Heretics REALLY can't excommunicate: More clarifications in light of SSPX excommunications
Some clarifications about a principle which seems 'too good to be true' – but is true, nonetheless.
Some clarifications about a principle which seems ‘too good to be true’ – but is true, nonetheless.
STOP PRESS:
Just after publishing this article, Fr Davide Pagliarani has responded to the sanctions levelled against the SSPX.
You can find the response here:
Introduction
On the 30th June, the day before the SSPX’s episcopal consecrations, I published an explanation of why heretics are unable to excommunicate – along with a translation of Causa XXIV, Quest. I, from Gratian’s Decretum, which deals with this topic.
Some of the texts which state this are as follows:
C. IV. [Audivimus] An excommunicated person cannot excommunicate another.
[Pope Alexander II writing to Bishop Valerius the Martyr]
We have heard that Henry, called Archbishop of Ravenna, has attempted to excommunicate you. But since, being excommunicated, he could not excommunicate you, by apostolic authority we command you, absolving you and your people, never to trouble yourselves about it.
C. XXXV. From the moment a bishop teaches things contrary to the faith, he cannot despoil another.
[Pope Nicholas writing to the Emperor Michael (Letter VII)]
Pope Celestine says, writing to the Eastern bishops:
“If anyone has been excommunicated or stripped of the dignity of bishop or cleric by Bishop Nestorius, or by others who follow him, from the time they began to preach such things, it is manifest that this person has persisted and does persist in our communion; and we do not consider him removed, because the sentence of one who had already shown himself deserving of removal could not remove anyone.”
C. XXXVI. Those who are excommunicated by heretics are not to be considered excommunicated.
(The same [Pope Nicholas], to the Clergy of Constantinople.)
“The authority of our See has openly decreed that no bishop, nor cleric, nor anyone of any Christian profession, who has been cast down from communion or from his position by Nestorius or those like him, from the time they began to preach such things, is to be regarded as having been cast out or excommunicated; but all of these continue to this day in our communion, because one who wavered in preaching such things could not cast down or remove anyone.
“Do you understand, Emperor, from the above-mentioned authorities, that those who had themselves long since been removed could not remove – I will not say their own superior – but anyone at all; nor could those already prostrate cast down anyone else?”
The application of this is clear.
Paul VI and his successors, and their collaborators, have habitually preached heresy
But those who habitually preach heresy are unable to excommunicate
Therefore, Paul VI and his successors, and their collaborators, are unable to excommunicate.
These texts and others are addressed here:
Can heretics excommunicate? Foundational canonical text says they cannot
‘Audivimus’, ‘Achatius’ and Causa XXIV: Heretics Excommunicating Catholics
Church teaching says you can’t be excommunicated by a heretic
History repeating itself? A closer look at the Vatican’s SSPX excommunications
Some find this argument hard to believe – perhaps because it seems “too good to be true”, or too contrary to the voluntaristic authoritarianism – ultimately a form of liberalism – that has infected many minds. Some also fear where such arguments may lead.
In this article, we shall address these points, and consider:
Exactly what Cardinal Fernández did on 2 July 2026
Certain disputed points about heretics excommunicating
What this means for ‘non-sedevacantists’
Certain objections which need to be answered.
What Cardinal Fernández did on 2 July 2026
The explanations I published were considering the possibility that the Vatican would issue a condemnatory sentence of excommunication against the other members of the SSPX, or the faithful who associate with them.
A declaratory sentence states that an automatic excommunication has already been incurred, and changes aspects of how the penalty is to be observed; a condemnatory sentence, however, imposes an excommunication in its own right.
The latter is not exactly what we saw on 2 July 2026. Instead, we see in the Decree that:
Card. Fernández declared that Bishop Alfonso de Galarreta and the four new bishops had incurred an automatic excommunication for the 1 July episcopal consecrations themselves (Can. 1387, CIC 2021), which he described as “an act of a schismatic nature” – referring also to the canons which define the delict of schism and penalise it (Can. 751, Can. 1364 §1, CIC 2021)
He also declared that Bishop Bernard Fellay had incurred an automatic excommunication for the delict of schism (Can. 1364, CIC 1983), due to acting as the co-consecrator on 1 July
He warned priests and faithful “not to adhere to the schism of the Priestly Fraternity of Saint Pius X”, because this would result in the incurring of automatic excommunication.
