Intolerable Marriage Situations Revisited

The Catholic Lawyer, Sep 2017

James H. Provost

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Intolerable Marriage Situations Revisited

Intolerable Marriage Situations Revisited James H. Provost Follow this and additional works at: http://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons Recommended Citation - Article 3 JAMES H. PROVOST* It has been ten years since The Jurist published the results of a Canon Law Society of America [C.L.S.A.] study into "immediate internal forum solutions for deserving persons involved in canonically insoluble marriage cases."' The ad-hoc committee recommended the Society "let the matter rest" at least for the following year, and keep a close watch on related developments. There have been a number of related developments in the decade since that publication. It is time to review what has taken place. Indeed, so much has taken place that this study will be limited primarily to the canonical dimensions of this complex matter.2 THE C.L.S.A. REPORT 1. Background The situation of divorced and remarried Catholics received renewed attention in 1965 as a result of Archbishop Zoughbi's intervention during the fourth session on the Second Vatican Council.' He raised the possibilt This article is reprinted with permission from 40 THE JURIST 141 (1980). * The Catholic University of America. See THE JURIST 30 (1970): 1-74. The report [referred to hereafter as C.L.S.A. Report] itself is authorized by Ladislas Orsy and appears as "Intolerable Marriage Situations: Conflict Between External and Internal Forum," pp. 1-14. For a recent bibliography see Robert T. Kennedy and John T. Finnegan, "Select Bibliography on Divorce and Remarriage in the Catholic Church Today," in Ministering to the Divorced Catholic, ed. James J. Young (New York: Paulist Press, 1979) [hereinafter, Young], pp. 260-273. Surveys of special importance have been published by Richard A. McCormick, "Notes on Moral Theology," Theological Studies 32 (1971): 107-122, 33 (1972): 91100, 36 (1975): 100-117; and S~amus Ryan, "Survey of Periodicals: Indissolubility of Marriage," The Furrow 24 (1973): 150-159, 214-224, 272-284, 365-374, 524-539. 3 Acta Synodalia SacrosanctiConcilii Qecumenici Vaticani Secundi Vol. IV Pars III (Vati ity of alternatives to existing practice, a practice many pastors were finding difficult to apply in situations of a changing modern world. Three factors typify the current situation: concerns arising from evangelization efforts; an increase in the incidence of divorce; a renewed consciousness of the rights of persons to be heard in Church courts. The situation in the United States can serve to illustrate each of these factors. First, for several years prior to the Council, evangelization efforts in large cities had attempted to reach new populations arriving from other parts of the country and world. Many of these people were baptized Christians whose marriages did not survive the move from a socially stable rural environment to the city. Existing canonical procedures were not able to cope with problems encountered in examining petitions for nullity presented by these deserving converts. Some metropolitan areas adopted approaches to circumvent existing regulations in order to allow such persons to embrace and practice the true Faith. These were often termed "Good Faith" solutions.4 Second, Catholics in North America were caught up in a "divorce explosion" affecting the American population. An already general increase in divorce became a dramatic upsurge in 1965. Only recently has it leveled off.5 Third, the increased awareness of the rights of persons in the Church proclaimed by the Second Vatican Council started to have an impact on ministers of justice in Church courts. Tribunal personnel were increasingly uncomfortable with their inability to respond in reasonable time to legitimate petitions in marriage cases. The maxim "Justice delayed is justice denied" became a burden in conscience. 6 Two approaches surfaced in response to this situation. The first looked to simplify the tribunal process. The second questioned whether existing restrictions on remarried divorced persons should still apply. Again, the United States experience can illustrate both approaches. In the fall of 1968 the C.L.S.A. addressed tribunal procedures by can: Typis Polyglottis, 1977), pp. 45-47 (Congregatio Generalis No. 138) 47-48 (written animadversions in French), 257-258 (Congregatio Generalis No. 141). See the reports in Giovani Caprile, IlConcilio Vaticano II, Vol. 5: Quarto Periodo 1965 (Rome: La CiviltA Cattolica, 1969), pp. 130-131, 139-140. ' Raymond G. Carey, "The Good Faith Solution," THE JURIST 29 (1969): 428-438. ' Paul Glick, senior demographer at the U.S. Bureau of the Census, reports in "Future American Families," COFO MEMO [Coalition of Family Organizations] 2 (1979) 3:2-5, that "the long time upward trend in divorce became an upsurge between 1965 and 1975, when the U.S. divorce rate per 1,000 married women nearly doubled, from 10.6 per 1,000 in 1965 to 20.3 in 1975" (p. 3). See also his article "A Demographer Looks at American Families" in Young, pp. 189-211. ' See the results of a 1969 C.L.S.A. sponsored symposium in James A. Coriden ed., The Case for Freedom:Human Rights in The Church (Washington: Corpus Books, 1969). drafting twenty-seven "Norms" to modify existing rules. Revised by the National Conference of Catholic Bishops [N.C.C.B.] and presented by the bishops to the Apostolic See, twenty-three Norms were eventually approved by Pope Paul VI on April 28, 1970. Existing restrictions on divorced and remarried Catholics were first questioned in terms of theoretical arguments advanced in Europe and translated in American publications.' Could these theories be applied by extending the "Good Faith" solution beyond the context of urban evangelization? John T. Catoir reported actual practice was moving in this direction by 1967. In 1968 a series of articles in America questioned the exclusive competence of tribunals to resolve the situation of remarried divorced Catholics. Alternatives were even suggested for tribunals as such." It was in the context of this discussion that the 1968 C.L.S.A. annual meeting voted to establish the ad-hoc committee which reported ten years ago. To form a perspective for appreciating developments in the past decade a review of the committee's report is in order. Major Points of the Report The committee completed its work within one year, a remarkable accomplishment considering the complexity of the topic and the sensitivity reflected in its report. Four theologians from various schools of thought were asked to propose solutions to insoluble marriage situations."° From these the committee developed a more specifically canonical report. The report has four parts. It begins by recounting the problems to be 7 For history and analysis see Thomas J. Green, "The American Procedural Norms-An Assessment," Studia Canonica 8 (1974): 317-347. Text and officially published commentary are in Canon Law Digest [C.L.D.] 7 (1975): 951-966. The Norms are cited as A.P.N. 8 Of special importance was B. Peters, T. Beemer and C. van der Poel, "CoHabitation in 'Marital State of Mind,'" The Homiletic and PastoralReview 66 (April, 1966): 566-577. 9 John T. Catoir, "The Church and Second Marriage," Commonweal 86 (April 14, 1967) 4:113-117. The February 17, 1968 issue of America (118:7) was devoted to the topic, leading off with an unusual editorial statement on "The Reform of Canon Law Concerning Marriage, Annulment and Divorce" (p. 216). Included were articles on canon law by James R. Hertel, Leo M. Croghan, and John T. Catoir; Louis and Constance Dupr6 supplied theological and philosophical reflections. For initial proposals on alternatives to Tribunals see Stephen J. Kelleher. "The Problem of the Intolerable Marriage." America 119 (September 14, 1968) 7:178-182; and Leo M. Croghan, "Declaration of Freedom to Marry," THE JURIST 29 (1969):97-103. 10 The theological papers are published in THE JURIST 30 (1970). See Peter Huizing, "Law, Conscience and Marriage," pp. 15-20; Bernard Hauring, "Internal Forum Solutions to Insoluble Marriage Cases," pp. 21-30; Anthony Kosnik, "The Pastoral Care of Those Involved in Canonically Invalid Marriages," pp. 31-44; and Leo C. Farley and Warren T. Reich, "Toward 'An Immediate Internal Forum Solution' For Deserving Couples in Canonically Insoluble Marriage Cases." pp. 45-74. studied and how the committee proceeded in addressing them. Next, reflections are offered on the papers submitted by the moral theologians. Third, the committee suggests some solutions to the problem it has examined. Finally, a concluding section offers some options for future work. The committee distinguished two problems. The primary problem involved a marriage invalid before God but whose invalidity could not be proven before a Church tribunal. The committee called this the "conflict situation" and focused its major attention on it. Secondarily, the committee considered what is called the "hardship situation," a marriage which was a "good sacrament" but has broken down and at least one of the parties has remarried. The hardship situation arises when a Catholic in this subsequent marriage asks to receive the sacraments while still desiring to stay in the marriage. The four theologians the committee consulted implicitly suggested that both problems could be resolved by accepting that Christian marriage is not indissoluble in the traditional sense of the term. The C.L.S.A. committee was unwilling to adopt a position so at variance with the commonly accepted doctrinal basis. It was also reluctant to base its work on any particular school of thought. Instead, using various insights from the theologians together with established legal principles the committee addressed its two problems in separate ways. The committee had three recommendations for the conflict situation. First, greater weight should be given to statements of the parties in coming to tribunal decisions. Second, in addition to tribunals each diocese was encouraged to form a committee or board which would handle those cases which could not be proven before the tribunal. The board would counsel parties with a view to helping evaluate objectively their personal conviction of invalidity. Third, at the sacramental level, the committee urged confessors to advise their penitents to follow a well-informed conscience even if this would be in conflict with external legislation. The hardship situation proved more difficult for the committee. Too many theological issues were unresolved to be able to make more than a general recommendation that no legal action be taken against a priest who "by way of counsel in the forum of conscience" permitted a person in this situation to have access to the Eucharist. No detailed argumentation was supplied other than to urge that law "create freedom for reflection and experimentation."' 1 The report concluded by urging intensified pastoral care for the suffering parties, education of the Christian community, and a study of the theoretical meaning of Christian marriage. It recognized the limitations of even the most refined legal approach to resolve the situation and recommended delaying further action by*canon lawyers until more information surfaced. 3. Subsequent Developments The C.L.S.A. Report appeared at the beginning of a decade marked by intense study and development in many areas touched on in the committee's work. These developments arise from many sources. While it is not true to claim all were influenced by the committee's report, these developments did furnish significant information of interest to the committee's topic. At this stage only a brief overview of the past decade's activity can be offered as an indication of the extent of the work that has taken place. In later portions of this study the content of many of these developments will be considered in greater detail. This overview follows this order: the work of the C.L.S.A. itself; major actions by Church hierarchy; trends which have surfaced among scholars; expressions and recommendations from pastoral practice. a. C.L.S.A. The Society applied its resources on three fronts. First, continued support and improvement has been attempted on behalf of diocesan tribunals. The Society urged continuation of the American Procedural Norms, studied ways to strengthen local tribunals, and eventually turned to questions about the viability of the current court system itself.'2 Second, efforts have been made to address the theology of marriage. Results are still at a beginning stage but the effort has been the object of notable investment of personnel and resources through major addresses at national meetings, collaboration in various types of research, and formation of a special committee on marriage. 