By What Instrument? Ecclesia Dei Fulfilled

Author’s note: Since the release of the documents regarding the July 1 SSPX consecrations, it has become public knowledge that Catholics, who are under no penalty, are being treated as criminals, even publicly so, and often in chapels and parishes run by Catholic priestly societies committed to the Traditional Mass. This is not the only place it is happening, but the fact that it is happening in those places is most disheartening. These events have inspired the following essay, which concerns the legal problem we are facing in general, but with some specific emphasis on the situation as it pertains to parishes committed to the Traditional Mass.

Now, this article is not intended as an apologetic for the SSPX. I have made that case elsewhere, and men far more qualified than I am have made it in a million other places.

Instead, I am taking the various documents released since 1 July and assessing the responses to them in light of canon law and the practice of the Church. My claim is narrow: the framework by which the lay faithful attached to the Society have been declared excommunicated cannot be applied consistently to anyone. The logic of the documents used as the foundation for the treatment of the lay faithful undercuts the very application of those documents.

We do not need to absolve the Society of any wrongdoing here. We need only show that the instrument meant to condemn the priests and the faithful does not exist.

It is unfortunate that so much of this conversation has become litigious, centred on canon law. Nevertheless, this is the ground on which the opponents of the Society have planted their flag. There are many other ways to argue for the innocence of the Society and of the faithful it serves, and I believe they are much stronger in the end, because the laws of the Church exist to serve her supernatural mission, which is the salvation of souls — and that mission is not accomplished by a code of human law.

I hope readers will keep that in mind. At the same time, for those who want pedantic canonical proof, I hope this article will be useful.

Before we continue, I ask the critic to keep this in mind before constructing an emotional argument in the comment section about topics that are not discussed here.

Links mentioned in the Audio Recording:

Mexico Pilgrimage: https://kennedyhall.ca/mexico

https://realestateforlife.org/

https://www.icatholicmobile.com/

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I. What Was Actually Issued

Three documents are in play, and almost every commentator has treated them as though they were one. They are not. They differ in kind, in the intention of their authors, and — decisively — in juridical force.

The Decree of 2 July is a declaratory decree. It declares that six named men have incurred latae sententiae excommunication: two consecrators and four consecrated, under canons 1387 and 1364 §1. Six men are named. Technically, Bishop Fellay was not penalized in the same way as the others, and only the charge of schism was reserved to him.

In any event, against no other person does the Decree declare, impose, or inflict any penalty whatsoever. No priests and no laymen are named.

The Explanatory Note accompanies the Decree. It is a nota esplicativa. It is not a law: canon 7 provides that a law comes into existence when it is promulgated, and canon 8 specifies the manner. It is not a general decree with legislative force under canon 29. It is not a general executory decree under canon 31. It is not even an instruction under canon 34 — and canon 34 §2 is worth reading slowly, because it provides that instructions do not derogate from laws, and that any provision in them irreconcilable with law lacks all force.

And, a document outlining how SSPX faithful and priests can be “reconciled” has been released as well.

We should break this down for the average — normal! — reader who does not spend endless hours reading about canon law.

It helps to think of it the way a lawyer thinks about the difference between a statute and a press release. The Church does not treat every document that comes out of Rome as binding. She is quite precise about which ones are, and the Code sets out the categories.

A law is the strongest instrument, as it binds the faithful; canons 7 and 8 provide that it comes into being only when it is formally promulgated, published in the proper manner and in the proper place.

A general decree under canon 29 is a law by another name, issued by someone with legislative power for a whole community.

A general executory decree under canon 31 is one rung down: it does not make new law, but sets out how an existing law is to be applied.

An instruction under canon 34 is lower still: it clarifies a law’s provisions and directs those charged with carrying it out.

And canon 34 §2 is vital, because it tells you what happens when one of these lesser documents strays. Instructions do not derogate — that is, detract — from laws. Whatever cannot be squared with the law has no force at all.

These are the principles of the Church, and they reflect a long and coherent canonical tradition. A document explaining a law can never override the law it explains.

