What will the synod on the family decide about Holy Communion for remarried divorcees wrongly denied an annulment? As Pope Benedict says ‘mistakes occur’

Benedict XVI (PA)

I begin with Fr Ray Blake’s current post. “For me”, he says, “Pope Francis is still a ‘puzzle inside a riddle wrapped in an enigma’, is he a conservative or a liberal, incredibly subtle or just crass, is he going to lead the Church into deep waters or onto the rocks? A year on from his election and there are still no clear answers.”

I’m not so sure. I don’t think he’s crass: he wouldn’t have maintained the extraordinary credibility he currently enjoys among those not of the faith (something to thank God for incidentally, and not to sneer at) if he had been. As for subtlety, well, certainly, it’s not the traditional European-style subtlety involving a certain kind of understated intellectual finesse; it’s rather a more spontaneous, new world subtlety which relies more on quick thinking and a sense of equilibrium, on keeping his balance when you might think he could lose it, like a skilled horseman on a frisky mount.

As for the big question, “is he a conservative or a liberal”? –in matters of doctrine he’s very clearly (as all Popes are, it’s what they’re for) a conservative even when the press thinks otherwise; and when it’s a matter of his pastoral instincts, he’s a liberal in the sense of being what is I fear still called (dread phrase) “non-judgmental”: hence the notorious airborne “who am I to judge?”: he wasn’t saying that the Church’s teachings on homosexual acts were no longer operative, that there was some difference between his “policy” on the matter and that of previous popes: he was saying that God would judge individuals, and that it wasn’t for him to do so, a wholly orthodox proposition: judge not lest ye be judged.

Pastorally, he is happiest and most effective saying what he’s for rather than what he‘s against. He has made it clear, for instance, that he affirms the Church’s teaching on single sex marriage: he’s against it. What he’d rather do, though, is say why he’s in favour of the real thing, as he did this week at the Wednesday general audience:

Pope Francis stressed the importance of marriage between a man and a woman at his general audience at the Vatican on Wednesday (April 2), saying the two were united in “one flesh” as “icons of God’s love.”

“When a man and a woman celebrate the sacrament of marriage, God is reflected in them,” the pontiff told an estimated 45,000 pilgrims who gathered in St. Peter’s Square.

“As ‘one flesh’, they become living icons of God’s love in our world, building up the Church in unity and fidelity,” he said. “The image of God is the married couple — not just the man, not just the woman, but both.”

Fr Ray seems to come down in his interesting post on the side of the Pope’s doctrinal conservatism. He doesn’t think that the Synod on the family is going to rewrite the rules on giving Holy communion to divorced and remarried people. The German bishops have been firmly put in their place: the Pope has supported Cardinal Müller’s ruling on the matter: “every sign from Francis, given by Müller, is that reform of the annulment process is more likely than a simple admission of those in a state of sin -defined not by the Church but by the Lord—is probably the course of action he favours. The solution will be Canonical not theological, which might account for Cardinal Burke still being in place and for Cardinal Piacenza, now recovering from his illness, being sent as Prefect to the Apostolic Penitentiary. Interestingly, the writers of the Church’s law are convinced Ratzingerians.”

The invocation of the magic word “Ratzinger’ reminds us that the former Prefect of the CDF has made some interesting observations as to how to approach the question of those many Catholics who have been, in their own judgement and that of neutral observers—often their parish priest—unjustly refused annulments: hence the need for reform of the annulment procedures. As Sandro Magister has pointed out in his document making it clear that there can be no change in the Church’s teaching on the indissolubility of a validly celebrated marriage, Cardinal Mueller cites a 1998 article by Cardinal Ratzinger, republished in “L’Osservatore Romano” of November 30, 2011, in which the predecessor of Pope Francis explored the pros and cons of a hypothetical solution: “the possible recourse to a decision in conscience to receive communion on the part of a divorced and remarried Catholic, in the event that the lack of recognition of the nullity of his previous marriage (on account of a sentence maintained to be erroneous or because of the difficulty of proving its nullity in the tribunal procedure) should contrast with his well-founded conviction that the marriage is objectively null”.

So, the forthcoming Synod on the family is not going to abandon any of the Church’s teachings. However, it may well go for the “Ratzinger hypothesis”. Pope Benedict returned to this question in December 2011. “If the prior marriage of two divorced and remarried members of the faithful was valid”, he reaffirmed, “under no circumstances can their new union be considered lawful and therefore reception of the sacraments is intrinsically impossible.” Yes, but: how many marriages are in fact valid? How many, for instance, are celebrated with what the Church would judge to be an inadequate intention or by inadequate procedures? A huge number, surely. ‘The Church, added Pope Benedict, “has the authority to clarify those conditions which must be fulfilled for a marriage to be considered indissoluble according to the sense of Jesus’ teaching.”

And, he goes on, the ecclesiastical tribunals that should ascertain whether or not a marriage is valid do not always function well. Sometimes the processes “last an excessive amount of time.” In some cases “they conclude with questionable decisions.” In still others “mistakes occur.”

In these cases, therefore, Benedict concludes, “it seems that the application of ‘epikeia’ [which means, interestingly in this context, “reasonableness”] in the internal forum [i.e. in the confessional or in the privacy of an individual’s conscience] is not automatically excluded”.

“Some theologians”, the Pope went on, “are of the opinion that the faithful ought to adhere strictly even in the internal forum to juridical decisions which they believe to be false. Others maintain that exceptions are possible here in the internal forum, because the juridical forum does not deal with norms of divine law, but rather with norms of ecclesiastical law.”

“This question”, Pope Benedict went on, “demands further study and clarification”. Well, that’s what Pope Francis has asked the Synod to provide. And good luck to them: is this massive talking shop really going to provide an answer the Church can operate practically? As Benedict says: “the conditions for asserting an exception would need to be clarified very precisely”. I fear, however, that what we’re going to get (I hope I’m wrong) is a final document replete with vague generalities, which will leave us just where we were. Unless, that is, someone like Cardinal Müller, maybe with Pope Benedict’s behind-the-scenes guidance, produces a text proposing a real and concrete resolution of the “Ratzinger hypothesis”, a text which he succeeds in getting ratiified first by the Synod then by the Pope himself.

Some will say that this will be just a way of abandoning the Church’s teachings on indissolubility. The media will certainly think that. Those who reject any resolution of the “Ratzinger hypothesis” will probably dismiss epikeia as being casuistical, in the sense that the word “casuistry” is usually understood. My online Oxford dictionary has a thesaurus attached, which has the following synonyms: “sophistry, specious reasoning, speciousness, sophism, equivocation”: what it actually means, according to the online Catholic Encyclopaedia, is “The application of general principles of morality to definite and concrete cases of human activity, for the purpose, primarily, of determining what one ought to do, or ought not to do…. the special function of casuistry is to determine practically and in the concrete the presence or absence of a definite moral obligation”.

What we need here, in other words, is the sound application of casuistry to particular cases, and guidance as to how to do it when it comes to this particular problem. Jesuits are supposed to be good at it, and we have a Jesuit Pope. I have a note here which says that the Society of Jesus “raised casuistry to new heights during the period from 1556 – 1656”: we need our Jesuit Pope to raise it to new heights this October. And if he can’t, I think he knows a man who can.