D. Vincent Twomey SVD SThD (Regensburg)
(Professor Emeritus of Moral Theology)
Cardinal Walter Kasper's address to the College of Cardinals last February was intended to provide "a theological basis for the subsequent discussion among the cardinals" then meeting in Consistory in preparation for the forthcoming extraordinary Synod of Bishops on the Family. 1 Pope Francis, having re-read the talk after it was delivered, publicly and movingly paid tribute to the cardinal the following day.
The discussion in the Consistory was, by all accounts, a heated one. It sparked off a furious debate in the European and North American media, both mainstream and social. The debate focused almost entirely on one section of the talk, that dealing with the admission of the divorced and remarried to the sacraments. On being asked about this precise topic on his return flight from Jerusalem to Rome recently, Pope Francis seemed to express a certain frustration that the discussion had fuelled false expectations with regard to the Synod: "What I didn't like, was what some people, within the Church as well, said about the purpose of the Synod: that it intends to allow remarried divorcees to take communion, as if the entire issue boiled down to [that] case" (Zenit).
The same comment could be applied to Kasper's own talk. The greater part of the text is devoted to a summary of contemporary theology on marriage and the family. Its style is easygoing, its language simple, its thoughts generally profound. It deserves close, critical study.
After an introduction outlining briefly the crisis facing the family (in modern so-called advanced societies) and its sociological causes, Kasper acknowledges that the Church's teaching seems to be "out of touch" with the modern world. His aim, however, is not to present the Church's teaching but rather "the Gospel of the Family" -- a rather strange distinction, as though the two were somehow different! Be that as it may. He intends to present the good news about the family as a divine gift not a burden, fully aware that today we experience "the disintegration of the self-evidence of the Christian faith and the natural law understanding of marriage" (4). And so he proposes to begin radically, that is, starting from the roots of faith, so as to enable the Church to present the faith as a path to life's happiness. The term "path" is used repeatedly.
Using a refreshingly new terminology, he shows how the basic truths about the family are rooted in nature, or more accurately, in the order of creation. This is the "ideal" (the so-called natural law) as revealed in the Old Testament. (In this section he outlines his appealing but misleading interpretation of Humanae Vitae: he effectively dismisses its central teaching as casuistry, which, as we will see is rather ironic.) Next, he discusses the messy existential situation of the human condition, namely the structures of sin, brokenness and division in family life, again as illustrated by recourse to the OT. Then follows the third and richest section: the family in the order of salvation. Here Kasper attempts to elucidate the theology behind the indissoluble bond of marriage based on in the teaching of Jesus. It is essentially a gift of grace, and so, beginning with Eph 5:32, the Church eventually came to recognize Christian marriage as a sacrament. Then follows the fourth theme: the family as domestic Church. The contemporary stress on the family as a small church within the big Church and its intrinsic relationship to basic Christian communities is primarily due, he claims, to the missionary situation in today's [western] world where Christians have become "cognitive minorities". (22)
The fifth and final section is devoted to the pastoral problem of the divorced and remarried, more specifically the question of their admission to the sacraments. This is the section that has been the subject of debate. Even though Kasper begins and ends his reflections with the disclaimer that one "may not reduce the problem to the question of admission to communion" (25, 33), in fact this whole section -- together with two Excursus, a five-page-long concluding "Comment" on the discussion among the Cardinals at the Consistory and an "Afterword" -- deals with this precise topic.
The previous four sections demonstrate Kasper's own understanding of the Gospel revelation regarding the indissolubility of marriage. This is important, since he claims that his own pastoral suggestions in no way call its (dogmatic) binding force into question. As he states: "The indissolubility of a sacramental marriage during the lifetime of the other partner [sic] is a binding part of the Church's faith tradition, which one cannot repeal or water down by appealing to a superficially understood and cheapened sense of mercy" (26).
The main issue, as he sees it, is raised by the new situation created by the Napoleonic Civil Code (1804) which first introduced civil marriage, an initiative that was later taken up by successive countries. The Church responded with the 1917 Code of Canon Law by imposing severe restriction and punishments for those who were divorced and remarried. These punishments were removed in the 1983 Code, while Pope John Paul II in Familiaris Consortio (1981) and Pope Benedict XVI in Sacramentum Caritatis (2007) went so far as to "speak well-neigh lovingly of such Christians".
