Seminary Prof critiques Cardinal Kasper on re-marriage and Communion

Always a model of diplomacy, Sacred Heart Major Seminary Professor of Systematic Theology, Dr. Robert Fastiggi, recently wrote a courteously-worded critique of Cardinal Kasper's Feb. 20 address on the family that was subsequently posted under the title of "A Reflection on Cardinal Kasper's Speech on the Family: Theology Professor Detects Problems with Cardinal's Comments on Divorce and Remarriage" (Zenit, March 12, 2014). Please be advised that Dr. Fastiggi goes more than the proverbial "second mile" in diplomacy here, which should help his critique get at least a sympathetic hearing:

ROME, March 12, 2014 (Zenit.org) - Robert Fastiggi, Ph.D. professor of systematic theology at the Sacred Heart Major Seminary in Detroit, MI, has shared the following response to Cardinal Walter Kasper’s Feb. 20th address to an extraordinary consistory of cardinals. The cardinal’s address focused on the family but his comments on divorced and remarried Catholics caused some controversy. Here Professor Fastiggi examines the speech and aspects which he finds problematic.

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Cardinal Walter Kasper, the president emeritus of the Pontifical Council for Christian Unity, gave a two hour address on Feb. 20, 2014 to an extraordinary consistory on the family at the Vatican. In his March 5, 2014 interview with the Italian newspaper, Corriere della Sera, Pope Francis was asked about the Cardinal’s presentation. The Holy Father remarked that Cardinal Kasper had given “a most beautiful and profound presentation” (una bellissima e profonda presentazione). He indicated, though, that section five of the Cardinal’s talk is likely to generate an intense discussion, which we should not fear because it can lead to theological and pastoral growth.

An Italian text of Cardinal Kasper’s address was made available on March 1, 2014 via the on-line Foglio Quotidiano as a Vaticano Esclusivo. In addition to Cardinal Kasper’s address, there was also a critique by Prof. Roberto de Mattei of the European University in Rome. Based on this Italian text, I would like to offer the following comments:

Positive Aspects of the Address

Cardinal Kasper provides a very rich anthropological and biblical synthesis of the theology of marriage. He also takes note of the many challenges facing the Church with regard to the present state of marriage and family life. His address is divided into five parts with two appendices. The five sections are: 1) the family in the order of creation; 2) the structures of sin in the life of the family; 3) the family in the Christian order of redemption; 4) the family as domestic Church; and 5) the problem of the divorced and remarried.

I agree with Pope Francis that there are many beautiful insights about marriage in this presentation, especially in the first four sections. Cardinal Kasper highlights the foundation of marriage in the natural law (section 1); the importance of children (section 2); the family as the fundamental cell of society and a school of the virtues (section 3); the Church’s need for the family and the family’s need for the Church (section 4). In my opinion, these first four sections provide a very beautiful synthesis of the key points of the Catholic theology of marriage.

The fifth section of Cardinal Kasper’s address is the most controversial. In this section he discusses the difficulties faced by Catholics who are divorced and remarried civilly. He affirms the indissolubility of sacramental matrimony and the impossibility of a new marriage while the other spouse is still living. He describes this as “part of the tradition of the binding faith of the Church and it cannot be abandoned or dissolved by an appeal to a superficial comprehension of a cheap type of mercy.” Nevertheless, the Cardinal wonders whether the door might be open to further development regarding the pastoral care of the divorced and remarried without abandoning the binding tradition of the faith. By way of comparison, he mentions how Vatican II was able to develop the Church’s response to the questions of ecumenism and religious freedom without violating traditional doctrine. In this regard, Cardinal Kasper suggests that divorced and remarried Catholics can be allowed to receive Holy Communion in individual cases under certain conditions after an appropriate penance.

Problems with the Address

While Cardinal Kasper’s proposal is very nuanced and measured, his arguments are not free of difficulties. In what follows, I will try to summarize what, in my opinion, are the main problems:

1) The move beyond Church tribunals: Cardinal Kasper states that it is not divine law (iure divino) that cases of the divorced and remarried must only be handled by juridical means. He wonders whether the bishop might not entrust these cases to a priest with pastoral and spiritual experience as a type of penitentiary or episcopal vicar. This evasion, though, of the Church’s juridical process seems to have many potential dangers. If the priest is going to make a declaration of nullity of the prior putative marriage, on what basis can he make this judgment other than through the Church’s canon law? How, though, is an individual priest better able to apply canon law than an ecclesiastical tribunal? If, though, the job of the designated priest is to decide whether or when divorced or remarried couples can be admitted back to Holy Communion on what basis does he make this decision? If he admits them back to the reception of Holy Communion without a firm resolve to remain continent, then it seems that a concession is being given to have sexual relations with someone other than one’s sacramental spouse. This, though, seems like permission to commit adultery, which is contrary to divine law!

