In a wide-ranging conversation with journalists on the flight back from World Youth Day, Pope Francis famously said of gay people who seek God, “Who am I to judge?” That wasn’t the interview’s only surprise. When asked about the way the church treats divorced Catholics who, if they remarry civilly without benefit of annulment, cannot receive Communion, the pope declared that “this is the moment for mercy.” More important, Francis revealed that his hand-picked advisers, the Council of Cardinals, would take up the matter when they met with him next month. Is change in the offing?

The Catholic Church has always insisted that monogamous, indissoluble marriage open to the possibility of children is the ideal context for sexual relationships. But that ideal is changing—among Catholics and Protestants alike. The divorce rate stands at 40 percent (not 50 percent, as often reported by journalists). This has troubling consequences for children. Men who have suffered family disruption during childhood are more likely to drop out of school, leave home, start low-paying work early, and become fathers early. Women in the same situation don’t fare much better. They’re more likely to have sex in their teens, to have a child before marriage, and to become single parents. And of course these men and women are more likely to get divorced.

Many Catholics divorce and remarry without obtaining an annulment while their first spouses are still alive. In the eyes of the church, those Catholics have invalid and irregular marriages, and they must refrain from receiving Communion. Last year in these pages, Fr. James Coriden suggested a possible modus vivendi for this situation (January 27, 2012). He proposed that Catholics who had divorced and remarried civilly could resume full participation in the sacraments through “a process of moral discernment about personal worthiness for Holy Communion, after true repentance and God’s merciful forgiveness,” provided they had tried to find canonical solutions to their situations. The Council of Nicea agreed.

In the fourth century, a rigorist sect known as the Novations sought admittance to the Catholic Church, but they refused communion with Catholics who had remarried after divorce. The Council of Nicea (325 AD) ruled that before they could join the church, the Novations would have to “promise in writing to comply with the teachings of the Catholic and Apostolic Church and to make them the rule of their conduct. That is to say, they will have to communicate both with those who are married a second time and with those who failed under persecution but whose time [of penance] has been established and whose moment of reconciliation has arrived” (Canon 8, our emphasis). The question of divorce and remarriage in the Catholic Church was resolved by this ecumenical council, which decided to admit the divorced and remarried to communion after a period of penance and discernment.

About twelve hundred years later, the Council of Trent affirmed that the Orthodox practice of oikonomia, which literally means “household building,” had as much claim to the gospel as akriveia, strict adherence to church law. (Pope Francis referred to this on the flight back from Rio, when he noted that “the Orthodox have a different practice.”) Oikonomia is considered a more flexible way to interpret the canons. It flows from the Orthodox faith in the benevolent and merciful action of God in the church. God is the father of the household (oikos); Jesus is the Good Shepherd who leaves the ninety-nine good sheep to bring home the lost one; the Holy Spirit is the comforter who makes possible every good in the household; the church is the householder. Oikonomia flows from the scriptural injunction that “the written code kills, but the Spirit gives life” (2 Cor 3:6).

While Catholics believe that the Gospel presents a demand for indissoluble marriage, the Orthodox churches also acknowledge that men and woman sometimes fall short of Jesus’s commands. They acknowledge that Christian marriages fail, and when they fail it makes no sense to argue they are still binding. When a marriage is over, even if the spouses are still alive, oikonomia impels the church to mourn the loss of the marriage. But the church must also be compassionate, because the church is the household of the merciful God. This compassion permits the remarriage of an innocent or repentant spouse. Orthodox liturgy differentiates a second marriage from a first, noting that grace is always threatened by sin, that the Christian ideal is always at the mercy of human frailty. The second-marriage liturgy lacks the joy of the first. It ritually proclaims that no one present, including the priest, is without sin. The church is summoned to minister compassionately on behalf of a compassionate God.

The Catholic Church has much to learn from this practice. After all, as Luke Timothy Johnson wisely noted, what’s at stake “is not the perseveration of Catholic (or European) institutions, or the survival of the community, or even the fullest possible participation in the sacraments. What is at stake is obedience to the living God, without which the church does not have much reason to exist” (“A Modus Vivendi?” Commonweal, December 27, 2011). The church should not foreclose the possibility that in the difficult circumstances of irregular marriages God may be telling us something.

The Catholic hierarchy has been aware of these challenges for decades. Recognizing the annulment crisis, the 1980 Synod of Bishops presented to Pope John Paul II a request that the Orthodox practice of oikonomia be studied for any light it might shed on the Catholic approach. There has yet to be a response to that inquiry. In July 1993, the bishops of the Upper Rhineland in Germany issued a pastoral letter setting forth principles for the treatment of Catholics who were divorced and remarried without annulment. They didn’t offer a blanket approach. Rather, they presented a carefully differentiated pastoral approach by which some divorced and remarried Catholics whose subjective state had been judged not gravely sinful after serious discernment with a competent counselor, might be readmitted to Communion. More recently, in 2012, Cardinal Shoenborn of Vienna argued that a new pastoral approach to the question must be found. He called it the most serious pastoral problem facing the church in Austria. If the church doesn’t change its attitude toward such Catholics, he claimed, it will become little more than a sect.

