The Roman Inquisition has followed various procedures in the course of its history. In the period from the sixteenth to the eighteenth centuries Holy Office procedures were secret and the accused had very few rights. The death penalty, life imprisonment, public humiliation and social ostracism were the consequences of a guilty verdict. But the actual processes of the Roman Inquisition were clear and were usually observed.
Certainly theologians today are not facing the possibility of torture and other such draconian penalties, but they often do face a kind of internal exile in which their reputations are impugned and they are often not able to teach or work within the fields for which they were trained. For some, like Pierre Teilhard de Chardin, this internal exile lasted for most of their lives. Both the Holy Office and the Jesuit Generalate had files on Teilhard’s views, especially on original sin, from as early as 1924. He was never able to publish his most creative work in his own lifetime and, right at the moment when he was admitted to the Légion d’Honneur (June 1947) by the French government, the Holy Office told the Jesuit General, John Baptist Janssens, that his work might well be put on the Index. He spent the last years of his life in ‘exile’ in New York, where he died and is buried. Nowadays the pressure of the CDF on the accused is psychological. Everything is done behind their back, so they are simply not able to check on whether the procedures are observed.
As we saw in Chapter 1, Paul VI had asked the newly constituted CDF in 1965 in Integrae Servandae to produce a set of norms governing its legal procedure. Nothing was produced until 1971, when a set of regulations was issued. There was no further structural change until John Paul II issued the apostolic constitution, Pastor Bonus (28 June 1988). This was an attempt to complete the reform and ‘rationalise’ the structures of the Curia that had been begun by Paul VI in Regimini Ecclesiae Universae. But in fact the changes John Paul II made to the Curia were minor. The same inertia that had blocked Paul VI was still at work in the Vatican in 1988. However, despite the fact that Pastor Bonus said that all the dicasteries of the Curia were equal, the CDF still maintains a unique status.
Since its role is to safeguard faith and morals, it not only exercises a power of jurisdiction, it also claims it shares in the teaching role of the pope. ‘The documents issued by this congregation [the CDF] expressly approved by the pope participate in the ordinary magisterium of the successor of Peter’ (Instruction on the Ecclesial Vocation of the Theologian, 18). Because of its central role, all of the other dicasteries of the Curia are obliged to refer all matters touching on faith and morals to the CDF, and to abide by its judgment. For this reason the Regulations according to which it operates are important.
On 29 June 1997 the CDF issued a new set of Regulations for Doctrinal Examination. The reason given was that new regulations ‘were needed that might respond even better to the needs of the present day’. According to the CDF consultor, Velasio De Paolis, this was motivated by ‘a desire to engage to a greater extent the responsibility of Ordinaries [i.e. bishops and religious superiors] in the task of safeguarding doctrine, especially the author’s Ordinary, and to ensure with greater breadth and effectiveness both the defence of the patrimony of the faith and the possibility for the author to defend himself’.
It is hard to see how the new Regulations offer the author any better form of defence. The evidence is that the CDF simply uses the accused’s religious superior or bishop as a conduit for information. In some ways the new Regulations are not as good as the 1971 set, but they do achieve clarity as to how the process works. Ideally, these Regulations set out the way in which the CDF will operate in all subsequent cases, although again it remains to be seen if they will actually be followed. The Regulations also reflect nothing of the positive approach called for by Integrae Servandae, and the care for justice and sensitivity for those being investigated is totally lacking. They are simply a set of cold, objective norms that treat the accused as a non-person, issued by the very authority that will act as investigator, judge and jury. Reading them, you are struck with the completely un–Christ-like feel that they reflect.
The Regulations begin by pointing out that it is the primary responsibility of local bishops and national episcopal conferences ‘to exercise vigilance’ and make sure that the people of God ‘receive the Gospel message in its purity and entirety’. But the Regulations stipulate that the ‘the Holy See can always intervene and, as a rule, does so when the influence of a publication exceeds the boundaries of an individual Episcopal Conference, or when the danger to the faith is particularly grave’ (Art. 2). So how does the process actually work?
