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The mid-air marriage gets muddier

Popes on planes aren’t supposed to be a setting from which to draw fodder for canon law essay exams, but as far back as Pope Benedict XVI, such flights have occasioned more than their fair share of papal words or actions carrying canonical implications but undertaken with little apparent advertence to canon law.

Let start with some fact questions in regard to the mid-air marriage recently officiated by Pope Francis. It is emerging that maybe the wedding wasn’t as spontaneous as reported, that maybe the happy couple were not “astonished” at the pope’s allegedly sudden idea, and that maybe the ‘Here?!’ and “It was a great surprise” portrayals were expected.

Last month, in an interview published in emol.com, Podest and Ciuffardi, picked to serve on the cabin crew for the papal visit, talked about their civil marriage from some eight years ago (which they had been too busy to convalidate), and stated that they “both hope that in January this delayed [wedding] plan can finally take place on the plane and be officiated over by none other than Pope Francis himself. ‘We would like it. This is our place, our second home, it is where we feel secure.’”*

C’mon, someone was obviously planning something. It would be interesting to know who and what.

In any event, a slurry of canon law exam questions can be drawn from this event (in light of other facts, assuming they are facts (see my no. 3 to the right), as discussed here), including:

— Defend the assertion that “convalidation” in a lack of form situation differs from a “wedding” only in regard to accidentals. Be sure to discuss Canon 1160.

— Discuss whether the official minister at a Catholic wedding can serve as one of the two other “witnesses” for purposes of canonical form (Canon 1108).

— Explain how the manifestation of consent to marriage is be “asked for and received” per Canon 1108 and the Rite of Marriage.

— Discuss how attention to various norms for the liceity of weddings/marriages contribute to the Church’s pastoral responsibility teach the faithful about the importance of marriage. Include at least three examples.

— Discuss the difference between “convalidation” and “radical sanation”. Include in your answer whether witnesses are required for sanations and whether consent is renewed and accepted in sanations.

— Discuss the canonical and pastoral differences between an ecclesiastical authority figure’s disregarding of the law versus one’s dispensing from the law. Give indicators by which the two actions might be distinguished. You may assume a Canon 91 actor.

— Challenge or defend  the continuation of the requirement of canonical form for marriage. If you challenge form, account for Cdl. Ratinger’s 1994 remarks on same; if you defend form, account for its being the first step in the sequence that led to the ‘mid-air marriage’ case of 2018.

You have one hour. Good luck. + + +

* Ambos esperan que en enero próximo este postergado plan pueda finalmente concretarse sobre el avión y dirigido nada menos que por el mismísimo Papa Francisco. “Nos encantaría. Es nuestro lugar, es nuestra segunda casa, es donde nos sentimos seguros”. (My trans.)

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The question in Lincoln

This is an odd one.

(Yes, a lot of my blogs could start that way. But this is an odd one, nonetheless.)

Back in 1996 then Bp. Fabian Bruskewitz of Lincoln levied an automatic interdict (which after one month automatically escalated into an excommunication) against a long list of suspected canonical offenders, including members of Nebraska “Call to Action”. His action struck me at the time as a mostly-rightly-intentioned (for who can doubt that Catholics belonging to, say, Planned Parenthood deserve excommunication?), but partly-wrongly-implemented (for how can pre-teen girls in a service club suffer excommunication for anything?), exercise in episcopal authority on behalf of Catholic truth. Reconstructing, however, the specifics of what happened to whom in that case, who defended the action (at what level and on what grounds), and who criticized it (with what degree of persuasiveness) is not an easy task and I will not attempt it here.

But now it seems that the current bishop of Lincoln, James Conley—a prelate with a reputation for doing things right—has “extended an offer to lift the excommunication of [Lincoln area CTA] members on an individual basis while leaving the decree in place against membership in the organization.”

This is where things start getting odd.

In an apparently leaked letter, Conley writes: “I have been clear from the beginning that no Catholic should become a member of Call to Action. I believe it poses a danger to the faith. However, I am willing to consider rescinding the excommunication in individual instances where members, currently not prepared to leave CTA, reaffirm their commitment to the full teachings of the Catholic Church.” Hmm.

Conley has apparently proposed that “those who wished to remain in the organization but have the excommunication rescinded would together, along with the bishop, profess the Nicene Creed and the Easter Vigil affirmation of faith.” Conley would accept that profession as “thereby affirming the Catholic faith as received by the Catholic Church and rejecting positions held by Call to Action that are contrary to received Catholic doctrine.” At the same time, however, “there was mutual understanding that no one would be required to reject certain [CTA] positions [contrary to Church doctrine].”  Hmmmm.

The inevitable conclusion to these premises is directly asserted: “Leaving the censure in place means that new members of Call to Action Nebraska will still be excommunicated upon joining. Conley [said] that in those cases, the person could meet with him and go through a similar process to the communal experience.”

