Supreme Tribunal of the Apostolic Signatura, Defintive Sentence coram Agustoni, The Reduction of a Church to Profane Use, 4 May 1996.
Outline of the Case
1. The plethora of documents in this case, which in some sense is indicative of its complexity, was studied and clearly explained by the earnest deputed Promoter of Justice. Supported by his own votum, the Congresso of this Supreme Tribunal, on May 3, 1995, examined the recourse point by point and, with one exception, rejected it as manifestly without any foundation. The point excepted was the question of the alleged violation of the law in decernendo [regarding the substance of the decision] with regard to the reduction of the church of The Most Holy Name of Jesus to profane use due to the lack of a serious cause as mentioned in can. 1222, §2. The Congresso, then, decreed that this question was to be admitted to trial before the Eminent and Most Rev. Judges of this Supreme Tribunal.
Since the last part of the recourse was not at all resolved, the same Congresso also granted the plaintiff’s request for the suspension of the decision of Bishop N. with regard to the church of The Most Holy Name of Jesus. It did so with the intention that both the sacred building and the sacred furnishings belonging to it be carefully preserved until such time as this Supreme Tribunal will have given its definitive sentence in the cause.
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2. Although only part of the recourse is to be decided, it is nonetheless helpful to keep in mind the questions which have already been resolved. It is therefore worthwhile to review the points of greatest concern according to the following description of the cause:
a) The controversy originated from the need to change the distribution of the parishes in the town of ..., within the Diocese of N., due to new social and economic circumstances.
The intention of the ..". Area Planning Task Force," whose counsel Bishop N. used, was to reduce five parishes into one: one was a territorial parish and the other four personal; one of the five churches was to be kept as the parish church and another kept as a subsidiary church.
b) On November 13, 1999 the Most Rev. Bishop consulted the Presbyteral Council on the proposed changes and, in a letter dated January 5, 1991 communicated his decision in the matter to the five parishes concerned.
c) On January 1, 1991, Mrs. ... and Mrs. ..., “President” and “Secretary," respectively, of the parish pastoral council of the Most Holy Name of Jesus, sent a remonstratio [the petitioner made to the author of the decree for its revocation] to the Bishop signed by them and 806 other members of the faithful.
A meeting took place between the Bishop and the faithful who signed the remonstratio: On January 17, 1991 the Bishop thoroughly explained his thinking on the matter, and on January 30, 1991 he issued the decree of suppression of the parishes (and of the churches). A new remonstratio was lodged in the month of February 1991, but in vain.
d) In a letter of February 25, 1992 - a year latter - Mr. X and Mrs. Y placed hierarchical recourse to the Congregation for Clergy against the decree of reduction of the church of the Most Holy Name of Jesus to profane use.
The Bishop responded to the query of the Congregation saying that it was only a small group of disaffected members of the faithful who were fighting to keep the church open.
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Not having received a response from the Congregation either to this recourse or to another placed on August 17, 1992, two of the faithful involved in the case came to Rome in the month of October 1992 and placed a petition before the Dicastery. Meanwhile the first plaintiffs, Mr. X and Mrs. Y, once again wrote to ask for a response to the recourse.
The Congregation received additional information from the Bishop, and on May 27, 1993 it wrote back to Mr.X informing him that the decision of the Bishop should be complied with, since everything had proceeded according to the norm of law.
e) The aforementioned plaintiffs Mr. X and Mrs. Y then appealed to this Supreme Tribunal against the decision of the Congregation. After this Supreme Tribunal sent an explanation of the norms on active legitimation to the plaintiffs, they (the plaintiffs), along with many other members of the faithful, lodged a recourse as individuals on August 11, 1993. They gave a mandate to the Distinguished Advocate Carol Gullo who, having maturely weighed everything in the matter, renounced the mandate in the month of November 1993. The Distinguished Advocate Martha Wegan was then substituted for him. The Congregation for Clergy named the Distinguished Advocate Carlo Martino as its advocate (admitted this one time to serve as an advocate before this Supreme Tribunal), while Bishop N. Names the Distinguished Advocate Renato Ottaviani.