While there is no discussion of this in the 1997 Regulations, it begins when a theologian, teacher, or member of a religious order, or priest, or even occasionally a bishop, is delated to the CDF. Most of those against whom action is taken by the CDF are members of religious orders or priests. This is because they are more vulnerable, being directly employed by the Church and vocationally very dependent upon it. Lay people are much less likely to be targeted, unless they are somehow employed by the Church and are thus vulnerable.
The technical term is that someone is ‘delated’ to the CDF. Delation is an uncommon word in English. It is derived from the Latin legal term delatio, which in turn is derived from the verb defero which, among a range of meanings, can have the legal connotation of indicting, impeaching, accusing or complaining about someone. It can even mean ‘to bring down’ in the sense of hunting and killing an animal, or cutting another person down to size. Delations can come from several sources, usually from within the accused’s own country. Often reports come from a local bishop or bishops who, for various reasons both doctrinal and political, decide to report a local Catholic to the CDF. Denunciations can occasionally come from papal nuncios, the ambassadors of the Holy See to various counties. But it is more likely that the nuncio will be the conduit through which a delation goes to Rome. Nuncios and bishops, of course, are likely to get a quicker hearing because of their position in the Church. Balasuriya, Gramick and Nugent, and I are examples of people delated by local bishops. In the case of Gramick and Nugent, the bishop was Cardinal James Hickey of Washington, DC, who pursued them and their ministry relentlessly right from the time of his appointment as Archbishop of Washington in 1980.
Delations can also come from reactionary Catholic vigilante groups which, the CDF itself says, are mostly in the US and France. These groups constantly bombard Rome with accusations about ‘progressive’ and ‘dissident’ theologians, priests, bishops, sisters or others they deem to be ‘unorthodox’, or with whose positions they disagree. These people are almost always unsophisticated theologically, are often ignorant of basic Catholic teaching, are extreme and fixated in their views, and are largely unrepresentative of the majority of Catholics. For instance, the great and somewhat conservative US Catholic biblical scholar, Raymond Brown, who died in 1999, and whose commentary on St John’s Gospel and books on the infancy and passion narratives are recognised by scholars and readers alike as classics, was often reported and denounced as ‘unorthodox’ and ‘heretical’ by people with absolutely no expertise whatsoever in scriptural studies. Lavinia Byrne (see Chapter 6) is not sure who delated her 1994 book Woman at the Altar to the CDF, but she believes ‘it was the work of right-wing Catholic women in England who target women “dissidents” and bombard the Vatican with complaining letters’. It is astounding how much influence these groups have in Rome and how much notice is taken of them. It indicates first the narrow unreality of many in the contemporary Curia about the real conditions of modern ministry. It also shows that a considerable number of Vatican officials are ideologically aligned with these extremists.
The route the extremists take to the Curia might not be primarily through the CDF, but through another congregation or office or influential individual. One channel that has been mentioned recently is the Congregation for Divine Worship and the Discipline of the Sacraments, presided over by the Chilean cardinal, Jorge Arturo Medina Estevez, a supporter and intimate of the former strongman of Chile, Augusto Pinochet. (It was Medina Estevez and the secretary of state, Angelo Sodano, who in an extraordinarily inept move attempted to influence the British government to release Pinochet when he was under house-arrest in the UK awaiting extradition proceedings on charges of torture and murder filed in Spain.) Sometimes pressure will build from within the Vatican itself and from local bishops because of perceived problems with particular theological approaches, such as in the 1980s when criticism of Latin American liberation theology came to a head. In the case of Tissa Balasuriya, with his emphasis on Asian theology, inculturation and dialogue with the other great religious traditions, what began with a local bishop attacking him in Sri Lanka was quickly taken up by the CDF because in the 1990s concern with Asian theology was very much on its agenda as well. The CDF is also focusing much more attention on popular writers whose books are widely read by Catholics, and on those such as Lavinia Byrne and myself, who are often in the general media.
