Edward Peters: "What Francis Forgets About Marriage" - Tolle, lege!

Our good friend and colleague, canonist Edward Peters, has just published an article, "What Francis Forgets About Marriage" (June 22, 2016), in which he writes: 

How can one square the beautiful ideal of marriage set out by Pope Francis in Amoris Laetitia with his bleak assessment of marriage in real life, which slipped out during a clergy conference last week? Only by avoiding one crucial point about marriage, namely, that it is fundamentally a contract.

Most contracts deal, of course, with narrowly defined activities, such as “fix my car” or “rent me this apartment.” In contrast, the marriage contract, upon the reciprocal expression of consent to its terms by a qualified man and woman, results in a complex and perduring state between those two persons (what modern canon law calls a “consortium of the whole of life”) and, if both spouses are baptized, in a sacrament that reflects the union of Christ with his Church. But whatever else marriage might be socially or spiritually, it is first a contract between two people.

Marriage has been described and defined in contract terms for thousands of years. The Church affirms that human beings are by nature suited to contract marriage, and she teaches that Christian couples can call upon the graces of the sacrament of Matrimony in living out the marriages they contract. Against such an ancient and affirming tradition, Francis’s assertion that “the great majority of our sacramental marriages are null” shocked both common sense and Catholic sensibility. It implied that the great majority of the world’s one billion Catholics (to say nothing of other Christians) failed to achieve the state of life that is most naturally suited to adults and failed to receive the sacrament that Christ established to assist them.

If one ignores, however, the contract-character of marriage and approaches it as a beautiful ideal, the pope’s assertion of rampant matrimonial nullity begins to make sense. How many marriages, Christian or otherwise, will ever achieve the goals described in Amoris? Surely not “the great majority.” Francis’s use of the canonical term “null” to describe millions of supposed pseudo-marriages implied a technical legal expertise that he does not possess—but his basic point was clear: The great majority of Christian marriages aren’t really marriages.

That this assertion was not a verbal slip, and that it likely grew out of an avoidance of the contract foundation of marriage, seems verified by another papal comment not yet expunged from the Vatican’s version of his remarks, namely, that many merely “cohabiting couples are in real marriages and have the graces of marriage.” And why not? If marriage is not a contract and requires no external inaugurating act (e.g., the wedding that marks the beginning of most marriages) why cannot marriage-ish qualities emerge between two cohabiting, so disposed, people over time? Are cohabiting people not capable of love and self-sacrifice? Do married couples have a monopoly on grace?

But however damaging it was to the urgent cause of clarity concerning marriage, the pope’s dark depiction of the state of Christian marriage seems to have resonated with not a few apparently sensible and seemingly informed people who, in face of falling wedding and climbing divorce figures, understandably worry about the future of marriage, both natural and sacramental.

Thinking that the pope has (or had before he changed the record of his remarks) given voice to their concerns—instead of, as I would argue, having aggravated the marriage crisis by confusing common marital problems with massive marital nullity—some folks (I limit my observations to the American Catholic scene) are chiming in with comments along the lines of “Hold on! Francis might be on to something. Many young people don’t understand that marriage is supposed to be for life” or “I have worked in marriage prep programs for several years and I’d say most people do not understand the permanence of marriage.” To these kinds of well-intentioned views let me offer two responses.

First, recall that the pope’s harsh evaluation of most Christian marriages was offered without restriction as to nationality or ethnicity, circumstances of the wedding, age of spouses, duration of relationship, and so on. His was as close to a “universal assertion” about Christian marriage as could be offered. Nevertheless universal assertions are not provable by appeal to particular examples and so one cannot verify Francis’s claim of a global marriage nullity crisis based on what one might have observed among a tiny portion of the world’s married or engaged couples in one part of one country. Not in a Church consisting of a billion-plus people living around the world, one can’t.

With unconscious self-centeredness, some who have observed troublesome attitudes toward marriage around them (i.e., among mostly middle-class, generally white, largely mal-catechized, media-saturated Americans) have extrapolated from those observations to conclude that the great majority of Christians in, say, France, Costa Rica, the Baltic States, and Nigeria, to name just four demographically distinguishable Christianized locales out of thousands, must be approaching marriage in the same way. That, to put it mildly, is one giant leap.

Second, and more importantly, assuming for the sake of argument, against a boatload of counter examples, that one has accurately observed (or correctly guessed) that fewer people marrying or married today “understand the permanence of marriage,” may I ask, so what, exactly?

The canonical norms on marriage (norms encapsulating two millennia of deep reflection on human nature and the doctrines of Christ) do not, repeat, not hold that “ignorance” about permanence in marriage, or a diminished appreciation of permanence therein, or some imperfection in one’s grasp of the concept of permanence itself, renders one’s marriage null. This must be clearly understood: In regard to permanence in marriage, there is no simple ignorance-equals-nullity line in canon law. To be sure, a link exists between ignorance about permanence of marriage and the nullity of marriage, but that link is not immediate; to result in nullity, this ignorance must “determine the will” (Canon 1099, etc.). This middle term in the nullity argument, omitted by Francis and overlooked by those who at first blush are taken with his comments, is absolutely vital for the cogency of the argument. It is not enough to show that one was “ignorant” about permanence in order to prove nullity. One must also show that said ignorance vitiated the will with which a marriage was attempted in order for that marriage to be declared null.

Only a careful assessment of the will at the time of the wedding might disclose a causal link between one’s ignorance about permanence in marriage and the nullity of one’s marrying under such ignorance. And if “consent” cases are generally more difficult to try than are “capacity” or “form” cases (and they are more difficult), “ignorance cases” are among the most difficult of consent cases. It is much easier to suggest “ignorance” than it is to prove canonically significant ignorance. Good canonists know this, even if too many influencers of Catholic opinion do not.

What can be said is this: It is pastorally reckless to suggest that ignorance about permanence in marriage is pandemic among the world’s Christians, and it is canonically impossible to argue that mere ignorance on this point renders any, let alone the great majority of, sacramental marriages invalid; it is logically wrong-headed to parlay one’s personal observations of certain marriage problems into verification of a global marriage crisis centered on those problems; and it is spiritually dangerous to take to heart such theories, especially if it leads to despair about marriage in general or sudden worries about the validity of one’s own marriage.

In short, human nature is not so easily frustrated and the Church’s sacraments are not so frequently null.

Edward Peters has doctoral degrees in canon and civil law. He served for more than ten years in American tribunals at first and second instance and now teaches canon law at Sacred Heart Major Seminary in Detroit.