As I said, odd.

Is it not the case that, assuming the Call to Action excommunications were actually incurred (a neuralgic question every time automatic sanctions are involved), that they were incurred precisely for membership in CTA? Now, remission of censures such as excommunication requires, not surprisingly, repenting of the delict [here, membership in CTA] and making some suitable reparation for the scandal caused by one’s membership (cc. 1347, 1358). So, how does retaining a penal law against membership in an organization, but remitting the penalties incurred thereunder despite not resigning membership, square with common sense?

While one ruminates on that one, let me observe that reciting the Nicene Creed does not really seem to address the serious doctrinal-disciplinary problems associated with CTA.

Consider: the Nicene Creed  is not a complete statement of all that Catholics must believe and hold precisely as Catholics. For example that Creed nowhere requires belief in the Real Presence of the Eucharist or in the Assumption of our Lady, so a Catholic in heresy on those points could still recite the Creed with, if not a sincere heart, at least with a straight face. Similarly, the Creed does not require a Catholic to hold definitively that, say, the Church has “no authority whatsoever to confer priestly ordination on women“, so a CTA member could well recite the Creed without running afoul of CTA’s call “to discard the medieval discipline of mandatory priestly celibacy and to open the priesthood to women”, even though such a stance places one in opposition to Catholic Church doctrine (cc. 750, 1371).

Perhaps if the Creed were supplemented by the three additional paragraphs* associated with the Profession of Faith and Canon 833, it would be more able to achieve the sign value that Conley seems to have in mind for it. But without those additional paragraphs? I don’t see it.

Of course the simplest thing to do here, canonically, would be to drop the automatic excommunication associated with CTA membership. There are precedents (happy or otherwise) for doing just that. For example, the excommunications levied since the end of the 19th century against divorced and remarried American Catholics were remitted en masse in 1977 even though most excommunicates had not repented of their civil marriages.** And when it was clear that the Index of Prohibited Books was no longer practicable, the severe sanctions levied by the 1917 Code in this area were abrogated and anyone laboring under penalties associated with those norms was rehabilitated.***

One can make the case that, today, membership in organizations, as a rule, does not carry the same personal and social connotations that organizational membership carried even a generation, let alone two or three generations, ago. At least, a bishop could, I think, reasonably reach that conclusion (okay, maybe not with regard to Planned Parenthood or Catholics for a Free Choice, but the general point stands).

But, here’s the problem: a bishop could also conclude that CTA membership indeed “poses a danger to the faith”, and that it should be punished, as Bruskewitz ruled and as Conley seems to agree, which of course makes it hard to sustain the idea that recitation of the Creed, as prayed by faithful practicing Catholics every Sunday at Mass, is a sufficient antidote to such serious dangers.

Like I said, this is an odd one. + + +

* With firm faith, I also believe everything contained in the word of God, whether written or handed down in Tradition, which the Church, either by a solemn judgment or by the ordinary and universal Magisterium, sets forth to be believed as divinely revealed.

I also firmly accept and hold each and everything definitively proposed by the Church regarding teaching on faith and morals.

Moreover, I adhere with religious submission of will and intellect to the teachings which either the Roman Pontiff or the College of Bishops enunciate when they exercise their authentic Magisterium, even if they do not intend to proclaim these teachings by a definitive act.

** Cong. for Bishops, private reply to NCCB petition of 4 May 1977 (22 oct 1977), CLD VIII: 1213-1214, lifting the automatic excommunication of those who, contrary to the Third Plenary Council of Baltimore (1884) n. 124, attempted civil marriage after divorce.

*** Paul VI (reg. 1963-1978), m.p. Integrae servandae (7 dec 1965), AAS 57 (1965) 952-955, Eng. trans., (dispositive parts only) CLD VI: 358-359, renaming and redefining the competence of the Congregation for the Doctrine of the Faith; Cong. for the Doctrine of the Faith, notif. Post litteras apostolicas (14 jun 1966), AAS 58 (1966) 455, Eng. trans., CLD VI: 814-815, confirming the revocation of the “Index of Forbidden Books”; and Cong. for the Doctrine of the Faith, decr. Post editam (15 nov 1966), AAS 58 (1966) 1186, Eng. trans., CLD VI: 817-818, abrogating 1917 CIC 1399 and 2318.

Post-script (a few hours later): A couple of readers have asked whether the “Easter affirmation” mentioned above might be that text used (as I recall) only for the reception into full communion of those already baptized, with the following wording: “I believe and profess all that the holy Catholic Church believes, teaches, and proclaims to be revealed by God.” Possibly so. It’s not clear from the above-linked article. In any case, while such wording would get one closer to the language I suggested from the three additional paragraph associated with the canonical profession of faith, it still seems limited to objects of belief and, to that extent, would not reach, adequately or otherwise, questions such as the ordination of women, not to mention other important issues addressed in the extra paragraphs. In any case, even this better language does not address the central problem, namely, that the law at issue here criminalizes membership in a group while the rehabilitation gesture, as envisioned, does not address that membership.

