixed with arguments that are downright bad...

...What it can require us to do is to make every effort to accept this proposition, to examine the arguments for it as carefully as we know how, and to see if there are better arguments for it than those which have been proposed...

...He spoke freely to women, even, much to the disciples' amazement, to the Samaritan woman at the well...

...If after all that and if we are convinced that we know enough to hold an opinion on the matter, we may dissent...

...The second observation that a historian might make about the argument of Ordinatio sacerdotalis is that self-denying ordinances, ordinances that say that the church has no power to do something, do not have a good track record...

...From the point of view of the canon lawyer, the most important consequence is that-at least in the view of most canonists-a person who does not adhere to this teaching cannot be said to be guilty of the crime of heresy...

...THEOLOGY, LAW & WOMEN'S ORDINATION 'ORDINATIO SACERDOTALIS' ONE YEAR LATER CHARLES DONAHUE, JR...

...We have to go back and rethink what we mean by faith and what we mean by law...

...The fact is, however, so far as we can tell, that the church has never ordained women to the priesthood...

...The only matter not contained in previous official documents on the topic appears at the end, and it reads: Although the teaching that priestly ordination is to be reserved to men alone has been preserved by the constant and universal tradition of the church and firmly taught by the magisterium in its more recent documents, at the present time in some places it is nonetheless considered still open to debate, or the church's judgment that women are not to be admitted to ordination is considered to have a merely disciplinary force...

...This article is based on a talk he gave at Saint Paul's Church in Cambridge, Massachusetts...

...and that both men and women received the Holy Spirit, but only men proclaimed the kerygma...

...The analogy is not perfect because the American Constitution can be amended...

...Perhaps the difficulty lies in the nature of the proposition to which we are asked to give assent...

...We might also recall that the distinction between the power of orders and the power of jurisdiction is very old, and that there is little to prevent the separation of the two, particularly when we are operating at a level below that of the episcopacy...

...That meant that a male Gentile convert would have to be circumcised and that all converts would have to follow Jewish law...

...The constitution, in the American sense, of the church is old and carries with it a great deal of the tradition...

...At least one theologian who specializes in matters of ecclesiology has suggested-perhaps he did not intend to be taken seriously-that this statement may be a new kind of magisterial statement, one that is not infallible but which nonetheless cannot be changed...

...There is little said in the constitution about women, and what is said is said by way of emphasizing the importance of women's role in the church...

...The teaching on artificial birth control is clearly a statement of the magisterium, though many would argue that it cannot be made infallible...

...I hope I have given a glimpse of how it is that one might say-and still remain true to the tradition-that the rule about the ordination of women is not a matter of faith, at least in the normal sense of that term...

...Wherefore, in order that all doubt may be removed regarding a matter of great importance, a matter which pertains to the church's divine constitution itself, in virtue of my ministry of confirming the brethren...

...It is a matter of law...

...Vatican II tells us that "religious submission of will and of mind must be shown in a special way to the authentic teaching authority of the Roman pontiff, even when he is not speaking ex cathedra...

...What we have said is that in the light of historical reflection, they are different from what the church has done and taught in other areas that might be regarded as similar...

...The priest is not just an actor playing the part of Christ...

...Inter insigniores is not just more helpful about the missing link in the argument of Ordinatio sacerdotalis, it is also considerably fuller and more frank about the tradition...

...The distinction between the proposition that the church cannot change its practice with regard to the ordination of women and the proposition that it cannot change its views on what it can change with regard to its practices with regard to the ordination of women is a fine one, but it is one that must be maintained...

...Some place in the process of developing the notion that the pope was sovereign within the church with regard to law, we forgot an older notion of law, in which law was immanent in the practice of the church under the guidance of the Holy Spirit...

...The constitution anticipates the counterargument that this choice was dictated by the cultural conditions of Jesus' time by pointing out that Jesus' behavior toward women generally was quite countercultural...

...Under the current theory of church law, such rules, even if made by the pope, cannot be made irreformable because the current pope has no power to bind future popes...

...Pieces of this passage appear in the code of canon law and in the oath that all those who hold office in the church are obliged to take...

...The remark was flippant, but it raises an interesting point...

...But it would not come easily...

...In the twelfth century it came to be held that the essence of the sacrament of marriage consisted in the free exchange of present consent between a Christian man and woman capable of marrying each other...

...Again the tortured history of the theology and law of marriage provides some analogies that suggest a different result...

...It took some time for this decision to be accepted...

...As Inter insigniores points out, this is striking, because one of the chief functions of the Apostles was to be witnesses to the Resurrection...

...None of the Apostles were women...

...CHARLES DONAHUE, JR., is professor of law at Harvard Law School and the author of The Records of the Medieval Ecclesiastical Courts (two volumes, Duncker and Humblot...

...The present code of canon law says that a consummated sacramental marriage cannot be dissolved by any human power or for any reason other than death...

...The law about the ordination of women, we might suggest, stands at that awkward intersection point between discipline, which can be changed tomorrow if the proper authority wills it, and the infallible propositions of the magisterium, which cannot be changed at all...