This raises a significant difficulty. An explanatory note is not found anywhere in the list above. It is not a law, not a general decree, not an executory decree, not even an instruction. It is an annex — a statement of how the officials of a dicastery understand a situation. That is not nothing; it tells you a good deal about the mind of the men who wrote it. But if a mere instruction lacks all force where it conflicts with law, we are entitled to ask what force belongs to a document that ranks beneath an instruction, and how it came to be treated as sufficient to declare a man cut off from the sacraments.

That the Note has been used as a legal apparatus is alarming. We cannot know intentions, but we can plainly see canonical incompetence and incoherence, if not outright malice. Again, we cannot impute malice infallibly — but the harmful misuse of law is doing real damage to souls, and the men who have done this are culpable one way or another.

The Prassi, the procedures document meant to help SSPX Catholics “come back into the Church,” is guidance directed to nuncios and Ordinaries for handling those who present themselves. Again, it is founded on a Note that has no legal force and, as we will see, is internally incoherent when the source material is considered.

The Note exhorts the faithful to abstain from participating in the celebrations and activities of the Society.

Exhorts.

An exhortation is not a precept. It is an encouragement. And it is worth keeping in mind that this particular encouragement comes from a cardinal who has encouraged the blessing of unions that cry out to Heaven, and who has discouraged, in no uncertain terms, the use of theological titles for Our Lady that are deeply embedded in the devotional and theological tradition of the Church.

If any traditionalists would like to hammer the SSPX with the contents of the Note, I would exhort them to follow Cardinal Fernández’s other exhortations as well — that is, if they wish to be truly obedient sons of the Church. I would exhort them to welcome any Fiducia Supplicans events that take place “spontaneously” in their parishes. And I would exhort them to make sure they tell their congregants that it is always inappropriate to use the title “Co-redemptrix” to define Our Lady’s cooperation. So: no more traditional Marian lectures, please, without the proviso that Catholics should not use outdated terms because Tucho said so.

At any rate, canon 49 defines a singular precept as a decree by which an obligation is directly and legitimately imposed upon a determined person to do or omit something. A precept has a form, an author with executive power, and a determinate addressee. An exhortation in an annex has none of these. And where there is no obligation there can be no violation; where there is no violation there is no delict; where there is no delict there is no penalty.

Rome possesses instruments for binding the faithful. They were not used.

Consider, too, that it is highly unlikely Cardinal Fernández does anything without first consulting the Holy Father. You are free to draw your own conclusions.

So the position after 2 July, strictly speaking, with no recourse to any Society apologetic, is this: six men have been penalized. No priest of the Society has been penalized by any juridical act. No layman has been penalized by any juridical act. Everything that has followed — the pulpit announcements, the diocesan instructions, the refusals to commune with SSPX attendees, as at some FSSP locations — has been done to people against whom nothing has been declared.

II. The Remission That Remits Nothing

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Here is where the framework becomes an indictment of itself.

Suppose, for the sake of argument, that a layman really has incurred an undeclared latae sententiae excommunication for schism under canon 1364 §1. What does the law itself prescribe?

Canon 1357 §1. In the internal sacramental forum, any confessor may remit an undeclared latae sententiae censure of excommunication or interdict, where it is difficult for the penitent to remain in a state of grave sin for the time necessary for the competent superior to provide. The excommunication of canon 1364 §1 is not among those reserved to the Apostolic See. It is remissible in the confessional. Any confessional. Anywhere on earth.

What this shows is that there is no need for any process of reintegration for any SSPX layman — assuming they need to be reintegrated at all, which I do not believe, but which I will grant for the sake of the strict analysis we are now conducting.

What does the Prassi require instead? A signed and dated Profession of Faith. A Formula of Adherence affirming Lumen Gentium and the post-conciliar magisterium. Submission through the nunciature or the local Ordinary. A documented undertaking not to participate in the Society’s sacramental life in the future.

The remedy does not match the charge

Remission of a censure has a defined condition, and only one. Canon 1358 §1 provides that remission cannot be granted unless the offender has withdrawn from contumacy, and canon 1347 §2 defines what that means: he has withdrawn who has truly repented of the delict and made suitable reparation for damage and scandal, or at least seriously promised to do so. That is the whole requirement. Repent of the delict; repair the damage.