Fernández stated that the consecrations “constituted the delict of schism”, and that:
The sacred ministers of the SSPX “are in schism and must therefore be considered schismatics”, and excommunicated; and
The laity “who formally adhere” to the SSPX “are to be regarded as schismatics and excommunicated.”
The sacraments of the SSPX were illicit, and that the sacraments of penance and marriage are invalid (implicitly revoking permissions granted by Francis).
Leaving aside the question of the sacraments, Fernández’s measures can be reduced to three main headings:
Declaring automatic excommunication against the Bishops involved on 1 July
Designating the SSPX as a schismatic group, principally on the basis of the consecrations, but also on grounds set out in a 1996 document
Establishing, on the basis of that designation, that those who “formally adhere” to the SSPX (viz., all clerics, and some laymen) now incur an automatic excommunication for schism (Can. 1364, CIC 1983).
The Church’s teaching, which we shall revisit in this article, is clear.
Fernández – and, for the same reason, Leo XIV and his collaborators – are unable to excommunicate, because they habitually preach heresy. By analogy, they are unable to issue declaratory sentences of automatic excommunications, or to designate organisations as schismatic sects, such that others incur automatic excommunications by involvement with them.
We leave aside, for now, the question of whether these measures were defective in some procedural manner, and take them on face value.
Further, for the sake of argument, we can admit that the six bishops could have incurred the automatic penalty for participating in the episcopal consecrations without a Roman mandate, as this penalty is established in law.1 However, whether the penalty is actually incurred will depend upon whether the act is actually imputable as a crime, as well as the absence of reasons which prevent the penalty being incurred (cf. can. 2218, CIC 1917). Our personal view is that episcopal consecrations without pontifical mandate are broadly justified by the crisis in the Church and the extended vacancy of the Holy See – but even if this were to be incorrect, there is no way that Leo XIV and his collaborators can impose penalties on others.
Clarification of my position: Is this a ‘sedevacantist’ argument?
I have been pleased to see this argument gain traction since the publication of the essays on 30th June.
Stephen Kokx, of Integrity Magazine, stated the following:
However, Kokx was challenged on this argument on at least two grounds.
The first ground was that of ignorance: those who are unaware of the tradition of the Church on this matter alleged that that argument is essentially wishful thinking, or a refusal to recognise legitimate authority.
This ground is, of course, worthless. These challengers should make themselves aware of the texts we have made availalbe.
The second ground of challenge was stated in the following terms:
“No ability to excommunicate = no jurisdiction = Leo is not Pope = sede vacante.”
But is this true? Does the principle in question necessarily mean that the heretic has no jurisdiction?
St Thomas Aquinas thought so. He wrote:
“[T]he power of jurisdiction is that which is conferred by a mere human appointment. Such a power as this does not adhere to the recipient immovably: so that it does not remain in heretics and schismatics; and consequently they neither absolve nor excommunicate, nor grant indulgence, nor do anything of the kind, and if they do, it is invalid.
“Accordingly when it is said that such like persons [schismatics] have no spiritual power, it is to be understood as referring either to the second power [viz., jurisdictional], or if it be referred to the first power [viz., sacramental], not as referring to the essence of the power, but to its lawful use.”2
St Robert Bellarmine also thought so, adding that this deprivation of jurisdiction also entailed a loss of office. He specifically referred to the texts in the Decretum in his treatment of the “heretical pope” question. They formed part of his evidence that “the Holy Fathers teach unanimously not only that heretics are outside of the Church, but also that they are ‘ipso facto’ deprived of all ecclesiastical jurisdiction and dignity.”
Bellarmine also refers to these texts and C. IV Audivimus elsewhere, when he wrote:
“Moreover it is certain, whatever one or another might think, a secret heretic, if he might be a Bishop, or even the Supreme Pontiff, does not lose jurisdiction, nor dignity, or the name of the head in the Church, until either he separates himself publicly from the Church, or being convicted of heresy is separated against his will; for this reason, Celestine and Nicholas say (loc. cit.) that a heretical Bishop, to the extent that he began to preach heresy, could bind and loose no one although without a doubt if he had already conceived the error, were it before he began to preach publicly, he could still bind and loose.
