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Confusing validity and sacramentality in marriage

Confusion among Catholics concerning annulments is not helped when “experts” featured in the Catholic press are themselves confused about annulments.

Peter Smith, writing in the National Catholic Register (21 jul 2014), interviewed two experts about the annulment process. The quotes from one of them, Benedict Nguyen (a canonist for the Diocese of Venice FL) are reliable; but the other expert, Dcn. Patrick O’Toole (actually featured in the article) is confused about the central question in every annulment case. According to O’Toole, “We know a valid civil marriage occurred. The only question is whether a valid sacramental marriage occurred” (original emphasis). O’Toole repeats his phrasing later: “What we’re looking for is: Was everything that is required for a sacramental marriage there from the very beginning?” O’Toole is mistaken.

Not only is the sacramentality of a marriage NOT determined in an annulment case, the question of its sacramentality is not even RAISED in the process. The annulment process is about the validity of marriage and only about validity; a successful petition results in a “declaration of nullity”, not in a declaration of non-sacramentality. Experts must know and consistently present these distinctions if they are ever to help pew Catholics to understand first the fundamental juridic nature of all marriage and then the sacramentality of specifically Christian marriage.

Consider: if tribunals really regarded as null all marriages that were not “sacramental”, then no marriage between Jews, or between Muslims, or between Hindus, would be valid, for none of those marriages are sacramental. For that matter, no marriage between a Catholic and any non-baptized person would be valid, for such marriages are not regarded as sacramental, even when they are entered into in accord with canon law! This is nonsense, of course, but it’s the kind of nonsense that gains traction when an “expert” describes the central question in annulment cases to be about sacramentality instead of about validity.

There are, I’m afraid, several other problems in the article but the above should suffice to caution readers.

Update, 25 jul 2014: I’m happy to note that several of the more serious errors have been removed and/or corrected in the revised version of the article.

Three topics for the 2014 Synod on Marriage

The project to justify holy Communion for divorced-and-remarried Catholics seems to be losing steam. That’s good. As I have said many times, unless one is willing to countenance the administration of the Eucharist to those obstinately persisting in manifest grave sin (pace Canon 915), or is willing to say that typical remarriage after divorce is not the grave sin of adultery (pace CCC 2384), or is willing to say that Christ was wrong about marriage lasting till death and about remarriage after divorce being adultery (pace the New Testament!), then that project was doomed from the start. It’s now time to consider ideas that would strengthen the Church’s witness to marriage, not weaken it.

Leaving aside some important (but not urgent) ecclesiological questions about the ultimate future of the Synod of Bishops, the assembly convoked for October 2014 will not be legislative in nature and it will not make policies; instead the synod will be tasked with discussing, in an informed manner, natural and Christian marriage from pastoral and canonical perspectives. That sort of discussion requires study (general impressions and opinions about marriage are no longer adequate bases from which to respond to the crisis in marriage), and real study is hard work.

May I suggest (or re-suggest as the case may be) three marriage-related topics that need significant advance prepping if they are to be competently treated by the synodal Fathers.

1. Canonical Form for Marriage. The requirement that Catholics wed before clergy has always been an imposition on the natural and sacramental reality of marriage, and the societal conditions that supported its imposition a few centuries ago have all but disappeared today. Instead of defending marriage, the requirement of form now permits tens of thousands of Catholics annually to walk away from marital unions that we demand all others honor, deprives Catholics in such unions the graces specific to Matrimony, and relegates such unions to the status of concubinage. Further, the pastoral need to blunt the ecclesial consequences for disregarding canonical form has led to the elaboration and/or invocation of several juridically dubious “work-arounds” in such areas as jurisdiction, dispensation, and sanation. The question is: does the requirement of canonical form do more harm than good to the Church’s proclamation of marriage today?

