Judging and firing bishops and due process in the church

When people do not like their bishop, they often call for the pope to fire him and appoint another. Such requests have come from the right and the left in the church. The right has asked for the removal of bishops it considers unorthodox while the left has wanted to remove bishops who lack pastoral qualities. In recent years, many have demanded the removal of bishops who have not responded adequately to the sexual abuse crisis.

In Catholic theology, a bishop is considered the vicar of Christ in his diocese. He is not the vicar of the pope or simply a branch manager in the multinational corporation called the Catholic church. As a result, theologians and canon lawyers get nervous when Catholics talk about the pope firing bishops.

In ancient times, bishops were sometimes judged by provincial or regional councils of bishops who could depose them. As time went on, these judgments were appealed to Rome, which acted as an appeals court rather than a corporate central office.

Civil authorities (emperors, kings and nobles) might also intervene against a bishop, although the church usually fought such interference.

On the other hand, people sometimes complain when bishops are removed. Most recently, conservative Catholics have objected to the removal of Cardinal Raymond Burke as head of the Apostolic Signatura and the removal of Bishop Rogelio Livieres Plano from his diocese in Paraguay. Earlier, liberals complained about the removal of Bishop William Morris from his Australian diocese.

It is important, however, to distinguish between the firing of a bishop from an office in the Roman Curia and removing a bishop from his diocese.

Members of the Roman Curia are not vicars of Christ; they are vicars of the pope. They are part of the pope's team and are required to publicly support his policies. If they do not, they should not be surprised when they are fired or demoted to less important offices. Popes have been doing this for centuries without any theological or canonical objections.

I have argued elsewhere that members of the Curia should not be made bishops or cardinals, which would make it easier for a pope to hire and fire members of his staff.

The removal of a diocesan bishop is another matter. Today, because the pope appoints bishops, we tend to think that he can fire them. Prior to the 19th century, however, the pope appointed few bishops. Most were either elected by their clergy or appointed by kings. Pope Leo I (440-461) said that to be a legitimate bishop, a man had to be elected by the priests, accepted by his people, and consecrated by the bishops of his province. The pope's role was minimal or nonexistent.

Earlier this month, the Vatican announced new provisions for the removal of bishops and holders of papal offices. The "rescript" begins with a quote from the Second Vatican Council's Decree on the Pastoral Office of Bishops (Christus Dominus, No. 21):

Since the pastoral office of bishops is so important and weighty, diocesan bishops and others regarded in law as their equals, who have become less capable of fulfilling their duties properly because of the increasing burden of age or some other serious reason, are earnestly requested to offer their resignation from office either at their own initiative or upon the invitation of the competent authority.  

The rescript goes on to reaffirm Pope Paul VI's 1966 motu proprio, whereby bishops are "invited" to submit their resignations at age 75. Although some canon lawyers argue that bishops are not required to resign at 75, this invitation has for all practical purposes become impossible to decline. It's an offer you can't refuse.

Article 5 of the rescript is new: "In some particular circumstances, the competent authority can consider it necessary to ask a bishop to present his resignation from pastoral office, after having made known the reasons for the request and listening carefully to the reasons, in fraternal dialogue."

This rescript does little more than put in writing what popes have been doing. But it is noteworthy that it avoids language like "fire" or "dismiss"; rather, it speaks of "inviting" or "asking" a bishop to "offer his resignation." It also requires that the "reasons for the request" be made known to the bishop and the process involve a "fraternal dialogue."

In reality, bishops are not fired, but talked into resigning.

Cardinal Bernard Law, for example, resigned as archbishop of Boston after he failed to protect children from abusive priests. A couple of Irish bishops also resigned under pressure after being accused of mishandling the sexual abuse crisis.

We have also seen bishops resign because of sexual activity with adults. Others resigned after being accused for sexual abuse with minors. Some, like Bishop Franz-Peter Tebartz-van Elst of Limburg, Germany, aka "Bishop Bling," resigned because of financial scandals.

Bishop Thomas O'Brien of Phoenix resigned after being involved in a hit-and-run accident. At least one U.S. bishop resigned after a drunken driving arrest, but others, like Archbishops John Roach of St. Paul-Minneapolis and Salvatore Cordileone of San Francisco, survived such arrests. Bishop Joseph F. Martino of Scranton, Pa., resigned "for reasons of health" after a series of bizarre confrontations in his diocese. Many believe he was pushed to resign. 

