The Juridical Status of Women in
Contemporary Ecclesial Law
by Francis Morrisey, O.M.I
from Sexism and Church Law
edited by James A.
Coriden 1977, pp. 1-20.
published by Paulist Press, New York/Ramsey,
Republished on our website with the necessary
The second Vatican Council was indeed prophetic when, on numerous occasions, it recommended that we be attentive to the signs of the times. (1) Some of the signs that seem to characterize the second half of the twentieth century, to date, are a recognition of the dignity of the human person, an earnest quest for justice, a desire to promote the well-being of the under-privileged, a search for true and lasting spiritual valuesas opposed to temporal considerationsto mention but a few. There is, however, another sign that is creating considerable interest, and difficulty, today: the awareness of the necessity of recognizing women's rights in society, and, more especially, in the Church. Our civil governments have approved legislation granting equal status to women before the law, or at least recognizing their right to equal opportunity; likewise, a number of disabilities have been removed from the statutes. The Church, as a whole, has not been as quick to recognize some of the inadequacies of its legislation relating to women, although much has, in fact, been done in the past fifty years. The very universality of the Church makes any quick or rapid change in this area unlikely, if not impossible.
It would be helpful, I believe, to give an overview of the canonical legislation regarding women, as it now stands. It would no longer be of great importance or value to belabour the fact that the Code legislation of 1917 is inadequate for today's needs. (2) We have all recognized this and attempts have been made, successfully in part, to overcome some of the deficiencies. But, when we compare the progress made in other areas of legislationand I am thinking particularly of matrimonial lawwe can easily see that much remains to be done.
In our study of the present legislation, we shall consider three principal topics, of very unequal length, which will enable us (I) to determine the juridical status of women in Church law, (II) to examine the changes in legislation already announced or foreseen, and (III) to consider some elements which are necessary for a greater juridical recognition of the basic equality of all members of the People of God.
We are only too well aware of the fact that, in addition to the legislation that applies to the universal Church, there are numerous social and cultural factors to be considered. It would be unrealistic, I believe, to propose modifications that must necessarily be applied everywhere. A number of points are fundamental; others are more particularly related to a specific cultural context. We will keep the North American context in mind, without any pretense of speaking for or about the universal Church.
I. THE JURIDICAL STATUS OF WOMEN IN CHURCH LAW (3)
The Code legislation, as it stood in 1917, certainly ascribed a subordinate status for women, who were considered almost as dependent, passive, or inferior members in the Church. Laws regarding the status of persons were defined in terms of the male, as can be verified in such juridical areas as domicile, rite, accessibility to Tribunals, position in regard to the sacraments, and identification of what was considered to be sexually wrong. (4) But this was greatly due to an "accepted" way of thinking and, at the time, was probably not considered repressive. This goes to show that in specific matters of legislation, the social and cultural context exerts great influence. Likewise, the theological perspectives were not as developed as they are now. In fact, it was Pius XII who, in the encyclical letter Mystici Corporis, fostered a renewed appreciation of the Church as the Mystical Body of Christ. This encyclical, as W.J. Egan writes, "revitalized the Pauline and patristic concept of the Church as a supernatural organism composed of all the baptized united to Christ the head of the Body, and to each other"; in which Body every Christian, lay and cleric alike, "has a dynamic function to fulfill as a participant in the total mission of the Church perceived as the spatio-temporal extension of Christ the mediator. (5) At the same time, the Popes were also promoting the active participation of the laity in the liturgical renewal and in the apostolate known as "Catholic Action". These notions progressed rapidly and a newer, comprehensive theology of the Church as People of God was elaborated in the Council. One of the principal aspects of this renewed theological understanding was a better comprehension of the notion and consequences of membership of all in the Church.
1. THE PEOPLE OF GOD
a. A Universal Call to Holiness
The concept of the Church as Mystery and as People, that is, as a group composed of men and women, and not identified primarily in terms of structures, has led to what may be called a "revolution" in particular areas of religious thought and practice that have their eventual repercussions on the status of women. Pope Paul VI himself stated that the Council told us so much about the Church that "we are experiencing a certain sense of conceptual dizziness", (6) or, as H.V. Heffernan stated,
The Church is presented as a People who are guided by the Spirit in the way of truth, unified in communion and ministry, given gifts necessary for its purpose, and thus shines forth as a People made one with the unity of the Father, Son, and Holy Spirit. (7)
Among the things the Council reminded us of in respect to the status of women, we could mention the universal call to holiness in the Church. Holiness is no longer considered as the special prerogative of any sex, of any person, of any state of life, but it becomes "the very goal of the Church both in this life and in the next" (8) (cf. L.G., 39).
Likewise, the Church is presented as a new creation, calling all, without discrimination, to "share a common dignity from their rebirth in Christ" (L.G., 32).
Hence, there is in Christ and in the Church no inequality on the basis of race or nationality, social condition or sex, because "there is neither Jew nor Greek; there is neither slave nor freeman; there is neither male nor female. For you are all one in Christ Jesus" (L.G., 32).
