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Why the gathering storm over divorce might be worse than was that over contraception

Interesting parallels are being suggested between, on the one hand, Paul VI’s dithering over contraception in the 1960s (which, though reversed by his reassertion of Church teaching in Humanae vitae, contributed to widespread repudiation of that teaching by Catholics), and Francis’ recent mixed signals (or what are widely perceived as mixed signals) over the future of Church teaching against divorce-and-remarriage and the reception of holy Communion. Notwithstanding some important differences between the two men and situations, I write to suggest that the stakes for all might actually be higher this time around.

Consider two points:

First, Church teaching against contraception had to be teased out over the centuries from natural law theory and what we call now ‘theology of the body’. It rests today largely on conclusions of logic, philosophy, and theology. Church teaching against divorce-and-remarriage, in contrast, is expressly proclaimed in the New Testament and any literate Catholic can read Jesus’ strong words about it in the Bible. This teaching was heatedly and repeatedly defended by the Church Fathers, was reiterated consistently in numerous Councils, and has been expounded by all major theologians.

Second, short of personal admission, there is no way to tell whether this Catholic couple or that is practicing contraception, and so there are virtually no ecclesiastical consequences possible in the external forum for disregard of Church teaching by pew Catholics. Indeed, with exceptions too rare to mention, there weren’t even official consequences for high-profile Catholics defending contraception in the ’60s. But cohabitation and post-divorce ‘marriage’, in contrast, are public acts falling squarely with the parameters of well-established (if inconsistently applied) public consequences (withholding of Communion being the best known). Millions of Catholics abide by this consequence. The millions of others who do not abide by it pretty much know they do not.

What does this mean?

It means, I suggest, that the complexity of the arguments underlying Church teaching on contraception allowed for the ecclesial equivalent of “plausible deniability” in regard to acceptance of that teaching by rank-and-file faithful, and the nature of the contraceptive act virtually excluded public enforcement measures. But Church teaching against divorce-and-remarriage is utterly obvious to any but the deliberately blind and the appropriateness of public consequences for public violation of that teaching has been unanimously upheld, and usually observed, for two millenia. Those factors combine to imply, I think, higher stakes in the divorce debate today than those confronting the Church over contraception a generation ago.

Now I think Church teaching against divorce-and-remarriage will, in the end, be squarely upheld in principle. My concern is different: what if Church teaching is duly upheld but, as happened after Humanae vitae, that teaching is allowed to twist slowly in the wind? For ecclesiastical officialdom to look the other way on contraception was, in a sense, possible; but for it to do so in regard to divorce, remarriage, and the reception of holy Communion would be immediately recognized as the practical abandonment of a major doctrino-disciplinary point.

Here we go again: more bad advice for tribunals

Forgive some impatience on my part if, in responding to the umpteenth criticism of annulments and tribunals, I begin by observing that it would be nice, really nice, if for a change critics themselves would show some understanding of what annulments are and what tribunals do before chastising both. Dr Richard Fitzgibbons shows little grasp of either.

For starters, Fitzgibbons’ statistical preamble to his essay is useless. I made this case in copious detail in my article (Annulments in America) which has been available on-line for 15 years. I have no patience for someone who recycles such shallow arguments without alerting his audience to qualified rebuttals of those exact claims.

Much of Fitzgibbons’ attack—pace a single sentence near the beginning, that is what Fitzgibbons’ essay amounts to—on annulments and tribunals is phrased in wimpy words such as “too often” X happens, and “some believe” Y is the case, or Z “might have been” better addressed. Good grief, is there any field of human science where such insinuations could not be cast? For that matter, of all human sciences, is there one more susceptible to “maybe”, “perhaps”, and “if” than psychology in general and marriage counseling in particular? Why level such language only at tribunals?

I’ll tell you why: because tribunals make easy targets for left and right alike in the Church. This, in at least three ways,

First, tribunals actually publish their statistics. Thus amateurs and dilettantes can easily find some tribunal stat or another, repeat it, and sound thereby informed. But, I wonder, do psychologists publish their statistics? Do marriage counselors? And even if they did, would one be able to conclude, say, that a psychologist with a 75% success rate (however that is defined) is better than a psychologist with a 55% success rate? Of course not, for “success” is dependent on far more factors than therapist skill. So again, what makes a ‘layman’ like Fitzgibbons think he can conclude anything useful about a complex technical matter in which he claims no training and based on statistics he obviously does not appreciate?