So ask what delict was alleged. Schism, under canon 1364 §1, defined at canon 751 as the refusal of submission to the Roman Pontiff or of communion with the members of the Church subject to him.

Note what canon 751 does not say. It defines heresy separately, in the same canon, as the obstinate denial or doubt of some truth to be believed with divine and Catholic faith. Schism and heresy are distinct delicts with distinct objects. A schismatic is not by definition a man who denies a doctrine; he is a man who refuses submission and communion.

The Prassi treats schism and heresy as though they were the same thing. It treats the faithful of the SSPX as though they were heretics who must demonstrate their fidelity to the Church by professing belief in disputed, non-infallible texts of the Second Vatican Council. Technically speaking it would be impossible to call someone a heretic for denying aspects of Vatican II, because the assent of divine and Catholic faith is reserved for definitive dogma.

It asks for a signed Profession of Faith and a Formula of Adherence affirming Lumen Gentium and the post-conciliar magisterium. This concerns doctrinal assent, which is the apt remedy for heresy, not for schism.

So the procedure convicts of one delict and supposedly cures another. Whatever else it is, it is not the remission of a censure for schism, because it does not ask for the thing whose absence constitutes that delict. And if what is actually sought is doctrinal assent to the conciliar texts, then that is an entirely separate issue — unless, in the New Springtime, one is in schism for questioning Vatican II. How many Catholics are in schism, then?

It is applied to people who have no penalty

The Note’s own two-tier structure admits this. Those who attend for liturgical or spiritual reasons, without rejecting the Magisterium or papal authority, are by the Note’s own terms not excommunicated. Yet they too are asked to undertake not to attend in future.

You cannot remit a penalty a man does not have. Whatever is being asked of that second group, it is by definition not remission.

The forum is wrong

Canon 1357 puts the ordinary remedy in the internal sacramental forum, with recourse permitted through the confessor and without the penitent’s name. The Church’s own instrument for this censure is confessional and anonymous. The Prassi requires an event that is essentially public.

Internal-forum remission produces a reconciled soul. External-forum submission produces a record.

It is more like a humiliation ritual, and the logic of the thing is entirely alien to canon law — or, quite frankly, to any pastoral sensibility.

Consider this in light of canon 1317, that penalties are to be established only insofar as they are truly necessary; in light of canon 18, that penal laws and laws restricting the free exercise of rights are subject to strict interpretation; and in light of canon 1341 as revised in 2021, which requires that penal procedure be reached for only when pastoral means have proven insufficient.

Personally, I am about the most outspoken SSPX advocate I can think of, and I have not experienced any “pastoral” engagement from my diocese, or from any cleric for that matter. I have definitely been cursed at and yelled at online a million times, but that did not feel especially pastoral.

All considered, this is unintelligible as penal law, and perfectly intelligible as something else.

III. The Dilemma at the Heart of 1996

The 2026 Note is built on the logic of the 1996 letter of the Pontifical Council for Legislative Texts concerning adherence to the Society. That is the locus.

And that letter cannot bear the weight now placed on it, for a reason internal to the letter itself.

Taken in the strict sense, the text exists in order to distinguish. It distinguishes those who merely attend the Society’s Masses — who do not thereby incur excommunication — from those who adhere to the schismatic principle, that is, who repudiate the primacy of the Roman Pontiff and communion with the Church subject to him. Attendance is not adherence, according to the letter. That distinction is the entire content and purpose of the document.

We should also note that schism is defined as the withdrawal of submission from the Pope, and not as disobedience. This is without question the unanimous consent of the tradition on the matter, whatever has become a substitute for actual schism in the era of Modernism.

The criterion of the letter is interior. Adherence to the supposed schismatic principle is an act of the will — a repudiation of primacy and communion. Very well. Then by that criterion’s own terms, consider the man being penalized. He names Leo XIV in the Canon of the Mass. His superior wrote to the Pope repeatedly and expressed his recognition of the papal office. His Society filed an appeal with the Dicastery on 11 July — and a body that has repudiated Roman authority does not petition the dicastery from which it has supposedly separated itself. By the criterion of 1996, no repudiation of primacy has been demonstrated in the Society’s priests, and still less in a mother of six who drives forty minutes on a Sunday because she wants her children catechized in the Faith she was raised in.

