The Catholic Church recognizes most of the world’s ‘civil marriages’
by Edward Peters
IN THE LIGHT OF THE LAW BLOG
Father Brennan said he would continue to espouse church teaching on marriage—namely that it is between a man and a woman—but this had to be separated from civil marriage, which was the question Australian people were being asked. “It’s a very different institution from what marriage is in the Catholic Church,” he told Sky News.
Balderdash, folks. Complete balderdash.
That being said, though, while supporting “same-sex marriage” is, as I shall reiterate below, gravely morally wrong, Australian Jesuit Frank Brennan’s culpability for endorsing “same-sex marriage” might be mitigated if Brennan is speaking out of that Catholic, benign contempt for “civil marriage” that comes from Rome’s maintaining the requirement of ‘canonical form for marriage’ long after canonical form has ceased to serve important social or ecclesiastical goods.
Let’s back up.
Marriage, a fundamental human right, comes about from the mutual consent of a capable man and a capable woman, while sacramental marriage (what I suggest we rigorously call Matrimony) is a theologically certain consequence of marriage occurring between a baptized man and a baptized woman. Now, insofar as marriage is fundamentally a contract, and Matrimony is a consequence of this contract between Christians (a consequence that allows a contract of marriage between persons to take on the special characteristics of a covenant between Christians), any time a marriage happens between the baptized, Matrimony also happens; but if a marriage did not, for whatever reason, happen, then no Matrimony occurred either.
So far so good. Let’s continue.
For reasons that made sense four centuries ago (chiefly to confront the crisis of clandestine marriage), the Roman Catholic Church began to impose on her faithful the novel requirement that, for the very validity of their marriages (which marriages would automatically be sacraments, of course), the weddings of Catholics must take place before Catholic clergy. This new requirement of “canonical form for marriage” was, to put it mildly, a huge step for the Church to take, one whereby the exercise of a fundamental human right was sharply delineated by ecclesiastical authority. Ever since then, the harsh medicine of canonical form has been administered unsparingly, at times harshly, even though the social and religious malady that it was designed to treat (clandestine marriage) was cured long ago.
In short, in the wake of Trent’s law, the failure of Catholics to marry according to form (that is, if Catholics married “outside the Church”, typically “civilly”) means that their ‘marriage’—even though it is recognized under civil law—does not count before the Church and, given the implications of Matthew XVIII:18, does not count before God. Thus, if Catholics bound by canonical form go through only a civil (or even a religious, but still non-Catholic) wedding and thereafter present themselves to the world as “married” they give the scandal of falsehood and sexual relations on the pretext of a “civil marriage” is morally tantamount to fornication.
Meanwhile, again to this day, non-Catholics (which is most of the world!) can exercise their fundamental human right to marry in a wide variety of ways, including by civil marriage, and the Church herself not only recognizes such marriages as binding, she even regards such marriages between baptized persons (say, between Protestants) as sacraments (even if those Protestants do not recognize marriage as a sacrament) and holds all persons in these marriages (including the merely civil ones!) to abide by them. It is all very logical legally, and it is within the Church’s authority to so act, but pastorally, the implications of requiring canonical form for marriage lead many Catholics to, among other things, talk about “civil marriage” as if it were not real marriage—which it most certainly is for nearly everybody on earth except Catholics!
This, I say, might explain why Brennan speaks with a polite disdain for “civil marriage”—an attitude that makes some sense in conversation with Catholics but which smacks of contempt for the marriages of hundreds of millions of persons not bound by canonical form and leads him, and many others like him, to fail to recognize just how crucial and non-negotiable is the Church’s defense of marriage itself, marriage that is the foundation of Matrimony.
Even so, however, even as a Catholic speaking to Catholics, Brennan’s defense of “same-sex marriage” is quite wrong.
As I have explained here, that marriage can only exist between one man and one woman is a truth taught with infallible certainty by the Catholic Church, meaning that for a Catholic to endorse any other kind of union (same-sex, group, inanimate objects, etc.) as a form of marriage is for that person to be “opposed to the doctrine of the Catholic Church” (1983 CIC 750 § 2) rendering him or her liable to a just penalty (1983 CIC 1371 n. 1). Moreover, if, as seems to be the case, the divine establishment of marriage as uniting one man and one woman is a “revealed truth”, then a Catholic’s endorsement of any other kinds of unions as marriage is actually heresy (1983 CIC 750) in turn rendering a Catholic liable to even more severe ecclesiastical sanctions including excommunication (1983 CIC 1364 § 1), expulsion from religious life (1983 CIC 696 § 1), and dismissal from the clerical state (1983 CIC 1364 § 2).
There are, to be sure, obstinacy requirements in Canons 750 and 1371 as well, which is why I noted that Brennan’s endorsement of “same-sex marriage” might be based on confusion arising from a common Catholic rejection of “civil marriage” as not real marriage. But my observation highlights what is only an affirmative defense, one rebuttable by contrary evidence and, in any event, a man of Brennan’s legal acumen could not long remain confused about these distinctions.
In the meantime, Catholics should not be misled by thinking that “civil marriage” is not usually real marriage (for most of the world, it is) or think that any approval of “same-sex marriage” is consistent with Church teaching (because it isn’t).