MARRIAGE AND IN THE PAPACY OF FRANCIS: THEMES OF

MERCY AND ACCOMPANIMENT

Thesis

Submitted to

The College of Arts and Sciences of the

UNIVERSITY OF DAYTON

In Partial Fulfillment of the Requirements for

The Degree of

Master of Arts in Theological Studies

By

Victoria Ellie Vela, B.A.

Dayton, Ohio

August 2020

MARRIAGE AND ANNULMENTS IN THE PAPACY OF FRANCIS: THEMES OF

MERCY AND ACCOMPANIMENT

Name: Vela, Victoria Ellie

APPROVED BY:

______

William H. Johnston, Ph.D. Advisor

______

Jana M. Bennet, Ph.D. Faculty

______

Dennis M. Doyle, Ph.D. Faculty Reader

______

Daniel S. Thompson, Ph.D. Chairperson

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© Copyright by

Victoria Ellie Vela

All rights reserved

2020

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ABSTRACT

MARRIAGE AND ANNULMENTS IN THE PAPACY OF FRANCIS: THEMES OF

MERCY AND ACCOMPANIMENT

Name: Vela, Victoria Ellie University of Dayton

Advisor: Dr. William H. Johnston

The focus of my thesis is on the indissolubility of sacramental marriage in light of

Francis’ changes to in his motu proprios, , and the 2014 and

2015 on the . I proceed through a close reading of the primary texts related to marriage, namely, the midterm and final reports on the Synod of the Family and Pope

Francis’ Mitis Iudex Dominus Iesus, Mitis et Misericors Iesus, and Amoris Laetitia. In addition to these primary texts, my study draws on relevant, scholarly works on Francis and his initiatives. Each of the primary texts provide unique developments to the teaching and practice of the and ought to be understood in light of the predominant themes of Francis’ papacy, particularly mercy and accompaniment. I will present these ecclesial developments as consistent with and advancing the spirit of the traditions of the . I will also argue that these primary sources serve as a way to move past polarization and find common ground in terms of the different understandings of marriage today. The paper begins with an investigation of the history of the indissolubility of marriage in order to understand how this concept has evolved and where there may be room for further development. I then briefly discuss the Synod on the

Family and its documents, and this provides the context for understanding the foundation on which Amoris Laetitia was developed. Next, the changes made to the

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process through the motu proprios are analyzed to determine how they contribute to the way the Church cares for people in “irregular” situations. In doing so, I hope to shed more light on the subject of as inherently related to theology and pastoral care. My thesis also seeks to understand why and how the Catholic Church can reconcile the statement that “ is an evil and the increasing number of is very troubling”1 with the streamlined changes made by Francis in the annulment process.

The thesis concludes with an analysis of the Post-Synodal Amoris

Laetitia, which provides the final explanation of marital indissolubility.

The goal of this thesis is to contribute my own assessment of the doctrine of the indissoluble bond of marriage as a necessary teaching that deserves further exploration and to suggest that the changes made by Pope Francis are done in the spirit of developing the Church’s efforts in ministering to her people. Through critically evaluating the traditional notion of marriage on which the Catholic Church relies, we arrive at a place where dialogue can take place. This is the climate Pope Francis is seeking to foster for the Church, and this thesis aims to defend the of his perspective.

1 Pope Francis, The Joy of : Amoris Laetitia (Washington, D.C.: Conference of Catholic Communications, 2016), no. 246.

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DEDICATION

Dedicated to my and my .

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ACKNOWLEDGMENTS

My sincere thanks go to Dr. William Johnston, my advisor, for aiding me in bringing this thesis to its completion with tremendous patience and expertise and for providing feedback that improved my writing. It was a joy and a pleasure to work with you.

I would also like to express my appreciation to everyone who has helped me with this work. This includes my husband, who helped me think through my research and whose patience and willingness to learn together means the world to me. I also deeply appreciate the support of my parents whose constant faith in me helped more than they know. Thank you for storming the heavens with your prayers. I am grateful for the

Theology Department at St. Mary’s University for being the impetus in my critical discernment process. I would especially like to thank Dr. William Buhrman, whose kindness and insight extended far beyond what his position required. I am also grateful for the Department of Religious Studies at the University of Dayton, which played a critical role in shaping my theological education.

The completion of this thesis is a small miracle. is good!

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TABLE OF CONTENTS

ABSTRACT ...... iv

DEDICATION ...... vi

ACKNOWLEDGMENTS ...... vii

INTRODUCTION ...... 1

CHAPTER 1 MARRIAGE IN AGES ...... 5

First Millennium...... 5 Second Millennium ...... 16 CHAPTER 2 SYNOD ON THE FAMILY ...... 28

CHAPTER 3 REFORMS TO THE MARRIAGE NULLITY PROCESS ...... 36

CHAPTER 4 MARRIAGE INDISSOLUBILITY IN THE PAPACY OF FRANCIS: MERCY AND ACCOMPANIMENT ...... 64

CONCLUSION ...... 89

BIBLIOGRAPHY ...... 91

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INTRODUCTION

I will argue that both of Pope Francis’ major works on marriage we will discuss have not changed anything doctrinally and in fact have continued the discussion in the spirit of traditional Church doctrine. As a result of his mission of building a church of encounter, he seeks to have major effects on the practical application and outworking of our faith. This becomes clear through the lens of mercy and accompaniment as influential values of his theology. Francis’ primary goal is to foster a Church that practices and teaches a spirit of service to the common good. In a culture that is plagued with polarization, Francis is challenging us to realize that we can and should do better as a church. By doing so, he is breathing new life into Catholic tradition. As Littleton and

Maher plainly state: “What we encounter in Francis’ writings and personality is not any real doctrinal innovation (he upholds the Church’s stance on , same-sex marriage, abortion and the ordination of women), but rather a change in tone and emphasis.”2 The emphasis is changed towards the welcoming of those people who feel estranged, of which there are many. Littleton describes Francis thusly: “The essence of

Francis’ theology is formed by a commitment to the poor and the marginalized, an unwillingness to pass moral judgements on others.”3 He is rethinking the way the Church presents herself and fundamentally he is aiming for a “reform of ‘attitude’” for the

Church and her people.4 Francis is striving to address the needs of the Church in a way

2 John Littleton and Eamon Maher, eds., The Francis Factor: A New Departure (Blackrock, County Dublin: The Columba Press, 2014), XX. 3 Littleton and Maher, The Francis Factor, XVIII 4 Louise Fuller, “Pope Francis: A Bearing Witness,” in The Francis Factor: A New Departure, ed. John Littleton and Eamon Maher (Blackrock, County Dublin: The Columba Press, 2014), 76.

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that moves beyond an ‘us versus them’ mentality. Instead of effectively giving up on people who have failed or sinned in some way, Francis proposes a new pastoral method of accompaniment. A major part of this method requires a change in attitude about people in irregular unions, for example. The hope that guides this pope is for a Church that reaches out and does everything humanly possible to care for the faithful. Another note on the roots of Francis' actions is that “he is also challenging Church leaders to see the

Church not merely as a place of ideology, but a place where people experience the mercy and forgiveness of God and feel themselves loved and valued.”5 This is a call for renewed pastoral care that is positioned in line with traditional church teaching. Collins accepts that “it is wise to admit that the mood music has changed, but the album is still the same.”6

The doctrine of the indissolubility of marriage is of great importance for a document such as Amoris Laetitia, and one that Francis holds as a true gift. This doctrine’s presence in Francis’ thinking and in Amoris Laetitia has come under fire by some scholars as being too progressive and I hope to show that throughout Francis’ writing, he cherishes and accepts Church doctrine, including the permanence of marriage as a model that ought to be strived for. Theologians such as Matthew Levering, in his The

Indissolubility of Marriage: Amoris Laetitia in Context, agree that Francis supports the indissolubility of marriage. I will return to these theologians at great length throughout this text. The language used by Francis to describe the beauty of sacramental marriage is unique and speaks to an intentional effort to convey the complexities of this bond in light

5 Michael Kelly, “Pope Francis and the Challenge to Catholics,” in The Francis Factor: A New Departure, ed. John Littleton and Eamon Maher (Blackrock, County Dublin: The Columba Press, 2014), 27-28. 6 Michael Collins, “Pope Francis: Architect of Reform?,” in The Francis Factor: A New Departure, ed. John Littleton and Eamon Maher (Blackrock, County Dublin: The Columba Press, 2014), 156.

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of the realities of Church practices such as annulments. This could be described as supporting a “Catholic ‘middle ground’” that softens the edges of polarization.7 Gehring argues that “we are too often a church of … Catholics who reinforce our own narratives and tune out opposing views.”8 Francis is vividly aware that this is the culture of today and his writing indicates efforts to transcend this often divisive attitude in search of one that can hold different ideas in tension. Something we must reflect on is “the reason that the Catholic Church has survived for two thousand years is because of an ability at moments in history for the Church to recreate and re-present itself.”9 The Church has never been a static entity and despite how uncomfortable the idea of change may be, change has the potential to foster growth.

In an effort to understand the motives underlying Pope Francis’ papacy, it is necessary to understand where he comes from and what influences his life and mission.

Speaking frankly, Tina Beattie states, “Francis is introducing a different theological perspective, nurtured by Ignatian spirituality and rooted in the theology of the

American Church - although not necessarily liberation theology.”10 His Jesuit roots are an essential part of who he is and how he teaches. Francis comes from the cultural context of

“Argentinian theologians [who] promoted what is sometimes referred to as ‘the theology of the people.’”11 This mindset of Francis orients him to meet people where they are and

7 Kelly, “Pope Francis and the Challenge to Catholics,” 28. 8 Gehring, John. The Francis Effect: A Radical Pope’s Challenge to the American Catholic Church. Rowman & Littlefield, 2015) 193. 9 Kelly, “Pope Francis and the Challenge to Catholics,” 31. 10 Tina Beattie, “The Revolution of Tenderness: The ,” in The Francis Factor: A New Departure, ed. John Littleton and Eamon Maher (Blackrock, County Dublin: The Columba Press, 2014), 144. 11 Beattie, “The Revolution of Tenderness: The Theology of Pope Francis,” 144.

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journey with them to reach in the Church. As an Argentinian theologian,

Pope Francis is exactly what you would expect from someone with this background.

Mercy and accompaniment are central themes of Pope Francis’ theology and have had particularly important effects in the changes that he made to the annulment process in his Mitis iudex Dominus Iesus and the ways he talks about marriage in

Amoris Laetitia. We will begin with a historical analysis that provides a backdrop to help contextualize, at least in part, how marriage and indissolubility originated in the early

Church through the . With this historical context shedding light on the complexities of this topic, we will jump forward to Pope Francis and bring into conversation his ideas on marriage and I will advocate that his momentum and attitude on marriage provides a new way forward that upholds the richness of tradition while also authentically moving the Church towards greater sensitivity and incorporation of the current pastoral needs. This portion of the text will begin with a look at the Synod on the

Family in 2014 and 2015. Once the history of the indissolubility of marriage has been investigated and a general understanding is gained of how this concept has evolved, Pope

Francis’ ideas on matters related to the doctrine of marital indissolubility and changes to the annulment process will be analyzed in order to determine how they stand in light of the history of this doctrine. These changes that were made will be investigated in the writings of Pope Francis, specifically the apostolic exhortation Amoris Laetitia and motu proprio Mitis iudex Dominus Iesus.

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CHAPTER 1

MARRIAGE IN THE MIDDLE AGES

The objective for this chapter is to situate the Church’s current understanding of marriage and indissolubility in its historical context. I will begin with a brief history of marital indissolubility and how it evolved up to the . Marriage, separation and divorce will be studied in the history of the early Church and the Middle

Ages in order to understand teachings and practices surrounding this institution that began as a secular agreement and was slowly adopted into the Catholic Church as the seventh . I will do this by providing the major discussions on marriage and annulments in the early Church and the Middle Ages. I will divide this history roughly into two sections; the first and second millennium, to show the movement of ideas and related to marriage.

First Millennium

The evolution of marriage as a religious institution, specifically as a Christian sacrament has its origins in Roman secular life and was largely under the jurisdiction of civil authorities until around the 8th century. to the 11th century, the requirements for a valid marriage in the church were lax and the ceremonies often occurred in private.

With the codification of canon law in the 12th century came the regulation of marriage and a universalization of the requirements for validity. The New Catholic Encyclopedia indicates that up until this codification, the faithful and their pastoral leaders alike considered marriage “a holy and sacred state but not subjected to canonical legislation or ecclesiastical intervention. Nevertheless, Christians understood the conjugal partnership

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from a universal, open-ended and inclusive perspective of the Christian mystery.”12 Even though there was not yet an agreed upon doctrine of marriage at this time, many

Christians still sought to interpret marriage through the lens of their faith. It is important to note that there slowly developed throughout the early church an ideal that was upheld by ecclesiastical authorities about what marriage should be, although, many were done informally, especially among the poor. This can be tracked from the often small scale implementations of church practice in local communities. The Church’s eventual ‘take-over’ of marriage which can be roughly pinpointed to the 12th century as we will see later on, did not just appear serendipitously in a council. On the contrary, it can be seen that these developments had their beginning in the first millennium and were being engaged by the and . Beginning in the fourth and fifth centuries, were invited to be present at marriage ceremonies, and it was not long until the ceremony was moved into the church building. By the 8th century, marriage among the laity required a present at the ceremony.13

The issue of the indissolubility of marriage will be key in our study later on in

Amoris Laetitia and the thought of Pope Francis, and so on that point it is of interest to note that during the first millennium, “many lay Christians did not accept that the marriage bond was indissoluble, nor did they think that during the lifetime of a former was impossible, however often they may have been told this by their priests and bishops.”14 While Christians often thought marriage was something to be

12 German Martinez, “Matrimony, Sacrament of,” in New Catholic Encyclopedia, Second Edition, Vol. 9 (Detroit, MI: Gale, 2003), 333. Gale eBooks. 13 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987), 552. 14 Judith Evans Grubbs, Law and Family in Late Antiquity: The Emperor Constantine’s Marriage Legislation (Oxford; : Oxford University Press, 1999), 254.

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treasured, there was not yet a widespread understanding that the marriage bond is or at least should be permanent. Regarding the important issue of indissolubility, this idea took centuries to develop within the minds of the people and in the law.

Moving to specific dates and events, it becomes clearer how an understanding of marriage and its dissolubility was evolving. The view of marriage in the first few centuries was focused on negative rights, likely as a reaction to the culture where separation and divorce was not strictly monitored on a widespread basis; with the exception of the wealthy and the elites. For example, in the early 4th century the canons attributed to the Council of Elvira “deal with adultery and related sexual lapses in meticulous detail.”15 Some of these details involve “a single act of adultery by either men or women merited a mere five years’ , and if the penitent became gravely ill in the interim (and so was in danger of dying) he or she could receive communion. But a second lapse removed all hope of reconciliation, even when dying.”16 These canons highlight the importance of fidelity in marriage and the healing aspect of communion during this time. More specifically, we can begin to see how the early church regarded marriage and the necessity of sexual exclusivity. Furthermore, when a married person committed adultery, there were pastoral solutions implemented for the purpose of healing the wound of the sin committed with the proper reconciliation, after which, one could then be welcomed back into full communion with the Church.

Another example from the Council of Elvira is one that applies to women specifically, and sheds light on another layer of the complicated history of how marital relationships were understood in the early church. This canon states that “a woman who

15 Grubbs, Law and Family, 222. 16 Grubbs, Law and Family, 222.

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left her husband for another man was denied communion ‘even at the end’, but if she returned to her husband and did ten years of penance, she was readmitted to communion.”17 The sheer magnitude of the time of penance points towards the extent to which adultery was frowned upon. Already the church recognized that leaving ones first spouse for another was violating the marriage bond. Men were treated rather similarly; “a husband whose committed adultery with his knowledge was denied communion

‘even at the end’; if he kept her ‘in his house’ for a time after her knew of her adultery but eventually left her, he must do ten years of penance.”18 This canon bears down on adultery and the punishment is shared with the innocent spouse; which stands in contrast to canon law today where reconciliation with one’s spouse is encouraged. Apart from this, these canons take the sin of adultery seriously and seem to indicate that it should be treated immediately and with extensive penance.

Similarly, the Council at Arles in 314 agreed that remarriage was prohibited for young men who separated from their who were caught in adultery “and decided to advise the cuckolded of that fact, but enacted no sanctions against men who did remarry.”19 Even though it was agreed at this council that remarriage was or should be prohibited even after adultery, they stopped short of codifying this. With the exception of a passage from The Shepherd of Hermas from the 2nd century, “there is no text from the first four centuries that clearly and unequivocally prohibited a man from remarrying after divorcing his first wife for adultery.”20 Rules and norms varied extensively between

17 Grubbs, Law and Family, 222. 18 Grubbs, Law and Family, 222. 19 Grubbs, Law and Family, 223. 20 David G. Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” (Vergentis. Revista de Investigación de La Cátedra Internacional Conjunta Inocencio III, 2018), 59.

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communities, leaders, and centuries, and little was agreed upon on the matter of divorce and remarriage, except that there were legal freedoms as well as social norms in place that allowed divorce after adultery, and may have turned a blind eye to men wanting to get remarried.

It is imperative to note that “church leaders meeting at councils or exhorting their congregations in sermons and homilies… in their own time commanded little authority or popular support.”21 The life of the early church was rather different from the church of the 21st century; from the “universal” laws that connect all Catholics, to the “superstar” pope we imagine today. The documents that came from the meetings of the early church and even from priests did not have the same kind of gravity outside of their local communities that they would have today. Due to the limitations in travel and communication, the laws and rules were not as widespread, leading to different ways of conducting worship between and bishops. As Judith Grubbs notes, even if ecclesiastical authorities decided one way, that did not necessarily dictate what was actually implemented in practice. With this came differences across the ancient world, and rituals took place in a multiplicity of regional cultures and a variety of local rites under civil jurisdiction. We know the laity and clergy held different views on these matters in this era because we have historical evidence of efforts on the part of clergy to combat those lay attitudes.22

Briefly, a theme of harmful biases and discrimination is evident from the early church and is an important piece of the puzzle for understanding marriage and its dissolubility. In fact, “most ancient church leaders and writers were far more concerned

21 Grubbs, Law and Family, 242. 22 Grubbs, Law and Family, 242.

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with the sexual and marital behavior of women than with that of men.”23 Women were often given more rules and harsher punishments in general. In the case of unions,

“remarriage of or to a woman who has been divorced (for whatever reason) is condemned and equated with adultery. Remarriage by a man who had divorced his wife for adultery is not condoned, but is generally understood and tolerated.”24 Grubbs makes clear that

“this attitude to divorce and remarriage among Christians was…firmly rooted in the double standard of sexual mores for men and women prevalent throughout the ancient

Mediterranean.”25 A number of rules and norms that were prejudiced against women likely stemmed from the mindset that men and women should be treated differently, with women often being oppressed.

