1 LLM (Wales). I am very grateful to Professor Norman Doe and Professor Aidan McGrath OFM for their help and guidance in preparing this paper.

2 The Roman Catholic Code of Canon Law, (1983) (Code of Canon Law), canon 755 § 1. Any English translation of canons is taken from Sheehy, G, Brown, R, Kelly, D and McGrath, A (eds), The Canon Law: letter and spirit (London, 1995)Google Scholar, unless otherwise specified.

3 The revised Directory for the Application of Principles and Norms on Ecumenism, 25 March 1993, hereafter referred to as the Ecumenical Directory.

4 For Eastern Catholic Churches, Codex Canonum Ecclesiarum Orientalium (1991) (Eastern Code), canon 671.

5 That is, for the purpose of the 1983 Code of Canon Law, those of the Latin Church, and, colloquially, those also of the Eastern Catholic Churches in full communion with Rome. See Code of Canon Law, canon 204 § 2.

6 Code of Canon Law, canon 205; Eastern Code, canon 8.

7 Code of Canon Law, canon 209 § 1; Eastern Code, canon 12.

8 Decree on Ecumenism, Unitatis Redintegratio, 21 November 1964, nos 3 and 4.

9 Ecumenical Directory, no 129; Code of Canon Law, canon 844 § 4; Eastern Code, canon 671 § 4.

10 Code of Canon Law, canon 840; Ecumenical Directory, no 129.

11 Ecumenical Directory, no 129.

12 See note 8.

13 ‘Communicatio in sacris’, Unitatis Redintegratio, no 8.

14 Unitatis Redintegratio, no 8: The practice of common worship depends on two main principles: ‘…unity of the Church which ought to be expressed; and…the sharing in the means of grace’. Also Secretariat for Promoting Christian Unity, Dopo Le Publicazione, Note interpreting the ‘Instruction on admitting other Christians to Eucharistic Communion in the Catholic Church under certain circumstances’, 17 October 1973, no 4.

15 Ecumenical Directory, no 129.

16 Code of Canon Law, canon 844 § 2; Eastern Code, canon 671 § 2, Unitatis Redintegratio, no 15.

17 Original Latin: ‘Quoties necessitas id postulet aut vera spiritualis utilitas id suadeat, et dummodo periculum vitetur erroris vel indifferentismi…’. The Concise Oxford Dictionary, (eighth edition, Oxford, 1990) defines ‘indifference’ as a ‘lack of interest or attention’ and ‘indifferentism’ as ‘an attitude of indifference, especially in religious matters’.

18 Unitatis Redintegratio, no 8.

19 Unitatis Redintegratio, no 18.

20 Ecumenical Directory, no 122.

21 McManus, FR, ‘A commentary on canon 844’ in Coriden, J, Green, T and Heintschel, D (eds), The Code of Canon Law: a text and commentary (New York, NY, 1985), p 611Google Scholar.

22 Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1657.

23 Ibid, para 1657.

24 Ecumenical Directory, no 122. Also Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1657.

25 Separation by distance is sometimes considered under the ‘serious need’ test of Code of Canon Law, canon 844 § 4. See McManus, ‘A commentary on canon 844’, p 611.

26 Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1657. Also Beal, JP, Coriden, JA and Green, TJ, New Commentary on the Code of Canon Law (New York, NY, 2000), p 1025Google Scholar.

27 Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1657.

28 Unitatis Redintegratio, nos 14–18; Ecumenical Directory, no 122: ‘Between the Catholic Church and the Eastern Churches not in full communion with it, there is still a very close communion in matters of faith. … [T]hese Churches still possess true sacraments, above all – by apostolic succession – the priesthood and the Eucharist’. No other churches are listed.

29 According to Woestman, W, Sacraments, Initiation, Penance, Anointing of the Sick (third edition, Ottawa, 2004), p 13Google Scholar, this includes the ancient Eastern Churches and the Orthodox Churches. Cf Ecumenical Directory, fn 28: ‘To avoid confusion, the general term “Eastern Churches” will be used throughout this Directory to designate all of those Churches of the various Eastern traditions which are not in full communion with the Church of Rome.’

