Who is satisfied with “Mitis Iudex”?

I suggest that Church discipline is seriously threatened by parts of Mitis Iudex and that a major stepping-back from implementation of its most radical norms needs urgently to be requested by bishops

Ross Douthat’s speculations on Pope Francis’ “marriage endgame” are interesting (as usual) and in some respects I agree with them. But in one major respect, I disagree.

Douthat writes: “Fast-tracking annulments weakens the credibility of Catholic doctrine, in both implication and effect. But it does not formally reverse the church’s teaching about the nature of marriage and communion.” Two, maybe three, times Douthat implies that Francis’ strategy (chiefly, that shown by his rewriting of annulments procedures in Mitis Iudex) is a victory (if a small one) for Church teaching on marriage, divorce-and-remarriage, and reception of Communion. I say No, Francis’ strategy is not a victory for Church teaching on these issues for the simple reason that Church teaching on these issues was never at risk.

I grant that, whether with express papal encouragement or simply in the churning wake of Francis’ governing style, some weighty ecclesiastics have argued for changes in formal Church teaching on the permanence of marriage, etc., and that in turn a few observers of things ecclesiastical have been provoked into speculation of schism should such changes be approved. But all such efforts to change doctrine are nonsense and any speculations of schism are absurd.

Popes cannot (not may not, not should not, not aren’t likely to, but cannot) change fundamental Church teaching on these matters, and—even granting an impossible premise—not once have I heard a Catholic defender of marriage ruminate about going into schism if the impossible happens. That is not to say that the likes of Cdls. Kasper and Marx, to name but two, have not done serious damage to the clarity of Church teaching on these issues; they have done damage, and to things besides marriage theory, notably Kasper to sacramental theology and Marx to ecclesiology. But the chances of a formal reversal of fundamental Church teaching on marriage (or on anything else that the Church holds from Christ) are and forever will be zero. Thus, as there was no real risk of impossible changes to doctrine here, the pope’s new annulment norms cannot reckoned a ‘victory’ for doctrine. Anyone who thinks otherwise feared a harm that could not come to pass.

But while some sigh in relief that Church doctrine dodged a bullet (one that could never have hit home), I suggest that Church discipline (that small, vital place where doctrinal rubber hits the pastoral road) is seriously threatened by parts of Mitis Iudex and that a major stepping-back from implementation of its most radical norms (especially the fast-track annulment option) needs urgently to be requested by bishops. Given, I might add, the divinely-imposed hierarchic structure of the Church, if bishops do not act here, there is precious little any one else can do.

Let me be clear, the current annulment process, like any deliberative process devised by human beings, is not perfect. Some things in it (e.g., mandatory review of trial court affirmatives) could be reformed and, if eliminated (as Mitis directs), would speed things up. But most of the rest of the annulment process is, purely as a matter of natural law, required for the reasonably reliable pursuit of justice. What tribunal critic after critic after critic cannot see or refuses to admit is that the annulment process is a legal (not a theological, not a pastoral, but a legal process) designed to answer an important legal (not a theological, not a pastoral, but a legal) question, namely: did two capable people offer correctly their consent to marriage. It’s a Yes-No question on which everything, and I mean everything, else that annulments are and mean in the Church, flows. Get the answer to that question wrong, and everything that follows from it will be wrong.

Now, Mitis does not change one jot or tittle of Church teaching on marriage. It recites the unchangeable nature of Church teaching on marriage and the importance of having an ecclesiastical procedure to investigate the character of marriages entered into by the faithful. But, the fast-track annulment option offered in Mitis removes a significant (and inevitably widening) number of marriages from the real protection that is offered not by heart-warming recitations of Church teaching, but by the practical discipline exercised in formal tribunal annulment cases. Indeed, Mitis so obviously deprives a wide swath of marriages from this sort of dull, demanding, but effective (well, about as effective as men-not-angels can make it), procedural protection, that Francis himself admits the risk to marriage inherent in fast-track annulments and simply appeals to diocesan bishops to make sure that the almost-inevitable doesn’t actually happen—bishops, who, as far as one can tell, were not asked whether they wanted, let alone could carry out, such a task. But in less than three months, unless Mitis is significantly modified or better postponed, all diocesan bishops are going to be tasked with personally processing numerous marriage nullity cases. The implications of this change beggar my poor imagination.

In short:

Those (a fair number, it seems) who want to change Church teaching on marriage (and/or on divorce-and-remarriage, the necessity of repentance from sin for reconciliation, withholding holy Communion from those persisting in objective grave sin, etc.) are not satisfied with Mitis because Mitis changes none of those things.

Those (a few, I suspect) who think no reforms of the annulment process itself are needed, are not satisfied with Mitis because Mitis offers some genuine reforms.

Those (many, I am sure) who want some reform of the annulment process, but not reforms that provide an obvious way to circumvent the deliberate process, are not satisfied with Mitis because Mitis reforms the tribunal process while simultaneously offering a way for many to circumvent it.

In short, I don’t know who is, or could be, satisfied with Mitis as it stands.

(This piece was originally posted on the “In the Light of the Law” site and is reprinted here by kind permission of Dr. Peters.)

About Edward N. Peters 63 Articles
Edward N. Peters, JD, JCD has doctoral degrees in canon and common law. Since 2005 he has held the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit. His personal blog on canon law issues in the news may be accessed at the "In the Light of the Law" site.