When Pope Francis announced his plan for last October’s Extraordinary Synod on the Family, he insisted that it not focus on abstract questions of moral theology, sacramental theology, and canon law—as important as they may be—but rather on pastoral concerns. Francis asked the synod fathers not to sidestep thorny questions facing the church today, but rather to engage in open debate, even if doing so led to passionate disagreement. The bishops followed his advice.
Some of the most passionate disagreements surrounded the question of whether Catholics who divorce and remarry can receive the Eucharist. On one side are those like Cardinal Gerhard Müller, prefect of the Congregation for the Doctrine of the Faith, who insist that such Catholics be barred from the Communion line. On the other are those like Cardinal Walter Kasper, who want the church to find a way to readmit some of them. Both camps have publicized their arguments in books, magazines, and journals, marshaling theology, Scripture, and tradition to make their cases. But there is an unlikely source neither has yet cited, one with a lot to offer: the secular legal tradition.
What is it about the insights of secular law that might help address this question of Catholic discipline? Secular law can help us grapple with questions about when wrongdoing begins, when it ends, and how people can put it behind them and move on with their lives. In other words, secular courts have something to teach us about the practice of mercy—a subject to which Cardinal Kasper has given considerable attention. In a lecture delivered to the consistory of cardinals in the spring of 2014, now published as The Gospel of the Family (Paulist Press), Cardinal Kasper discussed the relationship of mercy, justice, and law in the context of pastoral questions, including how the church deals with divorced and remarried Catholics. Those Catholics, Kasper reminded his fellow cardinals, have been encouraged to receive spiritual communion at Mass, despite their “irregular” marital status. Why then, he asked, should they be excluded from the Eucharist? Allowing them to receive the Eucharist, after all, does not mean that they can contract a second sacramental marriage during the lifetime of their first spouse.
In order to receive Communion, Kasper argues, a divorced and remarried person must be “properly disposed.” What does that mean? Kasper identifies five criteria, requiring that the person who is seeking Communion: (1) is sincerely sorry that he or she failed in the first marriage; (2) views a return to that marriage as out of the question; (3) understands that the second marriage cannot be abandoned without incurring new guilt; (4) is attempting to conduct the second marriage in the context of faith, and (5) longs for the sacraments of Reconciliation and Communion.
Kasper has his critics. Some insist that because a sacramental marriage endures until one’s spouse dies, the church must treat the second marriage as adulterous. But is “adultery” the best way to describe the sin of a divorced and civilly remarried person against his or her sacramental first marriage? It is worth noting that the concept of “adultery” has changed significantly over the centuries. In ancient times, the law viewed adultery as analogous to a property crime—the property being the woman. In Mosaic law, as in early Roman law, adultery was condemned because it rendered the lines of patrilineal succession uncertain, since a man could not be sure that the children borne by his wife were really his. (Thus a married man who had sexual relations with an unmarried woman was not viewed as committing adultery.)
In our own era in the West, “adultery” applies equally to men and women, and refers mainly to the betrayal of one spouse by another, a betrayal that is not merely sexual, but also emotional and often financial. In the broader contemporary culture, therefore, “adultery” does not apply to a situation that arises after a married couple obtains a divorce and one or both parties remarry. Catholic teaching does not view marriage in the same way, of course. But even canonists recognize that secular divorce changes the relationship between the parties—since many dioceses will not even consider a case for annulment until a secular divorce has been finalized.
Adultery is certainly wrong, and we should condemn it. But how should we describe it? Here secular law provides helpful insights. As legal scholars William Theis and Jeffrey Chemerinsky have noted, the first task facing any prosecutor is to determine the “unit of prosecution” for the wrong committed. Does a shoplifter who takes five sweaters from a department store commit one crime or five? The challenge is more difficult when what is at stake is not an isolated action but an organized pattern of behavior, such as adultery. In Ex parte Snow (1887), the U.S. Supreme Court took up the case of a polygamist in Utah charged with one count of unlawful cohabitation for each of the three years he lived with more than one wife. The Court held that prosecutors could not arbitrarily divide a single, uninterrupted unlawful cohabitation into three separate criminal charges. In reality, it was one event, and properly describing the defendant’s actions required looking beyond the discrete acts to a broader pattern of activity. It required recalibrating the focus of the law’s lens to get a wider perspective.
