A question on divorce and excommunication

A question on divorce and excommunication January 16, 2015

Updated 01/17/2015

I have a quick question on divorce and excommunication:  was it ever the case in the United States that Catholics who obtained a civil divorce were excommunicated?  I am not talking about barring from communion those who are divorced and then remarry outside the Church.  Rather, was the act of getting a civil divorce itself ever grounds for being barred from communion?

This seems to be a simple question, but I have wasted a large chunk of the afternoon trying to find an answer, to no avail.  Clearly, there is a deep seated perception that this was/is the case:  dozens of marriage tribunals and ministries to divorced Catholics in dioceses across the US have published emphatic statements that  being divorced does not mean you are excommunicated.  However, to complicate matters, at least one such site said Catholics “are no longer exommunicated” for getting a divorce, implying that at one time they were.   Moreover, it is fairly easy to find testimony from people talking about how they or their parents were driven out of their parish Church because of a divorce—if not formally excommunicated, then practically so.   But again, this may have been social shunning rather than actually being barred from the sacraments.

I found one note that said that the Council of Baltimore in the 1840s imposed this penalty, but then the bishops revoked it in the 1880s.  And I have seen several contradictory statements about some action by the USCCB (or the Pope at their behest) in 1977.

Since this is no longer the case, this may be a minor point.  But I cannot help but feel that I need to understand the history and context of our treatment of those who have gotten divorced in order to better understand the pastoral reality we are facing today.  So please, help me out here, preferably with some solid references.

Coda:  part of the reason I got thinking about this was that Sandro Magister published an excerpt from an article by a Catholic biblical scholar, Guido Innocenzo Gargano, re-examining Jesus’ teaching on divorce and remarriage in Matthew’s Gospel.  The argument is too long to summarize, but I recommend that you read his translation here.  (He also provides a link to the full article, unfortunately in Italian.)

According to the article cited below (available behind a paywall at JSTOR) the divorced and civilly remarried were excommunicated in America between 1884 and 1977.  This penalty only applied in the United States:

In 1884, American bishops at the Third Plenary Council of Baltimore, becoming increasingly alarmed at the rising American divorce rate, decreed that any American Catholic who remarried after a civil divorce was automatically excommunicated from the Church. The Decree read in part:

it clearly appears that a most serious guilt attaches to those who seek to dissolve their marriages by appeal to the civil authorities, or, what is worse, obtain a civil divorce and attempt a new marriage,in spite of the lawful bond which still exists in the sight of God and His Church.To punish these crimes,we decree that an automatic excommunication be automatically incurred by those who attempt a new marriage after divorce.
In 1886, papal approval was granted and this decree was instituted only in the United States; no where else did Catholics have such a severe penalty placed upon them for remarriage.

The author goes on to note that the decree was widely misunderstood by both laity and pastors as imposing excommunication on those who got a civil divorce, even if they did not remarry.  Further, the Church itself seemed to encourage the ostracizing of those who got a divorce. (See footnote 25; it is unclear to what extent this applied to those who only divorced as opposed to those who divorced and remarried.)

This historical information is to provide context for a sociological analysis of annulment rates in the US.  One interesting statistic emerged:  while America has a higher divorce rate for Catholics, it has a lower remarriage rate than other countries with substantial Catholic populations and liberal divorce laws.  Further, American Catholics who do remarry are much more likely to seek an annulment.  (See Table 2.) There are several possible interpretations of this statistic:  the most optimistic is that it suggests a deeper appreciation of the sacramental nature of marriage.  The author, on the other hand, posits that this is a legacy of the greater stigma associated with divorce and remarriage due to the excommunication decree.

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  • Brian Starks

    Check out

    Wilde, Melissa J. 2001.“From Excommunication to Nullification: Testing and Extending SupplySide Theories of Religious Marketing With the Case of Catholic Marital Annulments,”
    Journal for the Scientific Study of Religion. 40(2): 235-249.

    She talks about this issue (and also cites others if I recall correctly)…I believe she argued that it was a wildly held, but incorrect understanding…

    Hope this is helpful

    • David Cruz-Uribe, SFO

      Thank you. I will check this out and post a precis if I find it useful.

  • I have no answer to that question, only a question.

    Are we talking about formal excommunications issued by a bishop, or the automatically incurred excommunications in canon law, ie joining the Masons?