A second factor makes tribunals easy targets: they are bound by confidentiality in their work, ironically, the same kind of confidentiality that binds psychologists and marriage counselors in theirs. Tribunals cannot defend themselves against accusations of incompetence or injustice in concrete cases. Has Fitzgibbons never been reproached by a third-party for his handling of a marriage case that, based on his privileged information and technical expertise, he was very confident he handled correctly? If not, oh happy man! But if he has suffered such slings and arrows, might I suggest he consider the possibility that tribunals, too, might be privy to information—sometimes appalling information completely unknown to any but the couple, and maybe only to one party!—which information makes the canonical outcome of the matter obvious to a few but inexplicable to almost all others?

Tribunals are prone to attacks like Fitzgibbons’ for a third reason: unlike psychologists and marriage counselors, who have the option of telling a client “I’m sorry, but your attitude requires me as a professional to discontinue services”, and who in any case need never decide whether there is before them a marriage in the first place, tribunals are required to make a black-and-white decision in cases they must accept about whether the relationship before them is a marriage as proclaimed by Christ and His Church. The “out” that counselors have (basically, “Well, I did the best I could but they chose not to work out their differences”) is not available to tribunals. Tribunals are required by law to decide cases, not just treat them if they so choose.

Which brings me to the greatest flaw in Fitzgibbons’ essay and the most common flaw in such essays, namely, a gross misunderstanding of what an annulment is and what a tribunal does. Fitzgibbons’ variant on that tired theme is to imagine tribunals as some sort of canonical counseling offices to which, for example, only people who have “at least two years of effort and hard work” should be allowed access. Fitzgibbons would bar petitioners from filing cases “until there is clear knowledge as to how this person’s emotional weaknesses and conflicts contributed to the marital stress and the divorce.” Language such as this not only evidences zero knowledge of the canon law of marriage and nullity, but perpetuates the myth that annulments are “granted” to “deserving” folks, rather than upholding the Catholic and natural-law truth that annulments are to be declared between parties who meet the requirements of law. Period. Fitzgibbons actually refers to ‘legitimate annulments’ as acts of “mercy”! Folks, this is complete nonsense! What else can I say? Tribunals must render justice, according to law as best they can, to nice people and to creeps alike.

Deep breath time. Okay.

Do I think some annulments cases were decided incorrectly? Of course I do (both affirmatively and negatively, by the way, and not just in America). Do I think the annulment process could be improved? Of course I do (at every level in the Church). But suggestions to improve the tribunal process will not be found in essays that show no understanding of what annulments even are. Indeed, given the rush to repudiate tribunals unfolding in certain corners—part of a widening crisis of Catholic confidence in the Christ’s teaching on marriage itself—such suggestions aren’t just “not helpful”, they will actually make the problem worse.

Patristic ‘life raft’ language refers to Confession, not Communion

In his recent remarks on holy Communion for divorced Catholics civilly remarried outside the Church, Cardinal Kasper made use of the Patristic locus communis of a ‘second plank after the shipwreck of sin’ as a basis for giving divorced and remarried Catholics “not a second boat, but a life raft” in the form of holy Communion.

Now, I don’t claim credentials as a Patrologist, but I will say that every time I have encountered “secunda tabula” language, it has referred to Confession being available to sinners after Baptism, not to holy Communion being available to Catholics living in, among other things, pseudo-matrimony.

Three examples (my emphasis):

Summa casuum [de poenitentia] S. Raymundi de Peniafort [c. 1244] (Avenione: Mallard, et al., 1715) at 1, wherein “Quoniam (ut ait Hieronymus) secunda post naufragium tabula est culpam simpliciter confiteri.”

Council of Trent, Decree of Justification, n. 14: As regards those who, by sin, have fallen from the received grace … through the sacrament of Penance they shall have attained to the recovery … which the holy Fathers have aptly called a second plank after the shipwreck of grace lost (quam secundam post naufragium deperditae gratiae tabulam sancti patres apte nuncuparunt).”