...So far the argument...

...Partly as a result of these difficulties and partly as a result of the criticisms of the Reformers, the Council of Trent was under considerable pressure to change the rule...

...That Pope Innocent III in the early thirteenth century refused to dissolve unconsummated marriages unless one of the parties chose to enter the religious life is certain...

...That Saint Paul taught that, despite what Jesus had said, a convert to Christianity who could not live with his or her pagan spouse in peace could divorce that spouse and marry a Christian also seems virtually certain...

...Other than the condemnation of the role that women played among the Gnostics and Montanists, the tradition offers pretty thin pickings...

...Anything that has been done so consistently in the tradition is quite remarkable, because so little has been able to maintain itself over all the changes of the past 2000 years...

...But if this is not an infallible statement, what is it...

...Perhaps we will have to go back further, to the thirteenth century, when law and theology became separate disciplines...

...The magisterium is about what is revealed and things that are necessarily entailed in things that are revealed...

...It may be that further support will be found for the argument...

...My quarrel is not with the proposition that revelation cannot be changed, but with the implication that follows from the distinction between the magisterium and legislation, namely that law and legal methods of interpretation are inappropriate when dealing with revelation...

...All of this, obviously, takes us far beyond the topic of the ordination of women, but if one can see where the road might lead, perhaps one can see why I think that the current situation with regard to the ordination of women has reached a deadend...

...It cannot ordain women anymore than it could consecrate crackers and Coke instead of bread and wine...

...It is not our job to change it but to figure out what it is...

...Today, of course, dissolutions of unconsummated marriages are routinely granted by the papacy...

...The constitution of the church can be changed, except for a few absolute basics, but it cannot be changed quickly...

...From these definitions followed the rule that the validity of the sacrament could not depend on the presence or blessing of a priest or even the presence of witnesses...

...Very early in the church, so early that the debates are reported in the New Testament, it was argued that in order to become a follower of Jesus one had to become a Jew...

...The council agreed with the traditionalists, at least to some extent...

...Jesus consecrated bread and wine...

...There would be long debates...

...Does that mean that the next pope could change the rule...

...The first question that a lawyer asks of a document of this sort is what is its status...

...One can imagine the practical difficulties that such a rule entailed, but it was the law of the church from the late twelfth century until the middle of the sixteenth...

...But as we have seen, that argument is the weakest of the arguments in the apostolic constitution...

...It can be changed by authoritative interpretation...

...At a minimum, it is a statement of the ordinary magisterium...

...Neither the pope, nor an ecumenical council, nor the universal church can change revelation...

...The arguments in favor of the ordination of women-which we have not been able to examine-are mostly of quite recent vintage...

...When Ordinatio sacerdotalis was announced the conservative archbishop of Bologna was quoted in the press as having said: "Of course, the church cannot ordain women...

...In order for the argument of the constitution to work, we have to assume that whatever it was that made Jesus choose only men as apostles applies equally well to those who share, though perhaps not fully, in what came to be the order of the Apostles' successors...

...With due deference to higher authority, I think that the power is there to make the change...

...What I am about to say is not standard, though it rests on history that is well known...

...It was made relatively frequently in the Middle Ages when discussing the plenitude of power, the plenitudo potestatis, of the papacy, though rarely in the context of consummated sacramental marriages...

...the first witnesses of the Resurrection, according to all the Gospel writers, were women...

...that the official witnesses of the Resurrection were all men even though men had not been the first witnesses of the Resurrection...

...Could the church authorize this...

...Perhaps the most important from our point of view as believers is that we do not have the guarantee of the Holy Spirit that the teaching is true...

...But let us suppose, at least as a thought-experiment, that the proposition fails, that this non-infallible statement turns out to be wrong in this respect...

...The fact that a noninfallible statement may be wrong means that it must be possible to change it, if it turns out to be wrong...

...We are left to infer from his actions what that might mean...

...The words are strong, and the obligation they impose is serious...

...Despite the fact that the pope chose the most solemn form of papal document, and despite the fact that he invoked his ministry of confirming the brethren in their faith, he did not employ the language of a solemn ex cathedra statement...

...Currently in the church we make a sharp distinction between legislation and the magisterium...

...Certainly, the bishops would be consulted...

...This is not something that would happen simply because it was requested...

...Does this mean that my analogy to American constitutional law must fail...

...He chose women as disciples...

...But the Apostles were not the first witnesses of the Resurrection...

...The declaration that the church has no power to ordain women is not only a self-denying ordinance, it is also an ordinance about a particular aspect of a sacrament, the capacity to receive it...

...That is why Ordinatio sacerdotalis insists that the rule against the ordination of women is of divine origin...

...This argument is not new...

...Otherwise he could deprive future popes of the plenitude of power which all popes possess...

...It would take a long time...

...The present pope in condemning the Lefebvrists at least implicitly held that no pope could bind future popes not to make liturgical changes, particularly when an ecumenical council of the church had urged the changes...

...Perhaps the papacy has the power to dispense even from divine law...

...But the witness of the tradition on the topic of the exclusion of women from the priesthood is, by and large, a witness of practice, not of teaching...

