Papal comments on cohabitation and civil marriage suggest a direction

On his blog “In the Light of the Law” the Canon Lawyer, Dr Ed Peters, writes :

June 18, 2016

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.

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