An Eastern Catholic Married Clergy in North America

Recent Changes in Legal Status and Ecclesiological Perspective
Roman M. T. ~ h o l i j

'

Introduction
In this article 1 intend to demonstrate that, despite contrary appearances, with the promulgation of the Codex canonum Ecclesiarum orientalium in 1990 al1 restrictions on the rights of Eastern Catholic bishops to ordain married men to the priesthood in territories outside the so-called historical regions have been abolished. Decrees such as Cum data fuerit (1 March 1929), issued by the then Sacred Congregation for the Oriental Church, have been definitively abrogated. Ordinations of married men by Eastern Catholic bishops in countries such as the United States and Canada are thus fully legitimate and in accord with the Eastern Code. Secondly, in this article, other considerations of an ecclesiological and historico-social nature will be made to illustrate the juridical and theological redundancy of Cum data fuerit and al1 that it represents. It should be noted, however, that this essay is not a study of the pros and cons of a married clergy and of celibacy, still less a study of the history and theology of married priesthood and celibate priesthood on which 1 have written extensively elsewhere.2
[l] Unless bibliographicalreferences are given, translations of the French, Italian and Latin originals into English are the author's.

[2] See especially Clerical Celibacy in East and West,Leominster, Heresfords., Eng., Fowler Wright, 1989 (reprint of Married Clergy and Ecclesiastical Continence in Light of the Council in Trullo [691], in Annuarium historia conciliorum, 19 [1987], pp. 71-230; 241-299); "The lex continentiœ and the Impediment of Orders," in StC, 21 (1987), pp. 391-418; "De lege cælibatus sacerdotalis: nova investigationis elementa," in Per, 78 (1989), pp. 157-185; "Clerical Celibacy in the Western Church: Some Clarifications," in Priests and People, 3 (1989), pp.

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Rather, it is a study that seeks to clarify, within a confusing system of Eastern Catholic law, the present legal rights of Eastern Catholic Bishops to ordain married men and the present legal rights of married clergy to exercise their priestly rninistry in countries outside the territories of historical origin of their respective Churches.

Nature of the Early Prohibitive Decrees
What does Cum data fierit state? This was a decree of the Sacred Congregation for the Oriental Church concerning the spiritual care of the then-called Greek-Ruthenian faithful in the United ta tes.^ It deals with a number of issues which have nothing to do with clerical ~ e l i b a cBut in art. 12 it States that before there is a sufficient number ~.~ of "home-grown" priests trained in the United States, European priests could be brought across the Atlantic from Galicia, Hungary or Yugoslavia. The last sentence of the paragraph reads: "In the meantime, as has already several times been decreed, priests of the Greek-Ruthenian Rite who wish to go to the United States of North America and to remain there, must be ~elibates."~ has to be noted in this sentence is the What
17-26; "Observaciones criticas acerca de los canones que tratan sobre el celibato en el C6digo de derecho can6nico de 1983," in ZC, 31 (1991), pp. 291-305; "Priestly Celibacy in Patristics and the History of the Church," in For Love Alone. Reflections on Priestly Celibacy, Slough, Eng., St. Pauls, 1993, pp. 31-52; "Celibacy, Married Clergy, and the Oriental Code," in Eastern ChurchesJournal, 313 (1996), pp. 91-117. [3] AAS, 21 (1929), pp. 152-159. In today's terms, these are the faithful of the Ruthenian and Ukrainian Catholic Churches sui iuris.

[4] For a good overview of this document, see W. Paska, Sources of Particular Law for the Ukrainian Catholic Church in the United States, Canon Law Studies, no. 485, Washington, DC, The Catholic University of America, 1975, pp. 132-133.
[5] The whole article reads as follows (with the quoted phrase in my italics): "Antequarn habeatur numerus sufficiens presbyterom græco-ruthenorum, qui in Statibus Fderatis educati fuerint, si providenda occurrat de suo rectore aliqua missio Ruthenomm vel vacans vel noviter erecta, Ordinarii postulent sacerdotes ab Episcopis ritus græco-nitheni Galitiæ vel Hungariæ vel Jugoslaviæ per tramitem S. Congregationis pro Ecclesia Orientali. Illi ver0 sacerdoti qui proprio marte, neque ab altenitro Episcopo græco-rutheno vocatus, neque a S.

complement to the words sicut iam pluries statutum est - those priests corning from Europe were to be celibate. In other words, what is decreed is a restriction on the distribution of clergy.Only one category of clergy - celibates - could be invited or sent to minister to the needs of the faithful in the United States. Prohibiting the ordination of married men in the United States was simply the corollary of or a necessary inference from this more fundamental restriction, i.e "Quum quid prohibetur, prohibentur omnia quæ sequuntur ex illo."" Thus in art. 11 of the same decree, on seminaries and the formation of the clergy, there is no mention of the fact that future priests were to be ordained as celibates. This was already understood, and besides, it had been spelt out some years previously in the Apostolic Letter of Pope Pius X Ea semper (18 July 1907),on the occasion of the appointment of the first Ruthenian bishop in the United States, Soter ~rt~nsky.~
Congregationemissus, illuc perrexerit, Episcopus græco-ruthenus nullas condere potest facultates, sive celebrandi Sacrum sive administrandi Sacramenta, sive munia ecclesiastica quomodocumqueobeundi. Interim, sicut iampluries statutum est, Sacerdotes ritus græco-rutheni, qui in Status Fderatos Americæ septentrionalis proficisci et commorari cupiunt, debent esse cælibes" (p. 155).Text of Footnote [6] Reg. 39, R.J. in VIo.

[7] "Cum nondum habeantur sacerdotes rutheni, qui vel nati vel saltem educati sint in Civitatibus Fderatis Americæ, Episcopus rutheni ntus, prævia intelligentiacum Delegato Apostolico et Ordinario loci omni studio curet, ut seminanurn pro clericis ruthenis in iisdem Civitatibus Fderatis educandis quantocius instituatur. Intenm ver0 clerici rutheni in seminaria latina locorum in quibus nati sunt, vel domicilium acquisiverunt, admittantur. Sed nonnisi clibes, sive in posterum, ad sacros Ordines promoveri poterunt" (art. X, inASS, 41 [1908], p. 6). In the Decree Cum episcopo grœco-rutheno of 17 August 1914, the same material is repeated, but this time without any explicit mention of celibacy (arts. 10-11, in AAS, 6 [1914],pp. 460-461). In unpublished circula Istruzioniper i Vescovi Ruteni degli Stati Uniti of the S. Congregation for the Oriental Church dated 18 June 1924 (Histoncal Archives of the Pittsburgh Ruthenian Archdiocese, no. 13444/24), however, Cum episcopo is interpretedby the same Congregation as unequivocally requinng celibacy: "1 Vescovi procureranno sopratutto che sia osservato, mutatis mutandis quanto è disposto nell' Art. II del Decreto [Le., Cum episcopo] intorno

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Article 12 of the decree Græci-rutheni ritus, issued on 24 May 1930 for Canada,8 was more specific than its irnrnediate American counterpart: "Only those who make a promise before the Ordinary to live always in celibacy may be accepted into the seminary, and only celibates may be promoted to sacred or der^."^ This is to be read in conjunction with art. 15: "As for priests who come over from regions of Europe, they are not to be admitted to the exercise of the sacred ministry on behalf of the faithful of the Ruthenian Rite unless they are celibates (or at the least widowers without progeny)."10 This stipulation, likewise, was not new.11 Finally, al1 other Eastern Churches, for al1 the lands of immigration, namely al1 the Americas and Australia, were made subject to this sarne discipline in the decree Qua sollerti of 23 December 1929 (in

all'ammissione in America di sacerdoti celibi, e ad impedire che vi entrino nuovi sacerdoti uxorati."

[8] AAS, 22 (1930),pp. 346-354. [9] "Sed non nisi qui se cœlibatum perpetuo servaturos corarn Ordinario promisennt, in Seminarium admittere licebit, et non nisi clibes ad sacros Ordines promoveri poterunt" (ibid., p. 348). [ I O ] "Quoad autem sacerdotes ex Europæ regionibus provenientes, ad sacrum ministerium exercendum apud fideles rutheni ritus non admittantur nisi sint clibes (vel saltem vidui sine liberis)" (ibid., p. 349). [ I l ] See, especially, Fidelibus rutheni, 18 August 1913, arts. 10-12, in AAS, 5 (1913), p. 395: "Sed nonnisi qui se cælibatum perpetuo servaturos coram Episcopo promiserint, in Seminarium sive nunc sive in posterum admittantur; et nonnisi cælibes ad sacros ordines in regione Canadensi exercendos, promoveri poterunt" (art. 10); "Ad sacrum ministerium exercendum apud fideles rutheni ritus non admittantur sacerdotes nisi sint cælibes vel saltem vidui et absque liberis" (art. 11); "Antequam habeatur numerus sufficiens presbyterorum ruthenorum qui in Canadensi regione educati fuerint, si providenda occurrat de suo rectore aliqua missio ruthenorum vel vacans vel noviter erecta, Episcopus rutheni ritus idoneum sacerdotem cælibem vel saltem viduum postulet ab episcopis ruthenis vel Galitiæ vel Hungariæ per tramitem S. Congregationis de Propaganda Fide pro negotiis Ritus Orientalis" (art. 12).

