f. Responsibility for Permanent Deacons: A permanent deacon, married
or not, is a cleric and not a layman. When the code refers to clerics,
it includes both deacons and priests with no distinction between transientand
permanent deacons. Married deacons are not obliged to continence but
are obliged to chastity which precludes sexual relations with others
than their wives. In the event that permanent deacons committed sexual
misconduct , the bishop would have a responsibility to investigate
the incident and to take appropriate action. The permanent deacon
may also be suspended as can a priest. In the event that it is necessary
to laicize a permanent (or transient deacon) this too is possible,
yet the process is handled through the Congregation for the Sacraments
rather than the Congregation for the Doctrine of the Faith which handles
laicization of priests.
The bishop is responsible for just remuneration for permanent deacons
who work for the church full-time. In the United States most permanent
deacons have full-time professions employment and work for the church
on a part time basis. Canon 281, 3 states that married deacons (and
presumably single permanent deacons) whose support themselves and
their families from secular employment are not entitled to support
from the bishop as well.
It appears from a reading of the canon that a bishop is not obliged
to provide for medical or psychiatric care or legal expenses for permanent
deacons involved in sexual misconduct.
6. The Canonical Nature of the Bishop-Cleric Relationship
The civil law will look to canon law as well as theology to aid in
understanding the nature of a cleric s relationship to his bishop
and to his diocese.
A cleric is bound to his diocese through incardination which takes
place at the time he received the sacred order of deacon. Under the
1917 Code a cleric became incardinated at the time he received first
tonsure, probably two or three years before ordination to the diaconate.
By incardination the cleric is bound to the diocese in a special manner.
He is not simply a resident but is a kind of ecclesiastical public
servant. This pertains to permanent deacons as well as other clerics.
The priest especially is bound in a special way to the diocese because
he called by Vatican II a "collaborator" with the bishop. His life
s work, calling or occupation is ordered to the work of the church
, ordinarily in his diocese. A priest or deacon may live and work
in another diocese yet remain incardinated to his own diocese and
responsible primarily to his own bishop.
The cleric owes reverence and obedience to his bishop. Here the law
(canon 273) refers to the bishop of the diocese of incardination.
At the time of ordination to the diaconate and again to the priesthood
the cleric make a promise of obedience to his ordinary and the ordinary
s successors. By this promise the cleric owes the bishop obedience
in all things that are neither sinful nor illegal.
The relationship of the bishop and his priest differs theologically
andcanonically from that of the bishop to a deacon. This difference
would have little impact in the civil law understanding of the overall
relationship of bishop to cleric. Nevertheless since most of the problems
exist with priests this special relationship should be well understood.
The bishop-priest relationship is unique. Clearly the bishop is much
more than an em lo err since the priest is responsible to him for
all areas of his life and not mere y those hours during which he is
exercising priestly ministry. The priest owes complete obedience to
his bishop and It is the bishop alone who has the power, by reason
of office, to transfer or assign a priest.
The priest is also referred to as a cooperator with the bishop. One
of the post Vatican II documents says "All priests.. .share and exercise
with the bishops the one priesthood of Christ. They are thus constituted
providential cooperators of this episcopal order. The diocesan clergy
have however, a primary role in the care of souls because, being incardinated
in or appointed to a particular church, they are wholly dedicated
in its service.. and accordingly form one priestly body and one family
of which the bishop is the father." (Christus Dominus, n. 28).
Likewise says the conciliar document on the priesthood: "All priests
share with the bishops the one identical priesthood and ministry of
Christ. Consequently the very unity of their consecration and mission
requires their hierarchical union with the Order of Bishops.. .Bishops
will regard them as indispensable helpers in the ministry and in the
task of teaching, sanctifying and shepherding the people of God."
(Presbyterorum Ordinis, n. 7).
The essential responsibility of a bishop for his priests is rooted
in their common sharing of the same priesthood: "On account of this
common sharing in this same priesthood and ministry then, bishops
are to regard their priests as brothers and friends and are to take
the greatest interest they are capable of in their welfare both temporal
and spiritual." (Ibid. , p. 7)
Most priests are either pastors or associate pastors. Others may be
teachers, preachers, administrators etc. The canons use a technical
term to describe the special and unique authority and responsibility
that certain offices hold in relation to the pastoral ministry...cura
animarum or "care of souls." This term is directly connected with
the office of bishop and the office of pastor. Others share in it
or participate in it but do have have it in its fullness. According
to canon 519 the pastor "exercises the pastoral care of the community
entrusted to him under the authority of the bishop whose ministry
of Christ he is called to share..." A pastor must be a priest according
to canon 521, 1.
