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.

  • grump

    “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…”

    If this is the case, there’s plenty of room in other religions to accommodate their views. Why be a Catholic if you can’t accept the church’s teachings? In the words of the immortal Groucho Marx: “I don’t care to belong to any club that will have me as a member.”

    As for the the idea of an “extraordinary” session to talk about family issues, what is there to discuss? Marriage is between a man and a woman, sanctified by God; homosexual relations and birth control are contrary to God’s law. It’s all been settled. End of story.

  • schm0e

    “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.”… and reveal new fronts in the attack on the Church by the Father of Lies.

    We have a pope who seems to be ready for a challenge. We also have a holy, humble and extraordinary “Pope Emeritus,” praying.

  • Tony

    Grump — I’ve recently found the answer to your question, in a place where I wasn’t looking for it. It’s in Max Scheler’s Ressentiment. The apostate is motivated by a “delusion of values” prompted by an emotion that goes far beyond envy. The true convert, says Scheler, embraces joyfully his new beliefs, and has no animus against what he used to believe — that is, he doesn’t feel the urge to hate. The apostate, though, never does leave the old belief. He hates the good thing that he has betrayed or lost and can no longer possess. And he persuades himself that his enmity is actually a “good” …

  • Patti Day

    Many years ago I walked into the kitchen where my mother was sitting with her dad, my grandfather, who had tears rolling down his cheeks. I had never seen a grown man cry, and not knowing what to do, I backed out of the room. Later when I asked my mom what was wrong, she told me Granddad was crying because the church was falling apart and people didn’t want to be Catholic anymore. I feel my Grandfather’s pain.

  • Paul

    I’m obviously missing something in your example of case#2.
    Even if a legal divorce was granted and the marriage was not annulled as long as neither spouse remarried or lived common law with another person, as best as possible meet financial and emotional needs of the children and went to confession as req’d. Why can’t both be in full communion with their Church?

  • Howard Kainz

    @Paul: Case#2 is not a remarriage after divorce, but a valid sacramental marriage, in which the spouses agreed about “openness to children,” which is a requirement for sacramental marriage; but one of the spouses changes his/her mind and takes measures to have no more children.

  • Myshkin

    Thanks, Dr. Kainz for a timely post. It certainly goes against the grain of the current papal blah-blah-blah. What I’m I referring to? R

    Well, as you certainly recall, in Pope Francis’ intro to the now theologically infamous talk by Cdl. Kasper to the pre-Synod gathering of Cardinals last February, he spoke disparagingly of casuistry:

    “We will seek to deepen the theology of the family and discern the pastoral practices which our present situation requires. May we do so thoughtfully and without falling into ‘casuistry’, because this would inevitably diminish the quality of our work.”

    While preaching at Mass the next day, the Pope added,

    “… casuistry is precisely the place to which all those people go who believe they have faith,” but instead reflexively rattle off precepts, he said. “When we find a Christian [who asks] if it is licit to do this and if the church could do that… [either] they do not have faith, or it is too weak.” The Pope went on to contrast these with figures from the Gospels “who do not know doctrine but have great faith.”

    “Theoretically, we can say the Creed, even without faith, and there are many people who do so,” Francis went on, pointedly adding that “even demons” do. “Demons know well what is said in the Creed,” he added, “and know that it is the Truth.”

    The other danger alongside “casuistry,” he warned, is “ideology”: “Christians who think of faith, but as a system of ideas, ideologues: even in the time of Jesus, there were people like this. The Apostle John tells them that they are the antichrist, the ideologues of faith, whatever sign they may be…. [T]hose who fall into casuistry or those that fall into the trap of ideologies are Christians who know the doctrine, but without faith, like demons.”

    So, according to this Pope’s published remarks, constructive casuistry is to be “withou faith, like demons.” What will come out of his mouth next?

  • Paul

    Thank you Professor. I totally misunderstood. Is case#2 referring to a married couple who stay married and are having marital relations but one spouse has been surgical sterilized
    against the will of the other?

  • Howard Kainz

    @Myshkin: Good point. “Casuistry” has both a good meaning and a pejorative meaning. For some, it connotes rationalization, or a focus on superficial minutiae like the Pharisees of old. But the main meaning in the Oxford English dictionary is “case-based reasoning.” For example, the last time I visited my daughter in Texas, who is a psychiatrist, I borrowed a basic manual which was left over from medical school, entitled “Case files.” It goes through various situations a psychiatrist meets up with, symptoms, possible treatments and medications, etc. Nothing dogmatic, but it helps familiarize the medical student with actual cases, with suggested approaches to bring about cures or improvements. So, by analogy, I think the study of common marital situations can be useful not only for moral theologians and pastors, but for those of us who are trying to get a handle on current Church developments. I don’t think this is the sort of “casuistry” Pope Francis was criticizing, but, as many have observed, it would help if he would be more careful about some utterances that are picked up by news media.

  • Howard Kainz

    @Paul: For case #2, sterilization would be one example; use of contraceptive devices or pharmaceuticals, against the will of the other, would be another example.