That sort of recalibration could assist the Catholic Church in understanding the situation of divorced and remarried people. The parties to the second marriage are not skulking off to a hotel room to grasp disconnected moments of irresponsible pleasure, after all; they are engaged in an ongoing relationship that typically involves much more than sexual relations, often including commitments to children and aging family members. What sense does it make to claim, as canon law does, that a civilly divorced and remarried Catholic is engaged in multiple acts of adultery?
One might answer that even if such people do not sin in every act of sex outside the first marriage, they still sin in the totality of their relationship. Indeed, a key barrier to admitting divorced and civilly remarried persons to Communion is the canonical judgment that their offense against the first, sacramental marriage is a continuing offense. According to Kasper’s critics, that is what distinguishes a murderer from a divorced and remarried person—with respect to Communion, anyway. The murder is a completed act; the murderer can repent and receive the Eucharist. The divorced and remarried person cannot, because the sin is ongoing.
Yet, as legal scholar Jeffrey Boles has demonstrated, distinguishing instantaneous from continuous offenses is not always easy. Generally speaking, the civil legal system considers an instantaneous offense to be a “discrete act” that occurs at a particular moment in time. The harm that it causes occurs in that moment, and does not extend beyond it. A continuing offense differs in two ways: first, it generally involves ongoing conduct; and second, the harm it causes persists over that period of time. These distinctions are reflected in statutes of limitation, which not only encourage efficiency and accuracy in prosecution, but also protect the defendant’s rights, acknowledging the need for people to be able to move on with their lives and—except in the case of very serious crimes, such as murder—not be forever haunted by past mistakes.
Are divorced and remarried Catholics supposed to suffer forever for their failed first marriages? Is it correct to say that the harm done to the original spouse, the children, and the community continues to pile up indefinitely, year after year? In the majority of cases, the harm is completed with the dissolution of the first marriage. In fact, the relationship between the parties to the original marriage may be stabilized, and the well-being of their children enhanced, if both move on to second relationships. Secular law frequently distinguishes between the offense itself, completed within a finite period, and the ongoing consequences of that offense, which may continue longer. The church might do well to adopt an analogous distinction. The Catholic moral and canonical approach treats each sexual act in the second marriage as an ongoing betrayal of the first marriage. But the life of the second marriage, including its sexual relationship, is best seen as a living out of the second wedding ceremony, which in most cases decisively ends the possibility of resuming the first marriage.
CATHOLICS ARE BOUND to obey God’s law as it was revealed in Jesus Christ, as recorded in the gospels. Yet Scripture does not interpret itself. When it comes to Jesus’ teachings on divorce and remarriage, it’s important to look closely at what the biblical texts say, what they don’t say, and to whom they were originally speaking.
First, we have to attend to the social context in which Jesus spoke. Divorce was a common phenomenon in the ancient Near East, including among Jews. “Almost all the pre-70 Jewish texts known to us reflect a Judaism in which a man could divorce his wife for practically any reason,” writes New Testament scholar John P. Meier. By contrast, a woman could not divorce her husband for any reason, and a divorced woman was in an extraordinarily precarious position: unless she could find another man to marry, she would be dependent on her own birth family to protect her. In Luke and Matthew, the accounts of Jesus’ statements on divorce reflect this vast disparity in power between husband and wife. It is the man who divorces his wife and marries another who commits adultery. He causes his former wife to be involved in adultery when she remarries (according to Matthew); the moral fault is primarily his, not hers. In contrast, Mark’s gospel and Paul’s first letter to the Corinthians assert that a woman who divorces her husband commits adultery. Most commentators point out that Mark and I Corinthians were written in the context of a Roman legal system, in which women as well as men had the right to divorce their spouses. Because this was not even an option for ordinary Jewish women in Jesus’ era, Meier concludes that Mark 10:12 “almost automatically falls out of consideration as a saying coming from the historical Jesus.”
