Some problems with Cdl Scola’s ‘fourth suggestion’

Cdl. Angelo Scola of Milan (not a canon lawyer but appreciative of the connection between canon law and doctrine) is the latest high-ranking churchman to come out solidly against what Sandro Magister calls the Kasper-Bergoglio proposal in regard to Communion for divorced-and-remarried Catholics. Toward the end of his essay, however, Scola offers a ‘fourth suggestion’ for dealing with the annulment problem, namely, a non-judicial canonical process wherein bishops will decide on marriage nullity petitions. Scola’s idea, I suggest, underscores the point that the annulment process does not lend itself to easy reformation.

The main problem with Scola’s idea is not bishops serving as judges in marriage cases (such service is already authorized in cc. 1419 and 1425); the problem with Scola’s idea is something else. But before getting to the problems in Scola’s proposal, shouldn’t we first ask diocesan bishops how they might feel about being directed to decide marriage nullity cases?

Setting aside that most diocesan bishops have not looked at a canonical commentary or read a canon law article on marriage and annulments since they were seminarians, I strongly suspect that most bishops would strongly prefer not being required to choose between Mr. Smith (who is sure his marriage was null) and Ms. Smith (who is equally sure it was not); what prelate wants to be perceived as having been “pastoral” to the ex-Jones (who got their annulment) but “rigid” with the ex-Wilsons (who did not get theirs)? I’m serious, show of hands: how many bishops want to make those kinds of decisions, let alone make them on the scale that they will need to be made?

Comes now a rejoinder based on Scola’s proposal: let bishops appoint delegates for such a task. How convenient. But precisely here is the first of many reinventions of current tribunal practice that pervade Scola’s idea: tribunal judges already are episcopally-appointed annulment-deciding officers. Why should bishops invent new ones? And, speaking about these new annulment delegates: what kind of authority would they be exercising in the Church? It makes a difference (as we shall see). Would these delegates have to be clerics, degreed in canon law? If the answer to these latter questions is Yes, I must ask again, why simply reinvent the tribunal? If the answer is No, get ready for a whole new front on the power-of-orders vs. power-of-jurisdiction battle.

Turning to the actual process outlined by Scola, it recites (albeit tautologically) the importance of “fully respecting all the necessary procedures” and urges observing “formal methods of gathering and evaluating evidence”. It would make use of “qualified personnel like notaries as required by canon law”, demand written reports from the investigator and the defender of the bond, and let the petitioner (but not the respondent?!) make use of a canonical advocate. After the final decision either party could to appeal the decision to Rome. Is it not, however, obvious that this approach simply re-packages and re-markets the current tribunal process? Tribunals already use advocates, have evidence gathering techniques, employ assessor consultation, and rely on written briefs from parties and DOBs, they already have appointed decision-makers, require cases to be based on law and truth, and allow for appeals by either side. How does Scola’s proposal really change anything, except in failing to recognize the right of respondents to canonical assistance?

Could Scola’s new system serve the needs of justice? Well, I suppose, for it seems to have the basic requisites expected by natural law. But then, so does the tribunal. Why just re-label tribunal personnel and re-package tribunal procedures as some sort of “new and improved annulment process” when it’s not new, it’s not improved, and it might even be worse (in terms of respondent rights) than is the current system?

As I say, reforming annulment procedures, if reform is really what is desired, is not going to quick or easy.

Now, for the more technically inclined among my readers, let me note a few other problems with Scola’s idea.

First, it misses the fundamental orientation of the annulment process to questions of justice—an orientation inherent in nullity cases because they are investigating the validity of human contracts—when Scola points to what he thinks are parallel examples of streamlined, administrative (non-judicial) canonical procedures, namely, those “for the dissolution of a non-consummated marriage (canons 1697-1706) or for reasons of faith (canons 1143-50), or also the penal administrative procedures (canon 1720)” as if these show the soundness of administrative processes for marriage nullity petitions.

These examples cannot advance Scola’s proposal very far. A non-consummation case is a petition for a favor which of its nature is not owed in justice, this, in sharp contrast, as Pope St. John Paul II repeatedly pointed out, to an annulment petition in which nullity has been proven in accord with law. Privilege of the faith cases are based directly on divine (not natural) law have long been sui generis among matrimony related questions. They are, in any event, dissolution cases, not annulment cases, and so make questionable precedent for nullity cases. Penal cases, finally, which are actions in justice and which should correspond to natural justice, are (and have been for decades, fairly or otherwise) plagued with accusations of episcopal arbitrariness and lack of procedural transparency largely because they are not judicial in technique—hardly an impression I would think the Church wants to give in marriage cases (i.e., cases which impact tens of thousands of faithful).

Or again, as an example of imprecision that might escape the notice of non-canonists, Scola writes: “When the need presents itself and the spouses request an annulment, it becomes essential to verify rigorously whether the marriage was valid and therefore is indissoluble.” First, marriages are never, ever, ‘verified as valid’, and even if they could be so verified, mere validity does not make all marriages indissoluble—as the cases mentioned by Scola himself would show!—and finally, dissolubility and nullity are not the same things at all.

Or again, Scola thinks that aggrieved parties could appeal their cases to the Holy See. May I ask, exactly where to? If these are really administrative procedures, as Scola thinks, appeal would not be to the Rota (which mostly handles judicial appeals from tribunals), it would instead be cast as recourse to the bishop’s hierarchic superior, likely, the Congregation for Bishops. Does that overworked and understaffed office really want to be recipient of thousands of complaints against local bishop’s annulment decisions?

I hope these points suffice to show that genuine reform of the annulment process requires very careful study by very well-informed persons. My prayers go up for those charged with this task. + + +

Update, 23 SEP 2014: Cardinal Burke offers some similar thoughts especially toward the end of this interview.