18 2 Resolutions urging the N.C.C.B. to seek prorogation of the Norms were adopted in 1972 (Resolution 7, Proceedings CLSA 34:154) and in 1973 (Resolution 4 [draft resolution 6], Proceedings CLSA 35:160). A study of questions on the application of A.P.N. was voted in 1979 (Resolution 3). A committee named in 1970 to study decision-making in Tribunals published its results in Lawrence G. Wrenn ed., Divorce and Remarriage in the Catholic Church (New York: Newman Press, 1973). Another committee named in 1971 surveyed the needs of U.S. tribunals and reported rather gloomily in 1973 that "an entirely new system of decision-making in marriage cases for the United States is necessary" (ProceedingsCLSA 35:145). A committee was named at that time to pursue this possibility but for the external forum it was only able to recommend further study of the institute of dissolution (Proceeding CLSA 37 (1975): 175). In response to the schema for the revision of procedural law the Society urged episcopal conferences to "encourage and support efforts to develop models of particular procedural law" (Resolution 5, Proceedings CLSA 39 (1977): 140). More effective use of options in doing this was urged in 1979 (Resolution 4). " For example, William J. LaDue, "The Sacramentality of Marriage," Proceeding CLSA 36 Finally, the question of the "internal forum" has been given serious attention. A resolution was adopted in 1972 concerning diocesan initiatives. A seminar on spiritual direction for divorced and remarried Catholics was offered in 1976. At least two committees have explored possible guidelines to aid pastors. " b. Church hierarchy. The hierarchy has not been inactive relative to the needs of increasing numbers of Catholics in situations of divorce and remarriage. Activity has included improvements for tribunals as Well as studies and directives affecting admission of remarried divorced persons to the sacraments. Draft proposals for revising canon law affecting marriage, tribunals, and sacramental practice have been circulated for comment during this time.15 Two particular developments should also be noted. In response to episcopal initiatives in various European dioceses the Congregation for the Doctrine of the Faith confirmed in 1973 a more open policy toward funerals for remarried divorced Catholics, derogating from the restrictions of canon 1240.16 The bishops in the United States voted in 1977 to (1974): 25-35; Richard G. Cunningham, "Recent Rotal Decisions and Today's Marriage Theology: Nothing Has Changed-Or Has It?" Proceedings CLSA 38 (1976): 24-41, with bibliography. Collaboration in research was voted in 1973 (Resolutions 5 and 10, Proceedings CLSA 35: 160, 162). In 1978 various questions about marriage were combined into one Committee on Marriage. "1 1972 Resolution 3, ProceedingsCLSA 34:149-152; John T. Finnegan, "Spiritual Direction for the Catholic Divorced and Remarried," Proceedings CLSA 35 (1973): 70-83; Resolution 7, Proceedings CLSA 36 (1974): 160; "Report of Committee on Alternatives to Tribunal Procedures," Proceedings CLSA 37 (1975): 162-178. See also the major address by Richard A. McCormick, "Indissolubility and the Right to the Eucharist: Separate Issues or One?" ibid.: 26-37 (reprinted in Young, pp. 65-84). " For history and evaluation of procedural developments see Francis G. Morrisey, "The Procedural and Administrative Reform of the Post-Conciliar Church," in Judgment in the Church, ed. William Bassett and Peter Huizing, Concilium 107 (New York: Seabury Press, 1977), pp. 77-87. In addition to history, comments on the revision of the procedural law in the Code are made by Thomas J. Green, "Marriage Nullity Procedures in the Schema De Processibus," THE JURIST 38 (1978): 311-414. Philippe Delhaye and Henri Wattiaux review statements from the first half of the decade on sacraments for remarried divorces in "La morale familiale et sexuelle catholique h la lumi~re des documents rcents du magistere 6piscopal (1970-1975)," Espirit et Vie 87 (1977): 161-171, 194-202, 209-223; see especially pp. 212-214. Several statements were issued by bishops in the context of debates over civil divorce legislation which may have influenced the pastoral tone of the documents. See those made in 1971 by the Italian bishops (La Documentation Catholique [D.C.] no. 1581 (March 7, 1979 68:247-248) and by Cardinal Renard on behalf of the French episcopal commission on the family (ibid.: 227-230); in 1977 by the Canadian Bishops (D.C. no. 1718 (April 17, 1977) 74:372-378; in 1978 by the bishops of Northern Ireland (D.C. no. 1744 (June 18, 1978) 75-593). 6 Initiatives had been taken in Belgium (C.L.D. 7:778), in the diocese of Arras (D.C. no. 1603 (February 20, 1972) 69:195-196, and by the bishops of the Central Region of France lift the excommunication imposed by the Third Plenary Council of Baltimore on Catholics who dared to remarry after divorce. Pope Paul VI confirmed this action by the N.C.C.B. later that same year. 17 c. Scholars. Theologians and canon lawyers have addressed intolerable marriage situations from many perspectives. The focus of this present study is canonical but a brief review of major theological positions may indicate the horizon within which canon lawyers have been working. 8 From my perspective there appear to be at least four major tendencies among theologians on this issue. The most traditional holds a remarried divorced person is living in a state of sin which excludes admission to the sacraments." A more moderate stance holds for the indissolubility of marriage but questions whether every couple living in an irregular union is truly "living in sin." Certain exceptions are admitted to permit access for some couples to the sacraments even though they remain in irregular unions2. 0 A third trend questions the meaning of indissolubility. While not denying the teaching of the Church it seeks to reinterpret it in the light of (D.C. no. 1614 (August 6-20, 1972) 69:737-738). For private letter of May 29, 1973 from the Congregation for the Doctrine of the Faith and its decree of September 20, 1973, see C.L.D. 8 (1978): 862-864. " Acta et Decreta Concilii Plenarii Baltimorensis Tertii, Decree 124 (Baltimore: John Murphy & Co., 1886), p. 64. Action by the N.C.C.B. was on May 4, 1977, confirmed by Decree of the Congregation for Bishops on October 22, 1977-see C.L.D. 8: 1213-1214. 18Special note should be made of the collective work of theologians. See the report of a committee of the Catholic Theological Society of America [CTSA], "Divorce and Remarriage," Origins2 (October 12, 1972) 16:251-263; Association de theologiens pour l'6tude de la morale [ATEM], Divorce et Indissolubilitedu Mariage (Paris: Ed. du Cerf. 1971), as well as the non-authorized publication of an early version of ATEM's report to the French bishops. "Le problbme pastoral des chr~tiens divorcbs et remari~s." Le Supplement no. 109 (May, 1974) 27:125-154; International Theological Commission, "Propositions on the Doctrine of Christian Marriage." Origins 8 (September 28, 1978) 15:235-239. The "Propositions" are in the form of theses. Philippe Delhaye, Secretary General of the Commission, provided a commentary to them in D.C. no. 1747 (August 6-20, 1978) 75:704-718. A comprehensive review of literature through 1977 appears in Robert W. Thrasher, The Application of Canon 1014 to External Forum and Internal Forum Solutions to Marriage Cases, Canon Law Studies 494 (Washington, D.C.: Catholic University, 1978). " See Thesis 5 of the International Theological Commission; G. Martelet, "Christological Theses on the Sacrament of Marriage," Origins 8 (September 14, 1978) 13:200-204; Bertrand de Margerie, "Reception indigne et infructueuse de 'Eucharistie," Esprit et Vie 87 (1977); 513-519, 529-540, 561-569; idem, "Question," Esprit et Vie 87 (1977): 333-334; Leo Scheffczyk, "Eucharistie and Ehesakrament: Dogmatische Grundlegungen in der Frage nach der Zulassung geschiedener Wiederverdeirateter zur Eucharistie," Munchener Theologische Zeitschrift 27 (1976): 351-375. "0See Committee of the CTSA; Karl Lehmann, "Indissolubility of marriage and pastoral care of the divorced who remarry," Communio [U.S. edition] 1 (1974): 219-242; William E. May, "Marriage, Divorce, and Remarriage," THE JURIST 37 (1977): 266-288. contemporary theology."' A fourth group challenges the binding force of the teaching on extrinsic indissolubility and argues for at least a case-bycase consideration rather than an absolute prohibition of access to the sacraments.2 2 Canonical studies have addressed many of the same issues from within similar tendencies. Specific canonical issues have also been explored. As will be discussed later, these include historical precedents in Church practice, the meaning of "faith" and "consummation" in regard to Christian marriage, and the right of. baptized Catholics to the Eucharist. d. Pastoralpractice. A major feature of the past decade has been the development of groups and even movements for formerly married Catholics. The interest of parish priests found expression in a national forum. A cross-section of American Catholics and representatives of Catholics in several European nations voiced concern through official consultative forums.2" Popular literature has increased considerably in this decade, further evidence of this issue's pastoral significance. 24 The work of the decade of the 'seventies' has indeed surfaced considerably more information on intolerable marriage situations than was 21 See ATEM, "Le probleme pastoral"; Richard McCormick and various authors he analyzes in "Notes on Moral Theology"; idem, "Indissolubility and the Right to the Eucharist." Others, by questioning the degree of faith needed for a sacramental marriage may be leading to similar conclusions. See, for example, Walter H. Cuenin, "The Marriage of Baptized NonBelievers: Questions of Faith, Sacrament and Law," ProceedingsCLSA 40 (1978): 38-48. 22 See Charles Curran, "Divorce from the Perspective of Moral Theology," Proceedings CLSA 36 (1974): 1-24; idem, "Divorce: Catholic Theory and Practice in the United States," American EcclesiasticalReview 168 (1974): 3-34, 75-95; Louis de Naurois, "Probl~mes actuels sur le mariage," Esprit et Vie 87 (1977): 33-43 [where he asks questions rather than states a direct position]; idem, review of Le r~mariagedes divorces. Pour une attitude nouvelle de l'Eglise, by Paul Bourgy, Louis Dingemans, Pierre Hayoit, and Joseph Natalis, in Esprit et Vie 87 (1977): 461-464 [de Naurois again asks questions rather than takes a definite stand]. 2 On the formation of divorced Catholic groups see James J. Young, "Introduction The Divorced Catholics Movement," Ministering to the Divorced Catholic, pp. 1-12. In the United States priests expressed themselves through a year-long process organized by the National Federation of Priests' Councils culminating in the Federation's House of Delegates Meeting March 10-13, 1975. See the five page position adopted there (Chicago: National Federation of Priests Councils, 1307 S. Wabash Ave., Chicago, Illinois 60605). A cross-section of clergy, religious and lay people voted a series of recommendations to the U.S. bishops for greater pastoral attention to divorced Catholics at the 1976 "A Call to Action" Convocation in Detroit-see text in Young, pp. 255-256. Developments at the Synods in Austria, Germany, and Switzerland are discussed below. 24 For especially competent presentation in a popular forum by a canonist see Thomas J. Green, "Canonical-Pastoral Reflections on Divorce and Remarriage," The Living Light 13 (1976): 560-576; idem, "Ministering To Marital Failure," Chicago Studies 18 (1979): 327344. available to the C.L.S.A. committee. It is important to address the right questions to the body of material which has been developed. I will first attempt to identify the significant canon law questions, then explore the state of the issue in regard to the two major situations identified in the C.L.S.A. Report. Some questions which remain unresolved as a new decade begins will conclude this study. BASIC QUESTIONS 1. External-InternalForum A distinction between the external and internal forum underlies the C.L.S.A. Report and has been presumed in many of the proposals and studies issued during the past decade. A significant appeal to the distinction of the two fora occurred in the April 11, 1973 letter from Cardinal Seper of the Congregation for the Doctrine of the Faith.25 What is the correct canonical interpretation of this distinction? Antonio Mostaza Rodriguez has demonstrated that the internal and external forums are distinguished not by the power that is used in either, nor by the one who exercises it, nor by the topic that is dealt with. Rather, the fora are distinguished by the degree of publicity attached to each. The internal forum is characterized by the occult or hidden manner in which ecclesiastical jurisdiction is exercised. 6 External forum jurisdiction can be exercised judicially, as in a tribunal, or administratively. Marriage nullity, for example, can be decided administratively as well as judicially. This is clear particularly in cases where canonical form was not observed. It has also been true in the past for cases of nullity due to impotence, lack of consent, and other grounds2. " Even today questions of dispensation or dissolution of mar2 English translation in C.L.D. 8:631-632. 26 Antonio Mostaza Rodriquez, "Forum Internum-Forum Externum," Revista Espanola de Derecho Canonico 23 (1967): 253-331, 24 (1968): 339-364. See also the statement of current teaching in Urban Navarette, "Conflictus inter forum internum et forum externum in matrimonio," in Investigations Theologico-Canonicae[collective work honoring Wilhelm Bertrams] (Rome: Univ. Gregoriana Editrice, 1978), pp. 333-338; and the review of current positions and personal reflections by Velasio De Paolis, "Natura e Funzione del Foro Interno," ibid, 115-142. 2" Georgio Zur, "De Nullitate matrimonii a Sacra Congregatione de Sacramentis declaranda," Ephemerides iuris Canonici 18 (1962): 45-80, 295-327. The "excutit praeterea quaestiones conscientiae easque dirimit" of canon 258, § 1 which authorized the Sacred Penitentiary to process such cases has been deleted from the listing of competencies in the reorganization of the Curia. See Paul VI, Apostolic Constitution "Regimini Ecclesiae universae," August 15, 1967: A.A.S. 59 (1967): 921-922; C.L.D. 6 (1969): 352. The Apostolic Signatura, however, is now competent to resolve marriage cases via administrativa-see Charles Lefebvre, "Actes recents du Saint Siege," Anne Canonique20 (1976): 180-182; and Zenon Grocholewski, "Le facolta del Congresso della Segnatura Apostlica diemettere riage are handled in an administrative manner rather than by a judicial tribunal. Internal forum jurisdiction can be exercised within the celebration of the sacrament of Penance, or in a non-sacramental forum (canon 196). Jurisdiction can be limited according to the manner in which the internal forum is authorized; i.e., confessors are not authorized to utilize their jurisdiction outside the context of the celebration of the sacrament (canon 202, § 2). But whether sacramentally or non-sacramentally, the canonical use of the internal forum is truly an act of jurisdiction and not just a question of counselling or aiding someone to clarify a question of conscience. The term "forum of conscience" has to be carefully understood in this light (see canon 196). The two fora are not mutually exclusive. Actions taken in the external forum have juridical effect in the internal forum as well (canon 202, § 1). The same is not true vice-versa, however, and actions in the internal forum may or may not have external forum effects depending on the circumstances and the provisions of law.28 While not mutually exclusive, neither are they mutually inclusive. To sum up "internal forum" in law refers to an act of jurisdiction and therefore not just a decision in conscience by an individual. It requires jurisdiction and cannot be used by a person lacking jurisdiction or acting beyond the limits of that jurisdiction. It may have external forum consequences or it may not, depending on the case. Applied to the reception of the sacraments by remarried divorced persons the term has not always been used with clarity or consistency in the discussions of the past decade. "Internal forum" has been used to designate the forum in which the decision is made to admit a person to the sacraments. 9 This is a technically precise use of the term. At times it has also had the general notion of something true but not recognized in law.30 This may be a popular way of speaking but it confuses canonical and other uses of the term and might better be avoided in discussing intolerable marriage situations. "Internal forum" has also been used to refer to the public or hidden manner in which the sacraments are received.3 1 This is a broader use of the term and should be addressed in the diciatazioni dinullita di matrimonio in via amministrativa," Investigationes Theologico-Canonicae, pp. 211-232. 