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By R. Michael Dunnigan

[This article is modified from a speech given at the Phoenix, AZ
Call to Holiness Conference on October 3I, 1996
and is reprinted with permission from Christifidelis , November 29, 1998]

Any time that we gather together – either in a large group like a holiness conference or in a small group to pray or to conduct some other worthy activity – we are exercising one of the most basic rights that we have as human beings: our right of assembly. The situation today is that this right is increasingly threatened in the Church. Some authorities are now trying to prevent or discourage orthodox Catholics from exercising their rights to gather together.

We are actually concerned with two rights: the right of association and the right of assembly. However, these two rights are similar and can be thought of as two sides of the same coin. The right of association is the right to choose those with whom we join together to form clubs, groups and organizations; and the right of assembly is the right to hold meetings or to gather together in groups. (Unless I specify otherwise, the statements that I make about either right are true of both.)

ORIGINS OF OUR RIGHTS:

These rights of association and assembly have two sources. First, they are rooted in our human nature – they are "written on our hearts" to use the language of both Jeremiah (Jer 31:33) and St. Paul (Rom 2:15).1 Second, we receive additional rights and duties as a result of our Baptism (and our Confirmation).

Don't resist growing old. Many are denied the privilege. – An Irish toast Pope St. Leo the Great exhorts us, "Man, remember your dignity." This exhortation is a cure to the uneasiness that some feel when discussing their rights in the Church. It helps us to remember our dignity. One of the ways that the Church recognizes our dignity is by setting up a system of law to protect our rights. It is important to remember that we are not asserting rights against the Church, but rather we are asserting rights within the Church – rights that the Church herself recognizes and protects.

THREATS TO OUR RIGHTS:

An example from the files of the Saint Joseph Foundation illustrates some of the current threats against the right of Catholics to gather together for various purposes. Our client "Andrew" is a layman who set up an apostolate that deals with education and evangelization.2 [See "Canonical Basics," Christifidelis, v. 36, no. 4 (Oct. 7, 1998).] Andrew's bishop wrote a letter to Andrew asserting jurisdiction over the apostolate. The bishop said that he must be permitted to appoint a director to the board of Andrew's group to ensure harmony with the diocese's vision. He also said that Andrew should send to the bishop all documents pertaining to the operation of his apostolate. The reason for the bishop's attempted intrusion into Andrew's apostolate was his view that the apostolate – which is concerned exclusively with promoting traditional Catholic teachings – does not "reflect the mainstream of Catholic life and thought," and that it represents what the bishop and his staff describe as "Catholic Fundamentalism."

Note several things. First, the bishop is targeting activity that is completely legitimate. He gives no indication that Andrew is promoting materials that are inconsistent with Catholic teaching, but he nonetheless accuses Andrew of having views that are outside of the Catholic mainstream. Second, the bishop attempts to justify what would amount to a takeover by the diocese of Andrew's apostolate. Third, Andrew's bishop uses a verbal branding iron to stamp onto Andrew the mark of "Catholic Fundamentalist."

Other tactics are more subtle. Sometimes a bishop or pastor will create the impression that a group or a meeting is inappropriate for Catholics, but will not say so directly. (The cruel irony is that Catholics who organize groups and conferences to promote adherence to the teaching and liturgical practices of the universal Church are now often branded as promoters of disunity and divisiveness.) When the faithful inquire whether they may attend the event or join the group, they find it difficult to get a straight answer. If the diocese is hostile, the person who replies to the question says that the bishop does not recommend the event, but he or she often declines to answer the key question: is it permissible for a Catholic in good standing to join this group or to attend this event? As a result, it is difficult for ordinary Catholics to know what to do. Many will stay away just to be safe. There may be nothing wrong with the group – the bishop or pastor may have nothing more than a purely personal disagreement with it – but orthodox Catholics are nonetheless discouraged from participating.

As a result of the rising confusion and the increasing use of these tactics, it is becoming more important for Catholics to find out for themselves what the law of the Church says about their rights to assemble together.

