Synod Final Report Pits Conscience vs. Canon

COMMENTARY: Relying on the private judgment of a remarried divorcee to establish invalidity in his or her own case cannot be a reliable rule for reception of Communion. Third of four parts.

Cardinal Walter Kasper claims that Pope Francis told him that 50% of marriages today are invalid.
Cardinal Walter Kasper claims that Pope Francis told him that 50% of marriages today are invalid. (photo: Wikimedia Commons)

When considering the concern that the synod’s final report’s “way of accompaniment” for divorced-remarried Catholics gravely violates Church doctrine and practice, one might reply that no norm is being contradicted, since these oft-stated prohibitions all presume the validity of the first marriage, but the liberty granted under the new “way” is grounded in a remarried divorcee’s judgment that his or her first marriage was not valid.

To this, the Church has traditionally replied: The question of invalidity must be resolved objectively in the external forum, that is, in a public way, where all factual evidence for invalidity can be duly considered. Relying on the private judgment of a remarried divorcee to establish invalidity in his or her own case cannot be a reliable rule. As Cardinal Joseph Ratzinger repeated in 1998, nemo iudex in propria causa (“No one is judge in his own case”). The then-prefect of the Congregation of the Doctrine of the Faith continued:

“If divorced-and-remarried members of the faithful believe that their prior marriage was invalid, they are thereby obligated to appeal to the competent marriage tribunal, so that the question will be examined objectively and under all available juridical possibilities.”

The procedural norms prescribed by canon law for establishing invalidity are necessary for safeguarding the unity of the Church and the objectivity of the review. In 1995, in his annual “Address to the Roman Rota,” John Paul II explicitly warned against attempting to resolve questions of invalidity in the internal forum:

“Whoever would presume to transgress the legislative provisions concerning the declaration of marital nullity would thus put himself outside, and indeed in a position antithetical to the Church’s authentic magisterium and to canonical legislation itself — a unifying and in some ways irreplaceable element for the unity of the Church. Therefore, care should be taken to avoid answers and solutions ‘in foro interno,’ as it were, to situations that are perhaps difficult but which can be dealt with and resolved only by respecting the canonical norms in force.”

This requirement of an objective juridical review corresponds to the presumption of the validity of marriage mentioned in canon law (Canon 1060, Canon 1085 §2). Church law presumes that Catholics who marry according to proper form in the Church are validly married. This presumption is grounded in a more common presumption necessary for the proper ordering of any political community. We presume that adults who execute important actions know what they are doing, mean to do it and are capable of doing it. In other words, we presume their acts are valid. This presumption can be overridden in the face of persuasive factual evidence. And so Catholic divorcees who believe that their first marriages are invalid can invite the Church to investigate the evidence to see whether the belief is well grounded. They themselves, however, are not, as a rule, in a position to undertake that objective investigation.

Think of the confusion that would ensue if a community presumed that the socially significant acts of its members were invalid. What would be the consequences for contracts, powers of attorney, significant promises, etc.?


‘Fifty Percent of All Marriages Are Invalid’

During an interview with Commonweal magazine in 2014, Cardinal Walter Kasper claimed that he had spoken to Pope Francis, who had told him that “he [the Pope] believes that 50% of marriages [today] are not valid.” Since the attribution to Pope Francis has never, to my knowledge, been established, let us refer to this, rather, as Cardinal Kasper’s belief. And let’s interpret it as generously as possible. Rather than saying half of all natural marriages — i.e., all marriages on earth — are invalid, let’s say that half of all putatively sacramental marriages are invalid. Is this plausible? For the sake of argument, let’s say it is. What now?

Well, before taking any action, the Catholic Church would have to admit that it has badly failed the Christian people, and so failed Jesus, in the last half century; not only failed at marriage preparation — but certainly that — but also failed at catechesis for the youth, formation and training for young adults and providing adequate support for married couples; that it failed at its pedagogical duties in Catholic secondary schools and colleges and universities; and even failed at seminary training, since priests have been insensible to the fact that half of those whose marriages they witnessed should never have married in the Church. Moreover, Christian parents would have to admit they failed to raise their children so as to be ready and able to follow their personal vocations. We would also have to presume that the majority of this half — say tens of millions of baptized Christians — who thought they were getting married were not in fact getting married; invalidity happened, as it were, without their knowing it, something indeed strange to presume.