21 Examples in the Code are dispensation from irregularities for ordination (canon 991, § 4), dispensation from occult impediments to marriage (canon 1047), and absolution from censure (canon 2251). 29This, for example, is the import of Cardinal Seper's 1973 letter. 3O Cardinal Staffa used the term this way in his discussion "De celebratione alterius matrimonii absque sententia de nullitate prioris," Apollinaris 30 (1957): 470-473. The concept of the two fora of which the C.L.S.A. Report speaks is a similar use of the term. 3' Archbishop Hamer seems to understand internal forum this way in his 1975 letter to the light of the next question, sacraments. Which Sacraments? The following sacraments have been the occasion for the current discussion: baptism, penance, the Eucharist, and matrimony. Baptism has been a question in the context of evangelization. This has not been a major focus in the discussion of the past decade so this pastorally significant question will have to be left to other studies. Penance and the Eucharist have usually been grouped as one type of situation; matrimony has been addressed as a distinct but related case. Again, since this has been the trend in the developments of the past decade the division will be observed in this study as well. As noted above, "internal forum" has been used to designate the hidden manner in which the sacraments are received as well as the forum in which the decision is made to admit a person to the sacraments. There is an underlying difficulty here. The internal forum is occult; the sacraments are public actions of the Church, communitarian in nature. To speak of their reception "in the internal forum" is really to speak of their reception in a public manner but in a situation where the condition of the person is hidden and thus will not cause scandal. Conflict and Hardship Situations A third set of considerations arises from the distinction on which the C.L.S.A. Report was based ten years ago. Several authors have adopted the same distinction between a former marriage objectively invalid, and one which was objectively valid but is now irretrievably broken.3 2 Other studies seem to ignore the distinction. They either consider all remarried divorced persons to be in a state of at least "objective" sin, or propose admission to the sacraments without distinguishing the types of situations.33 United States bishops. See text in Adam Zirkel, Schliesst das Kirchenrecht alle wiederverheiratetenGeshiednen von den Sakramenten aus? (Mainz: Grunewald, 1977), p. 43. So far as I can determine the text of the letter has not been openly published in the United States. [See C.L.D. Supplement 1978, CAN. 738-ED.] " For example, Green, "Canonical-Pastoral Reflections"; Zirkel; Ludwig Kaufmann, "Uber die bewahrte Praxis hinaus," Orientierung38 (May 25, 1974) 9:97. Thrasher, p. 213, makes a three-level distinction depending on whether people in hardship situations believe in good faith their present union to be valid, or not. Navarette, p. 331, has a four-way distinction: conflict situation strictly speaking; cases where the couple believe they are in a conflict situation; cases of insoluble doubt about validity of marriage; and what others describe as the hardship situation. " Examples of those denying any access are given in Delhaye and Wattiaux; see also thesis 5 of the International Theological Commission; Bishop Edouard Gagnon, "Problmes pas Objections can be raised against the practical realism of the distinction. There is a danger of subjectivism in accepting the conviction of the parties that a previous marriage was not valid even though they cannot prove this to the satisfaction of a Church court. Given the complexity of the grounds for nullity in modern jurisprudence, can a person ever really know whether the previous union was invalid without a declaration from a court?3 4 On the other hand the same developments in jurisprudence may confirm the personal convictions as well founded. Moreover, St. Alphonsus and other classical moralists do provide guidance for determining when it is permitted to engage in sexual acts in a marriage whose validity may be doubted by one or other of the parties3. 5 If both parties are convinced the present marriage is valid, and in fact the previous marriage was objectively not valid, could not the same moral principles apply? If so, the distinction of conflict and hardship situations has practical importance. Richard McCormick indicates a theological consensus appears in the literature of the first half of the past decade supporting the distinction between the two situations. William May argues to the legitimacy of the conflict situation on the basis of medieval scholastic precedents." There is a final critique which could be made of the distinction. It involves an objectivist way of thinking which may be inadequate to the realities of human life. While this may be true, the distinction does provide a manner of speaking which relates the current situations to traditional theological and canonical categories and at least for this purpose may have continued merit. These three categories-external and internal forum; the sacrament of matrimony and the sacraments of penance and the Eucharist; the conflict and hardship situations-provide the sets of questions with which to address the canonical significance of developments in the past decade. In what follows the sacraments provide the basic focus for the material; the toraux relatifs aux catholiques divorces et civilement remariss," Esprit et Vie 88 (1978): 241-245. A recent .example of a study open to access to sacraments without distinguishing the situations can be found in Francois Deltombe, "Pour une solution pastorale du problme des divorces remari6s," Le Supplement no. 130 (1979): 329-354. 3,Gagnon, p. 243. He writes in his capacity as President of the Pontifical Committee of the Family and can be taken as a semi-official voice from the Vatican so the objection is serious. 36Jules de Becker remarks: "De usu licito matrimonii contracti stante dubio de legamine, vel superveniente tali dubio alias dicetur. Cf. interim, S. Alphons. Theol. Mor. De matrim. 903 sqq.; Ballerini op. mor. VI, 677 sqq.; et ex Decretal. C 2 de secund. nup., C 44 de sent. excommun." De Sponsalibus et Matrimonio: Praelectiones Canonicae (Brussels: Socibtb Belge de Librairie, 1896), p. 142, footnote 1. Alphonsus deals with various cases involving impediments of ecclesiastical and divine law and the use of the marriage act-see nos. 901904, Theologia Moralis, ed. Joannis Dominici Mansi (Venice: Remondini, ed. decima absolutissima 1793), Tomus Secundus: 34-38. 11 McCormick, "Notes on Moral Theology," (1975): 109; May, pp. 272-273. other categories are used to evaluate developments relative to them. III. REMARRAGE IN THE CHURCH Resolving the Conflict Situation By definition the conflict situation involves a prior marriage which objectively was not valid but it is not possible to prove this to the satisfaction of a Church court. Various reasons have been advanced for this impossibility. It could be that no tribunal is available. There may be objective reasons for the parties not to approach the tribunal. Tribunal practices differ and one which is competent to hear the case may not admit the developments in procedure or jurisprudence which other tribunals are following. It may be impossible to produce the proof required by the tribunal because of danger to children from the previous marriage or for other serious reasons."1 There results a conflict between the reality of the situation and the way the Church considers it. In the conflict situation a person is blocked by the impediment of ligamen from entering a new marriage in the Church (canon 1069). Proposals to resolve this difficulty have addressed the tribunal situation, the use of the extraordinary form of marriage, and the use of internal forum solutions. Tribunals a. A declaration of nullity from a Church tribunal is presented by most authors as the normal avenue to clear the way for a new marriage in the Church. Although some have disputed whether the Church should be in the judging field at all, most admit this is a traditional prerogative.8 37 See C.L.S.A. Report, p. 10. Green, in "Canonical-Pastoral Reflections," p. 570, lists these factors for not being able to obtain a declaration of nullity in conflict situations: key evidence is lacking; the only available tribunal is unwilling to process the case on grounds generally acceptable in other tribunals; the tribunal is not functioning or suffers from such a backlog of cases that several years' delay must be anticipated. In "Ministry to Marital Failure," p. 337, he adds fear on the part of the petitioner in even approaching a tribunal. Other factors which can be cited from experience include: petitioner is a formerly married nonCatholic now married to a Catholic and in exercising legitimate freedom of conscience refuses to accept Roman Catholic jurisdiction in deciding about the previous union; danger to children of the previous marriage if a former spouse is contacted; fear of violent reaction by the former spouse or previous in-laws; the divorce was too painful to permit psychologically opening up the question again. Perhaps the most visible advocate of abandoning a judicial approach has been the former officialis of New York, Stephen J. Kelleher, Divorce and Remarriagefor Catholics? A Proposal for Reform of the Church's Law on Divorce and Remarriage (Garden City, N.Y.: Doubleday, 1973). But he is not alone. The respected officials of Hartford, Lawrence G. Wrenn, comes to a similar conclusion from different premises in "Marriage-Indissoluble or Fragile?" in Divorce and Remarriage in the Catholic Church, pp. 134-149. Various statements by the hierarchy have reinforced the position that in theory this is the preferred solution. In his April 11, 1973 letter to heads of episcopal conferences, Cardinal Seper called for the use of "correct means" to resolve the situation of persons in irregular marriages. Presented in contrast to the approved practice in the internal forum, the general interpretation of such "correct means" has been the use of tribunals. The bishops of West Germany, the Ivory Coast, Italy, and individual bishops in various countries have called this the usual means available within the Church."' When the American bishops rescinded in 1977 the excommunication imposed by the Third Council of Baltimore the official spokesmen for the N.C.C.B. and for various dioceses were careful to indicate it changed nothing with regard to communicant status. The Archdiocese of New York issued an especially pointed statement: "The Church does not recognize or accept the second marriage of divorced Catholics who have not had their prior marriage declared null by a Church tribunal. . . the latest action of the bishops, lifting personal excommunications, changes nothing regarding the validity of second marriages of Catholics who have not received a Church annulment of their prior marriage. '40 b. Efforts to improve Tribunal procedures have marked off the decade of the 'seventies' from the previous years in this century. On March 28, 1971 the motu proprio "Causas matrimoniales" introduced several changes in the Church's general law relative to nullity cases.4' After some initial reluctance the Apostolic See in 1974 continued the special norms in force for the United States until the new Code is promulgated. Modified norms have also been approved for several other nations.41 Rules of evidence have been addressed. The C.L.S.A. Report asked that the testimony of the parties themselves be accepted as providing the so West German bishops, D.C. no. 1607 (April 16, 1972) 69:396; Ivory Coast, D.C. no. 1614 (August 6-20, 1972) 69:739-730; Italy, D.C. no. 1769 (August 5-19, 1979) 76:717. See also Delhaye and Wattiaux, pp. 212-214. 10Origins 7 (June 16, 1977) 4:56 (emphasis in the original). See the pastorally more sensitive statement by the chairman of the N.C.C.B. Canonical Affairs Committee, Bishop Cletus O'Donnell, in Origins 6 (May 19, 1979) 48:765-766. " A.A.S. 63 (1972): 441-446; C.L.D. 7:969-974. Cited as Causas. ,' On June 20, 1973 Cardinal Villot notified the N.C.C.B. that the A.P.N. would not be renewed but gave the U.S. tribunals a year to prepare to adjust to the more restrictive features of Causas;see text in Ignatius Gordon and Zenon Grocholewski, DocumentaRecentiora Circa Rem Matrimonialem et Processualem (Rome: Pont. Univ. Gregoriana, 1977) [Documenta Recentiora], pp. 252-254; C.L.D. 8: 1155-1157. A prorogation was eventually obtained with certain procedural conditions to be observed, effective until the new Code's revised procedural law is promulgated; see Documenta Recentiora, pp. 254-256; C.L.D. 8:1167-1169. Norms have also been reported for the bishops of Belgium, of England and Wales, of Canada, and of Australia; see Documenta Recentiora, pp. 256-260, and C.L.D. 7: 967-969, 997-1001; ibid., 8:1169-1177. basis for moral certitude. Norms granted the bishops of Belgium and extended early in 1971 to the bishops of England and Wales were a step in this direction. They allowed for probative force against the validity of a marriage if the judicial depositions of the two parties are concordant, every species of collusion is absent, and at least one additional witness of considerable credibility supports the allegations.4 The norms were actually not new. The same position could be based on existing jurisprudence as several studies have demonstrated and as Cardinal Felici confirmed in an address early in 1977. 44 However, the norms do open for diocesan tribunals a clearer understanding of the importance of statements by the parties themselves especially in cases where little other testimony is available. Another area of tribunal development has been in jurisprudence. Judges have taken seriously the admonitions of Pope Pius XII to accept the findings of modern science and of Pope Paul VI to apply the teachings of the Second Vatican Council to marriage cases.45 The traditional grounds of nullity have been reexamined with the result that more favorable decisions are often possible." The impact of these developments has been mixed. Certainly there are increased expectations that the Church will provide a judicial solution to conflict situations. On the other hand, some theologians question the meaning of all this canonical activity. A reluctance has surfaced even among some Roman authorities to see the full implementation of these developments. Proposals for the revision of the Code appear to some as designed to limit this expansion of tribunal solutions.4 13 C.L.D. 7:967-969. "4For example, Andre Broussard, "Notes on the Gathering of Evidence in Church Tribunals," Studia Canonica8 (1974): 163-166; Peter A. Pijnappels, "Sufficiency of Evidence in Formal Trials," ibid.; 167-182. Pericles Cardinal Felici, "Juridical Formalities and the Evaluation of the Proofs in a Canonical Process," THE JURIST 38 (1978): 153-157. See also James H. Provost, "Remarks Concerning Proofs and Presumptions," THE JURIST 40 (1979): 456470. " See significant excerpts from Pius XII's Allocution of October 3, 1941 in C.L.D. 2 (1943): 454-458; and Paul VI's Allocution of February 9, 1976, Origins 5 (March 18, 1976) 39:613, 615-616. 