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May I demur re Mirus this once?

Pretty much everything Dr. Jeff Mirus writes is worth reading, but his latest column, correctly defending Pope Francis against charges of heresy based on his endorsement of the Buenos Aires Directive, overstates the argument in one small, technical regard and, I think, misses a larger, more important point in another. I basically agree with everything Mirus wrote, except as follows.

1. Mirus writes: “It is impossible to prove that advocacy of any disciplinary approach indicates heresy in the mind of the advocate.” That is not correct. A classic example pointed to a man whose refusal to abide by disciplinary norms such as genuflecting before the tabernacle might show a wordless, but clearly heretical, denial of the Real Presence. This is a small, technical point, perhaps, but it reminds us all to be wary of universal assertions. My second concern is larger.

2. Most of Mirus’ column is spent trying to show how the objectively grave sin of remarriage after divorce (with all necessary caveats & conditions included) might in a specific case be rendered subjectively venial at least for one partner. As holy Communion may be (and perhaps even should be, assuming sorrow for sin, CCC 1393) taken by one in venial sin, Mirus argues that some divorced-and-remarried Catholics should feel free to approach for holy Communion. Now, everything Mirus says so far is at least arguably, and much of it is actually, true.

But it misses the crucial point: One’s approaching for holy Communion is a matter of personal conscience chiefly guided by Canon 916 (which Mirus does not cite, but would have cited had he adverted to it); but distribution of Communion by a minister is a matter of objective status chiefly under Canon 915, which Mirus does not cite, but should have considered.

As has been explained many times, in certain cases ministers of holy Communion are bound not by the would-be recipient’s assessment of conscience, but by the demands of canon law responding to one’s external, objective status. Long story made short, Catholics who have entered marriages subsequent to mere divorce are objectively disqualified from being given holy Communion (CCC 1650, 2384), whatever might be their subjectively reduced culpability for their state. This is a crucial point: two canons (and the values behind two canons) come into play every time a minister and recipient meet over the Host. Yes, Amoris seems to miss this point and the Buenos Aires Directive clearly misses it. Still.

To be sure, more goes into these cases than what I just outlined, but this should suffice to show that, even if Mirus’ theory of venial sin for some divorced-and-remarried Catholics is correct, it does not answer the question about their being admitted to holy Communion.

On the Buenos Aires directive

Canon 915, the modern (yet resting on ancient roots) norm that prohibits ministers of holy Communion from giving that sacrament to Catholics who “obstinately persevere in manifest grave sin” does not expressly name divorced Catholics living in their second (or third, or fourth, or fifth…) ‘marriages’ as examples of persons ineligible for holy Communion, but they have long been the ‘go-to’ example of those covered by the canon. Even its harshest critics generally conceded that Canon 915 applies to divorced-and-remarried Catholics—the emotional hardships associated with such cases being, in some critics’ minds, a good argument for abandoning the norm.

Now, in his unequivocal endorsement (“There are no other interpretations possible” [!]) of a leaked draft of some Argentine bishops’ plan for implementing his document Amoris laetitia, Pope Francis has neither ‘abrogated’ Canon 915 nor ‘interpreted’ it out of existence (both being the sort of technical operations the pope shows little interest in). Nevertheless, his action will likely make it harder for Catholic ministers, who remain bound by canon law even in stressful cases, to observe Canon 915 at the practical level.

Basically, the Argentine draft (assuming it is still a ‘draft’) directs ministers of holy Communion (chiefly parish priests) to work through concrete cases impacting access to at least three sacraments (Matrimony, Penance, and the Eucharist), guided not by the Church’s accumulated pastoral wisdom as summed up in norms like Canon 915 (which seem not even not to be mentioned!), but instead by a line of endlessly malleable considerations phrased in verbiage redolent of the 1970s. If some pastors after the publication Amoris were already being told by irate parishioners that ‘Pope Francis says you have to give me Communion’, what might they expect in the wake of his sweeping approval of this Argentine interpretation of Amoris?

Fundamentally the Argentine draft stumbles, I suggest, in the same way as does Amoris, namely, in thinking that an individual’s subjective, albeit sincere, conclusions about his or her eligibility for Communion per Canon 916 trumps the Church’s authority, nay her obligation, to withhold the sacrament in the face of certain objective, externally verifiable conditions per Canon 915. I shall not rehash that argument here, but we should be clear: compromising the well-established interpretation of Canon 915 in the case of divorced-and-remarried Catholics necessarily calls into question the law’s applicability to cases of, say, ‘loving’ couples cohabitating outside of marriage, the ‘compassionate’ promotion of abortion or euthanasia, ‘honest’ persons entering “same-sex marriages”, and so on.

