Kudos and a Thought on Divorce and Remarriage

Kudos and a Thought on Divorce and Remarriage September 25, 2014

Almost one year ago today, I wrote a post praising Bishop Tobin of Providence, Rhode Island, for criticizing Pope Francis.  I did not agree with a word he said, but I thought it was important to have him say it (but also to hold him to the same standard of collegiality and openness).

Today, I find myself in the position of again praising Bishop Tobin, not only for having the courage to say what he said but also because I find myself in agreement with him.   Looking forward to the upcoming Synod on the Family, he reflects as a pastor on the problems involving divorced and remarried Catholics, and writes:

I often think about, and truly agonize over, the many divorced Catholics who have “dropped-out” of the Church completely, as well as those who attend Mass faithfully every Sunday, sometimes for years, without receiving the consolation and joy of the Holy Eucharist. And I know that I would much rather give Holy Communion to these long-suffering souls than to pseudo-Catholic politicians who parade up the aisle every Sunday for Holy Communion and then return to their legislative chambers to defy the teachings of the Church by championing same-sex marriage and abortion.

Ignoring for the nonce his swipe at pro-abortion politicians (which has been his trademark issue for a number of years and so to be expected), I see here the pastoral side of Bishop Tobin expressed in a way that redounds to his credit.   One of the things that has bothered me about the various prelates who have been defending current practice has been the intellectual distance of their discussion—I get no sense, even when they are proposing their modest solutions, that they appreciate the depths of pain and trouble in the lives of ordinary Catholics that lie behind their abstract arguments.    See, for instance, my discussion of Cardinal Mueller’s position.  Cardinal Burke and others have also laid out similar positions.  (Sandro Magister has been reporting on this in detail: see here and here for recent posts.)

Bishop Tobin goes on to propose, if not a solution, then a different way of thinking about the problem:

In my personal reflection on this dilemma, I turn to the incident in the Gospels in which Jesus and His followers were walking through a field of grain on the Sabbath and because they were hungry, began to pick and eat the grain, a clear violation of an important Mosaic Law. The offense was roundly condemned by the religious experts, the Pharisees. But in response, Jesus said, “The Sabbath was made for man, not man for the Sabbath.” (Mk 2:23-28)

In other words, while not denying the validity of the law, our Lord clearly placed it in a “pastoral context,” exempting its enforcement due to the human needs of the moment.

Could we not take a similar approach to marriage law today? Could we not say, by way of analogy, that “matrimony is made for man, not man for matrimony?” Although the teaching of Christ and His Church about the permanence of marriage is clear and undeniable, the lived reality is that many individuals, for a variety of reasons perhaps – personal, catechetical or cultural – are ill-equipped to fulfill the lofty demands of the law.

This proposal echoes in many ways the Orthodox solution, which is to allow, for the good of souls, divorce and remarriage in certain circumstances, and with the second Church wedding marked by a more penitential nature.  (See the discussion here.)  I find the Orthodox approach attractive for a number of reasons, but I also admit that both theologically and canonically their theory and practice of oikonomia is foreign to western Catholic tradition, and there would be significant problems if we attempted to graft it onto our current legal and doctrinal structures.  (Jesus’ dictum about using new cloth to patch old clothes comes to mind.)

However, in thinking about this problem, I was struck by one situation that may or may not be completely parallel.  The long standing discipline of the West is that priests are celibate, but even in the East the ancient tradition is that a priest may not marry after being ordained.  Even advocates of a married clergy in the West appear to support this tradition.  However, if a priest is laicized, he may then validly enter into a sacramental marriage.   Now laicization is not the same thing as an annulment:  the priest is still considered a priest and bears the indelible mark of the sacrament on his soul.  Nevertheless, he is able to marry.  Therefore, it seems to me that if the Church allows, for good pastoral reasons, a priest who has been dispensed from his vows to marry, then it could also, for pastoral reasons (indeed, for the salvation of souls, as Bishop Tobin alludes to), dispense Catholics who are married, civilly divorced, but whose marriages are still considered valid, from their vows to allow them to marry again, or at least to receive communion.

It can be argued that this comparison is only superficial, and that since priests are allowed to marry and only forbidden from marrying after ordination as a matter of practice and not a matter of doctrine, the marriage of a laicized priest is not a problem.  On the other hand, the prohibition against divorce and remarriage is doctrinal and thus not amenable to similar exceptions.  This is the line of reasoning adopted in a Q&A over at EWTN.    I would want to see this distinction more carefully explored, and then balanced against the exercise of the Pauline and Petrine privileges, whereby the Pope can dissolve natural marriages for the good of souls.  John Noonan wrote about this in his book The Church that Can and Cannot Change.  His book has been criticized and while I find his arguments persuasive (particularly on the subjects of slavery and usury) I felt his chapter on marriage more tentative and less compelling.  But, as I was preparing this post I stumbled upon a very critical review in which the author, in challenging Noonan’s views, writes

[Noonan] narrowly construes the Pauline privilege without recognizing that the principle implicit in the granting of that privilege is the idea that the natural-law principle of the indissolubility of valid marriage may be “superseded” by the higher principle of the establishment or preservation of the faith in the heart of a man or a woman.

This seems to me precisely the idea that is driving the discussion of communion for the divorced and remarried:  a concern for the faith of those affected by this ban.   This also seems to lie at the heart of Orthodox practice.

In any event, this is very much a tentative comparison, but I find it suggestive.  Others who understand these things better will have to sort out the niceties, and I am hoping that some more knowledgeable folks will chime in in the commboxes with a more careful analysis of my idea.   It may be a bad one, but I would like to see the reasons why more carefully worked out.