The process begins when the delations lead to a CDF file being opened on the accused. This can contain letters of complaint, newspaper clippings, books and other writings – everything ‘relevant’ to the case. The complaints are considered at the weekly Wednesday meeting, called the congresso, of CDF staff. The congresso is usually presided over by Ratzinger, or the secretary of the Congregation, Bertone. The meeting assesses whether the delated work or writing or speech contains or promotes ‘doctrinal error’, and makes an estimation of the ‘gravity’ of the situation. The other criteria mentioned are the ‘prominence, seriousness, dissemination, influence and danger of harm to the faithful’ of the presumed errors. The Regulations state that, ‘After a preliminary evaluation of the gravity of the question, the congresso decides whether or not to undertake a study by the office’ (Art. 3).
It is worth noting that there is no presumption of innocence as there is in the common law and in most civilised legal traditions. Here the old canonical view that ‘error has no rights’ clearly prevails. It is also important to spell out precisely what happens here: a group of anonymous bureaucrats, none of whom, except Ratzinger, has any demonstrated expertise in theology or ministry, let alone any established reputations as serious theologians, are ‘evaluating the gravity of the question’. They often decide whether a professional theologian with established publications and a well-deserved reputation, or a person with a long track record in their particular ministry, should have their work submitted for judgment by an equally anonymous consultor who is also demonstrably a person of very limited theological and ministerial vision or competence.
If the congresso decides that the danger from the delated work is ‘very grave’ and ‘clearly and certainly erroneous’ teaching involving ‘grave harm to the faithful’, it follows an ‘extraordinary procedure’ which can lead quickly to public censure, as happened in the case of Jacques Pohier, or even excommunication (Arts. 23-7). But how does the CDF establish that a particular theological view is ‘clearly and certainly erroneous’? No norms or ways of measuring what is ‘very grave’ are set out nor is this term even defined. This is all simply left to the judgment of the CDF bureaucrats. The process begins when the congresso appoints a committee which is asked to determine promptly ‘the erroneous or dangerous propositions’. Here again, there is a presumption of guilt. The committee submits the extracted propositions to the ordinary session of the cardinals of the CDF. If the ordinary session judges that they ‘are in fact erroneous and dangerous’, having informed the pope, it contacts the accused ‘through his Ordinary, with the request that they be corrected within two canonical months’. If the cardinals of the CDF are unsatisfied with the accused’s response, discipline of the most draconian sort can follow immediately.
But in most cases, if the congresso thinks that there is a ‘case to answer’ which does not involve teaching that is ‘clearly and certainly erroneous’ and which does not constitute an immediate ‘grave harm to the faithful’, they can decide to pursue an ‘office study’ (Arts 4–6). If they decide to do this, the work is farmed out to ‘one or more [CDF] consultors or other experts in the particular area’, who undertake a detailed review of the matter. The biggest problem here is that the congresso and consultor alone determine what is ‘clearly and certainly erroneous’, and what will cause ‘grave harm to the faithful’. Precisely how the office bureaucrats and consultor attain this remarkable level of judgment is not spelled out; again it is just presumed. Surely such a procedure demands much wider consultation, discussion with the accused and the advice of his or her peers, as well as an attempt to understand the perceived problems within the cultural context from which they emerge.
In addition, the term ‘office study’ is really a misnomer. Most of the work is done by the consultor, who usually works part-time for the CDF. He (there are no ‘shes’ listed among the twenty-five part-time consultors in the 1999 Annuario Pontificio) will normally be a Rome-based priest with some theological or legal training who assesses the whole matter for ‘doctrinal error’ or lack of ‘doctrinal clarity’. The large majority of these reviewers, who have spent most of their careers in Rome, are lecturers in the parochial world of the Roman ecclesiastical seminaries and universities. They would not be consultors if they did not adhere strictly to the narrow orthodoxy that prevails in Rome. A number of them have other important positions in the Vatican.