But presuming all these things, we might ask: Now that we know the sad state of affairs, is the correct response to introduce the “way of accompaniment and discernment”? Manifestly no.

Why? Because, according to Cardinal Kasper's belief, still half of marriages would be valid; and so, a significant number of remarried divorcees who entered the “way of accompaniment and discernment” with a priest would in fact be married. And if they are married, nothing but the death of one of the original spouses can end the marriage bond. This is what we mean when we say that a consummated Christian marriage is absolutely indissoluble: not merely that persons should not enter into a second marriage, but that they cannot. A second marriage is impossible.

How can a priest in the internal forum — i.e., without a public examination of all due evidence for invalidity — know with moral certitude which marriages are and are not valid? In most cases, he cannot. Moreover, since marriage is necessarily and publically a community of two-in-one-flesh, how can a conversation in the internal forum — the content of which necessarily excludes public examination and disclosure — with only one of the spouses ever be adequate for rendering a judgment on the marriage?

So even if we accept the 50% number of the Cardinal Kasper belief, conscientious priests still must presume that the original marriages of remarried divorcees whose original marriages were in the Church, consummated and not yet found to have been null, are valid; and therefore presume that the sexual intercourse with current partners is adulterous.


Facilitating an Ignorant Conscience?

But then, couldn’t he (the priest) assist remarried divorcees to come to the conclusion that they are not morally responsible for their adulterous actions? The synod final report, in Paragraph 85, implies that this could be acceptable.

Paragraph 2 begins by asserting correctly that diverse conditions can diminish or erase a person’s subjective guilt for his actions; and it goes on to reference the Pontifical Council for Legislative Texts as affirming, again correctly, that even if a person chooses something objectively wrong, we should not necessarily conclude that the person is sinning, adding that sometimes it is very hard for people to act differently than they do. The final report then moves to the following conclusion:

Therefore, while sustaining a general norm, it is necessary to recognize that the responsibility for specific actions or decisions is not the same in all cases. While taking into account the rightly formed conscience of the person, pastoral discernment must take on the weight of these situations. Also the consequences of actions done are not necessarily the same in all cases.

The text makes a distinction between recognizing the general norm (that adultery is wrong) and recognizing the degree of subjective culpability of penitents for violating that norm. It implies that subjective culpability should be taken into consideration when a priest is discerning whether to facilitate a divorcee’s return to the sacraments.

But no degree of subjective innocence, including fully invincible ignorance, can change the truth that adultery is gravely wrong and that it is harmful and self-destructive to the people who do it and to those around them, whether or not subjective guilt is imputable. A good priest, like a good parent, assists his children to avoid what is harmful to them.

So a priest could not rightly assist remarried divorcees, who are doubtful in conscience about their second unions — and only people who have some doubts will enter into the “way of accompaniment and discernment” — to believe that their sexual activity with their current partners is not gravely sinful. He could only do this by assisting them to believe one or more of the following erroneous propositions: 1) that consummated Christian marriage is not always indissoluble; 2) that sexual activity with someone other than one’s true spouse is not always adulterous; 3) that adulterous behavior is not always wrong; or 4) that because they lack something necessary for fully voluntary action, their adulterous behavior could only ever be venially sinful.

If he succeeded in assisting them to conclude any one of these things, he would knowingly conspire in their forming of an erroneous conscience, which a good pastor would never do.

E. Christian Brugger, the senior fellow in ethics and director of the fellows’ program

at the Culture of Life Foundation in Washington, holds the

Stafford Chair of Moral Theology at St. John Vianney Theological Seminary in Denver.

Parts one and two of this series can be found here and here.