Thoughts on a mid-air marriage

Show of hands! Who wants to rain all over the sentimental parade lining up behind (what is being presented as) the pope’s facilitation of married love? Anyone? Anyone?

I thought not. Oh well.

Readers of this blog know that I am no fan of canonical form for marriage (cc. 1108, 1117)—a cure that has far outlived the malady (clandestine marriage) it was designed to treat—but canonical form is still law for Catholics and that law goes to the validity of Catholic marriage. Based on the reports offered here and here, I cannot tell whether the ‘wedding’ that the pope put together for an unsuspecting couple satisfies Church requirements on marriage, and several other laws impacting the liceity of marriage seem simply to have been disregarded in the event. As happened several times under earlier administrations, a representative from the Vatican Press Office assures us that “everything was valid”. Such assertions by canonically unqualified and unauthorized PR staff carry, of course, no weight. Real questions worthy of real answers are still raised by this event.

Before getting into details, however, let me say that I am sorry for Paula Podest and Carlos Ciuffardi, two perfectly pleasant flight attendants who paid a courtesy call on their celebrity guest and, next thing they know, their names, faces, and rather odd marriage history are being broadcast to the world. They did not ask for a wedding and were astonished when Pope Francis suggested it. This was not their idea.

Now, about the matter itself.

Popes have jurisdiction for the external forum anywhere on earth (cc. 134, 331, 1108), so Francis can officiate at a wedding anywhere, anytime.

But officiating at a wedding means something specific: it means asking for and receiving the consent of the contracting parties to marrying each each other (c. 1108) here and now. Per the Rite of Matrimony consent is sought from each party individually and must be oriented to marrying the other party at this time; the request is not posed as a joint question to the couple about being married, akin to, ‘do you two want to be married?’, but rather is framed ‘do you marry him/her?’ at this point in time. If consent (the heart of marriage per c. 1057) is not adequately asked for and received, it is not exchanged, and such a couple would not be married (and, No, ‘Ecclesia suppletcannot make up for a failure in what is actually sacramental—as opposed to canonical—form). The above reports mention, as far as I can see, only the pope’s broaching the topic of marriage by asking the couple whether they wanted to be married, placing their hands together, saying a few inspirational words about marriage, and pronouncing them husband and wife. But such a sequence describes, not at all, a present exchange of consent by the parties. Let us hope, then, that in the actual event considerably more was said than has been reported.

Second, canonical form demands two independent actual witnesses to the exchange of consent, meaning that five persons must be immediately present for the wedding—not folks who heard about it a few minutes later, or who saw something happening and wondered, hey, what’s going on back there?—but five persons acting together and at the same time: a bride, a groom, an officiant, and two other actual witnesses. While reports are unclear as to how many people actually witnessed this event, and while this photo shows four people in the event (plus a camera man?) and four signatures on a document, another photo shows five names on the marriage document, so one may presume (c. 1541) accordingly.

Third, several canons impacting the liceity of weddings (norms on ‘liceity’ often being regarded as wink-wink rules in Church life, especially when higher-ups model the wink-winking) were apparently ignored here, including: the requirement for serious pastoral preparation prior to a wedding (c. 1063), administration of Confirmation before Matrimony (c. 1065), urging of Penance and holy Communion before a wedding (c. 1065), verification that no obstacles to validity or liceity are in place (c. 1066), securing evidence of the contractants’ freedom to marry (c. 1068) upon pain of acting illicitly without it (c. 1114), an expectation that Catholic weddings be celebrated in a parish church (cc. 1115, 1118), and making use of the Church’s treasury of liturgical books for celebration of the sacramental rite (c. 1119).

As this story reverberates ‘round the world, now, deacons, priests, and bishops who try to uphold Church norms fostering values such as deliberate marriage preparation, an ecclesial context for a Catholic wedding, and the use of established and reliable texts for expressing consent will, undoubtedly, have the Podest-Ciuffardi wedding tossed in their face as evidence that, if Pope Francis does not insist on such legalistic silliness and only cares about whether two people love one another, why shouldn’t they do likewise? The ministry of conscientious clergy in this regard just got harder.

As mentioned above, I would be happy to see the requirement of canonical form for marriage eliminated, this, for several reasons, one of which is that—long story omitted—we could actually make higher demands of Catholics who want to marry before our clergy than we can currently demand. But the pope’s example of a spontaneous, zero-preparation, wedding is not at all what I and like-minded others have in mind. This couple undoubtedly gave more thought and attention to what they did by civilly marrying before a magistrate back in 2010 than they could have possibly given to what the pope suggested to them, on a few seconds’ notice, while at work, high above the Andes mountains.