41 See for example Aldo Arena, "The Jurisprudence of the Sacred Roman Rote: Its Development and Direction after the Second Vatican Council," Studia Canonica12 (1978): 265-293; David Fellhauer, "The Exclusion of Indissolubility: Old Principles and New Jurisprudence," Studia Canonica 9 (1975): 105-134; Ralph Brown, "Total Simulation: A Second Look," Studia Canonica 10 (1976): 235-250; Robert Sanson, "Jurisprudence for Marriage: Based on Doctrine," Studia Canonica 10 (1976) 5-36. " Dennis J. Doherty, "Marriage Annulments: Some Theological Implications," THE JURIST 38 (1978): 180-189; Cornelius J. van der Poel, "Influences of an 'Annulment Mentality,'" paper delivered at the Eastern Regional Conference of the Canon Law Society of America, April 11, 1978, Hershey, Pennsylvania: C. Wackenheim, "Ou 6st la Norme, ou 6st l'Exception?" Revue de Droit Canonique 28 (1978): 54-62. A certain pulling back on the c. More importantly, what in fact is the reality for most Catholics in conflict situations today? Is the tribunal a realistic option for resolving the conflict situation and opening the way to a new marriage in the Church? Statistics take time to assemble and publish. For purposes of comparison I will rely on statistics for 1975, for which reports from both the Vatican and the United Nations are fairly complete. Reports of tribunal activity in various parts of the world have recently been analyzed and these, too, focus on 1975.48 Since this year was four years after the motu proprio "Causas matrimoniales" it should be sufficient time for reforms in that document to have some impact. The most striking result of efforts to improve the available services of tribunals is that for most of the world's Catholics there has been no effect: a tribunal is not available to them at all! The General Statistics Office of the Church reports that 95% of all marriage cases terminated with a sentence, decree, or votum in first instance. during 1975 occurred in eleven countries. These eleven nations are limited to Europe, Canada, the United States, Colombia and Australia."9 While these eleven countries do account for forty percent of the total Catholic population, even in them the tribunals are barely scratching the surface of the potential case load. The General Statistical Office estimates that around 47,000 cases of marital failure were presented to tribunals in 1975 that occurred that year. Of these, many reported in Colombia and Spain (where the United Nations reports there is no civil divorce in the usual sense of that term) were causes for separation, not petitions for decpart of Roman authorities has been evident since publication of Causas. In June, 1973 the request to extend the A.P.N. was denied. A year later when it was granted, new restrictions were added to their use (see texts cited, note 42 above). Criticism of tribunals in the Netherlands has been quite severe-see letter from the Apostolic Signatura to Cardinal Alfrink, C.L.D. 7:706-711. Not quite so severe but still highly publicized has been the critique of the Signatura about cases in United States tribunals-see the letter dated December 14, 1977 in THE JURIST 38 (1978): 220-224; and the letter dated April 13, 1978, Prot. N. 9694/77 V.T. together with commentary by Zenon Grocholewski, "Declaration of the Apostolic Signatura on the Competence of Ecclesiastical Tribunals in the United States of America," Monitor Ecclesiasticus 104 (1979): 139-161. The proposed revision of procedural law for marriage cases was originally quite restrictive but has been moderated somewhat in light of comments from bishops; see reports of discussions in Communicationes 10 (1978): 209-272, 11 (1979):67-162. 48 Secretaria Status Rationarium Generale Ecclesiae, Annuarium Statisticum Generale 1975 (Vatican City: Typis Polyglottis, n.d.); United Nations Department of International Economic and Social Affairs, Statistical Office, Demographic Yearbook 1977 (New York: United Nations, 1978). See also the series of articles on canonical experience since the Council in II Diritto Ecclesiastico89 (1978): 106-487. '9 Annuarium Statisticum Generale 1975, pp. 207-281. larations of nullity.50 Even including these cases, the total submitted amounts to only about 11% of the divorces which probably affected Catholics in those countries that year.51 Taking the statistical picture from a different perspective, the total of cases decided in 1975-including the separation cases in Colombia and Spain-amount to about 7.5% of the divorces affecting Catholics. As the accompanying chart shows, when viewed on a nation-by-nation basis the percentage of cases handled compared to the potential case load from just the 1975 divorces probably affecting Catholics is even more dismal. This says nothing about the numbers of cases not heard from divorces in previous years. " Ibid., pp. 210-211, 213. " The number of divorces affecting Catholics is not reported in any of the available sources. To estimate this number I have adopted with some modifications the procedure proposed by Wrenn in "Marriage-Indissoluble or Fragile?" p. 144. That is, the estimate is derived by assuming that the percentage of divorces affecting a Catholic is equivalent to the percentage of Catholics in the population. Wrenn adjusts the figure down to determine how many cases actually involved Catholics in first marriages. Here I am concerned with how many cases could potentially involve a Catholic in a subsequent marriage, for this is the intolerable situation under review. In nations with a low percentage of Catholics the percentage of religiously mixed marriages is relatively high. Even if the rate of divorce among Catholics is lower than the general population, there is increased likelihood that a divorced non-Catholic will want to marry a Catholic. Some U.S. tribunals estimate over half their cases involve non-Catholics as one or both parties. Where there is a high percentage of Catholics in the population it is more likely divorce will involve a Catholic even though the person's level of religious commitment might be low. The rough estimate is therefore relative to potential petitioners at tribunals rather than actual numbers of Catholics involved in divorce. Cases Decided Compared with Potential Case Load"2 Tribunal Decisions in First Instance Percentage of Potential 1975 Cases Nation Australia Canada Colombia France Great Britain Italy Netherlands Poland Spain U.S.A. Totals West Germany Estimated Divorces Affecting Catholics 6,331 22,066 57,151 11,814 10,352 8,017 38,712 225,720 48,394 428,557 1,115 1,057 1,198 3,241 23,034 734 32,426 3 % 5 % The condition of tribunals deserves a separate study. For purposes of this review it is sufficient to note that a careful analysis of United States tribunals indicates they probably cannot handle the case load even with more personnel and continuation of simplified procedures.5 3 The situation in Latin America is already worse." The increasing shortage of clergy and 62Statistics are from the sources cited in note 48; estimate of divorces affecting Catholics is determined as described in note 51. 53 C.L.S.A. Committee for Tribunal Assistance, final report in ProceedingsCLSA 35 (1973): 138-147. In 1975 there were 152 cases decided for all of Africa, 201 in Central America, and 1,236 in South America (of which 1,057 were in Colombia alone). It is difficult to obtain reliable statistics on marital breakdown in these areas. Statistics for many African nations are not reported to the U.N. In South America populous nations such as Argentina, Brazil, Chile, and Colombia do not have legal provision for divorce as it is generally understood. Yet for Central America there were 51,003 divorces reported in 1975, and those nations having civil divorce in South America reported 9,490. Given the sizeable proportion of Catholics in these areas and the likelihood that marital breakdown does not vary appreciably within the same cultural milieu despite national boundaries, the absence of tribunals constitutes a serious hardship for people who have a right to have their nullity petition heard. Fernando Retamal reports on cultural and historical factors which make the administration of justice by a canonical process "lenta y carente de estimulos" in much of Latin America, in "El Derecho Canonico en la Actualidad Latinoamericana," II Diritto Ecclesiastico89 (1978): 220-240; see the cost of training other personnel is affecting many areas of the Church today. Despite repeated appeals by bishops and by the Apostolic See to use the external forum procedures of the tribunal to resolve the conflict situation in regard to a new marriage in the Church, it is physically impossible for a great majority of Roman Catholics to have access to a tribunal." Instead of addressing this situation, the reform of procedural law may actually make matters worse."6 The ExtraordinaryForm of Marriage It has been argued that a couple in the conflict situation-that is, where the previous marriage was objectively invalid but this cannot be declared in the competent ecclesiastical forum-are really free to marry. If, as indicated above, most Catholics are not able to have access to a tribunal, are they not in the same situation as those for whom a priest is morally unavailable even though he may be physically present? If so, they could marry according to the extraordinary form provided by canon 1098. John T. Catoir has been the most public advocate of this alternative.57 He argues a priest is impeded from witnessing such a wedding by canon 1069, § 2; i.e., even though a prior marriage was invalid it is not permitted to enter a new marriage until the invalidity of the prior one has been legitimately and certainly established. Just as the civil law may forbid a priest to witness a marriage (as in certain anti-religious regimes), so the canon law here may forbid a priest to witness a marriage. In either case, the couple do not thereby lose their natural right to marry. especially pp. 233-235. " For example, despite their pastorally sensitive appeal to use the judicial forum the bishops of the Ivory Coast reported no cases processed in 1975. The eight pending at the beginning of that year were unresolved at the end of the year. Annuarium Statisticum Generale 1975, p. 233. Navarrete claims, p. 338, that conflict situations are quite rare. But he approaches the issue theoretically and fails to consider the practical conditions in which people do not have access to a Tribunal. Lacking this external forum to declare the nullity of a previous marriage, they are ipso facto in the conflict situation no matter how perfected technical jurisprudence may be, for it is factually not available to them. Given the number of affirmative decisions where Tribunals are operating, it is reasonable to conclude that where they are not operating a like percentage of worthy petitioners are being put in the conflict situation. As is evident from the statistics, this is not rare; quite the contrary! See Green, "Marriage Nullity Processes," pp. 404-410, where he also briefly surveys alternatives to the current tribunal system. " John T. Catoir, "When the Courts Don't Work," America 125 (October 9, 1971) 10:254257. Alcuin Coyle and Dismas Bonner propose a similar approach in The Church Under Tension (New York: Catholic Book Publishing Co., 1972), pp. 82-83. For discussion of the extraordinary form see Pietro Cardinal Gasparri, Tractatus Canonicusde Matrimonio (Vatican City: Typis Polyglottis, editio nova ad mentem codicis I.C., 1932) II: 134-142; and Henri Wagnon, "La forme extraordinaire du mariage canonique." L'Annge Canonique 15 (1971): 557-575. On the other hand, the civil law in France clearly does not permit a religious marriage prior to a civil one. The guidelines issued so far have made it quite clear that the pastoral practice of "welcome" must not be presented as a new marriage in the Church. The noted French canonist Jean Passicos observes that the most one can do at this stage is see what the experiences produce, especially in the light of the extreme circumstances which these efforts attempt to face. s8 Attempts to resolve the question of remarriage for couples in intolerable marriage situations have been serious and to some extent successful in this past decade. There is a consensus that remarriage in the Church is significant and should be made possible in ways consistent with Church tradition. Differences exist over the interpretation of that tradition, and how to apply it in various types of cases. At the same time, other questions have surfaced and some traditional issues are appearing in sharper relief. What follows is only a brief indication of some of the more significant questions to this canonist. First, what is the meaning of marriage? s" Developments in jurisprudence and insights from historical studies have challenged the positions of standard manuals from the first half of this century. The theology of marriage developed by twelfth century theologians and canonists is now appreciated as a rich but culturally-conditioned understanding. Is it truly universal, and is our way of understanding it lure divino? The question is asked with increasing seriousness by people knowledgeable in the traditions and values of peoples in Africa and Asia. It has canonical significance in clarifying the meaning of the marriage "bond" and the consequent nature of the impediment of ligamen.90 Second, the Church clearly has a teaching from Jesus that marriage is indissoluble. It is an unconditional teaching even when the Matthean exceptions are taken into account. How can the Church best proclaim that teaching today? It has already made notable exceptions to it in canonical practice, including the Pauline Privilege and dispensations of non-consummated sacramental unions. Such exceptions have been made to maintain the integrity of the teaching in changing circumstances. Given the dramatic shift in social circumstances in this century, what adaptations in canonical practice are called for in order to maintain Jesus' teaching as realistically as it has been proclaimed in past ages? Third, have we reached a limit in the traditional means for resolving the question of remarriage? The tribunal system is only partially functioning and indications are it will not improve. Persons with a legitimate petition have a right to an answer from the Church community; increasingly, they are unable to obtain one. A system developed in medieval Christendom is faced with new population, cultural, and social situations never dreamed of by its