It can be said with certainty that “on the issue of divorce, we have found not a single Greek to hold absolute indissolubility as a teaching of the faith, nor a single

Latin Father before the 9th century. Jerome and Augustine were both very much aware that theirs was a new point of view when they entered the scene in the 4th century, and several centuries passed before their teachings gained acceptance.”26 The permanence of marriage even after separation and until the death of a spouse was a novel idea in the first millennium, and one that was not widely agreed upon, as the ' treatment of divorce was often nebulous. The one constant is the claim that “traditional practice allowed divorce and remarriage of the husband whose wife had committed adultery.”27

There were oppositions in the first millennium to this “universal conviction” that were

23 Grubbs, Law and Family, 247. 24 Grubbs, Law and Family, 247. 25 Grubbs, Law and Family, 247. 26 Jose Montserrat Torrents, The Abandoned Spouse. Translated and Edited by Gary MacEoin (Milwaukee: The Bruce Publishing Company, 1969), 117-118. 27 Montserrat Torrents, The Abandoned Spouse, 118.

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largely unsuccessful until much later.28 Jose Montserrat Torrents summarizes and says that “the general principle that indissolubility permits exceptions was agreed.”29

This was likely the theological and pastoral realm into which St. Augustine of

Hippo entered. Augustine is widely known as “the primary architect of the Western theology of marriage and, in particular, the notion of the indissolubility of marriage.”30

Augustine provides one notable opposition to the traditional practice and “argued in favor of the view that it was not lawful for the innocent party to remarry even in the case of adultery.”31 When discussing the possibility of remarriage after the dismissal of an adulterous wife, Theodore Mackin believes that Augustine admitted the “ does not provide an exact answer to this question.”32 For the purposes of this study, this quote shows how scripture does not provide all the answers for every human situation, and so what may be understood as a cut and dry biblical teaching, may not be so intuitive.

Here, there is a clear shift in the view of marriage; one that had a balance of negative and positive rights that was dedicated to understanding marriage as a unique relationship and is even one of the earliest characterizations of marriage as a sacrament.

Augustine says that despite divorce, the marital covenant is not destroyed “and the remain spouses to one another even though they live the rest of their lives apart.”33 He names the sacramentum (an observable ceremonial sign) of marriage “as the reason for, or cause of, marriage’s indestructibility.”34 Even when the spouses separated,

28 Montserrat Torrents, The Abandoned Spouse, 118. 29 Montserrat Torrents, The Abandoned Spouse, 118. 30 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 54. 31 Montserrat Torrents, The Abandoned Spouse, 109. 32 Theodore Mackin, The Marital Sacrament. Marriage in the Catholic Church (New York: Paulist Press, 1989), 216. 33 Mackin, The Marital Sacrament, 216. 34 Mackin, The Marital Sacrament, 217.

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Augustine recognized that something remained valid and intact about the bond as a result of the sacramentum. As a result of the permanence of the bond, and specifically “because of the demand of marriage’s sacramentum, a woman cannot go from one husband to another while the first still lives.”35 At this point in Augustine’s writings, namely in De

Conjugiis Adulterinis, “comes the significant change: whereas in De Bono Conjugali

Augustine said it is the sacramentum of marriage that remains despite the dismissal, here it is the marital bond that remains”, and what exactly is meant by the ‘bond’ goes unexplained in the text, according to Mackin.36 Augustine recognizes that there is a

“certain conjugal something” in Christian marriages, that remains even after the couple separates.37 He did not set out to systematize a doctrine of marriage but he nevertheless recognized the connection between the sacramentality and the permanence of the bond between the spouses. Mackin points out that Augustine did not say that the sacramentum is the marriage itself but that Christian marriages have the sacramentum.38 He added that the Christian ritual of marriage produces “in the souls of the recipients an effect distinct from grace. This is the sacramentum.”39

If the marriage itself is not the sacramentum, but this ‘sign’ that has affected the souls of the recipients remains intact after the marriage has ended, this is very different from the idea that the marital bond remains. Perhaps their souls are ‘permanently marked’ in some way even though the bond has ended. The uncertainty in the language and lack of precision and accuracy seems to carry over today where we have the doctrine of

35 Mackin, The Marital Sacrament, 217. 36 Mackin, The Marital Sacrament, 219. 37 Mackin, The Marital Sacrament, 222. 38 Mackin, The Marital Sacrament, 226. 39 Mackin, The Marital Sacrament, 226.

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indissolubility that is a true gift for marriage but perhaps needs to be made clearer. This will be discussed at length in another chapter. For now, because of Augustine’s key role in the origin of the principle of marital indissolubility, it is important to point out the key takeaways of what he said and what he did not say.

Care must be taken when analyzing Augustine’s writings on marriage as David

Hunter points out various ways that the himself expressed reservations about how to interpret his own writings. In the Retractationes (426/427), Augustine observed that in his two books on adulterous marriages, he did not solve the problem or conclude the matter at hand.40 One might reasonably think that Augustine was convinced by his own writing, but in fact he was upfront about the possibility that he may not have provided the solution, thus inviting more work to be done on the topic. Hunter remarks that

“Augustine’s doubts stemmed primarily from the ambiguity of the biblical texts on divorce and remarriage.”41 These ambiguities seem to come from ’s prohibition of divorce and remarriage “except on account of fornication,” that is, the famous “Matthean exception.”42 Jesus stated as a critique of the Jewish practice of his day that “It was also said, ‘Whoever divorces his wife, let him give her a certificate of divorce. But I say to you that every one who divorces his wife, except on the ground of unchastity (porneia), makes her an adulteress; and whoever marries a divorced woman commits adultery.”43

Matthew is the only gospel to include this exception clause. According to John Piper, the word porneia is not the normal Greek word for adultery and suggests that fornication is

40 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 55. 41 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 55. 42 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 56. 43 Matt 5:31-32, RSV.

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the proper translation.44 Augustine also questioned the semantic range of porneia, “which was rendered as fornicatio in his Latin : did it refer only to a sexual offense, or did it admit of a wider range of meanings, such as apostasy or even avarice?”45 On this question, he remained undecided.

Another problem was the double standard found in Paul’s writing in Corinthians

7:10-11, where it was said that “the wife should not separate from her husband (but if she does, let her remain single or else be reconciled to her husband), and that the husband should not divorce his wife.”46 While Paul was clearly saying here that remarriage after divorce was not an option for the wife, he did not explicitly state the same for men, although Augustine argues that this should apply to men and women equally.47 Augustine surmised that based on “the earlier passage in :4, where Paul had said that neither the husband nor the wife had authority over their own bodies”, this meant that

“the apostle had articulated a principle of equality” that was applicable in the matter of divorce and remarriage.48 Hunter concludes that while Augustine’s teachings on the indissolubility of marriage “did eventually become the dominant tradition in the West, it is clear that it was not the only tradition, nor was it immediately accepted even in the western church…. it is worth remembering that both scripture and tradition can speak with more than one voice.”49 Augustine’s “approach to both marriage ethos and mystery brought about a new stage of development, which influenced decisively the centuries that

44 John Piper, This Momentary Marriage: A Parable of Permanence (Wheaton, IL: Crossway, 2009), 174, as referenced in Matthew Levering, The Indissolubility of Marriage: Amoris Laetitia in Context (San Francisco: Ignatius Press, 2019), 46. 45 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 57. 46 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 57-58. 47 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 58. 48 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 58. 49 Hunter, “Did the Early Church Absolutely Forbid Remarriage after Divorce?,” 64.

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followed. On one hand, marriage as an institution was good and was elevated by Christ.

In this sense it was endowed with three objective goods: procreation, fidelity, and sacrament. On the other hand, the conjugal act, whose purpose was procreation only, was extrinsically evil by virtue of the malice of concupiscence.”50 Although change to the

‘church’s idea of marriage’ may not have immediately adapted to Augustine’s writing, and certainly not in the minds or hearts of the laity until much later, this was a watershed moment for the doctrine of marriage.

Augustine held to some ideas that could be contradictions, and we must be aware of these unflattering aspects of his writing that often go unmentioned. This helps any serious study move forward in a way that respects this Church father for his important role in history and does so with the recognition that some of his biases against the conjugal act may have negatively affected his teachings on marriage. For Augustine,

“‘marriage as a sacrament’ can be said to have two different, but not separate, dimensions—1) human mystery and 2) saving reality.”51 What makes a marriage truly

Christian is that it is rooted in “the Christ-Church spousal relationship.”52 Marriage also requires the faithful love of the couple. Because of this, marriage is both and; both “fully anchored in human reality” and also a “covenantal bond.”53 Here, we see some redeeming and beautiful explanations of the marital sacrament from Augustine. The objective and subjective reality of marriage work together to make the bond indissoluble.

This permanence finds its grounding not only in so far as the marriage reflects the marriage of Christ to the Church but also in the growing love of the couple. Key

50 Martinez, “Matrimony, Sacrament of,” 334. 51 Martinez, “Matrimony, Sacrament of,” 337. 52 Martinez, “Matrimony, Sacrament of,” 337. 53 Martinez, “Matrimony, Sacrament of,” 337, 338.

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takeaways from this portion on Augustine are that he introduced the idea of marriage as sacrament and indissoluble in a culture where this was difficult to understand and enforce. He was also working with unclear scriptural evidence for marital indissolubility, which could account for his own indecisiveness. In light of this, it remains important to acknowledge Augustine’s unique contribution to the way we understand marriage today.

From the 4th century up to the Council of Trent, informal divorces were fairly common, and it was typically the nobility who would involve ecclesiastical and civil judges, which resulted in very few cases that sought out the counsel of ecclesiastical . Intimate details about the personal lives of medieval people are frustratingly rare. We seldom know what the men and women of the Middle Ages thought about marriage but we do know that ecclesiastical jurisdiction over marriage took centuries to solidify in the minds of the laity, and it is around the time this became widespread that annulments were introduced, in the 11th and 12th centuries. The term ‘annulment’ can be misleading for what is more precisely called a declaration of matrimonial nullity because it sounds like the church is “doing something” to the marriage bond but in fact the church is only declaring something about an alleged matrimonial bond. The term itself was not used in pre-Tridentine canon law, thus speaking to the divide in the language and consciences between the church and the laity.54

Second Millennium

Changes in the theological understanding of marriage came about because of social and historical changes, and the development of new religious ideas over centuries.

In comparison with the first millennium where “the emphasis was on spiritual

54 Cristellon, “Marriage and in Pre-Tridentine Venice,” 395.

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foundations, now it moved to juridical categories of contract and indissolubility” that coincided with the institutionalization of marriage as a Catholic sacrament.55 From the

11th century onward, “wedding celebrations were gradually incorporated into the

Church's canonical regulation and liturgical rituals.”56 This ecclesiastical takeover was accompanied by a legalism concomitant of increasing clericalism of the church that was underway by the 13th century. What emerged was “a contract-centered theology of matrimony” that resulted “from the emphasis on consent or copula () as the essential elements for the validity of the sacrament.”57 In the following centuries, this approach led to the understanding of marriage as a sacrament whose essence came to be viewed juridically.58 The idea of marriage as one of the seven of the Church was developed by the 11th century scholastic theologians and adopted officially by the medieval hierarchy in the following century when we find in the of the Council of Verona (1184) the first declaration of marriage as a sacrament.59 This understanding stemmed from the meaning of sacrament as mystery, proposed by the early

Church Fathers, especially Augustine.

Up until the 12th century, the limited data that remains shows that marriages could be dissolved without consulting a church . It was around this time that a shift emerged in practice as canonical tribunals became more professional and systematic in their treatment of marriage cases and customs.60 Royal courts often referred to ecclesiastical tribunals on questions of marriage validity because they recognized their

55 Martinez, “Matrimony, Sacrament of,” 335. 56 Martinez, “Matrimony, Sacrament of,” 333-4. 57 Martinez, “Matrimony, Sacrament of,” 335-6. 58 Martinez, “Matrimony, Sacrament of,” 336. 59 Martinez, “Matrimony, Sacrament of,” 336. 60 Brundage, Law, Sex, and Christian Society in Medieval Europe, 409.

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claim to “exclusive jurisdiction over marriage, with the significant exception of claims involving inheritance and property.”61 There was an increase in the use of professional counsel that resulted in part from the complexity of canonical procedures. Beginning with the of Gregory IX in 1234, canonists asserted that marriage separation was never permitted without a formal ecclesiastical , although this proved difficult to enforce.62 Included in the systematization of ecclesiastical courts was that adultery was no longer justified as grounds for dissolution of marriage, and unbearable cruelty became a justified reason for separation.63 During the Black Death (1347) up until the

Reformation (1517), canonical courts granted separations and nullity decrees on grounds that had no foundation in the canons.64 This brief timeline shows the dramatic shifts that the marriage doctrine underwent during the Middle Ages.

A particular time and place that can be analyzed for a more practical understanding of what was going on in the Middle Ages is Venice from about 1420 through the Council of Trent. Canonical courts and canonists were gaining more power at this time, and due to the influx of canon law texts that began with Gratian’s Decretum in

1140, there were often contradictions and unclear canons that required interpretation.

According to Cristellon, during this time “marriage trials [presented] two opposing versions of facts shaped as much by the dictates of canon law as by unwritten .”65 Judges had the freedom to interpret “canon law according to the customary law of the community.”66 This helped to provide a harmony between what was the norm in the

61 Brundage, Law, Sex, and Christian Society in Medieval Europe, 409. 62 Brundage, Law, Sex, and Christian Society in Medieval Europe, 453. 63 Brundage, Law, Sex, and Christian Society in Medieval Europe, 455. 64 Brundage, Law, Sex, and Christian Society in Medieval Europe, 510. 65 Cristellon, "Marriage and Consent in Pre-Tridentine Venice,” 390. 66 Cristellon, "Marriage and Consent in Pre-Tridentine Venice,” 391.

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surrounding area and what the church was doing. For the laity, “marriage was a union that one could enter into or dissolve according to the changing circumstances in which one found oneself.”67 The reason for this was when the laity collided with the ecclesiastical courts there was in general, a “prevailing lay discomfort with the idea that the marriage bond was permanent.”68There existed a rather stark divide between how the laity understood “marriage as dissoluble and the ecclesiastical conception which professed it indissoluble” and this “was bridged in court with a practical compromise: people could appear before the ecclesiastical judge claiming canonical reasons for dissolving their marriages without those being the reasons that had led them to seek the dissolution of the marriage in the first place.”69Although this may not have been the ideal solution, it is at least clear that the laity were learning about the various nuances of the marriage canons.

Based on what Cristellon states, it can be assumed that either litigants in court lied about their motives and judges knew about it, or not everyone was an expert in Medieval canon law and sought out the guidance of the church in seeking an annulment. Many marriage trials show that what the laity considered valid reasons for separation differed from those allowed by canon law, and this went both ways.70 While tribunals prohibited marriage within a certain degree of relationship, the laity conceived of other ways they thought the marriage bond was broken.

The question “at what point in its formation did an early-medieval marriage

67 Cristellon, "Marriage and Consent in Pre-Tridentine Venice,” 393-4. 68 Cristellon, "Marriage and Consent in Pre-Tridentine Venice,” 393. 69 Cristellon, "Marriage and Consent in Pre-Tridentine Venice,” 395. 70 Cristellon, "Marriage and Consent in Pre-Tridentine Venice,” 401.

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become insoluble?” may be anachronistic, and there is no clear answer.71 Despite this, we can search the texts that have survived in order to piece together a picture of how marriage was understood. Ivo of Chartres “was the foremost canonical authority of his age” and his canonical writings were the most authoritative before Gratian’s Decretum.72

Ivo emphasized the importance of consent in marriage with the belief that “consent makes marriage, not coitus” and furthermore, once the partners were betrothed, their union was insoluble.73 According to Philip Reynolds, this consensual principle that Ivo adheres to is arguably impractical and pastorally imprudent, because it upholds betrothal as virtual marriage.74 Especially in the early Middle Ages when infant betrothals and other arranged marriages were customary, this principle posed a problem for marital agreements that were “fraught with financial and political implications, which could fail to materialize.”75

There emerged a solution to this dilemma in the early 12th century among French thinkers, who proposed a betrothal distinction, of which there were four versions, but the enduring one was the fourth version that distinguished between future-tense and present- tense agreements.76 This distinction between de futuro and de praesenti is explicitly grammatical, and this “verbal turn was congruent with the doctrine of marriage as a sacrament” due to the significance of the verbal formula.77 The fact that these rather meticulous discussions were happening is evidence that the formula of marriage was

71 Philip Lyndon Reynolds, How Marriage Became One of the Sacraments: The Sacramental Theology of Marriage from Its Medieval Origins to the Council of Trent. Cambridge Studies in Law and 6. (Cambridge, UK: Cambridge University Press, 2016), 188. 72 Reynolds, How Marriage became one of the Sacraments, 188. 73 Reynolds, How Marriage became one of the Sacraments, 189. 74 Reynolds, How Marriage became one of the Sacraments, 199. 75 Reynolds, How Marriage became one of the Sacraments, 199. 76 Reynolds, How Marriage became one of the Sacraments, 203. 77 Reynolds, How Marriage became one of the Sacraments, 205.

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important and pointed towards the sacramental distinction that was being formulated at this time. When determining what constituted a sacramental marriage, it was recognized among Christians that the words spoken contracted such a marriage and present-tense consent became the norm in and England. This is made explicit when the couple would say “I take you as my husband” rather than “I shall take you as my husband”; although this dialogical form did not appear in extant nuptial liturgies until the 14th century.78

What stands out is the present-tense betrothal “whereas traditionally a man would receive his wife at the conclusion of the nuptial process, now each partner received the other, and this act of mutual reception was an explicit exchange of consent.”79 This is significant because Reynolds points out that marriages had always been prospective, but with the ecclesiastical emphasis on the present-tense agreement, the couple was now considered to be married even if they did not yet live together.80 This betrothal formula was likely done by clergy with the intention of regulating “private or domestic agreements”, something that understandably occurred simultaneously to the institutionalization of marriage as a sacrament.81

While this principle emphasized the importance of consent “making” a marriage, this “did not necessarily imply that nothing else was needed for a fixed, fully established marriage.”82 The church was in the process of swinging the proverbial pendulum in the direction that gave more power to the consent of the couple using vows that created

78 Reynolds, How Marriage became one of the Sacraments, 207. 79 Reynolds, How Marriage became one of the Sacraments, 206. 80 Reynolds, How Marriage became one of the Sacraments, 206. 81 Reynolds, How Marriage became one of the Sacraments, 207. 82 Reynolds, How Marriage became one of the Sacraments, 209.