If I have to say it, I will: I hope Podest and Ciuffardi are married and that they live happily ever after, but I worry whenever momentous life decisions are taken on a minute’s notice and under circumstances bound to contribute to one’s being carried away by events.

The pope has opined, apparently more than once, that “half of all sacramental marriages are null”. Here’s hoping that Podest and Ciuffardi beat those odds. + + +

Follow-up, next day, here.

 

Is the ‘Petrine Privilege’ an exception to Church teaching on the indissolubility of marriage?

The Church herself has not yet fully articulated what happens when a marriage is dissolved by the ‘Petrine privilege’ or ‘papal dissolution’ so we cannot fully address here all of the canonical and theological issues raised thereby, but we can show that the Petrine Privilege does not, in any way, provide a basis for moving against Church doctrine and discipline on the indissolubility of consummated Christian marriage.

Orientation to the issue.

Regarding the possibility of remarriage during the lifetime of a previous spouse we saw earlier four kinds of marriage, namely, those: (I) between two non-baptized parties; (II) between a baptized party and a non-baptized party; (III) between two baptized parties that has not been consummated; and (IV) between two baptized parties that has been consummated. All four kinds of marriage, we noted, enjoy the presumption of validity. Marriages in Groups I and II are not sacraments while those in Groups III and IV are.

Marriages between two non-baptized parties (Group I) are generally dealt with by the Pauline Privilege to allow, under strictly defined conditions, remarriage during the lifetime of a former spouse. Marriages between Christians that have been consummated (Group IV) are completely indissoluble by anything other than death. Here, we consider marriages between two baptized parties that have not been consummated (Group III) and those between a baptized party and a non-baptized party (Group II).

For several hundred years the power of the Roman Pontiff to dissolve non-consummated Christian marriages (our Group III) has been unobtrusively exercised, but about 100 years ago popes began to dissolve marriages between baptized and non-baptized persons (our Group II). It is especially this latter development, in these times of widespread confusion about even the most fundamental Church doctrine and discipline on marriage, that some think (or fear) implies a way around our Lord’s words on the permanence of marriage.

Practical obstacles to understanding the operation of Petrine cases.

Comprising a very small portion of all the marital cases dealt with by the Church world-wide, recent Petrine cases follow complex procedures that evolved in the crucible of pastoral-chancery practice and not in the calm of the classroom. These cases seem not quite to have settled into doctrinal-canonical place yet. Consider: “[Modern Petrine] dissolutions could not be explained by the traditional principles governing the application of the Pauline privilege or even by the extensions of this privilege [Canons 1148 and 1149]. These dissolutions were soon recognized as exercises of a heretofore unknown papal prerogative to dissolve non-sacramental marriages”. CLSA New Comm (2000) 1372. Again: “Theological and juridical doctrine has not provided an explanation that treats all the points questioned in this specific supposition of dissolution of marriage and others regulated in this article of the Code [Canons 1142-1150].” Exegetical Comm (2004) III/2: 1545.

Cases of matrimonial dissolution by popes are not adequately addressed in the 1983 Code (proposals to include a few more provisions on them were rejected late in the post-conciliar canonical reform) and thus bishops, pastors, and canonists must rely on extra-codical instructions for processing such petitions (the most recent version of these coming out in 2001). There is not even consistency in the terminology used for these cases and, though I prefer to distinguish between papal dissolutions of non-sacramental marriages (‘Petrines’) and papal dissolutions of non-consummated sacramental marriages (‘papal dissolutions’)—in part to acknowledge that a pope’s dissolving a natural marriage and his dissolving a sacramental marriage are different things—canonists follow various naming conventions. Everyone agrees, however, that, under the current law, popes, and only popes, are dissolving herein presumptively valid marriages at least some of which are sacraments.

But I pause to be clear: In neither Petrines, nor Paulines, nor any other dissolutions (such as the now-dormant dissolution of certain marriages by certain religious vows) do the parties themselves dissolve their own marriage. Rather, something “extrinsic” to these marriages dissolves them, be it the pope in Petrine cases, the second marriage in Pauline cases, or the law itself upon the ecclesiastical acceptance of certain vows. Indeed, to hold that the parties themselves can, by any act performed by themselves, dissolve their own marriages, is to contradict flatly well-settled Church teaching on the “intrinsic indissolubility” of all marriage.

Short explanation of how Petrine cases do not threaten Church teaching on marriage.

While Christians, let alone Catholics, make up only a minority of the world’s population and hence a minority of the world’s marriages, the vast majority of the marriages to which the Church actually ministers are presumptively valid (c. 1060), ratified, i.e., sacramental (cc. 1055, 1061), and consummated (c. 1061), that is, our Group IV, and as such are completely indissoluble during the lifetime of the spouses (c. 1141).

