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The Catholic Church recognizes most of the world’s ‘civil marriages’

Catholics should not be misled by thinking that “civil marriage” is not usually real marriage or think that any approval of “same-sex marriage” is consistent with Church teaching—because it isn’t.

(us.fotolia.com/zimmytws)

Father Brennan said he would continue to espouse church teaching on marriage—namely that it is between a man and a woman—but this had to be separated from civil marriage, which was the question Australian people were being asked. “It’s a very different institution from what marriage is in the Catholic Church,” he told Sky News.

Balderdash, folks. Complete balderdash.

That being said, though, while supporting “same-sex marriage” is, as I shall reiterate below, gravely morally wrong, Australian Jesuit Frank Brennan’s culpability for endorsing “same-sex marriage” might be mitigated if Brennan is speaking out of that Catholic, benign contempt for “civil marriage” that comes from Rome’s maintaining the requirement of ‘canonical form for marriage’ long after canonical form has ceased to serve important social or ecclesiastical goods.

Let’s back up.

Marriage, a fundamental human right, comes about from the mutual consent of a capable man and a capable woman, while sacramental marriage (what I suggest we rigorously call Matrimony) is a theologically certain consequence of marriage occurring between a baptized man and a baptized woman. Now, insofar as marriage is fundamentally a contract, and Matrimony is a consequence of this contract between Christians (a consequence that allows a contract of marriage between persons to take on the special characteristics of a covenant between Christians), any time a marriage happens between the baptized, Matrimony also happens; but if a marriage did not, for whatever reason, happen, then no Matrimony occurred either.

So far so good. Let’s continue.

For reasons that made sense four centuries ago (chiefly to confront the crisis of clandestine marriage), the Roman Catholic Church began to impose on her faithful the novel requirement that, for the very validity of their marriages (which marriages would automatically be sacraments, of course), the weddings of Catholics must take place before Catholic clergy. This new requirement of “canonical form for marriage” was, to put it mildly, a huge step for the Church to take, one whereby the exercise of a fundamental human right was sharply delineated by ecclesiastical authority. Ever since then, the harsh medicine of canonical form has been administered unsparingly, at times harshly, even though the social and religious malady that it was designed to treat (clandestine marriage) was cured long ago.

In short, in the wake of Trent’s law, the failure of Catholics to marry according to form (that is, if Catholics married “outside the Church”, typically “civilly”) means that their ‘marriage’—even though it is recognized under civil law—does not count before the Church and, given the implications of Matthew 18:18, does not count before God. Thus, if Catholics bound by canonical form go through only a civil (or even a religious, but still non-Catholic) wedding and thereafter present themselves to the world as “married” they give the scandal of falsehood and sexual relations on the pretext of a “civil marriage” is morally tantamount to fornication.

Meanwhile, again to this day, non-Catholics (which is most of the world!) can exercise their fundamental human right to marry in a wide variety of ways, including by civil marriage, and the Church not only recognizes such marriages as binding, she even regards such marriages between baptized persons (say, between Protestants) as sacraments (even if those Protestants do not recognize marriage as a sacrament) and holds all persons in these marriages (including the merely civil ones!) to abide by them. It is all very logical legally, and itis within the Church’s authority to so act, but pastorally, the implications of canonical form lead many Catholics to, among other things, talk about “civil marriage” as if it were not real marriage—which it most certainly is for nearly everybody on earth except Catholics!

This, I say, might explain why Brennan speaks with a polite disdain for “civil marriage”—an attitude that makes some sense in conversation with Catholics but which smacks of contempt for the marriages of hundreds of millions of persons not bound by canonical form and leads him, and many others like him, to fail to recognize just how crucial and non-negotiable is the Church’s defense of marriage itself, marriage that is the foundation of Matrimony.

Even so, however, even as a Catholic speaking to Catholics, Brennan’s defense of “same-sex marriage” is quite wrong.