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insoluble bonds though not necessarily taking away the importance or necessity of consummation. The theory of consummation emerged in the 12th century and is ascribed to St. Augustine and Pope Leo I, and showed that a marriage was incomplete until .83 The sacramentality of marriage was in fact tied to consummation, and thus seemed to contradict the canonical principle that betrothal functioned as a virtual marriage.84 There were plenty of canonical texts that stated a betrothed couple was virtually married, including Ivo of Chartres as mentioned earlier.

Gratian's Decretum emerged around 1140 and is the first major compendium of canon law up to this point in the Middle Ages. In this monumental text, Gratian held the position that consent initiated a marriage while consummation completed or perfected a marriage.85 This position is illuminated in the definition of marriage that was common among canonists at this time: “the union of a man and woman, maintaining an indivisible way of life.”86 Reynolds calls Gratian’s position the “consummation theory” and an important part of this theory is that spousal consent is necessary and in fact “makes” the marriage, while coitus fulfills this consent.87 The words spoken by the couple carry the power to initiate the marriage and what is promised in word is fully realized in the conjugal act. Interestingly, Gratian did not “appreciate the distinction between de futuro and de praesenti betrothals” and it is unclear whether this was intentional or if he was

83 Reynolds, How Marriage became one of the Sacraments, 209. 84 Reynolds, How Marriage became one of the Sacraments, 209. 85 Reynolds, How Marriage became one of the Sacraments, 238. 86 Reynolds, How Marriage became one of the Sacraments, 233. 87 Reynolds, How Marriage became one of the Sacraments, 242. Reynolds notes that modern scholars characterize Gratian’s position as the coital or copular theory in contradistinction from Peter Lombard’s consensual theory, but that this terminology can be misleading. This is because while Gratian emphasizes the importance of consent, he insisted that this act needed to be confirmed in coitus. His reasoning is more nuanced than the French scholars who believed betrothal was sufficient for a valid marriage as long as it was expressed in the present tense.

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unaware of this distinction.88

On the other side of the debate was Peter Lombard (1100-1160), who is traditionally understood as championing “the standard formulation of the betrothal theory.”89 He argued in opposition to Gratian’s position, holding instead that “marriage was a sacred sign even before it was consummated.”90 Both of these aspects of marriage: the consent given by both spouses, and the conjugal act, signified different aspects of

Christ’s union with the church.91 For Peter Lombard, the sacredness of marriage was not exclusively tied to the conjugal act but was able to reach an insoluble status by either act.

A hybrid of these positions emerged around 1170-1180 and was established as the universal norm.92 This doctrine was first fully expressed in the decretals of Pope

Alexander III (1159-1181) and maintained the distinction between de futuro and de praesenti betrothals while also incorporating features of the consummation theory.93 Pope

Alexander was unsatisfied with Gratian’s model of marriage so he made his own contributions, including making it easier to contract marriage, harder to dissolve, and making free consent the only requirement.94 The essentials of this middle way doctrine are that “a de praesenti betrothal, with or without solemnity, [constitutes] marriage and

[trumps] any subsequent marriage” and “a de futuro betrothal becomes a marriage if it is consummated, and a marriage formed thus trumps any subsequent union, including a de praesenti betrothal.”95 Here, the vows spoken held great power, even when a formal

88 Reynolds, How Marriage became one of the Sacraments, 283. 89 Reynolds, How Marriage became one of the Sacraments, 245. 90 Reynolds, How Marriage became one of the Sacraments, 246. 91 Reynolds, How Marriage became one of the Sacraments, 246. 92 Reynolds, How Marriage became one of the Sacraments, 278. 93 Reynolds, How Marriage became one of the Sacraments, 278-9 94 Brundage, Law, Sex, and Christian Society in Medieval Europe, 333. 95 Reynolds, How Marriage became one of the Sacraments, 282.

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ceremony did not take place. When a present-tense agreement was made, it was recognized as a ratum marriage that trumps all other marriages unless it is preceded by a future-tense betrothal made ratum with consummation. Instead of placing one aspect of marriage over the other, this common doctrine provided a delicate balance between the theories that were being debated and held both consent and consummation as necessary for a fully sacramental and insoluble bond.

After Alexander III, Huguccio, who was a Bolognese canonist, provided another rationale for the common doctrine that rejected what had been the prevailing doctrine.96

He explained that “unconsummated marriage signifies the union between the soul and

God… [and] consummated marriage signifies Christ’s union with the church through a common human nature.”97 Because the soul can be separated from God, it is therefore possible for an unconsummated marriage to be dissolved if one spouse enters religious life. Whereas the union with Christ and the church is inseparable, “consummated marriage, too, is insoluble, for it serves ‘as a sign of that reality.’”98 He also addressed the matter of when exactly the marriage occurs, and advocated for an explanation aimed at simplicity; namely that the sacraments do not “come into existence in stages” and “as soon as there is a marriage at all, it is perfect, entire, and complete (consummatum), even before coitus has taken place.” Huguccio’s rationale endured for centuries and parts of this explanation continue on in the marriage doctrine today. The essentials of the common doctrine are 1) “a de praesenti betrothal is sufficient for a matrimonium ratum” and trumps any subsequent marriage, 2) “de praesenti vows trump a prior de futuro

96 Reynolds, How Marriage became one of the Sacraments, 286. 97 Reynolds, How Marriage became one of the Sacraments, 285. 98 Reynolds, How Marriage became one of the Sacraments, 285.

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betrothal, notwithstanding the breach of the promise”, 3) “a de futuro betrothal automatically becomes matrimonium ratum if it is followed by coitus”, 4) an unconsummated de praesenti betrothal is not absolutely insoluble.99

In the search for clarity regarding medieval views of marriage as discussed,

Mackin postulates that the indissolubility of marriage may be better referred to as immunity to dissolution. This understanding of the ‘forming’ of indissolubility is in fact grounded in history because “the traditional Catholic doctrine itself holds to a gradual acquiring of indissolubility. Only when Catholic spouses consummate their marriage as a sacrament does it acquire indissolubility.”100 The Church continues to teach that there is a process for the sacramentality of marriage that is initiated with consent and confirmed by consummation. Mackin continues this line of thinking by proposing that an act of consummation does not bring about a “fixed” or “final marital category” but rather brings about the “fullness” of a marriage.101 While the juridical steps to acquiring indissolubility may have been completed with the conjugal act, there remains the relationship that must be sustained by grace as well as by the work of the spouses. It should be noted that “to affirm that marriage is indissoluble does not exclude the possibility of exceptions to the rule”, namely when a marriage is found to have not existed in the first place and is nullified.102

Because the “marital relationship is sacramental in that it participates in Christ’s redemptive work”, meaning that the final form of this work “is also a replication of

Christ’s death”, this lends itself to an understanding of marriage as a process that ends

99 Reynolds, How Marriage became one of the Sacraments, 286-7. 100 Mackin, The Marital Sacrament, 673. 101 Mackin, The Marital Sacrament, 674. 102 Montserrat Torrents, The Abandoned Spouse, 93.

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with death.103 Here, Mackin reasons with symbolism that supports the permanence and sacramentality of marriage, and in so far as these unions partake in the work of Christ, should only end with death. When marriages develop this way, the spouses grow in union with God and each other to form a bond so strong that “a conscious refusal on either spouse’s part to believe in, trust and love one another and God becomes functionally impossible.”104 Mackin believes it is possible for a Christian couple to reach a point in their marriage where there is no foreseeable good that could come from destroying the union, and therefore could not deliberately end the union. This ideal appears to express the hope and promise of the traditional teaching of marriage as a process that must be worked at, as long as it recognizes that people grow and sin. It is worth noting that

Mackin thinks it does not make sense to say that sacramental marriages can “deteriorate and go out of existence indeliberately.”105 When the spouses have developed habits of love for each other over the years, this attitude can only be destroyed with equally habitual acts against one another.106

This brief history has laid the foundations for understanding how heavily debated marriage and its dissolution were in the Middle Ages and to have a glimpse into the time and effort it took to come to our current doctrine of marriage. In recounting this history to present historical evidence, it has been demonstrated that in the past there have been different practices and methods of flexibility in regard to the issue of the indissolubility of marriage. With this, there is the implication that similar practices and flexibility may have a legitimate, or at least a historically precedented place in church practice, teaching

103 Mackin, The Marital Sacrament, 674. 104 Mackin, The Marital Sacrament, 674. 105 Mackin, The Marital Sacrament, 675. 106 Mackin, The Marital Sacrament, 675.

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or legislation today.

A final thought, it seems that the church, in taking marriage under its jurisdiction, created a clear line between valid and invalid marriages. In a way, this was to be expected when the standards were raised for what made a valid marriage. That did not necessarily create the need for annulments but because marriage is a ‘radically human sacrament’ it must account for failure to live by this ideal of a sacramentally valid marriage. Historians have recognized the historical phenomena which all occurred during the 12th century: clericalism, the introduction of annulments, and the institutionalization of marriage as a sacrament. In reflecting on the history and development of marriage, it is difficult to discern how exactly these phenomena influenced one another, although they certainly are connected.

With an eye on the rich history and tradition of marital indissolubility, we will now move forward into the modern era and explore the doctrine of marital indissolubility and the annulment process in order to gain an understanding of how this concept has evolved in light of the history of this doctrine.

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CHAPTER 2

SYNOD ON THE FAMILY

The Synod on the Family took place in two stages, with the first stage taking place from October 5-19, 2014. In preparation for the meeting, the Vatican Office collected and summarized global responses to a survey released the previous year

“regarding issues of family life.”107 At this first meeting, there were about 190 prelates

(with voting power) and 60 others, who were mostly nonprelates (without voting power), in attendance.108 For this meeting, in an effort to better understand what real experience, Pope Francis opened up “a new way of considering issues” by allowing married couples to talk about married life.109 Duncan and Urbaniak add that this move is

“in contrast to a traditional hierarchical model wherein celibate bishops instruct the laity.”110 The second stage took place from October 4-25, 2015, and was aimed at developing pastoral solutions for the issues identified in 2014.111 In this chapter I will give a brief overview of scholarship done before and after the Synod. This chapter will also look at the midterm and final documents that came out of the Synod. Directly influencing these documents are the key terms mercy, accompaniment, and discernment; all of which define Pope Francis’ papacy. This analysis will lay the foundation for a

107 Joshua J. McElwee, “Pope calls synod to speak ‘boldly’; cardinal defends current teachings,” National Catholic Reporter (Oct. 6, 2014), https://www.ncronline.org/news/vatican/pope-calls-synod-speak-boldly- cardinal-defends-current-teachings. 108 McElwee, “Pope calls synod to speak ‘boldly.’” 109 Graham Duncan and Jakub Urbaniak, “The ecclesial notion of ‘family’ versus authentic families today: Evaluation of the initial findings of the 2014 Synod of Catholic Bishops,” Stellenbosch Theological Journal 2, no. 1 (2016): 149-176, at 151. 110 Duncan and Urbaniak, “The ecclesial notion of family vs today,” 151. 111 Duncan and Urbaniak, “The ecclesial notion of family vs today,” 151-52.

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thorough discussion on the post-synodal document Amoris Laetitia, in the following chapter.

Regarding the groundwork laid in preparation for the synod, various scholars and commentators have reflected on the hopes and overall mission guiding the process which will now be discussed. The methodology used during the synod was aimed at true synodality which means “to walk together” and a key dynamic “was intended to be a communal discernment.”112 The goal of this style of synod, called for by Pope Francis, is to maintain an open heart and mind in order to allow the work of the Spirit to flow unimpeded.113 Some appropriate and helpful ways to think about the Synod and its goals are that it was “trying to retrieve lost insights, recalibrating the way our doctrines are applied in real pastoral praxis, [and] discern new ways to proclaim .”114 Pope

Francis also encouraged the participants to “speak with parrhesia and listen with humility.”115 This Greek term means to speak “without fear” and Francis used it to convey his hope that the synodal process cease to involve curial “[warning] participants not to bring up certain topics,” which, according to Thomas Reese, occurred commonly at previous .116 Another important starting point for this synodal process is that it undertook “a more inductive way of reflecting, starting from the true situation of people and trying to figure out what’s going on here.”117 This is a change

112 Brian Grogan, “The Synod on the Family-success or failure?,” The Furrow 67, no. 1 (2016): 9-11, at 9, 10, JSTOR. 113 Grogan, “The Synod on the Family-success or failure?,” 10. 114 Michael Sean Winters, “As the Church has always taught,” National Catholic Reporter (Oct. 8, 2014), https://www.ncronline.org/blogs/distinctly-catholic/church-has-always-taught. 115 McElwee, “Pope calls synod to speak ‘boldly.’” 116 Thomas Reese, “How the synod process is different under Pope Francis,” National Catholic Reporter (Oct. 17, 2014), https://www.ncronline.org/blogs/faith-and-justice/how-synod-process-different-under- pope-francis. 117 Reese, “How the synod process is different under Pope Francis.”

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from previous synods that “tended to start with church teaching and talk about how it could be applied to the world.”118 Aware of the pastoral challenges faced, the synod fathers explained that the Church must encourage all who “hunger for God and… wish to feel fully part of the Church,” specifically in the case of “those who have experienced failure.”119 These synod fathers remind us that, in the Christian message, there is always

“the reality and the dynamic of mercy and truth that meet in Christ.”120 It is in this spirit of tenderness and love, while also remaining in agreement with Church teaching, that the

Synod raised awareness about the traditional understanding of the family and its ability

“to better carry out God’s mission in today’s world.”121

There are several keywords used by Pope Francis that influenced his papacy and, by extension, this synod, along with the post-synodal exhortation Amoris Laetitia, that will now be defined. Granados, Kampowski, and Pérez-Soba understand Pope Francis’ use of “mercy” to be “reminding us of the biblical roots of mercy, whereby ‘the true meaning of mercy … entails the restoration of the covenant.’”122 “Accompaniment” is another foundational word for Pope Francis and it must begin with true welcoming, which “means beginning a journey and not accepting things as they are,” because “the purpose is not immediately to resolve a problem but to establish a relationship by which an itinerary may be offered.”123 The pastoral approach of accompaniment is as much

118 Reese, “How the synod process is different under Pope Francis.” 119 III Extraordinary General Assembly of The Synod of Bishops, The Pastoral Challenges of The Family in The Context of Evangelization: Relatio Synodi, : Vatican Publishing House, 2014, §11. 120 The Pastoral Challenges of The Family, §11. 121 Duncan and Urbaniak, “The ecclesial notion of family vs today,” 150. 122 José Granados, Stephan Kampowski, and Juan-José Pérez-Soba, Accompanying, Discerning, Integrating: A Handbook for the Pastoral Care of the Family According to Amoris Laetitia (Steubenville, Ohio: Emmaus Road Publishing, 2017), xiii. The authors here quote Amoris Laetitia 64, where Francis cites, in turn, John Paul II, Dives in Misericordia, no. 4. 123 Granados, Kampowski, and Pérez-Soba, Accompanying, Discerning, Integrating, 51.

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about the journey as it is about the end result of “full reintegration into the Church for persons who have become estranged from it.”124 It is Francis’ hope that the way we begin this process is for to benevolently evaluate the pastoral care of the families in every and . A final word to be explored is “discernment,” which does not mean “adapting the moral law to what person’s perceive as their concrete possibilities;”125 its goal is “not to find exceptions, but to help those who are living in a new union to identify ways to live in fidelity to the marital promise that they have made to their spouse before God and before the Church.”126 Each of these words are significant for understanding the themes that Pope Francis continues to employ, which will be discussed at length in the fourth chapter.

The midterm report, Relatio Synodi, came out of the 2014 Synod and reflected on some of the issues facing families today. In discussing marital indissolubility, the synod fathers recognize that “the presence of the seeds of the Word… could even be applied, in some ways, to marriage and the family in so many non-Christian societies and individuals. Valid elements, therefore, exist in some forms outside of Christian marriage.”127 This perspective is based upon a stable relationship between a man and a woman that is “oriented towards Christian marriage.”128 The language used here attempts to remain open to controversial topics for the sake of improving the Church’s pastoral praxis.

124 Granados, Kampowski, and Pérez-Soba, Accompanying, Discerning, Integrating, 78. 125 Granados, Kampowski, and Pérez-Soba, Accompanying, Discerning, Integrating, 97. 126 Granados, Kampowski, and Pérez-Soba, Accompanying, Discerning, Integrating, 104. 127 The Pastoral Challenges of The Family, §22. 128 The Pastoral Challenges of The Family, §22.

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The synod fathers express that there is no question that “a new aspect of family ministry is requiring attention today” that addresses civil marriages between a man and a woman, and even .129 The synod participants continue to say that what is needed is a “missionary conversion by everyone in the Church, that is, not stopping at proclaiming a merely theoretical message with no connection to people’s real problems.”130 This conversion needs to be made visible not only in our hearts and minds but also in our language in order to be effective and meaningful.131 Here the document provides a clear example of the inductive way of reasoning by emphasizing the importance of considering the experiences of the people and validating “the whole peoples' supernatural discernment in matters of faith (sensus fidei)” (LG 12) as a legitimate authority in the Church. Another factor in support of “pastoral dialogue” with couples who are civilly married or even cohabitating is the priority given “to

[distinguishing] elements in their lives that can lead to a greater openness to the Gospel of Marriage in its fullness.”132 Here again we see a call to patient accompaniment that carries over clearly into Amoris Laetitia.

Next in the document is a brief consideration by the synod fathers of “the possibility of giving the divorced and remarried access to the Sacraments of Penance and the .”133 Here is the source of the well-known footnote 351 of Amoris Laetitia.

Pope Francis expands on the conditions necessary for this suggestion, though this idea is directly pulled from this suggestion from the midterm report of the Synod. Some

129 The Pastoral Challenges of The Family, §27. 130 The Pastoral Challenges of The Family, §32. 131 The Pastoral Challenges of The Family, §33. 132 The Pastoral Challenges of The Family, §41. 133 The Pastoral Challenges of The Family, §52.

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members of the Synod proposed an approach that permitted access to the Eucharist on a case-by-case basis while others “insisted on maintaining the present discipline.”134 A final point on this topic made in the document is the possibility that divorced and remarried persons, or persons cohabitating “can have fruitful recourse to a spiritual communion.”135 The general consensus appears to be that further theological study is needed in order to provide clarity on the matter.136 This document also refers to “the indissoluble character of marriage.”137 Importantly, this particular use of the term

“character” is likely intended to be non-technical. This language of a ‘character’ of marriage will be significant later on, in the fourth chapter, on Amoris Laetitia.