Let me close by quoting the conclusion of Bishop Tobin’s essay, a plea with which I most heartily concur:

Nevertheless, my forty-one years as a priest and nearly twenty-two as a bishop have convinced me that the status quo is unacceptable. For the spiritual well-being of the divorced and remarried members of our Catholic Family, for the salvation of their souls, we’ve got to do something!


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  • Thanks for this David. And I second your kudos to Bishop Tobin. Here we have a man who is willing to criticize the Pope and who, in many ways, has a different vision of the Church than the Pope, but who recognizes the same dire pastoral need as the Pope. This gives me hope. For those inclined to panic about the upcoming synod too often speak without giving any sense of the real pain and spiritual suffering of those affected. A synod full of people like Tobin and Francis should be able to actually do something about this.

    One point on your proposal. First Things recently published an interview with Mueller, in which he indicated that the CDF is studying (under Ratzinger’s inspiration, if memory serves) the case of sacramental marriages between those who entered their union with no sense of what it meant to call marriage a sacrament. That is to say, many sacramental marriages may, in fact, be only natural marriages because a significant factor in their sacramentality was missing. If this is the case, then your invocation of the Pauline privilege may have a much wider scope than you realize, and without overturning sacramental marriages.

  • David Cruz-Uribe, SFO

    Brett, thanks. I had seen this note about Mueller somewhere else, but I never connected it to the Pauline privilege. However, since both the parties to these marriages are baptised, it will still require a significant extension of the Pauline privilege to cover this case.

  • Chris Sullivan

    I like “the natural-law principle of the indissolubility of valid marriage may be “superseded” by the higher principle of the establishment or preservation of the faith” and Pope Benedicts principle that many Catholic marriages are sacramentally weakened because of lack of active faith.

    The interesting thing is that, right from the get go, the Church has always extended her ability to grant exceptions : the exception for adultery/porneia in some of the gospel passages, the pauline priviledge, teh petrine priviledge.

    There isn’t actually any “doctrine against divorce and remarriage”. Divorce is allowed for legal reasons. And remarriage is allowed when the original marriage is invalid.

    It is probably that case that very many marriages today are invalid.

    Anyway, the crunch for the Church is really over admission to Holy Communion and full participation in the Church. Admission is really a matter for the moral discernment of individual communicants, not of the judmentalism of others. Just look at who Jesus admitted to the last supper : Judas, Peter, and a bunch of power hungry men arguing over who was going to be the next leader !

    We need to bring the mercy, compassion, and liberating power of Christ to those who are suffering. We have the power to bind and loose – let’s use it for the spritual good of the faithful.

    God Bless

  • Melody

    If “kludge” is defined as a workaround solution that is clumsy, inelegant, and hard to maintain, yet works after a fashion; I think the Church’s present system of marriage tribunals and annulments fits that description. If a solution which is more pastoral, and more addresses the spiritual needs of people who aren’t perfect is possible, then we need to work toward it. Otherwise many people are stuck between waiting for an annulment or, as my mother somewhat cynically put it, “waiting for the right person to die.” Or a third choice that more are electing nowadays, which is finding a new spiritual home.

    • David Cruz-Uribe, SFO

      ” Or a third choice that more are electing nowadays, which is finding a new spiritual home.”

      I think this is something that Bishop Tobin is also very concerned about, as he should be. By some counts, “ex-Catholic” is the largest denomination in the United States, and anecdotally, several clergy from liberal protestant denominations I met during my anti-DP work told me that much of the growth in their congregations came from ex-Catholics. The Diocese of Springfield recently released a survey based study on why people leave the Church, and issues related to divorce and remarriage figure prominently in their results.

      Like Bishop Tobin, I am not sure what the answer is, but I am sure that something needs to be done.

  • Roger

    I’ve always chosen quality over quantity. What good is a religion of a billion half-hearted, half-faithful “Catholics”? No one HAS to be Catholic – but if are, you must follow the tenants of the faith. Its that simple.

    • David Cruz-Uribe, SFO

      “But go and learn what this means: ‘I desire mercy, not sacrifice.’ For I have not come to call the righteous, but sinners.” ” Matthew 9:13.

      • Roger

        “Go and sin no more”
        John 8-12

        NOT, go on and keep sinning.

        • David Cruz-Uribe, SFO

          Well, I guess we can keep quoting scripture:

          Then Peter came to Jesus and asked, “Lord, how many times shall I forgive my brother or sister who sins against me? Up to seven times?” Jesus answered, “I tell you, not seven times, but seventy times seven times.” (MT 18:21-22)

          The reality is that there will always be sinners in the Church. Some will be repentant, some less so. The divorced and remarried are among us: their plight is real. Simply throwing stones and telling them “shape up or ship out” does not do justice to either them or to God’s mercy. I still do not know what the answer is, but I am certain that what you are proposing is not it.

  • Roger

    My point is that these folks need to repent (i.e. get an annulment) then they can receive the sacrament. Of course they and everyone else will sin again – we’re all humans. Its why our faith has the sacrament of reconciliation (confession). People need to realize Catholicism is a fairly lenient religion. We’re given second, third and even “70” chances.

    BTW, no one is stopping them from attending Mass.

    • David Cruz-Uribe, SFO

      Roger, if they get an annulment, then they have nothing to repent, since an annulment is a canonical declaration that their previous marriage was null. The question before the Church is how to deal with the fact of their current second marriages when an annulment is not possible, for whatever reason. You are right, no one is stopping them from attending mass, but given that the Church has spent more than a century encouraging weekly and daily communion, to tell them they cannot receive communion is to mark them out as different in ways that no other group in the Church are. And as Bishop Tobin has noted, this causes real pain to people he does not regard as half-hearted Catholics (to use your previous turn of phrase).