The teaching of Lumen Gentium is also quite clear on the fact that in spite of its ideals, the Church has not yet reached the fullness of its potential: it "is at the same time holy and always in need of being purified" (L.G., 8).
Thus, while the basic qualities are understood to exist, yet in another sense they are not yet realized. This will only come in the fullness of the Kingdom of God (L.G., 5). It is no wonder, then, that the Council frequently refers to the need for growth and reform within the Church (cf. G.S., 43). In this realm, one of the points that perhaps needs closer examination is precisely the topic we are considering. But before seeing how this teaching can be applied, let us take note of what the Council said on the subject of the dignity of the human person.
b. The Dignity of the Human Person
Through the ages, there has continually been division over the primacy of community or of person. A person was often considered in terms of a solitary, self-fulfilling individual; community was the restrictive bonding of individuals. We assert readily today that institutions are for persons, and not persons for institutions. It is argued that the Church is not simply an institution, but is first of all a community of believers existing in radical dependence upon a divine revelation. (9) But is it not also asked whether in the Church, as we know it, it is the revelation that is primary, and that believing persons are submitted to it? This is a significant question for women, who are assigned status because of sex, and the rationale for doing so is often simply the accord with God's plan. (10)
While communal experience defines the person, a non-manipulative community must remain the ideal. Indeed, can the community define the person? The answer may be found in such documents as Gaudium et Spes (11) where the conciliar Fathers affirm a "dynamic-evolutionary" perspective on man: men and women find self-actualization in community; while God makes possible their future, He also makes men and women responsible for that future. In this perspective, the Council's teaching on the dignity of the person embraces many aspects, which could simply be alluded to as follows.
The unity of the human person. Firstly, Vatican II clearly affirms that "man is one" (G.S., 14). The body must be regarded as good; but the mind must find its good in God (cf. G.5., !3).
Dignity of mind. All men and women are called to a search for truth, and to go beyond truth itself (G.S., 15). To exclude any particular perception of truth, or any particular possession of wisdom, would be a disservice in the discernment of truth itself.
Liberly and independence. The excellence of liberty as a concomitant for human dignity is affirmed by the Council, for only in freedom can man direct himself toward goodness: "authentic freedom is an exceptional sign of the divine image within man" (G.S., 17). The obligation to seek truth can only be discharged in men and women who enjoy "immunity from external coercion as well as psychological freedom" (D.H., 2).
A new creation. The conciliar notion of the dignity of the human person sees it both in the male and in the female, in a new creation where "all the members ought to be moulded into Christ's image until he is formed in them" (Gal. 4, 19).
Thus, we see that the Council has presented two important trends of thought to be kept in mind in evaluating the juridical status of women: we are all members of one people, without distinctions based on sex or race; the dignity of each person is to be fostered in terms of unity and liberty, in the perspective of a new creation to be brought to fulfillment in Christ.
2. THE STATUS OF WOMEN ACCORDING TO THE CONCILIAR DOCUMENTS
The study of the juridical status of women as recognized in the Conciliar documents could be carried out in many ways. For our purposes, it will be sufficient to study the question under separate headings. It could be mentioned that the word "mulieres" is not used too often alone in the documents, but is often found in the expression "viri et mulieres", or is understood from the context of the passages.
a. The Conciliar Thinking on Non-Discrimination
Of the dozen or so references to non-discrimination in the Church, most of these are specific about sex discrimination. In Lumen Gentium it is understood, apparently, that any distinction that might appear as discriminatory, must have as reason the manifest will of Christ (L.G., 32). This seems to imply that any restriction on the dignity and/or the activity of the faithful directed toward the building up of the Body of Christ, must be of divine ordinance. But the point should not be belaboured.
Gaudium et Spes affirms the essential equality of all persons since they have the same nature and origin, have been redeemed by Christ, and enjoy the same divine calling and destiny (G.S., 29). While the texts of these two Constitutions indicate an awareness of the equivalence of the male/female manifestation of the human species, with the inference of the basic rights of each to full self-determination, they recognize a diversity that is seen as rooted in the "divine ordinance", resulting also from diversity of intellectual and moral resources.
Nevertheless, in spite of the universality of such declarations, when speaking of the process of reproduction, a rather male-centered outlook is still evident. For instance, Gaudium et Spes states that mothers and the female sex are to receive "due consideration" (G.S., 67). This could be taken as a subtle type of protective discrimination; indeed, might it not have been possible to speak of "due consideration" for fathers and mothers of families?
One idea that recurs in the Council texts, is reference to the activities of women "in accord with their nature". Women, in other words, would have a "proper" role, and it is not a woman's self-determining consciousness of her "right" to culture that determines her liberation from ignorance, etc., but her nature and proper role (G.S., 6).
