“Some Pharisees came, and to test Him they asked, ‘Is it lawful for a man to divorce his wife?’
“He answered them, ‘What did Moses command you?’ They said, ‘Moses allowed a man to write a certificate of dismissal and to divorce her.’
“But Jesus said to them, ‘Because of your hardness of heart he wrote this commandment for you.’
“But from the beginning of creation, God made them male and female. For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh. So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.
“Then in the house, the disciples asked Him again about this matter. He said to them, ‘Whoever divorces his wife and marries another commits adultery against her; and if she divorces her husband and marries another, she commits adultery.’ ”
The Church has ever since proclaimed that sacramental marriage is indissoluble, and the Catholic Church has a long tradition of excluding from the Eucharist those who have legally divorced and then remarried without first receiving a Church tribunal judgment that their first marriage never was, in fact, a sacramental marriage.
Divorced and remarried Catholics can come to church. They can pray. They can enter a spiritual communion through adoration at the tabernacle and joining their prayer to the prayers of all those who do take communion. But unless they agree to live as brother and sister, confess their second marriage as a sin and undertake the prescribed penance, they can’t approach the altar and take Communion.
There are millions of people in this situation. Many leave the Church. Others simply change parishes, knowing nobody will ask them whether or not they obtained a canonically valid annulment of their first marriage.
This is not a problem that can be solved by tweaking canon law.
“Canon law follows theology,” said Archbishop Paul-André Durocher, president of the Canadian Conference of Catholic Bishops. “So if there is a rewriting of canon law it does not come first. It’s not first of all a canonical issue.”
But wheels are in motion to review existing canonical procedures around annulments and other issues of marriage. The Vatican has established a special commission to study reform of matrimonial processes.
The Gospel teaching about the permanence of marriage is divine law, and canon law won’t change that, said Canadian Jesuit Father Michael Rosinski, who is studying for his doctorate in canon law at the Gregorian University in Rome.
“But how the Church legislates for marriage is almost completely open to discussion. Nothing about the marriage annulment process itself classifies as divine teaching,” said Rosinski.
While it may be up for discussion, few canonists expect dramatic change.
“What people forget about canon law is that it exists to essentially reflect and protect the faith and theology of the Church,” said working canonist Delia Waldock of the Archdiocese of Edmonton. “I do not see any significant change on the horizon. As long as the Church teaches the indissolubility of marriage, her laws will uphold it — as should pastoral practice.”
But, at the urging of Pope Francis, theologian Cardinal Walter Kasper has suggested ways the Church could uphold its teaching on marriage and welcome remarried Catholics back to the Eucharist.
“If the Church is a sacrament of God’s love in Christ, it is also a sacrament of God’s mercy,” Kasper has written. “The command for the Church to be merciful is grounded in the identity of the Church as the body of Christ… a Church without charity and mercy would no longer be the Church of Jesus Christ.”
Kasper reaches back to Church fathers, especially Basil of Caesarea and the patron saint of moral theologians St. Alphonsus Liguori, to find both scriptural and traditional precepts for a pastoral practice that would allow some divorced and remarried Catholics back in. They would need to express a sincere desire for the Eucharist, acknowledge their sins and failings in their first marriages and demonstrate through their current marriages a sincere desire to strive toward the Christian ideal of marriage.
It’s not just a matter of couples deciding it on their own. There has to be a real and public process, writes Kasper.
“Canon law is not against the Gospel, but the Gospel is against a legalistic understanding of canon law,” said Kasper. “No theologian, not even the Pope, can change the doctrine of the indissolubility of a sacramental marriage… But doctrine must be applied with prudence in a just and equitable way to concrete and often complex situations.”
There’s no shortage of senior cardinals and theologians who think Kasper is far too willing to compromise the truth of Christian doctrine with the popular appearance of mercy. Five conservative cardinals have countered Kasper’s short book on the subject with a book of their own, Remaining in the Truth of Christ: Marriage and Communion in the Catholic Church, which should arrive on book shelves just as the extraordinary synod begins, Oct. 5.
Canadian Cardinal Marc Ouellet isn’t one of the five, but he has published his own essay on the subject warning against a dramatic shift.
In Ouellet’s view, the problem is not in the Church’s teaching or practice, but rather in the attitudes of the surrounding culture. He calls it “an unprecedented anthropological crisis.”
Marriage isn’t just a social convention that keeps sexuality in check and ensures the rearing of children. It is the sacrament which confirms and participates in the Church’s relationship to Christ. Marriage makes Christ real in the lives of families and communities — it is the real presence of Christ in the world.
“This is the core of the Gospel of the family, its power and its beauty, which has its source in Baptism and unfolds in the natural and supernatural properties of conjugal love: unity, fidelity, fruitfulness and indissolubility.”
The Church has the power to forgive, imparted to Peter and the Apostles by Christ Himself. But it can’t forgive a sin which is ongoing. It can forgive the past, not the future.
“I do not see how, in the case of persons authentically married and then divorced and remarried, a path of penitence would make possible access to absolution and sacramental Communion,” Ouellet writes.
“It seems to me of capital importance that exceptional cases involve only the sphere of a conviction of nullity… To act otherwise would mean to profess the indissolubility of marriage in word and to deny it in practice.”
Durocher would not disagree with the cardinal, but he’s anxious to hear what solutions might come forward.
“What (Pope) Francis is calling a moment of mercy in the Church asks us to revisit our whole attitude,” said the archbishop of Gatineau. “(It’s) our whole pastoral approach in light not just of the clear teaching of Jesus but the signs of the mercy of Jesus with the people He met along the way. How you articulate that, I think, is one of the big issues we will discuss not just in the Synod but over the year and in years to come.”