Like his Rhineland colleagues, Schoenborn did not recommend a blanket approach. Any decision about readmitting divorced and remarried Catholics to Communion must be made on a case-by-case basis. He offered five guidelines. First: Have the parents offered compassionate care to their children? Given the documented negative effect of divorce on children, that is a critical question. Second: Have the former partners made a serious effort at reconciliation? Third: Have they done so in accordance with the prayers Jesus taught his disciples in the Our Father? Fourth: Catholics must remember that marriage between a man and a woman has been and remains the norm for a stable sexual relationship. Catholics who remarry should demonstrate that they intend to live in a stable marriage within a church community in which they manifest a true desire for the sacraments. Fifth: Priests have to urge those who cannot remain married to carefully examine their conscience before God. It’s remarkable how closely these guidelines resemble those offered by Coriden.

According to the Catechism, conscience is a “judgment of reason whereby the human person recognizes the moral quality of a concrete act.” In other words, our conscience helps us recognize the moral thing to do in a given set of circumstances. First, we gather evidence. What do Scripture, tradition, the sciences, and our experience say? What about other competent advisers? Second, we prayerfully contemplate the pieces of evidence, particularly when there are conflicts between them. Third, we consider the options and how they will affect our relationships—with God, our neighbors, and ourselves. Finally, we must freely decide the best course of action, given our circumstances. According to Gaudium et spes, conscience is the “most secret core and sanctuary of a man…[where] he is alone with God whose voice echoes in his depth.” Shortly after that document’s publication, then Cardinal Joseph Ratzinger explained that “over the pope as expression of the binding claim of ecclesiastical authority there stands one’s own conscience, which must be obeyed before all else, if necessary even against the requirement of ecclesiastical authority.” The Catholic tradition of the rights of conscience could not be more clearly stated.

In October 1994, as prefect of the Congregation for the Doctrine of the Faith, Ratzinger sent a letter to the world’s bishops claiming that Catholic teaching on divorce was based on fidelity to the words of Jesus, implying that it could not be changed. Yet the church does dissolve marriages—by granting annulments, something you won’t find in the Gospels. The church may annul the valid marriage of two nonbaptized people, if one of them is seeking baptism, on the basis of the Pauline Privilege, as articulated in 1 Corinthians 7 (Canon 1143). In the sixteenth century, Popes Paul III, Pius V, and Gregory XIII extended that privilege to slaves seeking baptism, even if they had been validly married. The church may dissolve non-consummated marriages, on the basis of a distinction introduced by the twelfth-century Bolognese canonist Gratian, according to which free consent makes marriage valid and consummation makes it indissoluble (Canon 1142). Those canonical practices are not well publicized, but they make it clear that the Catholic Church does not consider all valid marriages indissoluble. Rather, it understands itself to have the power to dissolve some valid marriages. Why can’t the church use that power to dissolve valid first marriages of Catholics who are divorced and in stable marriages?

That is not the only inconsistency. In September 1994, the CDF issued a letter to the German bishops affirming that divorced and remarried Catholics could not receive Communion. “If the divorced are remarried civilly,” the CDF wrote, “they find themselves in a situation that objectively contravenes God’s law. Consequently, they cannot receive Holy Communion as long as this situation persists.” Yet canon law is clear about who cannot receive Communion: “those upon whom the penalty of excommunication or interdict has been imposed or declared, and others who obstinately persist in manifest grave sin (Canon 915, our emphasis). Does grave sin necessarily follow from the fact that an act “objectively contravenes God’s law”? No, it does not.

In Catholic moral theology, three conditions must be met in order for an act to be considered gravely sinful: the act concerns “grave matter” and is chosen “with full knowledge” and “deliberate consent.” The civil remarriage of divorced Catholics without annulment may constitute grave matter in the eyes of the church. It may even, on occasion, constitute subjectively grave sin. But it counts as grave sin only when there is a morally bad motive, disposition, character, full knowledge, and deliberate consent. Some divorced Catholics who have remarried without annulment do not meet those conditions—especially if they have been unable to obtain an annulment for some practical reason (no access to canonical counsel, for example). Therefore, they are not guilty of grave sin, and should not be barred from Communion. But the best way to tell whether grave sin is present in such situations is through face-to-face conversations between the couple and a competent counselor. This must be done locally, personally, and prayerfully—not by an anonymous functionary with no knowledge of the people involved.

Both the CDF and Pope John Paul II argued that readmitting divorced and remarried Catholics to Communion could cause scandal among the faithful. There are in fact two cases in which the church allows such couples to receive Communion. One is if a couple is living “as brother and sister”—that is, they abstain from sexual intercourse. And the second is those couples who have received annulments. Neither case removes the threat of scandal. As the English theologian Kevin Kelly put it, “Unless a couple had a ‘brother and sister’ logo on their doorstep, neighbors and fellow parishioners would be none the wiser, and so the alleged scandal would presumably still be given.” Yet the Catechism and John Paul II present this as a legitimate option. The same is true for the couple with an annulment. Who would know? Given how ubiquitous annulments have become, especially in the U.S. church, most would probably assume they’d been granted one and think nothing of it.

Many irregular marriages have become so stable, so nurtured by Christian faith, that they cannot be dissolved without causing serious spiritual, emotional, and economic harm. The Catholic Church has at least two ways to address this problem. The first is to work out a Catholic oikonomia through prayerful, personal and relational discernment. The second is the church’s canonical power to dissolve marriages. Either way, it is well past time to alleviate the suffering of thousands of Catholics who are confused by a church that teaches the indissolubility of marriages while regularly dissolving them.

Francis seems to recognize this: “Our duty is to find another way, the just way” to respond to Catholics in irregular marriages, he told a group of priests this month. “The problem cannot be reduced to whether” they “are allowed to take communion or not because whoever thinks of the problem in these terms doesn’t understand the real issue at hand.” More and more, it looks like we have a pope who does understand.