And here the 2021 revision of the penal law is vital for our purposes. Pascite Gregem Dei inserted into canon 1321 §1 the clear statement that a person is presumed innocent until the contrary is proven, displacing the old imputability provision to §2, which requires that the external violation be gravely imputable by reason of malice or culpability. An interior act of the will is precisely the thing that cannot be presumed. The Church’s own penal code now says so in unambiguous terms.

Someone will object that canon 1321 §4 provides that once an external violation has been established, imputability is presumed unless the contrary is clear. This is true, and it does not help them. That presumption operates only once the external violation has been established — and the external violation here is precisely what has not been established, because the 1996 letter itself says that attendance does not constitute adherence. You cannot presume imputability for a delict you have not first shown was committed.

How, then, can we square any of this with the Note, which declares that faithful who “formally adhere” to the Society are to be considered schismatic and excommunicated? Formal adherence, as 1996 defines it, is an interior repudiation of primacy. The heart cannot be judged, and what cannot be judged cannot be proven. Meanwhile, the letter is clear that sacramental participation with the Society is not itself to be penalized.

Do you see the problem? One cannot judge the internal forum of a man. And acts done by free will — such as going to the SSPX for Mass — do not constitute schismatic acts, according to the logic of the Note and of the letter it appeals to. So it is essentially impossible to prove that anyone has “formally adhered” to a schism that has never been established in the first place.

Quite frankly, the method for assessing who is and is not schismatic is nothing short of what I can only call gnostic. People are to be judged on the basis of what they might believe in their hearts, but do not demonstrate by their actions. It is an imaginary schism — a schism that exists in the eye of the beholder. It is insane.

And so the letter on which the Note is based turns out to be pointless.

Consider why. Everyone sitting in an SSPX chapel on Sunday performs the identical external act. They show up. They kneel, they pray, they communicate. Externally there is nothing to distinguish the mother of six who has been coming for twenty years, from the curious visitor from the diocesan parish down the road, from the man who came for a cousin’s funeral.

Now, the 1996 letter exists in order to say that these people are not all in the same canonical position. That is its entire content. Some are excommunicated and some are not, and the letter tells you which is which.

But if the external act were the criterion, that sorting would be impossible — because the external act is the same in every case. You cannot distinguish among people by a feature they all share. So the very fact that 1996 sorts them proves it is sorting by something else, and it tells you what that something is: adherence to the schismatic principle, the repudiation of primacy and communion. Which is to say that the Note and the letter alike require you to assess the goodness or badness of another man’s will. Again: this is insane.

To cite 1996 as your authority is to adopt a document whose whole reason for existing is that the external act does not settle the question. You cannot then turn around and settle the question by appealing to external acts. The document you are leaning on is the document telling you that you cannot.

The Note wants both. It cites 1996 as its locus while discarding the one thing 1996 actually settled. It treats the Society as schismatic enough to ground a penalty against the laity, and simultaneously not so schismatic that attendance at its Masses was ever prohibited communicatio in sacris — because if it were, that would have been said plainly in 1996, and it was not.

You cannot have the benefit of a distinction while denying the distinction.

Again: it is incoherent, post-conciliar, modernist, subjectivist idiocy.

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IV. The Canons Nobody Is Citing

Now let us consider the practical implications for innocent Catholics who are being humiliated at FSSP chapels and elsewhere.

A Catholic presents himself for Holy Communion at a diocesan parish. He is baptized. He is properly disposed. Against him no penalty has been imposed or declared by any competent authority. He is turned away — or he is at least implored, in an announcement read from the pulpit, not to receive Communion until he has done some paperwork.

Let us be honest: traditional Catholic circles are small, and this sort of thing is degrading and humiliating.

So how is it legal?