THE LAW OF THE CHURCH:

Canon law says the following about the rights of Catholics to freedom of association and assembly:

Canon 215 – "The Christian faithful are at liberty freely to found and to govern associations for charitable and religious purposes or for the promotion of the Christian vocation in the world; they are free to hold meetings to pursue these purposes in common.

This canon illustrates the reason that the 1983 Code of Canon Law has been described as the final document of Vatican II.3 The emphasis on the rights of the faithful is "a major innovation into the Church's law,"4 and it arises from the teachings of Vatican II. Some of the rights recognized in the 1983 Code are the "duty and right" of all the faithful to participate in the mission of the Church (c. 211), the right – and sometimes duty – to bring one's concerns to the attention of the Church's pastors (c. 212), the right to promote apostolic action "by [one's] own undertakings" (c. 216), and the right to vindicate one's rights (c. 221). These rights apply to both clergy and laity, but they originated in the work of Vatican II on the laity.

The great insight of Vatican II in this area was that laypersons participate in the Church's work of salvation.5 A foundational canon of the new Code states that all of the faithful "are called to exercise the mission which God has entrusted to the Church to fulfill in the world" (c. 204 §1). If one wishes to understand the law of the Church on the right of assembly, one must keep in mind the teaching of Vatican II that the laity has a role in the Church's mission, and that our times demand a lay apostolate that is "infinitely broader and more intense" than in the past.6

THE CHANGE IN THE LAW OF ASSOCIATION AND ASSEMBLY:

Before Vatican II, the work of the laity in the Church fell under the heading of "Catholic Action." In general, the previous Code of Canon Law – the 1917 Code – assigned to the laity a passive role in the Church's mission.7 Lay participation in the work of the Church was usually in one form or another of Catholic Action. The hallmark of Catholic Action was that the laity worked directly under the bishop and were directly supervised by him.8 Vatican II commended the work of Catholic Action, but it also set down principles that would produce a major shift in Church law.

The 1917 Code assumed that associations would originate with the Church hierarchy. However, the 1983 Code — following Vatican II – now speaks of the right of Christians to establish their own associations.9 In the Dogmatic Constitution on the Church, Vatican II tells the shepherds of the Church to "encourage lay people so that they may undertake tasks on their own initiative."10 The Vatican II document on the laity states that the Lord himself assigns the laity to participate in the work of the Church,11 and it says that, although the hierarchy may single out some groups to promote, it must do this "without depriving the laity of their rightful freedom to act on their own initiative."12 The freedom of all Catholics – laity and clergy alike – was also emphasized in the Dogmatic Constitution, which describes the condition of the Christian faithful as "that of the dignity and freedom of the sons of God."13 It is therefore ironic that those who are most adamant about identifying themselves as "Vatican II bishops" are often precisely the ones who seek to deny to orthodox Catholics the rights that Vatican II took such care to recognize and explain.

HOW THESE RIGHTS ARE EXERCISED:

These rights take concrete form when we consider the different types of groups that we may join. There are several categories, but the two that are most important for this discussion are those that seek some sort of approval from the bishop (or other authority) and those that do not. If a group seeks official status, it has several options. For example, it can ask the bishop to recognize it, or it can take a further step by requesting that the bishop establish it as a recommended group. With every increase in status that the group seeks, it submits itself to additional control by the bishop.

If there is no danger to faith or morals, then the bishop or pastor has no authority to prohibit membership in the group or attendance at the meeting.... For the bishop to forbid attendance or membership would be an attempt to put his own opinion in the place of the law. However, a group need not seek any official recognition by the bishop. This is the meaning of the repeated reference by Vatican II to lay people acting "on their own initiative." Different groups have different purposes. The two values that the group must weigh are (1) recognition by the bishop, which may help some groups to accomplish their purposes, and (2) flexibility, which comes from maintaining independence from formal Church structures. The key thing to remember is that different structures fit different groups. Recognition brings both advantages and disadvantages,15 and there is nothing wrong with a lay apostolate that does not request official status.16 Groups that do not seek recognition are called "de facto associations" and they are entirely legitimate.17 (Both Andrew's apostolate and the Saint Joseph Foundation are de facto associations.)