Where from here?

1. It is hard to see how the Argentine bishops can tone-down a document that Francis has already warmly endorsed, but, who knows?, maybe they might “clarify” it in some way that lets Rome in turn “clarify” its endorsement.

2. The Argentine document itself has some supposedly restricting language which might be invoked, but frankly, I don’t think that will be much help to pastors. Consider, for example, the requirement that one must, among other things, be “unable” to obtain a declaration of nullity before being allowed holy Communion. But think about this—what if one is “unable” to obtain an annulment precisely because there is no proof of nullity? Does losing one’s bid for a declaration of nullity suddenly make one eligible for holy Communion despite remarriage? Most of the rest of the allegedly cautionary language, such as that to “avoid understanding this possibility as an unrestricted access to the sacraments”, is platitudinous—no one seriously thinks that the Church approves “unrestricted access to the sacraments” so an admonition against such access is pointless.

3. As hard as it might be to follow, my basic advice to ministers of holy Communion in the context of divorced-and-remarried Catholics is to ignore the coming furor over the pope’s endorsement of an ambiguously worded document from some local bishops, and just follow the law of the Church, which is quite clear, unless and until that law is formally changed, at which point (if it comes to that) we will sit down and figure out what the new law directs.

Updates: (1) Robert Royal raises many of these same concerns, here. (2) My comments on Jeff Mirus and the confusion between Canon 915 and 916 may be useful to others.

Good grief, if even Protestants think the time has come…

“I am not a Roman Catholic, let alone a canon lawyer,” writes First Things contributor Carl Trueman, “but I am reliably informed that the bishop of the diocese to which [Vice President Joseph Biden] belongs does have certain powers in regard [to Biden’s brazen officiating at a ‘same-sex wedding’].” Well, I am a Roman Catholic, and I am a canon lawyer, and I can reliably inform others that the bishops of the dioceses to which Biden belongs do indeed have certain powers in this regard. In my view, moreover, it’s time for bishops to use those powers. Gracious, even some Protestants think it’s time!

Yes, I cautioned here against a canonical over-reaction to Biden’s stunt (over-reactions always being more likely in the wake of decades of mostly inaction), and so I pointed not to excommunication but instead to the invocation of Canon 915, this, in response not so much to Biden’s one-off as a special officiant at a ‘same-sex wedding’, but in view of his long string of effective repudiations of fundamental Church teaching on the nature of marriage itself, the inviolability of innocent human life, and so on, such serial repudiations now being publicly crowned by his voluntary, formal cooperation with an objectively gravely evil act against marriage last week.

The wider Canon 915 story I have laid out many times in many fora and so won’t repeat it here. I raise but one caveat to Trueman’s honest call for acknowledging the great gulf that exists between public stands such as Biden’s (and Pelosi’s, to name another, and several others’) on the one hand, and settled Church teaching on certain fundamental issues on the other, namely, that the response to Biden-ites is not to preclude, or even to discourage, their Mass attendance, for all Catholics are required by divine and canon law to attend Mass on Sundays and certain holy days per c. 1247. Rather, the issue is whether they should take the Sacrament at Mass (per Canons 915 and 916). Still, as Trueman noted, he is not a Catholic and not a canonist, so he may be forgiven for conflating these two issues.

A few days ago, three notable bishops issued a statement critical of (obviously) Biden’s act. I readily grant, the statement was not “much”, but it was something, and it was a something that would not have been done at all even a few years ago—while there was still some hope that the US Supreme Court would, in the end, at least get the definition of marriage right. They did not get it right, of course, and, in so spectacularly not getting it right, the Court crossed a line that human nature itself says may not be crossed; thus, however small might have been the Kurtz-Malone-Wenski statement, it was not nothing.

Whether we are on the cusp of the long-awaited, major pushback by bishops in the social and political sphere (toward which approach Trueman seems inclined) or are approaching something more radical yet such as the so-called “[St.] Benedict Option” provocatively urged by Rod Dreher (who, I shall not tire of saying, needs to come back to the Catholic Church), I cannot tell. But something is going on. Something has to go on. We simply can’t keep going on as we have been going on up to this point.

