It had become my firm conviction through reading such studies as The Apostolic Origins of Priestly Celibacy by Father Christian Cochini SJ that the apostolic tradition and that of the early Church was firmly in favour of this position. Indeed, Cochini's work shows that it was customary in some places that if a man in minor orders took a wife he was not promoted to higher orders. If a married man in major orders fathered children, he was either dismissed from the order received, or allowed to retain the order but not to exercise it. It was a cause of scandal in the early Church for it to become known that a man in major orders was enjoying conjugal rights with his wife. A more careful re-reading of Cochini's work would enable me to produce further examples of the upholding of this tradition.
Peters has published on this matter, and his research is described in an article entitled Canonical Considerations on Diaconal Continence in the Canadian Canon Law Journal Studia Canonica 39 (2005) pp. 147-180.
Peters begins his study considering the first paragraph of Canon 277 of the 1983 Code of Canon Law which states:
§1. Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy which is a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided heart and are able to dedicate themselves more freely to the service of God and humanity.
This canon states the obligation to perfect and perpetual continence binding upon all clerics (bishops, priests, deacons). Peters comments:
Clerical celibacy is, however, presented in the law as a secondary good that, while valued in its own right as "a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided heart and are able to dedicate themselves more freely to the service of God and humanity" is nevertheless ordered to the protection and support of a more fundamental good, namely, that of "perfect and perpetual continence for the sake of the kingdom of heaven."The second paragraph of the canon goes on to say:
§2. Clerics are to behave with due prudence towards persons whose company can endanger their obligation to observe continence or give rise to scandal among the faithful.
Note, again, the reference to continence rather than to celibacy. The reason why the canon does not say that clerics should avoid contact with persons whose company can endanger their obligation to celibacy is that, as we know and shall see, there are clerics who are not bound by the obligation to celibacy.
The third paragraph states:
§3. The diocesan bishop is competent to establish more specific norms concerning this matter and to pass judgment in particular cases concerning the observance of this obligation.
Clearly this paragraph does not grant to diocesan bishops the authority to dispense from the obligation to continence but rather to establish particular norms that might secure the observance of this obligation in the light of local circumstances and to judge whether or not the obligation to continence has been violated.
Exceptions to the Law for Permanent Deacons
The Code of Canon Law exempts permanent deacons from the observance of certain obligations binding upon all other clerics.
Can. 288 The prescripts of cann. 284, [the obligation to wear ecclesiastical garb], 285, §§3 [the prohibition from assuming public offices which entail a participation in the exercise of civil power] and 4 [the prohibition from assuming and/or accepting certain financial obligations], 286 [the prohibition from conducting business or trade personally or through others], and 287, §2 [the prohibition from having an active part in political parties and in governing labor unions unless] do not bind permanent deacons unless particular law establishes otherwise.Notable by its absence from the above list is any exemption from the norm binding all clerics to perfect and perpetual continence.
Those to be ordained as permanent deacons are also not bound by the impediment of marriage by virtue of Canon 1042 n.1:
The following are simply impeded from receiving orders:
1/ a man who has a wife, unless he is legitimately destined to the permanent diaconate.
The obligation to celibacy of unmarried candidates for the permanent diaconate is guaranteed in Canon 1037:
An unmarried candidate for the permanent diaconate and a candidate for the presbyterate are not to be admitted to the order of diaconate unless they have assumed the obligation of celibacy in the prescribed rite publicly before God and the Church or have made perpetual vows in a religious institute.
We recall, again, that the reason for assuming the obligation to celibacy is to ensure the observance of the higher good of perfect and perpetual continence.
Other requirements for the advancement of a man to the permanent diaconate
It is only in the context of an obligation to perfect and perpetual continence that the following Canon makes sense:
Can. 1031 §2. A candidate for the permanent diaconate who is not married is not to be admitted to the diaconate until after completing at least the twenty-fifth year of age; one who is married, not until after completing at least the thirty-fifth year of age and with the consent of his wife.
And this is what Peters argues should be done, suggesting (in another article for Chicago Studies) a minimum age of fifty for married candidates for the permanent diaconate.§3. The conference of bishops is free to establish norms which require an older age for the presbyterate and the permanent diaconate.