On June 10, 1994, the deputed Promoter of Justice was appointed.
f) One July 1, 1994 the plaintiffs, due to rumors which were circulating about the imminent sale of the church, pleaded for the suspension of the Bishop’s decree. This Supreme Tribunal then asked the Bishop to explain his thinking on the matter and, for the meanwhile, to preserve all of the property of the church of whatever type.
g) Having been informed of the inactivity of the advocate, on July 13, 1994 the Bishop responded by saying that he would preserve the property of the church, and he transmitted copies of the documents and of the defense brief which he himself has been sending to Advocate Ottaviani since November 1993. Advocate Ottaviani took care to forward these documents to this Supreme Tribunal within the time limit established in law, but as he was seriously ill and therefore impeded from fulfilling his
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role of advocate, the Bishop named the Distinguished Carlo Martino to serve as his advocate.
h) The Distinguished Advocate presented his brief, in which he asked at the outset (1) for a peremptory exception regarding the lack of capacity and of active legitimation of the plaintiffs, and (2) for rejection of the recourse.
I) On May 3, 1995, the Congresso defined both the aforementioned exception and the principal controversy. It discussed with precision the distinct questions which are involved in the cause, and gave due consideration to the two objects of Bishop N’s decision, that is, the decision for the suppression of the parish of the Most Holy Name of Jesus and for the reduction of the parish church to profane use.
k) A reading of the decree of the Congresso on May 3, 1995 clearly reveals that is decision, the motives for which are carefully constructed, effectively argue against the asserted violations of the law both in procedendo [in regard to the procedures followed] and in decernendo [in regard to the substance of the decision].
The individual parts of the recourse, therefore, were rejected as manifestly lacking any foundation, apart from the one question regarding serious cause in the decision for the suppression of the church of the Most Holy Name of Jesus.
l) Wherefore, on June 10, 1995, the doubt was formulated as follows:
WHETHER IT IS VERIFIED THAT THERE WAS A VIOLATION OF THE LAW IN DECERNENDO AS MENTIONED IN CAN. 1222, §2, WITH REGARD TO THE ACT OF THE CONGREGATION FOR CLERGY CONFIRMING THE DECISION OF THE MOST REV. BISHOP OF N. OF NOVEMBER 19, 1991.
In Iure
3. We have begun by giving this broad overview of the case so that the motives might become immediately apparent for which this long and involved recourse was nearly totally rejected, with the one exception being the question expressed in the above-related formulation of the doubt.
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4. Arguments in the law are readily available for resolving this question.
Can. 1222, §1 states: “If a church can in no way be employed for divine worship and it is impossible to repair it, it can be relegated to profane but not sordid use by the diocesan bishop.
§2 Where other serious reasons suggest that a church no longer be used for divine worship the diocesan bishop, after hearing the presbyteral council, can relegate it to profane but not sordid use with the consent of those who legitimately claim rights regarding the church and as long as the good of souls is not thereby impaired."
The new law has somewhat changed the legislation of the old Code: thus, what is new in this legislation must be diligently kept in mind. In order to arrive at a balanced understanding, though, the new law must be compared with the old.
The 1917 Code treated this matter in two canons: cann. 1186 and 1187. The former canon speaks of those upon whom the burden falls of restoring the church; the latter canon treats of the suppression of a given church which can no longer be used for divine worship: “If a certain church can no longer be used for divine worship and every approach to restore it has been blocked, it can be reduced to profane but not sordid use by the local Ordinary and, if it be a parish church, the responsibilities for its revenues and the title of the church are to be transferred to another church by the same Ordinary.”
The law of the Church has retained these precepts ever since the Council of Trent, as least with regard to their substance. The Sacred Synod in Session XXI discussed many questions related to old churches which had collapsed and could not be restored due to lack of means. Due to changing times and practices, these norms can be considered obsolete. However, it is helpful to recall them here since they give an indication of the seriousness of the matter. Indeed, if local Ordinaries cannot observe the precepts of the law in any given cause, they are obliged to approach the Apostolic See on the matter.
No one doubts that in the present case there were many urgent questions affecting the care of souls, such as, for example, the need to redefine parish
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boundaries and to decide about the number of existing churches and of churches to be built, whether due to changing demographics with people moving out of the city or due to the diminishing number of ministers, and other such circumstances of our times.
5. As is well known, the new Code came about in order to accommodate the Church’s law to new circumstances. For this reason the norms on the suppression of parishes and the reduction of churches to profane but not sordid use were also revised.
However, certain principles must be kept in mind when adapting laws, above all, the higher principle according to which broader faculties had to be given to local Ordinaries, so that more frequent recourses to the Apostolic See would be avoided. Thus in 1977 there were proposed new laws, introducing new subject matter, which reaffirmed the faculty given to Bishops of reducing a church to profane use; however, they established as the prevailing and sufficient reason for doing so the greater good of souls.