Dignitatis Humanae (D.H., 6) is quite open to the question of non-discrimination; likewise, Nostra Aetate (N.A., 5). But, the declaration Gravissimum Educationis (G.E.. 1; 8) reminds us that teachers are asked to "pay due regard in every educational activity to sexual differences and to the special role which divine Providence allots to each sex in family life and in society".
It goes without saying that differentiation based upon sex is most evident in the statements relating to ordination and reception of ministries (i.G., 55, 56; O.T.t 2; A.G., 16; etc.). Regrettably, but understandably so at the time, no recognition was given to the new ministries being carried out by women (religious and lay), nor is it acknowledged, as is the case for men, that works performed by women are also in need of effective sacramental grace.
b. Women and Symbols
At least five passages in Lumen Gentium reflect not only the symbol, but also an underlying attitude towards women through the use of symbolic language (L.G., 7, 8, 9, 56, 64). One symbol is the Eve/Mary sign used in the traditional meaning of death and life. Other symbols used are: mother and bride (to depict the Church), subject-bride, and one body. While they are traditional and an integral part of our heritage, it may be asked whether they are truly compatible today with the Conciliar doctrine of male and female equivalence in human and Christian dignity: woman is presented in terms that do little to depict the mutuality and equality of both men and women.
c. Women and the New Creation (New Order)
In equality and mutuality, men and women were blessed and told to "be fruitful, multiply, fill the earth and conquer it" (Gen., 1, 28). We are all aware of what eventually happened, and how a new creation in Christ was necessary. In the new creation, the mutuality of man and woman is expressed clearly, as the renewal brought by Christ manifests itself in a human interdependence which grows more tightly drawn and spreads by degrees over the whole earth, and "involves rights and duties with respect to the whole human race" (G.S., 26). A series of such rights is then enumerated and no element of discrimination is found therein.
The new creation notion is indeed the fullest expression of a dimorphic outlook; for to the balanced awareness of the mutuality of man and woman in all spheres of life and mission, is added the concept of incorporation into Christ which raises such mutuality into the manifestation of Christ Himself in the prolongation of His work in history.
d. Women and New Relationships in the Church
Gaudium el Spes, while not suggesting that the basic unity of mankind is something new, does call attention to mankind's growing awareness of common bonds forming a new world community (G.5., 33; see also C/.K..4).
In the passages of the Conciliar documents that refer to the establishment of new relationships in society and in the Church, sometimes described as the new order, the man/woman collaboration is mentioned specifically in at least five passages: through the local Church (A.G., 21), in service of the truth (G.S., 3), through earthly progress (G.S., 39), by unity of faith and daily life ((7.5., 39), and in government through justice and holiness (G.S., 34).
Women are expected, along with men, to effect the new order so that the Church will not only mirror the changing social patterns, but will display leadership and directive example, as the Holy Spirit contrives to inspire the new order in Christ.
e. Women and Marriage
In the area of marriage, we find very positive statements concerning the status of women. Both Christian husbands and wives are cooperators in grace and witness of faith on behalf of each other, their children, and all others in their household (cf. G.S., 5; A.A., 11).
In a passage now well enshrined in canonical jurisprudence, Gaudium et Spes (G.S., 48) refers to the intimate partnership of married life and love, established by the Creator and qualified by His laws. The text happily stresses the mutuality of help and service rendered to husband and wife through the marital unity of their individual persons and actions.
The structure of marriage is simply stated as flowing "from the equal personal dignity" of wife and husband, a dignity that is implemented in mutuality and love (G.S., 49).
The same passage also shows an awareness of the active and equally contributive part played by women and men in the procreation of children, and perhaps even suggests a more shared domestic responsibility on the part of father and mother (G.S., 48). Nevertheless, the Council does not declare mutuality of responsibility for child care:
The active presence of the father is highly beneficial to their formation. The children, especially the younger among them, need the care of their mother at home. This domestic role of hers must be safely preserved, though the legitimate social progress of women should not be underrated on that account (G.S., 52).
Though seemingly aware of a need for concern in the area of child care, the above passage- falls back (albeit somewhat apologetically) on the assumption that woman has either a "natural" or "assigned" domestic role; whereas the father's presence is "highly beneficial", certainly not essential.
In spite of this possible weakness, the great change from looking on the familial structure as male-centered, observable in the Codex Iuris Canonici, to one that is mutually participatory and responsible for both spouses, is one of the great advances presented in the second Vatican Council that will continue to have liberating influences on women.
f. Women and Religious Life
When referring to religious life, the mutuality of man and woman is clearly indicated. From the start, it should be mentioned that a clear distinction is made between the clerical-religious life (reserved to men), and the lay-religious life (open to men and women) (P.C., 9). After the Council, it became customary to speak of three states of life: lay, religious, and clerical. But the lay-clerical distinction is still quite common in the thinking of many people.
