When Marriages Are Legal and Also Illegal: A Response to Cardinal Müller

Last month, on November 6, the great Vaticanist Sandro Magister published an interesting analysis about the prologue Cardinal Mueller wrote to Rocco Buttiglione’s book, Risposte amichevoli ai critici di Amoris Laetitia (Ares, 10 November 2017). There Magister shows the following:

[T]he cardinal … envisions – explicitly – only one case of possible access to communion for a Catholic who has gone on to a new union while the first spouse is still alive. And it is the case in which the first marriage, although it was celebrated in church, is to be considered invalid because of the absence of faith or of other requisite essentials at the moment of celebration, but such invalidity “cannot be proven canonically.”

In which case, Müller writes,

“It is possible that the tension seen here between the public-objective status of the ‘second’ marriage and the subjective fault could open, under the conditions described, the way to the sacrament of penance and to holy communion, passing through a pastoral discernment in the internal forum.”

Now, no one has pointed out that the case hypothesized here by Müller is the same one that Joseph Ratzinger had envisioned and discussed, both as theologian and as pope, he too admitting the possibility of access to the sacraments, always and in any case with a decision made “in the internal forum” with a confessor and with caution not to generate public scandal[.]

A careful examination of the documents of the Council of Trent and of the different opinions expressed in relation to Amoris Laetitia shows that this is perhaps the only point that has not been intellectually clarified. There are many other confusing points – due not to a lack of intellectual clarification, but to a lack of publicity for the intellectually solid positions already expressed. For this reason, I think it is important to tackle this present point.

Magister rightly points out that Benedict XVI himself had doubts concerning this very point: when a baptized person who gets married with the sacramental rites but without faith and afterward, having abandoned his first spouse and joined a second one, converts. These doubts were expressed by Cardinal Ratzinger, before he became pope, in a 1998 article. They were grounded in the opinions of some theologians according to whom canon law would have to do with ecclesiastical norms and not with divine norms.

However, the opinion of the theologians mentioned by Cardinal Ratzinger are not accurate. Canon law has to do with divine law plus (as any law) natural and positive norms. What divides canon law from morality more accurately is that “law” (or, better said, “right,” objective ius) is what must be recognized and declared by the prudence of the judge. Right encompasses, regarding marriage, the same norms and problems of morality that the consciences of private persons have to consider when they want to make a right decision.

Sometimes, however, the private person has certainty in his or her conscience of a matter of fact that he cannot prove. Thus, there is a division and a difference, but they lie in the prudence of the judge and the prudence of the private person, not in the norms or problems involved.

The canonical dimension of the Church excludes that a person acts according to his certainty against the judgment of the Church judge or official. John Paul II considered this issue in a more general way in Familiaris Consortio 84 and concluded that the Church cannot grant communion to the faithful who find themselves in such situations: there are some “who have entered into a second union for the sake of the children’s upbringing and who are sometimes subjectively certain in conscience that their previous and irreparably destroyed marriage had never been valid” (FC 84). Precisely thinking of these persons, he declared that they may not receive the sacraments due to the requirements of Holy Scripture. It is hard, I know, but then perhaps this is how persons in such situations carry their own crosses and follow Christ.

Benedict XVI himself, once become pope, confirmed this doctrine in two enlightening paragraphs, contained in the post-synodal apostolic exhortation Sacramentum Caritatis, n. 29, which I copy here and which was quoted by Magister in 2011:

29. If the Eucharist expresses the irrevocable nature of God’s love in Christ for his Church, we can then understand why it implies, with regard to the sacrament of Matrimony, that indissolubility to which all true love necessarily aspires. There was good reason for the pastoral attention that the Synod gave to the painful situations experienced by some of the faithful who, having celebrated the sacrament of Matrimony, then divorced and remarried. This represents a complex and troubling pastoral problem, a real scourge for contemporary society, and one which increasingly affects the Catholic community as well. The Church’s pastors, out of love for the truth, are obliged to discern different situations carefully, in order to be able to offer appropriate spiritual guidance to the faithful involved. The Synod of Bishops confirmed the Church’s practice, based on Sacred Scripture (cf. Mk10:2- 12), of not admitting the divorced and remarried to the sacraments, since their state and their condition of life objectively contradict the loving union of Christ and the Church signified and made present in the Eucharist. Yet the divorced and remarried continue to belong to the Church, which accompanies them with special concern and encourages them to live as fully as possible the Christian life through regular participation at Mass, albeit without receiving communion, listening to the word of God, eucharistic adoration, prayer, participation in the life of the community, honest dialogue with a priest or spiritual director, dedication to the life of charity, works of penance, and commitment to the education of their children.

