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Noonan on Catholic Marriage in the Courts

Cardinal Kasper's proposal to reconsider the question of divorced and remarried Catholics and reception of the sacrament of the Eucharist has generated quite some opposition in some quarters.

For those who wish to situate the question in a broader context that is not entirely determined by internet pundits, two books by the eminent scholar John Noonan might be helpful.

1.  The Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia—Noonan makes an extensive case for the development in church teaching on marriage's indissolubility. (Organized around actual cases, and the people behind them, it's my favorite Noonan book—it's like a beach novel with footnotes.)

2. A Church that Can and Cannot Change: The Development of Catholic Moral Teaching. The sixth section deals with marriage and divorce.


About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.



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The Catholic Church is in fact very divorce-friendly, as the Petrine and Pauline privileges indicate.


If you fish around in the principles of moral and pastoral theology and in the history of these disciplines you can find a charter for Catholic liberalism on every front. Those who froth about non-negotiables usually know nothing about moral or pastoral theology. Paul VI did, and his handling of the birth control ruling showed his expertise. But his successors just stuck to unsubtle dogmatism.

:.....his handling of the birth control ruling showed his expertise.:this is breath-taking.  Please explain???

Most good histories of this decision, etc. indicate that Paul VI did not make the Humanae Vitae decision on its merits.  In fact, his decision had little to do with birth had everything to do with papal perogatives; protecting papal power;; fear (or a misinterpretation) that he might set a precedent that overturned a century of prior papal pronouncements.

By 1968, Ottaviani had regained control of the curia and the papacy.....with one exception, Paul VI spent the rest of his life depressed and accomplishing little.

Finally, the Petrine and Pauline privileges have nothing to do with *divorce* if you believe what the church says.  Rather, it says that there was no *sacramental marriage* and thus, the couple are free to marry sacramentally in the church ( if one party is baptised) and Pauline (if both parties are unbaptized).  Never called *divorce* but dissolution of a civil marriage - please respect the church's double speak.

Explanation: Paul VI carefully underlined freedom of conscience, that difficulties about birth control were no reason for keeping away from the Eucharist, that though he had non-infallibly determined artificial contraception to be intrinsice inhonestum, this objective immorality did not necessarily entail that the pracitce of artificial contraception might not be "diminished in guilt, inculpable, or subjectively defensible". The same principles of pastoral epikeia and equity and toleration of a situation that is the best that the person can do in the concrete circumstance governs his attitude to the pastoral care of gay couples, as clarified by Jan Visser, one of the authors of Persona Humana. 

I do not accept the cynical theory that Paul VI issued Humanae Vitae hypocritically. He affirmed with almost his dying breath that he remained firmly convinced of the correctness of his moral reasoning. We cannot effectively contest his reasoning on contraception and homosexual acts if we begin by any form of caricature of it.




Many theologians do not see any real distinction between dissolving a valid actual marriage and divorce. To say that it has "nothing to do with divorce" is a tall claim. I say that the church is divorce-friendly since it regards the vast majority of valid marriages as dissoluble.

Here is a very right-wing article that Theological Studies were forced to publish.


Note that the authors use "divorce" for "dissolving a valid marriage" as does St Ambrose of Milan, as quoted by them.

Also helpful, to get even more historical perspective on marriage, is Edward Schillebeeckx' book, Marriage: Secular Reality and Saving Mystery

Why is there such a stubborn and inflexible defense of the doctrine of indisolubility of marriage? Whose soul does this save? Both Sts. Paul and Peter recognized that divorce happens; both found simple solutions that a parish priest could use to permit a blessing of a second marriage, "for the good of the parties." When we make such findings as this absolutes we directly conflict with the mercy of God and the healing nature of all us gathered as church. The orthodox solution is far more pastoral; people make mistakes marrying each other. Thus, "for the good of the parties, i.e. their own salvation" they should be allowed to remarry (after reasonable discernment). It is not good for the man or woman to live alone. Or together as brother & sister... who are we kidding? Must the church take the very spark out of people's lives to enforce and ideal that today so many are unable to achieve?