30 See Coriden, Green and Heintschel, The Code of Canon Law, p 610; also, Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1657 (d). Neither Pospishil, Victor, in Eastern Catholic Church Law (second edition, New York, NY, 1996)Google Scholar, nor Nedungatt, George, in A Guide to the Eastern Code (Rome 2002)Google Scholar, addresses this issue.

31 Ecumenical Directory, no 123.

32 Ibid, no 122.

33 Ibid, nos 122 and 124.

34 Ibid, no 132.

35 These paragraphs deal with catholic ministers administering these sacraments to other Christians, in danger of death, or in other cases determined by particular norms, provided they: are unable to approach a minister of their own community; spontaneously request the sacrament; manifest catholic faith in the sacrament; and are properly disposed.

36 My emphasis.

37 Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1657 (d): ‘… even if a particular Anglican priest is certainly in valid orders, it would be unlawful for a catholic to seek the sacraments from him, apart from danger of death’.

38 Woestman, Sacraments, Initiation, Penance, Anointing of the Sick, p 13. This implies that, provided the conditions of § 2 apply, it is lawful for a Roman Catholic to receive these sacraments from the followers of a bishop whose act amounted to schism. (See Apostolic Letter of Pope John Paul II, Ecclesia Dei adflicta, 3, given Motu Proprio, 2 July 1988, <http://www.adoremus.org/EcclesiaDei.html>, accessed 8 June 2006. The Code of Canon Law applies to Latin catholics (Code of Canon Law, canon 1). Schism is defined as ‘the withdrawal of submission to the Supreme Pontiff or from communion with the members of the Church subject to him’ (Code of Canon Law, canon 751, my emphasis). As catholics, Archbishop Lefèbvre, those he ordained and those who followed him at the time, were bound by the Code of Canon Law, canon 209. John Paul II, referring to the Code of Canon Law, canon 1364, says: ‘formal adherence to the schism is a grave offense against God and carries the penalty of excommunication decreed by the Church's law’ (Ecclesia Dei adflicta, no 8). Present-day members of Eastern Churches are not subject to the provisions of the Code of Canon Law and, unless they are former catholics, are not considered to have committed the act of schism. Those who have never submitted to papal authority cannot withdraw submission. Unitatis Redintegratio, no 3 says: ‘The children who are born into these Communities and who grow up believing in Christ cannot be accused of the sin involved in the separation, and the Catholic Church embraces upon them as brothers, with respect and affection. For men who believe in Christ and have been truly baptized are in communion with the Catholic Church even though this communion is imperfect.’ Unitatis Redintegratio, no 16 says: ‘To remove, then, all shadow of doubt, this holy Council solemnly declares that the Churches of the East, while remembering the necessary unity of the whole Church, have the power to govern themselves according to the disciplines proper to them, since these are better suited to the character of their faithful, and more for the good of their souls. The perfect observance of this traditional principle, not always indeed carried out in practice, is one of the essential prerequisites for any restoration of unity.’ No such autonomy has been recognised for the followers of Archbishop Lefèbvre.

39 Woestman, Sacraments, Initiation, Penance, Anointing of the Sick, p 14: ‘The answer to this question can be deduced from the words of the Pontifical Council: “The question of reciprocity arises only with these Churches which have preserved the substance of the Eucharist, sacrament of orders, and apostolic succession. Hence a Catholic cannot ask for the Eucharist except from a minister who has been validly ordained” (Dopo Le Publicazione). If only the first sentence of this quotation is read, it would seem that a negative answer has to be given since the Church deems that the Anglican Church has not preserved the sacrament of orders, etc. However, the second sentence leads to an affirmative response and the 1993 directory for the application of principles and norms of ecumenism confirms this …’. See quotation on p 266 and note 45 below.

40 Code of Canon Law, canon 1012.

41 Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1657.