For the Synod on the Family, the topic of the reception of communion for the civilly divorced and remarried was “not the question, nor is it the topic of Amoris

Laetitia.”138 In a similar fashion, the primary point of both the recent Synod on the

Amazon and Francis’ subsequent document, , is the care of the

Amazon and its people. Despite the over-emphasis that the global West has placed on the issue of the allowance of married priests, this was in fact a relatively issue at the

Synod and in Querida Amazonia. In a similar vein, the Synod on the Family and Amoris

Laetitia were focused on such themes as accompaniment, while the belabored point of people in irregular unions being welcomed to the Eucharist took up little time and space

134 The Pastoral Challenges of The Family, §52. 135 The Pastoral Challenges of The Family, §53. 136 The Pastoral Challenges of The Family, §53. 137 The Pastoral Challenges of The Family, §52. 138 , The Message of Amoris Laetitia: Finding Common Ground (New York: Paulist Press, 2019), x.

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(only one chapter in Amoris Laetitia). Francis himself remarks in an interview that the issue is much bigger: the crisis of marriage and families.139

The final synod document in 2015 sought to rediscover the special place of the family in the life of the Church and “reflect on the reality of the family” today.140 Briefly, where the indissolubility of marriage is discussed, it is said to be based upon “the faithfulness of God to the covenant, which cannot be revoked.”141 This is the definition of indissolubility the Synod used and is also how Amoris Laetitia should be understood to be using this word. The synod fathers go on to cite Pope Francis, who reminds us that the analogy of marriage to Christ’s bond to the Church is “an imperfect analogy.”142 Cardinal

Wilfrid Napier concludes that the majority of the outcome of the synod was “very much a reaffirmation of the Church’s teaching and practice aimed most specifically at addressing the challenges identified by Synod 2014.”143

It is clear that, for this Synod, Pope Francis gave a sharper focus overall to

“collegiality and synodality.”144 This is a theme that has pervaded the whole synodal process and is a “hallmark of Pope Francis’s pontificate - reaching out to all in need, to all on the margins of society or the Church for whatever reason - but also reforming the

Church from top to bottom.”145 A significant point is made by Duncan and Urbaniak that

139 Nicholas J. Healy Jr. “The Merciful Gift of Indissolubility and the Question of Pastoral Care for Civilly Divorced and Remarried Catholics.” 41, no. 2 (Summer 2014), 319. 140 XIV Ordinary General Assembly of The Synod of Bishops, The Vocation and Mission of the Family in the Church and in the Contemporary World: The Final Report of the Synod of Bishops to the Holy Father, Pope Francis, Vatican City: Vatican Publishing House, 2015, §2-3. 141 The Final Report of the Synod of Bishops to the Holy Father, Pope Francis, §48. 142 Pope Francis, General Audience, (May 6, 2015). Quoted in “The Final Report of the Synod of Bishops,” §48. 143 , “What Made Synod 2014 and 2015 so interesting? Collegiality and Synodality,” 76 (2016): 327-338, at 336. 144 Napier, “What Made Synod 2014 and 2015 so interesting?,” 328. 145 Napier, “What Made Synod 2014 and 2015 so interesting?,” 337.

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the synod was composed of “bishops appointed predominantly by John Paul II and

Benedict XVI so we should not expect a significant move to the left in terms of theological opinion.”146 Kasper notes that “many sections of the exhortation are virtually a mosaic of statements from the synods.”147 He asserts that critics of Amoris Laetitia “not only criticize the pope but also puts him-or-herself in opposition to the majority opinion of the entire episcopate that was represented in the synod.”148

Because the Church must continuously renew herself, what is needed is

“synchronic dialogue, that is, the dialogue between the different positions in the contemporary Church,” along with “diachronic dialogue, that is, the dialogue between earlier positions and new beginnings.”149 Kasper rightly remarks that renewal must be done in a way that balances modern and traditional positions and that extremes of wanting everything or nothing to change should be avoided. This is the foundation on which Pope Francis has developed his writings and from which he has developed the changes he proposes. Chronologically, the next event under the papacy of Francis that deeply influenced the institution of marriage in the Church is the changes to the Code of

Canon Law, which will be the next topic under discussion.

146 Duncan and Urbaniak, “The ecclesial notion of family vs today,” 154. 147 Kasper, The message of Amoris Laetitia, 5. 148 Kasper, The message of Amoris Laetitia, 5. 149 Kasper, The message of Amoris Laetitia, 7.

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CHAPTER 3

REFORMS TO THE MARRIAGE NULLITY PROCESS

Now we move into the modern era and begin with the 1983 Revised Code of

Canon Law and its effect on the life of the Church in matters relating to marriage. Canon law is meant to be a tool for peace in the Church; a key example of this in the Code is the tradition that rules which are restrictive must be applied strictly or only narrowly, while favorable rules are to be amplified.150 Another way this is understood is in terms of the dynamic of hard and soft canons. Soft canons allow for canonical adjustments or complete overturns when the general rule is not quite fitting. Compared to the previous

1917 version, the 1983 Code is more willing to allow flexibility with the addition of soft canons that make otherwise “hard” canons able to go beyond the letter of the law while still upholding the spirit of the law. The incorporation of soft rules of law, or second/special rules, are “one way in which the canonical system accounts for the complex and full narratives of peoples’ lives, one way in which it adapts and accommodates its rules to diverse realities.”151 As a result of this built in flexibility, the

Church experiences and practices mercy within its legal system. This flexibility should be interpreted within the framework of canon law’s service to the mission of the Church by its supreme law which is dedicated to the “ of souls.”152

150 James A. Coriden, An Introduction to Canon Law. Rev. ed. (New York: Paulist Press, 2004), 202-3. 151 Joseph J. Koury, "Hard and Soft Canons: Canonical Vocabulary for Legal Flexibility and Accommodation," Jurist 50, no. 2 (1990), 487. 152 John P. Beal, James A. Coriden, and Thomas J. Green, eds. New Commentary on the Code of Canon Law. Study ed. (New York: Paulist Press, 2000), can. 1752.

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In 2015, Pope Francis made changes to canon law with the of his motu proprio Mitis iudex Dominus Iesus (The Gentle Judge, our Lord Jesus) and Mitis et misericors Iesus (The Gentle and Merciful Jesus). The former document was written for the and the latter written for the Eastern Catholic Churches. These letters were written with the intention of changing and simplifying the current procedures of the marriage nullity process as well as to promote a unity of faith. In the introduction of Mitis iudex, Pope Francis stressed that these reforms were not introducing provisions that favor nullity but rather speediness and appropriate simplicity.153 These apostolic letters must also be seen in the context of the Extraordinary Jubilee Year of Mercy, which began on the same day these changes went into effect: December 8, 2015.154 Finally, as Pope

Francis indicates, the letters respond to a request made by a majority of the bishops at the

2014 Extraordinary Synod on the Family.155

There are key changes to note from these documents that have had and will continue to have varying levels of significance for tribunals (ecclesial courts) and marriage nullities. In Mitis iudex, one of the most influential reforms for the procedure of marriage nullity is the processus brevior, which is “a simple process to be used in cases where nullity is clearly evident.”156 This abbreviated process has the potential to heavily influence bishops’ understanding of the importance of tribunal ministry, since it will require a much more involved role for the , in lieu of a three-judge panel in certain

153 Frans Daneels, “A First Approach to the Reform of the Process for the of Marriage.” In Justice and Mercy Have Met: Pope Francis and the Reform of the Marriage Nullity Process, ed. Kurt Martens (Washington, DC: Catholic University of America Press, 2017), 8. 154 Bernard A. Hebda, “Reflections on the Role of the Envisioned by Mitis Iudex Dominus Jesus.” In Justice and Mercy Have Met: Pope Francis and the Reform of the Marriage Nullity Process, ed. Kurt Martens (Washington, DC: Catholic University of America Press, 2017), 66. 155 Pope Francis, Mitis Iudex Dominus Iesus, §3. 156 Daneels, “A First Approach to the Reform of the Process for the Declaration of Nullity of Marriage,” 20.

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cases. When the specific conditions for this abbreviated annulment process are met, the bishop wields the power to render a decision based on the case documents. The new processus brevior gives to the diocesan bishop a very direct and intimate role in judging cases qualifying for this process.157 This new role for the bishop could be incredibly beneficial not only for those seeking an annulment who will now receive “one-on-one” interaction with this authority figure of the Church, but also for the bishop’s own experience to more empathetically address these changes made by Pope Francis and the tribunal process as a whole. Because the bishop is the “shepherd and head” over his appointed church, he is in a unique position that makes him “by that very fact the judge of those faithful.”158 There is no other relationship like the one between the shepherd and his flock, and because of this dynamic, the bishop has a unique ability to accompany his sheep. Francis also addressed the question of how this briefer process would affect the principle of the indissolubility of marriage. Aware of the potential to be interpreted as an undermining force to the doctrine of marriage, he explains how it was a well-orchestrated plan to place the bishop in this role as judge due to his “duty as pastor” and having “the greatest care for catholic unity with Peter in faith and discipline.”159 The greatest pastoral care and intentionality was given to this new process and appointment of the bishop as the judge in this briefer process.

The motu proprio also prioritized the need to make the procedures in cases of nullity free of charge.160 Efforts were already in place to offer annulments without cost or at a discounted price if those seeking one could not pay. This highlights the importance

157 Hebda, “Reflections on the Role of the Diocesan Bishop Envisioned by Mitis Iudex Dominus Jesus,” 75. 158 Pope Francis, Mitis Iudex Dominus Iesus, §4 159 Pope Francis, Mitis Iudex Dominus Iesus, §IV 160 Pope Francis, Mitis Iudex Dominus Iesus, §VI.

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for Francis to support this effort and ensure that the cost is not prohibitive for people and to encourage the diocese to budget accordingly in order to fund this ministry. Another point of the reformed marriage process is the suppression of the requirement of a double conforming affirmative decision before someone is allowed to enter a new canonical marriage. This reform now finds the first decision in favor of nullity to be sufficient for determining moral certitude of the given sentence and no longer requires from a second court.161 Here is another way Francis is fostering a judicial process that places people first by trimming down the prolonged wait times to hear a response. A final change of great ecclesial significance was made to the panel of three judges in marriage tribunal cases, two of whom can now be lay members of the Church. The benefit of this change is twofold because it both makes the ability to find three judges more manageable since the number of lay canon lawyers is growing and the number of priests is dwindling, which also contributes to a more expeditious annulment process.

Overall, Frans Daneels believes that “the reformed process concerns ‘justice and mercy regarding the truth of the bond of those who have experienced matrimonial failure.’”162 Daneels goes on to say that “Mercy for broken marriages requires that, when appropriate, the real possibility of a marriage process be offered-to be conducted with great humanity and delicacy.”163 The mercy that can be found in the changes by the motu proprio are centered around the hope that people can be brought back to communion with the Church. Even the briefer process can be understood as a merciful path after broken

161 Pope Francis, introduction to Mitis Iudex Dominus Iesus. 162 Daneels, “A First Approach to the Reform of the Process for the Declaration of Nullity of Marriage,” 15. 163 Daneels, “A First Approach to the Reform of the Process for the Declaration of Nullity of Marriage,” 15.

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marriages, although Daneels is careful to point out that this process “should be rather rare, due to the two essential conditions”, namely, the consent of both spouses, and the case for nullity of the marriage must be “plainly evident from the outset.”164 This streamlined process is consistent with indissolubility because not only do the essential conditions occur relatively infrequently, it also has been carefully constructed with the salvation of souls as the aim.

The 1983 Revised Code can be understood as the last document of Vatican II and the 2015 nullity reforms are Pope Francis’ successful attempts to continue the spirit of

Vatican II. These reforms are an increased effort of the Church to be more inclusive and I would argue are made in an effort to stay up-to-date with the rest of the world. According to the Statistical Yearbook of the Church in 2013 a total of “41,721 cases of marriage nullity were brought to conclusion… 33,438 received an affirmative decision”, and of the affirmative decisions, 16,550 were issued in North America.”165 The Catholic Church exists in a world that has been described as ‘plagued with a divorce mentality’, although the reality is likely more complicated than this one issue. It can be said that Pope Francis has every intention to safeguard the salvation of souls and these reforms were made in the context of a Church still learning how to effectively implement the vision of Vatican

II.166 In a way, the Church will always be continuing her interpretation and manifestation of the Conciliar documents as the and their circumstances are constantly changing. These reforms are not perfect embodiments of Vatican II and will likely require clarification as more dioceses implement the changes of the motu proprio, but

164 Daneels, “A First Approach to the Reform of the Process for the Declaration of Nullity of Marriage,” 21. 165 Daneels, “A First Approach to the Reform of the Process for the Declaration of Nullity of Marriage,” 6. 166 Pope Francis, introduction to Mitis Iudex Dominus Iesus.

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they are a step in the right direction. They are nevertheless, honest attempts at implementing proposals from the synod on the family in a way that is congruent with tradition and therefore, should be taken seriously.

The Code, and by extension, the changes the motu proprio made to the Code, are intricately woven works of human and divine nature, both of which are possessed by the community.167 The norms of canon law are born from both “a human need for order and ordered operations” and “some norms are demanded and generated by divine revelation.”168 The human reason from which canon law originates is “enlightened by, and united with, the word of God and energized by .”169 It is in the nature of the Code to reflect the nature of the Church which is itself in relationship “with the divine because it is an integral part of the Church as sacrament.”170 Because of its dual nature, the Code has a transcendental quality while also being susceptible to human error. It has an incarnational character that blends human prudence with divine wisdom. As a result of the Code’s reflection of the human , an integral part of canon law is its potential for development and need to be in harmony with the Church as a living body.

This means that in order for the canonical system to effectively and faithfully guide the

Church, it should adapt and accommodate its rules to diverse realities. Similarly, the task for canon law is to “provide structures and point to customs that allow the to foster our common life in communion embraced within the Law of the people of God: mutual love.”171 The Holy Spirit works through the Code to speak to the people of God in

167 Ladislas M. Orsy, “Theology and Canon Law,” in New Commentary on the Code of Canon Law, ed. John P. Beal, James A. Coriden, and Thomas J. Green, Study ed. (New York: Paulist Press, 2000), 2. 168 Orsy, “Theology and Canon Law,” 2. 169 Orsy, “Theology and Canon Law,” 2. 170 Orsy, “Theology and Canon Law,” 2. 171 Brendan Leahy, “The Role of Canon Law in the Ecumenical Venture: A Roman Catholic Perspective,” Ecclesiastical Law Journal 13, no. 1 (January 2011), 24.

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a way that teaches and continues the message of the Gospel.

We need canon law in our Christian communities because we are a pilgrim people of God that has not yet reached perfection. This means that we are in constant need of

“renewal” as a Church who is “always in need of being purified.”172 The law is an instrument to translate doctrine into juridical norms and “prompt and bind the community to strive for perfection and gives direction for its progress.”173 There is a sense of stability which grows from the rules and norms within canon law. Social customs are sometimes

“canonized” and recognized as law, which speaks to the relational aspect of canon law and its ability to interpret what the Church practices and believes.

If we understand the Church through the model of a pilgrim people of God, the

Church is challenged to be sensitive to the signs of the times and is perennially called to reform so as to mediate the good news of salvation ever more effectively. Consequently, the Church and her laws cannot be static but must be open to evolution in the Spirit where necessary.174 Pope Francis’ reform to the marriage nullity process is one example of the law being transformed in order to promote the good of the faithful. The promulgation of Mitis iudex Dominus Iesus was meant to change and simplify procedures and promote a unity of faith among Christians. They must first and foremost be seen in the context of the Extraordinary Jubilee Year of Mercy. When these documents are seen through this lens, it becomes clear how the papacy of Pope Francis is dedicated to

172 Dogmatic Constitution on the Church: , 8 (Vatican: Vatican Publishing House, November 1964), http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat- ii_const_19641121_lumen-gentium_en.html. 173 Orsy, “Theology and Canon Law.” 2. 174 Thomas J. Green, “The Revised Code of Canon Law: Some Theological Issues,” Theological Studies 47, no. 4 (December 1986), 623.

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forgiveness, and these apostolic letters are his way of addressing this mission of mercy at the institutional level.

Now we will move onto the topic of the indissoluble bond of marriage. The Code has the unique task of balancing the doctrine of indissolubility with the tribunal and annulment process. We will begin with a look at annulments and the particular ways the doctrine of indissolubility impacts this frequently-used process in such a way that the bond of marriage is never undermined. In thinking about the role that declarations of nullity have on the doctrine of the indissolubility of marriage, the Pauline and should be briefly analyzed because they are separate though related procedures in canon law.

St. Paul writes that “An unbelieving husband is sanctified by his wife, and an unbelieving wife is sanctified by a believing husband.”175 This passage is the basis from which we arrive at the , in which a sacramental marriage invalidates a previous .176 The Pauline privilege is defended on the grounds that a

Christian marriage supersedes a valid marriage between two non-Christians or between a

Christian and a non-Christian. Canon 1143 explains that the Pauline privilege comes into effect when a “marriage entered into by two non-baptized persons is dissolved …. in favor of the faith of the party who has received by the very fact that a new marriage is contracted by the same party, provided that the non-baptized party departs.”

A number of criteria must be met in order for the Pauline privilege to be applicable: 1) it is only applicable if one of the spouses is baptized a Christian and the other is not, 2) the unbaptized spouse is either unwilling to live with the baptized spouse or is hostile to the

175 1 Cor 7:14. 176 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §138.

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Christian faith of the other, 3) the baptized spouse must want to remarry.177 This situation is allowed because it assists “the faith of a believer.”178 Even though this is a dissolution, it is only possible when an unbaptized person makes conjugal living with a baptized person impossible, and the latter subsequently has a valid second marriage.