Canon 843 §1. Sacred ministers cannot deny the sacraments to those who opportunely ask for them, are properly disposed, and are not prohibited by law from receiving them. Note the construction. This is not a permission granted to the minister; it is a prohibition laid upon him. And the qualifying clause is prohibited by law. A nota esplicativa is not law. We have established this.

Canon 912. Any baptized person not prohibited by law can and must be admitted to Holy Communion. Can and must.

Canon 915 is the canon that would authorize refusal, and it is the one that destroys the case. It requires the exclusion of those upon whom a penalty of excommunication or interdict has been imposed or declared, and of those obstinately persevering in manifest grave sin.

Against the lay faithful of the Society, no penalty has been imposed or declared by anyone. The very canon invoked to justify refusal, read as written, forbids it.

And then the rights of the faithful, which traditional Catholics too rarely trouble to invoke:

Canon 213 — the right of the faithful to receive assistance from the sacred pastors out of the spiritual goods of the Church, above all the word of God and the sacraments.

Canon 220 — the right to one’s good reputation, engaged by every public assertion that named or identifiable persons are excommunicated when no competent authority has declared them so. In plain terms: publicly describing people as excommunicated when no penalty has been declared against them violates a right the Code expressly protects, and canon 1390 §2 attaches a penalty to unlawfully injuring another’s good reputation.

I wonder if anyone will be penalized for calling me a schismatic, publicly, on the internet… I won’t hold my breath.

Canon 221 §3 — the right of the faithful not to be punished with canonical penalties except according to the norm of law.

What we plainly see here is the law being used against its own purposes and against its own spirit. I am thinking of a word. It starts with “Ph” and more or less rhymes with “heresy.” For evidence of how Our Lord deals with those who fit the bill, see the New Testament.

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V. The Standard That Runs One Way

Now let me turn the framework around — and please understand that what follows is hypothetical, not an accusation.

A priest of the Fraternity of St. Peter, or of any diocese, who announces from the pulpit that those attending the Society’s chapels are excommunicated, and who refuses them Communion, is doing everything I have just described: denying the sacraments to persons not prohibited by law, on the authority of a document that is not law, against a presumption of innocence the Code demands, in the teeth of canon 915’s own limitation, with a further injury under canon 220.

Some will observe that schism, as canon 751 defines it and as St. Thomas treats it at ST II-II q. 39 a. 1, has two species: the refusal of submission to the Roman Pontiff, and the refusal of communion with the members of the Church subject to him. They will observe that the Society has never done the first, and that refusing the Blessed Sacrament to fellow Catholics looks a great deal like the second.

I am not accusing anyone of this. I am only telling you what it looks like.

Schism requires the will to sever the bond of unity. A priest who refuses Communion on a mistaken reading of a document he takes to be binding is not willing separation from the Church’s unity. At least, we cannot claim he is doing that — even if that is the effect in practice.

He is, wrongly, trying to enforce unity.

So we could say that he is doing his best in a confusing situation, on advice he had reason to trust, and that it goes too far to call him schismatic.

However — and this is anecdotal — if you attend a Fraternity chapel, or another TLM group, can you attest to what I have been told ad nauseam about priests from non-SSPX groups: that it is often the case that during homilies one hears a great deal of criticism of what comes out of Rome? I have been to a Fraternity chapel twice for Mass. One was a daily Mass with no homily. The other was a Sunday, almost a decade ago, at which the priest preached about the hierarchy more or less going to hell because of their scandals.

I have been told a thousand times that homilies of this kind are not uncommon, even if that particular one was a little hardcore. So can we really say that the priests of the FSSP are in the habit of accepting and implementing the doctrinal and theological opinions of men like Cardinal Fernández with docility?

Please be honest.

Now, it will likely be said that this humiliation of SSPX faithful is taking place because local bishops are demanding it.

Fair enough. But this is another illustration of why we need the SSPX — because the other groups of priests who are supposed to carry the banner of tradition are unable to resist overtures from modernists who exhort them to humiliate good Catholics and to spread doctrinal, legal, and theological confusion by way of incoherent applications of laughably untenable pseudo-legal documents that make a mockery of the dignity of the Church’s law.