42 Ut Unum sint (1995), no 46; Ecclesia de Eucharistia (2003), no 46. In Ecclesia de Eucharistia, he specifically states: ‘These conditions, from which no dispensation can be given, must be carefully respected even though they deal with specific individual cases, because the denial of one or more truths of the faith regarding these sacraments and, among these, the truth regarding the need of the ministerial priesthood for their validity, renders the person asking improperly disposed to legitimately receiving them. And the opposite is also true: Catholics may not receive communion in those communities, which lack a valid sacrament of Orders’ (emphasis added).

43 Congregation for Divine Worship and Discipline of the Sacraments, Redemptionis Sacramentum, (2004). This Instruction was issued in collaboration with the Congregation for the Doctrine of the Faith, by mandate of the Pope, who ordered its publication and immediate observance by all concerned.

44 Redemptionis Sacramentum, no 85: ‘Catholic ministers licitly administer the Sacraments only to the Catholic faithful, who likewise receive them only from Catholic ministers, except for those situations for which provision is made in can 844 §§ 2, 3 and § 4, and can 861 § 2’.

45 Which adds ‘or from one who is known to be validly ordained according to the Catholic teaching on ordination’.

46 Code of Canon Law, canon 844 § 3; Eastern Code, canon 671 § 3.

47 Postconciliar declaration from the Secretariat for Promoting Christian Unity (now the Pontifical Council for Promoting Christian Unity), 7 January 1970, no 6, reiterates Unitatis Redintegratio, no 19, that the problem arises because some Western churches and ecclesial communities do not share ‘the same ecclesiological and sacramental bases that particularly unite us to the Churches of the East’; cited in Beal, Coriden and Green, New Commentary on the Code of Canon Law, p 1025.

48 See Woestman, Sacraments, Initiation, Penance, Anointing of the Sick, p 13, fn 51.

49 Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1657.

50 Ecumenical Directory, no 131.

51 Secretariat for Promoting Christian Unity, Directory Concerning Ecumenical Matters, Ad Totam Ecclesiam, 14 May 1967, no 28, fn 4, says the word ‘proselytism’ is used ‘to mean a manner of behaving, contrary to the spirit of the Gospel, which makes use of dishonest methods to attract men to a community – for example, by exploiting their ignorance or poverty’. Cf Declaration on Religious Liberty, Digitatis Humanae, 7 December 1965, no 4.

52 Decree on the Catholic Churches of the Eastern Rite, Orientalium Ecclesiarum, 21 November 1964, no 27.

53 Dopo Le Publicazione, no 7.

54 Congregation for the Doctrine of the Faith, Dominus Jesus, 6 August 2000, para 17: ‘ecclesial communities which have not preserved the valid Episcopate and the genuine and integral substance of the Eucharistic mystery, are not Churches in the proper sense; however, those who are baptised in these communities are, by Baptism, incorporated in Christ and thus are in a certain communion, albeit imperfect, with the Church’.

55 Code of Canon Law, canon 844 § 4; Eastern Code, canon 671 § 4.

56 Code of Canon Law, canons 842 § 1, 849; Catechism of the Catholic Church (London, 1994), para 1213.

57 Redemptionis Sacramentum, no 85, says that the provisions of § 4 are not subject to dispensation and all conditions must be present together. See also Ecclesia de Eucharistia, no 45.

58 Dopo Le Publicazione, no 7: ‘For other Christians to be admitted to the Eucharist in the Catholic Church the Instruction requires that they manifest a faith in the sacrament in conformity with that of the Catholic Church. This faith is not limited to a mere affirmation of the “real presence” in the Eucharist, but implies the doctrine of the Eucharist as taught in the Catholic Church.’