The decree on the appropriate renewal of religious life rightfully calls for the continual formation and preparation of both male and female religious (P.C., 18), but the institution of the papal cloister is maintained only for women. Several passages are found which place men and women together in such a way as to depict a mutuality of mission and participation in the extension of the Kingdom (cf.A.G, 6;A.A.,25).
Any significant differences in the Conciliar pronouncements regarding male and female religious are based more on the clerical-lay distinction, than on the masculine-feminine one. In spite of this, however, a question that underlies the entire Conciliar teaching is whether ordination is a divisive juridical fact in itself, establishing a different norm for rights and duties in the person, and not in the mission of that person. The question does not yet seem to have been resolved satisfactorily.
g. Women and the Closing Messages of the Council
At the end of the Council, a number of closing messages were read, one of which was addressed to women; there was no corresponding message to men. The message is written in terms that generally refer to dependency relationships that may occur in a woman's life: it speaks to daughters, wives, mothers, widows! Again, these relationships might not have been considered in this dependent perspective. The attitude of men tending to think of women in terms of the relationships, rather than in terms of their existent realities as human beings, is quite evident here. Women are spoken to in terms of their sexual-relational roles, not in terms of their personhood or their accomplishment (cf. the messages addressed to intellectuals, scientists, artists, etc.).
In spite of this inherent weakness, the message does show an awareness of change in woman's position, though the outcome seems to be envisaged in terms of increased influence and perhaps not so much in terms of independent self-actualization. But we must remember that the text was universal in scope, covering numerous situations.
Apparently, the message shows little or no evidence of any real awareness of woman's equality with man, her right to be considered as a mature, responsible person, capable of self-determination in the area of her roles, her activities, her mutuality with man in the establishment of the Kingdom.
This brief overview of some of the Council's teachings on women shows a marked renewal of understanding; but there are still to be found numerous references presenting women in their traditional "roles" and not in terms of their independent self-realization.
The juridical status assigned is one of equality, with any reservations being dependent upon what was considered to be the will of God. While the texts still speak of proper "nature" of women, the fundamental juridical principle is well defined and enshrined in law.
3. CANONICAL IMPLICATIONS OF THE CONCILIAR TEACHING
a. Principles To Be Observed
The first question we should ask ourselves in regard to the Council documentation on women, is its canonical significance. Not everything written in the documents may, or even should be, interpreted as juridical ordinances. After promulgating the documents, Pope Paul explained that all the Conciliar laws must be respected, but that on many occasions, the Council
formulated principles, criteria, desires which must be given concrete expression in new laws and instructions, in new organisms and offices, in spiritual, cultural and moral movements, and in organizations. (12)
In other words, the parts of the Conciliar documents that will be expressed in ecclesiastical laws, will be forthcoming in post-conciliar legislation. Did the principles put forward by the Council referring to women find their expression in canonical legislation?
There is no doubt that the principles of Lumen Gentium on the mystery of the Church are firmly established in doctrine and must be respected. Likewise, the doctrine of the dignity of the human person is part of our faith and must be manifested in legislative norms. But, when we come to specific details, the question is not as simple. What are some of the things we should be looking for in the new legislation? To help answer this question, the following criteria could be of assistance.
Looking more closely at the pronouncements, we must remember that men have enjoyed the juridical situation of being without status before the law by reason of their sex, so it may be somewhat difficult for them to realize that this is the basic right that women are claiming; status had been assigned for state of life, offices, merit and qualifications, not for sex.
As a consequence, in the law we should be looking for equality of juridic personality. All members of the People of God should have the same rights, responsibilities, and the same protection and penalties in all laws that relate to them. Then, all laymen and laywomen should also have the same rights and responsibilities, the same protection and penalties, in accord with lay status. This would mean that all protective norms for women would either be removed or extended to men.
In questions of temporal ecclesiastical affairs, restrictions had been placed on women whenever certain canons restricted lay functions to men. These restrictions would have to be removed by law.
In matters referring to the apostolate, women should no longer be excluded from anything that pertains to the life and mission of the Church solely on account of their female sex.
It would be quite illogical to proclaim the equality of the juridic personality of men and women at both the levels of human nature and of the People of God, and then assume that at the level of the social and/or interpersonal relationships, the factor of sex assumes a paramount importance. It seems, then, that no "proper" sphere for women should be indicated.
Changes will be required in regard to married women, the matter of domicile, rite, place of burial, etc. Authority patterns should not be determined in terms of the patriarchal-type family, but with principles of mutual consent, consensus, and self-determination. The authority figure over children should not be determinative of legitimacy (the father) or illegitimacy (the mother).
All structures within the Church, established on the concept of automatic male authority, whether in the family, religious life, or the Church community, may still be "hierarchical" by function, but the assignment of men to the leadership roles on account of "maleness" is no longer tenable.
The limits set by the Code on a woman's active participatory role in regard to the liturgy must be reassessed in terms of Conciliar statements of lay participation and non-discrimination. It would seem that whenever a sacramental and/or liturgical action does not relate directly to the power of orders, no distinction should be made on the basis of sex among the members of the laity.