Is it logical to extend Jesus’ words condemning divorce from a Palestinian context in which men can unilaterally divorce their wives, leaving them vulnerable, to a Roman one in which—as in our society today—women can also choose to divorce their husbands? If the purpose of prohibiting divorce and remarriage is primarily to protect sexual purity, then the extension might seem valid. But what if the primary purpose is to protect vulnerable people, especially vulnerable women? In many cases, preventing women from remarrying after divorce can leave them and their children at great risk of material harm.
We must also pay attention to the audience Jesus is addressing. The fullest synoptic account of Jesus’s views on divorce are found in Mark 10:1–12, where Jesus is tested by Pharisees who cite Moses’s commandment granting permission to Jewish men to divorce their wives—for any reason—and then ask Jesus whether it was lawful for a man to divorce his wife. Jesus’ response sounds almost scholarly: “Because of your hardness of heart he wrote you this commandment. But from the beginning of creation, ‘God made them male and female.’ For this reason a man shall leave his father and mother, and the two shall become one flesh. So they are no longer two, but one flesh. What therefore God has joined together, let no man separate.”
In this rejoinder, Jesus conveys God’s original purpose for marriage even as he demonstrates his rank relative to Moses, claiming his own authority as the paramount interpreter of Jewish law. But Scripture also shows that Jesus does not use his insight into God’s original purpose for marriage as a cudgel to beat those already bruised by sin. In dealing with the broken, sinful, and vulnerable, Jesus acts as a merciful healer. Take, for example, his encounter with the Samaritan woman at the well, recounted in the Gospel of John. Jesus asks her for a drink, which astonishes her, since Jews normally disdained interaction with Samaritans. In return, she asks him for the living water that only he can provide. Jesus tells her to “call your husband and come here,” but she tells him she has no husband. “You have correctly said, ‘I have no husband’; for you have had five husbands, and the one whom you now have is not your husband,” Jesus replies.
Jesus then reveals to her a great mystery—that he is the source of the waters of eternal life—and calls on her to “worship the Father in spirit and truth.” Yet he does not impose a rigid rule on her obviously irregular marital situation as a condition of her discipleship. He does not tell her to return to her first husband. He does not treat her situation in the same abstract manner in which he conducted his academic discussion about marriage and divorce with the Pharisees. In short, he acts as a pastor to her.
The Gospel of John also highlights the mercy in Jesus’ treatment of sinners. Seeking to trap Jesus yet again, the Pharisees use a woman caught in adultery as bait. They bring her to Jesus, asking whether they should stone her in accordance with the Law of Moses. Jesus evades the trap, and places himself squarely on the side of the terrified woman. “He who is without sin among you, let him be the first to throw a stone at her. ” Everyone else drifts away, leaving Jesus alone with the woman. Yet the only sinless man does not condemn her, but tells her, “Go. From now on sin no more.”
What does Jesus’ admonition mean? Would he require her to leave a second husband she married after her first husband divorced her? Why would Jesus deflect the condemnation of the Pharisees only to impose another legalism on her conscience? For Jesus to tell the woman to “go...sin no more” means that it must be possible for her to go and sin no more—and to continue to live. Given the radical dependence of women upon their husbands for shelter and support, this woman would likely need to find a man to take her in as his wife; in all probability, it would not be the first man she had married, or even the man with whom she committed adultery.
No legal provision is self-interpreting; each law must be understood and applied with reference to the good of the community it purports to serve, and Jesus regularly reminds us that the commands and prohibitions of the Torah must be situated in a broader context. When a Pharisee—confronting him with yet another test—asks him which commandment is the greatest, Jesus responds: “‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.’ This is the great and foremost commandment” (Matthew 22:37–38).
As Walter Kasper has argued, the God whom we are to love is the God of mercy, the God who wills to save all human beings. We must interpret Jesus’ words about marriage and divorce in light of that overarching truth. Jesus teaches us that in an ideal world, one untouched by sin, there would be no divorce and remarriage. But nothing in Jesus’ words or conduct demands that in our broken world, the sin involved in divorce and remarriage be treated as one that continues indefinitely, without possibility of repentance. To impose such a requirement in every case confounds the mercy that is the touchstone for the divine lawgiver.