After receiving the suggestions and observations of various consulting bodies, the proposition was revised into the current text of 1222. The faculty granted in this revised canon is broader than in the old law, but it still in some way restricts its use, since it requires serious reasons for its legitimate application.
For this reason the second paragraph of canon 1222 is marked by a certain ambiguity, since on the one hand it protects the faculty of the bishop, but on the other hand it attempts to moderate its use.
For the canon states: “Where other serious reasons suggests ...," without, though, giving an example of such a reason nor insinuating that serious reasons can sometimes be derived from particular circumstances.
6. This difficulty can be resolved by an equitable balancing of the letter of the law: while the canon still grants to the local Ordinaries the faculty of reducing churches to profane but not sordid use, the legitimate use of the faculty depends on the seriousness of the reasons which are “serious” [graves], not “most serious” [gravissimae]. Excluded, therefore, are trivial matters or reason which by their very nature cannot be considered serious; on the other hand, even if there
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does not appear to be a solid basis for it, the seriousness of the reason can [sometimes] be appraised differently if certain circumstances of which the Ordinary, and perhaps he alone, is aware. Such could be the case, for example, with circumstances that are peculiar to the place in question, or with the situation of limited financial or human resources. The point here is that the true question is one of fact, that is, whether or not, in fact, there exists a serious cause.
The Facts
7. The doubt to which We must respond, all else notwithstanding, is whether or not in this case there was, due to lack of a serious cause, a violation of the law in decernendo with regard to the reduction of the church of the Most Holy Name of Jesus to profane use.
The reasons which led the Diocesan Bishop to make his challenged decision have been clear from the beginning. Nor can it be denied that one can consider serious reasons to exist, especially when the reasons are seen together and when they are compared to similar situations in many dioceses in the country of N.
8. And yet, the Congresso of this Supreme Tribunal held on the 3rd of May abstained from settling this question due to the latent doubt of whether or not the seriousness of the reasons given for the decision were manifest.
The way to solving this doubt is opened to us from the principle by which contentious cases are governed, including administrative contentious cases: “The burden of proof rests upon the person who makes the allegations” (can. 1526, §1).
However, the Distinguished Advocate of the plaintiffs asserts, although she does not prove, that there were not serious reasons in this case, as mentioned in can. 1222, §2.
9. If, though, one were to weigh with an even scale the motives for which the Most Rev. Bishop have his decision for the reduction of the church in question to profane use, one would indeed find those motives to be very serious [gravia].
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First of all, we cannot allow it to escape out notice that the Bishop, as the pastor of the local Church of N., proceeded prudently and reluctantly in untangling this entire complicated matter. We can rightly gather from this that the decision to reduce the church to profane use was derived from serious reasons.
Moreover, all doubt about this matter is removed when we consider the letter of April 17, 1995 which the Most Rev. Bishop sent to his former Advocate and which, due to the Advocate’s above-mentioned illness, became known to this Supreme Tribunal quite late, although still within available time [tempus utile]. A reading of that letter brings to the light of dat the motives, and very serious motives, by which the Pastor of the diocese, as difficult as it was for him, came to the decision to reduce the church to profane use (Summ. pag. 155-161).
Since these points have been already laid out there, it suffices here only to repeat them in a concise manner.
To preserve three of the churches would plan an intolerable burden on the new parish. Further, due to changing circumstances, the churches are no longer necessary for the pastoral care of souls, while, from its erection, the new parish is burdened with enormous expenses not its own. Considering all of this, the sale of these churches immediately provides an effective support to the new parish for meeting its more urgent needs, a support which it would otherwise have to do without. Also, the number of the faithful, by whose offerings the new parish is chiefly sustained, diminishes daily.
Furthermore, the poor cannot be denied offerings and other forms of assistance in order to save a sacred building.
Bearing all this in mind, the decree of reduction of the church to profane use can in no way be equated to a business deal, as it seems to the plaintiffs, since the seriousness of the cause is altogether clear.
By means of this decision to the proposed doubt, the clause suspending the Bishop’s decree no longer holds.
10. Therefore, having carefully considered and discerned everything both in law and in fact, keeping in mind the votum of the deputed Very
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Rev. Promoter of Justice, We, the undersigned Judges, respond to the proposed doubt:
“IN THE NEGATIVE, THAT IS, A VIOLATION OF THE LAW IN DECERNENDO DUE TO LACK OF A SERIOUS CAUSE IS NOT VERIFIED IN THIS CASE.
[...]
Prot. No. 24388/93 CA, May 4, 1996, Ius Ecclesiae 10 (1998): 196-203; Forum 7 (1996): 359-371.