Sandro Magister, at his blog Chiesa, provides us with the ending of a 1972 article written by the Pope Emeritus when he was Father Ratzinger. In that article Father Ratzinger, under certain conditions, supported allowing divorced and remarried Catholics whose prior marriage had not been annulled to receive Communion:
The Church is Church of the New Covenant, but it lives in a world in which there continues to exist unchanged the “hardness of … heart” of the Old Covenant. It cannot stop proclaiming the faith of the New Covenant, but very often it is forced to begin its concrete life somewhat below the standards of the Scriptures.
So in clear emergency situations it can make limited exceptions in order to avoid worse things. The criterion of this manner of operating should be: the limits of acting against “that which is written” lie in the fact that this action cannot bring into question the foundational form itself by which the Church lives. It is therefore bound to the character of the exceptional solution and of aid in a situation of urgent need, as for example in temporary missionary situations, but also in the concrete emergency situation of the union of the Churches.
This brings up the practical question of whether it is possible to cite such an emergency situation in the present-day Church and indicate an exception that would correspond to these parameters. I would like to attempt, with all the necessary caution, to formulate a concrete proposal that to me seems to be situated within this context.
When a first marriage has been broken for some time and in an irreparable manner for both parties; when on the contrary a second marriage contracted afterward has shown itself for a prolonged period of time to be a virtuous reality and has been conducted in a spirit of faith, particularly in the raising of children (such that the destruction of this marriage would cause the destruction of a virtuous entity and would cause moral harm), through an extrajudicial route and on the basis of the testimony of the pastor and members of the community, those living in such a second marriage should be granted permission to receive communion.
Such an arrangement seems to me justified by tradition for two reasons:
a. One must expressly remember the margin of latitude that is to be found in every process of annulment. This discretional margin and the disparity of opportunity that inevitably stems from the cultural level of the persons involved, as also from their financial resources, should put one on guard against the idea that justice could be perfectly satisfied in this way. In addition, many things simply are not judicable, even though they are real. Juridical questions must necessarily be limited to that which is juridically demonstrable, but precisely for this reason they can overlook decisive facts. Above all, in this way the formal criteria (errors of form or intentional disregard for ecclesial form) become so prevalent as be able to lead to injustices. Overall, from the juridical point of view the fact of focusing the question on the foundational act of marriage is inevitable, but nonetheless it constitutes a limitation of the problem that cannot fully render justice to the nature of human action. The process of annulment indicates practically a group of criteria to establish if the parameters of marriage between believers cannot be applied to a particular marriage. But it does not exhaust the problem and therefore cannot advance the claim of that rigorous exclusivity which must be attributed to it in the domain of a particular form of thought.
b. The recognition that the second marriage has demonstrated itself for a prolonged period of time to be a virtuous reality and that it has been lived in the spirit of faith in fact corresponds to that type of indulgence which emerges in Basil, where, after a protected period of penance, the “digamus” (meaning someone living in a second marriage) is granted communion without the annulment of the second marriage: with trust in the mercy of God, who does not let penance go unanswered. When the second marriage produces moral obligations with regard to the children, the family, and even the wife and there are no analogous obligations stemming from the first marriage; when for moral reasons, therefore, the cessation of the second marriage is inadmissible and, on the other hand, abstinence is practically not a real possibility, (“magnorum est,” Gregory II says), openness to Eucharistic communion, after a trial period, certainly seems to be just and fully in line with the tradition of the Church: here the granting of “communio” cannot depend on an act that would be immoral or, in fact, impossible.
The distinction made in comparing the first thesis with the second should also correspond to the Tridentine caution, although as a concrete rule it goes further: the anathema against a doctrine that is intended to make the fundamental form of the Church an error, or at least a dispensable custom, remains in all its rigor. Marriage is a “sacramentum,” it has the irrevocable fundamental form of a decision undertaken to the full. But this does not rule out the fact that the Eucharistic communion of the Church should also embrace persons who recognize this doctrine and this principle of life but find themselves in an emergency situation of a special nature in which they have particular need for full communion with the Body of the Lord. In this way as well the faith of the Church would remain a sign of contradiction: it is this which it considers essential, and precisely in this knows it is following the Lord, who proclaimed to his disciples that they must not presume to be above their Master, who was rejected by the devout and the liberal, by Jews and pagans.