But marriages between a baptized person and a non-baptized person (Group II) are not sacraments and in that respect more resemble Pauline-type situations, whose dissolubility can be traced to Scripture without threatening Church teaching on that indissolubility recognized in Christian marriage. Group III marriages, though sacramental, have not been, literally, consummated, that is, the sign value of conjugal intercourse has not yet expressed, as deeply as human beings can express it, the mystical union between Christ and his Church and so, again, allowing Group III marriages to be dissolved under certain narrow conditions does not impugn Church teaching on the complete indissolubility of consummated Christian marriage (Group IV), that is, those marriages maximally symbolic of the Great Mystery (Ephesians V: 32).

In short, only “ratified and consummated” marriages (Group IV) are, per Our Lord’s words, completely indissoluble, but Group II marriages are not “ratified” and Group III marriages are not “consummated”. Petrines do nothing to disturb this teaching.

Longer explanation of how Petrine cases do not threaten Church teaching on marriage.

All the power that the Church was ever going to have was present at her inception. That is not to say that the Church has always exercised all of her powers or even that she has always been fully aware of and/or able to explain adequately all of her powers. An illustration of this point is that the Church always possessed and celebrated all of the sacraments, even though that was centuries before the word “sacrament” came to identify them and even longer before the magisterium finally numbered them at seven. Now, among the powers entrusted to the Church by Christ are certain ones over marriage, authority that she has, in greater or lesser degrees and with fewer or more detailed explanations, faithfully exercised over the centuries.

The basic authority of the Church over the Pauline Privilege can be traced to Scripture though many centuries were required for the exercise of this authority to take its present form; the power of the Church over non-consummated Christian marriages (say, in the context of spouses seeking to enter religious life) emerged clearly only in the Middle Ages; and not quite a hundred years ago the power of the Church over the marriages of Christians with non-baptized persons began to be exercised to the point that, in recent decades, it now encompasses virtually every fact pattern imaginable under that heading and even includes some marriages between two non-baptized persons that do not meet the traditional Pauline requirements.

But throughout her long history, even in the last one hundred years of rapid expansion in the scope wherein Church authority over marriage is exercised, the refusal, nay inability (CCC 1640) of the Church to attempt to dissolve a consummated Christian marriage has been steadily and unambiguously proclaimed. As typical of dozens and dozens of papal, conciliar, dicasterial, episcopal, and scholarly assertions of the divinely-grounded, complete indissolubility enjoyed by consummated Christian marriage that have been issued over the centuries, let one statement from Pope Pius XII made to the Roman Rota in 1941 serve:

It is superfluous before a judicial body such as yours, but does not distract from Our remarks, to repeat that a ratified and consummated marriage is by divine law indissoluble, in that it cannot be dissolved by any human power; meanwhile other marriages, though they are intrinsically indissoluble, do not have an absolute extrinsic indissolubility, and, given certain necessary presuppositions, can (and it does occur, as is known, in relatively rare cases) be dissolved, whether by virtue of the Pauline privilege or by the Roman Pontiff by virtue of his ministerial power.*

So instead of starting with the Petrine Privilege and asking, Could these principles be extended so far as to impugn the indissolubility of consummated Christian marriage?, try starting with the divinely-demanded, complete indissolubility of consummated Christian marriage on earth and ask, Can any institute, theory, or argument—short of one obviously betraying the teachings of Jesus—detract from that truth?

I say, No.

*È superfluo avanti a un Collegio giuridico qual è il vostro, ma non disdice al Nostro discorso il ripetere che il matrimonio rato e consumato è per diritto divino indissolubile, in quanto che non può essere sciolto da nessuna potestà umana ([1917 CIC] can. 1118); mentre gli altri matrimoni, sebbene intrinsecamente siano indissolubili, non hanno però una indissolubilità estrinseca assoluta, ma, dati certi necessari presupposti, possono (si tratta, come è noto, di casi relativamente ben rari) essere sciolti, oltre che in forza del privilegio Paolino, dal Romano Pontefice in virtù della sua potestà ministeriale. (From, here, my trans. and emphasis above.)

Is the ‘Pauline Privilege’ an exception to Church teaching on the indissolubility of marriage?

Is the “Pauline Privilege” (I Corinthians VII: 12-15, Canons 1143-1147) an exception to Church teaching on the indissolubility of marriage (Matthew XIX: 3-9, Mark X: 2-12, Canon 1141), indeed, an exception that suggests the possibility of the Church’s somehow countenancing the post-divorce civil marriages of Catholics even though such unions constitute “public and permanent adultery” (CCC 2384)? Answering that question requires clarity on some basic marriage concepts and terms.

Canonically, there are four kinds of marriage, namely, marriage:

(I) between two non-baptized parties (e.g., Jews, Muslims, Hindus, Mormons);

(II) between a baptized party and a non-baptized party (e.g., a Catholic-Jewish marriage);

(III) between two baptized parties (e.g., Catholics, Protestants) that has not been consummated; and,

(IV) between two baptized parties that has been consummated.