Edward Schillebeeckx comments on the Pauline privilege and condemns its function as serving to “weaken all of the arguments that moral theology presents for indissolubility based purely on the ‘nature’ of marriage.”179 He continues to expound on this privilege by citing the fundamental idea this provision is based on, which is “that a nonsacramental marriage is not indissoluble in and of itself, and so, for the sake of a sacramental marriage (which is interpreted as the marriage of two baptized people), it can be dissolved.”180

Similarly, a “Petrine privilege,” also known as a privilege of faith, is a marriage dissolution for special cases, and “rests on the distinction between sacramental and non- sacramental marriages.”181 This privilege finds the marriage able to be dissolved on the grounds that one of the spouses wishes to be baptized and the previous marriage is annulled in favor of the faith. This is not a declaration of nullity but rather a dissolution of a bond of marriage and it is only possible if a marriage was never consummated.182

Because of the Pope’s unique “power ‘to bind and to loose’” given by Christ, these cases

177 Beal, New Commentary on the Code of Canon Law, 1365. 178 Paul Robbins, Second Marriage in the Catholic Church: “Annulment” and Other Solutions (Self- published, 2019), 136. 179 Edward Schillebeeckx, “Catholic Marriage and the Reality of Complete Marital Breakdown,” in Catholic Divorce: The of Annulments, ed. Pierre Hégy and Joseph Martos (New York, London: Continuum, 2006), 85. 180 Schillebeeckx, “Catholic Marriage and the Reality of Complete Marital Breakdown,” 87. 181 Pierre Hégy, “Catholic Divorce, Annulments, and Deception,” in Catholic Divorce: The Deception of Annulments, ed. Pierre Hégy and Joseph Martos (New York, London: Continuum, 2006), 17. 182 Robbins, Second Marriage in the Catholic Church, 134.

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“are as close to divorce as is possible in the Catholic Church.”183 Without the sexual act to consummate the marriage, the bond is not fully realized, thus making the marriage open to dissolution.184

The Code and the Church are quite clear in saying that “a ratified and consummated marriage cannot be dissolved by any human power or for any reason other than death” (CCC 1640, 2382). Marriages are in fact presumed to be valid provided they fulfill the conditions of an indissoluble marriage which can be found in canons 1141 and

1061. And yet, the Church maintains legitimate ways of allowing remarriage in the case of a decree of nullity and even the Pauline and Petrine privilege, which essentially dissolve valid and natural marriages. These privileges seem to function somewhere in between annulments (though technically they are not annulments) and Catholic divorce.

Some scholars would argue that annulments, with their astonishing increase in numbers in recent years, can give the impression that they are a kind of “Catholic divorce” that “can be obtained more or less on demand.”185 Michael Lawler says that the

Catholic Church actually grants divorces for non-sacramental or non-consummated marriages, although they are disguised as dissolutions.186 The source of this problem may lie in the legal structures themselves and in the ’s denial about the state of marriage in the Catholic Church.187 The kind of flexibility that the Pauline and Petrine privilege utilize is an indication that there is room for canon law to adjust and better tend to the spiritual needs of divorced and remarried people.

183 Robbins, Second Marriage in the Catholic Church, 134. 184 Robbins, Second Marriage in the Catholic Church, 135. 185 Hégy and Martos, Catholic Divorce: The Deception of Annulments, 3. 186 Michael G. Lawler, Marriage and the Catholic Church: Disputed Questions, 113. 187 Hégy and Martos, Catholic Divorce: The Deception of Annulments, 3.

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Now to be defined is a civil divorce in order to further help contextualize the topic we are dealing with. A civil divorce “is a dissolution of a civilly valid marriage contract.”188 An important point of what they actually accomplish is explained by that fact that “civil courts conclude that the marriage is dead, Catholic tribunals always conclude that the marriage never existed.”189 A significant difference between an annulment and a divorce is that “socially, divorce sanctions the failure of a relationship, not a moral failure.”190 In a way, annulments are about the beginning of a marriage, whereas civil divorces are about the end.

A helpful way to look at the potential problems of Catholic divorce is summed up nicely by Schillebeeckx: marriage is “indissoluble not because it is a sacrament, but it is a sacrament because and so far as it carries out…. The living reality of faith.”191 When this sacramental manifestation of the faith fails, the Church should seek to address this reality.

This is where the Pauline and Petrine privilege come into play, although, as has been pointed out, they can be rightly understood as the closest thing the Church has to Catholic divorce because they conclude that an otherwise valid marriage is in fact dissoluble. We have seen that Pauline and Petrine privileges show that natural marriage is not always indissoluble. Yet, the indissolubility of marriage is still of the greatest importance and sacramental validity is assumed until proven otherwise. This is an important assumption of the Church that should be kept in mind when considering these rare privileges and

188 Michael Smith Foster, Annulment, the Wedding That Was: How the Church Can Declare a Marriage Null (New York: Paulist Press, 1999), 175. 189 Hégy, “Catholic Divorce, Annulments, and Deception,” 20. 190 Ibid., 21. 191 Edward Schillebeeckx, “Christian Marriage and the Reality of Complete Marital Breakdown” cited in Hégy, “Catholic Divorce, Annulments, and Deception,” 205.

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their function as pastoral flexibility that respects the letter of the law while also balancing the spirit of the law.

A final point to be made rests with the possibility of the internal forum solution.

This pastoral solution involves “matters of individual conscience” and the inability for irregular unions to be remedied in the external forum, where tribunals operate.192

Annulments are granted based on evidence, witnesses, and testimony, but one area where they falter is in proving “that one person had a defective intention during or prior to the actual marriage ceremony.”193 Because a defect of intention is a canonically sound ground for an annulment, it follows that there should be a valid way of ‘proving’ this if the external forum offers no solutions. As a result of this ‘remedy’ being largely a matter between the couple and God, great care must be taken so that it is not abused, and to assure that the faithful are properly forming and then truly obeying their well-informed consciences.194 For those in irregular second marriages, recourse to the internal forum

“does not mean that an irregular union becomes a marriage recognized by the Church.”195

It does, however, have the potential to resolve “the inability to receive the sacrament of the Eucharist.”196 Catoir refers to this second union as a “‘good conscience marriage’” because the couple has, with the help of a priest typically through the sacrament of reconciliation, followed their informed conscience to faithfully and sincerely discern that the new marriage is valid before God.197 Because of the nature of this solution, it usually takes effect after careful discernment with one’s priest or “in the privacy of the

192 Robbins, Second Marriage in the Catholic Church, 138-9. 193 John T. Catoir, The Dilemma of Divorced Catholics: Where Do You Stand with the Church? What Is the Internal Forum?, Rev. Ed. (Totowa, NJ: Catholic Book Pub., Corp/Resurrection Press, 2007), 70. 194 Both the CCC (1782) and the Code assert the right and duty we have to abide by our consciences. 195 Robbins, Second Marriage in the Catholic Church, 142. 196 Robbins, Second Marriage in the Catholic Church, 143. 197 Catoir, The Dilemma of Divorced Catholics, 77.

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confessional.”198 Catoir affectionately refers to the internal forum as “the tribunal of mercy.”199 In the next chapter, we will take a close look at Amoris Laetitia which also advocates for a merciful path though Pope Francis’ single mention of the internal forum is appealed to as a contributor to “the formation of a correct judgment on what hinders the possibility of a fuller participation in the life of the Church and on what steps can foster it and make it grow.”200

Catoir calls attention to the situation in the United States and he observes that

“thousands of deserving couples have come back to the sacraments through the internal forum, even though their present marriage was never technically revalidated in the

Church.”201 The internal forum solution seeks to address the limitations of the external forum and minister to those couples who have experienced the “inadequacies of our tribunals” or who simply cannot receive an annulment.202

Our study will now move to investigation of the bond of marriage and how the language of this theology has been used recently by scholars and is developing under

Pope Francis. Nicholas Healy speaks to the bond of marriage in a footnote stating that

“the gift is as it were taken out of the spouses’ hands and becomes an objective form endowed with the equally objective properties of unity and indissolubility-indissoluble precisely because the gift of self is total and irrevocable.”203 Healy responds this way as

198 Catoir, The Dilemma of Divorced Catholics, 70. 199 Catoir, The Dilemma of Divorced Catholics, 79. 200 Amoris Laetitia mentions the internal forum when Pope Francis advocates for the use of an examination of conscience when ministering to and accompanying persons in irregular unions (300). The use of a well- informed conscience as a way of reflection and attempt at reconciliation is only discussed in the context of accompaniment and is not meant to replace the external forum or be used as “exceptions” to the law of the Church. 201 Catoir, The Dilemma of Divorced Catholics, 75. 202 Catoir, The Dilemma of Divorced Catholics, 75. 203 Nicholas J. Healy Jr. “The Merciful Gift of Indissolubility and the Question of Pastoral Care for Civilly Divorced and Remarried Catholics.” Communio 41, no. 2 (Summer 2014), 312.

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a critique of the idea that if “love dies or no longer exists, the marriage itself ceases to exist.”204 He maintains, on the contrary, that the love of the couple is sanctified in the sacrament of marriage and is objectified in a way that gives the bond a transcendental aspect, making it indestructible. For Healy, once the couple has given the total gift of self to one another, this gift cannot be taken back. Some problems arise from this particular language used in light of the doctrine of marital indissolubility and the fact that marriage is not one of the sacraments that imprints an indelible (or unremovable) mark. St. Thomas

Aquinas explains the indelible character of the sacraments of baptism, confirmation and holy orders in the Summa Theologiae III.63.5 by using descriptors such as ‘remains forever,’ and cannot be ‘blotted out,’ meaning that even after death, the ‘mark’ or ‘seal’ imprinted on the persons’ soul, remains intact. The word ‘indelible’ is related to, yet distinct from ‘indissoluble’ as the former remains after death in the form of a ‘character’ which does not apply to marriage, while the latter specifically refers to the permanence of marriage. This question will be explored in length in the next chapter.

Healy discusses theologians such as Theodore Mackin and Edward Schillebeeckx who “[call] into question the continued existence of the bond of marriage” as one way to support the allowing of divorced and remarried Catholics to communion, (which he calls wrongheaded).205 Other German theologians, including at the time Father Joseph

Ratzinger, “appealed to certain that seem to allow leniency in emergency situations.”206 Here, Healy is indicating that the bond of marriage should not be questioned for the sake of allowing people in irregular unions to receive communion. I

204 Healy, “The Merciful Gift of Indissolubility,” 312. 205 Healy, “The Merciful Gift of Indissolubility,” 313. 206 Healy, “The Merciful Gift of Indissolubility,” 313. Healy notes in footnote 21 that this suggestion of the use of the internal forum put forward by Father Ratzinger was later retracted.

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affirm that because these German theologians upheld marital indissolubility, their argument may have – that pastoral leniency for such persons in particularly difficult situations can be grounded in the witness of the Church Fathers.

Then he moves to , where Pope John Paul II “earnestly

[calls] upon and the whole community of the faithful to help the divorced, and with solicitous care to make sure that they do not consider themselves as separated from the Church.”207 However, he later goes on to say that if remarried persons “were admitted to the Eucharist, the faithful would be led into error and confusion regarding the Church’s teaching about the indissolubility of marriage.”208 John Paul II is aware that people who are divorced and civilly remarried can feel virtually excommunicated because they are barred from receiving communion, but because of the risk of scandal, he judged that even allowing a few people in irregular unions this flexibility would result in more harm than healing. Granados, Kampowski, and Pérez-Soba contribute to this way of thinking which

I believe to be more realistic and grounded in human praxis; namely that the Church does not want the faithful to be tempted to do the wrong thing if people see divorced and remarried persons receiving communion without an appropriate and careful discernment process.209

After the apostolic exhortation Familiaris Consortio was published, the next important development in marital theology occurred when Walter Kasper and other

German bishops published a letter that argued, according to Healy, that the “teaching in

207 Familiaris Consortio, 84 quoted in Healy, “The Merciful Gift of Indissolubility,” 315. 208 Healy, “The Merciful Gift of Indissolubility,” 315. 209 José Granados, Stephan Kampowski, and Juan-José Pérez-Soba, Accompanying, Discerning, Integrating: A Handbook for the Pastoral Care of the Family According to Amoris Laetitia (Steubenville, Ohio: Emmaus Road Publishing, 2017), 81.

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Familiaris Consortio [stated] a general norm that, while true, cannot regulate all of the very complex individual cases.”210 They specify that under restricted and carefully discerned conditions, “civilly remarried people could in good conscience receive the

Eucharist without any commitment to live continently.”211 The Congregation for the

Doctrine of the Faith (CDF) responded by calling for strict adherence to the teaching of

Familiaris Consortio stating that it “cannot be modified because of different situations.”212 But Healy explains that the pastoral care suggested by John Paul II in

Familiaris Consortio was not followed, based on a review of the literature.213 This general lack of adherence to the teachings on pastoral care for those in irregular unions in

Familiaris Consortio can indicate that there was not widespread agreement on these teachings and their implementation into church life and ministry. Then we have Pope

Francis, who, when questioned on the issue of the reception of the sacraments by the divorced and remarried, and whether or not the Church’s discipline could change, responded by emphasizing the importance of mercy and mentioned the Orthodox practice of “oikonomia, which means ‘they give a second chance.’”214 Francis followed up with

210 Healy, “The Merciful Gift of Indissolubility,” 316. 211 Healy, “The Merciful Gift of Indissolubility,” 316. 212 CDF, “Letter to the Bishops of the Catholic Church Concerning the Reception of Holy Communion by the Divorced and Remarried Members of the Faithful,” 1994. The text is available online at: http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_14091994_rec- holycomm-by-divorced_en.html. Cited in Healy, “The Merciful Gift of Indissolubility,” 317. 213 Healy, “The Merciful Gift of Indissolubility,” 317. Healy makes this point based on a review of the literature and cites the following sources. Cf. Kenneth R. Himes and James A. Coriden, “Notes on Moral Theology: Pastoral Care of the Divorced Remarried,” Theological Studies 57 (1996): 97–123; Michael Lawler, “Divorce and Remarriage in the Catholic Church: Ten Theses,” New Theology Review 12, no. 2 (1999): 48–63; Catholic Divorce: The Deception of Annulments; Eberhard Schockenhoff, Chancen zur Versöhnung? Die Kirche und die wiederverheirateten Geschiedenen (Freiburg: Herder, 2012). 214 Healy, “The Merciful Gift of Indissolubility,” 318. Healy cites a transcript of the interview given on the return flight from the World Youth Day in Brazil on July 28, 2013, which is available at: http://w2.vatican.va/content/francesco/en/speeches/2013/july/documents/papa-francesco_20130728_gmg- conferenza-stampa.html.

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the recommendation that this idea “be studied further within the context of the pastoral care of marriage.”215 Although scholars have pointed out that the pastoral practice of oikonomia is much more complex than Francis may have indicated, this is still an interesting point of difference in care for the divorced. Roch Pagé explains that in the practice of the “the bishop can grant a consat of divorce, allowing a new union which is not sacramental, since the first marriage was and remains indissoluble.”216 Pagé cites mercy as a foundation for this practice, so it makes sense why

Francis draws upon this as a potential solution for the Roman Catholic Church.

Francis is dealing with a similar situation to John Paul II, with divorce and familial breakdown a painfully prevalent reality; and knows that a restating of doctrine must also come with a renewed effort to engage culture in order to adequately address the modern-day challenges of marriage and familial relationships. Healy correctly indicates that “the Church does not have the authority to change Christ’s teaching on the indissolubility of marriage.”217 It is true that we do not have the power to alter doctrine that has been revealed to the Church, and importantly, Pope Francis is not calling for this kind of change. Rather, he is proposing a “pastoral conversion”218 which cannot be realized “by a decree nor by a document, but by common effort aimed at approaching these brothers and sisters and accompanying them along their journey toward Christ.”219

The beauty of traditional doctrine and its application need not remain static and unmoved

215 Healy, “The Merciful Gift of Indissolubility,” 318. Healy cites a transcript of the interview on 28 July 2013, which is available at: http://w2.vatican.va/content/francesco/en/speeches/2013/july/documents/papa- francesco_20130728_gmg-conferenza-stampa.html. 216 Roch Pagé, “Questions Regarding the Motu Proprio Mitis Iudex Dominus Iesus,” in Justice and Mercy Have Met: Pope Francis and the Reform of the Marriage Nullity Process, ed. Kurt Martens (Washington, DC: Catholic University of America Press, 2017), 357. 217 Healy, “The Merciful Gift of Indissolubility,” 324. 218 Cf. Francis, , n.25. 219 Granados, Kampowski, Pérez-Soba, Accompanying, Discerning, Integrating, 78.

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by the faithful, but perhaps should be carefully investigated on a regular basis to ensure that it continues to be life-giving.

Healy concludes that while civilly remarried Catholics may feel excluded from the Eucharist and experience suffering as a result, this is not the “most serious wound nor the gravest pastoral challenge facing the Church today.”220 According to Healy, the deepest wounds in our culture “stem from a crisis of faith, which is also a crisis of love and a crisis of reason.”221 But it seems that both the symptoms and the ‘illness’ should be treated, and if there is a crisis of faith, its resulting symptoms such as care for the civilly remarried should be tended to wholeheartedly. The acceptance of people in irregular unions and other exceptional situations potentially receiving communion may not be the best solution, but if Catholics feel virtually excluded from true communion with the faithful and the Church, we should find new and legitimate ways to remedy this wound, which could mean reevaluating how we tend to these people who make up a large percentage of Catholics. The fullness of truth is contained within the Catholic Church, and as the Catechism cites, “The Eucharist is ‘the source and summit of the Christian life’” (CCC 1324). If this life-giving and sustaining source of food is restricted indefinitely from people in irregular unions, and if the Church desires to minister to these people, the care should be reflective and inspiring. Ideally, these people would be informed of the beauty of the fullness of the sacrament of marriage and would be accompanied on the path to integration into the full life of Christ. This does not mean that the idea of welcoming those in irregular unions to receive the Eucharist is the best solution, but it raises questions and sparks fruitful discussion. The hope is that ministers

220 Healy, “The Merciful Gift of Indissolubility,” 329. 221 Healy, “The Merciful Gift of Indissolubility,” 329.

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do not stop at saying this is not an option to those in irregular unions, but go on to explore other ways to help these people not feel virtually excommunicated.

Pope Francis is seeking to ignite a revolution of tenderness and love that balances the tradition of church teachings in a way that is fruitful for the life of the Church. Based on the historical analysis of this thesis, it is clear that church teaching on marriage is constantly changing, and Pope Francis set out to reconcile these teachings that are more nuanced than we know, with the current pastoral problems. These changes have a momentum that is moving the Church towards a more radical inclusivity that is responding to the needs of the people, something that canon law and church teaching should always be doing.