force as of 1April 1930).12 The purpose of this decree was to reinforce previous laws and decrees: In the course of time [such] laws and decrees have either failed to be properly understood, or have come to be almost forgotten, and not a few abuses have crept in which were of such a nature as might bring serious detriment to worthy priests of the Eastern rite. Hence this Sacred Congregation has judged it suitable and even necessary to bring these laws and decrees back to rnind and to reëstablish them so as to provide more efficaciously for the spiritual welfare of Eastern Christians. 13 Eighteen short noms follow which surnrnarize previous legislation. Only one n o m is given which relates to clerical celibacy: "Married secular priests will not be permitted to exercise the sacred ministry in the above countries [viz., North, Central and South America as well as Australia], but only those who are celibates or widowers. For just reasons, however, this Sacred Congregation may exclude widowers from those dioceses and places in which or in the vicinity of which their children might perchance reside or othenvise be found."14 There is no mention of not ordaining a married man. Not admitting "married secular priests to the exercise of the sacred ministry7'means not permit[12] AAS, 22 (1930), pp. 99-105. [13] "Verum, cum procedente tempore, leges et decreta huiusmodi aut rite non inteilecta sint, aut velut in oblivionem venisse viderentur, et abusus non pauci irrepserint, iidemque eius naturæ, ut probis ritus onentalibus sacerdotibus haud mediocn detrimento esse possent, Sacra hæc Congregatio opportunum, immo necessarium esse duxit easdem leges ac decreta iterum commemorare, et restituere, idque præsertim ad spintualem fidelium orientalium utilitatem efficacius procurandam" (ibid., p. 100). [14] "Ad sacrum ministerium exercendum in præfatis regionibus non adrnittantur sacerdotes sæculares uxorem habentes, sed solum sacerdotes cælibes, aut vidui. Vidui tamen iustis de causis ab hac Sacra Congregatione excludi poterunt ab iis dicesibus et locis, in quibus eorum proles forte degat aut quocumque modo inveniatur, pariterque si in viciniis eorundem locorum" (no. 6, in ibid., pp. 102-103).

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ting married immigrant clergy.15 Even widowers may be excluded if they have children living with or near them. Once again, as with Cum datafierit, it is understood that if married priests are not welcome as such in lands where the Latin Rite has been established, then there can be no question of ordaining married men in these territories. At least, this is how these decrees were subsequently interpreted. It must be emphasized anew that the prohibitions (issued as administrative decrees) dealt primarily with the distribution of clergy, in disfavour of married priests ready and willing to travel from their home regions to supply for the needs of the faithful of their own ecclesial tradition in the lands of immigration. The fact that this n o m alone is given in this last, most decisive and most universal decree surely suffices to indicate the tenor of al1 the previous decrees. Where prohibitions of ordaining married men do occur in the Roman decrees (in Ea semper of 1908, Fidelibus rutheni of 1913 and Grœci-rutheni ritus of 1930) they owe their existence to the more general ban on the presence of married clergy as such on North American soil, the concrete expression of which is the restriction of the distribution of already ordained married clergy. Cum datafierit, which is popularly understood to restrict the rights of bishops to ordain married men, is an excellent example of how the partis contained within the whole.16 Every decree reiterated the ban on receiving immigrant married priests (the point of the words "Sicut iam pluries statutum est"), but contained within such a ban in the mind of the legislator, as a part within the whole, is the less frequently expressed probition of ordaining married men. In fact, the prohibition of ordaining married men, it should be highlighted, has only ever been made explicit for the Ruthenians. There has never been any such explicit prohibition in the form of a
-

[15] Cf. Circular letter of the apostolic delegate to al1 archbishops, prot. no. 4409-h, 7 March 1930: "Acting according to the instructions which were recently given to me by the Sacred Congregation for the Oriental Church, 1 am pleased to send you herewith copies of three Decrees relative to immigrantpriests (italics mine). One of these decrees is Qua sollerti. [16] "In toto partem non est dubium contineri" (Reg. 80, R.J. in VIo).

decree or promulgated law for any other immigrant Eastern Church, whether Maronite, Melkite, Chaldean, Copt...

Art. 12 of Cum datafierit is modeled, stylistically, on similar articles of previously issued decrees. Unique to it, however, is its direct dependence for its concluding words on a document issued almost 40 years previously. This was the Letter Aliquibus abhinc annis issued by the Congregation for the Propagation of the Faith on 1 October 1890, in part response to (and using some almost identical expressions as) a petition fonvarded by the Latin-Rite archbisho s of the United States at a meeting held in Boston on 23 July 1890.P7 The Congregation's letter, sent privately to two American bishops especially affected (Archbishop J. Ireland of St. Paul, and Bishop T. Mullen of Erie), states that the priests of the Greek-Ruthenian Rite who had brought their wives and children with them from Europe were a cause of grave scanda1 for both Catholics and non-Catholics ("Quidam ex his sacerdotibus secum uxores et liberos duxerunt, gravissimum scandalum præbentes catholicis ac dissidentibus ibidem degentibus "). Since the local Latin bishops feared that married clergy would cause great harm to "ecclesiastical discipline and region" in their territories (principally in the archdioceses of Philadelphia and St. Paul) the Congregation established that: "Sacerdotes ritus græco-rutheni, qui in status fœderatos Americæ Sep-

[17] The decisions of the annual meeting were communicated to Rome by James Cardinal Gibbons. In his letter to the Congregationfor the Propagation of the Faith (Archives of the Onental Congregation,Rutheni, vol. 117, no. 1431),2 September 1890, he states, among other things: "Per aliquot annos proxime elapsos nostras regiones, præsertim Archdiceses Philadelphiensem et Sti. Pauli, petierunt aliqui presbyten ritus græci eorum curam suscipientes eumdem ntum observantiumquidam ex his sacerdotibus uxores durunt quas cum libens secum habent. Hæc autem scandalum præbet gravissimum fidelibus hujus regionis. Quoniam tum catholici tum protestantes apud nos valde rnirantur sacerdotes uxoratos videre. Cum ver0 eadem r e m conditio minime inveniatur in Statibus Fderatis Amencæ Septentrionalisac ea quæ absque detrimentoreligionis in aliis regionibus ob mutas circumstantias et diuturnas consuetudines sane vigere posset, ide0 ut certum habetur, ministrationem clen conjugati disciplinæ ecclesiasticæ et religioni maximum vulnus inferre. [...]Revmi Archiepiscopi petiunt: 1" Ut nullus sacerdos ntus græci, nisi sit cælebs, ad Amencam mittatur."

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tentrionalis proficisci et cornrari cupiunt, debent esse co2libes."l8 Not only are these words repeated in Cum datafuerit, they can also be taken as implicitly establishing the prohibition of ordaining married men. In 1890, since the immigration had only just begun, and there was no thought yet of a seminary for Ruthenians, there would be no need to n establish that derivative or CO-dependent o m which would then ensure the preservation of a married-clergy-free "Catholic" American territory. This historical sequence of the two types of prohibition also demonstrates their logical interdependence. The 1890letter of the Congregation was soon circulated arnong al1 the American bishops.19 At the same time European bishops were instructed to recall their married priests and to send only ce~ibates.~'
[18] This "mother" text reads: "Aliquibus abhinc annis mos invaluit ut in Status Fœderatos Americæ Septemtrionalis, præsertim in Archidioceses Philadelphiensem et S. Pauli, concesserint sacerdotes ritus græco-rutheni pro suscipienda cura fidelium in illis regionibus cornmorantium atque eumdem ritum profitentium. Quidam ex his sacerdotibus secum uxoreset liberos duxerunt, gravissimum scandalum præbentes catholicis ac dissidentibusibidem degentibus. Quapropter dictarum regionum Episcopos timor rationabiliter incessit ne ex ministerio cleri uxorati disciplinæ ecclesiasticæ et religioni in suis dicesibus maximum detrimentum afferatur, eo vel magis quia plerumque dicti sacerdotes audent sacra munia exercere absque ulla dependentia ab Ordinariis locorum. Quorum instantissimas petitiones excipiens hæc S. C. eiusmodi in posterum servandas esse normas decrevit: 1. Sacerdotes ritus grceco-rutheni, qui in status fderatos Americæ Septentrionalis proficisci et commorari cupiunt, debent esse cœlibes" [Italics mine; three other points of discipline follow] (Collectanea S. Congregationis de Propagandafide, vol. I I , Romæ, Ex Typographia polyglotta S. C. de Propaganda Fide, 1907), no. 1966,p. 357, note 2; the text also appears in American Historical Review, 7 [1892], pp. 66-67).
[19] To circulate it was requested by several prelates at the Second Annual Conference of the Archbishops, St. Louis, MO, 29 November 1891 (Archives of the Archdiocese of Baltimore [AAB], 89 D 511). Only by the American bishops' action, therefore, did the Congregation's letter become a circular letter.

