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A couple notes on John Allen’s notes

John Allen, semper legendus, has several interesting notes on the Synod. I react to just a few, modo Fr. Z.

Allen: An annulment is a declaration that even though two people had a Church wedding [careful: a ‘Church wedding’ is not a prerequisite for an annulment petition, tribunals hear many non-Catholic cases], the sacrament of marriage [careful: annulments cases are about validity, not sacramentality!] didn’t exist because one or more of the tests for validity wasn’t met [careful: tribunals don’t prove marriages valid, they find some marriages null]. People seeking one go through a detailed process under Church law that some find cumbersome, lengthy, and invasive, not to mention occasionally [careful: very, very occasionally] expensive.

Allen: Erdő floated the idea of creating an “extra-judicial” process, allowing bishops to issue an annulment by administrative fiat without the necessity of a legal verdict [that idea addressed here], in order to speed things up. During a Vatican news conference, Erdő said he included the idea in his talk because many bishops’ conferences around the world had suggested something like it, suggesting fairly strong support. [Interesting: to me, that reads as if the canonist included the idea because so many people are talking about, not because it’s necessarily good in itself.]

Is reception of Communion doctrinal or disciplinary?

In a recent brief interview Washington Archbishop Donald Cdl. Wuerl stated: “The reception of Communion is not a doctrinal given, it’s a pastoral application of a doctrinal position” (0:30). Distinguo.

Preliminarily, Communion reception (an external activity) is not by its nature “doctrinal” (as in, propositional), so the cardinal’s comment, as it stands, informs the practical debate but little. If, however, the prelate’s point was—and I rather think it was—that questions of Communion reception do not turn on doctrine, then I think that claim is often (not always, but often) wrong. Consider three cases.

(a) The question as to whether non-fasting Catholics may be allowed to receive Communion is clearly practical and pastoral;

(b) The question as to whether non-Catholic Christians may be allowed to receive Communion is, it seems, partly pastoral and partly doctrinal; and

(c) The question as to whether non-baptized persons may be allowed to receive Communion is, I think, entirely doctrinal.

Disciplinary norms (canons) touch all three reception questions (see cc. 919, 844, and 842 respectively) but the mere fact that canons regulate all three activities does not render all three questions disciplinary (or for that matter, doctrinal). What must be appreciated by discussants is whether doctrine underlies the disciplinary norms. Sometimes doctrine is not involved; sometimes doctrine is involved in part; and sometimes doctrine is the fundamental basis of the discipline in question.

I have argued from the outset of this debate that the reception of holy Communion by divorced-and-remarried Catholics raises fundamental questions of doctrine not simply about marriage, but also about the Eucharist and about the sacrament of Confession.

Cdl. Collins’ small, but very good, point

Commenting on the various problems associated with divorced-and-remarried Catholics receiving holy Communion, Toronto Archbishop Thomas Cardinal Collins makes a small but good point (actually, he makes several good points, but I will underline just one): “There are many reasons why a Christian might choose not to receive communion. If there were less pressure for everyone to receive communion, it would be some help to those who are not in a position to do so.”

Just so, as I have argued for some years now! Current ecclesiastical requirements on the Communion fast are at an all-time low. As a result Catholics with guilty or doubtful consciences are left with no way to avoid notice if they do not receive Communion.

The Communion fast should be reformed to require at least three hours of fasting for reception at any Mass that one is required to attend (for most of us, that would be Mass on Sundays and holy days of obligation).

Lighter fare: can bad Latin save a papacy?

I got an odd one a few days ago (okay, I get lots of odd ones, but this one kinda struck me), namely: that Pope Benedict XVI’s resignation was invalid because of mistakes he (allegedly) made in the Latin of his resignation letter. My correspondent claims two medieval Church laws in support of the claim, one of which I could track down: Lucius III (reg. 1181-1185), dec. Ad audientiam, c. 11, X, de rescriptis, I, 3 (or Friedberg 20 fbo those for whom QLD citations are impenetrable).

Now, granting that Ad audientiam does attach negative canonical consequences to bad Latin, the context of that question was documents whose Latin was so bad it that raised questions of authenticity (this, of course, being a practical concern in an age of ecclesiastical forgeries). Looking lightly at some commentary on Lucius’ decretal (always fun to have an excuse to do that!), it seems that debates arose over how bad ‘bad’ needed to be before it was too bad, over what kind of bad could be ignored or rehabilitated, and so on. Interesting stuff, granted, but it’s all moot.

When the great Gasparri prepared canon law for its first codification at the beginning of the twentieth century, he had before him, among other things, the whole of Gregory IX’s decretal law (which contained Lucius’ letter on bad Latin along with nearly 2,000 other provisions on nearly 200 other canonical topics). And guess what? Ad audientiam did not make it into the 1917 Code, although almost every other norm de rescriptis did, in some form or another, get carried into codified law. Nor was Ad audientiam resurrected for the 1983 Code.

What the 1983 Code does say, as did the 1917 Code, is this: “Only those laws must be considered invalidating … which expressly state that an act is null …” (c. 10, olim c. 11).  Because no canon of the 1983 Code, under which Benedict XVI submitted his resignation (c. 332 § 2), addresses the quality of the Latin used in papal documents, let alone does any canon make the Latinity of papal documents go to their validity, I say, odd question answered: bad Latin does not mean that one must remain pope.

PS: Now that we’re thinking about it, winking at bad Latin (assuming btw that Benedict’s was bad Latin, I wish I could write it as well!) probably makes sense these days. Consider: when the 1983 Code came out, it was marred by more than 100 typographical errors. I would hate to think we’ve all been spinning our canonical wheels since then!