Daniel Horan calls for us to remember that a tenet of orthodox Catholic faith is that the Church is simultaneously sinful and holy.222 Far from the fate of the Church resting solely on the faithful, “the ongoing presence and action of the Holy Spirit should be the founding principle of how we think of the church.”223 Horan emphasizes the importance of acknowledging that the Church and her people are both sinful and holy, and the existence of the Holy Spirit means that we can face this reality with confidence that God will work in and through the world and the Church. We would do well to remember that sinfulness is an everyday reality, and even with this, the Spirit actively moves in the life of the Church. On a related note, the redemptive work of Christ is being

222 Daniel P. Horan “The Church is suffering from Holy Spirit atheism,” National Catholic Reporter (March 20, 2019), https://www.ncronline.org/news/opinion/faith-seeking-understanding/church-suffering- holy-spirit-atheism. Cf. Brian P. Flanagan, Stumbling in Holiness: Sin and Sanctity in the Church (Collegeville, Minnesota: Liturgical Press Academic, 2018). Flanagan describes how the church is simultaneously sinful and holy. This is because of the church’s foundation of God who has chosen her to be the instrument of salvation for the world. The other truth about the church is that we stumble on the pilgrimage toward fulfillment with God, and regularly fail to live up to our calling. Flanagan holds these truths to be noncontradictory though difficult to hold in tension. 223 Horan, “The Church is suffering from Holy Spirit atheism.”

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actualized still today by the Holy Spirit, and because of this the Church is on a constant learning curve. Recognizing our sinfulness will help to reveal areas of ministry and theology that deserve attention. One such area appears to be the care of those in irregular unions.

Finally, we will analyze selected documents of the International Theological

Commission (ITC) and their evaluation of the problem and potential solutions to approach issues that must be addressed in the theology of marriage. According to the

Latin Church, faith does not appear in the definition of the sacrament of marriage because

“It is presupposed, so to speak, by the prior act of baptism, the sacrament of faith par excellence.”224 In fact, the validity of marriage does not require the “intention to celebrate a sacrament… but only the intention to contract a natural marriage.”225 In seeking a solution to this issue, the ITC investigates the state of the question beginning with the biblical foundation of marriage. Jesus teaches against divorce as a “concession due to hardness of heart”, and in so doing “reiterates God’s original plan.”226 An important point is made that “the interpretation of the Matthean clause has been very controversial.”227

On this matter, “no consensus has been reached either on the porneia or on the precise consequences it would have” and because of this, the Latin tradition excludes “the possibility of a second union.”228

Most scholars agree that the Matthean exception clauses were added by the gospel writer, and if this is true, they could be “evidence for a developing understanding of

224 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §132. 225 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §132 226 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §136. 227 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §136. 228 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §136.

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Jesus’ teaching in the light of pastoral needs.”229 The meaning of the word porneia, which is commonly translated as unchastity, is certainly associated with sexual sin, however, there is much debate over whether it is limited to adultery “or has a wider, more indefinite meaning.”230 Reynolds sees in this Matthean use of the word porneia “an obscure way of denoting adultery (for which the proper word would have been moicheia).”231 Understanding what porneia means in this Matthean passage is significant for current divorce and remarriage practices “because its resolution will throw light on whether the exception is limited to adultery, or can, with textual support, be more broadly understood.”232

David Parker shows that the saying attributed to Jesus in Matthew 5:32, which forbids the remarriage of a divorced woman, must be read carefully and can be illuminated by early translations of the English Bible.233 These early texts say in Mt

5:32a: “If a man divorces his wife for any cause other than unchastity he involves her in adultery.”234 Absent from these texts is the line concerning remarriage or Mt 5:32b:

“whoever marries a divorced woman commits adultery.”235 This allows the “practice of divorce [to be] separated from the issue of remarriage,” thereby making it possible that

Jesus is criticizing “‘the cruel and arbitrary dismissal of a faithful wife.’”236 Another issue, according to Parker, is that in practice, if a man divorced his wife, the community

229 Adrian Thatcher, Marriage after Modernity: Christian Marriage in Postmodern Times (New York: New York University Press, 1999), 261. 230 Thatcher, Marriage after Modernity, 261. 231 Philip Lyndon Reynolds, Marriage in the Western Church: The Christianization of Marriage During the Patristic and Early Medieval Periods, (Leiden: E.J. Brill, 1994), 173. 232 Thatcher, Marriage after Modernity, 261. 233 David Parker, “The Early Traditions of Jesus’ Sayings on Divorce’,” Theology, 96.773 (1993), pp. 372- 83. Cited in Thatcher, Marriage after Modernity, 256. 234 Thatcher, Marriage after Modernity, 256. 235 Thatcher, Marriage after Modernity, 256. 236 Thatcher, Marriage after Modernity, 256-257.

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would assume the cause was her adultery, her unfaithfulness to him.237 Jesus is calling out this stigma and protecting women from this practice and “[honoring] her fidelity by continuing to regard her as married.”238 Because scripture is not always egalitarian, “The equality or inequality of men and women in respect of adultery is crucial to how one interprets the Matthean exception. If husband and wife are equal, then the gender-specific aspects … must be incidental.”239 This perspective makes sense in light of the notion that

Jesus was protecting women from unjust divorce, because in practice, men and women were not historically treated as equals.

Thatcher brings up another point that there are strong reasons that support the view that “Jesus is to be understood as a religious and moral teacher rather than a lawyer.”240 This is an important qualification to keep in mind when we discover that the early church understood Jesus’ sayings “to have the force of law.”241 On a related note, if

Jesus was in fact proposing laws, why did the Church never “treat other parts of Matthew

5 as laws, for example the forbidding of oath-taking (33-38), self defense (39), walking the extra mile (41) and giving to anyone who asks (42).”242 One way to think about this teaching on divorce is that Jesus deliberately exaggerated it to drive home the point for people who took divorce for granted, especially in an era when divorce was rather common.243

Another point that arises from our historically minded way of interpreting Jesus’ teachings on divorce and remarriage is that St. Augustine makes the comparison between

237 Thatcher, Marriage after Modernity, 257. 238 Thatcher, Marriage after Modernity, 257. 239 Reynolds, Marriage in the Western Church, 175. 240 Thatcher, Marriage after Modernity, 258. 241 Thatcher, Marriage after Modernity, 258. 242 Thatcher, Marriage after Modernity, 258. 243 Thatcher, Marriage after Modernity, 258.

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baptism and marriage and reasons that “just as the sacrament of baptism is said to remain in an excommunicated Christian so the bond of marriage remains in a divorced person even after divorce.”244 The problem with this is one that is anachronistic for Augustine but is important for our discussion. This comparison seems to fall apart with the church teaching that baptism imprints an indelible mark while marriage does not. This teaching indicates that the two sacraments and their effected ‘marks’ are fundamentally different, thereby making it impossible for the bond of marriage to remain ‘just as’ the bond of baptism remains. What I find important at this juncture in the discussion is that because the doctrine of marital indissolubility should remain intact for the good of the faithful, perhaps the language surrounding the indelibility of the sacraments needs to be revisited.

The Orthodox Church and most Protestant churches for example, “allow divorce on the basis of the spiritual death of the marriage.”245 In addition, the Orthodox “do not believe that marriage ends at death but lasts for eternity,” and because of this, “the belief that a marriage can die spiritually [has] added force.”246 The piece I find the most compelling and relevant for this discussion is the idea that the marriage bond can last for eternity, which has the potential to strengthen church teachings with our praxis and language that hinges on permanence. There is not one perfect answer, the point is to use tools of inquiry towards future success.

Indissolubility is understood “as the essential note of conjugal relationship, because otherwise it would deviate from God’s original plan (Gn 2:23-24) and would cease to be a visible sign of Christ’s irrevocable love for his Church.”247 In actual

244 Thatcher, Marriage after Modernity, 269. 245 Thatcher, Marriage after Modernity, 271. 246 Thatcher, Marriage after Modernity, 271. 247 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §142.

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marriages, indissolubility “designates their invulnerability to diverse human agents’ power to dissolve-their diverse and stratified invulnerability.”248 Indissolubility is a necessary doctrine for marriage; without it, the sacramentality of marriage seems to fall apart since it no longer symbolizes Christ’s bond with the Church. Marital indissolubility is tied to baptism because it is “by baptism the natural bond is elevated to a supernatural sign.”249 According to the current theological doctrine and canonical practice “every valid marriage contract between baptized persons is ‘by itself’ sacrament, even in the absence of faith of the contracting parties.”250 The very fact of a person being baptized opens up the way for their marriage to be graced in a way that only persons who have this sacrament can experience.

In 1977, the ITC published “Propositions on the Doctrine of Christian Marriage,” which, according to the ITC’s latest document, affirmed that Christ is the source of grace in the sacrament of marriage, not the faith of the individuals.251 This would make sense in light of the tradition of theology on marriage which upholds that a union remains valid even after a couple has separated, barring an annulment. When a couple is validly married, their bond takes on a supernatural reality that is grounded in Christ. Yet while the faith of the individuals may not affect the validity of marriage, it has tremendous power over the fruitfulness of the relationship.252 The ITC goes on to say that

“jurisprudence has held that lack of faith may affect the intention to enter into a natural

248 Theodore Mackin, “The International Theological Commission and Indissolubility,” in Divorce and Remarriage: Religious and Psychological Perspectives, ed. William P. Roberts (Kansas City, MO: Sheed & , 1990), 35. 249 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §143. 250 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §143. 251 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §148. ITC, Propositions on the Doctrine of Christian Marriage, 1977. 252 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §148.

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marriage.”253 In this way, faith may affect the marriage at the beginning when the intention to form a natural marriage is necessary for a valid marriage. Pope Francis has said that possible defects in consent can invalidate marital consent.254 The faith of the couple is an important quality in a Christian marriage, and although it is essentially assumed when the couple is baptized, there is still the chance that this could negatively affect validity. Pope Benedict XVI has also elaborated on this topic and taught that the indissolubility of marriage requires the “intention to do what the Church does” and that the “indissoluble pact” does not require the “personal faith” of those forming the marriage.255 While this intentionality should not be confused with the individuals’ faith, neither can the two be completely separated.256

With this in mind, a few aspects come into play that can be held in tension, which the ITC sums up nicely.

a) In marriage, there is a transmission of the grace of Christ. This grace is not due to the faith of the ministers …b) There can be no sacrament without faith … [This] would deny the dialogical nature of the sacramental economy…Thus, in order for there to be a sacrament …there must be some active faith …d) Validly received baptism has irrevocably grafted the baptized into the sacramental economy with the impression of ‘character’ (cf. § 65) …e) The most established Catholic doctrine maintains the inseparability between contract and sacrament (cf. § 155) … f) The faith of the spouses is decisive for the fruitfulness of the sacrament (cf. § 68). Validity and, with it, sacramentality depends on whether a true marriage bond has taken place … g) The minimum necessary for a sacrament is the intention to enter into a true natural marriage (cf. § 154). h) In the case of the sacrament of matrimony, faith and intention cannot be identified, but neither can they be completely separated (cf. §§ 149 and 158).257

253 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §156. 254 Pope Francis, “Address to the Officials of the Tribunal of the ,” 23 January 2015: AAS 107 (2015), 182-185 as cited in ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §163. 255 Benedict XVI, “Address to the Tribunal of the Roman Rota,” 26 January 2013, § 1: AAS 105 (2013), 168 as cited in ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §158. 256 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §158. 257 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §166.

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In explaining the kind of “reciprocity between faith and sacraments” especially with regard to marriage, the ITC proposes possible resolutions.258 One possibility looks to the sacramentality which is “linked to the ‘character’ impressed with baptism” and understands this character to be derived from “the irrevocability of Christ’s gift.”259 This character imprint that happens at baptism, orients the recipient of the sacrament towards

Christ and the Church in a way that ontologically changes one’s soul and effectively sanctifies the marriage bond and contributes to its sacramentality. The ITC points to a general cultural context that has a questionable understanding of a proper marriage bond and “there are reasons to doubt that there is a true intention of indissolubility of the bond upon marriage.”260 They seem to be arguing that faith should not be assumed without question even if the couple is baptized in order to give the marriage the best possible chance for survival and fruitfulness.

Now the question arises, how can the Church reconcile the teaching of the indissolubility of marriage with the understanding that the sacrament of marriage does not imprint an indelible mark? The theology of indelibility will be looked at more in depth in the next chapter, but for now the language of sacramentality and indissolubility is helpful to set it up. In light of the reality of annulments and the tribunal processes, it seems that either the Church’s teaching on marriage does not adequately reflect the reality of the sacrament/institution of marriage or the Church's teaching on marriage is insufficient to meet the marital needs and challenges of today. There appears to be a linguistic, even theological disconnect between what we teach about marriage not

258 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §166. 259 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §167. 260 ITC, “The Reciprocity Between Faith and Sacraments in the Sacramental Economy,” §178.

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marking an indelible character and also being indissoluble. One potential way to resolve this is to find inspiration from the Orthodox who teach that marriage is indelible (because they hold that lasts for eternity, even after death) and they also allow remarriage under specific circumstances. As mentioned earlier in the chapter, this Orthodox practice allows for remarriage if the marriage is discerned to be spiritually dead, though the next marriage will not be considered a sacrament because the first marriage is believed to be indissoluble.

Another complication arises from Canon 1708-1712, where the Code discusses the process by which the sacrament of holy orders may be removed. This raises another question: since holy orders is considered a character imprinting sacrament, and yet can be removed (like the annulment of a marriage), why does marriage not also imprint an indelible sacramental character? Why is it necessary that the indelible mark of holy orders remain after death or even after a priest is removed from the clerical state?

Moreover, since the couple is not physically fused together at the marital ceremony, and nothing ontologically changes about their souls, how can we answer the deeper questions of why marriage is indissoluble and yet it is given no indelible character that orients one towards the Church or between the couple themselves in a special way? Is it solely based on the couple’s baptism as explained above, which already ontologically marks them and orients them towards the Church in a unique way allowing them to experience the fullness of marriage? Or is this an insufficient foundation given the possibility that a lack of faith may result in an invalid marriage? With this in mind we will move to Amoris

Laetitia where Pope Francis may offer an irenic theology that uniquely addresses these questions and balances the language used in the doctrine of marriage and its pastoral

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mission.

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CHAPTER 4

MARRIAGE INDISSOLUBILITY IN THE PAPACY OF FRANCIS: MERCY AND

ACCOMPANIMENT

Early in his apostolic exhortation, Amoris Laetitia (The Joy of Love), Pope

Francis lays out his plan to synthesize the Synods on the family and to contribute his own reflections on marriage to aid families in meeting their commitments and addressing their challenges. Like the motu proprio, this exhortation must also be seen in the context of the

Extraordinary Jubilee Year of Mercy, which extended through the compilation of this text. This is necessary because mercy is a keynote of Francis’ teaching on marriage in

Amoris Laetitia. In this document, he aims to preserve the value of the gift of marriage while also encouraging everyone to hold a “merciful recognition of human finitude.”261 It seeks to give hope in the face of pastoral frustration that can arise if we fail to move beyond a ‘black and white’ understanding of the law and the people it applies to. When discussing the reception of Amoris Laetitia, Fr. Louis Cameli makes an important distinction about this document being one of “formation” because it is rooted in the

Second Vatican Council and its “concern for the human experience and for the journey of the pilgrim people of God.”262 This document uses this conciliar lens and “situates marriage and family life as a central focus for conversation and transformation in the

261 Julie Hanlon Rubio, “The Newness of Amoris Laetitia: Mercy and Truth, Truth and Mercy,” in Amoris Laetitia: A New Momentum for Moral Formation and Pastoral Practice, ed. James F. Keenan and Grant Gallicho (New York/Mahwah, NJ: Paulist Press, 2018), 63. 262 Louis J. Cameli, “How Is Amoris Laetitia Being Received?,” in Amoris Laetitia: A New Momentum for Moral Formation and Pastoral Practice, ed. James F. Keenan and Grant Gallicho (New York/Mahwah, NJ: Paulist Press, 2018), 23.

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Christian life.”263 This is significant because Amoris Laetitia makes the transition from human experience to spiritual transformation by fostering growth for families and

“ultimately leading them to the perfection or full actuation of their love.”264 This document advocates for the value of accompaniment, challenges the Church to provide better pastoral care, and promises a new path forward focused on radical inclusivity and uniting the Church in a spirit of communion.

For the purposes of our study, the only parts of this exhortation that will be discussed are those that are the most relevant to the topic of marital indissolubility.

Chapters 1-4 will be briefly analyzed to help set the groundwork and present Francis’ overall vision for marriage and familial care. Beginning in chapter 1, “In the Light of the

Word,” Francis brings up the theme of tenderness that runs parallel with his themes of mercy and accompaniment. In chapter 2, “The Experiences and Challenges of Families,”

Francis considers the current reality we are facing of extreme individualism that tarnishes our society by weakening family bonds (#33). This is a cultural issue that must be addressed not simply with condemnation, but with “a more responsible and generous effort to present the reasons and motivations for choosing marriage and the family” (#35).

The burden is on us to offer the ideal of marriage as a valuable reality for people today, and by doing so, we can “help men and women better respond to the grace that God offers them” (#35). Next, Francis calls out our failures as a Church and the need for a

“healthy dose of self-criticism” (#36). He recognizes that an over-emphasis on the duty of procreation and a lack of solid guidance in marriage preparation may have contributed to

“today’s problematic situation” regarding marriage and familial breakdown (#36). In

263 Cameli, “How Is Amoris Laetitia Being Received?,” 23. 264 Cameli, “How Is Amoris Laetitia Being Received?,” 24.

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response to this, we need to be humble and realistic in order to “inspire a positive and welcoming pastoral approach capable of helping couples to grow in the appreciation of the demands of the Gospel” (#38). Finally, he notes that the Synod taught us that families are made of different realities (#57). He does not shy away from recognizing that some of these situations are problematic and should be addressed accordingly with an eye towards charity.

Chapter 3 discusses the topic of “Looking to Jesus: The Vocation of the Family,” and mentions key terms in this study such as indissolubility. Francis names his message as being centered on love and tenderness for “all of the world’s families” (#59). Next, he moves to the topic of the indissolubility of marriage and proclaims it as a gift given by

God (#62). On a related note, he lists the goods of the spouses, which are unity, openness to life, and indissolubility (#77).

In chapter 4, on “Love in Marriage,” Francis reflects on marriage as a precious sign and likens this sacrament to a “mirrored” reality of God existing in the couple

(#121). This is possible by way of God “[impressing] in them his own features and the indelible character of his love” (#121). He qualifies this bold statement with the reality that there is no need to burden the couple with “having to reproduce perfectly the union existing between Christ and his Church, for marriage as a sign entails ‘a dynamic process…, one which advances gradually with the progressive integration of the gifts of

God.’”265 The language used by Francis of an ‘indelible character’ must be investigated as this phrase is extremely meaningful for marital indissolubility. The word indelible is

265 Pope Francis, The Joy of Love: Amoris Laetitia (Washington, DC: United States Conference of Catholic Bishops Communications, 2016), #122. Francis here quotes John Paul II, Apostolic Exhortation Familiaris Consortio (November 22, 1981) no. 9: AAS 75 (1982), 90.