When legitimate doubts exist about the validity of the prior sacramental marriage, the necessary investigation must be carried out to establish if these are well-founded. Consequently there is a need to ensure, in full respect for canon law, the presence of local ecclesiastical tribunals, their pastoral character, and their correct and prompt functioning. Each Diocese should have a sufficient number of persons with the necessary preparation, so that the ecclesiastical tribunals can operate in an expeditious manner. I repeat that “it is a grave obligation to bring the Church’s institutional activity in her tribunals ever closer to the faithful”. At the same time, pastoral care must not be understood as if it were somehow in conflict with the law. Rather, one should begin by assuming that the fundamental point of encounter between the law and pastoral care is love for the truth: truth is never something purely abstract, but “a real part of the human and Christian journey of every member of the faithful”. Finally, where the nullity of the marriage bond is not declared and objective circumstances make it impossible to cease cohabitation, the Church encourages these members of the faithful to commit themselves to living their relationship in fidelity to the demands of God’s law, as friends, as brother and sister; in this way they will be able to return to the table of the Eucharist, taking care to observe the Church’s established and approved practice in this regard. This path, if it is to be possible and fruitful, must be supported by pastors and by adequate ecclesial initiatives, nor can it ever involve the blessing of these relations, lest confusion arise among the faithful concerning the value of marriage.

The issue was solved by Benedict XVI and by John Paul II, as one can see, in accordance with what I have called the canonical nature of the Church.

There is another intervention by Cardinal Müller that requires further examination and a brief comment. Since the prologue to Buttiglione’s book provoked a lively discussion, the cardinal gave many interviews to answer to his critics. In one of them, published on November 9, he stated:

In Latin America, for example, there are many marriages which are celebrated without canonical form, where you have couples who live together but one cannot know if there was effective consent to be married. I was recently in Haiti. There the situation is disastrous: all are called spouses, they live together, but they are formally married neither in the Church nor civilly. When some of them get more mature, they begin to attend the Church, and at that point, one must establish who is the true spouse. Here it is very important that the person be honest and declare sincerely with whom he or she has expressed true consent because it is consent that is of the essence of marriage, not only the canonical form. In any case, for the admission to the sacraments, it is the parish pastor or the bishop who has to clarify the situation in cooperation with the freedom of the faithful.

This paragraph suggests many reflections. One is that Europeans tend to consider with condescension what they call the “Latin American” Church. We Latin Americans do not want that. There are enormous problems in the faith of Europeans, and we do not think our problems are bigger than theirs.

Besides this, before the Council of Trent, marriage was contracted “solo consensu.” But the council changed that precisely because of the abuses this system allowed. Don Quixote has a couple of examples: men contracted marriage just to obtain what they wanted and afterward denied being married, leaving the women in the moral persuasion that they were not allowed to marry again without committing the sin of bigamy but without canonical means to enforce their marriages on the men. Thus, the canonical form was established as essential.

As Francis of Vitoria has taught in his commentary to the Summa Theologiae, when a solemn form is established for a juridical act, the violation the formality entails the nullity of the act in both the internal and the canonical forum:

If [an act could be valid in the internal forum while it is invalid in the canonical forum,] without a doubt the rights of human beings would have been established after a flawed deliberation and such rights would be ill established. It is proved: the allegation of the lack of form would be useless and very dangerous in the canonical forum if such defect had no effect in the internal forum. To say that a right exists in the canonical forum with which right human beings could be condemned [by God] would be absurd, because the laws [in truth] provide rather to the health of the soul than to that of the body[.]

So the Haitians are not married without the canonical form. There could be exceptions, but they have to be in accordance with canon law. A good example of these exceptions is given by cardinal Müller himself, in the same interview recently quoted:

There are particular circumstances – for example, in regimes that persecute the Church – where to marry canonically is impossible. Let’s give as an example North Korea.

That is a good example. Another one could be that of the Japanese Catholics, who for more than two centuries, until the end of the 19th century, formed a community of only laypeople, since the clergy was exterminated in the 17th century. They had only two sacraments: baptism and marriage. Of course, this is an exception in accordance with canon law. But here, too, the assertion of nullity must be in accordance with Christ’s law, even if perhaps a canon court cannot know the case and the sacrament was celebrated without the canonical form.

I think that with these considerations, sufficient light has been shed for the moment on the issue, which still requires some intellectual clarification. Let’s pray that this effort and the effort of many other Catholic authors who strive to be faithful to the solemn Magisterium of the Church reach the “peripheries” with God’s favor.

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