Unintended consequences of Fiducia Supplicans: How blessing same sex couples got us talking – a canonical perspective

In the presentation of the document, Fiducia Supplicans, the Prefect of the Congregation for the doctrine of faith, Víctor Manuel Card. Fernández, states that:

As with the Holy Father’s above-mentioned response to the Dubia of two Cardinals, this Declaration remains firm on the traditional doctrine of the Church about marriage, not allowing any type of liturgical rite or blessing similar to a liturgical rite that can create confusion. The value of this document, however, is that it offers a specific and innovative contribution to the pastoral meaning of blessings, permitting a broadening and enrichment of the classical understanding of blessings, which is closely linked to a liturgical perspective. Such theological reflection, based on the pastoral vision of Pope Francis, implies a real development from what has been said about blessings in the Magisterium and the official texts of the Church. This explains why this text has taken on the typology of a “Declaration.”

From the above statement, we can see that the document seeks to bring about two things;

  1. Innovative contribution to the pastoral meaning of blessings.
  2. Permit a broadening and enrichment of the classical understanding of blessings.

In introducing this normative, the Church is inspired by Can. 1170 which states that: “Blessings, which are to be imparted first of all to Catholics, can also be given to catechumens and even to non-Catholics unless there is a prohibition of the Church to the contrary.”

The Holy Father seeks to do this by way of introducing customs. The fact that no rituals are developed, means these blessings are supposed to be an innovation on the part of the pastors. This custom that is being introduced has always been the subject of lively interest on the part of doctrine and the entire legal tradition and not just canon law. Custom is defined as an unwritten objective norm introduced by the practice of the community. Over a period of time, a custom becomes a law.

In the history of law, custom as a source of normative production had mixed feelings, for example, the people of Israel always viewed customary practices with distrust, as the only Legislator capable of constraining human behaviour is God; consequently, the custom was often seen as a distortion of that regulatory complex which descended directly from the Covenant.

This changed with the coming into force of Roman law, whose origins were essentially customary. But it is only in 1234 that Gregory IX, in the decretal Quum tanto (X, 1, 4, 11), officially gives space to custom in legal life of the Church, considering it fully as a source of law, provided however that it is reasonable and legitimately prescribed. The customary phenomenon has had increasingly greater success in the following centuries, although with ups and downs, due above all to the modern concept of legislation which is generally hostile to the customary reality gradually imposed itself over time. If it is true that customary practice has found increasingly greater space in the modern canonical system, there has been no shortage of those who have questioned its validity, even recently.

Many authors argue that custom is admissible only to the extent that the law proves insufficient or incomplete, thus effectively admitting only the custom praeter legem.

A part of the doctrine maintains that the theological foundation of custom can be found in the sensus fidei fidelium, that is, in the ability of the people of God to grasp the truth of faith. This statement is founded in Lumen gentium, paragraph 12, where it is stated that: “For with that sense of faith, which is awakened and sustained by the Spirit of truth, the People of God, under the guidance of the sacred magisterium, to whom they faithfully obey, no longer the word of men, but truly accepts the word of God, once they unfailingly adhere to the faith handed down by the saints, deepening it with right judgment he penetrates and applies it more fully in life.”

The sensus fidelium is better understood in the light of the dogmatic constitution Dei Verbum, paragraph 10, where it states that this sensus fidelium is fully realised only under the guidance of the shepherds: to be held, exercised and professed in the traditional faith.

But what is the missionary and driving relevance of custom in the legal order of the Church? If the law is given by the Legislator for the good of souls, to support the mission of the Church and so that salvation can be present in the lives of men, what can be the contribution of the institution of custom?

We know that the law always has a characteristic of generality and abstractness and that given by the supreme legislator of the Church must necessarily present a certain adequacy to the legal needs of the entire Catholic world. And yet, it is difficult for a universal law to be compliant with the needs of certain socio-cultural contexts that may arise in certain parts of the globe.

It is in this context that the value and significant contribution of custom comes into play. First of all, universal law in itself entails the risk of excessive legal uniformity, where specificities given, for example, by already existing customs, or peculiarities due to socio-cultural contexts or even geographical differences and particular needs of various kinds may are sometimes sacrificed.

Custom is therefore today an instrument recognised by the Legislator which can easily favour and promote this necessary plurality of the legal system, thus nourishing that correct inculturation which represents an unavoidable support for the new evangelization.

Through custom, the legal system is adapted and made more suited to local needs and interpreted according to the particular utility that a specific law can and must have in a certain context. Furthermore, custom, to the extent that it fills any legislative gaps custom praeter legem – to interpret and apply the existing law custom secundum legem – or to derogate it in whole or in part custom contra legem – allows that necessary adjustment, so the solutions abstractly envisaged by the Legislator are then modelled according to the real context in which we move. In this sense, custom favours, from a juridical point of view, the encounter between the announcement of salvation and a particular culture which welcomes the Christian event and is thus called to fulfil itself and purify itself.

The other relevant aspect in the customary dynamics lies in the fact that juridical use makes normative and binding what is right, useful, good and reasonable that has emerged from the behaviour of the faithful. Custom thus represents the expression of the spontaneous way of organising the people of God. Through behaviour repeated over time, the faithful express what they feel is rational and what they intend to oblige themselves to because they perceive it as right. The Legislator, therefore accepting this source of normative production, valorises and gives prominence to the factual juridical reality that has been created over time, because it recognises that under the guidance of the Holy Spirit the community of the faithful contributes to the building of the mystical Body of Christ.

From all these positive outcomes of custom we can also see that customs have negative results. Among these, I would like to mention the following:

  1. A custom is an excessively fluctuating institution which could cause dangerous disruptive phenomena within the social fabric. These blessings which are an innovation of Pastors, will create more problems between priests and bishops. Bishops will have no instrument of calling priests into order should these blessings get out of hand. One would have expected that this responsibility was given to bishops to develop and regulate such blessings in their dioceses.
  2. Paragraph 38 of Fiducia Supplicans mentions that:

For this reason, one should neither provide for nor promote a ritual for the blessings of couples in an irregular situation. At the same time, one should not prevent or prohibit the Church’s closeness to people in every situation in which they might seek God’s help through a simple blessing. In a brief prayer preceding this spontaneous blessing, the ordained minister could ask that the individuals have peace, health, a spirit of patience, dialogue, and mutual assistance—but also God’s light and strength to be able to fulfil his will completely.

This paragraph, in some places, has already created two contrasting powers. The supreme legislator on one hand and bishops on the other hand. The question is to the bishop who says, ‘not in my diocese’: to whom should the pastor listen, the pope or the bishop? In some places this document has already caused and it may further cause a fracture of the bond of communion between the Roman Pontiff and the local bishop.

A blessing can be a cause for a scandal. While a blessing is always good for those who receive it, it can be scandalous to those nearby. Let us think of a blessing for prostitutes, rapists, murderers, all who come as a group to ask for a blessing. They have no intention to repent or to correct their situation. They simply ask for a blessing to live happily as a group of murderers. Such a blessing can cause scandal to the faithful.

In searching out the lost sheep, the shepherd should not forsake the ninety-nine but should leave them in a safe place and make sure that he will find them when he returns.