“The fact is likewise confirmed from the canon Audivimus, 24, quaest. 1, where we read: ‘But if he will have devised a new heresy in their heart, to the extent that he begins to preach such things, he can condemn no man.’”3
Cardinal Juan de Turrecremata OP also referred to these texts and principles in the same context, as I demonstrated in a previous article. As well as affirming the principle they enshrine – that one who preaches heresy cannot bind or loose another – he also used this principle to conclude the following:
“Whence, properly speaking, a pope is not deposed by a council on account of heresy, but rather is declared not to be pope, when it is shown that he has fallen into heresy and perseveres in it obstinately and incorrigibly. Whence the Gloss on cap. 1, extra, De schismaticis, on the word careant firmitate, says: ‘Because when the Church has a heretical or schismatic pastor, it is understood to be vacant,’ above, De praescrip., cap. 1. But that one who has pertinaciously fallen into heretical depravity is deprived ipso iure of all ecclesiastical power, we shall show more fully, God helping, in the fourth book of this work, when the discussion concerns heretics.”4
The seventeenth century moral theologian Juan Azor SJ, also referred to the principle and Audivimus in the following:
“It is asked, first, whether the Roman Pontiff who has fallen into heresy loses the Pontifical power by right.
“[T]he Church is the congregation of the faithful, c. Ecclesia, de consec. dist. 1; therefore a heretic is outside the Church, and consequently is not reckoned a member of the Church. How, then, can he be head of the Church who is not a member of the Church?
“Finally, the same conclusion appears to be deduced from c. Quod autem, c. Achasius, c. Audivimus, 24. q. 1; c. Omnis qui recedit, c. Didicimus, and § His auctoribus, same cause and question — in which places it is laid down that heretics possess no right and no power; and because a heretic is excommunicated by divine right, according to those words of Christ the Lord: ‘Let him be to thee as the heathen and the publican’ (Matt. 18:17), if he will not hear the Church.”
Azor himself leaned towards what he treated as the second opinion – which Bellarmine would have called the “fourth” – namely, “that a Pope who has become a heretic is removed from his power and the dignity of jurisdiction by divine right; rather, he is to be removed.” However, Azor held that the principle in question, and the authorities in Causa XXIV, pointed towards an ipso facto loss of office by heretics.
Azor’s text is reproduced in the works of the nineteenth century canonists Eugène Roquette de Malvies and D. Criasson to the same effect.5
Based on these authorities, I concluded the following in the previous article:
“[S]uch an argument would only make sense on behalf of the SSPX if they wish to recognise that Leo XIV is a heretic – and accept the consequences of such a conclusion.
“Without such a recognition, it is difficult to see how they could consistently disregard a positive condemnation of excommunication from him and those whom he has putatively empowered.”
I stand by this. However, there are a number of points to observe.
First, let us note how these authorities proceed.
The tradition enshrined in the Decretum – that heretics cannot excommunicate – is the primary fact, and the primary certainty. It is the datum used to reach other conclusions.
The conclusion that this inability is based on a loss of office is an explanation of that primary fact, and it is based on subsequent reasoning.
I believe that this reasoning is correct, and that we can and should follow St Robert Bellarmine and the others in their interpretation.
However, we must acknowledge that terms like “jurisdiction” admitted of a variety of different terms, and that as a result, these texts are sometimes explained in ways that appear to contradict Bellarmine’s interpretation. For example, Gratian himself states that “both powers” – viz. that the power of baptising and the power of office – remain in heretics.”6 He also states that “the power of office is one thing, and its execution another”, and that sometimes the latter is taken away without the former.
St Thomas appears to say something similar in IV Sentences, stating that an excommunicate “does not lose his jurisdiction, nevertheless he loses the use of his jurisdiction.”7
Confusion arises because terms like power, jurisdiction and the keys can sometimes be used interchangeably, and sometimes with quite distinct meanings. Rev. Joaquin M. Alonso CMF also explains that St Thomas’ concept of jurisdiction “does not exactly coincide with that of contemporary canonists and ecclesiologists”,8 and that the Angelic Doctor sometimes employs the term to indicate a radical capacity for jurisdiction (which, being rooted in Holy Orders, cannot be lost), or the exercise of jurisdiction.9
“Therefore,” Alonso adds, “when one tries to appeal to his authority in the debated question concerning the specific division of powers in the Church, it is perhaps not always done with precision.”10
What is said of St Thomas also applies to the use of terms by others around the same time or before.