architects. The call for serious work to develop alternatives have been sounded in the past decade, but it appears the revision of the Code is not attending to that call. There may be grave consequences to Christian life if something is not done to face this call before long. IV. RECEPTION OF PENANCE AND THE EUCHARIST If the couple's new marriage has been witnessed in the Church there appears to be no special restriction on the reception of these two sacraments. Their situation is the same as any other Catholic married in the Church. But if their new marriage has not been recognized in the Church, are they necessarily excluded from these sacraments? This question has been a major issue during the past decade. To understand it better, I will first sketch a brief chronology of developments in the decade, then analyze the conflict and hardship situations. I will conclude by suggesting some issues which seem to remain. A Chronology of the Discussion The decade opened with the theological community discussing the possibility of admitting divorced and remarried persons to the sacraments of penance and the Eucharist. For example, a committee of the Catholic Theological Society of America proposed admission under limited circumstances. A similar proposal was submitted to the French bishops by the Association de thgologiens pour l'tude de la morale." A practical step was taken in the diocese of Baton Rouge, Louisiana to permit access under specified conditions in the conflict situation when Bishop Tracy issued procedures for "Good Conscience Cases" in 1972. Official reaction was swift. At the direction of the Apostolic See, Cardinal Krol issued a statement criticizing. the Baton Rouge procedures for confusing various types of situations, calling for observance of existing discipline, and publicizing the fact that the American bishops already had a study underway to address these issues. Bishop Tracy suspended his procedures pending resolution of the question at a higher level, expressing encouragement at the fact the Conference was studying the question."2 The results of the study by the N.C.C.B.'s Committee on Pastoral Research and Practices have not been made public. The Committee did submit a report shortly after the Baton Rouge incident, but the Administrative Committee sent it to the Congregation for the Doctrine of the Faith prior to submitting it to the bishops. The document has not surfaced since then, even for confidential debate. At the same time, proposals for practical changes were being discussed at the various Synods taking place in Austria, Germany, and Switzerland. The German Synod considered a proposal to admit some remarried divorced persons to the sacraments under certain conditions by a pastoral determination at the local level. 3 The bishops, however, forestalled action on the proposal by issuing a statement in 1972 calling for observance of current discipline until a decision could be made in concert with the universal Church.94 The Swiss diocesan synods were generally in favor of a change in the same direction, with perhaps the aid of a diocesan family commission or council beyond the parish level. Again, the bishops' conference indicated it could not act independently of universal discipline in this matter.91 The major public involvement by the Apostolic See in this development occurred on April 11, 1973 when Cardinal Seper sent a letter on behalf of the Congregation for the Doctrine of the Faith to the heads of episcopal conferences. The letter addressed both the discussion on indissolubility and the issue of admitting divorced and remarried persons to the sacraments."6 For purposes of this study it is the latter issue that has 92 Bishop Robert Tracy, "Divorce, Re-marriage and the Catholic," Origins 2 (July 27, 1972) 8:130-136; Cardinal Krol, "On Good Conscience Procedures," Origins 2 (September 7, 1972) 11:176-177. Several officials issued statements, some of which noted the confusion in the Baton Rouge text; Origins 2 (October 12, 1972). 93 Franz Bockle, "Christliche gelebte Ehe und Familie" in Gemeinsame Synode der Bisturner in der Bundesrepublik Deutschland, Officielle Gesamtausgabe (Freiburg: Herder, 1976) 1:411-413. For an overview of the synodal activities of various European countries see Bernard Franck, "Les experiences synodales apr6s Vatican II." Communio [French edition] III (May, 1978) 3:64-78. D.C. no. 1607 (April 16, 1972) 69:396. Ludwig Kaufmann, "Finden die Schweizer Synoden zueinander?" Orientierung 37 (March 15, 1973) 5:58-60. Idem. "Uber die 'Bewihrte Praxis' hinaus," indicates the Austrian experience was similar in calling for more pastoral understanding of remarried divorced persons. C.L.D. 8:631-632 gives an English translation by the Canadian Canon Law Society. special significance. The letter rejects what it describes as a denial of the church's traditional teaching on indissolubility and claims such denials have led to "abuses against current discipline on the admission to the Sacraments of those who are living in irregular unions." It goes on to clarify current discipline in its concluding paragraph. In regard to admission to the Sacraments, the Ordinaries are asked on the one hand to stress observance of current discipline and, on the other hand, to take care that the pastors of souls exercise special care to seek out those who are living in an irregular union by applying to the solution of such cases, in addition to other correct means, the Church's approved practice in the internal forum.9 The "correct means" are usually presented as separation, return to the previous spouse, or a declaration of nullity of the previous marriage followed by validation of the present union. 98 Dissolution and dispensation would also be included in this latter category. The meaning of "approved practice in the internal forum" has not been so clearly agreed upon. Various efforts have been made in response to this phrase of the lbtter. For example, the United States bishops sent a formal inquiry to the Congregation to clarify its meaning. After two years of repeated inquiry the Congregation replied on March 21, 1975 through a letter from its Secretary, Archbishop Hamer. He explained the phrase is to be understood in the context of traditional moral theology. Specifically, the couples under consideration may be allowed to receive the sacraments on two conditions. One is that they try to,live according to the demands of Christian moral principles. The other is that they receive the sacraments in churches in which they are not known so they will not create any scandal.9 9 It should be noted that his response did not distinguish conflict from hardship situations. American efforts have focused only on the conflict situation as fulfilling these conditions. The bishops have attempted to develop a national policy to assure some uniformity of practice, but have twice been rebuffed by the Apostolic See. In 1976 a confidential working paper developed by the Committee on Pastoral Research and Practices was discussed for a full day at the November N.C.C.B. meeting but intervention from higher authority precluded any action. The proposal had sought to standardize '* Translation is from the N.C.C.B. translation circulated privately to bishops in the United States, with correction of "rights [sic] means" to "correct means" for the Latin recta media. 8 See Felix M. Cappelo, Tractatus Canonico-Moralis de Sacramentis, Vol. V De Ma trimonio (Turin: Marietti, 1947), p. 841; and Charles Lefebvre, "Actes recants du SaintSiege," L'Annee Canonique 18 (1974): 261. " See note 31, above. internal forum practice by having all such situations referred to the bishop or his delegate. He would have to arrive at moral certitude that the couple were in the conflict situation before they could be admitted to the sacraments. An indirect Roman reply to this pointed out that such moral certitude could be achieved on the same basis by tribunals and did not constitute an internal forum solution. 0 0 The second attempt by the Committee on Pastoral Research and Practices, was developed on the confidential report to the November 1979 meeting of the Conference. Intervention from higher authority precluded any discussion of the document at all. It would have provided reflections to aid bishops instruct their priests privately on the use of the "internal forum." Like the first paper, it restricted the application of internal forum solutions to the conflict situation only. Response from the German-speaking countries was marked by the continuing work of their Synods at the time. The West German Synod concluded in 1975 and agreed to formulate a votum asking the Apostolic See to change current discipline. No distinction was made between conflict and hardship situations.'0 ' Similarly, the bishops in Switzerland agreed to press for a change by the Apostolic See, especially when the accepted interpretations of existing discipline were explained as either the conflict situation or a "brother-sister" arrangement for those in the hardship situation. Austrian bishops directed their Pastoral Commission to seek further clarification from Rome after first debating an interpretation which focused on the conflict situation.' 0 ' A special study commission of the various German-speaking episcopal conferences met in 1975 and developed a coordinated request in the light of these synodal actions. The request was submitted confidentially to the Apostolic See in the same year.01 In France the Episcopal Commission on the Family avoided the issue of sacraments, but addressed Cardinal Seper's directive for a more open welcome to persons in irregular marital situations. The Commission's booklet Communautes chr~tiennes et divorces remaries does not distinguish conflict and hardship situations, but it does encourage a broad based pastoral action of "welcome" and social involvement by the Christian community.'0 4 I" On June 3, 1977 the N.C.C.B. Committee on Pastoral Research and Practices circulated an unofficial translation of Cardinal Felici's address cited above, note 44. 101 B6ckle, pp. 413-414; text of the Synod's position, ibid., pp. 449-454. "' See D.C. no. 1671 (March 2, 1975) 72:223: and Orientierung 37 (June 30, 1973) 12:137, and 38 (May 15, 1974) 9:97. 103 Bockle, p. 422. The text of their request has remained confidential. ' Commission episcopale de la famille, Communaut~s chrktiennes et Divorces r~maries (Paris: Ed. du Cerf, 1974). The episcopal conference in Canada and the bishops of England and Wales have studies underway on this issue.10 5 The Italian bishops' conference issued a statement in 1979 developed by its commissions on the family and on the doctrine of the faith which not only did not distinguish the conflict and hardship situations, but limited the approved internal forum practice to the brother-sister arrangement.106 There are indications, both published and confidential, that the Congregation for the Doctrine of the Faith is continuing to study the issue.107 In the meantime canonists, theologians and pastors of souls are left with the difficult task of interpreting the "approved practice in the internal forum." An analysis of the conflict and hardship situations will illustrate how difficult this can be. The conflict situation involves a couple in a subsequent marriage not recognized by the Church but who are objectively free to marry because of the nullity of the previous union(s). This situation has been reported as an acceptable interpretation of the approved practice in the internal forum.108 That it is such can be concluded from no less an authority than Cardinal Gasparri. He held that if the first marriage is unknown in the area and was certainly null in the judgment of the Ordinary, the couple are not to be disturbed in their present marriage "in foro interno."1' 9 Whether such a determination has to be restricted to the Ordinary is disputed. For example, Navarette's proposal would permit such a judgment by the parish priest in agreeing to witness a new marriage in the conflict situation; it would also seem to imply he could make this judgment for these sacraments as well. The C.L.S.A. Report proposed that confessors could make the determination in the sacramental internal forum. Since the internal forum is not limited to bishops but may be utilized by others within the scope of their jurisdiction, these other applications appear justified at least in theory. 106 Francis G. Morrisey reports the Canadian effort also involves a study by the Canadian Canon Law Society; see his "The Development of Canon Law in Canada Since the Second Vatican Council," II Diritto Ecclesiastico 89 (1978): 192-196. A special Working Party has been researching the issue in England in recent years; see Clifford Longley, "A reticence of bishops," The Tablet no. 7273 (December 1, 1979) 223: 1170. ,ooD.C. no. 1769 (August 5-19, 1979) 76:715-722. 107 So reports Mgr. Boillon, bishop of Verdun, in D.C. no. 1737 (March 5, 1978) 75: 244-245. See also the report of conversations by Swiss bishops with Archbishop Hamer, D.C. no. 1696 (April 18, 1976) 73:397. ,08Kaufmann, "Uber die 'bewahrte Praxis' hinaus." ,01Gasparri, 1:345-346. Could the couple themselves make the determination? This is a more difficult question. There is no way of knowing that couples are not resolving their conflict situation for themselves in areas where their condition is unknown. The proposals developed by the American bishops would require some third-party determination. The synodal proposals in Europe imply at least the involvement of a confessor or pastor, and most of the literature which supports this approach presumes some outside involvement to aid the couple evaluate objectively whether the facts are present to indicate they are in the conflict situation. Canonically, if the couple act on their own their action is not strictly an "internal forum" solution since no act of jurisdiction is involved. The two conditions indicated by Archbishop Hamer appear to be verified in the conflict situation. The first condition is that the couple try to live according to the demands of Christian moral principles. Traditionally these principles are concerned with protecting the rights acquired by both parties in matrimony, and with the licit use of sex which is limited to marriage. Objectively, it can be argued, the couple in a conflict situation are not in a state of sin on either count. A valid bond is required to acquire the rights of marriage, no valid bond existed, so there is no violation of another's rights in the present marriage. Moreover, the present union can be based on true marital consent even if it is not recognized canonically. Gasparri argues the consent is efficacious in these circumstances. 