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A linguistic concern occasioned by an important debate over synodal proposals

On the Church’s short list of “Crucial Concepts to be Taught Right”, the relationship between personal conscience and objective moral norms ranks pretty near the top.

Among instantiations of chronic confusion regarding the relationship between conscience and doctrine, that which infuses the debate surrounding contraception has become, I am sorry to say, a classic. Add that Humanae vitae is to be addressed (if briefly) by the upcoming Synod of Bishops (itself already mired in controversy) and one may be tempered to despair that anything useful will come on these matters at this time from that institution. But try one must to teach the truth clearly no matter what the circumstances, and so I pause to remind that clear teaching requires, first, clear language. Literally.

First Things has just published “An Appeal” to the approaching Synod for clear teaching on conscience formation. The authors of the appeal and an impressive list of co-signatories raise serious questions about certain expressions being proposed by synodal authorities to set out Church teaching on conscience. Meanwhile other leading thinkers in this area (e.g., Dr. Janet Smith) question their questions. So far, this is the stuff of which great debates in the Church consist. I am not qualified to weigh in on this one and so refrain from even trying.

But I can’t help noticing, with regret, that both sides are debating points being made (or not?) in an English translation (accurately rendered?) of an Italian original (is it ‘the original’?). And I wonder, since when has Italian become the international language of Catholic doctrine?

It is one thing to accept the practical necessity of Italian for running the Vatican bureaucracy (or not running it, as the case may be). But it is quite another to have Italian serve as the vehicle for proposals officially expressing Catholic doctrine, doctrines that are, by their very nature, not national or ethnic, but Catholic and therefore, to recall the etymology of the very word “Catholic”, universal. If the relationship between conscience and moral norms really ranks near the top of topics to be taught correctly in and by and to the Church, then should debates about the written expressions of such a topic turn on appreciating the Italian way of phrasing such teachings? I trust the answer to that question is self-evident.

Without getting into whether Latin is the “official language” of the Church (I happen to think it is not and will defend that thesis in an upcoming article), Latin is unquestionably the primary language of the Catholic Church and, for well over a millennium, it has been the international language of formal Church teaching. The doctrinal clarity and ecclesiastical stability that comes with the use of Latin must never be surrendered. Fundamental assertions about fundamental aspects of Church teaching should be made solely in the one language that is fundamental to the Catholic Church, Latin, on which assertions, I say, let vernacular debates blossom with fruitful abandon.

Nah, that twern’t no smear

Always good when Fr. Z has your back, but I don’t think the AP and US News & World Report are trying to “smear” me over my critiques of Mitis Iudex, esp. this one. Yes, their article reporting on (some of) my views is too short (I deserve much more attention—not), but I don’t think it unfair. Or did I miss something?

I do have one concern, though. The article says that I have warned that “Pope Francis’ new reform of the church’s marriage annulment process … could lead to ‘crises of conscience’ for even happily-married Catholics.” Not quite.

I did not specify “happily” married couples. There was a reason.

Since it has come up, yes, I do think the list of fast-track annulment factors might negatively impact some happily married couples by sowing doubts about the validity of their marriage where previously there was none, but I am more concerned about the impact the pope’s list might have on ‘sort-of-happily’ married couples, for those are more prone to self-doubts, worries, anxieties, or suspicions than are “happily-married” couples. I fear that some of these struggling couples, knowing their marriage would be eligible for expedited nullity processing (given the presence of one of more of the factors listed in Mitis) might yield to attitudes and actions that can, over time, like a self-fulfilling prophecy, lead to despair for their marriage.

And that’s a pity.

The pope’s niece might be on to something

Pope Francis’ niece, María Inés Narvaja, thinks she understands her uncle’s interest in fast-track annulments. Yes, the lawyer in me cautions that Maria’s attributions of statements to her uncle, then-Abp. Bergoglio, are hearsay, but, we’re not in a courtroom, we’re in the blogosphere. Besides what Maria says about the future Francis is illuminating.

Maria recalls that she (or her intended?) applied for an annulment but was told by Argentine Church officials that her case would take four years. She reacted with a young-woman-in-love’s “pffft!” and announced that she would marry civilly. Per María, her uncle endorsed the idea. Maybe, maybe not, that’s not the question here. The question is whether Maria’s (or her intended’s) annulment case would really have taken four years (despite 1983 CIC 1453, setting 18 months as the norm). Personally, I believe her.

