The Debate over Catholic Marriage

THE Roman Catholic Church holds that marriage between Christians is more than a social institution or a physical bond. In its view, it is a sacrament: a spiritual union that bestows supernatural gifts on the marriage partners. Moreover, it is indissoluble. As Jesus Christ told the Pharisees, "What God has joined together, let no man put asunder." Divorce, the church concludes, is an evil: civil divorce, but not remarriage, is permitted only to those Catholics who have been allowed to live apart by ecclesiastical courts. For a Catholic who wants to remarry and remain in the church, the only escape from an intolerable marriage is to receive a declaration of nullity from a church tribunal--a decree that says, in effect, that a valid marriage did not exist in the first place.

Last week U.S. Catholics learned that, for them at least, the antiquated, labyrinthine annulment procedures will finally be simplified and shortened. With Rome's approval, the National Conference of Catholic Bishops announced that the process, which often took several years, and sometimes as many as 20, can now be completed under the new procedures in less than eight months. To help clear clogged tribunal dockets, and for other "grave reasons," a single judge rather than a panel of three may now be permitted to hear a case. Some petitioners will no longer have to face double jeopardy. If the facts of a case are clear enough after the first decision, the church may now waive the hitherto mandatory requirement that a second trial, in another court, confirm the decision of the first. Though the concessions were moderate and applied only to the U.S. for a three-year trial period, they seemed designed to mollify a growing chorus of protest--much of it from critics within the church--against the entire annulment process.

Two years ago, Monsignor Stephen J. Kelleher, then presiding judge of the New York archdiocesan marriage court, caused an ecclesiastical stir when he suggested that an individual should have the right in conscience to decide whether he might civilly divorce, remarry and responsibly remain a participating communicant in the Catholic Church. Now, such suggestions are not uncommon. A group of Catholic churchmen meeting in Germany last summer acknowledged that the ideal of permanent marriage is not easily achieved in practice and that Catholics involved in successful second marriages should not be denied the sacraments of the church, as canon law now requires. One American canonist in Rome notes that the law does not work anyway, since it frequently proves no deterrent to civil divorce. "The old penalties--excommunication, suspension, interdicts--have less and less meaning or effect today," he says.

One of the angriest attacks to date against Catholic marriage laws is made by Author Morris L. West (The Devil's Advocate), a divorced and remarried Catholic, and Robert Francis, an Anglican, in their new book, Scandal in the Assembly. The book appears to owe a considerable debt to a scholarly but not widely circulated 1967 work, Divorce and Remarriage, by a U.S. canonist, Monsignor Victor J. Pospishil. But it dwells more extensively on the individual injustices created by the incredibly complex code of canon law on marriage. Indeed, the authors charge that present Roman Catholic marriage laws are "bad laws, derogatory of hu man dignity and based on un-Christian concepts of the human person." Church marriage tribunals, they allege, fail "to dispense either natural justice or Christian charity."

Roman Bias. Most galling to the authors is the Roman legal bias in the laws, which places more regard on the form than on the content of the marriage: on the marriage rite itself, on the intent of the partners at the moment of marriage and on the physical consummation of the union, rather than on any evidence of spiritual growth in what is held up as a spiritual bond. Impotence, for instance--either total or relative to the other partner--invalidates a marriage. So does lack of free consent by one or both parties (as in a "shotgun wedding"), or pre-agreed conditions that in the church's eyes violate the idea of true marriage, such as a refusal to have children. West and Francis argue that the church is wrong in its assumption that any person baptized a Catholic is a practicing Catholic and therefore contracts a valid sacramental marriage. Many nominal Catholics, they argue, have little understanding of the sacramental nature of marriage--and even less intention of patterning their conjugal lives on it.