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laden with meaning in church teaching and applying it to marriage is unique in theology and has the potential to maintain indissolubility in a way that is well-aligned with pastoral and canonical practice. To understand why this is profound we look to St. Thomas

Aquinas and the Catechism of the Catholic Church. In the Summa Theologiae III.63.1,

Aquinas teaches that the sacraments of Baptism, Confirmation, and Holy Orders imprint

God’s character and place an indelible seal on the souls of the recipients. As a result of this unremovable seal that ontologically changes the person, these three sacraments cannot be repeated. Since marriage can be repeated, it is left out as one of these sacraments that leaves a permanent ‘mark’ upon the souls of the persons. Other words are used in discussions of sacramental character, and Pope Francis may be using the word

“character” in a non-technical way. His use of the Latin word notam instead of character could also indicate that he intended to distinguish between these words and could have also been aware of Aquinas’ use of character to describe the indelible marking sacraments. This could provide an example of Francis upholding traditional doctrine and applying it in a progressive way.

Here I raise a point of discussion that explores the reality of the ‘character’ and its permanence in the sacrament of marriage. In the Catechism of the Catholic Church, the

Catholic Church has also listed the sacraments of Baptism, Confirmation, and Holy

Orders to be the only sacraments that imprint God’s indelible character/seal (CCC, 1121).

As a result of this indelible character, the person receiving the sacrament is forever changed and the particular sacrament can never be repeated. In the Catechism, it is not explicitly stated that marriage cannot be repeated, therefore remarriage in the Church should be possible. This is why we grant annulments, dissolutions of marriages (in the

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form of Pauline and Petrine privileges) and tolerate . Cardinal Gerhard

Ludwig Müller notes that “for Christians, the marriage between two baptized persons incorporated into the has sacramental character and therefore represents a supernatural reality.”266 But if probed further, the question arises: If God impresses his own features and God’s indelible character of love upon the couple, how is this different from the imprinted seal of the sacraments of Baptism, Confirmation, and Holy Orders?

According to the tradition of the Catholic Church, because marriage is not one of these sacraments which imprint an indelible mark, it can be repeated in the case of the death of a spouse. Similarly, the case of a declaration of nullity that finds a was invalid and therefore not a sacrament, which also speaks to why marriage is not indelible. Some scholars will stop here with this line of thinking but I must admit that

I found this Church teaching to be a major textual irritant and I was unsatisfied with the proposed answer that because marriage can be repeated in the case of the death of a spouse or the related but distinct case of an annulment, it is therefore not indelible. This

‘answer’ does not explain why or how exactly the church reconciles this with indissolubility, for example. Furthermore, since indelibility is marked by an ontological change, doctrinally speaking, nothing ontologically changes about the souls of the couple in the sacrament of marriage, which also appears conflicting given our canonical practice of prohibiting divorce and civil remarriage. Unfortunately, there has not been much research done on this question so we are left to ponder potential ways to understand this teaching.

266 Müller, “Testimony to the Power of Grace,” 333.

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Matthew Levering’s detailed study of the indissolubility of marriage in the context of Amoris Laetitia takes a representative look at the history that is helpful in this discussion. His historical timeline spans from the Council of Trent (1545-1563) through

Pope Benedict XVI (r. 2005-2013). At the Council of Trent, the canons taught a combination of the principle of the indissolubility of marriage along with “affirming the possibility of annulment due to impediments at the time of the contracting of the marriage.”267 These teachings on divorce and remarriage represent a “watershed” moment for the Catholic Church.268 Here in the history of the doctrine on indissolubility, the question is raised concerning whether it is marriage itself that is indissoluble or the marriage bond. For Himes and Coriden, there is a major distinction between these teachings that have different emphases. The distinction is explained beginning directly after the Council of Trent when “the term ‘indissoluble’ was almost always linked to the

‘bond.’”269 At Vatican II, there occurred a shift in language, and Gaudium et spes moved away from “contractual terms” to “covenantal” language.270 In this document, indissolubility was affirmed, “but it based it on the marital covenant.”271 As Levering states of Himes and Coriden’s position, if it is solely marriage “that is indissoluble, then, as a covenant of love, marriage’s indissolubility is based upon the subjective commitment and love of the couple; and if these elements fade away, the indissolubility dissolves.”272

267 Levering, The Indissolubility of Marriage, 68. 268 Levering, The Indissolubility of Marriage, 73. 269 Himes and Coriden, “The Indissolubility of Marriage,” 458. 270 Himes and Coriden, “The Indissolubility of Marriage,” 458. 271 Himes and Coriden, “The Indissolubility of Marriage,” 459. 272 Levering, The Indissolubility of Marriage, 83-84. Reference is made to Himes and Coriden, “The Indissolubility of Marriage,” 457-462.

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Levering points out the Church’s response that “the man has been ‘joined to his wife’ and the two have ‘become one’ sacramentally and objectively.”273 Himes and

Coriden on the other hand argue that “if the marriage relationship has ended the bond has ended; there is no sacrament for there no longer exists a human reality as the ‘element’ of the sacrament.”274 Because of their emphasis on the reality that human relationships are an inseparable aspect from the bond of marriage, they seem to come down hard on one side of the argument that as Levering mentions, could fall victim to the idea that “valid and consummated marriage can simply be ‘ended’ when a couple falls out of love and divorces.”275 Levering goes on to observe that “a sacramental marriage objectively unites the two into one while they both live.”276 Although rooted in the subjective relationship of the couple, the bond of marriage is also objectively real, a point that Himes and

Coriden dispute, citing Kasper, Orsy and Lawler.277 But how far is the indissolubility of the marriage bond based upon the subjective reality of the spouses love? And perhaps more importantly, given this, we are still left with the question; if the objective bond is not based on an ontological reality (since marriage does not imprint an indelible character), then what is left when the couple’s relationship dissolves, thereby destroying the subjective reality of the bond?

It is here that Francis is able to provide a “shift in perspective and paradigm” by taking a “radical position, that is, one that goes to the root (radix) and takes the challenge

273 Levering, The Indissolubility of Marriage, 87. 274 Himes and Coriden, “The Indissolubility of Marriage,” 486. 275 Levering, The Indissolubility of Marriage, 87. 276 Levering, The Indissolubility of Marriage, 87. 277 Himes and Coriden, “The Indissolubility of Marriage,” 485nn96—8. Himes and Coriden cite Walter Kasper, Theology of Christian Marriage, (New York: Seabury, 1980) 49., , Marriage in Canon Law (Wilmington, Del.: Michael Glazier, 1988), 271., Michael Lawler, “Blessed are Spouses Who Love, For Their Marriages Will be Permanent: A Theology of the Bonds in Marriage,” The Jurist 55 (1995) 221.

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of the gospel seriously.”278 Francis’ language of an ‘indelible character’ that is imprinted on the married couple sheds a new light on the beauty of the doctrine of the indissolubility of marriage that, as far as I am aware, is the most generous in its language of permanence in regards to the God-given imprint. Here, the plot thickens. Cardinal

Müller reasons that as a result of the current mentality that stands largely in contrast with the “Christian understanding of marriage” and is particularly opposed to its

“indissolubility and its openness to children”, because of this, in general, marriages are invalid more often today.279 This is likely a result of an overall lack of desire for Catholic marriages. Because of this, the growing number of annulments makes sense. Thus far, we can simplify the discussion like so; on one side of the discussion is a ‘secularized’ view which holds that the ideal Christian marriage is “no longer the foundation of many families.”280 On the other side is the Church’s view that marriage is indissoluble and yet not ontologically binding nor indelible. Importantly, Church teaching and praxis do not emphasize this language of an indelible sacramental character because the sacrament can be repeated.

Francis can be understood as bringing these positions into dialogue by bringing a renewed awareness to the permanence of sacramental marriages that do in fact imprint a permanent something onto the spouses; whether that be the indelible mark of God or something else, while also allowing for annulments. Francis’ perspective responds to this discussion by maintaining the indissolubility of marriage; and not a watered-down version, but an apparently ‘stricter’ version that affirms the indelible character that is

278 Kasper, The message of Amoris Laetitia, 47, 52-53. 279 Müller, “Testimony to the Power of Grace,” 331. 280 Duncan and Urbaniak, “The ecclesial notion of family vs today,” 170.

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imprinted on the souls of the spouses. He also does this while encouraging renewed theological reflection and pastoral praxis anchored on the “more difficult, steep path of love” that introduces an era of mercy.281 If say, in marriage preparation, couples were educated about indelibility and the fact that the sacrament of marriage creates a ‘mark’ that cannot be removed because it is permanent until death, this could strengthen their commitment to the relationship. Thus, reinforcing the couple’s understanding that they will be forever changed by this in some way, which helps to set them up in the best possible ways and is a consideration relevant to the question of how best to conduct marriage preparation.

Moving on to Chapter 6 of Amoris Laetitia on “Pastoral Perspectives,” Francis briefly mentions his two recent documents that simplify the procedures for declarations of marriage nullity at the behest of many Synod Fathers wanting to make these procedures “more accessible and less time consuming” (#244). These changes were made

“to ensure the faithful an easier access to justice” thereby providing a merciful path back to full inclusion in the church (#244). Here he begins his mission of care for those who are divorced and remarried. When annulments are not possible, or do not “fit” a couple’s situation, Rubio discerns that Amoris Laetitia offers “a second merciful path back: discernment of moral responsibility for the breakdown of their first marriage and readiness to return to the sacraments with the help of a pastor.”282 It is this topic that

Chapter 8 discusses at length and which will now be explored.

Chapter 8 is the most thoroughly discussed chapter of Amoris Laetitia, mostly due

281 Kasper, The message of Amoris Laetitia, 52-53. 282 Rubio, “The Newness of Amoris Laetitia: Mercy and Truth, Truth and Mercy,” in Amoris Laetitia: A New Momentum for Moral Formation and Pastoral Practice, ed. James F. Keenan and Grant Gallicho (New York/Mahwah, NJ: Paulist Press, 2018), 63.

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to the often-controversial footnote 351. This chapter (“Accompanying, Discerning, and

Integrating Weakness”) also proves to be the most fruitful chapter for this discussion on mercy and tenderness. According to Francesco Cardinal Coccopalmerio, Pope Francis emphasizes his “full intention to be faithful to the traditional doctrine of the Church.”283

He explores doing this in a new way that seeks to offer two points of view that are balanced throughout the exhortation; namely, “the firm resolve to remain faithful to the

Church’s teaching on marriage and the family; and the view of the Church, of pastors, and the faithful toward irregular partnerships, particularly and de facto unions” that are appropriately pastoral.284 That is, he explores pastoral care in a way that seeks to accompany people by applying the law to concrete situations “in such a way that is fair and just.”285

The full realization of a Christian marriage is articulated here, and irregular situations are brought into the conversation with the words: “some forms of union radically contradict this ideal, while others realize it in at least a partial and analogous way” (#292). This passage recognizes that there is an ideal form of marriage we look forward to and not all unions live up to this state of holiness or standard of sacramentality and are living in direct or partial contradiction to this ideal. Here, Francis’ perspective is given and shows clear evidence of a validation of indissolubility and endorses “all the elements of the doctrine on marriage in full compliance with and fidelity to the traditional teaching of the Church.”286 Pope Francis makes it clear that the sacramental union

283 , A Commentary on Chapter Eight of Amoris Laetitia (New York/Mahwah, NJ: Paulist Press, 2017), 8. 284 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 7. 285 Kasper, The message of Amoris Laetitia, 16. 286 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 3.

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between a man and a woman should be understood as the “reflection of the union between Christ and his Church” (#292). He also goes on to supplement this teaching with the pastoral discernment that those in irregular unions could also reflect this ideal union in some way, and therefore need unique care that promotes the goodness of Christian marriage.

Coccopalmerio extrapolates from the exhortation three attitudes that are necessary when caring for those in irregular situations: 1) to recognize objectively, the couple’s reason for not choosing canonical marriage, 2) to refrain from immediate condemnation of unions which may contain positive elements, and 3) dialogue to “make the faithful who are in that situation reflect on the possibility, indeed the beauty and the opportunity of realizing the celebration of a marriage in its fullness.”287 Coccopalmerio finds in this chapter of Amoris Laetitia, an affirmation that not all those living in “irregular” situations may necessarily be living in a state of , and if not, can be living in God’s grace.288 Francis can be said to be emphasizing the need for a theology of mercy and accompaniment with his mission centered on how the Church can help those who need the most care.

Three reasons contained within the text are expanded upon, and can be understood as factors mitigating the guilt of a person living in an irregular situation: 1)

“‘a possible ignorance of the rule,’” 2) “‘great difficulty in understanding the inherent values in the moral rule’”, and 3) “‘a concrete situation which does not allow him or her to act differently and decide otherwise without further sin.’”289 The first two reasons are

287 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 11-12. 288 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 15. 289 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 16.

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matters of pastoral care and point to the need to ensure that “the consciences of the faithful are formed by knowledge of the rule.”290 Specific examples for the third reason are given: “(a) ‘second union consolidated over time’; (b) ‘with new children’; (c)

‘proven fidelity, generous self-giving, Christian commitment’; (d) ‘consciousness of its irregularity’; (e) ‘great difficulty of going back without feeling in conscience that one would fall into new sins’; (f) ‘serious reasons, such as the children’s upbringing’; (g)

‘cannot satisfy the obligation to separate.’”291 Coccopalmerio parses out Amoris Laetitia this way to show both the extent of the forgiveness possible when caring for those in irregular situations who meet these criteria, while also holding fast to the doctrine of marital indissolubility.

The third reason is the most problematic, and Coccopalmerio reasons that for these specific cases, “abandoning the irregular situation would harm other people who are themselves innocent, namely the partner and the children.”292 Another way that this balance of positions held in tension is possible is with a careful look at what the text actually means when the ‘consciousness of its irregularity’ is mentioned. A correct way to understand this is that it implicitly presupposes “that the people in question have considered the problem of changing and thus they intend to, or at least desire to, change their situation.”293 This necessary recognition of a state of irregularity or even sin, is unable to be acted upon without causing more harm, and so in these specific and well- discerned cases, a door of love and mercy is opened in light of the tradition of indissolubility revisited in a way that seeks to apply the law in a manner that is just and

290 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 17. 291 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 17. 292 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 19. 293 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 20.

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fair.294

An example of a situation in which this path back to communion is possible is provided by Coccopalmerio to give light to the fact that Pope Francis does not intend to allow communion to anyone without appropriate pastoral care for their sinful situation.

Coccopalmerio proposes the scenario of a woman living with a man who was abandoned by his wife and was left with three young children.295 This woman in question “has saved the man from a state of deep despair, and probably from the temptation to commit suicide,” their union has lasted for ten years and a new child is born.296 She is fully aware of the irregularity of the situation and sincerely desires to change the living situation but cannot for the sake of others, namely her family.297 It is because of her intention to change the sinful situation that absolution is possible. Therefore, the door is opened to the potential reception of the Eucharist, after an appropriate period of discernment. And yet, due to the impossibility of changing her situation without harming others, without failing to “[fulfill] important duties toward persons who are in themselves innocent,” in this case her current family, she cannot yet change her situation “‘without further sin.’”298 In individual cases it may be possible to keep the door open to reception of the Eucharist when this occurs within an ongoing “process of accompaniment and discernment” in

“conversation with the priest, in the internal forum” which both recognizes the

“mitigating factors” of the situation and remains “ever open to new stages of growth and to new decisions which can enable the ideal to be more fully realized” (#300, 301-303).

294 Kasper, The message of Amoris Laetitia, 43. 295 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 20. 296 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 20. 297 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 20. 298 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 20.

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Here again, the theme of accompaniment becomes relevant as the motive pushing forward these attitudes that consider the contrite of heart to be always welcome to start a new beginning.299 At the same time, in such cases, “it must remain clear that this is not the ideal which the Gospel proposes for marriage and the family” and care must be taken to avoid “the notion that any priest can quickly grant ‘exceptions’” (#298, 300).

This specific case helps to better illustrate this effort to encourage pastoral practices that address those living in imperfect unions who also intend to turn away from sin but are kept from doing so without inflicting further suffering and sin; however rare these cases may be. Pope Francis is balancing a sensitivity to modern family realities that require better pastoral care, while also affirming traditional Church teaching that necessitates a turn away from the sinful lifestyle, and in doing so is able to hold these ideas in tension. Coccopalmerio finds that a particular way that Francis accomplishes this is with an important provision he makes of a teaching of Vatican II outlined in Gaudium et Spes. Coccopalmerio asserts that what the Council says in Gaudium et Spes 51 regarding those in valid marriages, that refraining from conjugal relations can sometimes imperil marital faithfulness, is now applied also, by Pope Francis in Amoris Laetitia, "to cases of marriages that are, at least objectively, irregular.”300 This means that in the case of a couple in an irregular situation who finds the commitment to live as and sister difficult, “the two partners seem not to be obligated per se, because they correspond to the case spoken of in #301” which prohibits the couple from changing their situation without causing further sin.301 For Francis, this pastoral approach is about best practices

299 Kasper, The message of Amoris Laetitia, 43. 300 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 22. 301 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 23.

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moving forward in a world plagued with divorce. The way that is explored by Francis emphasizes dialogue with the couple and meets them where they are; in an illegitimate union, and walks with them towards a canonical marriage. Adding to the care taken in this development of church teaching on marriage, one specific situation that this pastoral practice would not apply is to homosexual couples.302

Familiaris Consortio requires the parties in second marriages to live as brother and sister but does not “demand that they break up their household…. [and] could be absolved of their sin of adultery if they refrained from further sexual relations.”303 This dramatically reduces the relationship of a married couple to the conjugal bond.304 This pastoral solution is critiqued with the question posed by Himes and Coriden in this way:

How is it that the first marriage is not contradicted, the first spouse not betrayed, by a relationship in which all marital affection, trust, , financial support, intellectual and spiritual sharing is now directed to a third party? In the conciliar treatment of marriage interpersonal love, mutuality, and intimacy are as much a part of the nature of marriage as sexual intercourse. So why can all the qualities of the marital relationship be exercised in the second relationship, save sexual intercourse, and the first marriage not be contradicted?305

Such a position questions the teaching of Familiaris Consortio which “seems to miss the point of the personalist revision” that occurred at Vatican II306 – and is exactly what Pope

Francis and Amoris Laetitia are addressing. A potential meaning for this teaching of

Familiaris Consortio is that it reveals “the lasting influence of the contractual model in

302 Ines S. Martin, “Coccopalmerio says there’s no doctrinal confusion over ‘Amoris’,” Crux, February 22, 2017. 303 Cathleen Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” in Amoris Laetitia: A New Momentum for Moral Formation and Pastoral Practice, ed. James F. Keenan and Grant Gallicho (New York/Mahwah, NJ: Paulist Press, 2018), 32. 304 Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” 32. 305 Himes and Coriden, “The Indissolubility of Marriage,” 482. 306 Himes and Coriden, “The Indissolubility of Marriage,” 482.

