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Some first thoughts on Weigel’s call to reconsider civil consequences for Catholic weddings

November 14, 2012

George Weigel writes in a thought-provoking essay that we should, among other things, “accelerate a serious debate within American Catholicism on whether the Church ought not pre-emptively withdraw from the civil marriage business, its clergy declining to act as agents of government in witnessing marriages for purposes of state law.”

Okay, a few thoughts toward that acceleration.

First for precision: the Church is not in the civil marriage business, we are in the religious marriage business. Our clergy act fundamentally as ecclesiastical officers at our weddings. The few clerics who from time to time (notwithstanding 1983 CIC 285 § 3) attempt to act as purely civil agents at weddings do so with virtually no canonical support. See e.g., CLSA Advis. Op. 1984-55 Provost, CLSA Advis. Op. 1988-98 Wallace, and CLSA Advis. Op. 2005-76 Jorgensen (all rejecting civil-only agency) vs. CLSA Advis. Op. 1987-128 Cuneo (who leaves open a small possibility for such service).

Second and more important, it is not strictly speaking for the Church to “withdraw” from “civil marriage”, for the decision to accord civil recognition to ecclesiastical ceremonies like weddings is the State’s to make, not the Church’s. As Catholics we do what we do, namely, solemnize weddings as we think fit, while the State does what the State does, namely, accord civil recognition to those events (like, e.g., letting spouses file joint tax returns and inherit property) as it thinks fit. Now, I grant it’s very convenient for the State to recognize Catholic weddings, but if the State decides not to do so, well, okay.* Catholics are still going to marry in the eyes of the Church and ecclesiastical consequences will still flow from such religious acts—or not, as the case may be—but, in any event, independently from whether the State chooses to recognize that ceremony. In short, I’m not sure how the Church can “withdraw” civil recognition of its ceremonies or, for that matter, demand it.

It is painful, of course, to watch the State’s definition of marriage careen toward something unrecognizable under natural or ecclesiastical law, but eliminating true marriages from the pool of unions treated as marriage by the State is not the solution to the State’s errors. Moreover, if the day arrives wherein State power is turned against a pastor who refuses a “gay wedding”, we must and will refuse cooperation with that simulation of a sacrament (e.g. 1983 CIC 841, 1379) as best we can (e.g. 1983 CIC 1370 § 3, 1373). But, that day has not arrived yet and I see no need to surrender societal goods (such as the convenience, and even meetness, of civil recognition of Catholic weddings) that have not yet been demanded of us.

Third, the Church’s interest in marriage predates and transcends the State’s, obviously, but the Church nevertheless recognizes the legitimate interests of the State in marriage and tries, in a myriad of ways, to accommodate those interests (see e.g. 1983 CIC 1071 § 1, n. 2). Sorting through those modi vivendi is not something for individuals to take upon themselves and to accelerate this discussion is not to go pedal-to-the-metal, folks! (Weigel did not suggest that, but we are posting before a public that does not always observe his prudence).

Fourth . . . well, there are several other aspects of this matter that need to be discussed, but this is just a blog post, and one can’t cover everything. + + +

* The American State does not recognize ecclesiastical annulments (even those declared on grounds identical to the State’s) yet no one seem the worse off for it. Canonists disagree, by the way, about whether the Church should grant canonical recognition to civil annulments. See e.g. CLSA Advis. Op. 1995-84 Ingels and CLSA Advis. Op. 1988-100 Provost (arguing yes) vs. CLSA Advis. Op. 1995-86 McKenzie (arguing no); either way, though, the granting of ecclesiastical effects to civil actions is clearly the Church’s decision to make, not the State’s. Mutatis mutandis, I suggest it is for the State to decide whether to grant civil effects to Catholic weddings.

Update, 15 Nov:  Most of this post is now available in French, here.

Update: A chronology of (mostly) my comments on ecclesiastical cooperation with civil marriage.

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