[20] Letter of Cardinal M. H. Led6chowski, prefect of the Propaganda, to Cardinal Gibbons, 10May 1892 (AAB, 89 V7 and also in Paska, Sources of Particular Law for the Ukrainian Catholic Church in the United States, pp. 149-150), where it is decreed: "a) Ut presbyteri uxorati quantocius in proprias dioceses reverti adigerentur; b) Ut in posterum nonnisi clibes mittantur, qui sistere debent corarn

Nor were the restrictions applied only to Ruthenians. On 12 April1894 the Encyclical Letter Relatum est was sent out by the Sacred Congregation for the Propgation of the Faith to Latin bishops worldwide (but probably with the American hierarchy especially in rnind) reiterating that immigrant Eastern Rite priests, of whatever tradition, "cœlibes aut vidui esse debent."21 But the Ruthenians were the largest Eastern Catholic group in the United States and caused the greatest problems for the American hierarchy, on account of which they were frequently on the agendas of their meetings.22 One result of this was the Decree Romana Ecclesia from the Propaganda on 1 May 1897 in which the archbishop of each province where there was to be found a sizeable population of Greek-Ruthenian immigrants was required to find a celibate Ruthenian priest for their care, or failing this, a priest of the Latin rite who would be acceptable to the Ruthenians (this was the first of the pastoral provisions which would eventually lead to the creation of a separate jurisdiction for the Ruthenians).23
Ordinario illius Dioceseos ad quam pergere exoptant."

[21] Collectanea S. Congregationis de Propagandafide, vol. I I , no. 1866, p. 303. [22] For a fuller documentation of this period, see the excellent study of Constantine Simon, "The First Years of Ruthenian Church life in America," in Orientalia christiana periodica, 60 (1994), pp. 187-232.
[23] "In provinciis ecclesiasticis Americæ Septentrionalis,in quibus multi sunt fideles rutheni ritus, Archiepiscopus cuiuscumque provinciæ, initis consiliis cum suis suffraganeis, sacerdotem ruthenum cælibatu et idoneitate commendabilem deputet, et, huius defectu, sacerdotem latini ritus ruthenis benevisum, qui super populum et clerum dicti ritus vigilantiam et directionem exerceat, sub ornnimoda tamen dependentia Ordinarii loci, qui pro suo arbitrio, facultates ei tribuat, quas in Domino expedire iudicaverit" (Collectanea S. Congregationis de Propaganda fide, vol. I I , no. 1966, p. 357). This decree is commented upon in the minutes of the Annual Meeting of the archbishops, 21 October 1897 (AAB, 95 U6): "With regard to the status of priests and people belonging to the Greek Ruthenian rite residing in this country the Most Rev. Prelates expressed the hope that the instructions of the Holy See be faithfully carried out, especially as to appointing a Greek celibate priest in each province, or if it not be possible to find a suitable Greek priest then a Latin priest to promote the spiritual interests and have general supervision of al1 belonging to the Ruthenian rite under the direction of the respective Ordinaries who will give him the faculties which may be deemed

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The law of celibacy, therefore, for Orientals in North America was fundamentally a law which selected ordained celibates for ministry over ordained married men. As late as 1932 the Sacred Congregation for the Oriental Church, writing to the Ruthenian Bishop Basil Takach of Pittsburgh, would express this clearly: What the mind of the Holy See is with regard to the observance of the law of celibacy by Eastern clergy in America this Sacred Congregation has made known often enough [...]. Thus the law issued by the Sacred Congregation "de Propaganda Fide" is to remain intact, narnely that priests who wish to come to America to exercise the sacred ministry arnong the faithful of the Oriental Rite must be celibate or at the least widowers; such a law, made known to Latin bishops on 12 April 1894, applied and [still] applies to al1 priests of the Oriental Rite without distinction between this or that Rite. The decrees which were subsequently issued for Ruthenians only either confirmed the existing law or (at the least) did not revoke it, such that the general prescriptions for the Oriental clergy taken as a whole remained in force.24 The effects of this law were such as not only to prohibit bishops in North America from ordaining married men, but even European

necessary. " [24] "Quænam sit mens Sanctæ Sedis relate ad legem c ibatus in America semandam a clero orientali,jam satis significavithæc S. Congregatio [...].Intacta manet erg0 lex a S. C. de Propaganda Fide data, quod nempe sacerdotes qui in Americam adire desiderant pro sacro ministerio exercendo inter fideles ntus orientalis, clibes debent esse aut saltem vidui; quæ lex, Episcopis Latinis notificata Litteris diei 12 Aprilis 1894, omnes presbyteros ritus orientalisrespiciebat ac respicit, absque ullo discrimine inter hunc vel illum ritum. Decreta quæ dein subsecuta sunt pro Ruthenis tantum, legem extantem aut confirrnarunt, aut certo illam nonrevocarunt, ita ut integra manserintrescripta generaliapro clero orientaliindiscrirninatim data" (prot. no. 572130, 16 April 1932, Archdiocesan Archives of Pittsburgh [AAP], unnumbered).

bishops in their own territory if the candidate hailed from North America.25 Having now examined the decrees of the Holy See, culminating in Cum data fierit for American Ruthenians, the present Code of Canons of the Eastern Churches will be carefully analyzed. It will be seen that a fundamental change in the legal rights of bishops and married clergy in North America has occured.

The Origin and Meaning of Canon 758,s 3 of the Codex Canonum Ecclesiarum Orientalium
Origin
Canon 758,s 3 of the CCEO stipulates that "the particular law of each Church sui iuris or special noms established by the Apostolic See are to be followed in admitting married men to sacred orders."26 This paragraph of the canon dealing with the requirements for licit ordination was induced into the Code as a result of concem expressed by four members of the Eastem Code Commission that the Code might be undermining the discipline of celibacy in those places where it was in force. Their observations were directed at c. 371 of the 1986 Schema Codicis iuris canonici orientalis. The present form of this canon (c. 373), which differs very little from its 1986 form, reads: "Clerical celibacy chosen for the sake of the kingdom of heaven and so suited to the priesthood is to be greatly esteemed everywhere, as supported by the tradition of the whole Church; likewise the state of clerics joined in
[25] Cf. Letters of the Oriental Congregationto Bishop Basil Takach, prot. no. 572130, 22 November 1930 and prot. no. 573/30,30 November 1932 (AAP, unnumbered): "Omnibus perpensis, S. hæc Congregatio nihil innovandum duxit quoad præscriptum diei 21 Novembris 1930, juxta quod Episcopi Diocesium Munkacsien et Eperiesen tenentur Sacros Ordines denegare fidelibus uxoratis ex America oriundis."
[26] "Circa coniugatos ad ordines sacros admittendos servetur ius particulare propriæ Ecclesiæ sui iuris vel normæ speciales a Sede Apostolica statu&."

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matrimony, as sanctioned by the praxis of the primitive Church and for centuries in the Eastern Churches, is to be held in honour." The report of the observations and the reply given by the "Cœtus de expensione observationum" runs as follows: When one speaks of a celibate clergy and a married one, one must keep in mind that celibacy and marriage in the presbyteral ministry have been part of the tradition of the universal Church. The Latin Church has gradually opted for celibacy, whereas the Eastern Churches have kept up both States (1 member). Let a second paragraph be added such as: "Iis in locis in quibus lex particularis circa cælibatum clericomm a Sede Apostolica statuta viget, hæc servanda est." Motive: This addition is necessary in order to maintain the discipline of a celibate clergy, in force in any determined region (1 member).

Note: To this motive there was attached full historical and statistical documentation relative to the decisions of the Holy See.
In various Eastern cornrnunities celibacy has been a rule and observed by clerics for long periods and with salutary results. It would be a good thing to mention this in the Code (1 member). There is no mention of the upholding of the tradition of clerical celibacy where it exists (1 member). Reply. The substance of the obsewations is accepted and a j 3 to c. 753 [= CCEO, c. 7581 has been added which says:

"Circa coniugatos ad sacros ordines admittendos servetur ius particulare propriæ Ecclesiæ sui iuris vel normæ speciales Sedis ~ ~ o s t o l i c æ . " ~ ~

Meaning The intention of the Eastern Code Commission was, therefore, to uphold the celibacy discipline wherever it was already in force by virtue of laws prior to the promulgation of the Code. But did it actually achieve this end? The subjective intention of a legislator has to be expressed in an appropriate external form, that is, by the words of the law itself.28It is not enough to know that the intention of c. 758, Q 3
[27] "Quando si parla del clero celibatko e di quel10 sposato, bisogna ricordarsi che il celibato e il matrimonio, ne1 ministero presbiterale, hanno fatto parte della tradizione della Chiesa universale." La Chiesa latina ha optato progressivamente per il celibato, mentre le Chiese orientali hanno mantenuto i due stati (1 membro). Si aggiunga un 9 2 del seguente tenore: 'fis in locis in quibus lex particularis circa cælibatum clericorum a Sede Apostolica statuta viget, hæc semanda est.' Motivazione: L'aggiunta è necessaria per mantenere la disciplina di un clero celibe che è in vigore in una determinata regione (1 membro). Nota: Alla motivazione è stata aggiunta un'arnpia documentazione storica e statistica compredente le relative decisioni della Santa Sede. In diverse comunità orientali il celibato è stato, come norma, osservato dai chierici per lunghi pe[r]iodi e con risultati salutari. Sarebbe vantaggioso menzionare questo ne1 Codice (1 membro). Non vi è alcun accenno al mantenimento della tradizione del celibato dei chierici, dove essa esiste (1 membro). R. Si accetta la sostanza delle osservazioni fatte e si aggiunge al can. 753 un $ 3 del seguente tenore: Circa coniugatos ad sacros ordines admittendos servetur ius particulare propriæ Ecclesiæ sui iuris vel nomzæ speciales Sedis Apostolicæ (Nuntia, no. 28 [1989/1], p. 62; the observations as reported are summaries in Italian of the members' texts in different languages; this Cœtus met on 9-27 November 1987 and 11-20 January 1988 [see ibid., p. 3 ) .
[28] Cf. G. Michiels, Nomzæ generales juris canonici: commentarius libri 1 Codicis juris canonici, ed. altera penitus retractata et notabiliter aucta, vol. 1, Parisiis, Tomaci, Romæ, Desclée, 1949, pp. 554-55: "Cum dicitur ad rectam

