Comment & Analysis

The Church’s challenge to reach out to lost sheep may be more logistical than doctrinal
Communion for divorced Catholics is a Church fault-line, but Tradition may point the way forward, writes Greg Daly

Discussions about Amoris Laetitia, Pope Francis’ apostolic exhortation on love and the family, even if they have not set ordinary parishes ablaze have, at least in certain circles, been characterised far more by heat than by light, especially since last September.

That month saw Pope Francis respond to draft guidelines from the bishops of Buenos Aires on the implementation of the exhortation’s thorniest section, that being the pastoral care of those who had married in the Church but since civilly divorced and remarried. 

The bishops’ document, ‘Basic criteria for the application of chapter 8 of Amoris Laetitia’, had mapped out ways of “accompanying, discerning and integrating weakness” for Catholics living in irregular family situations, focusing on the need to support and integrate divorcees into Church life, specifying that “in certain cases, this can include the help of the sacraments”.

With an eye to how others might be confused by some divorced and civilly remarried Catholics being allowed to receive Communion, the bishops said “it may be right for eventual access to sacraments to take place privately, especially where situations of conflict might arise”, continuing, “at the same time, we have to accompany our communities in their growing understanding and welcome, without this implying creating confusion about the teaching of the Church on the indissoluble marriage”.

Calling in his response for extensive catechesis on the exhortation and for the urgent formation of priests to enable them better to help such Catholics discern the reality of their situations, Pope Francis said such cooperative discernment processes would be necessary even if they became “tiresome”, noted the “pastoral charity” of the bishops’ document, and said there could be “no other interpretations” of Amoris Laetitia.

Two weeks after the Pope’s reply, four cardinals wrote to ask him for clarifications on five aspects of the exhortation. In doing so, they used a rarely used but well-established approach known as dubia, or ‘doubts’, where questions are asked with the aim of getting straightforward ‘yes’ or ‘no’ answers.

While the broad thrust of the cardinals’ questions was surely reasonable, the questions were phrased in such a way that they seemed to cast doubt on the Pope’s own fidelity to Church teaching, as well as seeming to demand blanket rules for situations where there could be innumerable unique variations. 

The Pope refused to respond, and the cardinals published their questions two months later. Since then the arguments have not abated, with the quartet having threatened to issue a “correction” to the Pope.

It is hard to avoid concluding that some response to the dubia would have helped the situation, even if such a response didn’t take a traditional format; in particular, it could have been helpful to agree that St John Paul’s teachings on marriage and on moral theology, not least in his 1993 encyclical Veritatis Splendor, are key parts of the Church’s magisterial teaching as it has developed and continues to develop.

Doing this could have allowed Pope Francis to highlight how Church teaching on conscience and on subjective culpability allows for some pastoral leeway in ways that the dubia don’t seem open to acknowledging, at least for some Catholics in second unions, even if such leeway might not apply to most such individuals. 

Obvious areas for discreet movement on a case-by-case basis, after all, might concern wives who had remarried out of necessity after being abandoned – those who our Lord describes as having been made adulterers, as though they themselves weren’t fully culpable – especially if such a remarried wife could not leave her current marriage or realistically propose chastity to her husband because of a well-founded fear of violence against her and her children.

Another area, and one that St Thomas Aquinas effectively envisaged, would be a scenario in which a married man could have sexual relations with someone to whom he wrongly believed himself married, and could do so without sinning.

In a section of the Summa Theologiae where he considers the question of whether we are bound to follow our conscience, even if it is wrong, and whether we sin by following an erring conscience, he concludes that it is always immoral to act against our conscience. However, he continues, the question of whether or not acting in accord with a mistaken conscience is moral or otherwise depends on why our conscience is erring, with everything depending on this.  

“Mistakes made willingly, whether directly willed or arising from neglect of what one ought to know, cannot excuse any resulting act of will,” he says, continuing, “but mistakes that arise without negligence from ignorance of some circumstance can make resulting acts of will involuntary and this excuse them.”

