Author: Dr. Holmes

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.

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.