...We operate in tradition...

...It was always part of the deposit of faith, although full awareness of it had come only relatively late...

...The next part of the argument is difficult...

...Central to the argument of the constitution, and of Inter insigniores, the document which the Congregation for the Doctrine of the Faith issued on the topic in 1976, is the undeniable proposition that Jesus chose only men to be the Apostles...

...This last argument was based on the assumption that ultimately the proposition that Jesus commanded that there be only male priests in his church would fail...

...So what the council did was to declare that, subsequent to the promulgation of the decrees of the council in their parishes, couples would have the capacity to contract marriage only in the presence of their parish priest and two or three witnesses...

...The witness of Scripture is also a witness of silence...

...The couple were the ministers of the sacrament...

...Such change normally takes a long time-decades, even generations...

...The first thing that one might say is that it is not the first time that the issue has been raised about what Jesus' practice means for the ongoing church, particularly in areas about which he seems to have said little or where what he said was ambiguous...

...Hence whatever Cardinal Joseph Ratzinger meant by the statement quoted by the Vatican radio, but which did not appear in the official commentary, that the constitution "calls us to join in obedience to the faith, and whoever does not do so obviously separates himself from the faith of the church," he could not have meant that such a person was guilty of heresy...

...In this regard, we might recall that there were periods in the church's history when deacons played a far greater role than they do today, and there is nothing in Ordinatio sacerdotalis that speaks of the ordination of deacons...

...The notion of an order of priests as sharing in the sacerdotal functions of bishops, particularly with regard to the celebration of the Eucharist and the reconciling of those who had lapsed, probably does not come until the early part of the third century...

...it is also that as a man he is the bridegroom of the church which is his bride...

...There seems to be a consensus, reinforced by an interpretive document that was issued with the apostolic constitution, that Ordinatio sacerdotalis was not intended to be an infallible statement...

...so far as we can tell consecrating bread and wine has been the universal practice of the church since that time...

...There was one other characteristic of the Twelve that was probably even more noticeable to contemporaries than was the fact that they were all men: they were all Jews...

...Perhaps the matter would be referred to a church council...

...The problem is that there were no priests, as we know them, in apostolic times, nor were there any bishops, as we know them...

...Now if the pope were attempting to make irreformable a matter of church law which was not a matter of revelation, then he would be doing just what Lefebvrists argued that Pius V had done...

...But if we are to encompass within our notion of the law of the church matters more fundamental than how a priest gets his job or when we celebrate a given feast, we are going to have to go back and pick up a development that was, for the most part, sidetracked in the sixteenth century when church lawyers were tamed because of the disaster that they produced in the name of conciliarism...

...In short, we are going to have to reintegrate a great deal of theology into our understanding of law...

...So far, too, we have said little that could be regarded as out of the mainstream...

...In order to do this, we are going to have to study how other religious traditions make use of law, to revisit our understanding of just what happened at the Council of Jerusalem, and to take seriously the modern biblical scholars who deny that there is a fundamental antinomi-anism (that is, a complete separation of faith and law) in either the sayings of Jesus or in Saint Paul...

...When changes come, they tend to come in ways that leave the principles unimpaired, but their practical operations quite different...

...The document is quite short, eleven paragraphs in the offical English translation, and much of it repeats previous Vatican statements...

...This "Tridentine form" of marriage remains with us, with some modifications, to this day, and if not dispensed, it is required for the validity of a marriage...

...That the arguments are not fully developed in the tradition, Inter insigniores notes, is probably because the question hardly ever came up as a real one...

...Ultimately, however, if the pastoral reasons persisted, if the faithful really wanted it, if the bishops supported it, if the church saw the power of the argument that symbols must be dressed in different cultural clothing in order to have meaning, the change could be made...

...Let us now suppose that the proposition about revelation proves to be more powerful...

...But there are arguments in favor of the practice of not ordaining women, and the practice is of venerable antiquity...

...Now these facts certainly don't get us the whole way, but they do give us pieces of the tradition that we cannot just throw away...

...Luke's account of Pentecost would seem to place the Virgin Mary among those who received the Holy Spirit, but she was not commissioned to go out and tell the world about it...

...The magisterium is broader than those things which can become infallible...

...But once the decision was accepted, it never seems to have been doubted that a Gentile convert who was not circumcised could exercise any ministry in the church, including that of bishop...

...That turns out to be a difficult question to answer...

...and when the issue is considered in the tradition, many of the arguments that are raised, as Inter insigniores admits, would not be accepted today...

...Legislation, on the other hand, like American constitutional law, is a human product, and those who have the authority can change it...

...The granting of an annulment involves a declaration that a sacramental marriage never existed...

...Again so far as we can tell, Jesus never said anything about why he had not chosen any women to be apostles...

...Now, Cardinal Ratzinger's remark-while it cannot mean that those who do not adhere to this proposition are heretics- proposes a stronger obligation than I have outlined above...

...This has led some authors to suggest that perhaps the power of the papacy is not a human power...

...It is not a proposition about women or about "theological anthropology," as Paul VI called it...