Father Mark S. Bialek gives Communion to parishioners during Mass May 23 at St. John Catholic Church in Westminster, Maryland (CNS photo/Chaz Muth)

Many conservative Catholics remain opposed to relaxing the canonical prohibition against granting Communion to the divorced and civilly remarried. And many progressive Catholics perceive their more conservative counterparts as caring more about abstract legal rules than flesh-and-blood human beings.

In my view, however, this particular perception is misplaced. Most Catholics who oppose relaxing the rules on Communion are neither heartless nor unmerciful. They think that a more lenient practice is inconsistent with Jesus’ words in the gospels—a debatable point, and one on which many scholars disagree. But more than biblical interpretation shapes the approach of such conservatives. They also believe the best way for the church to help weak and sinful human beings flourish in the long run is to hold the line on the canonical prohibition. This belief also needs to be challenged, because it rests on an unrealistic notion of the power of legal norms, including canonical norms.

As I understand the conservative Catholic case, it runs like this. Lifelong marital commitment increases one’s chances of personal happiness. Perseverance during the tough times is difficult but essential; studies show that most married couples who weather their storms find themselves in a better place in a few years’ time. The canonical prohibition has a carrot; it promotes the blessings of a lifelong sacramental union. But it also seems to have a stick—the threat of denying Communion incentivizes married couples to stick it out.

In the view of conservative Catholics, while the prohibition may appear cruel, it is actually kind. They admit that a few tragic cases may slip through the canonical cracks. But they point out that law, including canon law, is made for the general run of people. And in general, the pressure to stay together works for the well-being of the many more people who are able to work through their marital difficulties. They think of it like the U.S. Army: if unhappy recruits were simply permitted to leave basic training without any consequences, one or two people might be better off, but many others would be deprived of the benefits that sustained military discipline and commitment can confer.

So what’s the problem with this line of reasoning? The tough-love approach depends on the stick, not just the carrot. The Army analogy points to the basic flaw. If you walk away from basic training, the Army can and will put you in prison for desertion. In our society, there is no comparable threat for those who walk away from sacramental marriages, in either secular or canon law. In fact, nothing prevents a divorced and civilly remarried couple from starting afresh anonymously at a parish across town. No one is going to ask for a marriage certificate, let alone certificates of divorce and annulment, before giving them Communion.  

The remote prospect of being denied Communion will not deter men and women from entering into ill-considered first marriages.

In the abstract, the church could crack down. For example, pastors could do background checks on all married couples in the parish in order to identify and monitor those who were not in fact wed sacramentally. More broadly, they could restrict access to the Communion line to those who could prove they had recently gone to confession. But that is not a real option. The church has already decided against policing Communion lines, leaving the decision to individual communicants. Moreover, it has decided against such policing not for practical reasons, but for principled ones: such a practice fails to respect the dignity and conscience of the members of the body of Christ.

What about the function of the prohibition in communicating the value of lifelong marriage? That doesn’t work in real life either. The remote prospect of being denied Communion will not deter men and women from entering into ill-considered first marriages. The pain of being denied Communion is too abstract to dissuade most people from leaving the miseries of a failed union. And the existential joy and relief in finding a new love and life partner is likely to overwhelm anxiety about the effects of a distant punishment.

Moreover, as currently applied, this teaching’s intended moral lesson can easily appear to be hypocritical and even perverse. Precisely because so many Catholics in irregular sexual or marital situations do receive Communion, the prohibition falls most heavily upon those who take church teaching most scrupulously. As applied, canon law seems to be penalizing those who care most about their relationship to the church. The basic teaching—the gift and value of lifelong sacramental marriage—is sound. But it is undercut by the inconsistencies and arbitrariness in applying it.

The urgency of positive, proactive concern for marriage and family is the overarching message of Amoris laetitia, Pope Francis’s recent exhortation on those topics. What would such concern look like in the concrete? In my own view, leading with mercy is a far more effective strategy than denying the divorced and remarried the grace of the sacraments. The pope has lamented that church teaching can become “dead stones to be hurled at others.” I’d add that it shouldn’t be a stick to beat them with either. 

Cathleen Kaveny teaches law and theology at Boston College.

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Published in the December 15, 2017 issue: View Contents
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