As I have explained here, that marriage can only exist between one man and one woman is a truth taught with infallible certainty by the Catholic Church, meaning that for a Catholic to endorse any other kind of union (same-sex, group, inanimate objects, etc.) as a form of marriage is for that person to be “opposed to the doctrine of the Catholic Church” (1983 CIC 750 § 2) rendering him or her liable to a just penalty (1983 CIC 1371 n. 1). Moreover, if, as seems to be the case, the divine establishment of marriage as uniting one man and one woman is a “revealed truth”, then a Catholic’s endorsement of any other kinds of unions as marriage is actually heresy (1983 CIC 750) in turn rendering a Catholic liable to even more severe ecclesiastical sanctions including excommunication (1983 CIC 1364 § 1), expulsion from religious life (1983 CIC 696 § 1), and dismissal from the clerical state (1983 CIC 1364 § 2).

There are, to be sure, obstinacy requirements in Canons 750 and 1371 as well, which is why I noted that Brennan’s endorsement of “same-sex marriage” might be based on confusion arising from a common Catholic rejection of “civil marriage” as not real marriage. But my observation highlights what is only an affirmative defense, one rebuttable by contrary evidence and, in any event, a man of Brennan’s legal acumen could not long remain confused about these distinctions.

In the meantime, Catholics should not be misled by thinking that “civil marriage” is not usually real marriage (for most of the world, it is) or think that any approval of “same-sex marriage” is consistent with Church teaching (because it isn’t).

(This post originally appeared on the “In the Light of the Law” blog and is posted here by kind permission of Dr. Peters.)


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About Edward N. Peters 120 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.

19 Comments

  1. Now, who’s gonna tell Fr. Brennan SJ?

    And what if he doubles down? Jebbies seem to have become fairly obstinate under our fearless leader Pope Francis SJ.

    Who will see that the just penalties are applied? Cdl Coccopalmieri?

    Sheesh!

  2. I am so grateful to Ed Peters for posting a thorough explanation about marriage and matrimony. I’ve read lots and even attended a workshop for catechists on marriage years ago, but have only today ‘got it’ . Thank you for clarifying the basics then more. There must be a whole heap of Catholics out there just like me!

  3. Dr. Peters presents a pretty good canonical argument, but Marriage is not just a contract. It is also a sacrament and an act of divine worship. According to St. Ignatius of Antioch, those marrying should do so under or at least letting the bishop know. That was 107 A.D. Now before that St. Paul in Ephesians 3,32 refers to marriage as a great mystery with respect to Christ and the Church. In the Eastern Church, the blessing of the priest is an essential aspect of marriage and the Catholic Church has never had any problem with this. Just like the rest of the sacraments, Marriage has to be celebrated in liturgical function, as it is an ecclesial reality and not just a matter of a contract between the spouses, although that is an important and essential part of it, it is not everything. Is the Orthodox Church also doing some injustice to its members by insisting on the priestly blessing? I don’t think so, as it is emphasising the ecclesial, sacramental and therefore theological side of the matter.

    • As Dr. Peters explains, marriage between an unbaptized man and woman is not a sacrament. But it is a marriage. As he write:

      “Marriage, a fundamental human right, comes about from the mutual consent of a capable man and a capable woman, while sacramental marriage (what I suggest we rigorously call Matrimony) is a theologically certain consequence of marriage occurring between a baptized man and a baptized woman. Now, insofar as marriage is fundamentally a contract, and Matrimony is a consequence of this contract between Christians (a consequence that allows a contract of marriage between persons to take on the special characteristics of a covenant between Christians), any time a marriage happens between the baptized, Matrimony also happens; but if a marriage did not, for whatever reason, happen, then no Matrimony occurred either.”

      In other words, there is what we might call a “natural marriage”, while marriage between two Christians is a sacrament and thus has a supernatural, grace-filled character.

        • Two baptized Catholics cannot have a natural marriage. Canon law states:

          Can. 1055 §1. The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.

          §2. For this reason, a valid matrimonial contract cannot exist between the baptized without it being by that fact a sacrament.

          • Matrimony is a consequence of this contract between Christians (a consequence that allows a contract of marriage between persons to take on the special characteristics of a covenant between Christians)….

            Does it become a Covenant because it is a contract, or is It a Covenant because the Blessed Trinity made it so in His very own Triune Communio??

          • Matrimony is a consequence of this contract between Christians (a consequence that allows a contract of marriage between persons to take on the special characteristics of a covenant between Christians)….

            Does the contract come first in being and act and then the Covenant follows from this as a special characteristic?? Or is the the Covenant the essence and comes First and by which man, male and female, are created in the Image and Likeness of the Divine Triune Communio God??? Is Matrimony an adornment characterist of a God the Divine Contract???