I once worked on a marriage case that (fascinating canon-law-of-jurisdiction details omitted) could have been heard in either America or Argentina. Both tribunals turned to Rome for guidance, with the Argentine tribunal asking that the case be heard in the USA! They said their cases take an average of, yes, four years to process. That delay was not necessarily the Argentine Church’s fault; they probably did not have the resources to hear marriage cases more quickly. But it lends support to Maria’s claim about long delays in Argentine tribunals and that in turn would help explain Francis’ impatience to fix an obvious pastoral problem.

Of course, what might well be a serious problem in one Church need not be a problem in another, and a cure for a problem—setting aside whether the cure itself is really a good one—imposed where a cure is not needed can actually cause even more problems. Still, it’s an interesting insight into Francis’ attitudes.

Three more quick points from the article:

1. Apparently Abp. Bergoglio fired a tribunal worker for demanding a bribe. That’s good. Canons 1389 and 1456-1457 take a dim view of tribunal personnel demanding bribes.

2. Pope Francis has said, it seems more than once, something like: the Church says ‘Yes, it’s true, your marriage is annulled, or no, your marriage is valid.’ I know what the pope means, but this phrasing is not accurate. Marriages might be proven null, but—long story made short—they cannot be ‘proven valid’. Marriages are presumed valid, and that’s as far as law dares inquire.

3. It seems that Abp. Bergoglio once fired a lawyer who wanted to charge $ 10,000 to handle “both cases”, civil and ecclesiastic. I have no idea what divorces cost in Argentina, but in the US, a contested divorce (usually the contest is over assets and children) can easily cost ten grand. Now in Roman law countries, and in contrast to common law nations like the USA, it not infrequently happens that lawyers are trained in both civil and canonical systems of justice and so they might be licensed to handle “both cases”. If so, one can well imagine that the charges related to the canon law case would be a small fraction of those related to the civil proceedings.

A second look at Mitis, especially at the new fast-track annulment process

In an earlier post today I applauded most of the reforms of the annulment process issued by Pope Francis in Mitis Iudex Dominus Iesus. I offered some additional positive remarks about Mitis on my “Canon Law” Facebook page. I mention these points not to win a hearing for the criticisms of Mitis I will make below, but to save the trouble of reiterating what I generally like about the document.

Through five new canons due to take effect in early December 2015, Pope Francis will authorize diocesan bishops to hear and decide, personally and very expeditiously (in roughly one-tenth the time presently needed) certain types of marriage nullity petitions, and he published an official explanation of his new process in the form of a “Ratio procedendi”. I think these five canons and the official explanation that accompanies them raise several serious questions for ecclesiastical marriage law. I will make two brief points about the canons themselves and then look at the official explanation.

The New Canons

First, New Canon 1683 n. 1 declares eligible for expedited processing petitions that are presented by both parties to the marriage or by one party but with the “consent” of the other. This provision is unsettling.

If the older canonical tradition wrongly assumed that a respondent necessarily opposed an annulment, this new norm wrongly, I think, makes relevant a respondent’s “consent” to an annulment petition. While a respondent’s participation in the tribunal process is always sought and is usually helpful in adjudicating marriage cases, his or her consent to a nullity petition is never necessary for the Church to exercise jurisdiction over a case and, more to the point, it is not indicative of the merits of the petition. Making mutual agreement to a petition an element of hearing that petition quickly risks confusing two things that the Church has long sought to distinguish, namely, the parties’ laudable cooperation with the tribunal’s search for truth and their collusion with each other toward a specific outcome. Treating nullity petitions in which the parties agree radically differently from those wherein they disagree, sends a dubious message.

Second, the tenor of these five new canons does not reinforce the unalterable fact that every annulment case—no matter how many pastoral, sacramental, or spiritual consequences it might have, and they usually have many—is fundamentally legal in nature. The inescapably legal character of annulment cases explains why nearly every significant tribunal officer must have a degree in canon law. Legal training matters for those treating legal issues.