  • Manfred

    Thank you for a great review of the absurdities which are resulting in the aftermath of Vat. II. Christ said:”Do not cast pearls before swine.” You can attempt to put lipstick on post Vat. II catholicism, Howard, but it is still a pig. These couiples you describe never made a true commitment to Catholicism in the first place for the simple reason they were never taught it.

  • Paul


    Assuming I now understand you correctly regarding case #2, wouldn’t both spouses be guilty? I’ll explain my reasoning:
    For the sake of argument, let’s assume the husband had a vasectomy against the wife’s wishes but after the vasectomy the husband tells the wife everything. After discussing the situation the husband tells the wife he won’t take any steps to correct the situation. They decide to stay married for the sake of their several children. Up till now the wife is innocent. The husband is guilty of literally and spiritually breaking his wedding vows and rebellion against Church teaching I would think, but he has not yet committed the sin of having sexual relations while using birth control. But after a cooling off period they start having sexual relations again. Now even though the wife didn’t agree to the vasectomy, by participating in sexual relations with her husband knowing full well they are using birth control isn’t the wife guilty of helping her husband sin and as an accomplice after the fact as it were. The wife may not be literally guilty of breaking the law but I would think she is guilty of breaking the spirit of the law at least.

  • Howard Kainz

    @Manfred: The priest’s interpretation of Vatican II on the “separation” of procreative and unitive purposes in marriage was mistaken. Vatican II emphasized their essential unity. So the culprit is not Vatican II but the imagined “the spirit of Vatican II,” as popularly invoked by dissenters.

  • Myshkin

    @ Dr. Kainz,

    Yes, casuistry has both a pejorative meaning and a less-strident meaning favored by the Oxford English Dictionary. But since these remarks were made in Italian, not English, we really need to consult an Italian reference, not an English dictionary, to get a good sense of what the Pope might have meant. The Italian word is “casistica”.

    Incidentally, these remarks were not simply “some utterances … picked up by news media,” but were taken from official Vatican releases of Pope Francis actual words. You can consult them on the Vatican website by looking here:

    Francis > Speeches > 2014 > 20 February 20
    Extraordinary Consistory Address Of Pope Francis, New Synod Hall, Thursday, 14

    Francis > Daily Meditations > 2014 > Friday, 21 February 2014
    Pope Francis, Morning Meditation In The Chapel Of The Domus Sanctae Marthae, “Faith is not casuistry”

    So what does an authoritative Italian dictionary have to say about this Italian word, “casistica”?

    The Grande Dizionario Italiano (Hoepli, 2011) defines this primarily as “TEOL Applicazione dei princìpi della teologia morale a singoli casi pratici al fine di dedurne una norma di condotta.” There is secondary meaning which is an extension of the concept to scientific cases, which would closely align with the Oxford English Dictionary’s favored meaning. However, the primary Italian meaning is precisely the act of theological reasoning which moves from principles of moral theology to the specific cases. It is this sort of “casistica” that the Pope was disparaging.

  • Howard Kainz

    @Paul: In the situation you describe, if the husband refuses a “brother and sister” arrangement, a divorce is presumably in the offing. Would assent to a divorce be the recommended virtuous response? The wife is innocent throughout, and may be persuasive for a reversal of the husband’s vasectomy. Because of this special situation, this may be a case where the “unitive” aspect of marriage becomes all important, and rightly affects the prudential decision.

  • Karen

    It was a similar “survey” that led some on the PBCC to write the majority report. Faulty understanding of the human causes of their experiences, which they saw as separating the procreative from the unitive, led to their dissent. Karol Wojtyla, among others on the commission, had it right, the Church can not change the moral foundation of marriage and procreation. Unfortunately, the cycle of dissent and misinformation continues today.

  • LAM

    Cardinal Christoph Schonborn has stated “If we had known the consequences of that “No” to life, we would have never said “No” to Humanae Vitae, we would have had the courage to tell our brothers: “Have confidence, believe in life”, but we didn’t have the courage.” March 27, 2008.

    Given the irrefutable relationship between the contraceptive era and the ravages of divorce upon Catholic marriages and families, a request for forgiveness by Episcopal conferences for failing to have the courage to teach the truth about marriage and sexuality would seem appropriate at the Synod.

  • Paul


    Thank you for response. I think the wife would most likely seek a divorce in my scenario. If a husband behaved like that there are probably more problems. Depending on her age and the age of the children she may also seek an annulment. A special dispensation from the Church for the couple to live together as husband and wife would be unitive for them but divisive for the Church. I would think this is the problem in a nut shell.

  • Tim

    In the interest of accuracy, the Milwaukee Archdiocesan Synod has not yet occurred; however, parish and district meetings in preparation have taken place. The synod will be held Pentecost weekend. The poll referred to in the Milwaukee Journal Sentinel article was not a poll of the Synod participants, lay or religious. It was, I believe, the result of the poll commissioned by the Vatican in preparation for the Extraordinary Synod on the Family, as responded to by members, self-selected, of the Milwaukee Archdiocese.