PPS: Don’t even ask about mistakes on the Vatican website.

What to know before asserting that a typical annulment ‘makes no sense’

Misunderstanding—sometimes seasoned with plain ignorance—about canon law, annulments, and tribunal work is common among Catholics and pervasive among non-Catholics. What is unnerving to see, however, in the wake of Cdl. Kasper’s call for holy Communion to be administered to those living in “public and permanent adultery” (CCC 2384), is how high up in Church life such problems apparently reach.

In his latest remarks on annulments, Kasper says: “There are situations in which annulments are possible. But take the case of a couple with ten years of marriage, with kids, which in the first years [was] a happy marriage, but for different reasons fails. This marriage was a reality and to say that it was canonically null makes no sense.”

Taking the cardinal’s words at face value, he flatly rejects (for it “makes no sense”) declaring null any putative (a term Kasper does not use, but which I will discuss below) marriage if it seemed happy for a time, produced children, and lasted ten years. Let’s look at these factors.

Though some these days are put off when canon law is quoted in correction of canonical errors, nevertheless, a legal principle from the thirteenth century is important here: Non firmatur tractu temporis quod de iure ab initio non subsistit, or, “What is null at the start does not become valid with the passage of time.” Regula Iuris XVIII (1298).

The passage of one day, one year, ten years or thirty since the wedding does not make a null marriage valid, and one need only glance at, say, Canons 1156-1160 to see this principle being honored in modern marriage law. Indeed, the Roman Rota often rules for nullity regarding putative marriages that lasted far in excess of ten years. Does Kasper think those Rota decisions “make no sense”? Furthermore—though it never occurred to anyone that a couple’s having children is proof that they are married and so no pithy phrase is available to refute the claim—the Roman Rota often finds null putative marriages that produced many children. Does Kasper think those decisions “make no sense”?

That leaves, then, only Kasper’s objection to annulments for couples whose marriages seemed “happy” for a few years. At this point, Kasper’s unawareness, or avoidance, of the notion of “putative marriage” prejudices his formulation of the problem.

Long story made short, a putative marriage is a union that, once entered into in good faith (by at least one party), looked like a real marriage (1983 CIC 1061 § 3). Used this way, the term “putative marriage” describes the vast majority of “marriages” that are later proven to have been null and helps one avoid mis-thinking that declaring a “marriage” null does something to a marriage as opposed to finding out something about a union. It’s a fine point, to be sure, but failing to advert to it, as Kasper consistently fails to avert to it, prejudices the formulation of this debate.

Notice, every time Kasper describes the union above, he calls it a “marriage”. Thus Kasper’s audience is set up to react negatively when, per the prelate’s description, a marriage that was happy, a marriage that produced children, a marriage that last ten years, is found null, for indeed, as Kasper’s audience rightly senses, a “marriage” can never be found null! What he does not alert them to, though, is the possibility that a putative marriage could be found null.

I realize, of course, that using technical vocabulary can be practically and pastorally cumbersome. In horse-shoes and in daily life, “close-enough” is usually good enough. Nevertheless, in contested matters of major significance, those who seek to influence public understanding of issues and public policy in regard to those issues need at least occasionally to acknowledge that some things are more complex than their phrasing seems to admit.

More confusion about sacramentality, and then some

The redoubtable Sr. Mary Ann Walsh, rsm, late of the USCCB, has, I am sorry to say, published in America a muddled overview of options for divorced-and-remarried Catholics. Let’s try to sort some of it out.

First—and I don’t mind repeating this till my dying day—annulments are about the validity of marriage, not about sacramentality. Walsh muffs this crucial distinction at least five times in her essay.

There are millions of presumptively valid marriages out there (untold numbers of which were entered into with the Church’s express or implied authorization) that are not sacramental. Sacramentality is a consequence of the parties’ baptismal status—not about capacity for, consent to, or observance of ‘form’ in, marrying. Annulments look only into the latter three points for only they impact the validity of marriage. The distinction between validity and sacramentality in marriage is vital not only for clear thinking about the annulment process or pastoral preparation for marriage but also for the Church’s wider social defense of marriage as a natural institution (a defense that collapses if the Church is restricted to defending only in-house religious ceremonies). Anyone who repeatedly confuses validity and sacramentality of marriage cannot usefully opine about the annulment process.

Second, Walsh’s comments on “internal forum” fall purely on her recurring-but-mistaken restriction of that process to those whose marriages might have been “sacramental”, but her comments about, say, (what canon lawyers view as) “morally uncitable” respondents evidence no awareness on her part that tribunals have dealt with this and many other issues for decades. Yet again, we see advice on complex issues of law and justice being casually offered by those with little or no real experience working within the Church’s legal system and thus, with little or no sense of what is, and often what is not, actually involved in the issues they see.

Third, and perhaps most shockingly, Walsh advocates what is (alleged to be) the Orthodox Church’s approach to divorce and remarriage (basically, allowing divorcees to go through low-profile subsequent weddings and then to live as married) as if that approach were remotely compatible with Catholic teaching on marriage and sexual morality—let alone in accord with Christ’s own words on about those who divorce spouses and marry others! How the quiet ceremony envisioned by Walsh rehabilitates what the Catechism of the Catholic Church describes as “public and permanent adultery” (CCC 2384) completely escapes me.

I need hardly say it, but, of course non-canonists may, and some of them should, make suggestions for reform of the annulment process, for pastoral outreach to those in irregulars unions, and for the care of Catholics and other Christians in valid if non-sacramental marriages. But such suggestions need to show real understanding of the many issues that most pastors and canonists take for granted in such matters. Lest we spend so much time reinventing the wheel.

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.

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