Absolutely agree with Mike Evans.

Salus animarum suprema lex.

I have to chime in with Bill deHaas. How Pope Paul's capitulation to powerful church politicians and his undermining the Vatican commission's recommendation to permit artificial birth control equates to deft handling of the contraception issue is totally beyond me. Paul never had a commitment to listen to any of the merits of the issue. It was always about upholding infallibility--never about learner and experienced faithful arguing in good conscience.

Chuck - will apply JOL's statement about divorce to the birth control commission - they acted this way:

Salus animarum suprema lex......Paul VI did not.

Cathy:  Thanks for the comments.  But, substance aside, links to Amazon?  Here in Colorado we regard Amazon as the Dark Side.  Far better to support the local independent book store.  It's real and it cares.

Mike E. --

What is the evidence for saying that both Peter and Paul recognized exceptions to the general rule?  Do they explicily say there are exceptions?

Mike Evans:

"Why is there such a stubborn and inflexible defense of the doctrine of indisolubility of marriage? Whose soul does this save?"

Well, who can make that calculus? If you believe that the original marriage was valid, and you believe that sacraments are true actions by divine grace, and therefore you believe that really God united those two people for the sake of their eternal salvation, you should at least be very hesitant to be so cavalier about deciding what saves or does not save souls.

Having said that, of course, there is plenty of room for good pastoral care. But hard cases make bad law.


The issue of divorce and remarriage is grounded in the interpretation of the word porneia in Matthew's exception clause. The RCC believes it refers to a marriage between two peope that are too closely related. Most scholars believe the more reasonable and logical meaning is adultery.

The Church objects to remarriage and interprets Matt 5:32 and 19:9 differently than most of the Judeo-Christian community. The moral dilemma for the magisterium is not to be minimized because the exception clause is not found in Mark and Luke. One answer that most traditionalist theologians offer, but is not compelling, is that Matthew was written later than Mark and Luke, and his Gospel was directed at Jews who allowed for divorce and remarriage for adultery. I doubt Matthew was adding something that Jesus never said. Nevertheless, such disputes may never be completely resolved. However, Cardinal Kasper's suggestion for a development of the doctrine on divorce and remarriage (or marriage) would be a much needed and welcomed solution to this most pressing problem. The Cardinal has mentioned that there were doctrines of the Holy Office, before Second Vatican Council, against ecumenism, yet the council found a reason not to destroy or negate that doctrine but found ways to interpret it in an adequate way. Ditto for the teachings on slavery, usury and the torture of heretics. Perhaps we will see a develop on marriage (divorce, remarriage and whether those who are remarried can have access to the sacrament of reconciliation and Eucharist reception). It is a huge problem.

Divorce and remarriage was permitted in ancient times (perhaps tolerated due to hearthardedness?) but not condemned as immoral. Matt 5:32 was likely alluding to the grounds for divorce in Deut 24:1-4. However, it would be misleading to read 5:32 simply as an exposition of Deuteronomy 24. It is better to see both 5:32 and 19:9 a statement which stands in contrast to what Matthew believed Deut 24 allowed. Matthew is not having Jesus enter the debate over interpretation of "the shame of matter" of Deut 24:1, and in the process adopting the Shammai position, but is stating something over against it. In so doing, Jesus would not be understood as revoking the Torah.

Interestingly, in 5:32 nothing is said of the subsequent action by the first husband. It could assume a polygynous understanding of marriage according to which the man may already have more than one wife or may marry another, but not necessarily to replace the wife whom he has divorced. Nevertheless, I believe it was possible to interpret such passages whereby the husband who legitimately divorces his wife (for adultery) may legitimately remarry a legitimately divorced woman, assuming each has a legitimate certificate of divorce. Books have been written of this issue and a few comments here does not do this subject justice. I believe that divorce should be avoided and only a last resort. Every attempt must be made to keep the marriage in tact. However, we both know this is not possible in many cases.