The new speedy annulment process, however, allows (I would say, pressures) bishops who are not necessarily canon lawyers (Canon 378), to rely heavily on a report drafted by someone who need not be a canon lawyer (Mitis, Art. 3), after conferring with an assessor who need not be a canon lawyer (Canon 1424), to rule upon a marriage that, besides enjoying natural (‘intrinsic’) indissolubility, might be sacramentally (‘extrinsically’) indissoluble as well. And note, these new speedy annulment cases are not cases that can already, under some circumstances, be processed quickly by documents because they deal with lack of canonical form or lack of canonical capacity. Canon 1686 mox 1688. No, these fast-track annulment cases plainly turn on questions of consent to marriage—consent, long and by far the most complex topic in marriage canon law. True, a judicial vicar must provide certification that the petition proposed for speedy processing meets certain evidentiary criteria, and the defender of the bond is allowed to respond to the petition, but the judicial vicar is not making a judgment as to nullity when he verifies the presence of certain evidence, and the defender has drastically less time to work on a case slated for expedited processing than he or she has for a formal case. In sum, this general lack of awareness of the inescapably complex legal nature of marriage consent shown in these new rules is disturbing.

There is more to be said about the new canons themselves, but we must also look at the explanation Francis provided as to how these news canons should work in practice.

The Accompanying Explanation

Article 14 of the Ratio lists ten or twelve factors that enable an annulment petition (to which the parties agree) to be heard in a fast-track process. Note that the factors listed are simply examples of things enabling an annulment case to be heard quickly. Clearly, it is expected that other factors will also suffice.

The factors listed so far are (my trans): lack of faith that results in simulation of consent or an error that determines the will; brevity of married life; abortion procured to prevent procreation; stubborn persistence in an extramarital affair at the time of or just after the wedding; improper concealment of sterility or of a serious and contagious disease; concealment of children from a previous relationship; concealment of incarceration; entering marriage for reasons completely foreign to married life; unplanned pregnancy of the woman; physical violence inflicted to extort consent; lack of use of reason proved by medical documents; and so on.

Where to begin?

Looking at the examples offered—and setting aside the incoherence of some phrasings such as “abortion procured to prevent procreation”—they confuse several complex aspects of consent law, they seem to treat some fact patterns as if they were quasi-impediments to marriage, and they introduce into consideration some matters that have little (perhaps no) jurisprudence behind them with which to assist bishops assessing their significance in a marriage case. Worse, in my opinion, the enunciation of these factors is going to create crises of conscience among faithful who live with one or more of these conditions in their past.

The most confusing point about this list is that some of these factors, though presented as reasons for hearing a petition quickly, are actually grounds for nullity (e.g., simulation, force or fear); other factors, however, are most emphatically not grounds for annulment (e.g., brevity of married life); and others might, or might not, be suggestive of grounds for nullity (e.g., an extra-marital affair near the time of the wedding might show a grave lack of discretion of judgement or an inability to assume matrimonial rights and duties). Because traditional grounds of nullity have been mixed in among things that could be evidence for other grounds of nullity, and further mixed with things that are not grounds for nullity and often are not even evidence of grounds for nullity, confusion will—and already has, judging from questions I have already received from the faithful—erupt as to whether these factors are not just reasons to hear a case speedily, but are themselves proof of matrimonial nullity. Try to explain to non-canonists why one thing the pope listed (say, simulation) is grounds for an annulment but another thing he listed (say, pregnancy) is not grounds for an annulment.

Worse, many, many married couples have experienced one or more of these events in their lives. Unfortunately—again I say this has already started!—people with any of these factors in their lives are going to wonder, logically and sincerely, whether their marriage might be null. They will worry, for example, whether the fact that she was pregnant at the time of the wedding means their marriage is null. If not, why does it mean that an annulment case could be heard more quickly? Or, if he was not very active in the Faith when they married, did he just pretend for (technically, simulate) his wedding promises? Many of these questions are obviously highly dependent on fact analysis (e.g., what is “improper concealment” of infertility, what counts as “incarceration”?), and so one must ask, how are such cases reliably to be investigated, considered, and decided by a bishop (a man with about a hundred other things to do at any given time) in a matter of a few weeks?

