Brendan Hoban on Boris and the idiosyncrasies of Canon Law
Is sauce for the goose not sauce for the gander?
Western People 8th June 2021
In an age of very specific expertise, we tend to consult the recognised authorities and, because the rest of us progressively regard ourselves as amateurs in most disciplines, we tend to give way to our professional superiors.
But that natural process – knowing what we don’t know and seeking the best advice – can sometimes become unstuck. For instance, an adult diagnosed with malignant cancer is presented by his consultant with three possible treatment outcomes. He reasonably asks the consultant, ‘What do you suggest?’ To which the consultant, understandably conscious of possible legal implications and the ever-growing risk of litigation, responds: ‘That’s your decision’.
With litigation now the fashionable fall-back position for asserting individual rights and, in some cases, a possible way of enhancing one’s bank balance, it’s hard to blame consultants for keeping a wary eye on the advice of their insurance companies.
Strangely and ironically the courts themselves, when they come to do their business, tend to ask legal amateurs to make the big decisions about innocence or guilt, even though experts in the minutiae of law are numerically tripping over themselves in the courtroom.
It’s called the jury system, for centuries a tried and tested part of the legal system. Usually, 12 members of the public are charged with the responsibility of deciding whether – on the facts of the case presented at a trial – a person is guilty of the offence with which he or she is charged. The legal experts advise on points of law; the judge decides the sentence; but it’s the jury that adjudicates on the innocence or guilt of the accused. It seems an awkward and needlessly complicated system but the prevailing consensus is that it actually works.
The unstated but clear implication of the existence of the jury system is that the exercise of the law is too important to be left to the legal experts.
Unfortunately, that wisdom has never been accepted in Canon (or church) Law with the result that church lawyers (or canonists) have had a monopoly of control and, consequently, an unenvied reputation for bizarre decision-making.
One wag famously commented that with canon law you can prove or disprove any given thesis, depending on whether it’s a Tuesday or a Thursday. The strange and sometimes daft decisions of canon lawyers could do with an input from ‘ordinary’ Catholics in the pews. Canon law shouldn’t be left to the canon lawyers. As we’ve discovered recently when the British PM, Boris Johnson, decided to marry for a third time.
Baptised a Catholic, though confirmed in the Church of England, Boris took advantage of the fact that his two previous marriages were not recognized by the Catholic Church and so, in church law, his recent nuptials qualified as his ‘first’ Catholic marriage.
This works in theory because it has for long been an accepted route for Catholics, whose first ‘broken’ marriages didn’t take place in a Catholic church, to remarry in a Catholic church. Over the years many Catholics have taken advantage of what might be regarded as a loop-hole to get a second chance of a happy marriage. And, even though there were some reservations about the deft distinction involved, generally most people tended to be sympathetic rather than judgemental of a couple’s plight.
But when a prime minister of the UK, who’s a nominal Anglican, twice-married, twice divorced and with a reputation for extra-marital adventure, gets married in Westminster Cathedral, the mother-house of the Catholic Church in England, the sympathy is more controlled.
Inevitably, social media had a field day. Was it bought and paid for? Were there double standards involved? Was the PM’s famous ability to extricate himself from seemingly impossible situations facilitated by some sleight of hand on the part of the Catholic authorities? What’s sauce for the goose should be sauce for the gander.
Even Catholic priests were confused. One, on Twitter, appealed for an explanation as to ‘how Boris Johnson, who left the Catholic Church at Eton and is twice divorced can be married in Westminster Cathedral, while I have to tell practicing Catholics in good faith who want a second marriage in church that it’s not possible?’
Unsurprisingly, with canon lawyers a bit of a rarity on Twitter explaining the idiosyncrasies of church law, there were few takers though on the more mainstream media, church authorities pointed out that both Boris and Carrie Symonds were parishioners and baptized Catholics and that everything was in order in both civil and church law and that Boris and Carrie had received instructions from their local curate – which must have been fun. Oh! to be a fly on that wall.
The controversy was bound to run and run in that (i) it had, at its centre, a very public rogue to whom reactions varied right across the spectrum and (ii) it presented a wonderful opportunity for those who need very little convincing that the Catholic Church is always wrong.