    For the former, we would need a specific instance of a bishop issuing a formal excommunication to a married couple. For the latter, we would only need to examine the previous edition of the code of Canon Law.

    • David Cruz-Uribe, SFO

      Emmarandomthoughts: did you see my update? I believe that the decree of 1884 incurred automatic excommunication. At least that is how I interpret the short quote. Also, since this only applied in the US, the 1917 code of canon law would not help—we would have to see the text of the decree itself.

  • Julia Smucker

    In my view the above decree illustrates, by a sort of counter-example, the necessary harmony between pastoral and doctrinal concerns (or, why drawing lines of ‘pastoral vs. doctrinal’, read as ‘left vs. right’, would be grossly oversimplified). What I mean is, I think it’s fair to say the decree does not represent a very pastoral response to the problem of rising divorce rates. Nor would it be very pastoral to pretend it’s not a problem for the sake of taking a more permissive line. Rather, a solidly (and doctrinally sound!) pastoral response to a rising divorce rate (which clearly was and remains a legitimate pastoral concern) ought to focus more energy on saving, supporting and strengthening existing marriages.

    • David Cruz-Uribe, SFO

      I agree Julia that the doctrinal and pastoral must be intertwined. Out of curiosity: do you think the proposal that Cardinal Walter Kasper made last year goes so far as to “pretend it’s not a problem for the sake of taking a more permissive line”? This is what he is accused of by the more doctrinally conservative (I am thinking here of the bishops and theologians clustered around Cardinal Burke).

      • Julia Smucker

        Good question. When I read Kasper’s proposal as published in America, I thought it was remarkably nuanced and seemed to take the permanence of sacramental marriage quite seriously. Based on that, I’d like to think those who are making him a poster child for the Catholic left are misunderstanding him as much as his critics on the right. But after his dismissive comments appearing to show frustration particularly with his African brothers, I’m not quite sure anymore. He must know better than to assume that the only problem is the Church not being permissive enough, as some on both sides would interpret him. But in some of those moments where he has seemed to be getting impatient, I’ve wondered whether he has been pulled into the polemic and allowed it to define him. Not that I want to assume that, I just can’t say for sure either way. I guess there’s my answer: I don’t believe the above critique applied to his initial proposal, especially with its emphasis on the traditional role of penance in serving the end goal of restoration to the sacraments, but I’m not really sure where he is or wants to go with it now.

        As for Cardinal Burke, I think John Allen rightly said he is shaping up to be this generation’s Ottaviani – or perhaps, dare I add, even a Lefebvre. Once again, I don’t wish that. But a healthy debate does need its contrarian voices, which Pope Francis has wisely recognized. Where Burke is really misguided is in insisting there can be no debate. I keep thinking the problem – and not just with him but also in the discussion at large – is the assumption that offering communion to the civilly remarried automatically equals validating the remarriage and the divorce. Since the indissolubility of marriage never appeared to be in question during the synod, there would have to be some openness to treating those as separate questions. I think that’s the breakthrough that needs to happen, not only among the cardinals and bishops but perhaps more so in the Catholic press and discussions among the laity.

        • David Cruz-Uribe, SFO

          Thanks Julia. I think both Burke and Kasper got sucked into the polemic: I am not sure what the closed sessions were like, but I expect they got pretty heated. I think it is worth remembering that the bishops have not experienced this kind of open debate in a generation, and trying to do it on such a polarizing topic is a hard way to learn the fine points of vigorous debate.

          What remains to be seen is how they respond afterwards; unfortunately, Burke really does seem to be continuing to be the voice of No. I have not heard anything from Kasper since the Synod, that I recall.

        • Cojuanco

          Remember, though, that when Pope Paul responded to Ottaviani, Ottaviani was reassured and did not press the matter further. Hopefully Burke will in a similar situation do the same.

          • David Cruz-Uribe, SFO

            What were the circumstances of this reassurance you are referring to?

        • “I think it is worth remembering that the bishops have not experienced this kind of open debate in a generation, and trying to do it on such a polarizing topic is a hard way to learn the fine points of vigorous debate. ”

          That is an excellent point! I had not considered that. It makes me think that we should have more debate, not less.

          • David Cruz-Uribe, SFO

            I only thought of this because I teach controversial issues (race and class in America) to first year students, and I spend a fair amount of time thinking about how to get them to debate these issues while keeping the discussion under control.