59 Dopo Le Publicazione, no 6.

60 Unitatis Redintegratio, nos 4 and 9.

61 One Bread One Body, Introduction, para 8; Ecumenical Directory, no 130.

62 Ibid, Foreword, para 5.

63 One Bread One Body, Foreword, para 5, Introduction, para 8, my emphasis.

64 Ibid, para 95.

65 Code of Canon Law, canons 749 and 750.

66 ‘Obsequium’ is sometimes translated as ‘respect’. See Coriden, Green and Heintschel, The Code of Canon Law, p 548. Örsy, L, ‘Reflections on the teaching authority of the episcopal conferences’ in Reese, TJ (ed) Episcopal Conferences: historical, canonical and theological studies (Washington, DC, 1989, available at <http://www.americanmagazine.org>, accessed 4 April 2006)Google Scholar, describes ‘obsequium’ as ‘one step removed from a precisely definable action. It means an attitude which in its turn ought to bring forth a specific act, but the nature of this act will have to be determined by the content of the statement that introduces the obligation. … ‘Loyalty’ is a similar term in English: it expresses an attitude which can bring forth various acts – from sacrificing one's life for a cause to faithful disagreement'.

67 Code of Canon Law, canon 753. However, as Örsy (note 66) explains, there is a ‘radical difference between affirming the truth [doctrinal authority] and imposing an action [juridical authority], and correspondingly, between surrendering to the truth and carrying out an order…[N]o one can surrender to the truth of a statement or belief on the basis of a disciplinary command alone, without some support for the intelligence – support that in matters of faith must come from the Spirit’.

68 Code of Canon Law, canon 7; Beal, Coriden and Green, New Commentary on the Code of Canon Law, p 57.

69 Code of Canon Law, canon 455 §§ 1 and 2.

70 The need to receive the ‘recognitio’ is reiterated in Redemptionis Sacramentum, nos 90, 92 and 165.

71 Code of Canon Law, canon 8 § 2.

72 Also Ecumenical Directory, no 130.

73 Unitatis Redintegratio, nos 4 and 9.

74 The Eucharist: sacrament of unity – an occasional paper of the House of Bishops of the Church of England (London, 2001), Foreword: ‘We take issue with the discipline that the bishops of the Roman Catholic Church …are seeking to apply. We find it to be hurtful and unhelpful… . One Bread One Body makes explicit a number of erroneous assumptions by the Roman Catholic Church about the Church of England, the reformation, Anglican teaching regarding the Eucharistic sacrifice and the presence of Christ in the sacrament, and Anglican ministerial and Episcopal orders. We take this opportunity to correct these misapprehensions’.

75 Policy on Cases of Serious Need in which the Sacraments of Penance, Eucharist and Anointing of the Sick may be administered to Anglicans and Baptised Protestant Christians, hereafter referred to as the Ecumenical Policy.

76 General Decree.

77 These notes were not published.

78 Sacramental Sharing Between Catholics and Other Christians in Canada: a pastoral commentary to assist priests, deacons and lay ministers in determining cases of serious need, hereafter referred to as the Pastoral Commentary.

79 Conditions Permitting Non-Catholics to Receive Sacraments from a Catholic Minister: notes for those who may benefit from the policy, hereafter referred to as the Ecumenical Notes.

80 ‘E.g., sending the decree to all parishes and other juridic persons of the diocese, or to all clergy; publishing the decree in a newspaper; etc’.

81 The draft decree itself, however, makes no mention of the requirements of the Code of Canon Law, canon 844 § 5.

82 Code of Canon Law, canon 455 § 4.

83 Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1661.

84 Unitatis Redintegratio, nos 4 and 8; Ecumenical Directory, nos 4 and 6.

85 Eastern Code, canon 761 § 4, leaves the determination to the ‘judgement of the eparchial bishop, the synod of bishops of the patriarchal Church or the council of hierarchs’.

86 Ecumenical Directory, 14 May 1967.

87 ‘Persons in prison or under persecution’ or ‘persons who live at some distance from their own communion’.

88 See also Sheehy, Brown, Kelly and McGrath, The Canon Law, para 1660 (a): ‘other grave and pressing needs require the judgement of higher authority: examples of such need are imprisonment, persecution, distance and expense’.