Thomas being Thomas, he gives related examples to explain his point: “For instance,” he says, “if mistaken reason tells a man he should go to another man’s wife, the will that abides by that mistaken reason is evil, since this mistake arises from ignorance of the Divine Law, which he is bound to know.”

So far so good. We have a duty to know what God expects of us, after all, and since we should know that adultery is contrary to God’s law, and know that it’s utterly forbidden, this is an area where ignorance is no excuse. 

He continues, however, in a direction that might seem highly surprising, suggesting that if a man sincerely believes someone to be his wife, and sleeps with them, there’s no sin.

“But if a man’s reason errs in mistaking another for his wife, and if he wishes to give her her right when she asks for it, his will is excused from being evil,” he writes, explaining, “because this mistake arises from ignorance of a circumstance, which is excusable, and causes the act to be involuntary.”

Similarly, one would assume – and this is how the story of King Arthur begins – for a woman with someone she might mistakenly believe to be her husband. On the face of it this might be assumed to be a reference to confusion caused by darkness or drunkenness or madness or even the magical disguises and love potions that crop up every so often in medieval literature, but the broad principle is clear: there may be no sin in sincere cases of mistaken identity. 

In this light, it is worth bearing in mind that one can be mistaken not merely as to the question of whether a certain person is who one thinks them to be, but also to the question of what one thinks them to be. 

This was, in fact, a pressing problem throughout the Middle Ages, when the Church did not absolutely require marriages to be contracted in public – indeed, when the Greek Church declared in the 9th Century that marriages contracted without the Church’s explicit blessing were null and void, the Western Church did not accept this.

The Church had always taught, after all, that the one essential ingredient to the formation of a marriage was the mutual consent of man and wife, regardless of the presence or otherwise of a priest. Blessings were desirable, of course, but not needed.

Over the course of the Middle Ages, however, it became clear that ‘clandestine’ marriages – ones contracted without the knowledge of the Church – while theologically sound could pose serious pragmatic problems.

Such marriages occurred when couples contracted marriages privately, perhaps through desire to marry partners of their own choice rather than ones picked by their families, but it was far from uncommon for husbands subsequently to pretend these clandestine marriages didn’t exist and publicly ‘marry’ others, with their true spouses unable to prevent this.

That this created real human victims alongside theological conundrums was obvious. Also problematic was the phenomenon whereby annulments could be garnered by the production of supposed ‘true spouses’ from prior clandestine marriages, despite nobody being able to test the truth of such claims. 

The debate over how to tackle this would run to the 16th-Century Council of Trent, where some theologians would argue that the conditions for the validity of marriages had been fixed by Christ, such that for the Church to add to this would be a rejection of Christ’s own teaching.

Eventually in 1563, the council introduced the concept of ‘canonical form’, declaring that marriages attempted without witnesses – including at least one priest – were null and void, although it would not make this universally binding until the early 20th Century. 

Dozens of bishops – about a fifth of those gathered – opposed this pastoral innovation, with some submitting a written objection to the Pope, preserving their opposition for posterity. 

Two of the three cardinals who were present as papal legates made it clear that they were opposed to the change, but submitted themselves to the Pope’s judgment.

It is easy to see, then, why in St Thomas Aquinas’ day it would have been quite easy for men and women to have slept with people they believed to be their spouses but who were in fact clandestinely married to other people. 

In situations of such sincere ignorance, it is hard to see that there could be any sin at all, let alone that accusations of adultery could be thrown about.

This seems pertinent, to say the least, to guidelines issued in January by Malta’s Archbishop Charles Scicluna of Malta and Bishop Mario Grech. 

In advising their clergy on how to give effect to Amoris Laetitia, they said people in “irregular” marital circumstances who are genuinely willing to engage in a serious process of personal discernment about their situation should be accompanied on their journey, helping them to form and enlighten their consciences so they can make an honest decision before God.

