Valid but illicit, also known as valid but illegal, as it pertains to Roman Catholicism, refers to the unauthorized but valid practice of sacraments, especially regarding the ordinations of clergy. In the Roman Catholic Church several kinds of people have the inherent ability to perform the sacraments (see Catholic minister). However to be lawful or licit, that ability must be exercised in accordance with the guidance of the Church and the rules of Canon law.
The term is sometimes used to refer to the valid administration of baptism by persons forbidden to do so. Such cases might involve the recognition of Protestant and Eastern Orthodox baptisms by the Roman Catholic Church because they validly use the trinitarian formula. Theoretically, the Church believes any human being can baptize if they use the right form, matter, and intent, but only deacons and priests are the ordinary ministers. Lay people (especially who are not Catholic or not themselves baptized) may be extraordinary ministers, but should only baptize in emergencies or in extraordinary circumstances with permission. However, even without an emergency or permission, baptism by lay people is still valid, but illicit. Canon 862 of the Code of Canon law also says that, "Except in a case of necessity, it is unlawful for anyone without due permission to confer baptism outside his own territory, not even upon his own subjects."
The ordinary minister of confirmation is the bishop. He has this power intrinsically but, to be licit, needs canonical permission for confirmations performed in a dioceses outside his own on recipients who are not his subjects. A confirmation performed by a bishop without the permission of the local ordinary would be valid but illicit. The same applies for Orthodox confirmations. A bishop is, however, allowed to confirm people from another diocese who are present in his own diocese, or to confirm his own subjects in another dioceses, unless the other ordinary expressly forbids it.
Simple priests (presbyters) are extraordinary ministers of confirmation and are required, in the West, to be delegated faculties to confirm, such as at the Easter Vigil. In an emergency, canon law automatically grants these. In the East, priests routinely confirm infants without any special delegation. There is theological debate, therefore, over whether the delegation of faculties are required for validity, with the East having a sort of perpetual delegation implied in its canons, or whether the faculties requirement is merely for licitity in the West.
Church laws regarding confession require that priests who are giving confession must have valid faculties and jurisdiction. As penance is not only a sacramental act, but one of jurisdiction, a tribunal of binding and loosing, these faculties are required for validity, not just licitity. In former times, priests were more limited in the scope of this jurisdiction in terms of who they could absolve. For example, people had to confess to their pastors specifically, not other priests. Now, Canon law is much more liberal about this, and grants faculties to priests to absolve anyone unless these are specifically limited or revoked by the diocesan bishop or the Vatican.
The Pontifical Commission Ecclesia Dei has stated that, in accordance with canon 144, someone who confesses to an SSPX priest while genuinely not knowing that the priest does not have the required faculty will be validly absolved, but that, with this exception, the sacraments of penance and which SSPX priests are involved are not valid.
The principle remains, however, that a priest without faculties can be absolving illicitly, and guilty of this himself, even if, because of genuine ignorance, the penitent is still validly absolved because of the general supplying of faculties in extraordinary situations like this. In an emergency, canon law grants any validly ordained priest the faculties to absolve.
Regarding the Eucharist
A prime example of valid but illicit in the celebration of the sacraments would be the use of leavened bread for the Eucharist in the Roman Rite or Latin Rite. Roman Catholic law states the hosts must be made of wheaten flour and water, with no additions. If yeast is added, the Eucharist is considered valid but illicit in the Roman Rite.
If, however, butter, honey, or eggs are added, particularly in large quantities, or if rice or rye flour are substituted for the wheat flour, transubstantiation is not considered to take place; the Mass would be illicit and invalid, according to Catholic teaching.
A priest who has been laicized or suspended or excommunicated is not to say Mass, but their Masses are still considered valid.
Regarding Extreme Unction
Except in an emergency, a priest who has been laicized or suspended or excommunicated is not to perform the Anointing of the Sick, but it is still considered valid if he does. The same applies for Orthodox priests, etc
The rules for marriage are the same as those for baptism (cf natural marriage). Any Protestant or Eastern Orthodox marriage is regarded as valid but illicit if the husband and wife have already obtained a trinitarian baptism. The Society of Saint Pius X's chapel marriages have a similar status to those of other Christian communities because there is currently no canonical agreement between Rome and Econe.
Divorces and re-marriages in other ecclesial communities are not regarded as valid, given that the Church regards marriage as being indissoluble, by which the first spouse always remains the legal spouse, and cannot be substituted even by additional marriage contracts.
Being considered by the Church essentially a contract, the conditions of marriage are entirely determined by the applicable Canon Law, which can change. The Church can determine the form of marriage, and set up impediments not only to licitity, but also to validity, as well as dispensing from these. In the West, for example, the couple themselves minister the sacrament to each other and the priest (or deacon, or delegated lay person) is merely the required witness, whereas in the East, the priest actually acts in a judicial capacity and is the minister who actively marries the couple together.
All bishops are able to ordain a deacon, priest, or bishop. A valid but illicit ordination, as the name suggests, is a non-Roman Catholic sanctioned ordination; that is, one where a bishop uses his valid ability to ordain someone without having first received permission from the Roman Catholic Church. The bishop is therefore acting in a manner deemed illicit or illegal.
A bishop who validly but illicitly consecrates someone to the episcopate without permission from the "Church"is automatically excommunicated according to the Canon law of the Roman Catholic Church even though the ordination is valid. Likewise the person duly consecrated a bishop, by participating in the ceremony is also automatically excommunicated. The excommunication can only be lifted by the Pope.
Likewise, any and all subsequent ordinations or consecrations by those individuals are also considered valid but illicit. In the twentieth century, Archbishop Marcel Lefebvre is said to have earned automatic excommunication for his valid but illicit ordinations of bishops without a Papal mandate. However, his defenders argue that he acted under grave fear, which, according to Canon Law, excuses him from automatic excommunication. One notable case of "Valid but illicit" ordinations and consecrations is the case of Roman Catholic Bishop Dominique-Marie Varlet.
Less serious transgressions are sometimes designated, in Catholic as well as Anglican churches, as 'valid but irregular'.
- ↑ Apostolicae Curae, " . . . Whenever there is no appearance of simulation on the part of the minister, the validity of the sacrament is sufficiently certain . . . "
- ↑  Redemptionis Sacramentum, Chapter III, Number 1.
- ↑ Cf. Code of Canon Law, can. 924 §2; Missale Romanum, Institutio Generalis, n. 320.
- ↑  The Catholic Legate (scroll down to "Valid or Illicit?" section.)
- ↑ Dr. Ludwig Ott,(1952), Fundamentals of Catholic Dogma. p. 456. "Every validly consecrated bishop, including heretical, schismatic, simonistic, or excommunicated bishops, can validly dispense the Sacrament of Order, provided that he has the requisite intention, and follows the essential external rite (set. Certa). Cf. D 855, 860; CIC 2372."