For instance, the Dominican, Father Georges Cottier, as well as being a CDF consultor, is also the Theologian to the Papal Household. He is a consultor to the Pontifical Council Cor Unum (which distributes papal aid money) and to the Pontifical Council for Culture. He is a member of the Committee for Jubilee 2000, and a member of the Pontifical Academy of Science. Another CDF consultor with a plurality of appointments is the Carmelite, Father Jesus Castellano Cervera. As well as working for the CDF, he is also a consultor for the Congregation for Evangelisation of Peoples, the Congregation of the Clergy, the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life (this congregation supervises religious orders), the Pontifical Council for Laity and the Office of Pontifical Ceremonies. He is president of the Carmelite Pontifical Theological Faculty and Institute of Spirituality.
The outcome of the consultor’s review of the accused’s work is presented to the congresso. After further consideration, the superior of the accused (i.e. the local bishop or the head of the religious order) is informed of the charges. In the case of a religious, the CDF asks the superior to draw the Congregation’s concerns about his or her orthodoxy to the attention of the accused, who is, in turn, asked to reply in writing via the superior. In the case of a diocesan priest, the CDF usually writes directly to the person concerned and informs the bishop. This is almost always the first the accused involved will ever hear of the proceedings against them, which by then may have been under way for many months, involving a considerable number of people.
From then on, all dialogue passes through the accused person’s superior, conducted completely in writing. It is meant to be kept strictly secret on the grounds that this protects the accused person’s reputation. In fact, it renders them more vulnerable. As I argue in my own story, the safest procedure is to ‘go public’ fairly quickly so that the CDF has to think seriously about its own reputation and public image before it acts or uses arbitrary measures.
The accused is required ‘to provide the needed clarifications for submission to the judgment of the Congregation’; that is, they have to explain and justify themselves on the specific points nominated by the CDF consultor. The answer has to be provided within three months. The accused’s responses are then judged again by the congresso. If at this point the CDF wants to get out of or drop the case, the accused person will be asked to write an article in some theological journal or magazine, either repudiating or ‘clarifying’ their views. In effect, this means accepting not only the CDF’s opinion on the matter, but often being obliged to quote the CDF’s actual words. The article must be submitted to the CDF for censorship before publication. It is very rare at this early stage for there to be a meeting between the accused and the officials of the CDF, who constantly hide behind the mask of anonymity. The original delator is never named and remains unknown to the accused person. The accused cannot nominate a defence counsel, and certainly cannot be in attendance when their case is discussed by the CDF congresso. Usually there will be long delays, often up to a year or more, between letters from the CDF. The whole process seems designed to wear down the accused.
If the CDF bureaucrats in the congresso decide that the consultor’s report indicates that the publication or opinion ‘appears to contain grave doctrinal error’, the ‘office study’ quickly transmutes into an ‘Ordinary Procedure for Examination’ (Arts 8– 22). Presumably this happens also when the office study does not come to a successful conclusion from the point of view of the CDF; for example, if the accused refuses to write a ‘retractation’, does not submit it for prior censorship or does not set things out with precisely the right wording. The ordinary procedure for examination is a full-blown trial, except that it is only at a very late stage in the process that the accused may be involved.
