Earlier today Cdl. Dolan of New York tweeted: “With the clear and cogent clarification of the successor of St. Peter, there now exists no loophole to morally justify capital punishment.”

The supposedly clear and cogent clarification that Dolan has in mind must be Pope Francis’ 2018 modification of the Catechism of the Catholic Church to assert that the death penalty is “inadmissible”. But, while it is likely that Francis meant what Dolan said, the pope did not quite claim what the cardinal clearly did. Francis (or his handlers) left just enough wiggle room (by using “inadmissible”, an ambiguous term in magisterial-moral discourse) to avoid flatly declaring the DP “immoral” and setting off thereby a magisterial firestorm such as has not been seen for some centuries.

Dolan, in contrast, tweeting in terms well-known to tradition, plainly stated that the DP is immoral, thus going beyond what Francis was willing to say. That’s a problem. Indeed, it’s two problems.

1. Numerous serious studies argue (convincingly, in my view) that the liceity of the DP in certain cases is taught by the Church’s infallible magisterium (specifically, as “secondary object” thereof); at the very least, such studies make a prima facie case for the liceity of the death penalty under the infallible magisterium. Therefore, Church leaders contradicting that position must, simply must, deal with the possibility that infallibility is in play here, and, at a minimum, they should refrain from unnuanced declarations that might, in the end, be shown as “opposed to the doctrine of the Catholic Church” per Canon 750 § 2. See also Canon 1371 n. 1.

But the stakes might be higher still.

2. Many of the sources invoked for the liceity of the DP as a secondary object of infallibility (Scripture, Patristics, etc.) are those commonly associated with infallible assertions of primary objects of infallibility, that is, with matters of revelation. Now, while contradicting infallible assertions regarding secondary objects is, as stated above, to make one opposed to the doctrine of the Church, contradicting primary objects of the Church’s infallible magisterium is a specific element of heresy per Canons 750 § 1 and 751. See also Canon 1364. Obviously, this characterization risks even greater harm to the Church.

Am I saying that Dolan has committed heresy in his tweet or that he has expressed opposition to the teaching of the Church? No, but I am saying that declaring the DP as immoral per se puts one at risk of asserting something that many qualified scholars argue powerfully is opposed to infallible Church teaching, and possibly even to contradicting something divinely revealed. The real possibility of so offending the truth should, I think, trigger more respectful caution by those in positions of authority when speaking on these matters.

Think of it this way: A hunter shooting toward something moving in the underbrush can’t defend his accidental killing of a human being by saying “I did not know it was a man, I thought it was a deer.” The hunter has a duty to verify the status of his target before he shoots. Likewise, popes and bishops taking shots at the long-recognized moral liceity of the DP have a duty to verify the magisterial status of that teaching lest they accidentally hit something they had no business aiming at in the first place.