1 ' Sexual activities of the couple would not be the same as extra-marital acts; objectively speaking they would be marital acts even though not recognized as such in the Church's legal order. Provided the couple were observing in all other respects the moral standards of the rest of the Catholic community, their access to the sacraments could not be denied for failing to try to live according to Christian moral principles. The question of scandal is Hamer's second condition. Those who fail to distinguish the conflict and hardship situations find this an overpowering reason to exclude all remarried divorced persons from the Eucharist. Permitting couples to receive the sacraments who were previously married could weaken the respect of the rest of the community for the Church's teaching on indissolubility.' Those who see the conflict situation as a distinct type of case argue that scandal here must be weighed in the light of actual publicity, not just the potential of people finding out about the situation. A parallel is made with declarations of nullity or dispensations and dissolutions. In practice these are not publicized, yet formerly married persons are now 11 However, he holds it to be sinful to enter marriage in such a way: "In his casibus adest verus matrimonialis consensus . . . licet hic consensus sit semper graviter peccaminosus; . . . sit efficax, si impedimentum dirimens est putativum tantum" (11:31). "I Cardinal Hoffner argues this way; D.C. no. 1628 (March 18, 1973) 70:265-267. validly married (often in a quiet ceremony) and return to the sacraments without causing scandal. Personal rights have importance in the Church; those in a conflict situation are considered to have a solid basis for urging their rights to the sacraments."" Richard McCormick indicated that by the middle of the past decade it was generally accepted that the conflict situation is a legitimate interpretation of the "approved practice in the internal forum." A similar evaluation was made three years later by William May."' But practical difficulties remain in determining who actually is in a conflict situation. Although some dioceses have provided oral or written guidance to their priests, this is an area requiring special attention to pastoral prudence. 1" C. The crux to resolving intolerable marriage situations is the hardship situation. The validity of the previous marriage is not doubted in this case, but in a subsequent marriage the parties still desire to participate in the sacraments of penance and the Eucharist. For those who distinguish the two situations this has proven the more difficult to resolve. For those who fail to distinguish the two situations it serves as the major focus of attention. There are traditional internal forum practices for addressing the hardship situations, especially the brother-sister arrangement and dissimulation. Broader alternatives have been suggested in recent years. The following is a brief review of the various possibilities. 1. Brother-Sister Arrangement The most traditional solution to the hardship situation is to require the couple to separate and, if possible, return to the prior spouse. In extreme cases and very rarely, they could be permitted to continue to live together as brother and sister without sexual relations, and to receive the sacraments under certain conditions designed to avoid the danger of scandal.115 " The C.L.S.A. Committee on Alternatives to Tribunals argues this way in its 1975 final report, pp. 165-169; see also Zirkel, pp. 44-45. ...See above, note 36. .14Doubts about determining in practice who is in the conflict situation are expressed by Gagnon, p. 243. Charles Robert studies the prudence this requires in "Est-il encore opportun de priver des sacraments." pp. 168-175. Guidelines have been issued to clergy to aid in making this prudential judgment in some American dioceses. For example, see those of Beaumont published in Divorce (Spring, 1979): 3-4. "" Cappello, p. 841; Th. M. Vlaming, PraelectionesJuris Matrimonii ad Normam Codicis luris Canonici,ed. L. Bender (Bussum: Paulus Brand, 4th ed. 1950), p. 519: Lefebvre, "Actes rcents," (1974), p. 261. The brother-sister arrangement was spoken of by moralists even in St. Alphonsus' time although the terminology of "brother-sister" appears to have come into official usage somewhat later."' The then Monsignor John Kr6l in 1950 presented the first public discussion on this topic in the current concern over persons in hardship situations. In reporting on the formalized procedure adopted in the Cleveland diocese he stressed that brother-sister permissions were granted only as a last resort when separation was not possible, it was necessary for the couple to continue living in a proximate occasion of sin, and there was no danger of 1 17 scandal. Bernard Sullivan's lengthier study examines several aspects of these conditions."18 (a) There must be no other solution. (b) There must be no actual or virtual danger of scandal. This condition leads Sullivan to distinguish formally and materially public cases from those which are formally public but materially occult, and those which are both formally and materially occult. Usually the couple will be required to move to another locality in the first instance, but under exceptional circumstances they may be permitted to stay where they are. In both of the other cases they need not move. (c) There must be no voluntary proximate occasion of sin. (d) A proportionate reason is needed. (e) Sullivan also requires permission of competent authority but notes that not all cases need be referred to the Ordinary as Kr61 recommends.. Several observations can be made concerning this arrangement."' First, as St. Paul (I Cor. 7:5) and the constant teaching of moralists stress, this arrangement should be used with great caution. Paul even recommends not remaining apart for too long a time, something the brothersister arrangement demands as a necessary precondition. 20 Second, it is not clear that this is truly an "internal forum" solution. Kr6l recommended an external forum procedure although it was administrative rather than judicial. Sullivan would permit either an internal or an external forum approach. It is difficult on this score to agree with com116 St. Alphonsus, no. 905, pp. 38-39; Response of the Congregation of the Holy Office, March 8, 1900: Fontes C.I.C. VI: 522-523, no. 1236. '" John Kr6l, "Permission to Parties Invalidly Married to Live as Brother and Sister," THE JURIST 11 (1951): 7-32. The article is based on a talk to the 12th annual meeting of the C.L.S.A. 118 Bernard 0. Sullivan, Legislation and Requirementsfor PermissibleCohabitationin Invalid Marriages,Canon Law Studies, 356 (Washington, D.C.: Catholic University Press, 1954), especially pp. 81-136. "I Ryan provides a perceptive critique, p. 531-534. 12OSullivan, pp. 117-124, lists the various reasons given by moralists for permitting the arrangement. The couple must be willing to forego voluntary occasions of sin and the presumption seems to be they are prepared to renounce sexual relations for the rest of their lives together. mentators on the April 11, 1973 letter of the Congregation who hold the brother-sister arrangement to be the only meaning of the "approved practice in the internal forum." ' Third, the current teaching of the Magisterium on the nature of marriage and marital consent raises serious questions about the basis for the brother-sister arrangement. When marriage was considered a contract for acts per se apt for the generation of children (as it appears in canon 1081, § 2), continued cohabitation could be permitted provided there was no violation of the rights to which a previous spouse still had claim in virtue of the prior contract-namely, sexual relations. 2 2 Now, however, the right to a community of life and love is considered within the object of the marital consent.1 2 8 This element of mutual love and support is urged as an important element of the brother-sister arrangement even in the recent statement of the Italian bishops, yet it amounts to an equal violation of the rights to which the previous spouse is entitled when those rights are considered in the light of current Church teaching. The following dilemma results. Either the brother-sister arrangement is permissible, or it is not. If it is permissible, why should the violation of the previous spouse's rights be limited to violating the right to a community of life and love? What is to prohibit, on these grounds, continued sexual relations in the subsequent marriage? If violating the rights of the previous spouse to a community of life and love is not permissible, then the brother-sister arrangement should no longer be considered as living according to Christian moral principles and should not be described as an "approved" practice. Dissimulation In contrast to dispensations or even toleration, dissimulation is a specifically internal forum solution. Dissimulation is a knowing act on the part of someone in authority who pretends to ignore something illicit which is going on, in order to avoid a greater evil which might result if the authority took action."2 ' This is even more than a so-called "economic "' Lefebvre, "Actes r~cents," (1974), p. 261, identifies the brother-sister arrangement as the only acceptable meaning of internal forum practice. Navarrete, "Conflictus" pp. 340-345, while not using the "brother-sister" terminology, describes this type of relationship as the only acceptable one for hardship situations or cases where the doubt about validity cannot be resolved to put the couple in the conflict situation. See Kr6l, pp. 19-22; Sullivan, pp. 126136. "' St. Alphonsus, nos. 905-906, pp. 38-40; Antonius Ballerini, Opus Theologicum Morale, ed. Dominicus Palmieri (Prati: Giachetti, Filii et soc., 1892) VI: 319-324, where this principle is applied in cases of presumed death. "' David E. Fellhauer, "The Consortium omnis vitae as a Juridical Element of Marriage," Studia Canonica 13 (1979): 7-171. "" Dictionnaire de Droit Canonique, s.v. "Dissimulation" by Charles Lefebvre, IV, col. silence" and sometimes implies more than leaving persons "in good faith." Charles Lefebvre presents the hardship situation as the most frequent case for dissimulation today in the sense that the authorities do not require the couple to break up. The Code clearly permits this. Canon 2356 qualifies divorced and remarried persons as bigamists and authorizes the bishop to punish them even with excommunication and personal interdict if they do not separate. However, the canon does not require the bishop to act and does not limit his options to dissimulate on the basis of the conflict or hardship situations. The general practice in the Church for more than the last decade has been to dissimulate even in regard to hardship situations, permitting the couple to remain together. Does this also apply to the reception of the sacraments by persons in hardship situations? Traditional authors require that the couple be in good faith in order for the authority to dissimulate.2 5 It may be questioned if most people in the hardship situation would be considered by such authors to be in good faith in the classical sense. They have knowingly entered a second union while at the same time they consider their previous one to have been valid. Yet the bishops do dissimulate with regard to the second marriage in these cases despite the position of the classical moralists, and a more nuanced position seems to be reflected in the Code. In regard to the Eucharist canon 855 requires those who are publicly known as unworthy to be turned away. These are listed in § 1 of that canon as persons who are excommunicated, under interdict, or manifestly infamous. Persons who are "occult" sinners are to be admitted if an attempt to turn them away publicly would lead to scandal. This is dissimulation, for it presumes the priest knows the persons who are occult sinners to be unworthy, but he must pretend he does not in order to avoid the greater evil of scandal. Would the same apply if the couple's situation is known in the community but admitting them to the sacraments would still not cause scandal? This is not covered in the Code and certainly was not foreseen by the traditional authors. Yet in some places today this is the situation. It has led to a call for alternatives to the traditional solutions. Few persons can live the brother-sister arrangement and moralists 1296-1307; Giuseppe Olivero, Dissimulatio e tolerantia nell'ordinamentocanonico (Milan: Giuffre, 1953): Carulli,pp. 418-422, where he applies it even to the remarriage of divorced persons in the Church. '0 Lefebvre, "Dissimulation," col. 1297; Cappello, p. 841; Vlaming, pp. 519-521. have wisely cautioned to restrict its use to extreme cases. Dissimulation may have been effective in a time of relatively few and isolated cases. The situation has changed today and seems likely to continue with many more persons in intolerable situations than ever before. Widespread dissimulation under these circumstances cannot fail to have an impact on the Catholic community. To be faithful to the Catholic tradition those who propose alternatives must meet the two criteria recalled by Archbishop Hamer. The parties must try to live according to the demands of Christian moral principles; all danger of scandal is to be avoided. The debate over alternatives can be studied from these two perspectives. a. Live according to Christianmoral principles.Those who uphold the current practice argue that persons in the hardship situation are living in a state of sin. Even if they are not subjectively aware of it, their condition is at least a grave material sin and is incompatible with access to the sacraments. The most recent and widely publicized statement of this position may be found in the theses published in 1978 by the International Theological Commission. Remarried divorced persons are adulterers, contravene divine law, and are in a state incompatible with the paschal mystery.1 " The Commission sees their situation as calling for a life of penitence rather than ready access to the sacraments, even though the theologians also called for a more open pastoral approach by the Church to such persons. ' Fundamentally those who hold this position consider the teaching by Jesus on indissolubility to be a revelation. Against this there can be no talk of a subjective right to the Eucharist. In effect, people in hardship situations are heretics, as indeed Gasparri considered them for their denial in practice of the teaching of Jesus and the Church."'8 Others urge a distinction between formal and material sin. They recognize that persons in an objectively irregular union may not be in a subjective state of sinning and argue that at least on this basis they should not be denied the possibility of access to the sacraments. The couple may not formally reject the teaching on indissolubility and many divorced people deeply regret the hardship situation in which they find themselves. Bishop Le Bourgeois wondered whether a life of imposed penance in the area of sexual relations is really the proper response by the Church, or whether some other penance might be more appropriate for such 120 Thesis 5. 