We just can’t. + + +

Updates: This from the excellent David Mills a couple days ago, and this today from Phil Lawler, whose taste in canon lawyers is excellent, by the way.

Some canonical thoughts VP Biden’s recent deed

To officiate at the “same-sex wedding” of two White House staffers Monday, Vice-President Joseph Biden obtained special authorization from the District of Columbia wherein he resides and the event took place. Unlike, therefore, some Catholic civil officials whose duties require them to preside at all “weddings” regardless of religious ramifications (and who thus might—I say might—be able to excuse their material cooperation with objectively evil acts on technical moral analysis grounds), Biden, a Roman Catholic, went out of his way to act with contempt for infallible Church teaching that marriage (everybody’s marriage, not just Catholics’ marriages) can only exist between one man and one woman.

In short, Biden is daring the Church to do anything about it. I say, Fine, but let’s begin with what the Church cannot, at present, do about it.

Excommunication (Canon 1331) is a canonical sanction that can be imposed only for certain types of canonically criminous conduct. Not all offensive behavior in the Church is a crime and not all Church crimes are punishable by excommunication. No canon excommunicates a Catholic for officiating at a “same-sex wedding” but Pope Francis or (long story made short) Cardinal Wuerl could issue legislation making such officiating an excommunicable crime. Canon law has long responded to changing pastoral needs with new legislation, and this seems to be one more example of where new law might assist the Church in dealing with a new and grave problem.

Even Canon 1364 (providing a latae sententiae excommunication for heresy), is not applicable here (at least, not yet), this, not because Church teaching on the man-woman requirement for marriage is not taught infallibly (it most certainly is taught infallibly), but because this Church teaching might (again I say, might) only be a teaching to be definitively “held” as opposed to one to be “believed”, and it is only the contradiction of objects of belief that trigger heresy canons, not matters to be held (Canons 750, 752, 1371). A scholarly consensus, on the other hand, that Church teaching on the man-woman requirement for marriage is “divinely revealed” (which view I think has much the stronger argument), or a formal declaration by Pope Francis to that effect, would settle this preliminary doctrinal question, raising the canonical issue to the level of heresy. But even then, one would still have to confront all the usual problems besetting other latae sententiae penalty cases. And they are many.

Canon 1369, a penal norm I think vastly underused in an age when Catholics routinely bash Church leaders and teaching in the main stream media, would be a stretch on the facts of this case, and canonical criminal law does not like stretches. Breaking the law/doctrine does not prove that one was attacking the law/doctrine itself. And the penalty envisioned by Canon 1369 is not excommunication anyway.

Canon 1379 on sacramental simulation (to which two Catholics attempting to enter a “same-sex marriage” would be, I think, susceptible) would not apply to the official witness (as Biden pretended to be) of such an act and, again, the penalty for violating Canon 1379 is not excommunication.

Aside, then, from the so-called general penal norm of Canon 1399 (the special invocation of which would likely require as much work as would developing more a comprehensive reply to a Bidenesque offense itself), there remains in canonical criminal law (pace c. 1339 § 2, which is not a penalty) only the option of the particular “penal precept” as outlined in Canon 1319. But even that approach, while certainly worth talking about, looks to future conduct, not past.

But if canonical criminal law as found in Book Six of the Code is not (at least not immediately) useful against Biden’s affront to Christ’s and the Church’s teaching on marriage, canonical sacramental law as found in Book Four of the Code, especially Canon 915 therein, could be useful against Biden’s scandal. Canon 915, recall, directs ministers of holy Communion to withhold that most August sacrament from those who “obstinately persevere in manifest grave sin”.

Let’s be clear: Canon 915 is a sacramental disciplinary norm. As such, Canon 915 is not a response to canonically criminal behavior but rather it looks primarily to address the classical scandal (CCC 2284-2287) given by one’s on-going, public, objectively evil conduct. Now, standing alone, a single, albeit grave, affront to Church teaching (such as voluntarily assisting at one “same-sex wedding”) would not suffice to trigger Canon 915 (which looks for, among other things, perseverance in evil conduct), but it would certainly qualify as an especially egregious manifestation of one’s general contempt for Church teaching, a contempt that might have been demonstrated in other behaviors such as, say, on-going political support for “same-sex marriage”, and, for that matter, for legalized abortion, and so on.