It is an issue of justice, compassion and mercy to consider the plight of the innocent spouse. If a young woman divorces her husband for good reasons (after all attempts have been made at reconciliation), how do we justify condemning her to a lifetime of sexual abstinence and a life devoid of the love of a good man in a committed, faithful and lifelong relationship?



It is amazing how this thread keep re-incarnating itself, even after 218 comments on n earlier post.  Please read Fr. Joseph Fitzmyer, S,J, on the Matthean exceptive clause, were it is perfectly correct to interpret porneia as a marriage within the forbidden lines of consanguinity.  Helso comments on th exception to the absolute prohibition on divorce in Paul: "The Matthean Divorce Texts and Some New Palestinian Evidence." Theological Studies (37) 1976, 197-226.  





There is a significant disagreement among theologians about Matthew's exception clause. I have read many arguments and the impass remains.

If you want a comprehensive treatment of this subject, I refer you to a more recent scholarly work: William Loarder, The New Testament on Sexuality (Cambridge: Wm. B. Eerdmans Publishing, 2012) Chapter 5.





There is considerable disagreement among NT scholars about the correct interpretation of many texts.  That does not mean they are all right. I don't know what kind of agreement you need to break the impasse.  What is the meaning of porneia in Acts 15:20? It can't mean fornication since everyone was supposed to abstain from that.  Again, it is marriage to a related person.  It is perfectly reasonable to interpret Matthew's exception in the same way.


Theologians on both sides of this argument believe they are right and speaking the truth. 

I could go into much detail with you about the interpretation of porneia in Matthew's exception clause. There are 3 interpretations that most scholars agree on:

1. "Extra marital sexual intercourse"; in a sense "sexual immorality". In effect this would normally meand adultery on the part of the wife. The fact that the word for adultery, uoixeria, is not used, but, instead the broader term is taken by some to indicate that adultery cannot be intended. Others argue, and in my view convincingly, that the broader term should be understood in terms of adultery. 

2. "Premarital intercourse"; in that sense, sexual immorality, committed by the woman with a man other than the one to whom she is betrothed and before the marriage. This interpretation would narrow the range of what would have beenin view in Matt 5:32's use of porneia and would carry the unlikely implication that pre-marital sex would be considered more serious than adultery. 

3. "Incestuous relations"; a marriage within the extended family. The problem with this view is that where incestuous marriages have taken place they are not brought to divorce but declared never to have been valid in the first place. No divorce and bill of divorce, which the context in Matthew is referring to as constituting divorce, is required. It is also far from certain that incest is in mind in Acts 15:29. 



Well, Mike, I guess I will have to concede that you know more about the New Testament  than I do. But, your interpretation of #3 is quite faulty.  You are not considering the wider cultural background of this issue.  Best regards.




If you are talking about ancient culture, I do understand it well. If you are talking about comtemporary culture, I also know this well. Hence, I consider both in my judgment even though we have not discussed it. If you want to discuss culture, I am happy to engage.

As to your claim that my interpretation of # 3 is "quite faulty" is merely your assertion and opinion devoid of any substantiation and justifiable argument. Hence, your statement of "quite faulty" does not move the conversation forward toward a better understanding of truth.

God bless.



Well, Michael, since you assert position without proof, you appear to have all the answers so I don't think there is any point in pursuing this further with you.  I applaud your presumed expertise in all things ancient and related to the New Testament.  Press on to your goal.


God bless!

Is salvation to turn on an interpretation several centuries later of what a single line in a gospel text translated to Greek might mean? Lord let your merc y be upon us who are foolish enough to judge.

