Marriage, Divorce, and Constructive Casuistry


By order of Pope Francis, the Vatican in the Fall will convene what is billed as an “extraordinary” assembly of bishops and other clerics to reexamine issues concerning marriage and divorce. In the United States and other countries, local “synods” have already been called to determine what sorts of issues are on the mind of Catholics in various dioceses.

An archdiocesan synod of this sort was requested by Archbishop Listecki in Milwaukee, and held recently. The Milwaukee Journal  summarized the findings:

The majority of Catholics responding to a survey by the Archdiocese of Milwaukee do not accept church teachings that ban artificial contraception or prohibit divorced and remarried members from receiving the sacraments. They believe the church should permit same-sex unions. And they do not consider the church as the moral authority on issues related to the family. . . .The Rev. David Cooper of St. Matthias Parish in Milwaukee, who heads the Association of United States Catholic Priests, said. . . “Once (Pope) Paul VI declined to follow the advice of his own commission on family and sexuality. . .increasingly larger numbers of Catholics lost faith in the moral credibility of the teaching authority.”

I’ve been  a member of the Milwaukee archdiocese for many years, and would estimate that the opinions expressed at this synod are fairly common in this region, among both priests and laity. Let’s hope diocesan synods elsewhere will be more aligned with Church teachings.

But even if the majority want such changes, those who expect Humanae vitae to be reversed, or same-sex marriage to be approved, are headed for disappointment. Pope Francis was not calling for an opinion poll, but rather for an intelligent discussion of cases that come up that do not seem amenable to “one-size-fits-all” solutions. And there are some modern issues that might be legitimately discussed, in view of moral theology and canon law.

Several of the following cases I am personally familiar with:

1) A young engaged couple made it known to friends and family that they do not intend to have any children. They approached the pastor of their church, revealed these intentions, and he approved the marriage, which took place some months later with a nuptial Mass. A few years later, I happened to meet this same priest, reminded him of the case, and asked how he could have approved an intentionally childless marriage. He responded that, according to Vatican II, the “reproductive” and “unitive” ends of marriage are separable, and it is important to reemphasize the unitive; also, the unitive intention is sufficient for a valid marriage. I brought out the fact that a non-procreative marriage would be presumably achieved by contraception and/or abortion; but he did not see this as a problem.

I presume that this is not an isolated case, and that many Catholic marriages are conducted with a similar ignorance or inattention to the necessity of “openness to children,” and thus are easily annullable, especially if one of the spouses decides to have children. Even the validity of such marriages is questionable. 

2) Two Catholics enter into a valid sacramental marriage. After some years, and several children, the wife decides to contracept, or the husband to have a vasectomy, against the wishes of the other spouse. If the decision turns out to be firm, and the marriage is not the sort which can survive as a “brother-and-sister” arrangement, it seems that the innocent spouse should be able to receive Communion without any sense of guilt, as long as he or she is not able to convince the recalcitrant spouse to return to original commitments.

3) Judging by the public remarks of theologians and priests, there may be many cases in which spouses are told by their confessors that there is no problem with using the Pill for “spacing” one’s family members, or just “follow your conscience.” Generally speaking, penitents are told to follow the advice of their spiritual directors, and are not held responsible for theological gymnastics in deciding whether obedience to a confessor is a sin or not. If penitents have received this sort of advice from confessors, why can they not receive Communion worthily? The “buck,” so to speak, stops with the confessors. How many Catholic faithful have read Humanae vitae, and/or can understand that use of the Pill is not just a matter of reproductive “health”?

4) The “Pauline privilege” is applied in marriages between two non-baptized persons, where one party becomes a Christian, and is able to remarry under certain conditions on the basis of the “privilege of the faith” supported by St. Paul in 1 Cor. 7:15-16. What about a “reverse Pauline Privilege” (I am not speaking of the “Petrine privilege,” which has to do with mixed marriages), in which one spouse in a sacramental marriage loses his or her faith, and even militates against it, proselytizing their children to atheism or paganism?

5) Finally, I think of a case in which a spouse, after fathering several children, decides that he is gay, and divorces. Such cases are becoming more common, and differ from other tragic marital predicaments in which a spouse becomes an alcoholic, or violent, or adulterous, or a child abuser. Technically, someone declaring himself gay is declaring impotence, which is a canonical impediment to marriage in the first place. Should this factor be relevant, if questions about the annullability of a marriage arise?

Clearly, the sexual revolution of the 1960s, and the widespread dissent regarding contraception (not to mention liberal “redefinitions” of marriage) have changed the type and frequency of issues that come up with regard to maintaining intact Catholic marriage compacts.

These are issues worth considering and I have great admiration for the canonists and arbitrators who try conscientiously to preserve sacramental marriage in our day, in the midst of the sort of challenges mentioned here – along with many others.

Howard Kainz

Howard Kainz

Howard Kainz, Emeritus Professor at Marquette University, is the author of twenty-five books on German philosophy, ethics, political philosophy, and religion, and over a hundred articles in scholarly journals, print magazines, online magazines, and op-eds. He was a recipient of an NEH fellowship for 1977-8, and Fulbright fellowships in Germany for 1980-1 and 1987-8. His website is at Marquette University.



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