Now, setting aside a very few 915 cases that could be decided on the spot (see my discussion of Canons 230/915, here), before being visited with the consequences of Canon 915, a Catholic should be formally confronted by the competent ecclesiastical authority about why holy Communion is going to be henceforth withheld and the steps required for readmission to the Sacrament explained.  I am not aware, however, of any Catholic official with canonical-pastoral authority over Biden who has ever made such contact with him. Still, whatever pastoral failing that past lack of formal contact might represent, it does not preclude their discussing his situation with him now.

And Joseph Biden, I would say, stands in obvious need of such outreach.

Update, 6 Aug 2016: Perhaps the outreach has begun?

Papal comments on cohabitation and civil marriage suggest a direction

The pope’s most recent comments on marriage point in a disturbing direction but let’s address two important matters first.

Point One. Cohabitation is not marriage.

Largely overlooked amid the furor caused by Pope Francis’ rash claim that “the great part of our sacramental marriages are null”—an assertion reckless if false (which it is) and brimming with despair if true (which it is not), a claim followed not by an apology, an official retraction, or even a bureaucratic ‘clarification’ but instead by an Orwellian alteration of the pope’s words in Vatican records—overlooked, I say, in this greater mess was the pope’s later but equally problematic comment about his being “sure that cohabitating couples are in a true marriage having the grace of marriage”. Though multi-facetedly wrong (theologically, canonically, pastorally, socially) the pope’s equating cohabitation (‘faithful’, whatever that means) with Christian marriage did not, mirabile dictu, get edited down to a platitude or deleted completely: his words are still there, “in queste convivenze … sono sicuro che questo è un matrimonio vero, hanno la grazia del matrimonio…”

Let’s be clear: marriage is marriage but cohabitation (as that word is nearly universally understood in social discourse) is only cohabitation. Where to begin?

Everybody starts off single. One stays single unless one goes through a ceremony called a wedding, at which point, one is (presumptively, at least) married. People who are married get to do certain things that people who are not married don’t get to do, like, say, submit a married-filing-jointly tax return with a certain someone and have sex with that same certain someone if they both so choose. In addition, though, married couples who are baptized get something else at their wedding, they receive a sacrament called Matrimony, and with that sacrament come very powerful graces put there by Jesus to help Christian couples living the difficult and wonderful thing called marriage.

But, if one is not married, one does not get to submit a married-filing-jointly tax return with anyone and one does not get to have sex with a certain no-one or with anyone else. Moreover, even if one is baptized (and regardless of what other sacramental or actual graces might be wonderfully at work in one’s life) a single person does not get the specific graces of Matrimony. Why? Because cohabitation is NOT marriage, let alone is it “true marriage”, and cohabiting couples do NOT share in the graces of Matrimony.

Point Two. Civil-only marriage might, or might not, be marriage.

While asserting that couples cohabiting ‘faithfully’ (?) are in a real marriage (which they aren’t) the pope also said that merely civilly-married couples are in real marriages (which they might or might not be). To understand what is at stake here we need to distinguish more carefully.

Couples, neither of whom is Catholic (i.e., most of the world), even if both of them are baptized, can marry (the Church would say, “validly”) in a civil-only ceremony. To that extent, Francis would be right to say that civilly married couples have a true marriage. But if the pope thinks that merely civilly married Catholics—and given the context of his remarks this is likely whom he had in mind—are, just as much as cohabiting couples (supposedly) are, in real marriages and enjoying the graces of Matrimony, then I have to say No, that’s wrong—even though I wish he were right. Once again, the requirement of “canonical form” (a cure that has long out-lived the disease it was prescribed to treat) seriously complicates the Church’s message on the permanence of marriage.

Because Catholics (let’s just talk Romans here) are required for validity to marry in (still keepin’ it simple) a Catholic religious ceremony, those tens of thousands of Catholics who ‘marry’ civilly-only are (outside a few rare exceptions) no more married than are couples just cohabiting (‘faithfully’ or otherwise). Moreover, because of the inseparability of the marriage contract from the sacrament, if one is invalidly ‘married’ (and ‘marriages’ among Catholics who disregard canonical form are invalid) then one does not receive the sacrament of Matrimony either nor any of its graces. Why? Because, No marriage means no Matrimony.

