The law before ‘Amoris’ is the law after

Those who think Francis’ apostolic exhortation has cleared a path to the Communion rail for Catholics in irregular marriages are hearing words that the pope (whatever might be his personal inclinations) simply did not say.

Holy Communion is to be withheld from divorced-and-remarried Catholics in virtue of Canon 915 which, as has been explained countless times, does not require Catholic ministers to read the souls of would-be communicants, but rather, directs ministers to withhold holy Communion from those who, as an external and observable matter, “obstinately persevere in manifest grave sin”. The Catechism of the Catholic Church 2384 describes civil remarriage after divorce as “public and permanent adultery” (something obviously gravely sinful), so, if Francis had wanted to authorize the administration of holy Communion to divorced-and-remarried Catholics (and he did not want to repudiate CCC 2384, 1650, etc.) he would have had to have wrought a change in the law contained in Canon 915.

To legislate for the Church popes usually employ certain types of documents (e.g., apostolic constitutions, motu proprios, ‘authentic interpretations’) or they use certain kinds of language (e.g., ‘I direct’ or ‘I approve in forma specifica’). Amoris laetitiae, an “apostolic exhortation”, is not a legislative document, it contains no legislative or authentic interpretative language, and it does not discuss Canon 915. The conclusion follows: whatever Canon 915 directed before Amoris, it directs after, including that holy Communion may not generally be administered to Catholics living in irregular marriages.

To this conclusion, however—and recalling that the burden of proving that the law changed is on those who claimed that it changed, not on others to prove that it hasn’t—I can anticipate at least three rejoinders.

The first is easily dismissed.

1. Pope Francis wrote that “Each country or region, moreover, can seek solutions better suited to its culture and sensitive to its traditions and local needs.” AL 3, and 199, 207. But of course developing local approaches to proclaiming universal truths is a hallmark of “pastoral theology” (when that concept is properly understood and not offered as cover for avoiding the demands of Christian doctrine). Church documents often encourage local initiatives, but they never authorize dilution, let alone betrayal, of the universal teachings of Christ and his Church. Amoris might well have left itself open to regional manipulation (as Robert Royal has explained) but Catholics committed to thinking with the Church will not develop particular approaches to ministry among the divorced that betray the common truth about the permanence of marriage.

A second rejoinder is, however, more complex.

2. In AL 301 Francis writes: “Hence it is can [sic] no longer simply be said that all those in any ‘irregular’ situation are living in a state of mortal sin and are deprived of sanctifying grace.” This presents a more substantial objection to my conclusion above for, at first glance, Francis seems to attack the very idea that the irregular situation usually produced by a post-divorce civil remarriage is gravely sinful. We need to consider this possibility carefully.

Setting aside whether any Church document ever ‘simply said’ what Francis implies above, one can agree that it would be wrong to assert that “all” people living in “any” irregular situation are necessarily “living in a state of mortal sin”. If even one person living in an irregular marriage situation does so with no suggestion of sin—and I can think of many*—Francis’ point, narrowly and literally read, stands.

But Francis’ assertion here could mean something more contentious, namely: that we can no longer assert that any individual living in an irregular union could be “living in a state of mortal sin”—an assertion that would, I suggest, place Francis in opposition to Church tradition. Let’s consider this possibility more closely:

A) The phrase “living in a state of mortal sin” could be understood as a short-hand way to describe many morally wrong living situations, one that summarizes Church teaching that all Catholics must, on pain of committing grave sin, abide by certain laws and teachings regarding marriage and sexual activity. That is how all of the canonists, moral theologians, and clergy whom I know, and most of the lay Catholics in my circle, use the term. I think it consistent with the Catechism of the Catholic Church. But,

B) The phrase “living in a state of mortal sin” could also be taken as judging the state of another’s soul based on their living arrangement. Whether speaking from ill-will or from inaccurate catechesis, Catholics who describe others (let alone all others) living in irregular marriage situations as “living in a state of mortal sin”—meaning by that phrase that such persons have necessarily incurred the guilt of grave sin—should indeed cease thinking and speaking that way.

So, if the pope was thinking about those who use the phrase “living in a state of mortal sin” to imply an ability to read souls, then his admonition that one must not speak this way is quite sound, it does nothing to detract from the Church’s view that post-divorce civil marriage is an aggravated form of adultery, and it impacts not one jot or tittle of Canon 915. But to construe the pope’s words here as denying that freely living in an irregular marriage situation can be, as the Catechism holds, gravely sinful, and that therefore Canon 915 is not applicable to such cases, would be to attribute to the pope a conclusion at odds with Church moral and sacramental teaching. That accusation should not be casually made.

Finally, however, let’s assume that, however he expressed himself, the pope somehow really believes that few Catholics, perhaps none, living in irregular marriages are subjectively culpable for their state. Even that conclusion on his part would have no bearing whatsoever on the operation of Canon 915 because, as noted above, Canon 915 does not (and cannot!) operate at the level of interior, subjective responsibility, but rather, it responds to externally cognizable facts concerning observable conduct.

Yet a third possible rejoinder relies another eisegetical reading of Francis’ words.

3. Some think that AL fn. 351 and its accompanying text authorize holy Communion for Catholics in irregular marriages. I would ask, recalling that a matter of law is at issue, where does Francis do this? The pope says that Catholics in irregular unions need the help of the sacraments (which of course they do), but he does not say ALL of the sacraments, and especially, not sacraments for which they are ineligible. He says that the confessional is not a ‘torture chamber’ (a trite remark but not an erroneous one). And he observes that the Eucharist is not a prize for the perfect (thank God), but a powerful spiritual medicine, which it is—unless it is taken unworthily or in violation of law, a caveat one may assume all Catholics, and certainly popes, know without having to say it.

Bottom line: sacramental rules are made of words, not surmises. Those who think Amoris has cleared a path to the Communion rail for Catholics in irregular marriages are hearing words that the pope (whatever might be his personal inclinations) simply did not say.

* Example: One who was baptized Catholic but raised without knowledge of that fact, is (incredibly) bound by canonical form and thus, if married outside of form, he or she would be, by definition, living in an irregular union. It would be ludicrous to refer to such a person as “living in sin”. I can offer a dozen more fact patterns that would duplicate this point.

[This post originally appeared on the “In the Light of the Law” blog and is reposted on The Dispatch by kind permission of Dr. Peters.] 

·         Further reading – Amoris Laetitia: A CWR Symposium 

About Edward N. Peters 60 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.