Hard Cases Make Bad Law: A Response to Austen Ivereigh on Amoris Laetitia

The following guest editorial was submitted by a reader who works in the office of Marriage and Family Life of a US diocese. With retributive action already having been taken against several of the signatories of the theological censures against Amoris Laetitia, we have agreed to publish this essay anonymously.

I would like to begin by thanking Austen Ivereigh, who in his December 30, 2016 column at Crux (Critics of ‘Amoris’ need to look at concrete cases) got – though perhaps unintentionally — to the core of this debate. The concrete examples he put forward are indeed those extremely difficult, exceptionally rare cases that trouble the consciences of everyone taking part in this discussion. Many people know someone who has been abandoned unjustly by a spouse through no real fault of their own, exposing them to great economic, social, and psychological distress. Some keen observers and participants in this debate are indeed those exact people. Everyone desires to see vindication and lasting fulfillment for them. They certainly suffer and Jesus does not fail to draw close to them in their suffering.

The thought of an abandoned spouse picking up the pieces of their life and moving on to find a new companion naturally brings relief to those looking in from the outside, particularly if children are under the care of the abandoned spouse. Hopefully this new companion demonstrates all the fidelity, affection, and self-giving care for the abandoned spouse that her unfaithful husband failed to provide. Images of a brand new, healed and happy family bring solace. The desire arises for this new family to participate fully in the life of the Church and have the new union recognized as a valid marriage.

Occasionally though, the abandoned spouse is faced with the tragic scenario of being unable to obtain an annulment due to a lack of witnesses or a paper trail gone cold. Even more rarely, perhaps they had all their ducks in a row and the ecclesiastical tribunal didn’t find the case convincing enough to declare the previous marriage null. This is a bitter reality for some people.

Leaving aside the juridical factors, when one asks the ultimate question, “would Jesus smile upon a new union such as this?” the gut reaction would seem to be “of course!” In what bizarre world would the God of mercy, healing, closeness, the marginalized, the abandoned, the wronged, not approved of such a union? What could Jesus possibly have against such a classic example of human beings moving past the crushing consequences of sin and betrayal?

These are the sentiments which I would venture to say guide Ivereigh’s thought process on this issue. They are perfectly reasonable, compassionate sentiments. I do not believe they stem from a visceral hatred of “conservative” theologians or some maniacal desire to dramatically alter the course of the Church’s journey through history.

These sentiments lead Ivereigh to claim that the word “adultery” just doesn’t correspond with the sexual relations between the aforementioned abandoned spouse and her new companion. This is understandable. To most,  adultery signifies relations rooted in irresponsibility, lust, selfishness, infidelity, and pleasure-seeking. It would be uncharitable and illogical to believe that these were the motivating factors within the sexual union of the two people in question. Their relations seem to be like those of other married couples rooted in stability, self-giving, and the desire to affirm their love.

This does not sound like adultery. I get it.

When the Church has traditionally made the demand for two such people to forgo their sexual relationship due to the irregularity of their bond it has struck many as draconian, blind to the reality of couples who have long since left behind “spouses” with whom they never really had anything close to what they have now.

Can’t these theologians and hierarchs see that this is not adultery? Can’t they see that this is authentic love?

While compelling, all of this misses the central point to the whole debate: the consistent teaching of the Church that two people can form an indissoluble bond of marriage which prevails until one of them dies — merely by speaking words to one another in the span of approximately 45 seconds. Here I refer, of course, to the marriage vows.

At its core, this is not an issue about canon law.

Time and again those on Ivereigh’s side of the argument have couched the whole thing in terms of those who are open to applying the law compassionately on a case by case basis and those who are legally “rigid”. I understand that the authors of the dubia leave themselves open to such a perspective due to their use of the phrase “more uxorio”. It looks as though the interest is precisely in “upholding the law” at all costs, concrete personal situations be damned.

This misses the point.

Certainly the canonical argument is vital in its own right to the life of the Church. However, canon law exists to protect deeper, more fundamental theological realities. In this debate, all of the canons in question concern the integrity of marriage as a sacrament and indissoluble bond, the sanctity of the Eucharist, and the necessity of upholding the commandments of God Himself to obtain eternal salvation.

As much as Francis speaks about the victory of mercy, tenderness, and compassion over a legalistic, rigid mindset, this is not what drives him to the conclusion that some people living “more uxorio” can have recourse to the sacraments. He knows as well as anyone in the Church that a person who has sexual relations with a person who is not his or her actual spouse is objectively committing adultery. There is no way around that fact. What constitutes adultery, no matter what the interior motivations, is blindingly obvious: sexual relations outside the context of a valid, sacramental marriage. It’s the reason why the language of “objective” states of mortal sin can’t be dropped from the debate despite all the mitigating addendums tacked on about a lack of subjective culpability.