2. The Annulment Process. In the popular mind (including many bishops’), the annulment process is a pastoral mechanism that “works” when it allows Catholics in failed marriages the chance to marry someone else. Correcting this massive misunderstanding about the vital juridic nature of the annulment process is of the utmost importance. Beyond that, however, the annulment process, being established and administered by human beings, is in need of reform especially regarding: (a) appreciating the canonical impact of widespread societal and familial dysfunction on young persons attempting to enter marriage as Christ and his Church proclaim it; (b) the actual or perceived disconnect between the interpretation accorded norms on consent as given in Rome versus that in many other tribunals around the world; (c) the real burdens and benefits associated with mandatory appeal; and (d) the feasibility of allowing third instance tribunals to function in nations that actually need them.

3. Same-sex unions vs. ‘same-sex marriage’. If there is a philosophically, juridically, and pastorally defensible distinction between same-sex unions and ‘same-sex marriage’, the time to articulate that distinction is now. Earlier ecclesiastical documents on this issue, striving (correctly!) to avoid any semblance of support for the idea of ‘same-sex marriage’, rejected same-sex unions in terms that admit of no toleration in the secular arena and indeed, if taken literally, demand sacrifices by Catholics that the Church should, in any age, be loathe to impose. Besides this important clarification of categories, the practical issues occasioned by having faithful in same-sex unions or ‘marriages’ (chiefly in regard to their admission to the sacraments and participation in Catholic public affairs) need systematic elucidation.

Some lay experts at the 2012 Synod of Bishops

A special charism is at work within synodal assemblies. Their maddening inefficiencies notwithstanding, synods can produce real insights into pressing pastoral questions and can refocus papal-episcopal leadership in regard to important matters. But it is presumption to assume that, because the Holy Spirit guides the Church, we all can just sit back and enjoy the show. Protection from error (such as officially treating typical remarriage after divorce as anything other than adultery) is one thing, but assessing and adequately responding to the pastoral exigencies of the day is something else. The 2014 Synod is all about the latter.

The best defense is no offense

Athletes often quip that “the best defense is a good offense” meaning that, if one scores more points than does the other side, what does it matter how many points the other side scores? I’d like to offer a canonical variant on that: “the best defense is no offense” meaning that, if ecclesiastical authority fails to prosecute wrong-doers, what does it matter how guilty they are?

Sr. Jeannine Gramick, a chronically controversial Loretto religious, has signed a public letter to President Obama expressly urging him (as if he needed urging) to fund abortion overseas. In her letter Gramick claims the mantle of ‘leader of a faith-based organization’, declares it “immoral” not to pay for overseas abortions, asserts that paying for abortions is a “moral imperative”, and signs the letter “In Faith.”

Canon 1369 of the Johanno-Pauline Code states: “A person who in a public show or speech, in published writing, or in other uses of the instruments of social communication utters blasphemy, gravely injures good morals, expresses insults, or excites hatred or contempt against religion or the Church is to be punished with a just penalty” (emp. added). Gramick’s open letter urging, as a moral imperative no less, the funding of deliberate pre-natal homicide, satisfies, in my opinion, the elements of this canonical crime and suffices to launch a criminal investigation of her under Canon 1717. As I have noted in many similar cases, Gramick has not, on these facts, violated Canon 1398 (on abortion) and the question of her (in)eligibility for holy Communion under Canon 915 is not a criminal matter. At the same time, though, besides her egregious letter to Obama, Gramick’s other public writings on Church doctrine and discipline can, and should, be examined in light of Canon 1369.

As a religious, Gramick is immediately answerable to her superiors, of course, but the diocesan bishop of her place of domicile or quasi-domicile (c. 102) has jurisdiction over her in regard to penal matters (c. 1408, and see c. 1412). The “just penalty” envisioned under Canon 1369 is intentionally flexible so as to enable its application under a variety of circumstances but, in my opinion, that penalty could not be excommunication; obstinance, however, in the face of earlier sanctions could be used to increase subsequent penalties (cc. 1326 § 1, 1°, and 1393).