89 Ecumenical Directory, no 159.

90 Ibid, no 130.

91 One Bread One Body, para 115: ‘What is the nature of the person's spiritual need? Are all the necessary conditions fulfilled? What special circumstances prevent the person from approaching a minister of his or her own community? What is unique about this particular moment or occasion? Is there sufficient faith in the sacrament desired? That is, does the person believe in general terms what the Catholic Church believes, and certainly not deny the essentials of Catholic belief in the particular sacrament? Is he or she properly disposed, a person not in a state of serious or scandalous sin and ready to approach the sacrament with humility and reverence? Is he or she open to the growth of visible unity among Christians?’ This last question can establish that the recipient is not opposed to Christian unity.

92 One Bread One Body, para 113.

93 Pastoral Commentary, p 6.

94 ‘…in keeping with the standard canonical principle “favours are to be multiplied, burdens are to be restricted”.’

95 ‘The Church does not require non-Catholics to have more knowledge of the sacrament, or more faith and holiness that the Catholic faithful have’.

96 Pastoral Commentary, p 7.

97 Ibid.

98 Ibid.

99 One Bread One Body, para 105.

100 See also, Unitatis Redintegratio, nos 13 and 19.

101 One Bread One Body, para 117, my emphasis. One Bread One Body cites the Ecumenical Directory, no 132, as its source. However, the English translation of the Directory uses the word ‘or’, as does the original French text, ie ‘ou’.

102 Ibid, para 103.

103 ‘Canon law admits separated Eastern Christians and members of like churches to receive the sacraments of penance, Eucharist and anointing of the sick from a Catholic minister whenever they ask on their own for it and are properly disposed … .’

104 One Bread One Body, para 108.

105 Ibid, para 106.

106 Ibid, para 107.

107 Ibid, para 111, and Ecumenical Directory, no 159.

108 One Bread One Body, para 111.

109 One Bread One Body, para 114.

110 Ibid, para 107.

111 Ibid, para 113.

112 Ibid, para 114.

113 Ibid, para 112.

114 At baptism, confirmation and First Holy Communion of one's child; the ordination of one's child or spouse; the funeral of an ‘intimate’ member of one's family.

115 One Bread One Body, para 107. See also Dopo Le Publicazione, no 6.

116 One Bread One Body, para 114.

117 Ibid.

118 Ibid.

119 Ibid, para 113.

120 Ibid, para 114.

121 Code of Canon Law, canon 843 § 1.

122 One Bread One Body, para 114.

123 Ibid. See also Code of Canon Law, canons 915 and 916.

124 ‘Catholic ministers may lawfully administer the sacraments of penance, Eucharist and anointing of the sick to Anglican and Protestant Christians in danger of death or in any of the following cases of grave need: In areas where they do not have access to their own minister; In institutions where they stay day and night and do not have regular access to their own minister, including prisons, hospitals, nursing homes, orphanages and boarding schools’.

125 ‘Principal anniversaries, funerals of family members, on Christmas and Easter if the family attends Mass together’.

126 Anglican, Lutheran, Presbyterian, Roman Catholic and United Churches in Canada.

127 My emphasis.

128 My emphasis.

129 My emphasis.

130 Such as those listed in fn 129, but adds ‘and other similar occasions.’

131 It adds: ‘Those who wish to receive the sacraments on a regular basis in the Catholic Church should inquire about becoming a Catholic’.

132 Pastoral Commentary, p 10, my emphasis; the communication can be ‘orally or by means of a pamphlet’.

133 1972, IV 2.

134 Pastoral Commentary, p 5.

135 Ibid, p 5: ‘Being unable to share the Eucharist may lead to serious risk to the spiritual life and faith of one or both partners. It may endanger the integrity of the marriage bond or result in an indifference to the sacraments, a distancing from Sunday worship and so from the life of the Church’.

136 Pastoral Commentary, p 6.

137 The Commentary uses the word ‘could’.

138 The Commentary states ‘when many people’.

139 The Commentary states ‘not allowed by Catholic discipline’.

140 Pastoral Commentary, p 8.

141 However, see note 58 above.

142 Pastoral Commentary, p 8.

143 Ibid, p 12.

144 My emphasis.

145 My emphasis.

146 Pastoral Commentary, p 9.

147 Ibid, p 10.

148 Ibid.

149 Ibid, p 9.

150 ‘…having sought God's pardon for any serious sin they remember having committed’.

