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Bp. Tobin’s thoughtful column deserves some thoughtful replies

Bp. Thomas Tobin (Providence RI) has written a thoughtful column on the debate surrounding the admission of divorced and remarried Catholics to holy Communion. The column deserves a careful reading and, too, I think, some careful responses. In the interest of space, I will not comment on the many passages I agree with, nor on all of those I disagree with. The bishop’s words are in italics, my responses in plain font.

The challenge for the Church, of course, is how to maintain and proclaim the irrefutable teaching of our Lord Jesus that marriage entails a sacred and permanent bond between husband and wife, while also providing spiritual care for those Catholics who have fallen short of the ideal.

Imprecision in speech always hampers discussion, but all the more so in controversial and technical matters. In this context we are not talking about Catholics who have “fallen short of the ideal”—such a phrase describes every Catholic on earth!—but rather about Catholics who, in choosing to civilly remarry after divorce, have acted directly contrarily to “the irrefutable teaching of our Lord Jesus” and against the discipline of his holy Church. This language is not to judge persons but to describe their actions accurately.

I turn to the incident in the Gospels in which Jesus and His followers were walking through a field of grain on the Sabbath and because they were hungry, began to pick and eat the grain, a clear violation of an important Mosaic Law. … But in response, Jesus said, “The Sabbath was made for man, not man for the Sabbath” (Mk 2:23-28). In other words, while not denying the validity of the law, our Lord clearly placed it in a “pastoral context,” exempting its enforcement due to the human needs of the moment.

I am uncomfortable when proponents of controversial positions take a Scripture passage and invoke it talismanically. I always wonder, why were not other equally relevant passages noted, say, verses about not one jot or tittle of the law being abolished or about the need for disciples to be faithful in all things great or small, not to mention passages describing spouses who divorce and marry others as adulterers? At the same time, one wonders if this verse or that supports disregard of a given law, might it also support disregard of other laws? Does Mark II let us disregard, say, the Fourth Commandment or the Eighth? If not, why not?

I understand completely the arguments against taking a more “pastoral approach” to this topic, primarily that to do so would betray the sacred teaching of Christ we are obliged to uphold.

Several parts of his column leave me unconvinced of the bishop’s “complete” understanding of this matter, if only because there is scarcely any allusion to the fact that this issue turns not simply on the laws of marriage (which no one with a straight face disputes) but also on various sacramental laws surrounding the Eucharist, which laws many are, whether they know it or not, directly challenging.

But at the same time, the Church has taught the pre-eminent value of receiving the Holy Eucharist, and I keep hearing the words of Jesus about the Eucharist, words that are just as valid and important as His words about marriage: “Unless you eat the flesh of the Son of Man and drink his blood, you do not have life within you.” (Jn 6:53).

Agreed. See also I Corinthians XI: 27-30.

I often think about, and truly agonize over, the many divorced Catholics who have “dropped-out” of the Church completely, as well as those who attend Mass faithfully every Sunday, sometimes for years, without receiving the consolation and joy of the Holy Eucharist.

See what I mean about imprecision in speech hampering discussion? Divorced Catholics are not prohibited the Eucharist. Divorced and civilly remarried Catholics are prohibited the Eucharist. Time and again, defenders of traditional discipline in this matter are wrongly portrayed as wanting to see holy Communion withheld from divorced Catholics.

And I know that I would much rather give Holy Communion to these long-suffering souls than to pseudo-Catholic politicians who parade up the aisle every Sunday for Holy Communion and then return to their legislative chambers to defy the teachings of the Church by championing same-sex marriage and abortion.

Bp. Tobin speaks with real credibility here, being a bishop who takes a dim view of reception of holy Communion by Catholics “who persist in manifest grave sin” (Canon 915), having in mind pro-abortion legislators, etc. What he misses, though, is that divorced and remarried Catholics are prohibited holy Communion under exactly the same law as are pro-abortion legislators! Exactly the same. See what I mean about wider questions of Eucharistic law being inescapably involved in this marriage and divorce debate?

Can we at least think about simplifying the annulment process … Can we eliminate the necessity of having detailed personal interviews, hefty fees, testimony from witnesses, psychological exams, and automatic appeals to other tribunals?

