Calls for Governor Andrew Cuomo’s excommunication have echoed across Catholic social media ever since he signed into law one of the most expansive abortion bills ever enacted. Bishops Richard Stika of Knoxville and Joseph Strickland of Tyler have joined the chorus. While noting that Cuomo is under the jurisdiction of Cardinal Timothy Dolan, Bishop Edward Scharfenberger of Albany has said, “Excommunication is a last resort, and as the governor continues to distance himself from our communion, it may unfortunately result in that.”
Cardinal Dolan has responded by saying that excommunication “should not be used as a weapon.”
“Too often, I fear, those who call for someone's excommunication do so out of anger or frustration,” Dolan wrote. “Notable canon lawyers have said that, under canon law, excommunication is not an appropriate response to a politician who supports or votes for legislation advancing abortion.”
As a canon lawyer with some experience in penal law, allow me to disagree. Many people are pointing out that Cuomo has not violated c. 1398, which provides a penalty of excommunication for the procurement of a completed abortion. However, c. 1364 provides the same penalty for heresy—“the obstinate denial or doubt after baptism of some truth which is to be believed with divine and Catholic faith.”
The obstinate denial or doubt of a credenda teaching is often relegated to the rarified world of academic theology, with many assuming that it can only ever be a willful act by one suitably educated to know better. But heresy does not exist as a purely academic crime, nor is its commission beyond the reach of the Catholic in the pew—or the governor’s mansion.
Credenda teachings are usually best understood as the articles of faith in the Creed, or the Marian, Christological, and sacramental dogmas of the Church. But that is not the limit of the term. Indeed, the Congregation for the Doctrine of the Faith has made it clear that included in those teachings “to be believed with divine and Catholic faith” is “the doctrine on the grave immorality of direct and voluntary killing of an innocent human being.”
Some canonists will argue that to commit the external and imputable crime of heresy there must be an explicit renunciation of the Church’s teaching. But actions can and do speak as loud as words under law.
In 1949, the then Holy Office was asked if someone could apostatize from the faith entirely—rejecting all parts of it—and incur excommunication simply by defending or promoting communism. Since communism is itself inherently atheist, the answer was “affirmative.”
No explicit or verbal act of apostasy was needed. By defending or promoting communism, which is itself premised on atheistic principles, the external and imputable crime of apostasy was committed.
Likewise, no explicit rejection of the Church’s teaching on the grave immorality of the taking of innocent human life is needed if one publicly and consistently, and in the face of numerous warnings (like those provided in letters from Dolan and Scharfenberger on the New York bill), promotes and defends abortion.
Let me be clear: I am not arguing that any Catholic politician who has supported or voted for pro-abortion legislation can ipso facto be termed a heretic. Gov. Cuomo’s consistent and vocal support for this particular legislation, his unique role in enacting it, and his flouting of the clear and public admonitions of two bishops who can claim jurisdiction over him make his case unique.
By the straightforward application of the canon on credenda teaching, Cuomo can be said to have committed an external and imputable delict of heresy, and to have incurred an excommunication which can, for the public good of souls, be declared by his bishop, be it Dolan or Scharfenberger.
Not only can Cuomo be excommunicated, he should be. Canon law traditionally drew a distinction between two kinds of excommunicated person: the tolerati and the vitandi. The tolerati, those to be tolerated, were people who had broken communion with the Church and could not, for example, receive the sacraments, but were still allowed in church and kept within the community as their situation was resolved.
On the other hand, there were the vitandi, those to be shunned, expelled from the Catholic community and barred from even attending Mass until they had atoned for their conduct. They were to be shunned not only for their own good, in the hopes that it would recall them to the faith, but because their public identification as Catholics would be a scandal and a dangerous example to others.
Cuomo, through his murderous support for abortion legislation, coupled with his consistent invocation of his own Catholic identity, has crossed over from private failing to public witness against the faith. His public example as a pro-abortion Catholic is a public witness against not just good morals but the faith of the Church.
Unlike his father, who offered at least a fig leaf of being “personally opposed” to abortion while acting to bring it into law, Cuomo the son has given no indication of any personal reservations about making New York the most abortion-friendly state in the nation. At the same time, he has frequently invoked his Catholicism to support his other legislative priorities; insisting, when it suits him, on the importance of his faith and that he “stands with Pope Francis” (who called abortion Nazism with “white gloves”). In doing so he co-opts and misrepresents the moral authority of the Church and the Holy Father, wearing his inconsistent-ethic-of-life as a badge of legitimate Catholic identity.
Governor Cuomo’s excommunication should be declared for the good of souls: first of all for his own, but also for the good of those who will otherwise follow him into his grave and public error.
Ed Condon is a canon lawyer and DC bureau chief for Catholic News Agency.