Canon 805 of the Church's "Code of Canon Law" establishes that within his diocese, the diocesan bishop "has the right to appoint or approve teachers of religion and even to remove them or demand that they be removed if a reason of religion or morals requires it." The canon does not give the bishop the same oversight over other teachers.
While canon 806 recognizes that the bishop can issue norms pertaining to the "general regulation" of schools overseen by religious orders, like Brebeuf, the law also recognizes that religious orders have "autonomy regarding the internal direction" of such schools.
The norms established by the Archdiocese of Indianapolis pertain to all teachers, not just those who teach religion. In fact, the archdiocesan policy seems to define all school teachers as teachers of religion, at least in a broad and abstract way.
It is not clear to canonists whether the Congregation for Catholic Education will decide that the Archdiocese of Indianapolis' policy pertains to the "general regulation" of Brebeuf, or whether, in light of canon 805, it will find that the policy reaches into a matter of "internal direction," over which the school has canonical autonomy.
Even if the Congregation decrees the latter, it could also decide that because the archbishop's intention was in the right place, the best response is to suggest to him an amended policy that could be understood to pertain to the school's "general regulation."
What the Congregation decides on this legal point will have bearing on the canonical relationship between local bishops and religious orders with schools around the world. The Congregation will likely take its time coming to a conclusion.
Apart from this question, there are also canonists, even among those supportive of the archdiocesan initiative, who ask whether a bishop can legally declare that a school overseen by a religious institute will no longer be "recognized" as a Catholic institution.
While many canonists agree that the archbishop can prohibit the school from calling itself a Catholic school, as indicated in canon 803, there are questions in play about whether the wording and form of Archbishop Thompson's decree conform to the requirements of canon law.
There are, in short, a number of technical issues of canon law at play in the dispute between Brebuef and the Archdiocese of Indianapolis, and those issues have to do with the scope and exercise of a bishop's authority, not with broad questions about homosexuality and Catholic identity.
This means it is entirely possible that the Congregation for Catholic Education could end with a decision that supports Archbishop Thompson in principle, while concluding that the way he went about handling the issue was canonically problematic.
In such a case, the Congregation would likely spend time trying to see whether the matter could be meted out in a more technically precise way.
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But because the case is complex, and it's not clear how the Congregation will decide on each of a set of interlocking legal questions, resolving the situation is likely to take a long time. And, most likely in recognition of that fact, the Congregation decided to suspend the archbishop's decree until the matter has been resolved.
Among American commentators, the suspension of the decree has been characterized as a reproach to Archbishop Thompson or an indication that the Vatican plans to decide the case in the Jesuits's favor. But considered in light of the common praxis of the Roman Curia, and the rules that govern it, those characterizations seem unfounded, at best.
Reading the tea leaves on exactly why the Congregation suspended the decree is near impossible. But there are a few points worth noting.
The first is that in canonical praxis, it is not unusual to suspend the effects of a decree when a recourse, or appeal, is being considered seriously, and when the effects of the decree are significant. In many types of cases, the law establishes an automatic suspension. In fact, sources told CNA this week that at least some Vatican officials initially thought suspension would be automatic in this case, as it is in many others. So among the likely reasons the Vatican suspended the decree is a canonical instinct among many canonists to do so when a recourse is being considered seriously.
The Congregation will want to give every indication of having been fair to both sides in this dispute, and because suspension of a decree is an ordinary canonical practice, it is also an indication of fairness.
The second point worth noting is that Thompson's decree, which says that Brebuef will no longer be listed in the "Official Catholic Directory," could have considerable tax consequences for the school and its Jesuit teachers, because the IRS recognizes that directory as demonstration that an entity is a tax-exempt Catholic ministry. Suspending the decree prevents the headache of resolving those tax issues while the Congregation considers the appeal.