The Church (here, through her canon law) sees profound commonalities and profound differences among these kinds of marriage regarding, among other things, indissolubility, validity, and sacramentality, all of which impact the operation of the Pauline Privilege.

As to indissolubility

The Church regards all four kinds of marriage as being, by natural law (and not by Catholic theology), “intrinsically indissoluble”, that is, she holds that no spouse or couple (say, by invoking civil laws of divorce, and regardless of religious affiliation) can, by their own will or action, break or dissolve their marriage.

The Church regards three of those kinds of marriage (those between two non-baptized parties, a baptized party and a non-baptized party, and two baptized parties if it has not been consummated) as being, under certain strictly defined conditions, “extrinsically dissoluble”, that is, as a matter of Catholic belief (and not natural law), the Church sees the possibility that, notwithstanding the “intrinsic indissolubility” of all marriage, something other than the will or act of the parties (specifically, the operation of the Pauline Privilege, the sometimes-called Petrine Privilege, or papal dissolution, respectively) can dissolve a marriage. In the great pool of divorce cases that the Church deals with, Paulines, Petrines, or papal dissolutions comprise the proverbial drop in the bucket (at least in the First World), but exist they do and sometimes they are perceived, or are proposed, as being disquieting exceptions to Church teaching on the indissolubility of marriage—why they are not can be deduced from the above, but let’s keep going.

The Church regards one kind of marriage, namely marriage between two baptized parties that has been consummated, as being not just “intrinsically indissoluble” (like all marriages) but also as “extrinsically indissoluble”, that is, she holds that no power on earth (not the parties, certainly not the State, not even the Church herself) can dissolve them. Only death ends such marriages. Of course, consummated marriages between baptized persons are the kind of marriages most often dealt with by Church pastors and personnel, but it is important to recall that these marriages are just one of the four kinds of marriage out there.

Now, because the Church holds that all marriages on earth are (intrinsically) indissoluble and because she holds that all consummated Christian marriages are (intrinsically and extrinsically) indissoluble it is easy to show why some people wrongly think that the Church holds all marriages to be (looking for a new adjective here) ‘completely’ or ‘totally’ indissoluble and stumble from that mistaken conclusion into seeing anything departing from that (false) norm as the Church quietly making exceptions for her friends, exceptions that border on hypocrisy or that at least open the door to other ‘exceptions’ to her teaching on indissolubility. Not so, some will already see, but let’s keep getting clear on terms.

About validity

All four kinds of marriage listed above enjoy what canonists call ‘the presumption of validity’, that is, world-wide, pretty much anything that looks like a marriage is presumed by the Church to be a marriage if only because marriage is, before anything else, a natural institution that human beings are naturally suited to enter. When a Church tribunal declares a marriage “null”, it does nothing to the marriage, but rather, says something about the marriage, specifically, that what appeared to be marriage has, upon closer and expert investigation, been shown not to have satisfied one or more requirements for marriage after all. Argue, if one will, about whether there are too many or too few such findings of in-validity; but understand that a declaration of nullity is not the breaking or dissolving of a marriage for the Church has judged that there is, after all, no marriage there to break.

Re sacramentality

Of the four kinds of marriages outlined above, all, but only, those marriages between two baptized (whether Catholic or not) parties are considered sacramental.

Here, two points are important: First, the canonical term for a marriage between two baptized parties is “ratum” (ratified) even though in common parlance “ratified” would seem to apply to all four kinds of marriage once consent has been expressed. The Church uses, I suggest, a special word for matrimonial consent between two baptized persons because such consent brings about not only a marriage but also one of her seven sacraments, Matrimony. Notice, too, a marriage between two baptized parties is “ratum”, hence sacramental, even before it is “consummatum” (consummated), and it is wrong for anyone to say that a Church tribunal investigates whether a given marriage is “sacramental”, for sacramentality is a consequence of a marriage being between two baptized persons whereas tribunals investigate only whether a given marriage is valid, and not whether it happens to be sacramental (based on the baptismal status of the parties).

Second, the only time “consummation” is canonically significant is in a marriage between two Christians. The sexual use of the marriage-sacrament (already “intrinsically indissoluble” because it is a marriage) by two Christians is canonical proof against the rare but real “extrinsic dissolubility” to which non-sacramental and even sacramental-but-non-consummated marriages are liable.

We’re now ready to talk about the Pauline Privilege.

This won’t take long.

Canon 1141 (reflecting, I think, infallible Church teaching, but that is a case I need not make now) states “A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death.” Those who know what these terms mean will understand better what this canon is, and is not, saying: all, but only, those marriages between two baptized persons that have been consummated (i.e., the fourth kind of marriage above) are (again, using a new adjective here) ‘completely’ or ‘totally’ indissoluble short of death. By implication, however, any other kind of marriage, notwithstanding its validity and natural goodness, is liable, under unusual and strictly interpreted conditions, to the possibility of being dissolved by something other than death.