"Is not a further development possible ... [that] carries forward and deepens more recent traditions?", Kasper asks. By way of precedent, he instances the way the Second Vatican Council made breakthroughs with regard to ecumenism and religious freedom, "without violating the dogmatic traditions" (27). Can the same be done with regard to the question of admitting remarried divorcees to the sacrament? Any answer to the question, Kasper rightly states, must needs be nuanced. It might be noted in parenthesis that, since what is involved in the pastoral care of remarried divorcees in no way suggests any development in any dogmatic tradition, Vatican II can hardly be cited as a precedent. However, there is always room for development of canonical and pastoral practices and procedures, as the history of the Church demonstrates.
His own answer is restricted to a consideration of two pastoral situations or rather, more precisely, specific cases - an exercise in casuistry in fact. Firstly he considers those who are subjectively convinced that the first marriage was invalid, a conviction shared by many pastors who doubt if those who entered the first marriage had either the faith or the consent to the essential characteristics of marriage needed for receiving the sacrament. Secondly, he takes issue with the 1994 Letter of the CDF which taught that the divorced and remarried, though unable to receive Holy Communion, could and should receive spiritual communion. Kasper advocates instead admission to Communion under certain strict conditions. In so doing, he draws especially on an article on the subject by the then Professor Joseph Ratzinger published in 1972.
What can one say to these propositions? One cannot deny the passionate concern of Cardinal Kasper for divorced and remarried Catholics who, sorry for the failure of the first marriage, now find themselves in a second union. He, together with two other German bishops of the Upper Rhine Province, had previously made a case for the admission of remarried divorcees to the sacraments which the CDF rejected in their Letter of 1994. Kasper's talk seems to be yet another attempt to justify his earlier position, having taken on board some of the CDF's criticisms. Does he succeed? The short answer, in my opinion, is: not quite. Let us look first at Kasper's most controversial proposal in his talk to the Consistory before then looking at his first proposal.
Arguing casuistically, Kasper outlines the exceptional case, which in his opinion, would justify admission to the sacraments: someone who is sorry for the failure of the sacramental marriage, cannot get out of the obligations incurred by the second civil marriage, tries to live a life of faith and to raise his or her children in the faith and who "longs for the sacraments as a source of strength in his or her situation". Kasper then asks rhetorically: "Are we going to leave him or her starve sacramentally so that others may live?" (30). This is not an argument but an appeal to emotion. Is it justified?
Earlier he had effectively rejected recourse to the notion of spiritual communion in these circumstances, as suggested by the 1994 Letter of the CDF and reiterated by Benedict XVI in 2012. Kasper asks rhetorically: "if such a person can receive spiritually why not sacramentally?"The Cardinal fails to consider the fact that spiritual communion might be spiritually more beneficial to someone who is aware of his or her irregular situation but cannot see any way out of it at the moment than someone in full communion receiving the sacrament more or less ritualistically? One is reminded of the parable of the Pharisee and the tax-collector (Lk 18: 9-14). Being starved of the Sacraments, to use Kasper's emotive language, may well intensify one's desire for God, one's love of God, knowing that a humble, contrite heart He will not spurn (cf. Ps 51:17) - and that, if we perservere, He will give us the means to achieve the end of pleasing God. Kasper would grant a remarried divorcee absolution in the sacrament of penance in the case he outlines "after a period of reorientation" (32, see also 45-6). What is meant by "reorientation"? Whatever it is, quite evidently it cannot be repentance in the true sense - metanoia - since Kasper does not require that resolution to amend one's life which is needed for absolution.
In Excursus 2, Kasper cites some ambivalent evidence (taken mainly, it seems to me, from Professor Ratzinger's 1972 article, which he mentions) to support his claim that in the early Church "there was, according to customary law in many local churches, the praxis of pastoral tolerance, clemency, and forbearance after a period of penance" (37). Kasper fails to quote Cardinal Ratzinger, who in 1998, 2 citing a review of the relevant texts of the Fathers by P. Pelland, pointed out that during the Patristic period, "divorced and remarried faithful were never admitted to Communion after a period of penance". Kasper's interpretation of canon 17 of the Council of Nicaea (325) is false: it refers seemingly to second marriage after the death of one of the spouses.