Benedict XIV, const. Sacramentum Poenitentiae (1 June 1741): The Sacrament of Penance has been aptly called by the holy Fathers a “second plank” after the shipwreck of squandered grace.

Plainly, all of these ancient “second plank” phrases refer to Confession, not to holy Communion.

Does anyone know a Patristic source that uses “second plank” language in any context other than that of making sure that sinners know Confession is available for any sin repented of? Does anyone know of the Fathers using “second plank” language to approve of holy Communion for those who do not cease objectively grave public sin?

If so, please let us know. If not, I suggest caution in offering such arguments in the questions facing us today.

Follow-ups:

1. A friend in Patristics suggests “second plank” imagery to have originated with Tertullian, who used it to describe Penance: “Repent thee, and I will save thee; [cf. Ez 18:30, 32] … That repentance, O sinner, like myself (nay, rather, less than myself, for pre-eminence in sins I acknowledge to be mine [cf. 1 Tim. 1:16]), do you so hasten to, so embrace, as a shipwrecked man the protection  of some plank (*ut naufragus alicuius tabulae fidem). This will draw you forth when sunk in the waves of sins, and will bear you forward into the port of the divine clemency” (De paen. 4). * The Oxford (Protestant) editor of the ANFC series notes here that ‘this expression soon passed into Theological technology, and as ‘the plank after shipwreck’ is universally known.”

2. Tornielli has a fuller narration of Kasper’s remarks in which he claims “some local Churches introduced a practice according to which, Christians who separated from their still living partner and had entered into a second union, did not after a certain period of penance get to marry a second time (in other words they didn’t get a new ship), but they were given a life raft in the form of communion. Origen, Basil the Great and Gregory of Nazianzus all spoke of this.”

So here are the questions: (1) where do Origen, Basil, and Gregory speak of this; (2) what exactly was the practice they were describing; and (3) what did they actually conclude about it?

Reminder, as noted here, there was considerable turmoil in the ancient Church over “those who had gone on to second marriages”, about whether such marriages were really marriages, and about whether those in second marriages could approach the Table of the Lord. That phrase never referred, however,  to divorced-and-remarried Catholics, but to Catholics marrying a second time after the death of a first spouse! It was eventually found that such second marriages were true marriages, sacramental for baptized parties. But such approbation was never, directly or indirectly, accorded to divorced-and-remarried Catholics.

No ‘stroke of a pen’ will change the question underlying the problem of divorce and remarriage

Dr. Nicholas Cafardi writes:

Nothing, no clear theology, no gospel teaching, nothing except hidebound tradition requires that a Catholic marriage can only be annulled through a complicated judicial process. If he wanted to, Francis could reconsider this judicial function of the church, and instead delegate authority over the annulment of first marriages to the proper pastor of the people involved. Take what the church has made a complicated judicial process and make it into a pastoral problem with a pastoral solution. Again, as sole legislator, Francis could reassign this legal responsibility to the pastor with a stroke of the pen. And note, this does not require a change in our theology, only a change in jurisdiction.

Good grief. Where to begin?

Such casual talk about marriages “being annulled” is okay in chit-chat, but scholars discussing—to say nothing of lawyers attacking—the annulment process itself must, before anything else, describe that process accurately: Tribunals don’t do anything to a marriage, rather, they conclude something about a marriage. Grasp that, and one has the essence of the thing.

Long story made short, every society needs a process whereby agreements apparently entered into by its members can be assessed for their ‘validity’, that is, every society needs a way to determine, objectively and fairly, whether an agreement seemingly made between two people qualifies as a contract enforceable in that society. This is Contracts 101, of course, and has not a whit to do with theology or Gospel teaching; these are purely questions of nature and justice.

Now, to describe marriage as a “covenant” (c. 1055 § 1) builds upon, but does not erase, the fact the every marriage is essentially an agreement between two people, that is, every marriage is, before it is anything else, a contract. But, precisely as a contract, it is possible that two people might desire to enter, and might even think that they have entered, that contract known as marriage, when, as a purely legal (specifically, canonical) matter, they have not done so. And if they have not entered into that contract known as marriage, then they are not married in the eyes of that society. Period.