Although canon law especially recommends associations that have official status (c. 298), canonists appear to be unanimous that the faithful have a right to form and to join groups that are not recognized by the bishop.18 The Canon Law Society of America says that "it would be a violation of this right to prohibit membership in associations that are established in keeping with the law, even though they are not organized by or under the direction of a pastor or bishop."19 This should not surprise us, if we remember the Lord's response to the Beloved Disciple:

"John said to him, 'Teacher, we saw a man casting out demons in your name, and we forbade him, because he was not following us.' But Jesus said, 'Do not forbid him; for no one who does a mighty work in my name will be able soon after to speak evil of me. For he that is not against us is for us" (Mk 9:38-40; cf. Lk 9:49-50).

If Our Lord saw fit to allow persons acting independently of the Apostles to do His work, then we should not be surprised that canon law allows us to form and to join religious groups that are independent of our bishops.

THE LIMITS OF THE RIGHT OF ASSEMBLY:

Our rights to associate and assemble are indeed fundamental, but they are not unlimited. First, although we can form groups for various purposes, we cannot teach in the name of the Church unless we have permission to do so (c. 301 §1). We can teach and discuss Catholic doctrine, but we cannot claim to speak for the Church. Second, a group cannot use the name "Catholic" unless it has permission to do so (c. 300). Although this restricts the naming of the group, it does not prevent the group from identifying its purpose. Thus, a bookstore could call itself "The Sacred Heart Bookstore and could say in its advertisements: "We carry titles by Catholic authors."

Third, the bishop has what is called a right of "vigilance" (c. 305 §1). This right of vigilance covers two areas. The bishop has the right to "take care that integrity of faith and morals is preserved," and he has the right to prevent abuse from entering Church discipline. Thus if a group teaches something opposed to Catholic doctrine, the bishop can take some action. Bishop Bruskewitz did this several years ago by decreeing that membership in certain organizations contradicts the Catholic faith.20

WITHSTANDING THE THREATS:

It now becomes clear why some bishops and pastors discourage participation in a function without forbidding it outright. The principal right of the bishop with regard to associations and assemblies is to safeguard faith and morals. If there is no danger to faith or morals, then the bishop or pastor has no authority to prohibit membership in the group or attendance at the meeting (unless one of a few circumstances is present, such as unauthorized teaching in the name of the Church). For the bishop to forbid attendance or membership would be an attempt to put his own opinion in the place of the law.

Returning to the example of Andrew, it is clear that Andrew's bishop is unlawfully trying to control the affairs of Andrew's apostolate. Canon law does not require Andrew to share the personal vision of his bishop, and the bishop has invoked none of his rights of vigilance under canon law. The Saint Joseph Foundation has an open file on Andrew's case and will continue to assist him in vindicating his rights.

As mentioned earlier, hostile bishops and pastors sometimes accuse orthodox Catholics of disunity or divisiveness. Invariably, the accusers fail to list the actions that are the source of disunity. The reason, of course, is that most orthodox Catholics--far from causing disunity--are in reality calling for unity through adherence to the teaching and practices of the universal Church. We should remember Our Lord's own sentiments about unity. He certainly prayed for unity (Jn 17:20-21), but he also made it clear that unity is not our God. He said: "Do not think that I have come to bring peace on earth; I have not come to bring peace, but a sword" (Mt 10:34; cf. Lk 12:51-52). This reminds us that we should seek unity, but that we must keep unity in perspective and that we can never put unity ahead of faithfulness to the Lord and His Church.

The rights of association and assembly are goods that are proper to our human nature. These rights acquire enhanced meaning for us as Catholics. Those who seek to prevent or discourage Catholics from gathering together are raising obstacles to the blessings that the Lord promises to those who work together in Christian apostolates: "For where two or three are gathered in my name, there am I in the midst of them" (Mt 18:20).