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was to uphold the discipline of celibacy if the words of the canon itself do not in fact uphold it. And do they in fact uphold it? Let us look, first, at the words: "Circa coniugatos ad ordines sacros admittendos servetur [...] normæ speciales a Sede Apostolica statutæ." Since the nature of such norms is restrictive in tems of the traditional rights of the Eastern Churches, these norms, where they exist, are to be interpreted strictly (CCEO, c. 1500). Where are these norms for the Eastern Churches in the United States? A strict interpretation of the above words of c. 758, $ 3 leads one to the interesting observation that there is no such norm for any Church other than the Ruthenian, and even then it is not found in Cum datafuerit. Qua sollerti, which is the Magna Carta for al1the Eastern Churches, in the emigration only legislated on the distribution of clergy. If it is accepted that the interpretation of Rome was correct, namely that the prohibition of ordaining married men was established in this decree (as with Cum data fuerit), then this could only be as an implicit or derived prohibition. An implicit or derived norm lacks any independent existence from its premise, narnely, in this case, the ban on the presence of married clergy as such in Latin-Rite territory. It must be concluded, likewise, that the special norms of the Apostolic See, where they did exist (narnely for the Ruthenians alone in Ea semper il9071 for the United States,

interpretationemlegis recurrendum esse ad mentem legislatoris, certocertius non intenditur recursus ad voluntatem legislatoris mere intemam, abstractione facta a verbali legis formula; tali recursu sane apenretur via constructionibus mere subjectivis et cerebrinis, 'quia homines non possunt mentem alterius horninis (in casu legislatoris) percipere, nisi ex verbis ejus [...]; quomodo erg0 potest sensus legis, quæ in verbis consistit, ex mente sumi, cum ipsa mens per verba tantum nobis potest innotescere? Et confinnatur: narn si legislator per verba legis suarn mentem non declararet, non constitueretur lex, nec oriretur obligatio, etiamsi ex aliis conjecturis possemus aliquo modo voluntatem legislatons cognoscere, quia lex non constituitur voluntate Principis nisi per verba legis sufficienter expressa, quia voluntas sola non sufficit per se ad obligandum, nec etiam est satis, quod aliunde privatim innotescat, sed necesse est, ut in ipsa lege sufficienter contineatur'" (the quotation within the quotation is from F. Suarez, Tractatus de legibus ac Deo legislatore in decem libros distributus, Antverpiæ, 1613,l. VI,c.1, no. 13).

Fidelibus ruthenis [1913] and Grœci-rutheni ritus [1930] for Canada), belong to this same category. They belong to the same mind of the legislator of Qua sollerti. If this were not the case, then we would have a truly bizarre legal situation: Maronite, Melkite, Copt, Chaldean, Syrian, Ethiopian, Greek, Rumanian, Bulgarian, Russian married men (to name but some) could be ordained in the United States or in Canada, and function as Catholic priests, but not Rutheniadükrainian married men! The Codex canonum Ecclesiamm orientalium fontium annotatione auctus issued by the Pontifical Council for the Interpretation of Legislative Texts in 1995 provides eight sources for these noms, although in reality only the three decrees noted directly mention the prohibition of c. 758 $ 3.29 This further shows, in accord with the general norm of c. 1499 of the CCEO, which affirms that laws are to be understood by recourse to the purpose and the circumstances of the law, and to the mind of the legislator, that the ban on ordaining married men is inextricably tied to the ban on the presence of married clergy as such in North American tenitory. If the latter were to be lifted, the other prohibition would collapse, for it would lose its raison d'être.
As for the stipulation that "the particular law of each Church sui iuris [...] [is] to be followed in admitting married men to sacred orders," to my knowledge the only Church that has provided for a prohibition in its particular law is the Syro-Malabar Church of South India. No other Church sui iuris has a regulation which has been synodically adopted prohibiting definitively the ordination of married men.30
[29] These are 1) the Encyclical Letter Aliquibus abhinc annis of 1 October 1890; 2) the Encyclical Letter Relatum est to Latin bishops of 12 April1894; 3 ) the Decree Romana Ecclesia of 1 May 1897; 4) the Apostolic Letter Eu semper of 14 June 1907; 5) the Decree Fidelibus rutheni of 18 August 1913; 6) the Decree Cum data fuerit of 1 March 1929; 7) the Decree Qua sollerti of 23 December 1929; 8) the Decree Grœci-rutheni ritus of 24 May 1930. [30] In the MP Cleri sanctitati of 2 June 1957, c. 72 begins with the following words: "In ritibus in quibus non admittuntur clerici coniugati." Thefontes allude to only one synod, the Synod of Sharfeh of the Syrian Catholic Church, convened in 1888. But this Church no longer accepts its earlier self-imposed restriction.

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Let me conclude this section by posing the question of whether the Code Commission did succeed in upholding the discipline of celibacy. The answer must be in the affirmative for any Church sui iuris which had itself, independently of any special n o m of the Apostolic See, decided on the issue. But for every other Church, including that of the Ruthenians and Ukrainians, it is to be concluded that it did not. The subjectiveintention of the Code Commission was not enough to ensure the on-going effect of the decrees if it did not express this adequately in the Code. The reason it did not express this adequately is that the law on which the special noms of the Apostolic See depended had been abrogated in another section of the Code. To this decisive canon 1shall now tum.

The Abrogation of Cum data fuerit and Similar DeCrees in the Codex canonum Ecclesiarum orientalium
The one canon of the Code that seems to have escaped the attention of al1 cornmentators on this issue is c. 393: Clerics, whatever their condition ["cuiuscumque sunt condicionis"], are to care in their heart for al1 of the Churches, and therefore to serve wherever there is great necessity; let them show willingness, especially with the pe&ssion or encouragement of their own eparchial bishop or superior, to exercise their mintry in the missions or in regions laboring under a shortage of clergy ["promptos exhibeant (...) ad suurn ministerium in rnissionibus vel regionibus clericorum penuria laborantibus exercendum"] .31

[31] Emphasis mine. There is no corresponding canon in the CICl1983.

The canon is inspired directly by PO 1 0 and ~ 6.33 It ~ CD appears in title X, "De clericis," chap. III, "De iuribus et obligationibus clericor~m.'~ this chapter the rights and obligations of clerics of both In states of life - married and celibate - are listed. As the law itself makes no distinction it seems quite evident, given the context, that the words "clerics, whatever their condition" must refer equally to married priests and to celibate diocesan priests and to religious. It even refers to clerics of other sui iuris ~ h u r c h e s . ~ ~ It is an unconditional statement and reflects a reality of the theology of the priesthood that has been developed in more recent times in the Apostolic Exhortation Pastores dabo vobis of 25 March 1 9 9 2 ~ ~ and the Directory on the Ministry and Life of Priests, issued by the The Congregation for the Clergy on 31 January 1 9 9 4 . ~ ~ ecclesial and rnissionary aspect of priesthood is inûinsic to the nature of orders.37 But it is primarily from the home territories, the "Oriental regions," as
[32] "Letpriests remember then, that they must have at heart the care of al1the churches. Hence priests belonging to dioceses which are rich in vocations should show themselves willing and ready, with the permission or at the urging of their own bishop, to exercise their ministry in other regions, missions, or activities which suffer from a shortage of clergy."
[33] "Let bishops, therefore, make every effort to have the faithful actively support and promote works of evangelization and the apostolate. Let them strive, moreover, to see to it that suitable sacred ministers a i well as assistants, both religious and lay, are prepared for the missions and other areas suffering from a lack of clergy. As far as possible, they should also arrange for some of their own pnests to go to such missions or dioceses to exercise the sacred ministry permanently or at least for a set penod of time."

[34] Cf. c. 391 of the Schema Codicis iuris canonici orientalis, Romæ, Pontificia Commissio Codici iuris canonici orientalis recognoscendo, 1986, and the comments on c. 81 of the 1981 Schema canonum de clericis et laicis, in Nuntia, no. 20 (1985/1), p. 123.

[35] AAS, 82 (1992), pp. 1033-1044. [36] Città del Vaticano, Libreria editrice Vaticana, 1994.
[37] Cf. Directory on the Ministry and Life of Priests, no. 7 , pp. 11-12.