Of course, in no time, this list of reasons to hear nullity cases quickly will lengthen greatly. And why not? If physical violence to extort marriage consent justifies a speedy hearing from a bishop, should not physical violence inflicted during the marriage also qualify? If pregnancy at the time of the wedding is grounds for a quick process, should not drug or alcohol or sexual abuse qualify as well? Last year Cdl. Kasper recklessly, but perhaps accurately, claimed that Francis believes half of all marriages to be null. I think that assertion, no matter who said it, is wrong, but it will take little imagination to conclude that half of all marriage cases should qualify for quick adjudication by diocesan bishops. Finally, if factors such as previous jail terms, abortions, or affairs leave a couple’s marriage liable to expedited annulment processing, is there now an obligation on couples to disclose such matters to each other—regardless of the implications such disclosures might portend for personal privacy and the internal forum?

Looking ahead

At the pope’s request, a tiny group of experts, most from just one country, developed these new canons and explanations in a very short time. I find, however, the implications of some of these norms for marriage law in general, and for diocesan bishops in particular, stunning, and I join Dr. Kurt Martens of CUA in wondering how bishops must feel at having such significant burdens thrust on them just in time for Christmas with, as far as one can see, virtually no prior consultation. I expressly cautioned against this approach last year and sound that claxon again. Assuming, in any event, that I have read the new norms correctly, and assuming that there are no easy resolutions to my concerns, what might one suggest?

First, and most importantly, the vacatio legis (a delay period before new laws go into effect per Canon 8) indicated for Mitis should be extended from this December until well into next year at the very least. If, as some assert, Francis’ annulment reforms are the most significant in the last three hundred years, a considerably longer period than three months is needed to prepare for them. If necessary, a request for an extension could be proposed by the upcoming Synod of Bishops.

Second, a much wider consultation about annulment reform should be conducted, a consultation that would involve, at a minimum, many identified diocesan bishops (identified precisely so observers could forward remarks to them) and canonists from several countries, especially from countries with extensive tribunal operational experience.

I repeat, some aspects of Mitis are sound. The elimination of mandatory appeal, for example, can be put into effect with minimal delay. But other aspects of Mitis, especially the fast-track annulment option, need, I suggest, considerably more study. I only hope sufficient time is accorded the wider Church to make such studies feasible.

Update: A Spanish summary of this post is now available.

A first look at Mitis Iudex

The Latin text of Pope Francis’ Mitis Iudex is here. The document comes in four discernible parts: introductory remarks, an eight-point summary, new canonical norms (for Canons 1671-1691), and a “Procedure for cases declaring the nullity of marriage”. Looking, for now, ONLY at the eight Roman numeral headings summarizing the pope’s introductory remarks, my observations are:

I. Una sententia pro nullitate exsecutiva. This portends a significant change in the law, eliminating the current requirement that all affirmative cases (i.e., nullity was declared) be reviewed by a “second instance” tribunal, essentially, a careful re-examination of the first decision. Canon 1682. Optional appeal remains in place. Canon 1628. I have always said that mandatory review is not required for justice under natural law and that it serves, in my opinion, little practical value in canon law. Some respected voices in canon law would disagree with me on that. The delays associated with mandatory review were, in my opinion, exaggerated by tribunal critics, but this step will certainly shorten the overall process.

II. Iudex unicus sub Episcopi responsabilitate. This represents little or no change in the law. Bishops have always appointed tribunal judges. Canons 1420-1421. With routinely-granted episcopal conference permission, bishops could already assign marriage cases to sole, clerical (including deacons) judges. Canon 1425 § 4. It appears that such permission need no longer be sought.

III. Ipse Episcopus iudex. This represents little or no change in the law. Bishops have always been the first judges in their dioceses. Canon 1419 § 1. Exhortational language that bishops play a greater role in hearing actual cases is to be followed in light of, among other things, the demands already made on bishops’ time and their personal training and/or aptitude for technical juridical work.

IV. Processus brevior. This represents a very, very significant change in the law. I must address it separately.

V. Appellatio ad Sedem Metropolitanam. This will be a minor change in the law made practicable by the elimination of mandatory second instance. The canonical tradition has long preferred judicial appeals to be made to the metropolitan (usually, the archdiocesan) tribunal. Canon 1438. The current burdensome system of special appellate tribunals, handling mostly affirmative marriage cases, was an expedient for the processing of mandatory nullity appeals. Eliminate those, and this reform follows.