Here’s the rub: as virtually all of the rest of the world, including baptized non-Catholics, can marry civilly-only, they are bound to such marriages if they enter them. So, even though a civil wedding might be just as much of a lark for some non-Catholics as it is for some Catholics, only Catholics have, in virtue of the requirement of canonical form, a “Get Out of Marriage Free” card to play. And play it they do. Lots. Hence, the complications that I (and some sterling canonists going back 50 years) have been warning about in regard to Church teaching on the permanence of marriage in the face of canonical form. Thus I say, one of these days, form has to go—but this is for another discussion.

In short, if the pope had in mind non-Catholics, he would be right to say that their civil-only wedding would count toward marriage (though why he would discuss such persons with cohabiting couples escapes me); but if he had in mind Catholics (as he probably did) then he is wrong to say that such persons are truly married and are drawing on the sacramental grace of Matrimony (though it would explain why he mentioned such persons in the same breath with cohabiting couples, as neither are married).

Now, these two points being addressed, and with the debacle of assertions of massive nullity supposedly plaguing Christian marriage still reverberating, something deeper may be emerging here. Consider,

Marriage, like pregnancy, is one of those ‘either/or’ situations—either you are or you aren’t. Others’ opinions, even your own opinion, about whether you are or aren’t, are irrelevant to whether you are or aren’t. Marriage is an objective fact, not a subjective (however sincere) feeling or attitude. Continuing,

The pope’s most recent statements on marriage were not slips akin to getting the date of a meeting wrong, they are not hearsay shared by a prelate known for a flexible attitude toward accuracy or stories shared by relatives from Argentina, and they are not hints of his views left ambiguous by some obvious omission. Instead these latest assertions were calmly offered by the pope before a large and sympathetic audience, with expert advisors readily at hand, in an extended manner, all of which factors point, I think, in a consistent if disturbing direction.

And what direction is that?

This one: Pope Francis really—and I think, sincerely—believes:

(A) most marriages (at least, most Christian marriages) really aren’t, deep-down, marriages (and so the annulment process has to be sped up to dispatch of what are, after all, probably null marriages anyway, and the consequences of post-divorce marriages need to be softened because most people in those second marriages probably weren’t in true marriages the first time, and so on); and,

(B) lots of things that aren’t marriages (like cohabitation and civil-only weddings between Catholics) really are, deep-down, marriages (so we need to affirm them and assure them that they enjoy the same graces as married people, and so on).

That this is pope’s view can, I suggest, be directly determined from his own words (expunged and otherwise) and, if I am right, would explain many things, from his favoring Cdl. Kasper and side-lining Cdl. Burke, rolling out several problematic tribunal “reforms” in Mitis Iudex, and leaving ambiguous several crucial points that sorely needed clarity in Amoris laetitia. The irreducibly objective, ‘either/or’, nature of marriage would not sit well with someone who prefers subjective, flexible approaches that allow for ‘this and that’ responses, but, whatever problems the principle of non-contradiction poses here, a conviction that most marriages are not marriage but lots of non-marriages are marriage, would explain a lot.

That said, I see no way to avoid the conclusion that a crisis (in the Greek sense of that word) over marriage is unfolding in the Church, and it is a crisis that will, I suggest, come to a head over matrimonial discipline and law. If so, a key fact to keep in mind will be this: No sacrament owes so much of its theology to Church discipline as marriage owes to canon law.

Perusing the pages of, say, Jesuit Fr. George Joyce’s classic study of Christian Marriage (1933), one is repeatedly struck by how deeply indebted the development of Catholic doctrine on marriage is to the practical work of canon lawyers handling marriage matters. That the latest crisis over marriage depends so much on how canonical terms like “valid” or “null” are used, on how “marriage” and “Matrimony” are defined, or on what legally constitutes “objective grave sin” and “repentance”, should surprise no one. Catholic theology of marriage and Catholic canon law on marriage are deeply, deeply interwoven. This heavy presence of law in marriage matters even explains, I think, at least in part, why some proponents of “softening” Church discipline on marriage so often berate canon lawyers as Pharisees with stony hearts who care only about rules (oblivious to the irony that it was, after all, the Pharisees who tried to derail God’s plan for marriage.) By their defense of Church discipline on marriage canon lawyers have long been crucial in the defense of Church doctrine on marriage. And I hope we remain so.

To conclude, and prescinding from what other questions might face the Church under Francis, I think the marriage crisis that he is occasioning is going to come down to whether Church teaching on marriage, which everyone professes to honor, will be concretely and effectively protected in Church law, or, whether the canonical categories treating marriage doctrine become so distorted (or simply disregarded) as essentially to abandon marriage and married life to the realm of personal opinion and individual conscience. History has always favored the former; disaster lurks behind the latter.