The parties to a failed first marriage may very well have harmed each other during the course of their breakup and its aftermath. But in most cases, the contracting of a second civil marriage extinguishes any hope of reconciliation in this lifetime; and since there is no marriage in heaven, as the church teaches, the harm the parties have done to their first marriage is complete, not ongoing. Therefore, they should be able to repent of that harm and move on to fulfill the new responsibilities of their second marriage.
DOES SUCH AN argument apply to sacramental marriage, which the church teaches is indissoluble? The sharp distinction between natural and sacramental marriage is not supported by Scripture. Jesus himself did not make that distinction; it is an innovation of the canonical tradition. So why shouldn’t it be possible to see the bond created by the first sacramental marriage as continuing in some way (e.g., in the obligations of the parties to care for their children and to pray continually for each other), while not foreclosing the possibility of a second, natural marriage? Does the church have the power to develop its doctrine of sacramental marriage in that way, in favor of mercy?
Yes, and it wouldn’t be the first time it has done so. As the historian of the canon law of marriage John T. Noonan Jr., has pointed out, canonical tradition has long balanced a number of values in its definition of marriage. In his book, Power to Dissolve (Harvard University Press), Noonan explains that Catholicism viewed marriage as a symbol of the unbreakable union of Christ with the church—like the union of a bishop with his diocese. But from the beginning of church history, the symbolic value of both sorts of unions had always been balanced against other values. For example, the Gospel of Matthew (5:32), written for second-generation Christians, permits divorce for serious sexual immorality (“porneia”), such as adultery. Christians have long debated how this passage should be treated. Since the Council of Trent, adultery has been treated in the Catholic tradition as grounds for permanent separation (although most Protestants, following St. Augustine, view it as grounds for divorce and remarriage). Earlier, in the first generation, St. Paul, confronted with situations in which one party to a pagan marriage desired to convert to Christianity, instructed the new convert to stay with his or her unbelieving spouse if possible. But Paul allowed divorce—and tacitly permitted remarriage—in cases where a pagan spouse was unwilling to remain in the marriage. He writes: “But if the unbelieving one leaves, let him leave; the brother or the sister is not under bondage in such cases, but God has called us to peace” (1 Cor. 7:15). To this day, canon law recognizes the papal power to dissolve a natural marriage between two unbaptized persons in order to enable a new convert to marry in the faith; it calls this power the “Pauline Privilege.”
Over the centuries, canon lawyers have found creative ways to preserve the ideal of lifelong union while dissolving many marriages in order to allow Catholics to participate more fully in the life of the church—or as the canonists say, “in favor of the faith.” Many of these developments, such as the significant expansion of the “Pauline privilege” in the sixteenth century, were the consequence of missionary efforts to the Americas. Pius V (d. 1572) did not insist that a polygamous native man remain married to his first wife; such converts, he allowed, could choose the wife with whom they would be baptized. Gregory XIII (d. 1585) permitted slaves separated by great distances from their lawful spouses to remarry in the church, even if they could not say for sure that those lawful spouses would spurn Christianity. Moreover, canonists began to articulate the so-called Petrine Privilege, which enabled the pope to undo a marriage between a baptized and a nonbaptized person, in order to enable one of the parties to remarry in the church.
For a very long time, in other words, the church has claimed the power to dissolve marital unions: unions between the unbaptized; unions in which only one party is baptized; and unconsummated unions between baptized persons. So far, the church has stopped short only of dissolving valid, consummated marriages between two baptized Christians. And yet, in the rocky waters of modernity, these sacramental marriages break up too. What about those who are shipwrecked, particularly those abandoned by their spouses—what can be done in favor of their faith? As Cardinal Kasper has repeatedly noted, his proposal does not give such persons a second ship in the form of another sacramental marriage. It does, however, grant them a “plank of salvation”—namely, renewed admittance to the sacraments. Granting this renewal will bring the letter of canon law into harmony with its spirit. More important, it would reflect the merciful Spirit of God as revealed to us in Christ Jesus—the God who, as St. Paul states, “has called us to peace.”