The Pope Emeritus long ago changed his mind on this subject. Perhaps as a result of Cardinal Kasper citing this article, the Pope Emeritus this year has rewritten the ending of this article:
The Church is Church of the New Covenant, but it lives in a world in which there continues to exist unchanged that “hardness of … heart” (Mt 19:8) which drove Moses to legislate. So what can be done concretely, especially at a time in which the faith is being watered down more and more, even within the Church, and the “things with which the pagans are concerned,” against which the Lord warns the disciples (cf. Mt 6:32), threaten to become ever more the norm?
First of all, and essentially, it must proclaim the message of faith in a convincing and comprehensible way and seek to open spaces in which this can be truly lived. The healing of “hardness of heart” can come only through faith, and only where this is alive is it possible to live what the Creator had destined for man before sin. This is why the main and truly fundamental thing that the Church must do is to make faith living and strong.
At the same time, the Church must continue to seek to plumb the breadth and boundaries of the words of Jesus. It must remain faithful to the mandate of the Lord, and cannot even stretch it very much. It appears to me that the “clauses of fornication” that Matthew added to the words of the Lord handed down by Mark already reflect such an effort. One instance is mentioned that the words of Jesus do not address.
This effort has continued over the whole course of history. The Western Church, under the leadership of the successor of Peter, was not able to follow the path of the Church of the Byzantine Empire, which had drawn closer and closer to temporal law, thus weakening the specificity of life in faith. Nonetheless, in its way it brought to light the boundaries of the applicability of the Lord’s words, defining their scope in a more concrete way. Two areas have emerged above all, which are open to a particular solution on the part of ecclesiastical authority.
1. In 1 Cor 7:12-16, Saint Paul – as a personal guideline, which does not come from the Lord but for which he knows he is authorized – says to the Corinthians, and through them to the Church of all times, that a marriage between a Christian and a non-Christian can be dissolved if the non-Christian obstructs the Christian in his faith. From this the Church has derived the “privilegium paulinum,” continuing to interpret it in its juridical tradition (cf. CIC, can. 1143-1150).
From the words of Saint Paul the tradition of the Church has deduced that only a marriage between two baptized persons is an authentic sacrament and therefore absolutely indissoluble. Those between a non-Christian and a Christian are indeed marriages according to the order of creation and therefore definitive of themselves. Nonetheless they can be dissolved in favor of the faith and of a sacramental marriage.
The tradition ultimately expanded this “Pauline privilege,” making it a “privilegium petrinum.” This means that the successor of Peter has the mandate to decide, in the area of non-sacramental marriages, when separation is justified. This so-called “Petrine privilege” has not however been incorporated into the new Code, as was instead the initial intention.
The reason was a disagreement between two groups of experts. The first emphasized that the objective of all the laws of the Church, its interior yardstick, is the salvation of souls. This means that the Church can do and is authorized to do what serves to pursue this end. The other group, on the contrary, was of the idea that the mandates of the Petrine ministry did not need to be expanded very much and that it should remain within the boundaries recognized by the faith of the Church.
Since it was not possible to find an agreement between these two groups, Pope John Paul II decided not to include within the Code this part of the juridical customs of the Church, but to continue to entrust it to the congregation for the doctrine of the faith, which, together with concrete practice, must continually examine the bases and boundaries of the Church’s mandate in this area.
2. Over the course of time there developed more and more clearly the awareness that a marriage apparently contracted in a valid manner, because of juridical or practical defects, cannot really be concretized and therefore can be null. To the extent to which the Church has developed its marriage law, it has also elaborated in detail the conditions for validity and the reasons for possible nullity.
The nullity of marriage can stem from errors in juridical form, but above all from a lack of understanding. In dealing with the reality of marriage, the Church recognized very quickly that marriage is constituted as such through the consent of the two partners, which must also be expressed publicly in a form defined by law (CIC, can. 1057 § 1). The content of this joint decision is mutual self-giving through an irrevocable bond (CIC, can. 1057 § 2; can. 1096 § 1). Canon law presupposes that adult persons know on their own, on the basis of their nature, what marriage is, and therefore also know that it is definitive; the contrary must be expressly demonstrated (CIC, can. 1096 § 1 e § 2).
New questions have arisen on this point in recent decades. Can it still be presumed today that persons know “by nature” about the definitiveness and indissolubility of marriage, and that they consent to it with their yes? Or has there not perhaps taken place in present-day society, at least in Western countries, a change of mentality that instead makes the contrary to be presumed? Can the intention of the definitive yes be taken for granted, or should one not expect the contrary, that there is already a predisposition to divorce? Wherever definitiveness may be intentionally ruled out, there would not truly take place a marriage in the sense of the will of the Creator and the interpretation of Christ. This makes it clear how important a correct preparation for the sacrament is today.