Conclusion: Application of the principle is not restricted to ‘sedevacantists’
What can we take from this, with regards to heretics excommunicating?
We can conclude that it is understandable that some may accept the principle that heretics cannot excommunicate, without concluding that heretics have lost office.
It is also understandable that some will hold that merely expressing heretical ideas – even if by mistake, or in good faith – is enough to deprive someone of the ability to excommunicate, without the “excommunicator” being personally heretical.
In short, it is understandable that some will see that Leo XIV et al. do not have the power to excommunicate, without also concluding that the Holy See is vacant. While I think that they should draw this conclusion, I do not think it can be made a condition for recognising and applying the fundamental principle. The same cannot be said, however, for recognising the heretical nature of what is preached.
I follow St Robert Bellarmine’s thesis, is that the heretic lacks the ability to excommunicate because he is “deprived of all ecclesiastical jurisdiction and dignity.” I think that any other conclusion than the vacant See is mistaken, and inconsistent with the logic of the argument and other truths which must be held. But while inconsistency might be a mark of error, there is no “Consistency Police Force”; and if there was, my personal views would not be the standard which it would enforce.
I do not make this concession out of any uncertainty of the conclusion. I am merely making clear that the fundamental certainty is that Leo XIV et al. cannot excommunicate, and that this explanation is based on subsequent arguments; arguments which I believe to be certain, but of a lower degree of certainty than what is established by the authorities cited.
I would rather see people hold to the fundamental principle in an inconsistent way, than to reject it – especially if this drives them back to he arms of the modernists.
Postscript: Answers to objections
Since these articles have been published, a few misunderstandings or objections have been presented.
Obj. 1. The laity are not entitled to be “heretic referees.” Nestorius was later condemned by the Council of Ephesus and the Pope. Therefore, a declaration is necessary in order for us to realise that a given person is a heretic and thus lacks the ability to excommunicate. Otherwise, it would be a kind of Protestantism for the “guy in the pew” to make this judgement.
Resp. 1. On the contrary, St Eusebius was a “man in the pew”, and denounced Nestorius in Church. Further, Pope St Celestine said specifically that Nestorius lacked the ability to excommunicate and depose “from the moment” he began preaching his heresies. This objection is simply a denial of what he said; and his letters were taken up by the tradition of the Church in the way described in these articles. Therefore, the objection falls.
Obj. 2. If this argument was true, anyone could invent an accusation of heresy against a prelate, and thus do whatever he wanted to do. This would be chaos, and therefore it is wrong.
Resp. 2. Such hypothetical consequences are not refutations. Further, we are already living in chaos, and this chaos is principally caused by those who have treated these men as if they have papal authority. Finally, anybody who denies that these men have been preaching heresies for the last sixty years, and compares this to someone inventing an accusation, demonstrates that they are living on another planet.
Obj. 3. The layman has no authority to declare anyone else a heretic. Therefore no one is bound by his judgments, and he is to be ignored.
Resp. 3. Indeed, the layman has no authority to render an authoritative judgment with legal effect or binding upon anyone else. However, he is competent to make a cognitive judgment; indeed, he is bound to do so when presented with teaching which contradicts that to which he is already bound, or told that he is excommunicated, or must desist from a particular line of conduct. He must judge the right thing to do, enlightened by faith, prudence and conscience.
Further, there is no reason for him to be ignored; on the contrary, his arguments should be refuted if they are false.
Obj. 4. This theory is very convenient for you. Therefore this theory is wrong.
Resp. 4. This is a worthless objection in itself. As an argument, it does not follow (the hidden minor premise to make it follow would need to be “That which is convenient for you is wrong”, which is obvious nonsense). It is also implicitly blasphemous, in that it suggests that Christ’s Church must function solely on inconvenience; whereas in fact, faith is the foundation of Christ’s Church, and it is very fitting that there be convenient solutions for problems relating to heresy, which is opposed to faith.
Obj. 5. It does not matter how bad the authority is. It is the authority, and you must accept it.
Resp. 5. We agree that the person holding authority can be morally bad. But the question is not about the morality of the person, but whether he is a heretic, and/or whether he teaches that which is heretical.