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they used to be referred to, that most of the available priests are to be found. And in these regions the diocesan clergy are frequently married. In today's Ukraine, for example, it is rare to find unrnarried secular priests. The situation, in fact, is little different from what it was one hundred years ago. And yet not only does the Code allow priests "of whatever condition" of the home territories of the Eastern Churches to irnrnigrate to countries suffering from a shortage of local clergy- such as Canada and the United States - but actually encourages it. Clearly, every decree or instruction of the past which restricted this distribution of clergy is in direct contradiction to this canon. Canon 6, 1" of the preliminary canons states that "al1 cornmon or particular laws are abrogated which are contrary to the canons of the Code or which pertain to a matter ex integro regulated in this Code." Canon 393 has reordered ail previous regulations on the distribution of clergy. By virtue of this canon every previous stipulation which restricted the movement of married priests is rendered juridically ineffective. Every norm against the immigration of married priests issued by the Apostolic See from 1890onwards has now been abrogated by the Code. Cum data fuerit and Qua sollerti have been abolished. This being the case, it must follow, for al1 the reasons given above, that every restriction on the ordination of married men that had come from the early decrees of the Holy See has been abrogated. No restriction ever existed as such for any but the Ruthenian Church. If an immigrant married clergy is now permitted there can be no possible case for an implicit or derived prohibition of ordaining a married clergy. And as there can be no discrimination among the various Eastern Churches, this must equally apply to the Ruthenian and present-day Ukrainian Churches. The restriction on the Ruthenians, besides, had always been understood in relation to the norm on distribution of clergy, as a derivative norm and part of a whole. If the whole has been abrogated, so too the part. Canon 758, 3 3, therefore, has very limited application. There are no canonical norms of the Apostolic See that prevent ordination of married men in the Eastern Churches. The legal argument of this paper has now been presented. What remains to be done is to describe in greater detail the historical, sociological and, above all, ecclesiological context of the prohibitive

norms and decrees in question. From this it will be seen how much Cum datafierit, and al1that this decreerepresents, is in opposition to Rome's present ecclesiological thinking and to sound modem theology.

Ecclesiological Presuppositions Behind the Ban on Married Clergy
Today it is axiomatic that if clerical celibacy is to be preserved or introduced amongst Orientals this must be the decision and the sole prerogative of the self-governing Eastern Catholic Churches. So familiar are we today with the idea that Eastern Churches should govern themselves according to their proper liturgical, spiritual, theological and canonical traditions, that it would be a wasted exercise to quote from the many recent Vatican and papal declarations, instructions and directives which affirm this truth, starting with the Second Vatican Council, then the Eastern Code itself, and through to the Apostolic Letter Orientale lumen and the Encyclical Ut Unum Sint. One recent document, however, does stand out. This is the Instructionfor Applying the Liturgical Prescriptions of the Code of Canons of the Eastern Churches, issued by the Congregation for the Eastern Churches on 6 January 1 9 9 6 . ~ ~
\

The implications of this document have yet to be assessed by canonists. 1 will quote from it in order to show the stark contrast existing between today's understanding of the Church and the ecclesiological presuppositions found in the late 19th century and first decades of the 20th century. The concilia documents, the Code of Canons of the Eastern Churches and the repeated authoritative declarations of the Magisterium affirm the inalienable value of the particular heritage of the Eastern Churches. Lumen Gentium n. 23 declares that these, by divine Providence, whilst safeguarding the

[38] Città del Vaticano, Librena editrice Vaticana, 1996.

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unity of the faith and the unique divine structure of the universa1 Church, enjoy their own theological and spiritual heritage, their own discipline, and their own liturgical usage. Orientalium Ecclesiarum n. 1 specifies that in these shines the Tradition derived from the Apostles through the Fathers, which constitutes part of the divinely revealed, undivided heritage of the Universal Church. Within the unity of the Catholic faith, each one of these heritages expresses the variety of its manifestations. The fullness of the Mystery of God reveals itself progressively according to the historical and cultural circumstances of peoples and expresses itself in each of the Eastern Churches' manner of living the faith. [...] Desiring that these treasures [of the Eastern heritage] flourish and contribute ever more efficient to the evangelization of the world, Orientalium Ecclesiarum affirms, as do successive documents, that the members of Eastern Churches have the right and the duty to preserve them, to know them, and to live them. Such affirmation contains a clear condemnation of any attempt to distance the Eastern faithful from their Churches, whether in an explicit and irreversiblemanner, with itsjuridical consequences, inducing them to pass from one Church sui iuris to another, or whether in a less explicit manner, favoring the acquisition of forms of thought [...] that'are not coherent with their own ecclesial heritage [...]. The danger of losing the Eastern identity manifests itself particularly in a time like the present, characterized by great migrations from the East toward lands believed to be more hospitable, which are prevalently of the Latin tradition. These host countries are enriched by the heritage of the Eastern faithful who establish themselves there, and the preservation of such heritage is to be sustained and encouraged not only by the Eastern pastors but also by the Latin ones of the immigration territories, because it wonderfully expresses the multicoloured richness of the Church of

Contrast this with the underlying attitudes and the implicit ecclesiology of the American Latin archbishops of the last century. It was they who were responsible for the celibacy law imposed by the Holy See. At a meeting held in Chicago in September 1893 they resolved that the presence of married priests of the Greek rite in Our rnidst is a constant menace to the chastity of Our unrnarried clergy, a source of scandal to the laity and therefore the sooner this point of discipline is abolished before these evils obtain large proportions, the better for religion, because the possible loss of a few souls of the Greek rite bears no proportion to the blessings resulting from unifonnity of discipline.40 Less well documented is the sirnilar position of the hierarchy and clergy of the Latin Rite in Western In the year 1901 in the French-speaking Archdiocese of St. Boniface there were some 25,000 Ruthenian faithful scattered in some 30 colonies and served by three Latin-Rite priests - two Missionary Oblates of Mary Imrnaculate and a Redemptorist. The archbishop, Adélard Langevin, himself an Oblate, was opposed to having any kind of Ruthenian priest, let alone a married priest, to serve these faithful for fear that this would lead to the firm establishment of the Ruthenian Rite, and even eventually to a double episcopate, Latin and Ruthenian; which he thought would cause

[39] Zbid., nos. 7 and 10, respectively pp. 10 and 12.
[40] AAB 91 V 111. Cf. G. P. Fogarty, "The American Hierarchy and Oriental Rite Catholics, 1890-1907," in Records of the American Catholic Historical Society of Philadelphia, 85 (1974), p. 18. [41] 1 know of no modern scientific monograph on the beginnings of the Ruthenian Church in Canada. A useful introduction, although based entirely on secondary source material, is P. Yuzyk, The History of the Ukrainian Greek Catholic (Uniate) Church in Canada, Master's thesis, Saskatoon, SK, University of Saskatchewan, 1948. Also see L.-É. Bélanger, Les Ukrainiens catholiques du rit grec-ruthène au Canada, Les Cahiers canoniques de Laval, cahier no. 3, J.C.D. diss., Québec, Université Lavai, 1945.

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great h m to the unity of the ~ h u r c hIn~another letter, written in . ~ 1905, the archbishop expresses his opposition to the creation of a separate Ruthenian hierarchy which, he States, would be a threat to peace and unity. It would also lead inexorably to the introduction of married Ruthenian priests, which, he writes, would be a great scanda1 for the Catholics, a triumph for the Protestants, and a subject of mockery for the impious, the infidels and people without religion. The Catholic Church would suffer very grave harm in the land where ecclesiastical celibacy is the glory and strength of the clergy and the secret of the great works which it has accomplished. A Ruthenian bishop, accustomed to seeing married priests in his country, and perhaps tied to them through relations, would not have the sarne repugnance that a Latin bishop would have in allowin these sad priests to come, bringing with them a whole family.43 Prevailing sentiments such as these could not but damage the self-esteem of Ruthenian married priests. One would write to the archbishop in 1907: "Unhappily 1 am Greek-Catholic and there exists
[42] "Si on nous impose des prêtres séculiers Ruthènes, comme c'est le désir de la cour de Vienne inspirée par les évêques Ruthènes de Galicie, nous serons menacés de l'arrivée de prêtres mariés, et le rite Ruthène bien implanté et enraciné amènera, comme conséquencedéplorable, à l'établissemeht d'un double épiscopat, sujet de divisions interminables et obstacle continuel à la parfaite unité" (letter of Archbishop Langevin to Father François Picard, superior general of the Assumptionists, 25 December 1901, Historical Archives of the St. Boniface Archdiocese [ASBA], no. L32870).
[43] "Il y aurait danger de voir arriver des prêtres mariés, ce qui serait un grand scandale pour les Catholiques, un triomphe pour les Protestants, et un sujet de moquerie se pour les impies, les infidèles, les gens sans religion. ~ ' É ~ l icatholiqueen subirait un tort très grave dans le pays où le célibat ecclésiastique est la gloire et la force du clergé et le secret des grandes uvres qu'il a accomplies. Un évêque Ruthène, habitué à voir des prêtres mariés dans son pays et lié peut-être à eux par la parenté, n'aura pas la même répugnance qu'un évêque latin à laisser venir ces tristes prêtres amenant avec eux toute une famille" (letter of ArchbishopLangevinto Archbishop D. Sbaretti, apostolic delegate to Canada, 10 June 1905, ASBA, no. L33181).

a proverb [sic] 'Græca fides, nulla fides,' a great prejudice not in my f a ~ o r . And the secretary of the archbishop replies in English to the "~~ request of a layman for a married priest: "His grace [...] cannot approve of your asking for a priest in [sic] the old country that would not keep the law of celibacy, because it would be a shame, and the Pope is positively opposed to it. [...] You know well that the rite is a secondary thing and there is but one ~ h u r c h . " ~ ' Finally, to illustrate the mentality of the time, a close aide of Archbishop Langevin writes to the prefect of the Congregation for the Propagation of the Faith about various problems concerning the Ruthenians: What should one do about this evil? Introduce into Canada a Ruthenian Hierarchy alongside the Latin Hierarchy, as, 1know, Monsignor the Archbishop of Lemberg in Galicia desires?This would be extremely perilous, because of the admission of married priests into America. Your Eminence knows what a scanda1 this introduction would be. And then this would be to affirm in perpetuity the separation of these people from their brethren the old Canadian Catholics.

