Cardinal Kasper, in a lengthy interview [with Commonweal Magazine] that shows no let-up in his push to change Church discipline on marriage said, among other things, “I’ve spoken to the pope himself about this, and he said he believes that 50 percent of marriages are not valid.”
COMMONWEAL: In your address to the consistory, you ask whether we can, “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 the marriage.” You ask whether the presumption of validity from which canon law proceeds is often “a legal fiction.” But can the church afford not to make this presumption? How could the church continue to marry couples in good faith if it assumed that many of them were not really capable of entering into sacramental marriage because they were, as you put it somewhere else in your speech, “baptized pagans”?
Kasper: That’s a real problem. I’ve spoken to the pope himself about this, and he said he believes that 50 percent of marriages are not valid. Marriage is a sacrament. A sacrament presupposes faith. And if the couple only want a bourgeois ceremony in a church because it’s more beautiful, more romantic, than a civil ceremony, you have to ask whether there was faith, and whether they really accepted all the conditions of a valid sacramental marriage—that is, unity, exclusivity, and also indissolubility. The couples, when they get married, they want it because it’s stable. But many think, “Well, if we fail, we have the right.” And then already the principle is denied. Many canon lawyers tell me that today in our pluralistic situation we cannot presuppose that couples really assent to what the church requires. Often it is also ignorance. Therefore you have to emphasize and to strengthen prematrimonial catechesis. It’s often done in a very bureaucratic way. No, we have to provide catechesis. I know some parishes in Rome where couples have to attend catechesis, and the pastor himself does it. We must do much more in prematrimonial catechesis and use pastoral work and so on because we cannot presuppose that everybody who is a formal Christian also has the faith. It wouldn’t be realistic.
CWL: But you can imagine the outcry there would be if priests regularly told couples, “I can’t marry you because I don’t really think that you believe in the things people have to believe in order to get married.”
Kasper: That’s why there must be dialogue between the couple and the priest, who should teach them what it means to marry in the church. You can’t presume that both partners know what they are doing.
CWL: You also talk about the difference between the Eastern Orthodox principle of oikonomia and the Western principle of epikeia. Could you explain the difference between those things, and how it’s important in questions such as how the church treats divorced and remarried Catholics?
Kasper: The Orthodox have the principle of oikonomia, which allows them in concrete cases to dispense, as Catholics would say, the first marriage and to permit a second in the church. But they do not consider the second marriage a sacrament. That’s important. They make that distinction (whether the people do is another question). I’m not sure whether we can adapt this tradition to our own, but we have similar elements. Epikeia says that a general rule must be applied to a particular situation—very often complex—taking into consideration all circumstances. We talk about jurisprudence, not jurisscience. The jurist must apply the general rule, taking account of all circumstances. For the great canonists of the Middle Ages, epikaia was justice sweetened with mercy. We can start there. We have our own resources for finding a solution.
I am stunned at the pastoral recklessness of such an assertion. Simply stunned.
Suppose the cardinal had claimed that “50 percent of ordinations are not valid”. Would not such a claim, coming from an internationally-renowned prelate and attributed to a pope, have a shattering effect on the morale of deacons, priests, and bishops around the world? Would not especially those clergy laboring under vocational difficulties immediately conclude that their difficulties were the consequence of having been invalidly ordained, whereupon most of them would just give up? And would not those preparing for holy orders be paralyzed with fear over proceeding to ordination until whatever is behind such a massive invalidity rate were discovered and remedied? Of course they would.
Well, if tossing out a comment to clergy alleging rampant invalidity of holy orders would be pastorally unthinkable, by what right does the cardinal casually tell laity that 50% of their marriages are invalid—even if the pope did say it? Does turmoil among married persons in the wake of such a remark not matter to any except those who suffer it? As I said, I am stunned that such a remark was made, even if it was a mere repetition of another’s views.
But, no matter who said it—and I have no patience left for this string of ‘guess-what-the-pope-supposedly-told-me’ disclosures—let me outline several reasons why the claim that ‘half of all marriages are null’ is not just reckless, it’s also wrong.
I preface my remarks thus: I worked in diocesan tribunals for more than 10 years and concluded that hundreds of the marriage cases I saw therein were canonically null; I have been married for nearly 30 years; and I have seen, in my own family and among my closest friends, dozens of successful and failed marriages, some of those latter being canonically null, others just ruined. In short, my perspectives here are at least as professionally credentialed and as personally experienced as anyone else’s.
1. Marriage is, before anything else, a natural contract. Any claim, therefore, about “marriage”—including the shocking claim that half of all marriages are invalid—must be true about marriage as entered into by the great majority of the world’s population; that, or it must be abandoned. So, does Cdl. Kasper really think that half of the marriages around the world are invalid? If not, he should never have expressed himself so.
2. But perhaps the prelate only had in mind sacramental marriages (marriages entered into by two baptized persons) when he asserted that half of all marriages are null. But, if sacramental marriage perfects natural marriage and if grace builds on nature, what would make Christian marriage less stable than natural marriage?
Actually, a few things come to mind.
Some Catholic marriages are invalid for reasons having nothing to do with natural law, because they were, say, entered into by boys under age 16 contrary to Canon 1084 or by renegade priests contrary to Canon 1087. But those invalid marriages represent a proverbial drop in the bucket of invalid unions; their presence hardly allows one to claim that half of all marriages among the baptized, or even among Catholics, are invalid.
Admittedly one source of canonical nullity has no foundation whatsoever in natural law, yet accounts for thousands of invalid marriages among Catholics: what I have described as the outdated requirement of canonical form. But, while this requirement allows tens of thousands of Catholics to walk away from ‘marriages’ that we would require Protestants (and indeed all non-Catholics) to honor, violation of form does not occur in numbers that would make half of all marriages, even among Catholics, let alone among Protestants, to say nothing of non-Christians, invalid. Not even close.
Or perhaps Cdl. Kasper wants to take on the “automatic sacramentality” point of Church teaching on marriage (see 1983 CIC 1055), and from there tease out a contractual invalidity argument for any sacramentum fidei attentatum sine fide, but I’ve seen nothing so complex offered yet.
Well, there is much more to say, but keeping in mind that this is only a blog post, let me conclude by reminding all that a long, long, tradition of Church teaching recognizes humans’ natural capacity for marriage, reminds Christians that the grace of matrimony adds to the stability of marriage, and presumes the validity of all marriages unless and until it is proven otherwise.
In short, the validity of marriage far exceeds the odds one enjoys in a coin toss.