A diocesan priest (pastor, associate pastor etc.) is not automatically
a vicar of the bishop, that is, one who represents the bishop and
functions On power delegated by the bishop. The law provides for vicars
in special places. . The pastor has his own authority which he obtains
by reason of his office, conferred on him by the bishop. While he
may enjoy certain powers delegated him by the bishop, his basic pastoral
powers come to him by the very office he holds.Parish priests are
not paid directly by the bishop but are paid from parish funds. The
IRS considers priests to be self-employed.
7. The Church s Canonical Understanding of Its Identity
In lawsuits against employees of the Catholic Church it is not uncommon
for the person to be named along with other authority figures in the
hierarchical structure of the church. This includes local ordinaries,
metropolitan archbishops, papal representatives and the Holy Father
himself in some cases. Because of this tendency it is helpful to clarify
the canonical dimension of the relationship of church entities.
a. The Diocese: canon 368 refers to Particular church, the diocese
being the principle example. A particular church is a portion of the
people of God entrusted to a bishop (canon 369). Only the Holy Father
has the power to establish, alter or suppress a diocese (canon 373)
or any other type of ecclesiastical jurisdiction.
The diocesan bishop, also referred to as the local ordinary, has all
of the ordinary, proper and immediate power required for the exercise
of his office in the diocese except in those matters which the Pope
has reserved to himself or to other ecclesiastical authorities.
The diocese is composed of parishes which are erected or suppressed
by the authority of the diocesan bishop. He has complete authority
in his diocese including the power to enact legislation to a certain
extent and according to the norms of the universal canon law. Canon
391 states that the bishop governs the diocese with legislative, executive
and judicial power. In all juridical transactions the bishop acts
in the person of the diocese (canon 393).
The bishop s immediate superior is the Holy Father. The Pope alone
has the authority to name a bishop, appoint him to a diocese, remove
him or ask for his resignation.
Each diocese is to have its own administrative offices and organs
and its own court, called a tribunal. A diocese is not dependent in
any way for its on-going existence on other dioceses. The bishops
of the world belong to what is known as the "college of Bishops."
This is a union of the bishops as successors of the apostles with
the Pope at its head. It functions in solemn form when in ecumenical
b. The Metropolitan and the Province: Dioceses are arranged according
to geographical areas called provinces. The major entity in a province
is called the archdiocese. The other dioceses are called suffragan
The head of the archdiocese is known as the Metropolitan Archbishop.
He has no power of governance over the suffragan dioceses but can
celebrate sacred functions in churches in these other dioceses (canon
The metropolitan archbishop is not the superior of the bishops of
page 69 missing
province. He can exercise moral suasion over them but they are not
bound to obey him or accept his advice unless the metropolitan is
delegated by the Pope in particular occasions. It is clear that the
individual bishops do not report to the metropolitan nor is the metropolitan
responsible for the decisions or actions of the bishops. The only
power given him by law is to appoint an administrator of a diocese
if the see is vacant and if the diocesan consultors have failed to
duly elect one. Also, he may conduct a visitation of a diocese if
needed but only with the permission of the Holy See.
c. The Episcopal Conference: The episcopal conference, an entity which
grew out of Vatican II, is the assembly of all of the bishops in a
country. Conferences are established, altered or suppressed only by
the Holy See. (Canons 447 and 449). The conference can enact legislation
or decrees only when this Is provided for In the universal law of
the church (canon 455). The conference is not a legislative body nor
does it have executive or judicial power over the individual bishops
of the country. It exists primarily as a service organization to assist
the bishops In their pastoral work. The size and complexity of each
individual conference s permanent staff varies from country to country.
The Episcopal conference in the United States, as in other countries,
does not have authority over the individual bishops nor does it have
a right by church law to intervene in diocesan affairs. The president
of the conference is elected for a set term by the bishops. He has
no authority over the individual bishops nor over the national church
as a whole. The law allows the conference or the president to speak
in the name of all of the bishops only when each and every bishop
gives his consent (canon 455, 4).
The national conference of bishops is not the equivalent of a national
Catholic Church. The dioceses do not form a federation. Their identity
in the law would remain the same with or without the conference.
d. Juridic persons: Aggregates of persons or things which are directed
to the church's mission in some way may be given the status of a juridic
person either by provision of the law itself or by an act of a superior
competent to create a juridic person. A juridic person is similar
but not entirely analogous to a corporation. Dioceses are juridic
e. The Apostolic Pro-Nuncio: The papal representative In the United
States is known as the Apostolic Pro-nuncio. He Is the personal representative
of the Holy Father to the American Church and the ambassador of the
Holy See to the United States. He enjoys power or authority which
is given to him by law (since he usually is an archbishop) or is delegated
by the Holy See.