If those who are amateur and even professional theologians would look closely at even their own marriages, they would concluded that none of them nor their partners could possibly have fulfilled the serious "matter" of informed consent. My wife and I were in our early 20's, fresh out of college, and really had no idea. This year we celebrate our 50th thanking God everyday for his blessings and the graces he has showered upon us. Probably we were among the lucky ones. In my ministry I meet too many who were not so lucky, even though they hoped to be. Cruelty is holding them to a standard they couldn't possibly understand or as it turns our, fulfill later. Mercy, please!

Please read more carefully, folks. I did NOT say that the ruling of HV is correct, and I do NOT agree with it. What I DID say is that as a sophisticated moral and pastoral theollogian Paul VI handled the ruling very adroitly in such as way as to greatly soften its impact -- by his stress on freedom of conscience, the difference between what is objectively inhonestum and what is subjectively inculpable or defensible, the pastoral principles of epikeia and equity and accommodation as applied to people in difficult situations. Paul VI (via Jan Visser) applied the same pastoral touch in regard to gay relationships. I do NOT agree with the formal teaching of Persona Humana on that subject, but I do think that the Church would have been wise to broadcast more widely the liberal pastoral principles of Paul VI in his handling of gay people in their concrete life-circumstances.

Bill de Haas, you ardently defended at NCR the morality of selling Mrs Kennedy's private letters addressed to a priest. Happily we Irish have now done the decent thing and withdrawn the letters from sale. An expensive scruple! But that is what morality is about.

Mike Evans

You who have stood on your expertise in NT exegesis seem to be back pedaling now by substituting a pastoral argument for your previously high handed scholarly one.  You seem confused. Please clarify you point here.


Re-read my numerous posts at NCR - I asked many questions including the possibility that All Hallows might work with the Kennedy family.

Looks like any number of steps might happen now - this reporter merely describes that the auction will not happen......there is no comment about *morality* (except in your mind)  and this has nothing to do with the Irish. (this event could have happened if Leonard had been a US citizen)

You really do grasp for straws and read into things.

All Hallows (and my comments at NCR) clearly re-iterated what this reporter says - All Hallows needs income and this auction might have helped that.  Beyond that, we are all continuing to make guesses, assumptions, and drawing conclusions based upon unknown, partial, or incorrect information.

So, another weak attempt to change the subject?  Still tying to score points? 

Mike Evans

Yikes Mikes.  My last post was not directed to you but to the other Mike who had posted here.  I sincerely apologize.  I was suffering from "Mikes Confusion."  Please forgive me.

And people ask me and mine why we aren't looking for church blessing of our secular marriage ....



I offer no "proof" but a reasoned opinon. I gave you one source of my opinion (e.g., Loader's "The New Testament on Sexuality"). Loader is a master of the New Testament but also of Jewish and Roman sources. I am not an expert, but I have been studying moral theology for the past 5 years and one of my works will be published shortly. Nevertheless, I am open to further education and your arguments as well.

My goal is simple: to move the conversation forward towards a better understanding of truth. You can press on to your goal, as will I.

God bless.



Sorry, wrong Mike.

JOL - some just released facts that put your *moral* conclusion in another light - it does help to ask questions and wait patiently for all of the evidence to come out.

First, Rev. Leonard did have a will leaving the letters to the Vincentians (not All Hallows)

Second, this means that All Hallows can not auction them (doesn't have anything to do with a moral decision - it is a legal decision)

Third, to all of the NCR trolls who didn't understand this and went on and on about how ethics and law aren't the same....well, appears that the law trumps everything in this case; and, BTW, it is also an ethical resolution

"In recent days it has been discovered that ownership of the letters lies with the Vincentian congregation, rather than with the college," Henry said. "That was a factor in the auction being canceled, because they were not ours to sell. That, and the introduction of the Kennedy family into the proceedings."

She added: “The college learned this when it found Father Joseph Leonard’s will in the past couple of days, in a different place to where the rest of his papers were kept."


Oh yeah - one of my suggestions in the face of the trolls was to suggest that the Vincentians could reach out to the family....geez, what an original idea.

Law never trumps ethics.

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