VI. Episcoporum Conferentiarum officium proprium. Beyond some exhortational language that might portend further local reforms, this implies what would actually be a minor change in the law and practice of the US. Setting fees for tribunal services is the responsibility of bishops. Canon 1649. Such fees, charged (if at all) only in first instance, covered, by my estimation, less than half of the real expenses incurred by US tribunals for marriage cases. What other countries might have charged for their annulment cases or what marriage cases actually cost in Rome, I do not know. But charging any fees for annulments was a constant public-relations problem for the Church. Myths of high fees and the innuendos associated with payments to Church figures abounded. While Francis seems to leave room for tribunals to charge “administrative expenses”, it seems like annulments are now supposed to ‘look free’. Whatever that means in the practical order it appears that tribunal fees will now be a matter of episcopal conference concern.

VII. Appellatio ad Sedem Apostolicam. This represents no change in the law. Appeal to Rome has always been a fundamental right of the faithful. Canons 331, 333, 1417, and 1442. The complex norms regulating appeals to Rome are not changed herein.

VIII. Provisiones pro Ecclesiis Orientalibus. Canonical housekeeping, alerting readers that separate norms for marriage cases in Eastern Catholic Churches apply to those churches.

More, when I can.

Update: A second look at Mitis.

Is Kim Davis a hypocrite?

Kim Davis—the Kentucky official jailed for refusing marriage licenses to same-sex couples on the grounds that issuing them would violate, among other things, her Christian beliefs about marriage—is a Protestant but I think her actions can be usefully assessed from a Catholic point of view. Her case also affords an opportunity to clarify some subtler points of Church teaching on divorce, so I’ll write at somewhat more length than is usual here.

Most criticisms leveled at Davis fall into three kinds: vile and vicious hate-speech; ad hominem attacks (Davis has been divorced several times, so pffft!); or red-herring arguments (a minor state bureaucrat cannot define marriage). We may ignore these criticisms. But one criticism of Davis’ refusal to cooperate with ‘same-sex marriage’ does have some traction: Davis apparently issues marriage licenses to persons whom she knows (or could find out) are civilly divorced, contrary, it seems, to biblical teaching against divorce and remarriage. Does she not thereby violate Christian doctrine and, if so, is she not being hypocritical by refusing marriage licenses to same-sex couples on religious grounds? Those seem like reasonable objections and I propose to defend Davis against them.

Aside: Analysis of religiously-minded state officials’ cooperation with civil divorce and remarriage is not new among Catholics, for Christ’s teaching on the permanence of marriage has always been upheld more rigorously among Catholics than it has among Protestants. If Catholics civilly divorce and remarry at nearly the same rate as do Protestants—and I think they do—at least such Catholics know they are acting contrary to the demands of Faith. Indeed, the ecclesial consequences of such behavior among Catholics is what all the hubbub was about at the last Synod of Bishops and what it is likely to be about at the next. In any event, it has been encouraging to see some important Protestant thinkers, as they confront ‘same-sex marriage’, begin to reconsider their acceptance of divorce and remarriage.

Before anything else, we need to be clear that divorce itself is not absolutely prohibited in the Christian tradition. Christ’s own words here are firm but nuanced (see Matthew 5 and 19, Mark 10). The Catechism of the Catholic Church n. 2383 states “If civil divorce remains the only possible way of ensuring certain legal rights … it can be tolerated and does not constitute a moral offense.” And Canons 1151-1155 and 1692-1696 of the 1983 Code, although seldom invoked these days, provide a mechanism for regulating (not prohibiting) the faithful’s approach to civil courts for divorce decrees.

No, it is not divorce per se (pastoral tragedy that it usually is) that attracts the Church’s special attention in this context, but rather, divorce-and-remarriage; so we ask, is Davis’ cooperation with remarriage after civil divorce hypocritical given her refusal to cooperate with ‘same-sex marriage’? I think not.

Consider: there are two kinds of civilly divorced people—divorcees whom the Christian tradition regards as ineligible for remarriage, of course, and—this is crucial—divorcees whom the Christian tradition regards as eligible for remarriage. That is a vitally important distinction to bear in mind.