NOTES

1. Msgr. Burke reminds us that these rights are so rooted in our human nature that they are indestructible. Cormac Burke, Authority and Freedom in the Church, pp. 15, 217-18 (San Francisco: Ignatius Press, 1988) [hereinafter, "Burke"]. Justice Story took the position that the right to assembly is so basic that it need not have been specified in the First Amendment to the United States Constitution: "This would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature of its structures and institutions. It is impossible that it could be practically denied, until the spirit of liberty had wholly disappeared, and the people had become so servile and debased, as to be unfit to exercise any of the privileges of freemen." Joseph Story, A Familiar Exposition of the Constitution of the United States §449 [1840] (Lake Bluff, IL: Regnery Gateway, 1986).

2. Vatican II defines an apostolate as any activity that aims "to spread the kingdom of Christ over all the earth ... to make all men partakers in redemption and salvation, and ... to establish the right relationship of the entire world to Christ." SECOND VATICAN COUNCIL, Decree on the Apostolate of the Laity Apostolicam Actuositatem, no. 2 (18 November 1965) [hereinafter, "AA"]. Thus, we have pro-life apostolates, publishing apostolates, education apostolate, and many others.

3. Burke, p. 35.

4. Canon Law Society of Great Britain and Ireland, comment to cc. 204-223 [hereinafter, "CLSGB&I"].

5. SECOND VATICAN COUNCIL, Dogmatic Constitution on the Church Lumen Gentium, no. 33 (21 November 1964) [hereinafter, "LG"].

6. AA, 1. Pope John Paul II speaks of the 1983 Code of Canon Law as "translat[ingl" the Second Vatican Council into canonical language. POPE JOHN PAUL II, Apostolic Constitution Sacrae Disciplinae Leges (January 25, 1983).

7. Canon Law Society of America, comment to c. 211 [hereinafter, "CLSA"].

8. AA, 20.

9. CLSA, comment to c. 215.

10. LG, 37.

11. AA, 3.

12. AA 24. "In the Church are to be found, in fact, very many apostolic enterprises owing their origin to the free choice of the laity and run at their own discretion." Ibid.

13. LG, 9.

14. In ascending order from most independent to most closely connected with the hierarchy, these groups are (1) de facto associations, (2) recognized (private) associations, (3) praised or recommended (private) associations, (4) associations with private juridic personality, and (5) associations with public juridic personality. Philip C.L. Gray, "Associations of the Faithful," Christifidelis, v. 15, no. 4 (September 8, 1997).

15. Roch Pagé, "Associations of the Faithful in the Church," The Jurist, v. 47 (1987):1, pp. 165-203, at 200 (Washington, DC: Catholic University of America) [hereinafter, "Pagé"].

16. Pagé, p. 169. As Pagé indicates, the bishop may intervene when a group seeks official status, but no group is required to seek official status. 17. "Thus a de facto association is neither irregular nor illegal. Rather, a de facto association would he illegal if it pretended to have the status of a 'private association' without its statutes having been recognized." Pagé, pp. 173-74.

18. CLSA, comment to c. 215; CLSGB&I, comment to c. 215; Pagé, pp. 169, 173-74, 200.

19. CLSA, comment to c. 215.

20. If the group has sought official status, the right of vigilance entitles the bishop to visit the association. However, the bishop appears not to possess this right with regard to de facto associations. "The fundamental right recognized to the faithful to associate for purposes in conformity with Christian life can be exercised without having to be subject to the norms prescribed in the canons on associations of the faithful (cc. 298-329)--that is, unless an association wishes to acquire the status of a private or public association, or wishes to adopt a name which signifies a recognized status such as 'Catholic' or 'third order,' for example." Pagé, p. 169. If a group is a de facto association, the bishop's right of visitation pertains to the individual members rather than to the group itself. "So long as they remain de facto associations, they have the same freedom as the members which make them up, aside from adopting the name 'Catholic' (c. 300). This is the exercise of the right of association in its natural state. The ecclesial and secular activities of these associations can have a truly considerable variety as many facets as the mission of the Church or the nature of Christian life." Pagé, pp. 199-200.