The papal representative has no direct authority over the individual
bishops. He assists the bishops by action and advice while leaving
intact the exercise of their lawful power. The papal representative
may act only upon instructions of the Holy See. He may not interfere
in the internal workings of a diocese nor may he remove or censure
bishops in any way.
Similarly bishops are not bound to report to the Papal representativesconcerning
their personnel nor the internal workings of the diocese except in
cases specifically defined by law. By weight of his office, the papal
representative can exercise a certain degree of moral authority over
the individual bishops but has no direct, canonical authority.
Finally, the papal representative enjoys diplomatic immunity. While
he may be a citizen of this or that country, he carries a Vatican
diplomatic passport for the duration of his service with the Holy
8. The Advisability of Reporting Incidents to Church Authorities
Although the diocesan bishop is bound to report only to the Holy See
in just about every case, it is advisable that Incidents of sexual
misconduct among the clergy be reported to certain ecclesiastical
authorities. This of course would depend on the nature of the incident,
the amount of publicity attending it and the possible civil law ramifications.
Naturally there is a difference between an action which has moral
culpability only and an action which is morally wrong but also constitutes
matter for criminal prosecution or civil liability.
When an incident of alleged child molestation Is reported to a bishop
he may have an obligation in civil law to report it to civil authorities.
No such obligations exists in canon law. Nevertheless, if the incident
and the cleric s identity remain confidential, the bishop may wisely
refrain from wide-spread reporting. it may be advisable in every instance
to report the incident to the Papal representative in the event of
a subsequent inquiry from the Holy See. Rather than communicate directly
to the Holy See, a bishop should communicate through the papal representative.
A bishop is not bound to report incidents to the Metropolitan archbishop
nor to the President of the episcopal conference or the conference
staff, including the office of the general counsel.
9. Vigilance in the Seminaries
No man has a right to enter a seminary nor a right to remain in the
seminary. The law states that the bishop is to admit to a seminary
only those candidates whose human, moral, spiritual and Intellectual
gifts as well as physical and psychological health show that they
are capable of dedicating themselves permanently to ministry (canon
The bishop who sponsors the candidate is responsible for him. Yet
the seminary may not be In the same diocese. The bishop then depends
on the seminary rector and staff to assist him In determining if the
candidate is suitable for ordination. A seminary rector or staff may
dismiss a candidate yet a bishop still may place him in another seminary
or ordain him.
Seminaries fail under the authority of the bishop of the diocese in
which they exist. If the seminary is an inter diocesan seminary by
decree of the Holy See, all of the bishops involved share authority.A
seminarian may be dismissed from a seminary by the rector if the 'statutes
of the seminary provide for this, or by the bishop. He need not be
told why he is being dismissed and he has no right of appeal of any
kind. Canon 10129 stipulates that those who are to be ordained must,
in the judge ment of the bishop, be motivated by the right Intention,
enjoy a good reputation, have moral probity and the physical and psychological
qualities appropriate to the order to be received. If the bishop even
suspects defi ciencies In a candidate he may refuse to ordain him
even without indicating why. There is no recourse or appeal since
there is no right to ordination.
Canon 1041, 1 states that one who suffers from any form of insanity
or from another psychological infirmity is "irregular" for receiving
orders. Experts are to be consulted to determine If the person s infirmity
will make him incapable of exercising orders properly. By irregularity
is meant a kind of impediment that must be dispensed from either by
the bishop or the Holy See depending on the circumstances.
10. Religious Clerics
The canonical considerations listed above pertain equally to clerics
who are members of religious institutes. Since there are different
kinds of religious communities, it is important to understand the
a. Religious institutes: this is the canonical term for groups of
men or women who take public vows and are recognized and erected as
a religious institute. These were commonly known as Orders, Congregations
or Societies in the past and still are to a certain extent.
b. Secular institutes: these are recognized organization of clerics
or laity who belong without taking public vows nor living a common
c. Societies of Apostolic Life: these organizations lead a common
life, pursue an apostolate but do not take public vows.
The major superiors of religious institutes of men are known as Ordinaries."
Their power and authority as well as responsibility for their subjects
is similar to that of a bishop. In some ways, because of the vow of
obedience, the religious superior may have even greater authority
over his subjects.
Religious institutes are usually divided geographically into provinces
with members living in religious houses. A religious ordinary is responsible
for those subjects assigned to his province or those assigned to another
province but living in his province. The method of assignation and
the terms used differs from one community to another.