If it becomes clear along this journey that there are reasonable doubts about the validity of a first marriage, priests should encourage people to seek an annulment, the bishops wrote, noting that people can sometimes be “subjectively certain in conscience that their previous and irreparably broken marriage had never been valid”.

It’s worth bearing in mind that there would be people in second unions who might not obviously be entitled to an annulment, or who might be denied an annulment on technical grounds or because a first spouse had refused to cooperate, who could continue to believe their first union was never valid in God’s eyes and their second one the true one.

They might, of course, be wrong on this – the guidelines, after all, describe such people as “subjectively certain”, not objectively so, but the Maltese bishops seem to be picking up on the fact that some people who have divorced and remarried may be fully aware of the Church’s teaching on adultery, while genuinely being mistaken as a matter of fact as to the identity of their spouse.

An obvious objection might be that those who apply to Church tribunals should regard themselves as morally bound to abide by the tribunals’ findings, but it is worth remembering that in cases of doubt – perhaps in cases where a person is not in a position to prove certain facts – marriage tribunals uphold contested marriages as presumably valid, rather than as demonstrably so.

Indeed, Pope Benedict XVI, when head of the Church’s doctrinal watchdog, the Congregation for the Doctrine of the Faith, wondered about this in 1998, noting that while some theologians believe Catholics who had subjected themselves to tribunals ought to accept decisions they believe to be false, others disagree since “the juridical forum does not deal with norms of divine law, but rather with norms of ecclesiastical law”.

Expressing concerns about what subjective decisions might mean in such cases, given how this could endanger the public character of marriage, he said this was a question that needed further study and clarification.

If, then, following a discernment process that had been sincerely engaged in with the help of a priest who could help form their conscience so they are enlightened fully as to what the Church teaches, not least in terms of chastity and the nature of marriage, a person still believes their current union is their true one – and sincerely believes in conscience that their partner is in fact their real spouse in the eyes of the Lord, then it could make sense for that person “to acknowledge and believe that he or she are at peace with God”.

Granted, this poses the question of how such people could believe their second marriages, solemnised as they would have been without Church approval, were their real marriages, but given that in these situations it may well have been that the Church – rather than the couple themselves – that has prevented the ‘real’ marriage from taking place, it is hard to see that they could be deemed at fault, at least as Aquinas would read things.

As such, it could make perfect sense for the bishops to direct their priests that in the case of such a person, “he or she cannot be precluded from participating in the Sacraments of Reconciliation and the Eucharist”.

Whether the sacraments should be administered publicly or privately is another matter, of course, and the Argentine bishops, more so than the Maltese ones, tried to address this matter, presumably as a way of engaging with the concern raised by St John Paul in 1981’s Familiaris Consortio that “if these people were admitted to the Eucharist, the faithful would be led into error and confusion regarding the Church’s teaching about the indissolubility of marriage”.

Against this, one should perhaps remember the comments of Elphin’s Bishop Kevin Doran last December, when he told The Irish Catholic that “the most important thing Pope Francis is saying is that you can’t be anybody else’s conscience”.

Stressing that Pope Francis has clearly said what Church teaching is on marriage, and that every priest must do likewise, the fact remains, he said, that “not even the Pope, judging from ‘outside’, can say ‘this person is in a state of mortal sin’”. 

The bishop called on people to read Pope Francis “in the round”, and warned against presuming anything about the sinfulness of others, saying, “in the final analysis we can only be responsible for our own personal decisions – we can’t be responsible for other people’s.”

It may be that modifications to canon law will be needed better to express the fullness of Church teaching in this area, but this may not be the biggest problem posed by this attempt to recover long obscured Church teachings. 

Whether the Church has enough priests who think with the mind of the Church and who have the wisdom, energy, and time to help couples discern effectively is a different matter altogether. The biggest difficulty with Amoris Laetitia’s approach to helping draw lost sheep back into the flock may turn out to be not doctrinal but logistical.