The only question treated by a tribunal is this: has the couple before it entered into that contract known as marriage? If they have done so, certain consequences (some, but not all, derived from our theology) flow; if they have not done so, certain consequences (some, but not all, derived from our theology) flow. Whether the couple chose wisely in marrying and lived happily in it, or whether they betrayed each other repeatedly and were lucky to escape with their sanity, is irrelevant to the question that a tribunal has the expertise and responsibility to decide: whether this couple actually entered marriage. Of course a host of vital pastoral questions flow from the tribunal’s answer, but that does not transform the tribunal (or whatever agent or office someone thinks can be assigned this judicial function with the stroke of a papal pen) into a pastor or therapist. To even suggest otherwise shows little understanding and/or a poor regard for the multiple realties (moral, psychological, emotional, and juridic, etc.) that make up the human person who is the object of the Church’s solicitude.

Bottom line, two people are either married or they aren’t. If someone has ideas toward improving how the Church determines who is married and who is not, I’m all ears. But if anyone thinks that what the Church really needs is a palatable way to avoid treating married people as married—and brother, a whole lot of folks are pushing that line these days—they need to think again. Seriously.

Abp. Martin’s badly-made point might merit a look

The recent remarks of Dublin Archbishop Diarmuid Martin on same-sex unions, as reported, seem about as badly phrased as can be without their formally running afoul of canonical norms on Church teaching, but some of the criticisms of the prelate’s remarks themselves rest on, I suggest, a debatable interpretation of an important Church document in this area.

Martin’s assertions that same-sex couples can, for example, “celebrate their togetherness, their love for one another” sadly lack vital distinctions and important nuances, and his claim that the simple civil registration of same-sex unions “doesn’t necessarily mean that a civil partnership is somewhat of less value than marriage”, if meant the way it came out, is simply wrong: if laws on the civil registration of same-sex unions do not stop short of equating them with marriage, then they are gravely duplicitous and must be opposed.

But notwithstanding Martin’s flawed articulation of Church teaching in these areas, there might yet be a way that civil registration of same-sex unions does not run afoul of Church teaching, and I suggest this interpretation while being well aware of CDF’s Considerations (2003).

As I outlined almost one year ago, the CDF document Considerations was so thorough (and so thoroughly correct) in explaining why persons of the same sex cannot (not should not, but cannot) marry each other that the dicastery refused even to use the phrase “same-sex marriage” (as if such a thing could ever exist) and referred instead to such relationships as merely same-sex or homosexual/lesbian “unions”.

But, as I recall, a decade or so ago, when Considerations was published, “same-sex union” and “same-sex marriage” were effectively identical concepts and to favor or oppose one was to favor or oppose the other. In the years since Considerations was released, however, the discussion seems to have evolved: today, I think, “same-sex unions” and “same-sex marriage” are distinguishable phenomena and, while “same-sex marriage” can never, ever, garner legitimate Catholic support, “same-sex unions” might, might I say, be approved or at least tolerated depending on what exact terms and conditions are associated with such unions. If this is correct, then the CDF rejection of “same-sex unions” in 2003 might not be where the “same-sex marriage” line should be drawn in 2013, and Martin’s badly-made point about some sort of civil recognition being available for “same-sex unions” might be defensible after all.

I offer this interpretation of CDF’s language quite open, of course, to its rebuttal, either on principle grounds (essentially, we at CDF said “unions” then and we mean “unions” now) or on pragmatic grounds (the prudential objections to recognizing “same-sex unions” exceed the advantages). But absent such rebuttals, let me say, I don’t like seeing Church teaching saddled with language that worked well in one day but might not work well in another, or watching Catholic politicians painted into corners not of their own making, unless such doctrinal language really means what it says—in which case, of course, its truth binds Catholic consciences and the consequences of disregarding it go eschatological.

The human price of theological chatter

I’m just old enough to remember when Catholic theological rumination, especially moral speculation, was restricted to scholarly journals and professional conferences. The understanding in those days was that, whatever merits the latest theological or moral theories might enjoy, it was inappropriate for experts to parade such novelties before rank-and-file faithful lest they jump to premature or erroneous conclusions thereon.

In our day, however, the internet, to a degree that dwarfs the impact of the printing press in its day, has destroyed the old physical and technological restraints on the dissemination of doctrinal or disciplinary speculation. As a result laymen (in the sense of that word implying non-experts) are at the mercy of any Catholic intellectual—and for that matter of any Catholic prelate—who thinks that swaying public opinion in this direction or that is a good way to prove the soundness of this idea or that.