    One of the items to be addressed at the Synod is “Marriage and Family.” A “background paper,” prepared for review by the delegates is quite orthodox in its presentation of the Church’s teaching with regard this issue. It can be found on the Archdiocesan website by following the “Synod” links.

  • Howard Kainz

    @Tim: Thanks for the clarification. The report was an initial survey preparatory for the synod, and distributed to parishes. According to the Archdiocesan website, Archbishop Listecki “invited people to participate in this consultation process. An online survey was prepared and its availability announced through parish bulletins and announcements as well as on the archdiocesan website. The Synod preparatory document was posted and people were encouraged to read the preparatory document for the context of the questions.”

  • zim

    There was a great push by progressive groups to skew the results of the supposed survey. There were even groups that tried to fill out as many online quesionnaires as possible to skew the results.
    However Archbishop Baldisserri even came out and said the survey was not intended to be taken by the average lay person, rather it was addressed to the clergy, and asked them questions about the state of faith in their parishes. However, progressive groups seized on it as a way to push their ideas.
    Faithful Catholics, on the other hand, really did not take the surveys.
    So the results of the survey are no more valid than one of those online surveys.

  • Kathy Tercheck

    Has anyone bothered to read Humanae Vitae? Has anyone bothered to read the Encyclical’s of our Popes, or read any of the teachings? You want to learn about God’s plan for our sexuality read Saint John Paul’s teachings and encyclicals repaining to the Theology of the Body. God’s plan for us is always better then our selfish ways.

  • Howard

    Behold, now you that say: 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. Whereas you know not what shall be on the morrow. For what is your life? It is a vapour which appeareth for a little while, and afterwards shall vanish away. For that you should say: If the Lord will, and if Pope Francis shall live, the Vatican will do this or that.

  • Thomas J. Hennigan

    1) Regarding our first case, the “marriage” is invalid. In other words there is no marriage if one of the spouses excludes the posibility of having children. So, the priest can be considered one of those false pastors condemned by Ezequiel and Jesus in the Gospel of St. John. He cannot plead ingornace as it would be culpable ignorance.
    2, From the viewpoint of casuistry, I would agree with your conclusion in the second casa. However, one wonders recalling that sexual intercourse is symbolic in natura and it symbollizes the union of mind heart and soul which should be present before the marriage takes place and the fact that the sacrament of marriage is a sign and symbol of the love of Jesus for his Church, fulfilled on the cross, this case presents some serious problems. The sacrament of Marriage is intimately related to the Eucharist which is the renewal of the self surrender of Jesus anticipated in the Last Supper and realized on the cross. If one of the spouses sterilzes him o herself, he or she deprives the sexual inatercourse of its true meaning and symbolizm. St Augustin was right when he stated that sexual union of husband and wife who use contraception is a kind of ceap prostitution. This case seems similar. In my opinion, the egoistic attitude of one fo the spouses havs brought about the breakdown of this marriage and if they stay together, they are not living out a true Christian marriage, although their separation would probably be traumatic for the children. If find it diffuclt to see how such sexual relations in this case would be truly marital.
    3) Let’s not forget that Jesus states: “if one blind man leads anaother BOTH fall into a pit”. There may be a case here for invincible ignorance. However, it is to be assumed that the person has some doubt about the matter and can easily find out in the Catechism of the Catholic Church what the Church actually teaches. As for such priest, I would not like to be in their skin on Judgement Day as they load onto their own consciences the sins committed due to their culpable bad adcice.The teaching of the Church is clearly available and having spent 7 or more years in a seminary, they could hardly have failed to know about it. If they are Pastors they have taken an oath of fidelity. The wording of this oath is absolutely clear. If such a person came to me and stated that another priest had told him this, I would suggest that maybe he didn’t understand what the priest said or meant. If this is not the case, I would have to tell him to read the pertinent text int the Cathecism and that the other priest is mistaken. Not very nice, but the truth will make us free.
    4) They should separate. Whether the innocent party could remarry that would have to be examined by an ecclesiastical tribunal, and at present this particular case would not make the marriage invalid, unless there were some other impediments. Then it could be declared mull.
    5) There may be a case in the case of the person who has a homosexual tendency, but again the invalidity would bave to be demonstrated in a tribubal. There may be been undue pressure by family members or other such aspects which might contribute to make the marriage invalid.

    Many Catholics in failed marriages don’t want to remarry and dedicate their time and energies to good and useful pursuits in favor of the Church, their families and the community. Besides, it is important to remind people that in the broken world of human affaris in which we live many decisions have serious consequences and perhaps for many years there is no remedy and never a quick fix to such tragic situations. The Christian is called to take up his or her cross and follow Jesus and he ended up in Calvary. In this world there are many problems which have no solution.

  • David

    I saw another commentator point out the following: Since so many disagree with Church teaching, isn’t it really an indictment on the ‘bishops’ (in terms of a blanket consensus rather than individual indictment) failure to teach over the past several decades/generations? If their duty is to preserve and pass on the doctrine of the faith, these surveys are a reflection of how well they’ve done this.