I do enjoy watching neoTrads ... who were last week were arguing vehemently to not permit use of the internal forum ... and this week want to rewrite Church history on the use of this ancient Catholic teaching ... to make the internal forum into an external forum ... well sorry to tell you ... but that issue has already been decided by the Vatican ... no sale pal.
I looked with some skepticism at Pope John Paul II’s call to divorced and remarried Catholics to “come home” in the year 2000 (an invitation echoed by many bishops around the world in anticipation of the Jubilee Year). The appeal was unrealistic, perhaps even thoughtless. In the pope’s view, many Catholics who are divorced and remarried cannot get annulments, and, therefore, according to Church discipline, they are unworthy to receive the Eucharist. So the pope’s invitation—“Come home”—has an unwritten postscript: “But don’t expect to stay for supper.”
As many commentators on Vatican II have pointed out, the Fathers of Vatican II gave us a new view of the Church-in-history. They saw the Church as ever-growing, ever-changing, and, in doing so, they helped humanize the Church in remarkable new ways. This move was not a concession to human weakness. It was based on the theology of the Incarnation. God chose to enter human history, and, in so doing, told us that it was more than okay to be human. Those who would like to see the Church bless the human, and take a human approach to the remarriage issue like to cite the changes that have occurred in the Church’s teaching-and-practice concerning marriage over the centuries. They say that knowing some of this history may help us see things in a better perspective.
During the first three centuries of Christianity, churchmen had no legal say in the matter of marriages, divorces, and remarriages. Furthermore, there was no liturgical ceremony for marriage as there was for baptism and the Eucharist. It wasn’t until the year 400 or so, that Christians were bidden to seek an ecclesiastical blessing on their marriages. (It is interesting to note that the only ones obliged to do that were married bishops, married priests and married deacons.) As far as we know, the idea of marriage as a sacrament was first proposed by St. Augustine, the first and only patristic author to write extensively about sex and marriage. Even after Augustine, through the seventh century, Christians could still get married in a purely secular ceremony. Marriage was declared a sacrament for the first time by the Synod of Verona in 1184. The Church didn’t deem marriage definitely indissoluble until the Council of Florence in 1439.
As for indissolubility, Christians have always been aware of what Jesus was remembered to have said about divorce, but we haven’t been quite sure what those words meant. A leading Catholic Biblical scholar, Raymond F. Collins, says there are eight versions of Jesus’ teaching on divorce, and there is no easy way of identifying which one reflects that teaching in its pristine form.
Perhaps this is a good thing. At their core, Jesus’ teachings were mostly about freedom. When he spoke of law, he usually did so to insist that we live according to its spirit and not its letter. The one group he most inveighed against were those Pharisees who insisted that everyone, including Jesus himself, follow the letter of the law. When those Pharisees challenged Jesus for healing a man on the Sabbath, he responded with great common sense, asking “Is man for the Sabbath, or the Sabbath for man?”
Over the centuries, a good many Christians have been inclined to slip into a pattern of over-interpreting “a word of the Lord,” using his words in ways that deadened his own declaration, that he had come that we may have life and have it more abundantly. Were Jesus’ words about divorce prescriptive? According to many Catholic scholars, they were probably not. St. Paul himself made one exception. As time passed, other Church elders (including some of the Fathers of the Church) chewed over Jesus’ words. Interpretations grew apace. Inevitably, the interpretations were conditioned by the times.
The words of Jesus in Matthew 5:32 and 19:9 were thought by early exegetes to condone divorce in the case of adultery. Those verses led to freedom for the innocent party to remarry. But early Church leaders made unfair use of that interpretation. The local council of Elvira in Spain in the early 300s prohibited a woman from remarrying if she left an unfaithful spouse, but said nothing to prohibit a man from doing so. In the East, Basil of Caesarea wrote in 375 that a woman who was unjustly deserted by her husband would be regarded as an adulteress if she remarried, but a man who was unjustly deserted by his wife could be forgiven if he remarried. On the other hand, there are some feminist scholars today who say that Jesus’ prohibition against divorce was itself culturally-conditioned; his condemnation of divorce was an effort to counteract an abuse he observed among Jewish men of his time, who would divorce their wives, making them automatically unfit for another, because, we are told, no self-respecting Jew would marry a divorced woman.