Well, as a Catholic academic with a prominent website and an easily locatable email address, I’m here to tell those recently tossing novelties out of ivory towers or chancery clerestories that real people are being hurt by such conduct.

Of many examples, and I paraphrase for privacy: “Dear Sir, I recently heard that [divorced-and-remarried] Catholics can go to Communion again. This is great news. Can you tell me where this applies? I am glad the Church has changed. When does the new rule go into effect? Thank you.” Where, I wonder, does one begin to sort out the undemonstrated assumptions and faulty conclusions packed within this admittedly honest and polite query, a query prompted, obviously, by all the attention being paid to calls (some of them sporting the veneer of scholarly research) for divorced-and-remarried Catholics to be re-admitted to holy Communion?

Well, I replied saying there has been no change in the rules on reception of Communion by divorced-and-remarried Catholics, and added that, in my opinion, there would be no change on that point because Church teaching (on marriage, Communion, etc.) had not changed, and thus rules based on those teachings were not likely to change either. The reply note saddened me: “Glimmer of hope gone.”

In short, a badly-catechized Catholic takes the widely-reported discussion of changing the rules on reception of holy Communion—a discussion that is often scarcely distinguishable from agitation for changes in such rules—as “hope” (whatever that means in this context) and, when informed that no such change has been made, and that such a change (in my opinion at least) is not likely to come about, despairs!

I have invoked many times Canon 212 § 3 on the canonical freedom to exchange opinions in the Church. But Canon 212 § 3 is not a license to exploit the faithful in pursuit of one’s ecclesiastical agenda. Promotion of personal views in the Church must be carried on, for example, “without prejudice to the integrity of faith and morals . . . and attentive to the common advantage and dignity of persons.” Treating pew Catholics as pawns in a campaign to rewrite Church teaching on the permanence of Christian marriage and/or the reception of Christ in the Sacrament is hardly to respect “the common advantage and dignity of persons.”

Not where I come from, it isn’t.

Pope Francis on casuistry and faith

Many people are, I fear, going to read the pope’s recent comments on casuistry and faith in quite a different sense than they were, I think, intended.

Francis is critical of Christians who ask only “if it is licit to do this and if the Church could do that,” and suggests that such phrasing implies either “that they do not have faith, or that it is too weak”. But I don’t think that the pope means thereby to criticize, say, Pope John Paul II, who wrote “the Church has no authority whatsoever to confer priestly ordination on women”—even though that is patently a statement about what the Church can and cannot do. Francis knows, of course, that John Paul II did not “only” speak about what the Church could or couldn’t do, and has himself reiterated John Paul II’s conclusions against such ordination. So Francis can’t be condemning en masse questions about moral theology or ecclesiology.

No, what comes to my mind while reading Francis’ words in context were not examples of persons who ask “only” whether it is licit to do this or that or only whether the Church has such and such power (for few people are so narrow as to have only such concerns), but instead, the number of times over the years that persons have framed questions to me such as: where does canon law expressly prohibit contraception? (no where); when has a pope solemnly condemned the Pill? (never); what paragraph in the Catechism says I can’t attend a Catholic’s wedding outside the Church? (none); or where did Vatican II condemn ‘same-sex marriage’ (it didn’t).

In each instance (I could recite many others) wherein I answered these questions negatively—as one, who strives for the precision that truth requires, must answer them—that negative reply is triumphantly taken as endorsement of a license to act oppositely of what the Church unquestionably holds and believes in such matters! My immediate attempts to point out that a narrow reading of ecclesiastical documentation does not always get at the fullness of the Catholic faith which believing Christians must embrace, are dismissed as personal opinion.

We must not conclude that persons asking legal or moral questions or reaching faulty conclusions thereon necessarily have no faith, or have only weak faith, (though again, a superficial reading of the pope’s remarks could imply to some that he claims such powers of discernment), but we should always underscore for such inquirers that disciplines such as moral theology and ecclesiology serve Christ and his holy Church, not vice versa.

You see, caricatures notwithstanding, no one knows better than do good canonists or sound moralists that Revelation is not liable to loopholes and that no one can out-think Jesus.

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