1know that the separation of rites is generally upheld in the Old Continent [...] 1 am emboldened to disclose to your Erninence that if the present absolute separation of the diverse Catholic Rites, which did not exist in antiquity, and which goes back to the time of the Crusades, was then, and since then has for grave reasons been generally adopted in Europe, it perhaps no longer has the same reasons to exist in Trans-Atlantic countries, in Canada above all, where it is necessary to welcome the colonies
[44] Letter of Rev. N. J. Strutynsky to the Right Rev. Roman Catholic Archbishop of St. Boniface, A. Langevin, 1 October 1907 (Histoncal Archives, no. L33265). [45] Letter of Archbishop Langevin's pnvate secretary, A. Béliveau, to William Zaporzan (Valley River, Manitoba), 27 May, 1907 (Historical Archives, no.

L33255).

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into the great Catholic family which awaits them, and to facilitate access to this by charitable transition^.^^ According to the highly-placed author of this letter the distinctive traditions of the Eastern Churches in union with Rome did not exist in antiquity and were the product of the Crusades (!). Rome showed more wisdom. It was fully aware of the right of the Eastem Churches, with their distinctive traditions, to exist in immigrant lands, and did what it felt was opportune to protect them. This eventually included some years after the above-quoted letters were written - the establishment of a Ruthenian hierarchy in both the United States and Canada. But with regard to the issue of a married clergy, this discipline was not considered to be an inalienable right of the Eastem Churches, part of its special canonical patrimony and something to be protected against Latin-Rite prejudice. For since at least the 16th century the most authoritative Roman canonists understood the Orthodox tradition of a married clergy to be only a factual and not a legal custom which had developed in opposition to Roman discipline. A married clergy remained an illegitimate custom unless given at least tacit approval by Rome.47
[46] "Que faire à ce mal? Introduire au Canada une hiérarchie Ruthène à côté de la hiérarchie latine, comme,je sais, le désire Monseigneurl'Archevêque de Lemberg en Galicie? Il y aurait là un extrême péril par l'admission en Amérique des prêtres mariés. Votre Éminence sait quel scandale serait cette introduction. Et puis ce serait affermir à perpétuité la séparation de ces peuples d'avec leurs frères les anciens Catholiques Canadiens. [...] Je le sais, la séparation des rites est généralement maintenue dans l'ancien Continent [...]. Je m'enhardis 5 exposer à Votre Éminence que la séparation actuellement absolue des divers rites catholiques qui n'existaient pas dans l'antiquité, et qui remonte à l'époque des Croisades, si elle a été alors et depuis adoptée généralementpour de graves motifs, en Europe, n'a peut-être plus les mêmes raisons d'être dans les pays d'outremer, dans le Canada surtout, où il importe d'accueillir les colons dans la grande famille catholique qui les attend et aussi de leur en faciliter l'accès par de charitables transitions" (undated and unsigned copy of a letter to the cardinal prefect of the Sacred Congregation for the Propagation of the Faith, G. M. Gotti, written by an Oblate, prior to 1912, ASBA, no. L34055).

[47] See on this, Cholij, Clerical Celibacy in East and West,pp. 179-192and "Married Clergy and Ecclesiastical Continence", pp. 258-272 (which is the same section of

Right up to the Second Vatican Council it was held that "dissident" Easterners did not have the juridical capacity to create legal c u ~ t o m . But for the sake of union Rome either "tolerated" the custom ~* of married clergy, or approved it in the manner of granting a favour or privilege. Thus, in 1624, regarding the Union of the Ruthenian Church of 1596, the proceedings of a meeting of the Propaganda read: "Conditiones quas Ruthegni [sic] priusquam ad unionem accederent temporibus Clementis Ottavis Pontif. maximi a Romana Ecc1.a requierebant: [...] n. 6a Matrimonia sacerdotalia excepta bigamia tollerari postulabant.~~~ If the legitimacy of an Eastern married clergy depended on Rome's placet, it is easy to see how, in the circumstances of the United States and Canada in the late 19thlearly 20th century, the decrees forbidding a married clergy could so easily corne about. It was purely an administrative decision to withhold this placet, to revoke this privilege. Thus, in defence of Cum datafierit the Sacred Congregation for the Eastern Church would write: And moreover, when the Holy See recognized the particularities of the Greek Ruthenian Church and guaranteed them, it intended principally - as is evident from the Decree of Union of 1596 during the Pontificate of Clement VIII, and from the Brief of Paul V of 1615 - to recognize and guarantee the ritual tradition of the Ruthenians. As regards their particular canonical discipline, the Holy See could not have affirmed its integral application at al1 times and in al1 places, without taking into

the book published previously as an article). [48] For the negative opinions of pre-Vatican Ii canonists on the ability of dissident Orientais to create legal customs, see the sources cited in C . Pujol, "La consuetudine degli orientali separati," in Orientalia christiana periodica, 27 (1971), p. 136 and footnote.

[49] Scritture originali riferite nelle Congregazioni generali, vol. 337 (Polonia, Russia, Vallachia e Moldavia), f. 408r (Archives of the Sacred Congregation for the Propagation of the Faith; italics mine).

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account the different exigencies and circumstances. Thus one can well understand how a manied clergy permitted in those places where the Greek Ruthenian Rite originated and constitutes a predominant element, could hardly seem advisable in places where the same Rite has been imported and finds an environment and a mentality altogether different.50 The unspoken ecclesiological supposition which made Rome's course of action legitimate was that "dissident" cornmunities were bereft of legitimate legislative power, and therefore of legitimate selfgovernance. Vatican II, on the other hand, stated: To remove any shadow of doubt, then, this sacred Synod solemnly declares that the Churches of the East [i.e., the Eastern Orthodox and Ancient Oriental Oriental], while mindful of the necessary unity of the Church as a whole, have the right ("facultatem") to govem themselves according to their own disciplines, since these are better suited to the character of their faithful and better adapted to foster the good of souls. Although it has not always been honored, the strict observance of this traditional principle is among the prerequisites for any restoration of unity.5 1 The conclusion to be drawn is that a married clergy belongs to those disciplines that are proper to the Eastern Churches and over which these Churches have legal cornpetence. They have juridical personality .~ and are capable of creating legal c u s t o ~ nThe~principles involved in
[50] Letter of the Sacred Congregation for the Eastern Church to Archbishop A. Cicognani, apostolic delegate in the United States, 23 June 1934, in Diakonia, 2 (1976), p. 144.

[52] Added to this consideration is the fact that in the section "De consuetudine" of the CCEO there is no requirement, unlike in c. 25 of the CICI1917 and c. 23 of the CICl1983, of approbation by a competent superior or legislator to give legal force to a custom. Canon 1506, 5 1 of the CCEO States: "The custom of the Christian cornmunity, insofar as it responds to the action of the Holy Spirit in the ecclesial

the text of the Council (and also in the Eastern Code), with their particular effects, are not principles created by positive law, but principles which express the very constitution of the Church. In other words, they do not create new rights where these rights did not previously exist. They must therefore be retroactive in their application. Thus the ecclesiological suppositions of the times when the decrees prohibiting married clergy were issued must be seen to have been defective. It should also be stated that the constitutional rights of a Church sui iuris cannot be removed by an administrative decree of a Congregation of the Roman Curia. If a married clergy is such a right (which is what the Eastern Churches do consider it to be, and which the Vatican Council seems to implicitly affirm), as opposed to a privilege granted by Rome, then there is serious objection to the lawfulness of any action which restricts exercise of this ~ i ~ h t . ' ~ The issue of whether this right can only be exercised with impunity in the traditional home territory of the Eastern Church, as opposed to outside it in "Latin territory" such as America, is, in my opinion, a question already put within a framework of a faulty ecclesiology. Once again, if a married clergy were to be considered just a "privilege" granted by Rome then this could be revoked if a greater good, such as the avoidance of scandal, warranted it. But that is not the case. It is hard, then, to justifj the curtailment of a right (as opposed to a favour or privilege) - a bishop's right to ordain - on the sole basis of
body, can have the force of law" - "Consuetudo communitatis christianæ, quatenus actuositati Spiritus Sancti in corpore ecclesiali respondet, vim iuris obtinere potest." For a discussion on this canon, see Nuntia, no. 10 (1980/1), pp. 101-104.