Thus, because the Pauline Privilege operates only in regard to marriages between two non-baptized persons (i.e., the first kind of marriage outlined above) while Canon 1141 applies only to the consummated sacramental marriages between two Christians (i.e., fourth kind of marriage above), Paulines are obviously not exceptions to the rule proclaimed in Canon 1141 because the two very different canonical institutes deal with two very different kinds of marriage and because neither norm violates settled Church teaching, resting on natural law, upholding the intrinsic indissolubility of all marriage on earth.

Nooo, Canon 17 does not let us undercut Canon 915 and what it protects

A professional knows the limits of his knowledge. An amateur does not know the limits of his knowledge. A dilettante does not know that there are any limits to his knowledge.

Based on the biographical interview he granted to the Catholic Herald, it seems that Stephen Walford is a professional pianist and an amateur theologian (one’s dearth of formal education in a complex discipline being an obstacle, but not a complete bar, to one’s achieving some knowledge of at least some topics within that discipline), rather as I am a professional canonist and an amateur, I dunno, Latinist or woodwind player. Nothing wrong with being a professional, of course, or an amateur; but dilettantes are something else. If, having watched “Searching for Bobby Fisher” and knowing how the horsey moves, I started opining publicly on the Sicilian opening, what would I be? A dilettante. And chess, mind, is a little thing.

Now, in regard to canon law, which Walford repeatedly invokes in the course of trashing as “dissenters” anyone who questions the text and certain applications of Amoris laetitia and its progeny, Walford is simply a dilettante unaware that most of his purported explanations of canon law have little or no connection to what the law really means—and sometimes, not even to what it says. And canon law, mind, not to mention the doctrine it works to protect, is a big thing.

It is difficult to discuss law, of all things, with people who not know what it actually says. For an example of Walford’s misstating what the law (here, Canon 915) says, see his claim that “canon 915 refers to ‘obstinate’ and ‘persevering’ manifest grave sinners.” Of course, John Paul II’s Canon 915—aware that the Church cannot and does not judge souls or determine who is personally culpable for sin or if so by how much—does no such thing. Rather, this papal norm responds to objectively reckoned and publicly observable situations of sin and, in an unbroken line of practice going back to Scripture, directs ministers of holy Communion to withhold that most august Sacrament from persons who, by their public conduct, have placed themselves within the purview of the canon.

Confusing “sinner” and “sin” is, I grant, quite common in this debate and even several ranking prelates seem to think that externally-made assessments of personal culpability (however that oxymoronic task is to be accomplished) are relevant to the operation of Canon 915. But what can I say that has not been said before? Treating “sinner” and “sin” as equivalents is something a professional would avoid, while an amateur, intrigued by the distinction once he saw it, would, hopefully, stop treating the terms as synonyms.

It is not, however, Walford’s mistaking the plain text of Canon 915 that attracts my attention, but rather his attempt to explain what Canon 17—a norm little noticed in this debate, for good reason—means and allegedly how, by reading Pope Francis’ words in Amoris through in its light, “a path maybe opened to reception of Holy Communion” for divorced-and-remarried Catholics.

As we are talking about canon law, I suggest we start with the canon. The whole canon.

Canon 17. Ecclesiastical laws must be understood in accord with the proper meaning of the words considered in their text and context. If the meaning remains doubtful and obscure, recourse must be made to parallel places, if there are such, to the purpose and circumstances of the law, and to the mind of the legislator.

A canonist would recognize immediately why Canon 17 has almost nothing to do with Amoris laeitia for Amoris is not, in either form or substance, a legislative document at all, so there is no “ecclesiastical law” to interpret therein, let alone one capable of upending Canon 915.

Even an amateur might read Canon 17 and conclude that, whatever disciplinary weight a passage or two in Amoris might (I say might) carry, assessing that weight requires a process that starts with careful study of the actual terms used in “text and context” (as those two words are understood in canon law), that further inquiry into “parallel places” (as that notion is understood in canon law) might be required, perhaps going on to the “purpose and circumstances of the law” (as that phrasing is understood in canon law), and that inquiry about the “mind of the legislator” (as that term is understood in canon law) could be helpful. Of course, a theory floated on a website does not satisfy this textual and contextual study requirement.

And a dilettante? Well, he might just skip most of the actual text of Canon 17, seize upon the final phrase about the “mind of the legislator”, claim that Canon 17 bids us to unlock the “far more nuanced” thought of Francis in regard to Canon 915, disparage “those whose rigidity betrays a pharisaical intransigence”, and soar off into surmises about “what the Holy Spirit is saying to the Churches at this time.”

Heady stuff, this Canon 17.

Except, it’s not. Let me offer some comments on what the term-of-art, “mind of the legislator”, means in canon law, why it has little to do with the Amoris debate, and why it has almost nothing to do with Walford’s imaginings about what Francis might be imagining. I’ll get right to it.