In the few instances where bishops publicly resisted, it is not clear whether they eventually resigned or were dismissed. The process is not transparent, and the participants' language is often ambiguous.

Bishops who have fought resigning include Livieres, who, according to Catholic News Service reports, "was told to step down as head of the diocese of Ciudad del Este" for, according to a Vatican statement, "serious pastoral reasons."

The bishop had appointed as vicar general Msgr. Carlos Urrutigoity, who had been suspended from the priesthood by Bishop James Timlin of Scranton because of allegations of sexual abuse. In addition, the bishop had accused the president of the Paraguayan bishops' conference of homosexuality. Vatican press spokesman Jesuit Fr. Federico Lombardi told CNS: "There were serious problems with his management of the diocese, the education of clergy and relations with other bishops." 

Likewise, Morris was forced out after he said in a 2006 pastoral letter that he would be open to ordaining women if the church changed its rules. His difficulties with the Vatican began years earlier over his authorization of general absolution in his diocese. According to news reports, he was asked six times to resign by three different Vatican congregations before his removal in 2011. He left only when he got a letter directly from Pope Benedict XVI.

"What was at stake was the church's unity in faith and the ecclesial communion between the pope and the other bishops in the College of Bishops," said a statement by the Australian bishops' conference. "Eventually Bishop Morris was unable to agree to what this communion requires and at that point the pope acted as the successor of Peter, who has the task of deciding what constitutes unity and communion in the church." Morris said the Australian bishops' statement "contains inaccuracies and errors."

Whether Morris and Livieres resigned or were fired is unclear. The bishops either resigned or accepted the right of the pope to dismiss them. It is almost impossible for a bishop to withstand pressure from a pope who has the backing of the local hierarchy. To fight such a united front would tear the church apart, which no bishop wants to happen. We don't see bishops barricading themselves in their offices and refusing to leave.

In reviewing these cases, certain patterns can be observed.

1. Bishops involved in personal scandals tend to resign quickly and fade away.
2. Bishops in conflict with their priests and people tend to stay in office until retirement age.
3. Bishops accused of violating church discipline or doctrine, like Morris, can mend fences by revising their statements or policies, but if they refuse, they will be subjected to heavy pressure to resign.
4. Bishops who lose the support of their brother bishops -- for example, Law, Morris, Livieres, and Tebartz-van Elst -- are in trouble. One observer noticed that during the breaks at this month's USCCB meeting in Baltimore, Bishop Robert Finn of Kansas City, Mo., was standing alone while other bishops were in clusters talking. Finn was convicted of not reporting to the police a priest who had child pornography on his computer. 
5. As part of the process, the Vatican will often send a foreign cardinal or archbishop to investigate the situation: Archbishop Charles Chaput for Morris; Cardinal Santos Abril y Castelló for Livieres; Cardinal Giovanni Lajolo for Tebartz-van Elst; Archbishop Terrence Prendergast for Bishop Robert Finn.
6. The process is not transparent. The investigator makes a confidential report to Rome, which is not shared with the bishop or his diocese.
7. The Vatican does everything possible to avoid using terms like "fire" or "dismiss" but talks of "resignations." It is not clear what would happen if a bishop simply said, "No. I am not leaving." Would he be excommunicated or declared schismatic? Would the church end up fighting over the control of church property in civil court?

There is a temptation to support or oppose the removal of a bishop based on whether you like him or not and ignoring all due process questions. Conservatives who cheered the removal of Morris now say that Livieres was railroaded, while liberals take exactly the opposite position.

In civil and criminal court, there are accepted procedures (a written indictment, a right to confront one's accusers, a right to a lawyer, etc.) and a separation of roles (police, prosecutor, judge, jury, etc.). Such procedures and separation of roles are not welcomed by a paternalistic church that believes it always knows what is best for its children. If the church's procedures were followed in civil society, they would be condemned as contrary to due process.

There is a need for greater clarity on questions of due process in the church, whether it applies to bishops, theologians, sisters, priests, or laity who are under investigation and charged with offenses. The Canon Law Society of America called for better due process procedures prior to the reform of the Code of Canon Law in 1983, but its recommendations were ignored. It is time to take another look at due process in the church.

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org. Follow him on Twitter: @ThomasReeseSJ.]

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