Of course, if Gramick is not called to account for her pro-abortion, etc., writings, what matters how canonically guilty she might be for them? Who needs a good defense when confronted by no offense?

About those embarrassing pro-lifers

Even though, as a general rule, the leadership of national episcopal conferences is elected by member bishops (c. 452), in Italy (long story made short) the pope personally appoints conference leaders. Pope Francis appointed Bp. Nunzio Galantino as Secretary General of Italian bishop’s conference a couple months ago.

Galantino is calling for a “taboo-free discussion” of priestly celibacy, administration of holy Communion to divorced-and-remarried Catholics, and homosexuality (sic: homosexual acts?). His call for a ‘taboo-free discussion’ of these topics suggests, of course, that, till now, their discussion has been hindered by taboos, or at least, that Galantino thinks they have been discussed only amid taboos. I suggest the first implication is false; the second, necessarily, mistaken. Passing familiarity with the Catholic literature that each of these topics has generated over the centuries should be enough to dispel allegations of “taboos” in their regard except perhaps in the minds of some who dislike the Church’s position on one or more of these topics.

But it is Galantino’s gratuitous remark about “expressionless persons praying rosaries outside abortion clinics” that attracts my attention. I worry when ranking prelates disparage the simple and prayerful piety that some lay faithful show even before the Gates of Death.

I prayed my first rosary outside an abortuary in 1978. I don’t recall what my expression was, but I doubt I was smiling. I have prayed many rosaries outside of many abortion mills since then, have picketed them, side-walk witnessed at them, passed out literature around them, and even drove two women (who had showed up for abortions) to pro-life agencies where they sought assistance toward sparing their babies from abortion. I probably smiled on those two days.

At the same time—even though usually things are quiet (deathly quiet) outside an abortion chamber—I have nevertheless also been screamed at by clinic personnel, cursed at by passers-by, drenched in the rain, had a brick tossed over a wall at me, and once watched a driver gesture the ‘trigger finger’ at me. But even if I had the presence of mind to rejoice at these insults borne for the sake of the least of His children, I’m pretty sure I did not show it on my face. I wonder, does every feeling need to be shown? And what exactly should one feel outside a death chamber?

In any case, if my expressionless demeanor at prayer outside an abortuary has ever embarrassed anyone, I apologize. It’s just that I am still fazed at the very thought that, hardly 20 paces from where I stand, a baby is being sliced to ribbons. + + +

Update: Well put, John Smeaton.

Some remarks on Jared Staudt’s essay

Jared Staudt has an essay in Crisis on-line wherein he strives to promote solid Church teaching on marriage. Much of his essay is good, of course, but, in playing off some of Cdl. Kasper’s recent remarks, I fear Staudt has entered an apologetics fray for which his essay is not well suited. May I offer what I suggest are a few correctives.

1. Among the flaws in Kasper’s approach to divorce, remarriage, and admission to holy Communion, I think a major one is his view that living as brother and sister is a “heroic exercise” for divorced-and-remarried Catholics which, precisely because the Church does not regularly call the faithful to exercise heroism, we should not expect of divorced-and-remarried Catholics for admission to holy Communion. Staudt accepts Kasper’s description of this relationship as a “heroic exercise”. I challenge that view.

Whether one reads Lumen gentium as calling Christians to holiness (as the text copiously states) or one reads Lumen gentium as calling Christians to heroism (though the word never appears), we must not confuse the demands made of Christians in pursuit of goods with the demands made of Christians in the avoidance of evil. Even if the pursuit of certain goods requires heroic exercises, does refraining from evil ever require “heroic measures”? If so, what is one to make of the maxim that we are never tempted beyond our strength? Is everyone a hero, at least in times of temptation?