The Church does not acknowledge divorce. Nonetheless, after what has just been pointed out, it cannot exclude the possibility of null marriages. The processes of annulment must be carried out in two directions and with great care: they must not become a disguised form of divorce. This would be dishonest and contrary to the seriousness of the sacrament. On the other hand, they must examine with the necessary conscientiousness the issues of possible nullity, and, where there may be just reasons in favor of annulment, express the corresponding sentence, opening a new door for such persons. New aspects of the problem of validity have emerged in our time. I have already mentioned above that the natural awareness of the indissolubility of marriage has become problematic in that this entails new tasks for the judicial procedure. I would like to indicate briefly two other new elements:
a. Can. 1095 no. 3 has inscribed the modern difficulty into canon law where it says that there is no capacity of contracting marriage among persons who “on account of psychological factors are unable to take on the essential obligations of marriage.” Today the psychological problems of persons, precisely in the face of a reality so great as marriage, are perceived more clearly than they were in the past. Nonetheless it is good to be on guard against rashly construing nullity on the basis of psychological problems. This would in reality make it too easy to pronounce a divorce under the appearance of nullity.
b. Today there is another question that imposes itself with great seriousness. Currently there are more and more baptized pagans, meaning persons who have become Christian by means of baptism but do not believe and have never known the faith. This is a paradoxical situation: baptism makes the person Christian, but without faith he remains nonetheless just a baptized pagan. Can. 1055 § 2 says that “between baptized persons there cannot exist a valid marriage contract that is not for that very reason a sacrament.” But what happens if a baptized unbeliever knows nothing at all about the sacraments? He might even have the intention of indissolubility, but he does not see the uniqueness of the Christian faith. The tragic aspect of this situation appears evident above all when baptized pagans convert to the faith and begin a completely new life. This brings up questions for which we still do not have answers. And therefore it is even more urgent to explore them.
3. From what has been said so far it emerges that the Western Church – the Catholic Church – under the leadership of the successor of Peter, on the one hand knows that it is strictly bound to the word of the Lord on the indissolubility of marriage, but on the other has also sought to recognize the limits of this guideline in order not to impose on persons more than is necessary.
So on the basis of the suggestion of the apostle Paul and basing itself at the same time on the authority of the Petrine ministry, for non-sacramental marriages it has further elaborated the possibility of divorce in favor of the faith. At the same time it has examined the nullity of a marriage under every aspect.
The 1981 apostolic exhortation “Familiaris Consortio” of John Paul II went one step further. At number 84 it states: “Together with the Synod, I earnestly call upon pastors and the whole community of the faithful to help the divorced, and with solicitous care to make sure that they do not consider themselves as separated from the Church […] Let the Church pray for them, encourage them and show herself a merciful mother, and thus sustain them in faith and hope.”
This gives pastoral care an important task, which perhaps has not yet been sufficiently incorporated into the Church’s everyday life. Some details are indicated in the exhortation itself. There it is said that these persons, insofar as they are baptized, may participate in the Church’s life, which in fact they must do. The Christian activities that are possible and necessary for them are listed. Perhaps, however, it should be emphasized with greater clarity what the pastors and brethren in the faith can do so that they may truly feel the love of the Church. I think that they should be granted the possibility of participating in ecclesial associations and even of becoming godfathers or godmothers, something that the law does not provide for as of now.
There is another point of view that imposes itself on me. The impossibility of receiving the holy Eucharist is perceived as so painful not last of all because, currently, almost all who participate in the Mass also approach the table of the Lord. In this way the persons affected also appear publicly disqualified as Christians.
I maintain that Saint Paul’s warning about examining oneself and reflecting on the fact that what is at issue is the Body of the Lord should be taken seriously once again: “A person should examine himself, and so eat the bread and drink the cup. For anyone who eats and drinks without discerning the body, eats and drinks judgment on himself” (1 Cor 11:28 f.). A serious self-examination, which might even lead to forgoing communion, would also help us to feel in a new way the greatness of the gift of the Eucharist and would furthermore represent a form of solidarity with divorced and remarried persons.
I would like to add another practical suggestion. In many countries it has become customary for persons who are not able to receive communion (for example, the members of other confessions) to approach the altar with their hands folded over their chests, making it clear that they are not receiving the sacrament but are asking for a blessing, which is given to them as a sign of the love of Christ and of the Church. This form could certainly be chosen also by persons who are living in a second marriage and therefore are not admitted to the Lord’s table. The fact that this would make possible an intense spiritual communion with the Lord, with his whole Body, with the Church, could be a spiritual experience that would strengthen and help them.