The patently biblical Pauline Privilege (I Cor. 7: 10, 1983 CIC 1143) makes possible in the eyes of the Church (or in the eyes of God, if we need to say it) the remarriage of someone who is unquestionably already married. But without a civil divorce decree that biblical right to remarriage would be, as a practical matter, useless. The State, quite reasonably, demands a divorce decree before issuing a marriage license to anyone who was, at one point, married (if the former spouse is still alive, etc.). Assuming such a decree, a divorced Christian, properly invoking the Pauline Privilege, may enter a new marriage in full accord with biblical and Church teaching. Such a marriage, we would insist, should be recognized as a marriage by the State. Similarly—at least as far as Catholics are concerned—Petrine Privilege cases and ratum non consummatum dissolutions, both of which enable previously married persons to enter a new marriage with the Church’s blessing, would be devoid of practical effect without a decree of civil divorce. Finally, ecclesiastical annulments (at least those decided on grounds not also recognized by the State—such as undispensed holy Orders or disparity of cult) would be virtually useless toward a desired new marriage if those relying on these Church rulings had no civil divorce decrees.

In short, Christianity acknowledges that at least some persons with civil divorce decrees have the right, in accord with biblical teaching and Catholic doctrine, to enter new marriages even while their former spouses are still alive. Thus in issuing marriage licenses at least to these classes of divorced persons—and setting aside for now how a county clerk could know such religious details about strangers—Davis is not acting contrary to Christian doctrine and any consequent allegation of hypocrisy fails on its face.

On the other hand, some (even many) persons with civil divorce decrees are not the beneficiaries of a biblical or ecclesiastical exception to the rule against divorce-and-remarriage nor have they been proven to have entered a canonically null marriage. May a conscientious Christian civil official still issue marriage licenses to divorced persons in light of the odds that many such persons are likely to be violating Christian teaching against divorce-and-remarriage, and yet not be acting hypocritically by refusing to issue marriage licenses to same-sex couples on religious grounds? I think that a religiously-aware State clerk may issue marriage licenses to civilly divorced persons without acting hypocritically by refusing same-sex couples their requests for marriage licenses. Here’s why.

Civil divorce is now deeply, deeply entrenched in Western law. Like weeds among the wheat (Matthew 13), routine divorce cannot, I think, be pulled from the American marriage scene without an upheaval whose costs would likely exceed the benefits. Adding that divorce per se is not always contrary to Christian doctrine, and that some civil divorces actually enable subsequent marriages that Christians themselves should honor, I think issuing civil licenses to divorced persons—persons who might, upon careful examination, be found eligible for a subsequent marriage even by Christian standards, and in any case when refusal must come about, if at all, only after a widespread, legislatively authorized social reform—is defensible in the practical order. Reform of civil divorce law is, I think, necessary, but the routine practice of divorce itself, and sinful remarriage after divorce, is primarily a spiritual wrong to be addressed primarily by spiritual remedies.

The situation is, however, very much different with regard to ‘same-sex marriage’. Not one shred of doctrinal or juridical support for ‘same-sex marriage’ can be found in the multi-millennial Christian tradition or in the classics of natural law jurisprudence. Indeed, asserting marriage as being possible between two persons of the same sex is contrary to infallible Church teaching and is probably, strictly speaking, a heresy rendering Catholics liable to excommunication. Marriage pre-existed the Church and it even pre-existed the State. As the primordial human relational institution it is beyond the power of any human authority to alter the fundamental definition of marriage as the union of one man and one woman. A State-imposed imposition of ‘same-sex marriage’ on a society is not simply an abuse of marriage (as, say, anti-miscegenation or pro-polygamy laws abused marriage), but is instead the imposition of a fundamental falsehood on society, a falsehood that damages the rule of law, the use of language, and the stability of the family.

So where does all of this leave a State official like Kim Davis?

In the exercise of his or her civil duties, a State official begins with the assumption that (subject to a longer list of caveats than most people seem to realize) human beings have a fundamental right to marry. An official therefore needs a reason—a good reason, considering that marriage is a fundamental human right—to refuse specific persons a marriage license. To this, I trust most would agree. Now, compare two scenarios.