How then does Francis make peace with the possibility of those with no declared annulment in a ‘remarriage’, objective adulterers, receiving the sacraments? It’s simple: Francis believes that the overwhelming majority of what we call marriages in the Church are actually null. Fraudulent. Deficient. Not real. Unfounded. His original (unedited by the Vatican Press Office) comments on June 17 in Rome are the Rosetta Stone to this whole ordeal:

“We are living in a provisional culture… and because of this the great majority of our sacramental marriages are null. Because they say ‘yes, for the rest of my life!’ but they don’t know what they are saying. Because they have a different culture. They say it, they have good will, but they don’t know… They don’t know that it’s indissoluble, they don’t know that it’s for your entire life. It’s hard…

They prefer to cohabitate, and this is a challenge, a task. Not to ask ‘why don’t you marry?’ No, to accompany, to wait, and to help them to mature, help fidelity to mature. I’ve seen a lot of fidelity in these cohabitations, and I am sure that this is a real marriage, they have the grace of a real marriage because of their fidelity but there are local superstitions, etc…”

Francis is at peace with those “more uxorio” receiving absolution and communion because he is convinced that there is a very good chance the original marriage wasn’t a real marriage at all. Even if the external forum can’t declare it null for one reason or another, Francis trusts the internal forum to pick up the slack and get to the bottom of things. An individual’s conscience rises to the rank of ecclesiastical judge and the accompanying priest ascends to the position of the local ordinary. The abandoned spouse, her new companion, and a priest can discern over time that the original marriage never existed and that even though a real sacramental marriage isn’t possible due to the missing annulment, their union, although a civil marriage, is a real marriage and their sexual relations are essentially the same as those between spouses in a valid marriage recognized by the Church. The second portion of Francis’ June 17 remarks obviously put into play the possibility of cohabitation with proven fidelity (the hypothetical hard case in question) as being an actual marriage which is a source of God’s grace.

All of this belies a fundamental mistrust in the capability of a man and woman in today’s culture to stand at the altar and enter into a marriage through the spoken exchange of vows. Francis is not alone in his opinion. Well-known promoter of Theology of the Body Christopher West expressed his essential agreement with the pope based on his experiences as an archdiocesan director of marriage preparation. There are definitely many within the Church who would say that the canonical presumption of a marriage being valid as an annulment process begins should be reversed to one of invalidity. It’s a great big mess out there and there is no reason to punish someone by withholding communion from them when the vast majority of “marriages” are not in fact marriages at all. Even though the annulment process went off the rails somewhere, statistics indicate she or he is still probably right in their conviction that their marriage wasn’t real in the first place.

What of it then? Hopefully it can be seen by now we are far beyond the realms of “applying the law” or “upholding the law”. We are touching on the fundamental question of whether the Church can ever know if two people are really married. If we want there to be such a thing as indissoluble sacramental marriage and we want it to be accessible to all types of Catholics, then we must rely on the premise that two people can create this sacrament by speaking vows in public in one specific instance. If we want to maintain the integrity of the sacrament, we must have marriage tribunals that carefully examine broken unions and distinguish the sham weddings where no one really gave their lives in freedom to one another and the real weddings where people actually did what they intended and gave their lives away to one another and the Lord in love.

What is impossible, though, is to delegate such determinations to the realm of the internal forum. It is barely within the competence of a third party ecclesiastical tribunal to make such a weighty declaration as “that was never a real marriage”. It is nowhere near the competence of the conscience of an individual spouse (or confessor) to make such a determination, no matter how well-intentioned they might be.

To be as intellectually honest as possible, I will grant that perhaps our hypothetical abandoned woman is indeed correct. In reality there was never a real marriage in the first place. I imagine there are actual situations where this is true and for some reason it will just never be declared as such by a tribunal. Is her sexual relationship with the new companion still adultery in the moral sense and not simply in the legal one?

The answer is yes. For the obvious and simple reason that as a Catholic, the only way this woman can enter into a real sacramental marriage is through a Catholic wedding ceremony with the exchange of consent in public. Without an annulment, this is, of course, impossible. Without the valid sacrament she and her new companion would be forever cohabitating in a civil marriage and not as real spouses. Sexual relations with someone who is not one’s real spouse are always adulterous. Full stop. Her circumstances are indeed tragic if all these factors are true. But the logic of the Gospel dictates that she would accept this situation and courageously renounce sexual relations with her new companion as an act of taking up one’s cross in the mystery of suffering.

In the Eschaton, we will figure this all out. We will discern clearly between the real and the unreal, the true and the false, the valid and the invalid. Here and now, though, we must take Jesus’ admonition in Matthew 18:6 very seriously, and understand that the role of the priest, tribunal, and even the pope himself is to defend the indissolubility of marriage and accompany the faithful in their journey to put away sin and put on Christ. Such a task is a thankless one in the eyes of the world, but of infinite value in our desire to conform ourselves more perfectly to the one willing to sacrifice all for the sake of love.

If Ivereigh (and those who agree with his position) wants this hypothetical woman’s sexual relationship not to be “morally” adulterous, there is only one pathway forward: indissoluble, sacramental marriage with her new companion. If one cannot provide that as a possibility and yet still proposes their sexual relations as something which can coexist with the Holy Eucharist, one stands nakedly, objectively, legally, and morally outside the teaching of Jesus Christ in the Gospel.

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