Sure. A few thoughts toward thinking those things through: (1) personal interviews are not required under canon law, but they are offered as a help to advance petitions that would otherwise surely fail for lack of clarity in written answers; (2) “hefty fees” are not charged, not even in Providence, which makes annulment fees optional and, even if collected, cover only one-sixth* of that tribunal’s expenses; (3) testimony from witnesses is not required, but most petitions will fail for lack of evidence without them; (4) psychological exams are not required by canon law; and (5) automatic appeals are required by Rome, and I for one would welcome Tobin’s weighing in against them, as have many canon lawyers over the decades.

In lieu of this formal court-like process … can we rely more on the conscientious personal judgment of spouses about the history of their marriage (after all, they are the ministers and recipients of the sacrament!) and their worthiness to receive Holy Communion?

Several issues are confused in this passage, but to take only one, let’s agree that when men may be trusted to be knowledgeable and unbiased judges of their own cases, we may trust them to make judgments about the binding character of their wedding ceremonies. Till then …

And don’t we already offer Holy Communion to other individuals whose relationship with the Church is impaired, such as Orthodox Christians?

Everyone’s relationship with the Church is “impaired”, so ‘impaired relationship’ is not, standing alone, a bar to holy Communion. The Orthodox can be admitted to holy Communion under Canon 844 § 3, a norm wholly irrelevant to the situation of divorced and civilly remarried Catholics; if, however, a Catholic minister knew an Orthodox Christian to be ineligible for Communion under Canon 915 (say, because he or she was a notorious pro-abortion legislator or were divorced and civilly remarried), it would be wrong to administer holy Communion.

It is important that any “pastoral approach” to divorced and remarried Catholics be adopted by the Universal Church and not attempted at the level of national, diocesan or parish churches. To impose local solutions to this widespread problem would be completely dishonest and misleading, causing only confusion and division.

Amen to that.

There are many other Church leaders, including our Pope and bishops and theologians, who are a whole lot smarter and holier than I am, wrestling with this issue. We should pray fervently that the Holy Spirit will guide their discernment.

Amen to that too. + + +

* The 2012 CLSA Proceedings reports, at p. 414, that Providence collected $ 58,000 in tribunal fees against incurring $ 307,000 in expenses. So, I guess that’s more like one-fifth, eh?

Cohabitation and canonical form

The latest tizzy is over Pope Francis’ plans to preside at the weddings of several Roman couples, including some couples who have been cohabiting for lengthy periods. There are two perspectives from which to look at this news, one canonical, one pastoral.

Canonically, this is a non-issue. No divine, natural, or canon law impedes a wedding between cohabiting persons (cc. 1083-1094) and therefore the fundamental right of the faithful to the sacraments in general (cc. 213, 843) and to marriage particular (c. 1058) should prevail in such cases. Unquestionably, these couples can, and must be allowed to, wed.

Pastorally, however, this might be a bigger deal.

Many parishes and dioceses have developed practices (even formal policies) against offering weddings to cohabiting couples. While, as one should conclude from the above, such approaches have always rested on canonically thin ice (cc. 838, 843), they seemed, in some cases at least, to have been pastorally successful in getting couples to realize that marriage (as opposed to concubinage or even just regular pre-marital sex) is a momentous step to be undertaken by those with more than a passing awareness of what it means. Whether the pope’s action will make it more difficult for priests and bishops to persuade cohabiting couples to approach their wedding as a life (including life-style) changing event remains to be seen.

Of course, if canonical form were not required for the validity of Catholic weddings (cc. 1059, 1108), then cohabiting Catholic couples could be invited to enter marriage—presumptively valid, sacramental, indissoluble marriage—by any public act, whereupon the Church would simply record that fact and recognize, as she should, such couples as married; meanwhile, those couples desiring a “church wedding” could be expected to demonstrate a higher level of commitment to preparing for that wedding appropriately. A no-cohabiting prerequisite could easily be made part of such preparation and no one’s rights to the sacraments or to marriage would be impinged thereby.

If canonical form were not required for validity.

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. + + +


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