Scenario A: Two persons of the opposite sex walk into a civil registrant’s office seeking a marriage license. Assume that one or both are divorced. Does a State official, striving to live in accord with Christian values, have a reason—a good reason—for refusing that pair a marriage license? I think not.

When divorced persons walk into a civil servant’s office seeking a marriage license—assuming the civil official even knows of the divorce(s)—there is no way that the State official would know whether said persons were beneficiaries of re-marriage privileges granted in the Bible or by Christian tradition, or whether they had been in marriages that the Church would have regarded as null from the outset. Civil inquiry into such matters, moreover, besides being burdensome in the practical order, would inevitably involve State officials in inquires of a purely religious nature—something common sense discourages and Constitutional law generally prohibits. Thus, an official would not have access to sufficient evidence to overcome the general presumption that persons have the right to marry, and so, their right to marry must prevail. Davis apparently does, and should, issue marriage licenses to divorced persons even if she suspects that, along with some divorced persons who will remarry in accord with sound Christian doctrine, some divorced persons will remarry in violation of Christian doctrine. But like the guilty who escape this world’s justice by the technicalities of laws designed to protect the innocent, God knows who those malefactors are and He will deal with them in His own time; meanwhile the social disorder that is certainly introduced by serial marriage cannot be repaired—and might even be worsened—by an executive officer’s solitary stab at reform. A civil clerk’s issuing of marriage licenses to civilly divorced persons is defensible in light of biblical teaching, ecclesiastical tradition, and natural law jurisprudence.

Scenario B: Two persons of the same sex walk into a civil registrant’s office seeking a marriage license. Does a State official, striving to live in accord with Christian values, have a reason—a good reason—for refusing that pair a marriage license? I think so.

An official need not know anything about the two people before him or her, beyond that they are of the same sex, to know that they cannot marry no matter what the Supreme Court, or the Obama administration, or nearly all of the mass media say and therefore refuses their request for, of all things, a marriage license. Davis’ refusal to issue marriage licenses to same-sex couples is defensible in light of biblical teaching, ecclesiastical tradition, and natural law jurisprudence.

In sum, I believe that Davis is, from a Christian and from a natural law perspective, acting defensibly both in issuing marriage licenses to divorced persons and in withholding them from same-sex couples. As such she should not be accused of acting hypocritically.

Save in one respect, Reno’s essay on Kim Davis is excellent

Rusty Reno has a fine essay over at First Things addressing the Kim Davis matter. I differ, however, with one paragraph therein. Reno writes: When the Supreme Court issued its decree, American civil law ceased to define marriage and instead became a law of civil unions, with the word “marriage” now having no real meaning. With that sort of reasoning, I might be able to wiggle my way toward signing licenses that say “marriage” but really mean “civil union.”

I wish the Supreme Court had only enshrined same-sex civil unions in law; such a ruling we might have lived with. But that is not what the Court did. Instead five justices imposed on marriage (true marriage, natural marriage, traditional marriage, whatever pleonastic phrase one wishes to use) the lie that marriage includes the union of two persons of the same sex. This judicially imposed lie is not a ‘little white lie’ that might allow one to hide a surprise birthday party, it is not a ‘public figure lie’ (half of which aren’t true in the first place), and it is not even a ‘planted lie’ designed to deceive military enemies or dangerous criminals. Instead, the Court has published a naked, gross falsehood that tears simultaneously at the fabric of law, language, family, and society.

The word marriage has, and will always have, an objectively true meaning—no matter how many times it has been degraded by sinful societies (usually by its legal institutions but more lately by its mass media) and by many recalcitrant individuals (including some religious leaders). Justice Kennedy’s atrocious prose in Obergefell can no more deprive marriage of its meaning than, say, Barney’s insipid theme song (“I love you, you love me, we’re a happy family”) can deprive family of its meaning. Instead, Kennedy the Judge and Barney the Dinosaur teach something seriously false about marriage and family. But while Barney’s lyrics simply make one queasy, Kennedy’s words are now the pretext to throw people who do not accept his lie into jail.

The actual text of whatever document one is called upon to sign or certify is crucial to determining whether one may sign or certify it. I’ve not seen a Kentucky marriage license and so defer to those who have. But this much is certain: any document that declares two people of the same sex to be married, one may not sign or certify.

With that caveat in mind, again, I recommend reading Reno’s important essay.


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