It is interesting to note how the Eastern Orthodox churches, where married men can become priests (but not bishops), developed their own traditions. They have a long tradition affirming that a validly contracted marriage is dissolved only by physical death. Nevertheless, these churches recognize divorce in the face of unbearable marital discord, which they say is a kind of death. The Orthodox Churches do not dissolve a dead marriage. Rather, the churches “formally acknowledge that the legitimate marriage is without foundation and has been dissolved ipso facto. The Eastern Orthodox see divorce and remarriage as the exception, not the rule, but when they do, they do so in imitation of “the mercy and understanding exercised so profusely by our Lord during His life.”
The Western Church has taken a different tack, particularly since the Council of Trent (1545-1563) which laid down rules and regulations along lines that would have been unrecognizable to members of the early Church, East or West. Since Trent, the Church has publicly proclaimed the indissolubility of marriage, a large body of law on marriage, and a correspondingly large legal apparatus to deal with it. All the while, popes were granting divorces to everyone but Catholics.*
More than 400 years after Trent, some of the Fathers of the Second Vatican Council (1962-1965), took issue with many of Trent’s legalisms, and the Council itself produced sixteen documents that set the Church in a new pastoral direction. Anomalously, the Church’s legal apparatus surrounding marriage remained in place, possibly because of an unwillingness to challenge the settlements of the last 400 years. That situation, however, is changing. Bishops from around the world (for example, the bishops of Japan and Germany) have been calling for less strict norms than those enunciated by Pope John Paul II in his support of the revised 1983 Code of Canon Law. In 1994, three of the ranking bishops in Germany issued a joint letter to their people which said they were taking a new look at the remarriage question. They did not argue with official Church teaching about the forever aspect of sacramental marriage. They did say there ought to be “room for pastoral flexibility in complex, individual cases.”
That view is shared by a large majority of American Catholic theologians and canonists. The polarization between opinions of many theologians and canonists on the one hand and traditional positions taken by Vatican officials on the other, now seems extreme. The perception of a need for change is fueled by western culture’s massive contemporary experience of the breakdown of marital relationships and by the gradual recognition of legitimate differences in cross-cultural interpretations of marriage and family.
What should Catholics do? First, we should grow up. Many of us have been too ready to accept the prohibitions enunciated in Church law, and we have been so other-directed in matters of Church discipline that we have had a hard time making our own decisions. And we should remember that Church laws on marriage are a matter of discipline, not dogma. One way to grow up is to use that distinction between discipline (which is reformable) and dogma (which isn’t reformable) to assert what we believe are our rights.
What are our rights? On the remarriage issue, we have the right to seek an annulment. When we have problems with the annulment process, we also have a right (and a duty to ourselves and our families) to explore other alternatives.
The process became somewhat more lengthy than it was, thanks to some new conditions introduced in the 1983 Code of Canon Law. Since then, decisions in one tribunal are subject to automatic review by another, appellate, tribunal—which leads of course to more delays. In some other respects, the 1983 Code made the annulment process easier. Tribunals can more readily accept the word of the individual seeking an annulment, sometimes even without the testimony of the other spouse. Tribunals are making greater and greater use of one annulling impediment, which they term “lack of due discretion” at the time of marriage. Many marriages that have gone awry can come under this rubric. Under it, and 13 other causes of nullity, U.S. diocesan tribunals are now petitioning from Rome, and receiving, some 58,000 annulments every year ... but that is still only two percent of divorced Catholics in the USA ... with ninety eight percent approval.
What about the other ninety eight percent? Do we simply wring our hands over all those apparent failures and falls—and the consequent alienation from the Church that often follows? No. We can also do something. If the papacy isn’t ready to confront this issue with any measure of realism, we dare to speak for the wider Church. We presume to advocate a number of things that can help otherwise faithful Catholics find a way to full membership in our community.
There is a pastoral solution that is compassionate, reasonable, and theologically sound. It’s called the “internal forum solution.” Never heard of it? We’re not surprised. It has been one of the better-kept secrets in the Catholic Church. Parish priests use it all the time, in a confidential setting, including, sometimes, the confessional. That’s why it’s called “the internal forum.” (The external forum is the annulment process we’ve just described.)
The internal forum is something private, something we work out in prayer and reflection on the state of our own consciences. Sometimes, in order to do that, we may need to seek the help of a priest, in or out of the sacrament of reconciliation. Sometimes, we may seek the advice of a therapist, or another Catholic couple, or members of our own families.
Those who read the Catholic press in this country surely know there’s a split between priests and bishops who follow the letter of the law and those who sometimes opt for common sense instead. Some do not know that there have been many behind-the-scenes clashes on the internal forum question among our priests and bishops, with the follow-the-law clergy on one side and the common-sense clergy on the other. We can, however, cite some of the recent, open clashes.