Were these principles applied in the post-conciliar legislation?
b. Post-Conciliar Orientations on Women
i. Pope Paul Vl's Views concerning Women's Status
Undoubtedly, as the first legislator in the Church, Pope Paul lost no time in fostering the good news of the Council. In his message Africae Terrarum of October 29, 1967, the Holy Father makes special reference to women; his thinking includes elements from natural law, conjugal love, the children's training ground, and the common good of society. At times, he both affirms and questions the emergence of women, (13) without condemning such change. He states that it is not the Church, but "Christian teaching" that speaks about woman's touch of gentleness, but, possibly in view of the particular context of the message, the Pope does not seem to speak of her as a responsible and creative agent. Thus there is, it seems, little evidence shown of mutuality, of mission for the Kingdom of God.
In the encyclical letter Humanae Vitae, he strongly affirms the mutuality of the marital life and mission which have full regard for the dignity and the responsibility of the wife and of the husband.(14) The teaching of this document is of the greatest importance in this regard.
Analysing some of Pope Paul's later pronouncements, we seem to find alternating views, probably depending on the particular circumstances of his addresses.
In an allocution given on March 5, 1969, he presents a beautiful development of the new orientation towards mission, with its special focus on the lay activity. His approach here is fully missional, not functional, something that is required if the apostolate of the laity is to be given its rightful recognition. (15)
As of 1970, his addresses seem to stress more the practical issues of service and new structures: a certain concern about lay inertia begins to appear. (16) When St. Theresa was proclaimed a doctor of the Church on September 27, 1970, the Pope summed up the "sublime" mission of women: the mission of prayer, the profession of faith, collaboration with grace, and cooperation with men. (17) The address has a somewhat functional approach to woman's mission and not a missional outlook, as was evident in his earlier addresses.
In 1971, he begins to show a growing concern for the alienation of the world and the lack of response on the part of the laity to do something about the situation. There is also more emphasis on the need of hierarchical direction of the laity.(18)
Later addresses on such topics as morality (e.g., against abortion), seem to define woman in terms of her vocation to be a mother. (19)
It would be only natural to expect some statements on the subject of women's status to have been given during International Women's Year. Some were given, yet, in this particular period of time, the Holy Father seems to be insisting more on human rights in general, than on woman's status in particular. (20) There also appears a questioning of the Church's own witnessing to human rights and justice. (21)
But, through all of the Pope's addresses on the subject, it would appear that he has a deep awareness of the implications of the fundamental equality of men and women, and of the need for an expression of this equality in the roles assumed by men and women in society. Above all, the responsibility of the Church to measure this development in relation to our new creation in Christ, and not totally in terms of cultural development and change, is being expressed. These, and other such insights into what the whole issue of woman's personhood in Christ really means, can only be assessed as tremendous progress for woman's position in the Church. The "problem" is beginning to be understood.
ii. Changes in Legislation
Numerous documents, of varying importance, have been issued by the Holy See since the Council. We shall limit our considerations to an examination of some of them.
While the statements emanating from the Synod of Bishops are not juridical texts, they inevitably lay the foundation for future legislative acts. It is most encouraging to note that in the synodal statements on the ministerial priesthood, justice in the world, and evangelization, there is almost nothing found therein that could be considered as relating specifically to women's "role"their mission is well founded and great concern is expressed for equality among all persons. These texts will eventually exert their influence on Church law.
Likewise, in the reform of the Curia, new departments were of import to the laity as a whole: the Council for the Laity, and a number of Pontifical Commissions. The establishment of these organisms is a significant step in opening opportunities to the laity for leadership and direction in the Church. We could mention, in particular, the Commission on Justice and Peace, and the various new Secretariates which are departments opened onto the special role of the laity. The Pontifical Commission on the Role of Women in the Church (May 3, 1973), is a significant step forward, even though its terms of reference are couched in traditional concepts of women, and portray a somewhat functional concept of women. (22) With all of these bodies, though, it will take years before great positive influence is felt; however, they too are all important steps in the right direction.
The Commission on Human Rights issued, in October 1975, a statement reaffirming the equality of all mankind, without distinction based on sex. However, that same month, October 19, 1975, the S.C. for the Evangelization of Nations issued a report on the role of women in evangelization. (23) In spite of its opening assertions about non-discrimination, this text could be considered highly discriminatory. The diversity of roles assigned to men and to women at all levels of evangelization because of maleness and femaleness, is not a recognition of role diversity based on human merit and qualifications. Yet, in spite of incidences of "role specification", two sections are relatively broad in their outlook: selection and preparation of women for evangelization, and, forms and modalities of feminine involvement. We still find inserts in the text on "feminine qualities"; equivalent qualifications nowhere serve in the selective norms for evangelization; roles are assigned to women, but they are still the supportive types of work that women have been permitted to perform.