1-3; see also the Italian bishops' statement cited in note 106, above. 127 Delhaye makes this clear in his commentary, D.C. no. 1747 (August 28, 1978) 75: 717718. 18 Franz Reckinger argues this position forcefully in "Wiederverheiratete Geschiedene eucharistiefihig?" MUnchener Theologische Zeitschrift 24 (1973): 36-54; idem. "'Verjihrung' der ungiltigen Ehe?" ibid: 115-138. See also Gasparri, I: 344. persons."' Canonically it is argued that the situation is more complex than may appear from official statements such as those of the Bishops of the Ivory Coast, the final text of the German Synod, or the theses of the International Theological Commission. A 1975 report to the C.L.S.A. and studies by Heribert Heinemann, Anthony McDevitt, and Adam Zirkel review canons 2356 and 855.180 The law, they note, characterizes remarried divorced persons as bigamists rather than adulterers. Their relationship does have some elements of marriage to it and the couple might even have exchanged naturally sufficient but canonically inefficacious matrimonial consent.' 8' The law does not include them with adulterers and those living in concubinage (canon 2357, § 2). Bigamy is a distinct basis for the impediment of public decency (canon 1078) and unlike adultery or concubinage it provides the basis for a possible sanation in the future. Bigamists are legally infamous. Infamy at law does entail exclusion from certain legal acts, but it does not necessarily exclude one from the Eucharist. Canon 855, § 1 is clearly to be enforced only against those who are manifestly infamous. The degree of publicity is a major factor in determining the impact of infamy on access to the sacraments: persons who are legally infamous but not reputed to be infamous in the area may exercise their right to the Eucharist stated in canon 853 provided, of course, they are not conscious of a grave mortal sin (canon 856). Whether remarried divorced persons fulfill all the requirements for a grave mortal sin cannot be determined in the law; it is a question of fact, not principle, as Zirkel points out.'8 " Even if people in the hardship situation are considered to be material heretics, the exclusion by canon 731, § 2 of heretics or schismatics in good faith has been changed to admit them to the sacraments under certain conditions even though they have not been fully reconciled with the Church. 3 3 On this basis it is difficult to see how every person in the hard"' Robert, pp. 158, 161-167; Lehmann, pp. 223-225; McCormick, "Indissolubility and the Right to the Eucharist," pp. 30-32; Charles-Marie Guillet, "Divorces remari~s et communion eucharistique," Le Supplement no. 130 (1979) 32:355-364; Le Bourgeois, "Note jointe" and "Divorc6s remari6s. Quelques pr6cisions" cited in note 86, above. S0 In addition to the studies cited earlier, see Heribert Heinemann, "Die Teilnahme wiederverheiratet Geschiedener an der eucharistischen Tischgemeinschaft als Frage an das kanonische Recht," Theologie und Glaube 66 (1976): 161-177; and Anthony McDevitt, "Excommunication and the Right of Catholics in Second Marriages to the Eucharist," Catholic Mind no. 1313 (May, 1977) 75:43-51 (also in Young, pp. 85-94). "I'Gasparri argues this point in 11:31-32. See also Antoni Goseimski, "Przestepstwo Bigamii w Kodeksie Prawa Kanonicznego (Kanon 2356)," ["Le d6lit de la bigamie dans le Code de Droit Canonique (Canon 2356)"], Prawo Kanoniczne 16 (1973): 297-320. '" Zirkel, p. 49. ...Secretariat for Promoting Christian Unity, "InstructionIn quibus rerum circumstatiis, June 1, 1972: A.A.S. 64 (1972): 518-525; C.L.D. 7:583-590. ship situation would necessarily be excluded from the sacraments. Assuming that some people in the hardship situation may be trying to live according to Christian moral principles, some authors have proposed criteria to help determine who should be permitted access to the sacraments. In 1973 S6amus Ryan summarized the criteria developed by then as follows. (1) Admission to the sacraments must not be understood as questioning the truth of the indissolubility of Christian marriage. (2) When the breakdown of the first marriage involved grave fault this responsibility must be acknowledged and repentance shown for the sin. (3) The first marriage must be irreparably broken for both parties and a return to the first partner is truly impossible. (4) The second relationship must be an established marriage evidencing what some authors term a "marital state of mind." (5) Both parties must evidence an earnest desire to live a full Christian life. (6) The ultimate decision must lie with the people directly concerned, aided by a responsible priest who will help evaluate particularly the question of scandal.'" In a 1974 proposal formally endorsed by the editors of America Charles Whelan offered four criteria."3s (1) The first marriage is irretrievably lost. (2) The present methods of official recognition of the present marriage are unavailable. (3) The parties to the present marriage have demonstrated by their lives that they have a sincere desire to participate fully in the life of the Church. (4) There are solid grounds to hope the present marriage will be a Christian one in all respects other than that it cannot yet be officially recognized in the Church. Whelan did not distinguish conflict and hardship situations, though some have considered his criteria to be limited to conflict cases. The C.L.S.A. Committee on Alternatives to Tribunal Procedures clearly had the hardship situation in mind (though its proposal could aid in resolving the conflict case as well) when it submitted four criteria in 1975. (1) The previous marriage is irretrievably broken and reconciliation is impossible. (2) Obligations incurred by virtue of the previous marriage are accepted and responsibly discharged. (3) Obligations arising from the current union are accepted and responsibly discharged. (4) Willingness to live the Christian faith in the ecclesial community is apparent."3 ' Procedures to apply these criteria to individual cases are also proposed by the C.L.S.A. committee. They include three elements: (1) the decision be made by the pastor or other pastoral minister; (2) the decision be recorded in the parish records and a copy be made available upon legitimate request; (3) in the event of an adverse judgment at the parish level, the right to appeal a decision on communicant status be assured through appropriate channels of recourse.137 It should be noted the C.L.S.A. committee did not present its proposal as an internal forum solution. Yet, it could be adapted to that forum since it involves an exercise of jurisdiction at a level appropriate to the authority of the pastor and could be conducted in an occult manner. Other internal forum actions are recorded, although in special secret record books (e.g., canon 1107 requires this for marriages of conscience). Even the question of appeal can be carried out in the internal forum. Provisions for this exist all the way to the Apostolic Penitentiary (canon 258, § 1). b. Scandal. While the law does not judge the inner state of conscience it is the duty of the pastor to safeguard the life of the community from danger of grave scandal. This is the second major concern in the current debate and ultimately may be the most crucial element. Cardinal Felici, for example, indicates it is a major consideration in any discussion of extending the dispensing power of the Church in regard to marriage. It has been a major question in expanding opportunities for eucharistic hospitality for non-Catholic Christians and is a determining factor for numerous provisions in law.'" What is the potential for scandal? Cardinal Hoffner cites several typical possibilities. It would seem the Church is giving up its teaching on indissolubility if remarried divorced persons are admitted to the sacraments; people would be disturbed in their faith, a definite type of scandal. Those who have patiently maintained the Church's teaching in their style of living would feel betrayed. It would prove a grave crisis in conscience for numbers of priests and faithful.3 9 The Pontifical Commission on the Family and Delhaye's commentary on the theses of the International Theological Commission reassert these possibilities. They are not to be considered lightly. In fact, any action taken even by tribunals in the external forum ought not to prescind from these potential consequences. But are they sufficient to block all access to the sacraments by remarried divorced persons? Experience indicates an answer must be sought with caution. For example, what is the impact on the community of external forum 137 Ibid.: 173. "' Dictionnaire de Droit Canonique, s.v. "Scandale" by R. Naz, VII, col. 877-878; Felici, "Indissolubilitadel matrimonio," p. 178; Secretariat for Promoting Christian Unity, "In quibus rerum circumstantiis,"no. 4. Under canon 2222, § 1, danger of scandal is sufficient reason for the superior to impose a penalty even without due process. Waldemar Molinski raises theological and ethical questions about such a possibility in Sacramentum Mundi (New York: Herder & Herder, 1970), s.v. "Scandal," 6:1-5. ,9 Hoffner, pp. 266-267. determinations permitting remarriage in the Church? This applies equally to tribunal decisions of nullity and to dispensations and dissolutions of prior bonds. It even should apply to the remarriage of persons whose former marriage lacked the required canonical form. The question of confidentiality, moreover, has become crucial in many of these cases at least in North America. As a result the parish community at large often does not know what determination was made by the Church authorities or even that one was made. Nevertheless there does not seem to be significant danger of scandal because people have generally been informed that the Church has procedures for deciding such matters even though the particulars of individual cases are not publicized. Similar publicizing of the possibilities of internal forum solutions has been proposed by Zirkel and others as one way of resolving the current dilemmas at the parish level. " The experience in Baton Rouge and the Vatican's intervention regarding the N.C.C.B. proposals may indicate a reluctance by higher authorities to see such publicity carried out officially. The question of scandal with regard to the sacrament of Penance does not seem appreciable. Not only is this an internal forum matter, it is also protected by the seal of confession. Concern has been voiced by the Congregation for the Sacraments and Divine Worship over celebrations according to the third form in the revised ritual, since these involve general absolution and could give the impression that remarried divorced persons are fully reconciled in them. 41 This does not rule out, however, access to the more usual form of celebrating the sacrament individually. Even those who oppose admission to sacramental absolution urge remarried divorced people to take advantage of communal penitential services. 14 2 Reception of the Eucharist raises more significant questions of publicity and notoriety. This applies both to the notoriety of the persons receiving the sacrament and the public manner in which they receive it. Archbishop Hamer's letter makes a specific issue of this point. While it may be difficult to achieve the proper relationship between individual good and the common good, in the matter of the Eucharist personal spiritual good may have to cede to the "communion" of the community which this sacrament effects with the Lord and with each other as Christ's Body. If it were to disrupt that communion, reception by remarried di,40 Zirkel, pp. 53-57. 141 See Letter of the Prefect dated March 25, 1977 and response dated April 26, 1977 by Bishop Dozier of Memphis, C.L.D. 8: 556-561. ' For example, the French bishops in Communaut~s chrktiennes, p. 29, and the Italian bishops' 1979 statement, p. 718, recommend participation at communal penitential services but not absolution for remarried divorced persons. vorced persons would hardly be admissable. This, however, is a question of fact and not of legal notoriety; it should be judged in individual cases. 143 D. Admissions of even some remarried divorced persons to the sacraments of penance and the Eucharist is not yet a general pastoral practice. Whether it will become so remains to be seen. There are several unresolved issues, including the following three which seem especially significant to me in the light of the foregoing review. First, Cardinal Felici suggests the reason why the Church acts in a particular case may be especially significant.4 This has certainly played a key role in developing the current range of dispensations and dissolutions. It can be presumed to be significant for any broadening of the cases to which an internal forum practice may be applied. The reason must be specific to Church activity. Social pressure or even the practical problems of dealing with large numbers of cases are not enough. The spiritual good of the community and of individuals in it is the overriding concern of the Church. Any expansion of admission to the sacraments for people in conflict and hardship situations will have to analyze the various facets of spiritual good very carefully. I doubt a listing of specific "causes" in the classical sense would be of much help given the diversity of situations, but criteria could be developed to evaluate the proportionate gravity of reasons for exceptions to current discipline. Second, who is to decide? Some suggestions have been made already for procedures to be followed at various levels of the Church in deciding who may be admitted to these sacraments. Generally, proposals seem to encourage parish level decision-making, although some have looked for the decision to be made at the diocesan level. Greater clarity is also needed as to what type of decision is being considered. Is it similar to confessional guidance, in which the couple themselves actually make the decision? Is it a matter of jurisdictional determination in either the external or the internal forum? Can the opinion of the parties themselves serve as a sufficient basis? The issue is not 143 Hamer interprets the possibility of scandal broadly and requires the couple to receive the Eucharist in churches where they are not known (Zirkel, p. 43). Even the authors presenting the brother-sister arrangement admit this is a question of knowledge about their condition as formerly married, not a question of their being able to receive only in churches where they are strangers to the community. Carulli, pp. 421-422, objects to the notion that the common good can take precedence over individual spirtual good and bases his argument on the Second Vatican Council. I think he overstates his case, for the sacraments are given not just for private good but to build up the community. 