But Kasper’s view, if sound, forces a wider question: is Church teaching that non-married persons refrain from sex to demand heroics of them, or does it simply set out a minimal expectation for all those who claim to follow Jesus and his Church? I think it is the latter, and am therefore loath to conclude that this minimal expectation of chastity demands “heroic virtue”. But suppose I am wrong; suppose avoidance of sex outside of marriage really is a heroic exercise for divorced-and-remarried Catholics. Must we not then ask for whom else such an expectation is beyond their ordinary means? Engaged couples? Dating couples? Acquaintances? Complete strangers? Or are divorced-and-remarried Catholics alone in coping with trying circumstances?

2. Staudt writes: “What may be most troubling is [Kasper’s] rejection of what is clearly the answer to the problem of divorce and remarriage: abstinence from intercourse, because the couple is not validly married.” Now, much as I disagree with Kasper, we cannot say that abstinence from intercourse is “the answer to the problem of divorce and remarriage”!

The answer to the problem of divorce is not to divorce (outside of those cases allowed in CCC 2383 and the Pauline/Petrine Privilege) and the answer to the problem of remarriage is not to remarry (except after the death of one’s spouse, upon the invocation of the Pauline/Petrine Privilege, or following a declaration of nullity). Abstinence from intercourse has nothing to do with marriage per se; it is, in this context, simply one criterion for assessing (under very strict and very unusual circumstances) certain people’s eligibility for holy Communion! The primary wrong in divorce-and-remarriage remains a wrong against marriage, which wrong admittedly has reverberations in regard to Communion. But repairing a divorced-and-remarried Catholic’s access to Communion does not right the wrong that typical divorce and remarriage does to marriage.

3. Staudt writes: “To be the spouse that God wants you to be, you need to be a saint!” Again, I think this is dangerous language if it implies that only the holy can marry and stay married. A “holiness” criterion for marriage is simply not part of the Church’s teaching or tradition on the validity of marriage. Stuadt repeats this notion many times, but I don’t think he demonstrates it.  I’d want more evidence before implying to married couples that the stability (even the existence) of their marriage depends on their holiness.

4. Staudt writes: “Kasper has also been criticized by Edward Peters for his additional comment ‘I’ve spoken to the pope himself about this, and he said he believes that 50 percent of marriages are not valid.’ There may be at least some truth to this statement, no matter what the actual percentage is.” There are two problems with Stuadt’s gloss on my position.

Assertions regarding quality can admit of degrees of truth but not statements regarding quantity. If I come home from work after driving through a snowstorm and say “The roads are terrible”, the word terrible, being a description of quality, admits of degrees, allowing someone to remark that there is “some truth” to my description of the roads. But if I come home from work and say “My office is 42 miles from the house”, it makes no sense for someone to say that there is “some truth” to my claim. It would make even less sense for someone to say that my statement about mileage is somewhat true “no matter how far it actually is”. Kasper has made a numerical claim that 50% of marriages are invalid. I dispute his claim. I deny that his claim even could be “somewhat true”. And to suggest that Kasper might be correct no matter what the percentage of null marriages is, is nonsense.

5. Stuadt writes: “If we simply accept an adulterous relationship as normative (in divorce and remarriage), aren’t we caving in to a position that would quickly recognize these other ["same-sex marriages"] as valid?”

First, no one is advocating adulterous relationships as normative, so Stuadt’s phrasing, while objectionable, probably meant something else. But if he means that “acceptance” of divorce-and-remarriage logically demands acceptance of “same-sex marriage”, the reply must be, No it doesn’t. The Catechism of the Catholic Church, to name just one authority, allows for divorce and remarriage under some circumstances; but no circumstances will ever allow “same-sex marriage” to be approved by Catholic doctrine or law.