  4. This issue seems to be getting all botched. I wish Dr. Peters would clarify as to whether civil marriages carry the same canonical weight as sacramental ones (assuming a marriage between two baptized Catholics). In this commentary, he seems to make them of equal weight. I do not get the rigorous application of the term “matrimony” in this issue.
    – Also, due to the overwhelming acceptance of gay marriage (notably, among Catholics!), we may see more and more of them. If the Church accepts civil marriage as valid, might it not be forced to also accept civil gay marriage? I think we may want to move away from recognizing civil marriage, even not having the priest act as a civil servant, as he does now, when performing a marriage.
    – Also, if the Church recognizes civil marriage, why bother having a sacramental one?
    – That most of the world’s marriages are civil is not an argument for the Church to accept them for two baptized Catholics.
    – Catholics who are married civilly clearly don’t give a flying hoot about whether the Church recognizes their marriage or not. The ones I know have also not bothered to baptized their children.
    – This all means that Fr. Brennan raises a good point about separation of Church and State. Let the secular world do what they want. We should certainly not endorse it.

  5. Canon law today is the product of 2000 years of some of he finest Catholic minds on determining what marriage is. The crux of the article stands on the ground that Man has a natural right to marriage. That must be respected insofar as non baptized regardless of their beliefs. Persons who are baptized non Catholics [Protestants]assume the character of sacramental marriage because of their being baptized in Christ, who defined the meaning of marriage. Christ confirmed what it was as ordained by God from the beginning prior to baptism, “The two become one flesh”.

  6. Please clarify for me the situation of “marriage’ between a Catholic (baptized obviously) and a non-baptized person in a civil marriage. Thank you.

    • Ronald it appears your question reply is addressed to me. The Church does not recognize the civil marriage since it is invalid. Although the state recognizes it as valid.

  7. Please clarify for me the situation of “marriage” between a Catholic and a non-baptized person via a civil ceremony. This would be considered a real marriage by the Church, but not sacramental, correct? If this is a real marriage, does the Catholic member need an annulment to be free to subsequently marry after a divorce?

    • No declaration of nullity is required because as said previously it is an invalid marriage. The Church would consider it similar to cohabitation.

  8. Thanks Fr Morello, but still a bit confused. My example is invalid, per your comment. I understood validity to refer to the presence or lack of such, of Catholic clergy, so validity would not be a relevant issue for this civil marriage.

    • It’s not the presence of a priest meant to ensure a valid sacrament. Rather it’s the nature of marriage for a baptized Catholic, which by their baptism incorporates sacramental life in Christ, and the obedience, faith, and grace that characterizes life in Christ. The priest is simply a required witness to ensure the sharing of vows that incorporate this. The marriage is actualized by the valid consent of both parties to its meaning.

  9. Still confused—so a civil marriage is a binding, real marriage in the Church’s view, but is “not accepted by the Church” as what? Valid? Real vs. invalid is confusing. So per the Church, only baptized persons can contract a valid marriage? A baptized person or persons contracting a civil marriage are essentially cohabiting?

  10. Thank you so much for the clarification of the Church’s position in regard to Fr Brennan’s S.J. position, as enunciated on Q and A Program last night (23 October). As practising Catholics for over 80 years, my husband of 59 years and I were deeply saddened and somewhat confused by his stated belief that Jesus would be quite pleased with same-sex marriage and that he believed Pope Francis was also that way inclined. Today we both felt deeply saddened (again) for the damage done to the Church we love so dearly, and for all those who may not have the opportunity to have those views repudiated. We will sleep better tonight.

    • There’s nothing with two people in love wanting to solidify their relationship, even if it’s a civil union which the Church doesn’t have to recognize.

      Marriage seem to never always be about the unconditional love shared by two people, across different religions. Even the concept of arranged marriages was a thing in the Western world for the purpose of either maintaining socio-political power, or improve one’s social standing.

      We were not created by God to be ignorant and prejudiced toward our fellow men and women, across race, cultures, ethnicities and sexual orientation. To be able to love and be loved, become equal to each other, and the recognition that we are all different, are what the Church needs to realize in order to remain a relevant and guiding light that unites God’s people with love without bounds and not remain stuck in an era of filled with injustice and discrimination.

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