This is how the ordinary procedure for examination works. The Regulations (Arts 8–22) distinguish two stages: ‘an internal phase of preliminary investigation’ and ‘an external phase involving the presentation of objections to the author and subsequent dialogue’. Phase one, which is essentially a secret, internal phase of investigation, begins when the congresso designates ‘two or more experts … to give their opinions, and evaluate whether it [the work or opinion] is in conformity with the doctrine of the Church’. At the same time the congresso appoints a relator pro auctore (defence counsel), ‘who has the task of illustrating, in a spirit of truth, the positive aspects of the teaching and the merits of the author, of cooperating in the authentic interpretation of his thought within the overall theological context, and of expressing judgment regarding the influence of the author’s opinions’. In other words the accused can neither nominate nor even know the name of their relator pro auctore, who will also probably be a Roman theologian totally unknown to them personally and ideologically aligned with the consultors, who have the double role of both prosecutors and judges. The consultors, relator and the accused’s superior meet in a kind of closed pre-trial meeting known as a consulta (consultation). The accused, of course, is not permitted to attend and may not even know that it is happening. The only person who is acquainted with the accused and who can participate in the consultation is his superior (I do not know what happens when a woman is the accused and her superior is also a woman, as in the case of Lavinia Byrne). But the superior is bound to secrecy anyway, so he or she presumably cannot let the accused know what happened at the consultation.
At the end of the consultation, the consultors alone vote on the outcome of the examination. The relator and superior must leave the room during the vote. The result of the vote, along with the entire file and minutes, are sent to the ordinary meeting of the CDF – the assembly of cardinals and bishops who are members of the Congregation. Those who live outside Rome presumably are not able to attend all of these ordinary meetings. The ordinary meeting decides whether to present ‘objections to the author, and if so, on which points’. At this juncture the pope is informed, as well as ‘competent dicastries of the Holy See’. It is quite clear from the Regulations that all of this can happen without the knowledge of the accused.
It is only in the second stage that the accused can participate, but even then only at a distance.
The list of erroneous or dangerous propositions at issue, together with an explanatory argumentation and documentation necessary for the defence, are communicated through the Ordinary [i.e. author’s superior] to the author and his advisor, whom the author has the right to nominate, with the approval of his Ordinary, to assist him. The author must present a written response within three canonical months. It is appropriate that, together with the author’s response, the Ordinary also forwards his own opinion to the Congregation.
The accused has still not been able to put his or her case in person. The consultors will have been able to express opinions about his views, as too will the author’s Ordinary, who may or may not be a supporter of the accused. Yet the accused will never see any of this material. It is only at this final stage that ‘the possibility is also foreseen of a personal meeting between the author, assisted by his advisor (who takes an active part in the discussion) and delegates of the Congregation’. What influence this meeting is to have on proceedings is not detailed. The evidence indicates that the meeting, while polite, usually achieves little or nothing. Because the consultor has already acted as judge and jury, there is little or no chance that the decision will be changed.
After this, all the material goes back to the congresso where it started. If the examination of the congresso ‘reveals truly new doctrinal elements requiring further evaluation’, the whole business goes back to another consultation, at which further ‘experts’ can be called, and the accused becomes involved in a whole new round of answering questions. The process could and often does drag on for years.
However, if the congresso is satisfied, everything is sent on to an ordinary session of the CDF, where the cardinals decide if ‘the question has been resolved positively and that the response is sufficient’. Otherwise ‘adequate measures are then taken, also for the good of the faithful [sic]’. What are these ‘adequate measures’? They are detailed in the Regulations in a final section headed ‘disciplinary measures’ (Arts 28–9): ‘If the author has not corrected the indicated errors in a satisfactory way and with adequate publicity’, and the CDF decides that the accused has committed the offence of heresy, apostasy or schism, he or she is excommunicated latae sententiae, that is, automatically. There is no possible right of appeal in the canonical legal system against such an excommunication, as the story of Tissa Balasuriya makes clear (see Chapter 4). If the ‘errors’ of the accused ‘do not involve latae sententiae penalties’, the CDF can impose various other penalties such as the forced withdrawal of books from sale, or even the destruction of those still in print, suspension from the priesthood, expulsion from religious life, the imposition of various periods of silence, dismissal from a teaching job, and variations and combinations of these and other ecclesiastical penalties.
Commenting on these CDF Regulations the respected Jesuit canonist at Washington’s Georgetown University, Ladislas Örsy, asks, ‘Are Church Investigation Procedures Really Just?’ (see Doctrine and Life 48 (1998), pp 453–65). He examines the Regulations in the light of the Church’s concern with human rights and of the widespread concern for fair legal processes. Örsy finds the CDF Regulations to be defective in a number of ways.