We should respond to such an objection by saying that it presupposes an entirely voluntaristic and naturalistic notion of authority, and thereby shows itself to be faulty.
Obj. 6. You are saying that papal authority only applies when you agree with the Pope.
Resp. 6. No, I am saying that we are obliged to assent to divine revelation and the teaching of the Church. When someone, even a prelate, attempts to impose propositions upon us which are contrary to what we are already bound to believe, we are obliged to either reject the new teaching in favour of the old, or the old in favour of the new. It is not possible to hold two contradictory propositions at the same time. Further, this is precisely what St Paul tells us to do in Galatians, and the saints and theologians have interpreted him in precisely this way.
Obj. 7. You are a Protestant, because you believe in a “right of scrutiny” over papal teaching.
Resp. 7. See Mgr Guérard des Lauriers’ treatment of this issue below:
‘The Right of Scrutiny’ and the drawing of consequences
Fr (later Bishop) Guérard des Lauriers. Cahiers de Cassicicum, n. 1.
We can now see in what sense it may be affirmed that: “every Catholic exercises a legitimate right of scrutiny over Authority and over the form of its decrees.”
This is true simpliciter, that is, absolutely, a priori and positively, within a human collective that belongs solely to the natural order. Whereas in the human collective that is the “Church,” whose Authority and norms are divinely instituted, the right of scrutiny belongs to subordinates only a posteriori and negatively.
We say a posteriori, because the object of this “right of scrutiny” is neither Authority in itself, nor the very form of its decrees; rather, the object of this right is the consequences of the acts performed by Authority. The “right of scrutiny” formally concerns the consequence. It is a posteriori.
We say negatively, because it does not belong to the faithful to judge positively that such-and-such an act of Authority is truly in conformity with the “marks” of the Church. But it is excluded that anything which truly emanates from Authority – whether in word or in deed – should sustain a contradiction, or practically a contrariety, with the “marks” of the Church. The faithful have the right of scrutiny regarding this exclusion; that is, they have the right to observe that this exclusion is concretely manifested, under the form of antagonisms and tensions, in reality. Thus, the consequences of what truly emanates – whether in word or in deed – from Authority must not entail contradiction or contrariety with the marks of the Church. In this sense, then, the “right of scrutiny” may be exercised; and it can be seen that this must be done only negatively: MUST NOT.
It must further be added that, with this right of scrutiny thus specified, to exercise it is not merely a right – it is a duty; a duty impelled by the instinct of Faith, and expressed in the testimony of Faith.
Fulfilling this duty never entails that the faithful have positively, a priori, a “right of scrutiny” over Authority. For if the opposition which is by right excluded is manifestly and continually present – if, in fact, there is real contradiction and actual contrariety between, on the one hand, the marks of the Church, and, on the other, what emanates from what appears to be Authority – then the faithful must conclude that, in reality, there is no exercise of Authority, or even that Authority no longer exists. The “right of scrutiny” of the faithful thus pertains not to Authority, but to the fact that Authority does not exist.
This right and this duty consist in observing that a given “subject” is no longer metaphysically capable – according to the ontology proper to the divinely instituted order – of exercising Authority, even though he occupies the See of Authority. This subject holds “authority” materialiter, but he is not invested with it formaliter. Therefore, the faithful never have to oppose Authority formaliter. The so-called “duty to disobey” is nothing but a mirage, whose artificiality takes shape only by the elasticity of language.
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Read Next:
Can heretics excommunicate? Foundational canonical text says they cannot
‘Audivimus’, ‘Achatius’ and Causa XXIV: Heretics Excommunicating Catholics
Church teaching says you can’t be excommunicated by a heretic
History repeating itself? A closer look at the Vatican’s SSPX excommunications
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NB: the 1917 Code imposes suspension in can. 2370, rather than excommunication.
Summa Theologica, IIa IIae, Q. 39, A3
St Robert Bellarmine, from De Controversiis: Tomus II, On the Church Vol. I, Book III (On the Church Militant), Ch. X, Secret Infidels. Trans. Ryan Grant, Mediatrix Press, Post Falls ID, 2017, p 294–5.
Juan de Turrecremata, Summa de Ecclesia, Book II, Chapter CII.