Sts. Thomas More and Raymond Penyafort, pray for us.

A few notes on journalistic points made today

In a day fraught with canonical confusion may I offer a few observations on some journalistic issues I noticed along the way?

First, I find John Allen’s pooh-poohing of widespread concerns that Francis’ remarks, yet again, needed to be “walked-back” by Vatican spin doctors off-putting in several respects. Ignoring Allen’s patronizing tone and his caricaturing of Vatican critics as emitting “howls of outrage” over mere “retouching” of the pope’s words, from several passages let’s consider these.

Allen writes: There’s nothing objectionable about a pope correcting what he said, as long as we’re sure it’s actually the pope making the corrections.

Of course there is nothing objectionable about correcting mistakes: the objection is to pretending the mistakes were never made. No matter who is doing the pretending.

The alternative would be for a pope to never open his mouth until his utterances have been vetted by a team of theologians and spin doctors.

A false dichotomy: our only choices are to keep a pontifical editing intervention team on call 24/7 or to suffer a pope who never opens his mouth except to read a prepared manuscript? What about simply having a pope who understands the main issues coming before him, defers on those he is not equipped to speak on at the time, and thinks about his response to others before he discusses them? Is that so utterly unimaginable? Oh, and by the way, spin doctors are not involved in simply reporting papal utterances; they only get involved when deliberately re-writing them.

Pope Francis is hardly the first churchman to suggest that incomprehension of permanent commitments in the modern world may render many marriages contracted in church “invalid” by the traditional test of informed consent.

No, Francis is not the first churchman to make this suggestion and, given the widespread lack of canonical understanding among prelates these days, he will doubtless not be the last to leap wrongly from one’s deficit understanding of certain aspects of marriage to the nullity of one’s attempt marriage—an error Allen incorrectly describes as “the traditional test of informed consent”. (Francis’ leap, which Allen apparently shares, fails for having its having omitted the canonically crucial middle term, as discussed here.)

Second, a Vatican spokesman said Friday it’s normal practice for the pope or his aides to review transcripts of his impromptu remarks, and to make small changes before releasing an official version.

Small changes? Are we tweaking a pope who said Minneapolis when he meant Minnesota or, to use Allen’s example, simply repairing a pope’s confusion about the date of some meeting? Good grief, the pope said “the great majority of our sacramental marriages are null”; but he is now reported as saying “a part of our sacramental marriages are null.” This changes his statement from one portending shocking problematics into a truism that any sapient observer could utter or agree with. Small changes, my foot.

By the way, the notion of “impromptu” or “off-the-cuff” remarks conjures in my mind, say, a busy man who, being stopped on his way to lunch and engaged in conversation with a friend, says something he wishes he had phrased differently. But does that fairly describe Francis’ recent marriage remarks? He was the guest of honor at a major clergy conference, speaking with fellow clerics into recording equipment during a scheduled Q&A, all the while surrounded by experts and advisors. If even that setting qualifies remarks as “impromptu”, then I can only imagine that everything a pope says outside of a prepared speech read from a teleprompter must be malleable as “off-the-cuff”.

In this case, Francis and his advisers probably realized that the phrase “vast majority [of our sacramental marriages are null]” could be taken to suggest that faithful Christian marriage today is a near-impossibility …

Nooo, the pope’s advisors probably realized that the pope’s phrasing could be taken to suggest that Francis thinks “the vast majority of our sacramental marriages are null”. That’s what provoked the fire storm.

As a result, they walked the quote back to make it clear that what the pope really meant is simply that because of cultural pressures, many couples don’t fully understand what they’re getting into at the beginning. Phrased that way, most spouses – this one certainly included – would probably concur.

Nooo, the pope’s advisors watered-down the pope’s words into a safe platitude about many couples not ‘fully understanding’ what marriage is at the beginning—as if, you know, that is essentially the same thing as saying that most of their marriages are null.

And so on, and so on…

Meanwhile another veteran Catholic journalist, Phil Lawler, makes several good points along these lines with which I largely agree (especially where he quotes me). I pause, though, over Phil’s suggestion that the Crux reporter who claimed that Francis referred to certain priests as “animals” might not have understood the pope’s jumbled remarks correctly. Apparently, suggests Lawler, the pope “intended to say that some priests treat children (or possibly their unwed mothers) as ‘animals.’ He did not aim that insult at the priests themselves.”