First, there is no precise definition of the offence. Second, the Regulations do not distinguish at all between judge, prosecutor and investigator. The CDF carries out all roles and often the same person acts in the various roles. Third, the accused is given little opportunity to plead his or her case. Fourth, there is no presumption of innocence. Fifth, there is no right of appeal. And, finally, the secrecy provisions mean that justice is not seen to be done, especially when the penalty is automatic excommunication. ‘To rush into imposing an extreme sentence (perhaps even without ever having listened to the author) can hardly be a sign and symbol of justice’ (p. 464).
Örsy calls for the creation of a climate of trust and argues that if the CDF thinks that norms are needed to prevent doctrinal deviations, ‘norms are even more needed to secure legitimate freedom for creative thinking’ in the Church. In other words, theologians and those who attempt to communicate the faith need some form of protection from arbitrary investigation and judgment. His conclusion is that overall the Regulations ‘are not signs or symbols of justice. They have their roots in past ages which did not have the same vision of the dignity of the human person and the same respect for honest conscience that is demanded the world over today’ (p. 465).
Given that this is a book of stories about people who have dealt intimately with the CDF, it is inevitable that personalities will be mentioned and assessed. Judgments will be made, some of them blunt and severe. This is not just the result of pique. It emerges from a conviction that the time has come to declare one’s position and to tell the truth. This is exactly what the people in this book do.
I cannot, of course, speak for any of the other contributors, but it is my personal view that the moment has arrived for the CDF to be abolished. I repeat what I said in Papal Power:
It is a creature of the counter-reformation and has no place in the contemporary Church. It has proved on several occasions to be essentially irreformable. Nowadays it is … a manifestation of an exaggerated and over-centralised papalism. Its present personnel demonstrably have little or no pastoral experience nor, with the exception of the cardinal prefect, do they have well-established reputations as theologians. No doubt its personnel are well-intentioned, but their view of the wider Church is not just ignorant; it is blinkered and myopic. As a result it is difficult to see what positive contribution the CDF makes to the contemporary Church. Its purposes could be served more effectively by the peer pressure of other theologians and by the authority of local conferences of bishops. Rome should be involved only as a last resort.
Yet Rome seems obsessed with control. In a personal letter reflecting on his own experience of the Holy Office, the great French Dominican ecclesiologist Cardinal Yves Congar (1904–95) says that the Vatican wants the whole Christian world ‘to think nothing, to say nothing, except what they propose’. He continues: ‘It is clear to me that Rome has never looked for and even now does not look for anything but the affirmation of its own authority. Everything else interests it only as matter for the exercise of this authority … the whole history of Rome is about insisting on its own authority and the destruction of everything that cannot be reduced to submission.’ The full text of the letter appears in the March 2000 edition of La Vie Spirituelle and the translation in the National Catholic Reporter, 2 June 2000.
The primary focus of this book is the obsession with power, which seems to be the most potent motivating force in the Vatican and the CDF. But the most scandalous thing is that inquisitorial procedures of any type have a place in a Church that claims to follow Jesus, a man totally opposed to the religious hypocrisy and the legalism of the scribes and pharisees.
While Jesus deeply respected the Jewish tradition, he had absolutely no patience with the type of legalism that is used to oppress people. He identified it with religious hypocrisy, and it is extraordinary how often this word is used in St Matthew’s and St Mark’s Gospels. ‘Woe to you scribes and pharisees hypocrites!’ (Matthew 23:13). Pharisaism is a characteristic of all religions. The terrible danger that Catholicism faces is that if it does not deal decisively with the legalists and literalists at the very top of its hierarchy, it will render itself irrelevant to the vast majority of people of goodwill. But the flip side of crisis is opportunity. As it enters the new millennium, there is a chance for the Catholic Church to leave behind its inquisitorial past and take a whole new approach.