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which it was the right to sexual intercourse that was exchanged in marriage consent.”307

What occurred at Vatican II in terms of the personalist revision involved a move away from the notion of marriage having “primary and secondary ends.”308 This meant that each of the goods of marriage were equally important and sexual intercourse was no longer given priority over and above other essential aspects of marriage. What replaced the contractual model is a covenantal model which, rather than as an “exchange of sexual rights”, marriage is now considered as creating “a partnership in the whole of life.”309

John Paul II can be firmly identified within the post-conciliar camp that wanted to slow the rate of change, so it makes sense that his exhortation fits within this framework. This appears to be stepping back from the covenantal model because “all the other elements of the marital relationship are apparently not ‘proper’ to marriage, that is, nonessential.”310

Another interesting point of Kaveny’s is to discuss the distinction between “the criminal act, which is over in a finite amount of time, and the effects, which may continue indefinitely.”311 Assuming “that a divorced person who has remarried has inflicted some wrong upon their first marriage,” it seems that the harm caused does not “[continue] to pile up indefinitely, year upon year.”312 She states that “the harm is completed with the dissolution of the first marriage” and that “the life of the second marriage, including its sexual relationship, is best seen as a living out of the second wedding ceremony” which

307 Himes and Coriden, “The Indissolubility of Marriage,” 482. 308 Himes and Coriden, “The Indissolubility of Marriage,” 481. Reference is made to Gaudium et spes no. 48. 309 Himes and Coriden, “The Indissolubility of Marriage,” 483. See also Canon 1055; GS 48. 310 Himes and Coriden, “The Indissolubility of Marriage,” 482. 311 Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” 33. 312 Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” 34.

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can be likened to the ‘effects’ of the ‘crime’.313 She concludes this argument with the suggestion that the living out of the second wedding ceremony “is not a continuous pattern of wrongdoing, but rather the ongoing effects of a completed wrongful act.”314

Just as a murderer is allowed to repent for their crime even though the effects are ongoing, “so we should allow a person who contracts a second civil marriage to repent…despite the fact that the effects … may be ongoing.”315 Kaveny rightly states that

“we do not need to disturb Jesus’s central teaching in order to refine and develop its application in ways that believers have done from the earliest days.”316 Just so, we do not need to treat remarriage as a sin indefinitely especially in the case of true repentance for any wrongdoing.

This idea, then, of distinguishing between the completed wrongful act and its effects could be helpful for moving towards a solution to the pastoral problems of today.

Yet there are limits to the application of this principle, namely that the conjugal acts and other acts proper to a marriage are in fact acts or fruits of marriage. It would also seem incorrect to diminish a marriage to the wedding ceremony itself and to say that the marriage is ‘completed’ at that point. A potential solution to these critiques is the reminder that the Church and her faithful can understand the eschaton to be ‘already and not yet’. Doctrinally, consummation ‘completes’ a marriage but that is not its final or fulfilled state. Marriage, as a symbol of Christ’s bond with the Church is both already a

313 Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” 35. 314 Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” 36. 315 Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” 36. 316 Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” 37.

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sacrament and not yet fulfilled. Insofar as a marriage is complete after the wedding ceremony, the conjugal life that follows is an effect of the ceremony. But also, insofar as we are a pilgrim people on a journey towards fulfilment in the eschaton, each act proper to married life, including the sexual act, is a gift and event with the potential to draw us closer to marital fullness. We are then left with this principle opening the way for a merciful allowance of one who is divorced and remarried to be absolved of their sin and return to communion.317

Adding to this conversation, Coccopalmerio points to footnote 351 which cites

Evangelii Gaudium and its reminder “that the Eucharist ‘is not a prize for the perfect, but a powerful medicine and nourishment for the weak.’”318 He continues to say that the

Church “could allow access to Penance and the Eucharist, for the faithful who find themselves in an irregular union, which, however, requires two essential conditions: they desire to change the situation, but cannot act on their desire.”319 Given the context of

Evangelii Gaudium it becomes clearer what Pope Francis is up to in terms of opening the doors of mercy for those in irregular unions. According to Granados, Kampowski, and

Pérez-Soba, his emphasis on the importance of accompaniment can be likened to “the early Church, which had to accompany catechumens for extended periods of time…, these converts had to make the transition from a pagan life, quite far from the Gospel, to a baptismal covenant with Christ.”320 Francis recognizes that our “ordinary pastoral ministry” is no longer capable of responding to the challenges afflicting our society.321

317 Kaveny, “How Is Amoris Laetitia Being Received? Mercy and Amoris Laetitia: Insights from Secular Law,” 36. 318 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 25. 319 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 25. 320 Granados, Kampowski, Pérez-Soba, Accompanying, Discerning, Integrating, 5. 321 Granados, Kampowski, Pérez-Soba, Accompanying, Discerning, Integrating, 5.

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For example, according to Granados, Kampowski and Pérez-Soba, some people experience to be “‘foreign’ to their lives and therefore meaningless.”322 We can no longer wait “for persons to come and ask for something that they do not feel they need.”323

Amoris Laetitia also touches on the history of the Church: “There are two ways of thinking which recur throughout the Church’s history: casting off and reinstating. The

Church’s way… has always been the way of Jesus, the way of mercy and reinstatement…. The way of the Church is not to condemn anyone for ever” (#296). In regards to the baptized who are divorced and civilly remarried, Pope Francis calls for their fuller integration into Christian communities and believes that “such persons need to feel not as excommunicated members of the Church, but as living members” whose active participation must be nurtured (#299). Kasper points out that Francis “moves along the same lines as both of his predecessors” Pope John Paul II and Pope Benedict XVI.324

An example of this can be found in Familiaris Consortio where John Paul II expresses a similar call for the care of remarried divorced persons.325 Importantly, while all three popes maintain a general care for the divorced and civilly remarried, Francis utilizes a different methodology that; alternatively from his predecessors, does not end the conversation of communion for those in irregular unions.

Towards the end of chapter 8, Pope Francis quotes St. Augustine who likens the performance of a work of mercy in the face of sin to the extinguishing power of a fountain of water in the threat of a fire (#306). Pope Francis “puts the person first and

322 Granados, Kampowski, Pérez-Soba, Accompanying, Discerning, Integrating, 5. 323 Granados, Kampowski, Pérez-Soba, Accompanying, Discerning, Integrating, 5. 324 Kasper, The message of Amoris Laetitia, ix. 325 John Paul II, Familiaris Consortio, #84.

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thus evaluates reality…. From here we derive a principle which is a fundamental element in his life: his opposition to all ways in which people are marginalized.”326 This orientation is much like the Spanish language, which is itself organized to be person-first

– e.g. a homeless person in Spanish translates to ‘a person without a home’. The hermeneutic of the person upheld by Pope Francis is one that is effectively “translated into feelings of compassion and tenderness.”327 At the same time, for Francis, “mercy does not exclude justice and truth” (#311), and so, even more important than the pastoral care for failed unions is the “effort to strengthen marriages and thus to prevent their breakdown” (#307).

Walter Cardinal Kasper identifies Pope Francis as a conservative who “knows that one can only preserve the heritage of tradition if one does not regard it like a dead coin” rather the preservation of tradition requires that it be made “present in the power of the Holy Spirit” and is realized ever anew by the Spirit.328 Kasper notes that the Second

Vatican Council understood tradition as a living tradition in which “there is progress and growth in the understanding of the apostolic faith.”329 From this interpretation, it can be seen how Pope Francis provides a new way forward that honors the richness of tradition while also authentically moving the Church towards a greater incorporation of mercy and care. Kasper recognizes that Pope Francis has been characterized as a revolutionary but qualifies it as the fervent revolution of love and tenderness.330

Kasper reminds us of Pope Francis’ call to read the beatitudes and yet is also

326 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 53. 327 Coccopalmerio, A Commentary on Chapter Eight of Amoris Laetitia, 55. 328 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 13. 329 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 13. 330 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 12-13.

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aware that “despite this unambiguous grounding in scripture and tradition, many a person finds the pope’s talk of mercy suspect”331 He goes on to call out this confusion of mercy with “superficial laissez-faire pseudomercy” that is further understood by some to be a

“weaker, pastoral permissiveness” that “undermines the and commandments and abrogates the central and fundamental meaning of truth.”332 In a convincing rhetorical move, Kasper compares it to the accusation that the Pharisees made against Jesus whose mercy so enraged them that they killed him. From this, Kasper beautifully articulates how mercy is not mutually exclusive from the truth and that it is theologically nonsensical to understand mercy as a dangerous replacement of doctrine. Rather, mercy is the greatest of all the virtues that can actualize the truth in the right way, according to the gospel.333

As the Church herself is never static, so too does Francis hope to keep the work of the

Church relevant to the world and the people she seeks to help.

One way to understand this attribute of Pope Francis is as a paradigm shift that

“does not change the previously valid content of what has been taught, but certainly changes the perspective and the horizon in which it is seen and understood.”334 This makes sense in light of Pope Francis’ hermeneutic of the person outlined by

Coccopalmerio. It seems that Francis took to heart “when Jesus says, ‘Be merciful, just as your Father is merciful’ (Luke 6:36)” and has understood this to have “far-reaching consequences for the shaping of Christian life through corporal and spiritual .”335 However, when discussing the indissoluble marriage bond, Pérez-Soba and

331 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 34. 332 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 34. 333 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 34-35. 334 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 35. 335 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 36.

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Kampowski make it clear that “divine mercy must be understood as something very different from the mere tolerance of an evil, and never as an implicit acceptance of sin.”336 Quoting Jesus from the gospel of Mark who denounces divorce and remarriage as adultery, they claim that “there is no room for mercy in persistent , even if the person has repented of having caused it” nor is it possible to accept someone mercifully

“who does not return to the marital covenant sealed by God, much less someone who is living in a way that contradicts it.”337 They rightly remark that “pardon can be granted only in the case of true repentance that alters the sinful situation” through the separation of the couple or their acceptance of complete continence.338

Archbishop Victor Manuel Fernandez offers a response, stating that “Francis has never affirmed that it is possible to receive communion if one is not in a state of grace.”339 In contrast, Cardinal Müller has remarked that as a reason “for the admission of remarried divorcees to the sacraments” mercy “misses the mark when adopted as an argument in the field of sacramental theology”340 While this discussion is not directly about Amoris Laetitia since it was written a few years prior, it remains a valid point of contention. He concludes his article with the point that “God’s mercy does not dispense us from following his commandments or the rules of the Church.”341 It seems that for

Müller, mercy is quite distinct from justice and truth, although it is an important characteristic of God. This distinction is based on the understanding that “the entire

336 Juan-José Pérez-Soba and Stephan Kampowski, The Gospel of the Family: Going beyond Cardinal Kasper’s Proposal in the Debate on Marriage, Civil Re-Marriage, and Communion in the Church, trans. Michael Miller (San Francisco: Ignatius Press, 2014), 81. 337 Pérez-Soba and Kampowski, The Gospel of the Family, 87. 338 Pérez-Soba and Kampowski, The Gospel of the Family, 88. 339 Victor Manuel Fernandez, Chapitre VIII de Amoris Laetitia: Le bilan après la tourmente, trans. Hortense de Parscau (Paris: Parole et Silence, 2018), 33. Levering, The Indissolubility of Marriage, 172. 340 Müller, “Testimony to the Power of Grace,” 335. 341 Müller, “Testimony to the Power of Grace,” 336.

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sacramental economy is a work of divine mercy, and it cannot simply be swept aside by an appeal to the same.”342

Matthew Levering, who is a much-published conservative theologian, supports the claim that Amoris Laetitia affirms indissolubility of valid and consummated Christian marriage.343 He is careful to qualify this with the input from theologians with different outlooks on the document at hand, namely that it is often said this exhortation does not change doctrine, but rather only calls for better pastoral care.344 According to Knieps-Port le Roi, while Amoris Laetitia does not abolish doctrine, this exhortation will have an important “impact on and ultimately modify the Catholic understanding of that doctrine.”345 But, other theologians argue that Amoris Laetitia will pave the way for the

“future Church to teach that marital indissolubility is not a concrete norm but rather is a

‘call’ of Christ that must then be ‘inculturated’ in the diversity of historical, cultural, and individual situations.”346 Levering is against this thought, and puts forth his own understanding that Amoris Laetitia “[shows] why it is that marital indissolubility and its obligations are good even in the fallen world and even for believers who are called to make great sacrifices, in which the whole Church must share.”347 Levering thus holds both that the doctrine of indissolubility is sufficient to care for all of the individual

342 Müller, “Testimony to the Power of Grace,” 335-336. 343 Levering, The Indissolubility of Marriage, 118. 344 Levering, The Indissolubility of Marriage, 118. 345 Levering, The Indissolubility of Marriage, 119. Levering claims that the direction of change that Knieps-Port le Roi has in mind as prompted by Amoris Laetitia “makes every Catholic marriage contingently dissoluble depending upon the spouses’ acts and feelings over time.” Without a direct citation, it is difficult to confirm this interpretation; however, based on the introduction and chapter that Knieps-Port le Roi contributes to his edited work, this summary seems exaggerated. He does advocate for the understanding of marriage and indissolubility not as a burden but as a “dynamic path to personal development and fulfillment.” But this is many steps behind full advocacy for a purely subjective marriage like the idea proposed by Himes and Coriden earlier in the chapter. Thomas Knieps-Port le Roi, ed. A Point of No Return? Amoris Laetitia on Marriage, Divorce, and Remarriage. Berlin: LIT Verlag, 2017. 5. 346 Levering, The Indissolubility of Marriage, 120. 347 Levering, The Indissolubility of Marriage, 124 (emphasis in original).

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extreme cases of marital failure, and that Francis upholds this in Amoris Laetitia.

A more appropriate definition of mercy and one that Pope Francis supports can be put thusly: “Mercy requires, after a period of reflection and contrition, that an opportunity for a new beginning is kept open for everyone.”348 The challenge Pope Francis set out to do was to ignite a revolution of love that is true to the tradition of church teachings and also provides fruitful shifts in emphasis for the life of the Church.349 Farley notes that

Francis does not want to eliminate the requirement of permanence in Christian marriage, rather what is hoped for is to interpret these requirements adequately to address the current human and Christian experience in order to be less likely to place heavy burdens on people.350 Christ’s teachings on divorce and remarriage are challenging, and a significant motivator for Pope Francis and Amoris Laetitia was reconciling these teachings with pastoral problems. Theologians such as Kasper and Levering, who tend to occupy different ideologies, think that Pope Francis addresses these problems fairly and does it while staying true to doctrine. It remains important to remember that Pope Francis seeks to bring to light the understanding that a little bit of mercy can change the world. A final word on the matter to illustrate what may be at stake is the dynamic between the letter of law versus the spirit of the law. Francis is providing a momentum that upholds the law, and does so in light of the broader spirit of the law. Francis’s theological and pastoral themes of mercy and accompaniment lead him to flesh out and describe the doctrine of the indissolubility of marriage in a way that has never been done before. What

348 Kasper, The message of Amoris Laetitia, 43. 349 Kasper and Madges, Pope Francis’ Revolution of Tenderness and Love, 92. 350 Margaret A. Farley, “Divorce, Remarriage, and Pastoral Practice,” in Moral Theology: Challenges for the Future; Essays in Honor of Richard A. McCormick, S.J., ed. Charles E. Curran (New York: Paulist Press, 1990), 214. Cited in Levering, The Indissolubility of Marriage, 158.

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is at stake is the ability of our Church both to “witness more effectively to the sacredness and permanence of marriage and to enhance its pastoral care of families.”351

351 Himes and Coriden, “The Indissolubility of Marriage,” 457.

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CONCLUSION

Coccopalmerio concludes an interview in a charmingly concise way and sums up the discussion thusly: “I have to go now. More than this, I can’t tell you. Don’t be anxious. Marriage is indissoluble. These people are in irregular situations. They want to change, but they can’t.”352 My purpose for critically evaluating the teaching of the indissoluble marriage bond is not to render it pointless but to strengthen the doctrine’s language and application to the laity. I have sought to be inclusive of a variety of perspectives here and show that common ground is possible and should be sought. The movement of the Spirit is hindered when we are paralyzed by polarization, so we must move beyond any tendency towards polarization that could divide the Church. Pope

Francis is bringing the Church to the edge of her comfort zone. He recognizes the “real and serious problems and challenges facing families today, but at the same time …

[proclaims] hope through the mercy and grace of God”353 and seeks to apply traditional

Catholic doctrine in a renewed way that bridges the gap between these two realities. This may be a large undertaking to ask of the Church, so, for now, consider reflecting on the effects that doctrinal language has on pastoral praxis. I hope this study has at least provided a reason to pause on this topic and encourage a general attitude that is oriented towards accompaniment with humanity rather than condemnation. If we change our habits then we change our lives.

352 Edward Pentin, “Cardinal Coccopalmerio Explains His Positions on Catholics in Irregular Unions,” National Catholic Register (March 1, 2017), https://www.ncregister.com/daily-news/cardinal- coccopalmerio-explains-his-positions-on-catholics-in-irregular-uni. 353 Wilton D. Gregory, “Amoris Laetitia: A New Momentum for Moral Formation and Pastoral Practice,” in Amoris Laetitia: A New Momentum for Moral Formation and Pastoral Practice, ed. James F. Keenan and Grant Gallicho (New York / Mahwah, NJ: Paulist Press, 2018), 154-5.

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On the matter of the indelible mark that some sacraments impart (baptism, confirmation, and holy orders) another piece of the conversation is that this ‘mark’ changes the soul because the recipient’s relationship with God is now ontologically different. Because God’s relationship with a single person is not ontologically different from a married person, it does not make sense to say that marriage imprints an indelible mark in the same fashion as the aforementioned sacraments. But indissolubility is also about the bond between the couple themselves and this doctrine lends itself to conversations about the spouses’ souls being ontologically changed because their relationship takes on a new character with the sacrament. It seems reasonable for the

Church to agree that the relationship between or engaged persons is fundamentally different from the relationship of a married couple.

This thesis has aimed to support the questions and conversations that Pope Francis is fostering. In an attempt to be a centrist, I have not arrived at one hard-lined answer for the questions proposed. However, I hope I have shown how these new and nuanced ways that Francis addresses marriage are valid and done in continuity with tradition. The questions brought up in this thesis are still in development and, like Pope Francis, I hope to foster further discussion on this topic for the sake of sharing the Gospel message that is truly radical.

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