Sorry? Would I console my insulted friend by saying to him, “No, no, Phil, I did not say that you were an animal. I said you treat some people as if they were animals. Okay? Feel better now?” Ummm, no, I would not feel better, not if the description were still false or unfair.

Well, enough journalistic musing. Back to canon law.

The missing middle term

For some twenty years I have responded to charges that American tribunals are lax in upholding marriage by, among other things, correlating the jump in American annulment numbers to several changes put into canon law by Rome itself and, more importantly, by arguing that, if pervasive social and catechetical decay really is the danger that intelligent people think it is, then annulment numbers should be rising in response to it. My thesis has earned grudging respect among some very tough tribunal critics—at least among those who think about hard issues instead of simply emoting about them—but, I need hardly say, all of this is complex stuff requiring careful analysis by qualified persons.

Yesterday, however, Pope Francis waded into one part of this long-standing controversy with the preposterous claim that “the great majority of our sacramental marriages are null” ostensibly because people do not understand what permanence is. As happens so often when amateurs plunge into technical areas that they do not understand, Francis has taken a very narrow but plausible point—namely, that a rise in marriage nullity can be linked to a drop in social commitment to permanence—and so grossly exaggerated it that, not only has he damaged his credibility in this regard, he risks contributing to the very downward spiral of failed marriages he decries by, in effect, telling struggling Christian couples that their efforts to save difficult marriages (i.e., frankly, just about every marriage I’ve ever seen) are effectively doomed given that the great majority of Christian marriages are (allegedly) already null!

As we have seen before during this papacy, some claim the pope’s remarks were “off-the-cuff” (a description belied by the video of his remarks) and the Vatican Press Office offers an Orwellian rewriting of what the pope plainly said (suggesting how severe the backlash is this time), but the bottom line is, I fear, that the pope has now given the “All Is Lost” crowd exactly what they suspected: proof that the Church is distancing itself from Christ’s hard teaching on the permanence of marriage.

May I offer amid this mess two preliminary points and a more important third?

1) Being pope makes Francis the “Legislator” but it does not make him a lawyer. Francis apparently has no training in canon law beyond whatever seminary courses he took some 60 years ago. He does not like law or lawyers and shows little awareness of the positive role that law plays in the life of any society including that of the Catholic Church. His opinions about what does or does not constitute technical things like matrimonial ‘validity’ or ‘nullity’ simply cannot be taken at face value.

2) Francis shows little understanding of how tribunals actually go about their difficult and largely thankless mission and he has apparently never experienced a functional tribunal system. Those of us who have experienced functional tribunals do not understand the mean descriptions of tribunal operations and personnel that Francis regularly offers.

Now, about that “middle term”.

3) Setting aside the bleak anthropological and theological assumptions that must underlie the claim that “the great majority” of Christian adults have failed to enter the state in life that all of them are suited for by nature and that baptized persons are especially equipped for by sacramental grace, Francis’ point that a general lessening of appreciation of ‘permanence’ is negatively impacting marriage would be generally accepted by qualified observers. But his suggestion that people’s ignorance of “permanence” (assuming that ignorance can be shown to exist on the massive scale that Francis opines, and for many reasons it cannot be), would, even if true, still fail to prove his claim of rampant marriage nullity because it skips the vital middle term of the pro-nullity argument: very briefly, ignorance and/or error about something like ‘permanence’ does not nullify marriage unless it sufficiently damages an individual’s will to enter marriage. That claim, folks, while possible to prove in specific cases, requires a demanding inquiry by persons who know and respect marriage doctrine and law, and hardly constitutes the stuff of which sweeping pronouncements about pan-Christian marriage collapse can be made. In short, even if Francis is right about growing, society-wide deficits in understanding about ‘permanence’, he is wrong to suggest that such deficits routinely (nay, he holds, in the great majority of marriages!) result in marriage nullity.

In 1988, Pope St. John Paul II, reflecting a great tradition on this point, commented in his address to the Roman Rota that the Church understands that most people enter marriage with some psychological, emotional, and formational deficits in play; nevertheless they marry confident of the validity of their marriage (even if they don’t know that technical term). Married couples, especially Christian married couples, may be sure that Christ understands their difficulties and they should presume about their marriage, even in troubled times, what the Church presumes about their marriage: that it is valid, grace-laden, and fulfilling. + + +