Do these priests not realize that they are helping to spread the heretical tendencies of Modernism by legitimizing all of this? Modernism is thoroughly subjective, grounded in feeling and perception. And these priests, who call themselves traditional, are cementing in the minds of their congregants the idea that a man can be judged on the basis of baseless interpretations of Church law, of perennial doctrine, and of the unknowable disposition of another man’s heart.

Now: if good faith and the absence of schismatic intention protect that priest, then they equally protect the priest who names the Pope in the Canon and petitions the dicastery for redress. If interior disposition is decisive, it is decisive in both directions. The Note and the 1996 letter both insist that it is interior adherence to the schismatic principle that constitutes the delict. Very well. Apply it. Apply it to everyone.

I expect the reply: the diocesan priest errs about a fact while trying to obey, whereas the Society’s adherents refuse obedience as such. Intention, they will say, is being applied consistently — merely to different objects.

But the moment they say the object differs, they have abandoned interiority and returned to classifying acts objectively, which is the opposite of the logic of the 1996 letter and of the Note founded upon it. Objective classification would sweep in every Catholic who has ever heard Mass in an SSPX chapel. They cannot cite 1996 as their authority and then argue on a basis that renders 1996 pointless.

You cannot invoke the perennial categories of objective classification in order to reach a judgment that rests on a directive refusing to base classification on anything objective. That is to keep perennial Catholic principles for personal use while demanding that others follow principles the tradition of the Church would find odious.

And if we are, after all, to classify by external act, then let us compare the acts honestly.

The layman’s external act is attendance at Mass — which the 1996 letter itself declared insufficient to constitute adherence.

The priest’s external act is the positive refusal of the Body of Christ to a baptized Catholic against whom no penalty has been imposed or declared, contrary to canons 843 §1, 912, and 915, together with public assertions engaging canon 220.

If we are being objective — which Cardinal Fernández forbids us to be — then the act of the priest who refuses Communion to SSPX faithful is the graver one, because it is the one the Code actually prohibits.

So I say this, and I mean it without irony: I am content to hold that the priest who turns a Catholic family away from the altar rail acts in good faith on a mistaken reading. I ask only that the same charity be extended to a man who prays for the Pope by name in the Canon of the Mass, and who has never been penalized.

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VI. Ecclesia Dei Fulfilled

What follows is a theological judgment rather than a canonical conclusion, and the reader should weigh it as such.

For almost forty years a certain arrangement was on offer. Accept the framework, profess the necessary formula, and you may keep the Old Rite. Many good men accepted it in good conscience, and I have never thought them contemptible for doing so.

But it was always a tenancy, not a title. Ecclesia Dei afflicta 3 declared that the consecrations were of their nature a schismatic act, and adherence to that characterization was part of the price of the arrangement. In 2021, Traditionis custodes demonstrated what the lease was worth.

The Commission that administered it is gone. And now the arrangement requires something further. It requires a priest to stand in the pulpit and announce the refusal of the Body of Christ to baptized Catholics against whom no penalty has been declared, in violation of several canons of the Code he professes to obey, on the authority of an annex that is not law.

This is the logic of Ecclesia Dei fulfilled.

The traditional liturgy is not a preference in ritual style. It is the lex orandi, and it forms a mind — one that reasons from principles, distinguishes carefully, and refuses to call an exhortation a precept because a dicastery would prefer that it were. Whatever else this past month has shown, it has shown that keeping the Old Rite inside a framework that does not reason is not a stable position. Sooner or later, that framework will ask you to do something the traditional framework has trained you to recognize as wrong.

I do not write this to score a point against men I regard as brothers. I write it because a good many of them are, right now, being asked to do something they know to be unjust, and are doing it because they have been told they must follow the law — when in fact they are breaking it by doing so. There are six bishops penalized by name, an annex without juridical force, and a great many Catholics being deprived of participation in the Church they belong to.

And in any event, the decree against those six bishops is under recourse, and by canon 1353 recourse against a decree declaring a penalty has suspensive effect. So if everyone is so concerned that the SSPX should follow the law, why can everyone else not manage to follow it too?

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