Cardinal Kasper takes up the question of divorced and remarried Catholics under two headings: (1) those whose first marriages are actually invalid and (2) those whose first marriages are actually valid. For both headings he notes that “solutions are already mentioned in the official documents” of the Church, but he wants to inquire about new directions. Over the next few posts, I’ll crawl through his text more or less paragraph by paragraph.
First he considers those who are subjectively convinced that their first marriage was invalid. Noting that people have to understand certain things in order to give a valid consent to marriage, he asks:
But can we, in the present situation, presuppose without further ado that the engaged couple shares the belief in the mystery that is signified by the sacrament and that they really understand and affirm the canonical conditions for the validity of their marriage? Is not the praesumptio iuris [presumption of validity], from which canon law proceeds, often a fictio iuris [legal fiction]?
He may be right about the situation we face. Our culture militates strongly against understanding marriage as a lifelong commitment for the sake of children, and it would not surprise me a bit to find that most Catholics entering marriage are basically on track with the surrounding culture.
But what argument does he make from that premise? It’s hard to tell what he means to assert, because the whole thing is structured as a vague rhetorical question. It looks as though he is arguing that we should change the presumption on which canon law proceeds. In an annulment case, the marriage is presumed valid until proven otherwise; Kasper seems to be saying marriage is in such a bad state these days that it’s just unrealistic to start by presuming that a marriage is valid, as though that were the typical situation we will see.
Maybe that’s not what he’s saying. But if that is what he’s saying, then I think he’s misunderstanding or misrepresenting what a “presumption” means in law. A “presumption” in law is not based on the statistical likelihood of something being true but on a decision we make about what kind of mistakes our legal system should favor. That is to say, every legal system run by human beings is going to make mistakes, so we have to decide which direction we want the mistakes to go.
For example, in the American legal system the defendant is presumed innocent until proven guilty. We don’t make this presumption because we think or know that a majority of defendants are innocent. We know that our legal system will tilt either toward letting guilty people go free or toward punishing innocent people, both of which are bad, and on the whole we would rather let guilty people go free than punish innocent people. We would rather fail to impose justice on some people than impose injustice on others. So we put the burden of proof on the accuser rather than on the defendant.
Similarly, when a canon law process begins by presuming that a marriage is valid until proven otherwise, this is not based on the statistical likelihood that a given marriage is valid. We make a decision: granted that our canon law courts will make mistakes, would we rather the mistakes go toward insisting a marriage is valid when it isn’t or toward declaring that marriage doesn’t exist when it actually does? Would we rather (a) risk making someone in a miserable situation bear the miserable situation unnecessarily, or would we rather (b) risk telling someone it’s OK to have sexual relations with a person who is not really that person’s spouse? Neither option is good, but we can’t pretend that we won’t make mistakes, so we have to think this through. The presumption in favor of validity is one way of tilting toward (a).
My point in this post is not to settle which option we should favor, but just to point out what’s really going on beneath Kasper’s argument. It doesn’t make sense to change the presumption of validity as an concession to reality, as though the presumption were a statement about probability. The real issue is this: should we sometimes mistakenly make people suffer, or should we sometimes mistakenly encourage people toward objectively wrong actions?
Stepping back from details, I am puzzled by the fact that Kasper never offers an extended reflection on how to prepare people for marriage. If the big crisis is that most Catholics entering marriage don’t have sufficient comprehension of what they are doing to contract a valid marriage, shouldn’t we brainstorm how to change that? Or does saying with Pope Francis that the Church is “a field hospital after battle” mean we have to wait for people to get hurt before we go to work? Surely not, but I don’t think I’m tracking how Kasper decided what to write about.