On the diocesan and pastoral levels, significant recognition has been assigned to women in the various pastoral councils established to further the mission of the Church. Norms on diocesan synods were also revised, as is seen in the Directory for the Pastoral Ministry of Bishops, February, 1973: the entire People of God is to be educated about the Kingdom; those who share in the synod, laity, clergy, and religious, have the same consultative vote. There is no wording in the documents which establish the various consultative councils in the Church that is opposed to women or to their mission.
iii. Pertinent Legislation affecting Women
A number of legislative documents, promulgated since the Council, refer directly to women. For purposes of clarity, we shall simply allude to them in the order of the canons of the Code,
In the faculties granted to religious superiors of the Oriental Rites (June 27, 1972), the same norms apply for confessions of male and female religious, although reference is made to possible abuses regarding the confessions of women.
Norms regarding the liturgical functions of women have always been divisive. For instance, a response of the Consilium for Liturgy, December 4, 1968, stated that women lectors, if used, were to take a position outside the sanctuary. Women are not allowed to serve the priest at the altar. (24) Many other norms are of this nature.
The powers of superiors general of lay Institutes in regard to the secularization of members under temporary vows (25) recognizes a mutuality of competence to men and women superiors.
The decennial faculties of 1971 still retain preference for husbands who wish to put away their wives, without interpellations. No mention is made of the converse situation. (26)
The new rite for the consecration of virgins (May 31, 1970) raises some questions. Do we find a possible androgenic focus on physical sexuality rather than on a Christian morality for men and women that includes chastity in every state of life?
The decree Dum canonicarum legum, December 8, 1970, rectified a number of situations regarding the confession of women religious. But the norms of August 15, 1969, regarding the Papal cloister are exclusively drawn up for women; no similar prescriptions exist for men.
Religious men and women have been authorized to celebrate baptism when no ordinary minister is available (October 12, 1970). Norms for lay ministers of the Eucharist preferred a man to a woman, (27) although, lately, they have been again revised to remove discrimination. (28)
We are all aware of the prescriptions of the Motu proprio Ministeria quaedam, excluding women from admission to the ministries of lectorate and acolyte. (29)
The norms on mixed marriages (March 31, 1970) specifically provide for recognition of respect of the liberty of the consciences of both parties in the marriage and the mutual responsibilities of husband and wife in the education of children.
The ecumenical development holds great promise for women. No distinctions seem to be made against them (or for them) in the documents of May 14, 1967, and April 16, 1970.
Regarding judicial procedures, lay men have been authorized to serve as judges, but women have been explicitly refused access to this position, as well as to other roles in a court, except those of notary and advocate. This is one area where the law must be changedand quickly sobecause there is absolutely no justification for this untimely discrimination.
In non-consummation cases, there is still reference to the physical examination of women, who are now free, nevertheless, to refuse to undergo this procedure (March 7, 1972).
Finally, penalties for violation of the cloister have been dropped (August 15, 1969).
To summarize these changes, we can state that this revised legislation has a number of interesting orientations or trends. In no place does it seem that the Conciliar doctrine of the equality of men and women as the People of God, and as members of the laity, has been clearly given juridic force, although in some documents, such as those dealing with ecumenism, migrants, tourism, and such like "social" responsibilities, both men and women are designated for service. As regards the lay ministry in the Church, though both men and women are mutually responsible, the right to perform this ministry is frequently curtailed for women. They are still excluded from many personnel offices now open to lay men. However, in the legislation, the assumption of the subordination of women has been removed. Her participation in various aspects of the lay apostolate has been gradually broadened. In many instances, the broad general norms enunciated by the Roman Congregations were adapted to the pastoral needs of particular countries through the various Episcopal Conferences.
II. CHANGES ANNOUNCED FOR THE NEW LAW
After referring to the Conciliar teaching on the laity, and on women in particular, it is easy to see where the new law should be heading. Since the new Code has not yet been promulgated, we must necessarily limit ourselves to conjectures, using the draft schemata already distributed as a guide, as well as the reports in the periodical Communicationes. It will be sufficient simply to outline some general orientations.
The guiding principles for revision were approved by the first Synod of Bishops in 1967. There is nothing in them that is discriminatory or male-centered. Perhaps the plan of the Code, referring to the three munera or functions of the Church seems to be more clerically inclined, reserving the functions of teaching, sanctifying, and governing, not to the prophetic, priestly, and kingly powers of the People of God as a whole, but to those in authority, through reception of orders. We must await the final promulgation of the Code, though, to see how this will be in fact.
The draft text of the Lex Fundamentalis, distributed in 1971, caused considerable discussion and controversy. Pastors were presented as the active ingredient in the Church, working on the passive element, the laity. While canon 10 unambiguously stated that there was to be no discrimination between men and women, this was to take effect according "to their own state"! Most of the rights proposed in canons 10-25 had the same qualifying clauses, or something similar.