If the Catholic marriage partners end up in an ecclesiastical court, they come face to face with the ancient Roman concept of jurisprudence--guilty until proven innocent--instead of the Anglo-Saxon juridical concept, which embodies the opposite assumption. However much a petitioner may be convinced that his marriage exists in name only, the marriage bond is presumed to exist unless proved otherwise. The 639-year-old Sacred Roman Rota, the ultimate court of appeals in marriage cases (it annulled only 182 marriages worldwide in 1969), sets the pattern that diocesan and regional tribunals are expected to follow. When in doubt, judges in all matrimonial courts are required to rule in accordance with the ancient church dictum in favorem matrimonii--in favor of the marriage bond. To ensure just that, the Vatican added in the 18th century a "Defender of the Bond" as a figure in every marriage trial, to argue --regardless of the facts of the case --that the marriage be found valid.

With the burden of proof thus on the petitioner, trials have dragged on for years. One virginal wife in Italy, charging that her marriage had never been consummated by her impotent husband, found that her case rested on the intactness of her hymen. Her only recourse, through six years of investigation, has been steadfastly to guard her virginity--and the case still remains undecided.

Open Concubinage. Where secular divorce is permitted, the easiest solution for many disgruntled Catholics is simply civil divorce. But in Italy, Spain and ten other Catholic countries, church influence on the state has made annulment the only way out of a marriage, and hardship stories are commonplace. For some, despite the fact that the church will often waive actual trial costs, the process remains too expensive because they must still pay for such important incidentals as medical examinations. One hapless Italian has been legally married to a hermaphrodite since 1936 because he cannot pay the fees --roughly $1,500--for the required medical examinations. Even with money, the process is by no means easy. Only an average 325 annulments are granted annually by Italian tribunals. Film Director Michelangelo Antonioni waited eight years for a decree. Producer Carlo Ponti gave up and became a French citizen to marry Sophia Loren.

For many Italians, inured to such delays, the answer lies in open concubinage. Italian Author Gabriella Barca, in her book / Separati (The Separated Ones), estimates that at least 800,000 Italians live quite publicly with second "wives" and families. The church, however, is adamantly opposed to a pending Italian divorce bill and even briefly took to Vatican Radio to beam its protest to the Italian people. Yet the Vatican's own reforms--even such enlightened measures as the new American regulations--will be crippled by a woeful lack of skilled manpower. One fairly optimistic Vatican canon lawyer estimates that only 18 of the 160 U.S. dioceses have an adequate tribunal staff.

Total Overhaul. Many critics think that the present system of ecclesiastical marriage tribunals should not so much be revised as abolished--and that all canon law on marriage needs total overhaul. Authors West and Francis argue that a person's confessor ought to have primary discretion in determining a moral right to remarry in "obvious cases" of marital tragedy. In doubtful cases a pastoral group of clergy and married persons, competent in medicine, law and domestic relations, might be consulted. Similar parish teams have been suggested in Germany to investigate and possibly approve remarriage in the church itself. In the meantime, couples who have been divorced but successfully remarried, the critics generally agree, should be welcomed to the sacraments of the church. A person should no more be excommunicated for an irregular marriage, they argue, than for other aberrations from Christian ideals.

Such changes, the reformers contend, are consistent with early Christian practice, which tolerated irregularities in the community on the presumption that Christians were working toward perfection but had not achieved it. Moreover, the traditional definition of what kind of marriage is "sacramental," and thus indissoluble, is also being questioned. Recent Catholic theology has begun to suggest that sacramental marriage is not something achieved judicially, by a marriage ceremony and physical consummation, but grown into through a long process of living, and lov-'ng, together.

Roman Catholic Moral Theologian Bernard Raring, professor at Alfonsiana Academy in Rome's Pontifical Lateran University, suggests that a valid marriage might never grow into a sacramental marriage. "If a marriage is dead," he argues, "it has no sacramental value. Even if it were a valid marriage, it is no longer valid if it has died." Three Jesuits at Rome's Pontifical Gregorian University have even asked whether sacramental marriage vows, like solemn religious vows, might not be subject to church dispensation. Monsignor Pospishil, in Divorce and Remarriage, indeed flatly affirms that the church's "power of the keys" clearly extends to sacramental marriage. Such new views, predict West and Francis, will be a long time taking hold. In the meantime, they argue, tolerance can go a long way toward assuaging the anguish of so many Catholics.

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