The above examples of imprecision in thinking might (might!) be okay in conversation, but in public writing, and for the effective public advocacy of Church teaching on marriage, much more exactness is required. + + +

Pontius Pilate describes up-coming crucifixion as ‘deeply regrettable’

Amid growing controversy over the planned crucifixion of Jesus of Nazareth, Roman procurator Pontius Pilate, who is on record as being personally opposed to the execution of the preacher Jesus, said in a statement released today that it is “deeply regrettable” that crucifixion agitators will proceed despite the fervent opposition by some local residents and students. But he continued, “Nevertheless, consistent with the commitment to free expression, including expression that may deeply offend us, the decision to proceed is and will remain theirs.” Pilate added, “I wash my hands of the whole affair.”

Sound familiar? Compare it to this report on Harvard President Drew Faust’s statement about the Harvard Black Mass set for tonight:

Harvard President Drew Faust, in a statement released Monday, said it’s “deeply regrettable” that the event’s organizer will proceed despite the fervent opposition by some local residents and students. “Nevertheless, consistent with the university’s commitment to free expression, including expression that may deeply offend us, the decision to proceed is and will remain theirs…” Faust said.

+ + +

Follow-up: Harvard President Drew Faust’s full statement is even more damning of her decision not to intervene. She knows what a horror this ceremony is, she has the power to stop it, and she expressly refuses. (Instead, she’s going to attend a local Holy Hour to show respect for the Catholic religion). I ask, since when is the right response to sin NOT to stop the sin but instead only to ‘make reparation’ for it? The right response to the sin of kidnapping is to release victims, not to hold them trapped while offering rosaries for freedom, no? The right response to pornography use is to stop using it, not to offer Holy Hours for the victims of sexual exploitation, no? So why is Faust’s attending a Catholic prayer service tonight the proper response to her hosting a Catholic hate fest today?

Faust’s actions make absolutely no sense to me.

Does Canon 1066 amount to a coin toss?

Canon 1066 (it seems out of fashion to quote canon law these days, but indulge me) states: “Before a marriage is celebrated, it must be evident that nothing stands in the way of its valid and licit celebration”. Cdl Kasper’s shocking assertion, which he claims is the pope’s view, that half of all marriages are invalid, would, if true, indicate that Canon 1066 is being disregarded on an unprecedented scale.

Canon 1066 does not mean, of course, that every officiating cleric guarantees the validity of every Catholic wedding, but it does, at a minimum, oblige officiants to make an assessment of the parties commensurate with the burden they are taking on, namely, that of forming a partnership of the whole of life ordered to the good of the spouses and to the welfare of children (Canon 1055 § 1). If, therefore, as Kasper claims, half of all marriages (or even half of all Catholic marriages) are null, then the pre-wedding inquiry conducted in accord with Canon 1066 is a statistically pointless exercise that could just as well be replaced with a pastor’s toss of the coin. “Heads I marry y’all, tails I don’t.”

I worked in tribunals for ten years. I saw hundreds of null marriages—not all of them Catholic, many not even Christian, but hundreds nevertheless. I need no more proof that there are far too many null marriages (including many between Catholics who married in Catholic rites) to let us ignore the great crisis in marriage today. But to parlay “there are too many null marriages” into “half of all marriages are null” seems like hysteria to me.

But maybe I’m wrong. Maybe Kasper (and the pope?) are right, maybe half of all marriages (or at least half of whatever kind of marriages the prelate has in mind) are null. What then?

Well, the first step (or the second, depending on whether one wishes first to know whether this dark view of marriage really is the pope’s) would be, I think, to ask for some evidence in support of such an astounding assertion. Is there a better time than now to present such evidence, if it exists? Surely those preparing for upcoming Synod on Marriage need to know whether the sacrament they are examining is being conferred invalidly as often as it is validly. But, if it turns out that there is no evidence for the claim that marriage is as often chimeric as it is real, then the immediate project shifts to one of repairing the damage done to the psyches of all those preparing for, or struggling in, marriage, damage done by telling such folks that their chances for nothing were as great as their chances for something.

Then, I trust, we can refocus on the real problems in marriage today and marriage law. Of which there are plenty.


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