As Cardinal Kasper pursues the situation of re-married Catholics whose first marriages might be invalid, he asks whether we could change the way we decide questions of validity. Noting that the decision can’t just rest on the subjective judgment of the parties concerned, he urges:
However, one can ask whether the judicial path, which is in fact not iure divino [by divine law], but has developed in the course of history, can be the only path to the resolution of the problem, or whether other, more pastoral and spiritual procedures are conceivable.
Kasper does not elaborate on what these procedures might be, but a bit further on he recalls Pope Francis’ remarks that behind every judicial proceeding there stand persons who expect justice. He asks, rhetorically:
Therefore, can it really be that decisions are made about the weal and woe of people at a second and a third hearing only on the basis of records, that is, on the basis of paper, but without knowledge of the persons and their situation?
Kasper is surely within the bounds of propriety to ask whether we could improve our canonical proceedings. They are not infallible or impeccable. However, I am unclear as to what Kasper wants known about the “persons and their situation”. A one-sentence suggestion may shed some light on what Kasper is thinking here:
Alternatively, one might imagine that the bishop could entrust this task to a priest with spiritual and pastoral experience as a penitentiary or episcopal vicar.
The direction Kasper would like to take seems to be toward a more intimate knowledge of the people and the little details of their life so that a decision could be made in light of a fuller understanding of the couple. I see two of problems with this, one theoretical and one practical.
At the theoretical level, Kasper’s proposed direction seems to change the nature of the decision sought. The canonical proceeding is about discerning whether a marriage is valid or not valid, that is, it’s about discovering a truth. To discover what’s true, you want to have both sides argued carefully, which usually means in writing, and you want to limit your consideration somewhat to avoid being chasing irrelevancies.
Kasper’s proposed direction recasts the decision sought as a practical deliberation about what should be done: the couple’s present situation does not change the truth of whether they are married, but it does change what they should do in light of that truth. If the Church’s effort is not to discover the truth about a sacrament but to decide what to do with people then Kasper’s proposal makes sense: if a judge is not only trying to decide guilt or innocence but also trying to decide on a sentence for the condemned, then knowing their present situation and the details of their life may be relevant. However, this recasting of the nature of the process seems off to me: the Church is not in fact trying to decide what to do with people, or “sentence” them to this or that. She’s just trying to find out what is the truth about a sacrament.
At the practical level, I think Kasper’s proposed direction shows a one-sided train of thought. If we only think about a spouse who fell into a pseudo-marriage that turned abusive, but who later found happiness in a second relationship and just needs release from the fictitious first marriage—in these situations, a series of intimate conversations leading to mercy sounds great. But when we consider perhaps a spouse who found meaning in life through her marriage, through her beloved, and now is unwilling to say to the world that what they had together was only a pretense—in this case, reducing the case to her husband’s present misery seems unjust. It needs a proceeding, a real investigation. Kasper presents his suggestions all from the side of those who want an annulment and never from the side of those who don’t want their marriage annulled.
And his one specific suggestion sounds like a disaster to me. When stakes and emotions are high, what you want to do is to have transparency and objective policies, not to put some individual judge on the spot for making people miserable or happy. The pressures on the judge become unbearable, and it becomes too likely that the party with the most winning personality will prevail. I’ve been in those situations. To riff on Kasper’s complaint, can it really be that decisions will be made about the weal and woe of people only on the basis of one priest’s unmonitored judgment?
Stepping back from the details, I am troubled to see how Kasper wants to tip the annulment process toward a deliberation about what to do instead of a deliberation about what is true. It plants a seed of doubt in my mind about whether Kasper truly believes that marriage is indissoluble.