Gratian says:
“But the power of office is one thing, and its execution is another. Often the power of office is either received without its execution – as by monks in the priestly anointing – or, once received, is retained without its execution – as by the suspended, from whom administration is taken away but power is not removed.
“From those departing from the faith, therefore, the power is not taken away, just as it is not restored to those returning, lest injury seem to be done not to the man but to the sacrament. Whence those baptised or ordained by heretics, when they return to the unity of the Catholic faith, if perchance for the sake of ecclesiastical peace they are received in their own orders, the sacrament will not be repeated that is proved to have been administered in the form of the Church; but through the imposition of hands the virtue of the sacrament will be bestowed, which outside the Church is taught to have been conferred on no one.
“Since, therefore, both powers remain in heretics, if a heretic excommunicates a Catholic or another heretic, in order to draw him into communion with his heresy, the sentence lacks force, because it is unjust.” (Emphasis added)
St Thomas writes:
“For someone who is excommunicated or suspended loses neither his holy orders nor his jurisdiction, for when he is absolved, he is neither re-ordained nor is his post committed to him again.”
This forms part of an objection to the thesis that an excommunicated person cannot excommunicate another. However, St Thomas accepts the principle, and states:
“Although he does not lose his jurisdiction, nevertheless he loses the use of his jurisdiction.”
The confusion arises here because of the different senses in which these terms are used. See the next footnote.
Rev. Joaquin M. Alonso CMF, ‘Santo Tomás y el Llamada “Sacerdocio de los Fieles”’, XIII Semana Española de Teología 14-19 Sept. 1953, p 155. Ediciones Aldecoa, Madrid, 1954.
Alonso writes:
Thus, first of all, it is true that St. Thomas uses the terminology of “potestas iurisdictionis” (187) and “clavis iurisdictionis” (188); but it is also true that jurisdiction, in St. Thomas’s mind, is not understood—as modern authors do (189)—in the broad sense of “imperial authority, ” but is instead referred specifically to the penitential forum; and it is clearly distinguished from the “key of knowledge” (clavis scientiae), which in modern terminology corresponds to the potestas magisterii.
But let us look more closely at the texts themselves. St. Thomas sometimes calls it “potestas iurisdictionis,” as we have said (190); at other times “clavis iurisdictionis” (191). In both cases, however, he is presupposing the essential unity with the character of Holy Orders (192), and this both in the internal penitential forum (193) and in the external judicial forum (194).
On other occasions, rather than the potestas itself, it signifies its “use” (195); and then it is true that: “jurisdiction is not lost, but the use of jurisdiction is lost” (196). The “defect of jurisdiction” does not affect the power itself (197). Therefore, “jurisdiction, ” insofar as it is a potestas, cannot be defined in St. Thomas by a purely material element (198), nor by the merely “juridical” element of an “imposition” (iniunctio) (199).
St. Thomas takes jurisdiction as a potestas that is essentially one with character, with imperium, with auctoritas, and with praeeminentia; and insofar as it is distinct in its actual exercise from the power of order, he understands it only as the “clavis iurisdictionis in foro causarum” (200).
Now, in this purely forensic order, it “does not directly tend toward heaven… it is not properly called a key of heaven, but rather a certain disposition toward it” (201). For this reason St. Thomas hesitates to call this aspect of jurisdiction a “key of jurisdiction” (202). In all this one can see the Thomistic theological mindset of always understanding the concept of “key” (clavis) through sacramental power and character (203).
Now, to conclude this section, and assuming as evident in St. Thomas’s mind the impossibility de jure—not merely de facto—of a lay jurisdiction, which would imply a theological contradiction in terms, we would like to make the following brief remarks on the doctrinal difference between modern canonists and ecclesiologists and St. Thomas.
These differences fundamentally arise because St. Thomas places the potestas iurisdictionis within a more precise sacramental framework—more exact, in our view, than that of these authors; who, moreover, have not yet achieved a serious study of the origin and nature of jurisdictional power (204).
Alonso, pp. 157–159.
Alonso, p. 155.
Thank you for putting all this out in a digestable manner!
"It is not possible to hold two contradictory propositions at the same time."
The failure of the effort to "square the circle" is the alchemist's wrapper around the violation of the law of non-contradiction. You can no more change error into truth than dirt into gold.
I hate Objection No. 3, as it is so often made without the distinction you made between legal authority and private judgment based on fact.