2) The need to move from general rules to the consideration of the unique situation of the human person. Cardinal Kasper appeals to Pope Francis’ Jan. 24, 2014 address before the Roman Rota in which the Holy Father emphasized that the pastoral and juridical dimensions should not be placed in opposition. In light of this, Cardinal Kasper points to the spiritual needs of divorced and remarried Catholics. He wonders whether the encouragement for them to receive “spiritual communion” instead of sacramental communion makes any sense in light of the fundamental sacramental structure of the Church. If these divorced and remarried Catholics can make a spiritual communion with Christ in spite of their situation, why can they not receive the sacramental communion of the same Christ? The simple response to the Cardinal’s question is that those who persist in grave sin are not to receive Holy Communion (CIC, canons 915–916). Having conjugal relations with someone other than one’s spouse is a grave or mortal sin because it is adultery. Proper care for the human person can never give way to a permission to sin. If the Church allows divorced and remarried Catholics to receive Holy Communion, this would mean either that marriage is not indissoluble or that adultery is not a mortal sin. As John Paul II writes in Familaris consortio, 84: “If these people [divorced and remarried Catholics] were admitted to the Eucharist, the faithful would be led into error and confusion regarding the Church’s teaching about the indissolubility of marriage.” The rules of the Church are grounded in the teachings of Christ, which are directed to the true good of every individual. There is no contradiction between applying the teachings of Christ and care for the true good of each person. It is no doubt difficult for divorced and remarried Catholics to refrain from receiving Holy Communion. Their hunger for the Eucharist, however, might motivate them to turn to the Church to see if their prior putative marriage was truly valid. Cardinal Kasper’s suggestion would eliminate the need for such an inquiry because the Church could allow them to receive Holy Communion without a declaration of nullity.

3) The ancient Church provides examples of allowing the divorced and remarried to be re-admitted back to ecclesial communion and the Eucharist. Cardinal Kapsar’s historical examples in this regard are open to challenge. His appeal to canon 8 of the Council of Nicaea I (325) is misguided. This canon does not apply to the divorced and remarried. The clemency shown is to the Cathars who were rigorists and had previously refused communion with those who had entered into a second marriage after their first spouse died. As a condition for their return to Catholic communion, the Cathars were required to be in communion with these widows and widowers who had remarried. This is made clear in Christian Marriage: An Historical and Doctrinal Study by George J. Joyce, S.J. (Sheed & Ward, 1933), pp. 581–582. Prof. Roberto de Mattei also cites Fr. Joyce’s book to refute some of the historical examples of Cardinal Kasper. The cases the Cardinal mentions of remarried Catholics being re-admitted back to Holy Communion after doing penance were cases that involved expiation from the sin of the invalid second marriage, which was being abandoned. These were not cases of doing penance that allowed the penitents to continue living in the invalid second marriage. Cardinal Kasper likewise can be challenged for his implication that St. Basil allowed the divorced and remarried to continue living in their unions after doing penance. As Fr. Joyce shows, “St. Basil is simply concerned with the question whether a married man separated from his wife and living with a paramour incurs in all cases the canonical penance for adultery as such” (p. 322). If the man was deserted by his wife and he takes up with a mistress, both he and the mistress can receive a milder penance intended for non-adulterous fornication. This is the indulgence St. Basil allowed—not an indulgence to continue in the non-marital relation! St. Basil’s position is clear in his Ethica, Regula 73, c. 2: “It is not lawful for a man to put away his wife and marry another. Nor is it permitted that a man should marry a wife who has been divorced by her husband” (PG. 32, 730). Other examples cited by Cardinal Kasper are also questionable. His mention of penance as the “second plank after baptism” is taken from Tertullian, De paenitentia 4,2 and cited in the Council of Trent’s Decree on Justification (D-H, 1542). He’s correct that penance served in the early Church as the second plank for penitent apostates or the lapsed (lapsi). This, though, assumed that the penitents gave up their sin of apostasy. It was not a penance that allowed them to persist in their sin! A much better assessment of the practice of the early Church toward the divorced and remarried is found in Cardinal Ratzinger’s text, Concerning Some Objections to the Church’s Teaching on the Reception of Holy Communion by Divorced and Remarried Members of the Faithful, published as the introduction to Vol. 17 of the series of the Congregation for the Doctrine of the Faith entitled, Documenti e Studi: On the Pastoral Care of the Divorced and Remarried (Vatican City, 1998). This text—which is now found on the Vatican website in support of the 1994 document of the CDF on this subject—provides a thorough refutation of the types of examples given by Cardinal Kasper. While admitting the possibility of some exceptional cases, Cardinal Ratzinger states: “In the early Church at the time of the Fathers, divorced and remarried members of the faithful were never officially admitted to Holy Communion” (n. 2).

4) The Catholic Church has never rejected the practice of the Eastern Orthodox on allowing divorce and remarriage. Cardinal Kasper makes this claim in his second appendix, and he appeals to the assessment of the Council of Trent on this issue by several scholars. The Council of Trent, however, anathematizes those who “say that the Church is in error for having taught and for still teaching that in accordance with the evangelical and apostolic doctrine [cf. Mt 5:32; 19:9; Mk 10:11f; Lk 16:18; 1 Cor 7:11] the marriage bond cannot be dissolved because of adultery on the part of the spouses and that neither of the two, not even the innocent one who has given no cause for infidelity, can contract another marriage during the lifetime of the other; and that the husband who dismisses an adulterous wife and marries again and the wife who dismisses an adulterous husband and marries again are both guilty of adultery” (D-H, 1807). This condemnation leaves no room for the toleration of the present practice of the Eastern Orthodox Churches. As Cardinal Ratzinger writes in the text cited above: “On doctrinal grounds, the praxis of the Eastern churches separated from Rome cannot be taken up by the Catholic Church … Furthermore, there is evidence that groups of Orthodox believers who became Catholic had to sign a profession of faith with an explicit reference to the impossibility of a second marriage” (n. 2).

5) Conclusion. Cardinal Kasper is to be commended for the first four sections of his Feb. 20, 2014 address. His fifth section, however, seems to resurrect suggestions that have been presented before and rejected by the Congregation for the Doctrine of the Faith. A far better discussion of the issue can be found in Cardinal Gerhard Müller’s excellent article that appeared in L’Osservatore Romano [Eng. Ed.] of Oct. 23, 2013.