In the Lex, all legislative, executive and juridical powers were apportioned to the Pope, the bishops, and the clergy (c. 83), with little left for the laity. There seemed to have been no significant alterations of approach from former times in this document. What was given on the one hand, was removed on the other by a series of qualifying clauses. There was little evidence of declericalization of either orders or jurisdiction. Nor did the draft that was circulated give any clear manifestation of the principle of non-discrimination of sex in all areas. A new draft has been prepared and, hopefully, it will remove a number of these negative aspects. The time is probably not yet ripe for the formulation of concepts of dimorphic equivalence.
The proposed new law on persons, not distributed to the bishops, but published in the National Catholic Reporter of December 19, 1971, presents the same characteristics as the draft Lex Fundamentalis. The exercise of the Christian mission, received from Christ Himself, does not seem to carry with it universal rights and duties, but is regulated by each individual's "juridical status". There is no indication that this juridical status is that of the People of God and is common to all. In spite of this, canon 4 would state that Jay persons are, through baptism, deputed by God to the apostolate, that is, to participate in the saving mission of the Church. This canon has no limitations by state or condition, and could be of great significance in the ministry of women. Lay persons would also be eligible, according to canon 5, to be heard as experts or consultors by the shepherds of the Church.
The canons on persons would still generally be qualified by role, condition, or law. Thus, while none of the proposed canons are specifically discriminatory against women, the legal loopholes for discrimination are written into the canons themselves. While they certainly show a more comprehensive and integrated awareness of the lay apostolate and of its significance, there is a legal possibility of continuing the discrimination against women that was sometimes evident in the past. But also, the possibility of development is written into these norms, since they insist on a "qualification" approach. The qualifications will vary according to the thinking of the time, but this should be of help in the years to come if, by chance, the canons were published as presented in 1971.
In the proposed new law for religious, all distinctions between masculine and feminine Institutes and their members would be dropped, with the exception of canons referring to cloister and to clerical Institutes.
The state of a person in law is determined according to age, mental development, physical development, origin, domicile or quasi-domicile, relationships, and rite. The norms for domicile would remain unchanged, retaining a subordination concept (i.e., the wife following the domicile of the husband). Other norms would seemingly not be discriminatory.
As far as the Sacraments are concerned, distinctions regarding women are generally dropped, with the exception of Orders, and, in many cases, norms relating to the minister of the sacraments.
In the proposed new penal legislation, there are still prescriptions against priests living in concubinage, but these are probably more related to priesthood than to the woman involved in the situation.
On the whole, the proposed new law, as distributed to date, as well as the post-conciliar documentation which will be integrated into the new Code, have little discriminatory content. There has been a progressive awareness of the seriousness of the issue of women's mission in the Church. There is still, however, a preoccupation with her role as mother which leads to obscuring the issue of her struggle for mutuality of human rights with men. The stand against ordination seems adamant, though the reasons for it seem to change.
The presence of the laity in the Curia is growing regularly, and the membership of women on Commissions is manifest. This is an excellent sign of future happenings.
In spite of a significant number of positive elements to date, the reports in Communicationes indicate that most of the voluminous legislation that has been promulgated over the past decade will be codified in the revision. Thus, the orientations discerned in the legislation will be somewhat observed in the schemata. If those orientations which limited rights in accord with condition, state and particular law are maintained, there might be some occasions when the very principle of basic equality and non-discrimination is implied. We will have to watch this closely in commenting on the schemata.
If the new Code is delayed for more time, women stand to gain much. Ten years is too short a period of time to overcome twenty centuries of assumed subordination. The women of the Church will have to become aware of their own need to define themselves in juridical terms.
III. NECESSARY ELEMENTS FOR RECOGNITION OF EQUALITY
After this overview, a number of points stand out clearly. They are not all of the same juridical significance.
1. STATE OF WOMEN
It will be necessary to avoid, wherever possible, anything in our law that refers to the "state" or "special role" of women. They will have to be recognized for their qualities, and for what they truly are. This does not disregard differences that exist, but these differences are to be considered juridically as complementary, not subordinate.
Before any new law is promulgated, a re-education process in the Church is almost a necessity. The longer we wait for the new law, probably the less intent will be the need for re-education, since it will have become part of our heritage and viewpoint. At the present time, this need is most evident on the level of those who are preparing documents for promulgation, either at the universal or at the national or diocesan levels. But it must not remain there. Every member of the Church must strive to see that all are aware of the need of promoting equality for women, based on qualifications, and not on sex differences.
3. RIGHT TO THE SACRAMENTS
It seems difficult to holdalthough the present law states sothat half of mankind is to be excluded from one of the Sacraments, simply because of sex. However, the question is so important, and has been given much publicity lately that there is no need to repeat it here. Suffice it to mention Pope Paul's recent letters to the Archbishop of Canterbury on the subject.30
4. TRIBUNAL PERSONNEL
No effort should be spared to take steps to see that women may be appointed to offices in ecclesiastical tribunals, if they have the necessary qualifications. This is a change that should be relatively easy to obtain and would consecrate steps already taken to show that the power of jurisdiction is separate from the power of Orders.