14 Felici, "IndissolubilitA del matrimonio," p. 178. whether to admit people to a new celebration of matrimony. It requires, as Robert has pointed out, a careful sense of pastoral prudence on the part of Church leaders no matter who makes the decision. Third, a clear understanding of the situation is needed. Failure to keep the conflict and hardship situations distinct can lead to the unfortunate classifying of all remarried divorced persons as public sinners and, adulterers. On the other hand, it can be very difficult to apply the distinction to individual cases. Clear criteria and careful development of realistic tests to establish the distinction in practice are needed. V. EVALUATION AND CONCLUDING REFLECTIONS Response to the C.L.S.A. Report What has become of the "suggested solutions" in the C.L.S.A. Report over these past ten years? Here is an examination of each one in turn.1 4 5 1. Resolving the conflict situation should begin by developing harmony between the internal and external forum. To do this, the Report urged an attempt be made "to accept the evidence of the parties and to make a judgment on the evidence of the parties only" (p. 11). This suggestion has been partially accepted through a more nuanced understanding of the rules of procedure. On the other hand, the volume of cases and the inability of tribunals to address more than a minority of potential petitioners raises serious questions about how much harmony does exist between the external and internal forum, and how much can ever be achieved under the current system. The question has shifted from accepting the statements of the parties to seeking alternatives to how those statements are to be evaluated and a judgment rendered. " ' 2. Another solution recommended for the conflict situation was to provide "official or quasi-official counseling through a diocesan committee or board" (p. 11). This option has been discussed in various quarters and was even proposed at the Swiss Synod but no formal action has been taken.147 Given the observations above about the inability of current procedures to address the conflict situation, this suggestion may well deserve a more careful hearing. Indications are that it has not been considered in discussions on the revision of the code of Canon Law. Instead, major attention has been fo Page numbers refer to the C.L.S.A. Report in THE JURIST 30 (1970). 146 The shift in the question does not seem to have been perceived by those revising the procedural law for the new code; see Thomas J. Green, "Procedural Law: Reflections on the Proposed Schema," ProceedingsCLSA 39 (1977) 63-74; and Resolution Five, ibid.: 173-174. 147 See the proposal for a "Commission matrimoniale pastorale" in "Mariage et famille, Decisions du synode diocesan de Suisse romande," D.C. no. 1671 (March 2, 1975) 72:223. cused on the effort to maintain a uniform system of court procedures to facilitate appeals to Rome. This is regrettable, since one of the major principles accepted for the revision of the Code was to coordinate the two fora "in order that any conflict between them will either disappear or be reduced to a minimum. 148 3. A third proposal to resolve the conflict situation encouraged priests qualified to administer the sacrament of penance to ,exercise the full power of the confessor in advising "the penitent to follow his wellinformed conscience even if it is in conflict with external legislation" (p. 12). This proposal appears to have been rather widely accepted in theory. How widely it has been put into practice is not known. From the repeated efforts of the United States bishops to structure either a system of review or a set of instruction for bishops to give their priests in this matter, it may be presumed that at least in this country the bishops judge the principle is not being followed uniformly in their dioceses. Directives by bishops in Europe have failed to distinguish the conflict from the hardship situation and it is difficult to determine whether local practice is taking advantage of this proposal for conflict situations. 4. In regard to hardship situations, the C.L.S.A. Report urged that "no legal action" should be taken against a priest who, "by way of counsel in the forum of conscience, permits a person living in a canonically irregular marital union to have access to the Eucharist" (p. 13). The 1973 letter from the Congregation for the Doctrine of the Faith could be interpreted as supporting this position. Zirkel gives it that interpretation.149 However, given the critical response of the German-speaking countries to the 1973 letter and the interpretation of the letter by other authors, Zirkel's conclusion seems to assert too much. Clearly, if the priest has been utilizing an "approved practice" of the Church in the internal forum, the C.L.S.A. Report's suggestion has been vindicated by the Congregation's letter. But as has been indicated, the meaning of that practice is not altogether clear. Moreover, the action anticipated in the C.L.S.A. Report might not be dissimulation since the priest is actively counseling the people, and the Report does not seem to imply the brother-sister arrangement as a condition for the permission. Some advance may be claimed for the past decade in the way the question is posed. Instead of the priest giving permission to the persons he is seen as assisting them in coming to a personal decision in con148 "Principia quae Codicis Iuris Canonici recognitionem dirigant," Communicationes 1 (1969): 79. In discussing the principle of subsidiarity as it applies to the revision of the Code, procedural law was explicitly excepted to safeguard ease of appeal within a uniform system to the Apostolic See; ibid.: 81-82. See also Aurelio Sabattani, "Relatio de iure processuali recognoscendo," Communicationes 2 (1970): 183-191. '41 Zirkel, pp. 42-43. science. The initiative may come from the priest to seek them out (this is even officially encouraged now), but greater respect is being urged by authors for the couple's decision. The problem remains, however, under what circumstances or in what types of cases may a priest responsibly assist a person in coming to such a decision? Conversely, in what circumstances or in what types of cases would this be a betrayal of the Church's teaching on indissolubility and a scandal to the Christian community? It is an answer to this type of problem that the German-speaking bishops seem to have sought from the Apostolic See. No answer had been reported at the decade's end. B. As the foregoing evaluation indicates, the C.L.S.A. Report seems to have achieved some positive results but much remains to be done. Some fundamental questions have been reopened or at least posed in a new perspective. The following personal observations look to some of the work that continues to require attention. 1. How central are the sacraments? The C.L.S.A. Report urged intensified pastoral care for remarried divorced persons. Pope Paul VI, the bishops, the theologians and pastors have agreed on this need. Sensitive pastoral directives have been calling for a more welcoming attitude on the part of all the Catholic community. But crucial to all this pastoral care is the central question of the role of the sacraments and on this topic divergent trends have surfaced in the past decade. It is not yet clear whether these approaches can be coordinated to achieve a workable solution. One trend focuses on the renewed sacramental emphasis in the life of the Church. It seeks to find ways to enlarge opportunities for those in irregular unions to receive penance and the Eucharist. The other trend recognizes that remarried divorced persons are not excluded from the communion of the Church, but it denies them access to the sacraments because of other values considered more important to the Catholic communion. Stressing the need to be faithful to accepted Church teaching and practice on the indissolubility of marriage, this trend returns to a notion of "sacraments of desire" for remarried divorced persons, a concept popular before the liturgical renewal recaptured the ancient awareness of active sacramental participation. 150 150At the risk of oversimplifying nuanced positions in this complex question, I estimate the following trend toward the first attitude: the Synods in Austria, Germany, and Switzerland; ATEM and the CTSA committee; theologians Curran, Deltombe, de Naurois, Guillet, Lehmann, May, and McCormick; the CLSA Committee on Alternatives to Tribunal Procedures; Which trend truly promotes the common good of the Church? Only time will tell. But with increasing numbers of Catholics being denied access to the central mysteries of their faith, at least in practice if not in principle, it will be difficult to avoid deleterious effects in years to 151 come. Change in teaching or practice? The C.L.S.A. Report called for renewed attention to the theology of marriage. Some attempts have been made in this area by scholars, but the questions have frequently been addressed more in terms of problems than with a. view to positive development. Whether dealing with indissolubility, consummation, faith, or the bond of marriage itself, there are at least two general approaches to the question of remarriage in the Church. One proposes to change Church teaching on marriage either directly or indirectly, reinterpreting it at its roots. The other approach is to maintain the current teaching but to adapt Church practice to a broader understanding of how that teaching can be applied to individual cases.152 From the point of view of intellectual honesty the first approach is more appealing. But within the context of tradition it is important to recognize the strength of the second. It resonates with the "thesis-hypothesis" theory which helped adjust church-state relations for nearly a century until the teaching on the issue was changed by the Second Vaticanonists Green, Heinemann, McDevitt, and Zirkel. The following seem to tend toward the second attitude and at times express it quite directly: most of the bishops surveyed in Delhaye and Wattiaux's study; the French and Italian bishops' commissions on the family; Bishop Gagnon on behalf of the Pontifical Committee on the Family; Bishop LeBourgeois of Autun; the International Theological Commission; theologians de Marguerie, Martelet, and Scheffczyk. Attempting to straddle the two trends by adopting the second in principle but permitting the first approach as an exception are lung; and Bonifatious Honings, "Una pastorale sacramentaria dei divorziati risposati. Riconciliazione e Comunione," Apollinaris47 (1974): 471-490; and perhaps Felici. 151This concern is more fundamental than even the situation of remarried divorced persons. The decline in available celibate priests to celebrate the Eucharist as well as the increasing numbers of persons in intolerable marriage situations means more and more Catholics will, for various reasons, not be able to fulfill the description of the Church as an eucharistic community presented in Lumen gentium 10-11, Gaudium et spes 38, or especially Presbyterorumordinis6 ("No Christian community, however, can be built up unless it has base and center in the celebration of the most Holy Eucharist"-Abbott translation, p. 545). Yet the values of celibacy, indissolubility and continuity with Western traditions are in fact overriding this fundamental position of the Second Vatican Council. This is evident in the case of remarried divorced persons in Thesis 5.4 of the International Theological Commission, or the recommendation of spiritual communion by Bishop Gagnon (p. 244) on behalf of the Pontifical Committee on the Family. '51 For an analysis and critique of these approaches see Raymund Schwager, "Zum romican Council. In matters matrimonial, changes have occurred in the past more through Curial practice than doctrinal pronouncements. The second tendency probably holds the most practical hope for achieving some sort of answer to intolerable marriage situations. 158 At what level will solutions work? There are precedents for solutions to marriage questions being made at all levels of the Church's hierarchical communion. Given the way episcopal conferences have referred the issue of intolerable marriages to the Apostolic See (or have been directed to do so), it is obvious no move can be anticipated until something is determined at that level. What will happen when such a determination is made, whatever it is? As the C.L.S.A. Report pointed out ten years ago, the major need will continue to be the education of the Catholic community in the meaning of Church teaching and practice. Episcopal conferences have an increasingly important role in applying universal teaching to local circumstances. But what seems most likely is that responsibility for education will continue to be joined to responsibility for pastoral action, and that is at the parish level. This was stressed in the 1973 letter: pastors of souls, not bishops as such, are to apply the approved practice in the internal forum. They must also be the ones to explain to the Christian people what that practice is, in keeping with doctrinal clarifications and the interpretations admitted within the diversity of the Catholic communion. There will obviously be differences in local practice. This is inescapable and is actually one of the strengths of the Catholic Church, which can adapt universal principles to a great variety of local circumstances. But within that diversity the common thrust will have to be increased attention to the total spectrum of family life ministry. An awareness of this is already evident in the agenda for the Synod of Bishops which marks this opening year of the new decade. Integrated into an appropriate pastoral work to all dimensions of marriage and family life, a creative response to intolerable marriage situations may eventually be worked out. " Passicos , pp. 257 - 259 . 89 The 1967 C.L.S.A. symposium on marriage focused several questions in this area which continue to be in need of research . See William W. Bassett, ed., The Bond of Marriage (Notre Dame: University of Notre Dame Press, 1968 ), especially pp. 254 - 255 . " Eugene Hiliman , Polygamy Reconsidered . African Plural Marriage and the Christian Churches (New York: Orbis, 1975 ); Anton Vorbichler, "Die monogame Ehe in Afrika," Theologische-praktischeQuartalschrift125 ( 1977 ): 165 - 172 ; Michel Legrain, Mariage chr~tien module unique? Questions venues d' Afrique (Paris: Chalet, 1978 ); Rene Bureau, "Mariage et cultures," Le Supplement no . 128 ( February , 1979 ): 127 - 139 ; and Rene Simon , "Nature, culture, institution et foi," ibid .: 141 - 151 . But see also the critique of Legrain by Philippe Delhaye, "Question: La polygamie est-elle compatible avec le mariage chr6tien?" Esprit et Vie 89 ( 1979 ): 284 - 286 .


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James H. Provost. Intolerable Marriage Situations Revisited, The Catholic Lawyer, 2017,