151 ‘…expressing sorrow or confessing one's sins to God and asking God's pardon, especially for any serious sin’.

152 ‘At an opportune time, normally before Mass is celebrated, the non-Catholics who are to receive Communion should be informed of the importance of being in the state of grace in order to receive the sacrament worthily and fruitfully.’

153 Pastoral Commentary, p 9.

154 Unitatis Redintegratio, no 8.

155 Pastoral Commentary, Introduction, p 2.

156 One Bread One Body, para 103.

157 Ibid, paras 104 and 105.

158 ‘Anglican and Protestant Christians may receive the same three sacraments in danger of death and in other cases of grave need as determined by the diocesan bishop or the Conference of Bishops in accord with canon 844 § 4 of the Code of Canon Law. This policy specifies these cases of grave need.’

159 Pastoral Commentary, p 11.

160 Ecumenical Directory, no 32.

161 Ibid, no 23: ‘This readiness to proceed gradually and with care, not glossing over difficulties, is also a safeguard against succumbing to the temptations of indifferentism and proselytism, which would be a failure of the true ecumenical spirit’.

162 One Bread One Body, para 113.

163 Unitatis Redintegratio, no 8.

164 Ecumenical Directory, no 130.

165 Dopo Le Publicazione, no 6: ‘[R]eception of the Eucharist is confined to particular cases of those Christians who have a faith in the sacrament in conformity with that of the Church, who experience a serious spiritual need for the eucharistic sustenance, who for a prolonged [my emphasis] period are unable to have recourse to a minister of their own community, and who ask for the sacrament of their own accord all this provided that they have proper dispositions and lead lives worthy of a Christian. This criterion is observed if all the required conditions are verified. An objective, pastorally responsible examination does not allow any of the conditions to be ignored.’

166 Dopo Le Publicazione, no 6.

167 One Bread One Body, para 92.

168 Ibid, para 114.

169 Although Dopo Le Publicazione, no 6 requires the lack of access to be for ‘a prolonged period’.

170 Huels, JM, ‘A policy on canon 844 § 4 for Canadian dioceses’, (2000) 34 Studia Canonica 99Google Scholar.

171 For example, hospital or boarding school.

172 Huels, ‘A policy on canon 844 § 4 for Canadian dioceses’, p 96. See also the English translation in Beal, Coriden and Green, New Commentary on the Code of Canon Law, p 1024.

173 Ecumenical Directory, no 141.

174 Pastoral Commentary, p 9.

175 Dopo Le Publicazione, no 7.

176 ‘Unlike the other cases of necessity, the gravity…does not stem from the absolute inability of the non-Catholic parties to mixed marriage to approach their own minister… . [R]ather, the gravity…stems from the gravity of the spiritual need experienced by the non-Catholics’ inability to approach their minister on this special occasion when attending Mass with the Catholic spouse and children' (Huels, ‘A policy on canon 844 § 4 for Canadian dioceses’, p. 101, emphasis in original).

177 One Bread One Body, para 114.

178 ‘Ultimately, the non-Catholic spouses themselves determine what are the occasions of ecclesial or familial significance...it is not meant to be a routine practice’.

179 Huels, ‘A Policy on Canon 844 § 4 for Canadian Dioceses’, p 100.

180 Principal anniversaries and funerals of family members.

181 Christmas and Easter.

182 My emphasis.

183 My emphasis.

184 One Bread One Body, para 114.

185 Pastoral Commentary, p 10.

186 Ibid.

187 Ibid, p 8.

188 One Bread One Body, para 114. See also The Code of Canon Law, canons 915 and 916.

189 In keeping with Dopo Le Publicazione, no 6, which requires a ‘pastorally responsible examination’ to establish that conditions are met.

190 See McGrath, A, ‘Communication in sacris: an effort to express the unity of Christians or simply an exercise in politeness?’, (2001) 63 Canon Law Society of America Proceedings 173–214Google Scholar.

191 Pastoral Commentary, p 2.

192 Ibid, pp 8 and 10.