* In June 1972, Bishop Robert Tracy of Baton Rouge, Louisiana, encouraged couples in his diocese to come back to the sacraments if they were convinced that they were truly married and that their prior marriages were either not valid or simply dead—even without a decision from Tracy’s marriage tribunal. I understand that at that time other bishops around the country (in Boise, Idaho, and Portland, Oregon, to name two) were also admitting couples to a full Eucharistic life who were exercising the internal forum solution suggested by Bishop Tracy.
That was too much for Cardinal John J. Krol of Philadelphia, then president of the U.S.C.C.B. He announced that a study on this question was under way by the newly-formed National Conference of Catholic Bishops and by the Holy See. He referred to a letter from Rome saying that, until the matter was decided in Rome, “dioceses are not to introduce procedures that are contrary to current discipline.” In September 1972, the NCCB’s administrative board sent the results of its study on the question to Rome.
* On April 11, 1973, Cardinal Franjo Seper, the head of the Congregation for the Doctrine of the Faith (CDF) in Rome, wrote back to the president of the NCCB. He spoke about the danger of any new moves (he did not mention Bishop Tracy by name) that would undermine Church teaching on the indissolubility of marriage. In other words, he said Rome did not approve of any changes in “the external forum.” But then he went on to urge that pastors bring divorced and re-married Catholics back to the sacraments by “applying the approved practice of the Church in the internal forum.” What did Cardinal Seper mean by this “approved practice?” He may have been thinking of what came to be Canon 1116. Or he may have simply been aware that moral theologians had been advocating the internal forum solution for centuries, according to the principle of epikeia.
The leadership of this country’s National Conference of Catholic Bishops wanted something clearer. What did Cardinal Seper mean by “the approved practice of the Church?” On March 21, 1975, Archbishop Jerome Hamer, OP, secretary of the CDF, delivered this response to Cardinal Krol’s successor in that elective office, Cardinal Joseph Bernardin: ” . . . [T]his phrase must be understood in the context of traditional moral theology. These couples may be allowed to receive the sacraments on two conditions, that they try to live according to the demands of Christian moral principles and that they receive the sacraments in churches in which they are not known so that they will not create any scandal.”
In other words, following their own informed consciences, according to Archbishop Hamer, those in second marriages could return to full Eucharist life. (He didn’t say, and couldn’t have meant, “only those who are living as brother-and-sister may go to communion.” If a couple wasn’t having sex, why would anyone think it scandalous that they were going to Communion?) But, said Hamer, these couples in irregular marriages should not trouble the consciences of others by making a big show of it. To receive the Eucharist, they might well have to associate themselves with another parish .
But there was a faction among the U.S. bishops that tried to get Vatican approval of even more explicit guidelines. In 1977, an NCCB committee wrote up some uniform procedures regarding the internal forum, proposing that all such matters be approved by the bishop or his delegate, who would have to arrive at a moral certitude that the couples in question were really challenging the validity of their first marriages before they could be admitted to the sacraments. The Vatican balked at that, pointing out that marriage tribunals were already providing this moral certitude “in the external forum.” Asking a bishop to approve particular applications of the internal forum was really an attempt to make the internal forum into some kind of external forum. In attempting to keep the two forums separate, the Vatican was giving U.S. Catholics more freedom than the NCCB committee was willing to grant.
I applaud this 1977 Vatican move to preserve the internal forum. It set the stage for the 2015 Family Synod Bishops to pass and recommend the Church permit use of the internal forum in cases of divorse-remarriage. It now remains to be seen what Pope Francis will do with the recommendation ... buy I am fairly confident that it is his priority to reform a broken annullment system.
I have a sense here of déjà vu. Much the same thing happened during the birth control debates of the 1960s, when the pope’s own commission met over a four-year period to reconsider the Church’s traditional ban on contraception. The papal teaching wasn’t that old at all; it went back to 1930. The commission recommended a change in the view that contraception was sinful in every instance. But Pope Paul VI responded in his 1968 encyclical Humanae vitae by re-affirming the teaching of three previous popes. By then, four years into what had become a heated worldwide debate, many Catholics had already decided for themselves. If contraception was immoral, then the pope couldn’t give couples permission to employ it. If it wasn’t immoral, then they didn’t need his permission. They made this confident decision by following a long-standing tradition in the Church called probabilism. If Catholics found differing opinions in the Church on any moral issue, with reputable authorities on opposite sides, they didn’t have to follow the stricter view—because the law was truly “in doubt.” And doubtful laws do not oblige. That is not a free pass ... but when ninety percent of catholic families responsibly dissent ... the magisterium ignores the Sensus Fidei at its own peril.