One commentator speculated that Boris’ recent history – his close brush with death after contracting Covid, the birth of his son and now his marriage – may have engendered a change of heart that caused him to look back longingly at the faith of his mother and grandmother. Could Boris have experienced his own dramatic conversion on his own road to Damascus? Unlikely, I suspect.
Another suggested that despite the general rumpus, the truth is that Boris didn’t get special treatment and that he and Carrie were as entitled any other couple to take advantage of the legal ‘loophole’.
Part of the difficulty is that arcane principles and an even more arcane mentality is making Canon Law not just unfit for purpose but something of an embarrassment. As Mr Bumble in Dickens’ Oliver Twist put it, ‘The law is an ass!’
A jury of lay Catholics, over a cup of coffee, would have come up with a more credible decision on Boris and his new bride.
May the Good Lord save us all from the Catholic snobbery that yearns above all for the return of the English monarchy – followed no doubt in due course by Eton itself – to the ’embrace of Rome’. If Boris has any redeeming quality it must be his daily disproof of the fond notion that plumminess is next to Godliness.
If we rejoice in that ‘conversion’ it surely must be on the Joycean principle of ‘here comes everybody’ – and because we can always do with another good laugh at Catholic canon law. Far more justly than patriotism does the latter deserve the title of very last refuge of scoundrels.
Who will ever forget canon law’s most dramatic deployment in Ireland’s clerical child abuse catastrophe – in defence not of children but of the confidentiality of the church records of their betrayal?
Human laws, civil or canon, or rules within organisations, are imperfect, and can give rise to unexpected consequences in particular situations, even when on a general level they operate satisfactorily. How the laws are applied can also give rise to problems.
Should we take Boris Johnson’s acceptance of Anglican Confirmation while a teenager at Eton as a clear sign that he had left the Catholic church? Or was it that he went along with the group of which he was a part, as can happen in our Catholic schools when sacraments are celebrated? Who can judge?
If it were taken that this was a formal defection from the church, then his first marriage would have been valid in the eyes of the Catholic church. Canon Law did not have a formal process for defection until the 1983 Code; this was repealed in 2009. Michael Mullaney, President of St Patrick’s College Maynooth, is quoted on difficulties which arose in this matter in the Irish Times on 31 May 2021:
It would seem that no satisfactory solution to this problem has yet been found.
How then about his receiving Anglican Confirmation, interpreted as an act of defection? There is an interesting parallel in Irish history. In Penal times, Catholics were excluded from many positions and jobs, as well as suffering other restrictions. To overcome this, they would have to formally become members of the Established Church and renounce the Catholic church and its teachings. So what if a Catholic did this, but continued to live and practice as a Catholic? To overcome such a ruse, Anglican Communion was “weaponised” by civil law! The Catholic could not avail of the benefits of “conversion” except by attending the Anglican Sunday service and receiving Communion there.
This may help to provide background for why, here in Ireland at least, taking part in a service of the Church of Ireland (and receiving Communion) has had particular significance. Not doing so did not imply so much a refusal of Eucharistic hospitality, but a refusal of the extra significance that it would carry, of rejection of and condemnation of the Catholic church.
Catholic Emancipation was passed in 1829, so we might think that that should have changed the context. But 1829 did not remove all the legal disabilities on Catholics: some of these remained until the 1920s in the UK.
When I was at Clonliffe College in Dublin in the 1960s, we used to walk to the Pro-Cathedral for Mass on occasion, wearing soutanes! But over the soutane we wore a garment called a “soprano.” Nothing to do with music – it was a long sleeveless garment with “wings” from the shoulders. We also wore, not a biretta, but a “Roman hat” – a round black wide-brimmed hat.
I remember someone from Clonliffe explaining the rationale: under British rule, it was illegal for a Catholic cleric to go out on the street in a church dress. I have no idea whether the law had changed , or whether we continued with the soprano simply because it was a continuation of a tradition.
Perhaps some other visitors to the ACP website may have had similar experience, or may be able to shed light on whether we still have such relics of civil laws which remain unrepealed.