The CLSA New Commentary on the Code of Canon Law (2000) at 75, addressing Canon 17, states (with my emphasis):

The mind the legislator (mens legislatoris) does not mean the subjective mind of the legislator or his successor—what he inwardly thinks or wills—because that is largely unknowable and even irrelevant. It is the objective text of the law that must be considered, not what anyone presumes the legislator might have been thinking when he made the law. The “mind the legislator” does not refer to a human person’s mind at all. [!] Instead it is a construct, an “institutional figure” signifying the whole institution of the law itself—the canonical system—especially the basic rules, values, and principles that underlie and support it. Knowing the “mind the legislator” takes considerable study and experience in the field of canon law, and it also requires knowledge of related disciplines such as ecclesiology and moral theology.

This explanation of what the “mind of the legislator” really means in canon law pretty much demolishes, I think, any theory that, by passing Amoris under the special lamp of Canon 17, one can make out Francis’ mind as abrogating or even derogating from the plain, hitherto uncontested, divinely-rooted Canon 915. Whatever Francis might have been thinking when his signed Amoris, and however much might be his or others’ implicit sympathy for policies that do contravene Canon 915 (think Maltese bishops), neither the text of Amoris nor appeal to Francis’ supposed “mind” suffices to relieve ministers of holy Communion from their duty under law, Canon 915.

Shall we see another? The CLSA Commentary (1985) at 36 reads (again, my emphasis): “The presumption [behind Canon 17] is that the legislator said what was meant; hence the meaning of law should not be changed on the bases of factors which are not expressed in the law itself. The interpretation of law is a subtle art; it cannot be done well without proper training in law, its history, and in a number of relevant sciences.” I appreciate the line that interpretation of law cannot be done well except by persons with certain talents and training. Obviously interpretation of law per se can “be done”, these days, by anyone with access to the internet. (Indeed, that is one of the reasons why I blog, to correct, as best I can, just some of the multitudinous misrepresentations about canon law floating around out there. But I digress.)

I could cite additional professionals as to the proper meaning of Canon 17 (it is the stuff of which dissertations are made) and which I think parallel the position taken by the Americans. Indeed I might even point to the Great Britain & Ireland Commentary (Letter & Spirit, 1985) at 17-18, which I am sure Walford could find easily, which seems open to considering, among many other things, the legislator’s “whole manner of exercising authority”, but even here, the GB&I immediately warns that such considerations can only be invoked when the law in question (here, Canon 915) is itself in doubt (and Canon 915 has never been in canonical doubt, though it is has often been ignored by ministers thinking they are being “pastoral), that even then such guesses would yield only a “subjective assessment” as to legal meaning, and that in no case does such gleaning of the “mind of the legislator” result in an “authentic interpretation” (c. 16) of the law—which is the event I have long said would be necessary (assuming it could even be issued along the lines that Walford and some others seem to think is correct) to restrict or remove Canon 915.

There are other problems with Walford’s essay but let these remarks suffice for now.

 

Three notes on Kazakhstan ‘Profession of the immutable truths about sacramental marriage’

The presentation of Catholic teachings on marriage and morality set forth in the brief statement from Kazakhstan Bps. Peta, Lenga, and Schneider is quite sound. Indeed, in contrast to, for example, the ambiguous statement from the Argentines the Kazakhstan profession is a model of clarity; set against the disastrous statements by, among others, the Bishops of Malta and German episcopal conference the Kazakhstans are withering. I offer three notes for those reading on the Kazakhstan profession.

First, while the Kazakhstans address only sacramental marriage (that is, marriage between two baptized persons) much of their message applies to any marriage, for all marriage is, as canonists say, intrinsically indissoluble.

Second, when the Church talks about “marriage”, she always means marriage valid in her eyes and not necessarily marriage in the state’s eyes or marriage as many people use the term in common speech. It is, of course, far too cumbersome to include every qualifier that the Church assumes in regard to marriage every time the word “marriage” is used, but these qualifiers must be recalled when one composes and analyzes technical texts closely.

Thus, third, with regard to the Kazakhstans’ assertion that “Unequivocally and without admitting any exception Our Lord and Redeemer Jesus Christ solemnly reaffirmed God’s will regarding the absolute prohibition of divorce”, two important qualifiers (briefly indicated later, but easy to miss in this first assertion) are necessary for this statement to stand, namely, we must be talking about sacramental marriage (else, the Pauline and Petrine Privileges fall), and second, we must be talking about consummated Christian marriage (else, papal dissolution of ratum-non-consummatum marriages falls). These three exceptions to the permanence of marriage comprise, to be sure, a minuscule percentage of the divorce-and-remarried cases actually faced by pastors, but sweeping language must account for legitimate exceptions to its terms, however rare such exceptions are in real life.