[53] This view represents a substantial development and change in my ecclesiological thinking since the One of writing my J.C.D. dissertation, subsequently published as Clerical Celibacy in East and West, esp. pp. 179-192. A similar view is expressed in my article entitled "Celibacy, Married Clergy and the Oriental Code" (see note 2). Since writing this early work 1 have also been fortunate to have had the opportunity to do further studies: five years of research work in Eastern Christian Studies at the University of Oxford under the tutorship and supervision of Dr. Kallistos Ware of Pembroke College.

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the criterion of territ~riality.~~ In recent times this has, of course, been the case.55 It is still the officia1 vie^.^^ Another consideration to be made, before concluding this article, is the sociological reality of a married clergy in the United States, despite the decrees to the ~ o n t r a r y . ~ ~
[54] 1s not the universal territorial jurisdiction of the Latin Church the effect of the fusing and confusing of two very distinct concepts - that of Roman F'rimacy and that of Western patriarchal jurisdiction? On what theological grounds can the jurisdiction of the Eastern Churches be restricted to the "historical territories, the same principle not being applied to the Roman Church? These are issues that require further serious research and discussion, not least because of the desire for Roman union with the present Orthodox Churches. [55] For example, the public statement of the Sacred Congregation for the Eastern Churches, under its prefect Cardinal Paul Philippe, in June 1977: "For grave pastoral reasons and in view of a situation that had no stnct parallel in the past, the Holy See has seenfit to suspend the exercise of the right of the Eastern Catholic Churches to ordain married men to the priesthood in territories outside the Patriarchal and other historical Oriental regions and, notably, in the U.S.A. and Canada" (response to the first of four questions of a NC News Service newsman, John Muthig, 30 May 1977,concerningthe [illicit]ordination of a married Melkite priest in Canada and that of two married priests in the Middle East, ordained for service in the United States; italics mine).

[56] On 10 January 1997, the Catholic News Service in ~ a s h i n ~ t o n , put out a story DC on the Internet, compiled by Jeny Filteau (and Cindy Wooden in Rome), where an unnamed official from the Vatican (from the Oriental Congregation?) was asked to comment on the recent ordination of a manied man performed by the Melkite Bishop John A. Elya of the diocese of Newton, MA. The report reads, "The official said the new Code does not introduce priestly ordination of married men outside the traditional home territory of the Eastern rites. He said it would be up to the Congregation for the Eastern Churches to detennine the practical application of the rule: it could intervene to suspend someone ordained contrary to the rule, or it could decide not to intervene." This same officia1 also called the 1929 n o m an extra-canonical rule that is complementary to the new Code, not contradictory, and therefore not abrogated. The thesis of the present article is to negate such a view.
[57] No account will be taken in this article of the married clergy of the Latin Rite - deacons and former non-Catholicmarried clergymen. A discussion of this would be pertinent to the issue of "scandai" which gave nse to the Eastern ban.

The de facto Presence of Married Clergy in North America
It is generally recognized that the ban on married clergy in the United States has never been fully implernented.58At times even Rome itself reluctantly permitted the ordination of married men in the United . ~ the States, contrary to its own d e c r e e ~Yet ~ tensions created by these decrees were a significant factor in the creation of serious schism.60 The most noteworthy exceptions to the celibacy rule occured in the
[58] Correspondencebetween the apostolic delegate, Archbishop P. Fumasoni Biondi and the archbishop of Baltimore, M. Curley, in late 1931, for example, demonstrates clearly the presence of married clergy at that time. The apostolic delegate, in his letter dated 19 November 1931, prot. no. 803-i (AAB, unnumbered) states the point made by the Ruthenian 'Podocarpathians' "that these regulations have never been obsewed, and that to enforce them at this time would cause general discontent and schism." Archbishop Curley writes in his letter of 3 December 1931, prot. no. 803-i (AAB, unnumbered): "In view of the present situation which is somewhat alamiing, may 1 presume to make the following suggestions: 1) Whilst the continued attitude of the Holy See on the matter of celibacy amongst the Ruthenian clergy is of course the proper attitude, yet 1doubt if now is the opportune time to enforce the law strictly. 2) It might be possible to allow the present married clergy to gradually die out and then to ordain none but those vowed to celibacy, so that the situation might right itself in time."
[59] As was the case with Bishop Basil Takach. See the letter of the Oriental Congregation, protao. 15001/25,31May 1925 (AAP, unnumbered) in response to his request, on 24 December 1924, just six months after his appointment, to ordain married seminarians: "Bene noscis, juxta instructiones, quæ tibi datæ fuerunt, Apostolicam Sedem jam decrevisse clerum uxoratum in Americam admittendum non esse ob graves rationes. At me non latet etiam rationes expositas in tua epistola dignas esse, quæ attendantur. Q u m obrem judicet in Domino A. Tua, si vere pro necessitateextremaprovidendi parochias vacantes de novo pastore digniores inter supplicantes theologas ordinari possint, graviter onerata conscientia A. Tuæ, ac exclusa quamvis spe futurarum similium Ordinationum." [60] In the 1930s the Carpatho-Russian Orthodox Church was established by former Catholic faithful who were dissatisfied with Rome over, among other things, the celibacy issue. On this, see, for example, W. C. Warzeski, Byzantine Rite Rusins in Carpatho-Ruthenia and America, Pittsburgh, PA, Byzantine Seminary Press, 1971, pp. 194s.

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1940s. As a result of the Second World War many manied priests from Eastern and Central Europe found themselves without a diocese and as refugees with their families outside their homelands, in Western Europe. Writing to Bishop Basil Ladyka, the sole Eastern Catholic bishop in Canada, the apostolic delegate to Canada states in a letter of 12 January 1946: The Sacred Oriental Congregation, in a letter dated December 5, 1945, informs me that it has received Your Excellency's letters of October 16th and November 5th, last, in which Y.E. asked the S. Congregation's permission to accept under your jurisdiction a certain number of Ruthenian priests and seminarians, actually refugees in Europe, away from their regions of Galicia, occupied by the Russians. The S. Oriental Congregation asks me to cornmunicate to Your Excellency that permission is granted to you to accept as many priests and seminarians as Your Excellency desires, provided that the conditions already given to Msgr. Bohacewslsy~][from the United States] be observed, and that Your Excellency undertake all the necessary negociations [sic] with the competent authorities. The norms given to Msgr. Bohacewskyj are described in a separate copy enclosed herewith.6 1 In a letter of 5 December 1945, t%e prefect of the Sacred Congregation for the Oriental Church, Cardinal Eugène Tisserant, comrnunicated the following:
[...]The Sacred Oriental Congregation has already given to His Excellency Mons. Bohacewskyj the faculty to admit into his Exarchate those priests, celibate and married, who have made this request. The Holy Father, in consideration of the very special circumstances, has derogated from the dispositions which prohibit a married clergy from coming to America [...].
[61] Delegatio apostolica, prot. no. 137146, 12 January 1946 (Ukrainian Archdiocese of Winnipeg Historical Archives [UAAW], unnumbered).

The coming of these priests to America is a provisional concession, with the obligation remaining for each riest to return to his own diocese when this will be possible.6? At the time, Bishop Basil Ladyka had no plans to accept married clerics. His request was for celibates only (for which he still needed to seek permission). By the beginning of 1947,uncertain despite the attached communication of 5 December 1945 of whether he could accept married priests into Canada, the bishop requested clarification from orne.^^ The reply of the Congregation was in the affirmative,
-

[62] "La S. Congegazione orientale ha già accordato all'Ecc.mo Mons. Bohacewskyj la facoltà di ammettere ne1 suo Esarcato quei sacerdoti, celibi e uxorati, che ne facessero richiesta. Il Santo Padre, infatti, in considerazione delle specialissime circonstanze, ha derogato alle disposizioni che vietano al Clero uxorato di andare in Amenca [...] l'andata di questi sacerdotiin America è concessa in via provisoria, fermo restando a ciascuno l'obbligo di tomare alle proprie diocesi, quando ci6 sarà possibile" (Sacred Congregation for the Eastern Church, prot. no. 428145, 5 December 1945, to Archbishop 1. Antoniutti, apostolic delegate in Canada. UAAW, unnumbered; my translation). [63] "Many letters, persona1 calls and reports reach our Ordinariate from our farmers, who have relatives in Europe, among them married priests. These are making arrangements with the government to bring them into Canada. In many of these cases the refugee pnests are willing to enter Canada as farmers or laborers, so as to escape the ever imminent threat of forcible deportation to Russia. Their Canadian relatives are willing to accept al1 the financial burdens as regards the transportationcosts and upkeep in Canada. As the situation is at present in Canada, there are very few places where married priests could be placed in parochial work due to the lack of proper residences, or sufficient source of revenue for the upkeep of their families. Now 1 am confronted with this new difficulty and am therefore humbly seeking advice from Your Eminence on my proper course of action in these approaching problems. 1 would like to know if it is permissible for me to allow these married priests if they come to Canada with the assistance of their relatives: to celebrate Holy Mass, and if 1rnay gant them some partialjurisdiction so that they may perform parochial duties in the places where they may be located, and there is a need for their priestly services. Similarly1kindly ask Your Eminence if the permission granted by the Holy Father to allow married refugee priests to go to North America and to be allowed to perform priestly functions here is also applicable to Canada, and if it is still in force" (letter of 26 February 1947 to Cardinal Eugène Tisserant. UAAW, unnumbered).

