Why bishops can't exempt clerics (including deacons) from continence

Following up on our post, "Canonist: Permanent Deacons must be celibate too" (Musings, January 16, 2011), is an update by Canonist, Dr. Ed Peters, clarifying an erroneous inference easily drawn by the layman, "Why Canon 277 § 3 does not allow bishops to exempt clerics from the obligation of continence" (In the Light of the Law, January 17, 2011):

Canon 277 § 3 states: “The diocesan bishop is competent to establish more specific norms concerning this matter [i.e., the perfect and perpetual continence of clerics, per Canon 277 § 2]” and to pass judgment in particular cases concerning the observance of this obligation.”

In my Studia article, I twice (see pp. 151 and 168) mention Canon 277 § 3, but only to say that it is of minimal importance in determining whether an obligation of perfect and perpetual continence is imposed on clerics under canon law. The audience for whom I wrote the article would have regarded my observation on 277 § 3 as non-controversial and would have moved on to the next point.

A number of bloggers, however, seem to think that Canon 277 § 3 is very important to this question, and indeed, that it is the Achilles heel of my argument. It is neither. At the risk of running down a rabbit trail, I will point out just two of the reasons why Canon 277 § 3 does not avail those who argue that married clerics in the West are not obligated to continence.

1. Canon 277 § 3 authorizes bishops to make specific rules which, given local circumstances, would support clerics in living in continence. To argue that local legislation can exempt clerics from a universal requirement is to turn the whole idea of local adaption of rules on its head. This is clear, I suggest, not only from common sense, but from the acknowledged predecessor norm of Canon 277 § 3, namely 1917 CIC 133 § 3, which stated “The judgment about retaining or frequenting women, even those who commonly fall under no suspicion, in particular cases where scandal is possible or where there is given a danger of incontinence, belongs to the Ordinary of the place, who can prohibit clerics from retaining or frequenting [such women].” Nothing in this norm remotely suggested that bishops could exempt clerics from the obligations in regard to chastity. Instead it allowed bishops to specify certain conduct that, like a fence around the law, must be avoided lest the fundamental obligations be endangered.

Examples of such local legislation were common in pre-conciliar canonistics, e.g., diocesan laws prohibiting priests from giving rides in their cars to single women, or telling them to avoid nightclubs, and so on. Local legislation was intended to protect the basic obligations, not to relax them.

2. Those who argue that Canon 277 § 3 allows bishops to relax the obligation of continence should think about what they are implicitly acknowledging: namely, that, if some bishops can relax the obligation thereby, others can impose it. But that would result in disciplinary chaos, of course, if say, the Archdiocese of San Francisco imposed continence on married clerics while across the bay the Diocese of Oakland exempted them from it. What would happen then?

Canon 277 § 3 is, as I have said, irrelevant as to whether the obligation of perpetual continence applies to married clerics in the Western Church. And that is the question before us. + + +

Update, 17 Jan 2011: The implications (or non-implications, as the case may be) of the 1998 joint dicasterial instruction (that's an important word here) on the diaconate, which document indeed contains the phrase “a certain continence” as an expectation for married deacons, is discussed in my target=_blankStudia article at pp. 172-174.

Update

Dr. Ed Peters, "Debating complex points of law is hard enough; having to repudiate false quotations is too much" (In the Light of the Law, January 18, 2011).

[Hat tip to C.P.]