Peters concludes his overview of the 1983 Code on the matter of clerical continence and celibacy as follows:
In sum, the 1983 Code expressly imposes two obligations on Western clerics, one of continence, and one of celibacy, with continence being canonically regarded as more fundamental (c. 277, §1). Only in regard to the less fundamental of these two obligations, clerical celibacy, is there any relaxation in canonical discipline, though that only insofar as it affects married men seeking ordination to the permanent diaconate (cc. 1037 and 1042). At no point, though, despite expressely exempting permanent deacons from a variety of clerical obligations (c. 288) does the 1983 Code relax the expressly stated and more esteemed obligation of continence for all clerics.Professor Peters also surveys Canonical Tradition concerning the obligation of clerical continence and observers that under the 1917 Code of Canon Law the violation of the obligation of observing chastity was a sin of sacrilege:
1917 Can. 132 §1. Clerics constituted in major orders are prohibited from marriage and are bound by the obligation of observing chastity, so that those sinning against this are sacrilegious...To live chastely it is clear that an unmarried man must live in continence. There was therefore no need to be more specific under the 1917 Code. Peters also refers to authors who commented on the 1917 Code, all of whom supported the obligation to continence even for those married men who might have been admitted to Holy Orders. He writes:
Ayrinhac writes: "A married man may not lawfully receive major Orders as long as his wife lives. (Can. 987.) should he receive them with a dispensation from the Holy See he would contract the same obligation to chastity as other clerics..." No commentator on the 1917 Code holds licit the use of marriage by men in major orders.The fact that the 1917 Code designated offenders against chastity/continence as sacrilegious indicates that this matter was considered to relate to divine law. Indeed, in the revision process leading up to the promulgation of the 1983 Code, this point was admitted but not included in the new Can. 277 §1 as it was deemed to pertain to moral theology rather than Canon Law.
When Pope Paul VI ordered the restoration of the diaconate, he expressly confirmed the law as contained in the 1917 Code:
We want to confirm all that is said in the  Code of Canon Law about the rights and duties of deacons, either those rights and duties which they have in common with all clerics or those proper to themselves, except where We here state otherwise, and We decree that these rules are to apply to those who are to be permanent deacons as well. (Sacrum diaconatus ordinem, 1967)Peters concludes that when Paul VI restored the permanent diaconate in the Latin Church, he did so retaining the 1917 Code's obligation of continence as binding even on married deacons.
Professor Peters gives many examples of where conciliar and post-conciliar documents hold in the highest esteem the observation of perfect and perpetual continence for the sake of the Kingdom of heaven (e.g. Decree on the Ministry and Life of Priests, no. 16, Lumen Gentium, no. 42). In no promulgated Council document was there any suggestion that the obligation of clerical continence, clearly required under the then-operative 1917 Code of Canon Law, was to be relaxed.
In the process of drafting the 1983 Code, says Peters,
... each of the first three drafts of the canonical articulations of the clerical obligations of continence and celibacy contained an express exemption for married deacons in regards to both obligations, but this exemption was completely dropped from the final promulgated version of the law.
What about those married deacons who have been ordained without being expressly asked to commit themselves to continence and whose wives had not consented to a life of continence? It would be unjust to require them, now, to take on an obligation they were not aware of at the time of their ordination. Future candidates, however, could be required to explicitly make this commitment, or at least be reminded of the obligation which is there in the law, and the consent of their wives should include a consent to a life of continence after the ordination of her husband.
Perhaps it is appropriate to finish this blog post with Professor Peters' Concluding Remarks from the cited article in Studia Canonica:
The conclusion suggested by this article is that a major, long-standing, and unquestioned canonical obligation of clerics in the Western Church - namely, complete sexual continence for married men in major orders - has, with almost no conscious advertence, been forgotten in the span of hardly a generation. A limited range of responses to such a dramatic event seems feasible.
If such a development truly reflects the mind of the Church, then it seems incumbent on the proper ecclesiastical authority to enunciate the reasons behind such a major change in discipline, lest the example of what otherwise might seem like an amnesic development of practice be established and accepted. In other words, there is need to demonstrate why the law must be accommodated to the practice, lest law fall into disrepute. As a variation of this, if a distinction in the clerical obligation of continence exists, however hidden, between deacons and priests, that distincition should be clearly articulated, lest a practice that might be tolerated for those in a lower level of Holy Orders be inappropriately applied to those in a higher. If, however, a change in the traditional Western discipline of clerical continence for those in major orders was not intended and therefore, at best, the current situation of non-continence among married permanent deacons is markedly anomalous, then that fact should be admitted and forthrightly addressed. In this last case, one wherein a practice must be brought into conformity with law, the example of King Josiah upon rediscovering the forgotten Law (2 Kings 22-23) might be instructive.
See also http://www.canonlaw.info/a_deacons.htm.
Returning to my own personal reflections, I consider the observation of continence as an integral part of the life of the ordained. Their ministry within the sanctuary requires this, as Cochini and others amply demonstrate. The Church would be much strengthened and the diaconate greatly renewed if candidates were reminded of this obligation and required to observe it.
Anecdotally, I realised how deeply this is engrained upon my own appreciation of the tradition on this matter at a wedding reception I attended not so long ago. The bride and groom were given rather superfluous lessons in passionate kissing (as if they hadn't done so already). At intervals during the reception, different couples were invited to demonstrate the skill of passionate kissing and the bride and groom were then expected to imitate the experienced couples with even greater passion. Whilst I found the whole thing a little unnecessary to say the least, I found myself rather put off at seeing the permanent deacons (there were a number of them) and their wives joining in the 'lessons.' Something inside me was saying: "Guys, you are ordained ministers. Somehow this doesn't seem appropriate behaviour." I don't think I was being prudish.
Dr Peters' son Thomas (American Papist) has referred to this post in his article on Catholicvote.org.
Dr Peters' Studia Canonica article can be downloaded as a pdf here.