5. ADMINISTRATIVE WORK
All restrictions against women carrying out administrative work that does not require the power of Orders, should be removed. Thus, women should be able to be appointed chancellors of dioceses, grant dispensations and faculties, and perform all other aspects of the apostolate for which they are qualified. I realize that this statement is more functional than missional, but it is nevertheless important.
6. PROPOSED NEW CODE
It will be very important when evaluating any drafts of the new Code to watch for elements which might be discriminatory in nature or in scope. If these points are not pointed out in the responses, they will possibly be overlooked.
7. FACT BEFORE LAW
It is probably necessary that some notions regarding the equality of women become a fact of life before they are enshrined in law. This is often the case with any ecclesial institution. Possibly, certain prophetic gestures will have to be posed by some churchmen before the facts become law. Even though some think that time is running out before the new law is promulgated, there are still a number of possibilities open to us. Let us use our imagination in this regard.
This lengthy overview has not solved any problems. It has tried to show how the post-conciliar Church is trying to live its new understanding of the teachings proposed to us. We have come a long way in some regards; in others, we are just beginning.
Many are still opposed to the whole question of equality of women. Let us hope that they will awaken soon to this new and exciting dimension of the Church as we know it, and as we would love for it to be.
1. Cf. Gaudium et Spes, No. 4.
2. Among many studies on this question, see Lucy Vasquez, "The Position of Women According to the Code", in The Jurist, 34(1974), p. 128-142.
3. I wish to express my gratitude to Sister Katherine Meagher, S.C., for permission to use extensively the manuscript of her doctoral dissertation on this particular subject. Most of the documents quoted and many of the ideas presented are taken directly from her work, or from conversations with her.
4. See, for instance, canons 93, 98, 876, 909, 1561, etc.
5. W.J. Egan, "Theology of the Laity", in New Catholic Encyclopedia, 6, p. 328.
6. Paul VI, "Pope Paul Explains Spiritual Purpose of Trip to Far East", in The Catechism of Modern Man, Boston, St. Paul Editions, 1968, p. 407.
7. Paraphrase of H.V. Heffernan, Outline of the 16 Documents of Vatican II, New York, The America Press, 1965, pp. 2-5.
8. Cf. W.M. Abbott, ed., The Documents of Vatican II, Chapman, 1972. p. 65-66, footnote 181.
9. Cf. James B. Ashbrook, Humanitas, New York, Abingdon Press, 1973. p. 138.
10. Cf. A. Schaldenbrand, ed., Primacy of the Person in Christ, Notre Dame, Fides, 1967, p. 43.
11. Cf. Gaudium et Spes, Nos. 5, 9, 12, etc.
12. Cf. Pope Paul VI, August 17, 1966, in La Documentation catholique, 63(1966), c. 1478.
13. Cf. The Pope Speaks, 13(1968-1969), p. 20-21.
14. Cf. Encyclical letter "Humanae Vitae", No. 17, in A.A.S., 60(1968), p. 493.
15. Cf. The Pope Speaks, 14(1969-1970), p. 19-22.
16. Cf. The Pope Speaks, 15(1970-1971), p. 30-33; 252-255: March 21,1970; July 8, 1970.
17. Cf. The Pope Speaks, 15(1970-1971), p. 221.
18. Cf. The Pope Speaks, 16(1971-1972), p. 43: March 18, 1971.
19. Cf., for instance, addresses of Pope Paul VI, December 9, 1972, "Defense of the Right to Birth"; September 25, 1972, in The Pope Speaks, 17(1972-1973), p. 250-252.
20. Cf. Origins, 5(1975-1976), p. 161, 163-170 for the report of the Pontifical Commission for Justice and Peace. For some addresses of Pope Paul VI on the subject of International Women's Year, see Origins, 4(1974-1975), p. 344; The Pope Speaks, 20(1975-1976), p. 264-267; ibid., p. 37-40, 180-183, etc.
21. Cf. Origins, 5(1975-1976), p. 163.
22. Cf. Origins, 2(1972-1973), p. 741, 743.
23. Cf. Origins, 5(1975-1976), p. 702-707.
24. Cf. S.C. Divine Worship, September 5, 1970, Norm 7, in Canon Law Digest, 7, p. 48.
25. Religionum laicalium, May 31, 1966; enlarged November 27, 1969, in Canon Law Digest, 6, p. 154, No. 3; 7, p. 77.
26. Cf. Canon Law Digest, 7, p. 84, No. 17.
27. March 10, 1966; March 9, 1971. Cf. Canon Law Digest, 7, p. 651.
28. Cf. Canon Law Digest, Supplement 1973, c. 845, p. I.
29. August 15, 1972, Norm 7; C.L.D., 7, p. 694, No. VII.
30. Cf. Origins, 6(1976-1977), p. 129, 130-132.
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