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repeating the condition that admission was ad ternpus, but adding one significant precaution: "Your Excellency should also take care, wherever possible, that the probable scandal on the part of the Latins be prevented, giving those opportune explanations that the special case merits and regarding the discipline of the Eastern Church on ecclesiastical celibacy and the authorization of emigration given because of the "Scandal" was imminent, according to the present circu~nstances."~~ Congregation, but a greater good was at stake. But most importantly, scandal would be prevented by educating the Latins about Eastern Church traditions (as well as their circumstances). In OE 4, one reads: "Al1 clerics and those aspiring to sacred orders should be well instnicted in various rites and especially in the principles which are involved in interritual questions. As part of their catechetical education, the laity too, should be taught about these rites and their rules."

[64] "Eccellenza Reverendissima, mi affretto a rispondere alla lettera di Vostra Eccellenza Reverendissima del 26 febbraio us., significando Le che, come già Le era stato precedentemente cornmunicato, il Santo Padre, attese le presenti dolorose circonstanze, autorizza anche i sacerdoti uxorati a recarsi, dietro il consens0 del Vescovo ad quem, in America e in Canadà e conseguentemente essi potranno non soltanto celebrare la S. Liturgia, ma anche ottenere, sopra i loro connazionali, la giurisdizione che viene concessa ai sacerdoti,in cura d'anime. Tale augusta concessione è perb vincolata da alcune necessarie condizioni e cioè 1) che di tali sacerdoti si assumano le opportune informazioni prima di accordare loro la facoltà di confessione; 2) che l'ammissione di questi sacerdoti uxorati sia sempre ad tempus, quindi provvisoria, fermo restando a ciascuno l'obbligo, che sarà bene venga sottoscritto dai singoli, di t o m e alle proprie Diocesi, non appena cib sarà ad essi possibile. 3) Vostra Eccellenza avrà anche cura che, dove è possibile, sia impedito un probabile scandalo da parte dei Latini, dando quelle opportune spiegazioni che il caso speciale comporta e che riguardano la disciplina della Chiesa Orientale circa il celibato ecclesiastico e l'autorizzazione di emigrazione datanelle attuali circostanze. Daultimo Vostra Eccellenza, dopo essersi assicurato che tali sacerdoti vengano affidati alle cure di qualche altro sacerdote celibe già in cura d'anime, li sorveglierà ed assisterà in modo particolarissimo per ottenere che essi compiano degnamente il loro dovere" (Sacred Congregation for the Oriental Churches, prot. no. 428145, 19 April 1947. UAAW, unnumbered; my translation).

In today's world, therefore, as just after the Second World War, the possibility of scanda1 is not sufficient ground for preventing the presence of Eastern married priests in territories with a predorninant Latin-Rite Church. This is even more the case now given the Catholic Church's desire and hope for full union with the Orthodox Churches. Today it would be unthinkable to place on the Orthodox a condition of clerical celibacy for countries such as the United States. Educating Latin Catholics about the traditions of the East would foster a climate of welcome for Orthodox married priests. And yet should not Eastern Catholics understand themselves to be Orthodox Christians in communion with Rome? Specified as part of the faculty given to the Eastern bishops in North America to receive married priests was that these priests be received a d t e r n p ~ sIn~practice, however, the priests were unable to . ~ return to their homelands. Most of the priests of this generation are now deceased, but some of the seminarians who were subsequently ordained as married men are still active. During the last two decades many married men have in fact been ordained for service in North America, some in North America itself but most in Europe. The younger priests, especially, originate from North America. The bishops involved employed the legal fiction that by being incardinated in Communist (or former Comrnunist) Europe these priests could serve in the eparchies of North America, where there is a shortage of clergy, as "temporary" priests according to the stipulation of the post-war faculties granted to bishops.66 Since the Second World War, therefore, there has always been a d e facto presence of married clergy on North American soil. Before
[65] By Eastern bishops, in this instance, 1 mean bishops of the LJkrainian Catholic Church. 1have not researched the situation of the other Eastern Churches sui iuris in this period. [66] In 1977 it was declared by the Sacred Congregation for Eastern Churches that the ordination of two married men in the Middle East for service in the Melkite Church of North Amenca was illicit (see note 55).

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the war this was also the case. Some married men were also ordained And on North American t e r r i t ~ r y . ~ ~ today, following the events of around 1990, namely the coincidental promulgation of c. 393 of the CCEO and the opening up of former Cornmunist Europe, many married priests have come to North America on invitation of the bishops. These priests, not having been able to receive the full training of a seminary, are offered remedial training as well as the experience of working in a fully organized eparchy. Some subsequently returned to their home country, others have elected to remain to exercise their ministry in eparchies suffering from a shortage of clergy.

Conclusion
In this article 1 have demonstrated that the special norms of the Holy See restricting the ordination of married men in countries outside the home territories of the Eastern Churches have, apart from the Ruthenian Church, only ever existed as an interpretation or mental derivation from the general prohibition of having married men as such serving as priests in these countries. Qua sollerti, for al1 Eastern Churches sui iuris (and Curn datafierit, for the American Ruthenians) were decrees that restricted the movement of married clergy from Europe to the New World. 1 have also argued that the norms of the three decrees that do expressly prohibit ordination of married men (Ea semper [1907] for the United States, Fidelibus ruthenis [1913] and Grœci-rutheni ritus [1930] for Canada) are expressions of the one and same mens legislatons of Qua sollerti and Curn datafierit. That is to say, the prohibition of promoting a married man to orders in these decrees has no independent existence from the general restrictive n o m on the distribution of (married) clergy. 1 have further argued that in virtue of c. 393 of the CCEO, which, in reordering the prior norms on distribution of clergy from Europe, has abrogated Qua sollerti and Curn data fuerit, the derived, implicit or "interpreted" specid norms of the
[67] See footnotes 58-59. See also V. J. Pospishil, Compulsory "Celibacy for the Eastern Catholics in the Amencas," in Diakonia, 1 1 (1976), pp. 138-139. Details of more recent ordinations are also given in this article.

Apostolic See prohibiting ordination of married men have likewise been abolished. There are therefore no laws in force from the Holy See which prevent a bishop of any Eastern Church from ordaining a married man to the presbyterate outside the historical territory of origin of that Church. It should be restated that this article does not argue for a married clergy as such, and still less does it argue against celibacy. Clerical celibacy is much favoured by many Eastern Catholic bishops, and 1 do believe that, for good reason, it will continue to be promoted and encouraged. Having said this, the rights of Eastern Catholic bishops to ordain married men and the rights of married clergy themselves have to be protected. Furthemore, the dual discipline of the past, resulting from Rome's intervention, of compulsory celibacy for some territories, on the one hand, and optional celibacy in other temtories, on the other hand, was based on an ecclesiology that poses serious difficulties. Even more, to have in the same territory the products of both disciplines, namely a married clergy and a non-optional celibate clergy (as is increasingly the case in North America) is, for the Eastern Churches, theologically and canonically quite untenable. Neither has the discipline of mandatory celibacy ever been fully implemented in practice. If Cum data jûerit and other similar decrees have now been relegated, juridically, to the annals ofqhistory,they should also be forgotten by all. For in the circumstances of today, even for reasons not noted in this article, the lingering presence of these decrees undermines the self-confidence and dignity of the Eastern Churches sui iuris in North America and elsewhere. Besides, the decrees, it has to be stated, constitute a tme ecumenical embarrassment and an obstacle to union with the Orthodox Churches.

If clerical celibacy is to be preserved or promoted among Orientals, this is a task for the synods of the Eastern Churches themselves to do. Any other way is ecclesiologically unacceptable.
The effect on the Latin Church sui iuris of the abrogation of these decrees should have no more impact than what has already been the case through their de facto abrogation or derogation in past years. Besides, if the principle itself of diversification of traditions and disciplines is accepted, the traditions themselves have to be accepted and

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respected, no matter how foreign they might be to the disciplines or theology of any other sui iuris Church. It must be noted that the Congregation for the Eastern Churches, in its recent Instruction for Applying the Liturgical Prescriptions of the Code of Canons of the Eastern Churches,has given powerful endorsement to this principle of diversification of disciplines. It has done so in regard to liturgical disciplines. Practices as foreign to the mentality of the Latin Church as infant communion, adding hot water to the chalice before communion (the Zeon), or even use of ordinary kitchen bread in case of necessity for eucharistic bread, have been given the Congregation's officia1 approbation.68 Each sui iuris Church must live its own life, but in eucharistic and hierarchical communion with every other sui iuris Church. And it must be remembered that the Latin Church is but one of many sui iuris Churches, even though its visible head, the Roman Pontiff, is also the head of the whole communio Ecclesiarum. My hope is that this article might contribute to the process whereby each Eastern sui iuris Church might live its own life with dignity.

First published in Studia canonica, 3 1 (1997), pp. 3 11-339; reprinted with permission of the author and publisher.

[68] Nos. 51 and 67-68, respectively pp. 45 and 57-58.