With regard to the other case which Kasper discusses (concerning doubts re the validity of the first marriage), there might indeed be some room for development here in terms of Church praxis. The Cardinal discusses the situation where, due to lack of faith on the part of one or other spouse or lack of consent to a proper understanding of marriage as indissoluble, such marriages might well be invalid. Judgement of this, he rightly insists, cannot be left to the parties involved. Instead he asks if perhaps the usual "juridical path", as he puts it, might be supplemented by "other, more pastoral and spiritual procedures", details of which he does not provide. "Alternatively", he adds, "one might imagine that the Bishop might entrust this task to a priest with spiritual and pastoral experience as a penitentiary or episcopal vicar" (28). It is of note that recourse to the "internal forum" was not entirely ruled out by Cardinal Ratzinger in 1998, since the canonical procedures are not of divine law but Church law (and so subject to error). Here Kasper and Ratzinger would seem to be in agreement. However Ratzinger also stressed at the time that "the conditions for asserting such an exception must be precisely clarified in order to exclude arbitrariness and to defend the public character of marriage which is withdrawn from subjective judgement." Kasper is silent on this.
Kasper devotes a helpful Excursus to the question of "implicit faith", the minimum, as he sees it, needed to receive a sacrament. But he fails to explore the implications of the teaching of the Church to the effect that the sacrament of matrimony is due to the baptized character of the spouses, not their subjective faith. Again it is worth noting that in 1998 Cardinal Ratzinger (cf. Introduction) did not rule out the possibility of a marriage being invalid due to lack of faith: "It is a matter to be clarified," he wrote, "whether every marriage between two baptized are truly ipso facto a sacramental marriage." However he pointed out that one legal question needs to be addressed beforehand: what degree of clarity about the lack of faith is needed so that a sacrament does not come into being? And there's lies the rub.
In a footnote to the same Introduction, the German translators (presumably at the request of the Pope) include an off-the-cuff comment by Pope Benedict XVI during his meeting with the clergy of Aosta, 25 July 2005. There he described as especially painful the situation of a remarried divorcee who repents and comes to faith while in the second marriage and yet is excluded from the sacraments. That is truly a great suffering. However, after debates held in the Congregation for the Doctrine of the Faith with different Bishops' Conferences and with specialists, he admitted that he himself had become less secure about his former position regarding the lack of faith that would render the first marriage invalid and called for more profound reflection. Kasper's Excursus might offer a starting point for such reflection.
Cardinal Kaspar uses the term "path" frequently during his discourse, mostly suggesting thereby the changing nature of our pilgrim journey. He claims that his proposal to allow remarried divorcees to the sacraments under strict condition "is not a broad path for the masses, but a narrow path for indeed the smaller segment of divorced and remarried individuals who are honestly interested in the sacraments" (32-3). It may be a small path at the outset, but, one must ask, would it inexorably lead to the broad path that leads to destruction of the family as God intended it? The Church's teaching on the indissolubility of a valid and consummated sacramental marriage -- and its adhesion to it in practice -- is a bulwark against all those social forces Kasper outlined in his introduction which are undermining the family. It is part of the Church's prophetic voice needed to evangelize the contemporary secular world. It will always be a sign of contradiction.
In his concluding comment on the discussion among the Cardinals that followed his talk, Kasper stressed the need to avoid taking about the divorced and remarried, since the situation of each is unique. That, of course is true. Also true is the fact that the same basic principle of the indissolubility of marriage applies to all situations. His appeal to Newman's essay "On Consulting the Faithful in Matters of Faith" (cf. 46-7), it seems to me, is misplaced, since Newman never suggested that the opinion of the faithful should be sought on a controversial issue, as Kasper seems to suggest. Newman was dealing with dogmatic issues, which does not apply here, where the question is about the practical implications of the uncontested teaching of the Church on marriage.
In his "Afterword: What can we do?", the Cardinal offers some reflections on four steps to be taken (by the Church) in order to arrive at "a perfectly unanimous solution" to the problem (49). He has many good points to make, even though one may question the underlying message, which is a prolonged plea to avoid a rigoristic, legalistic approach to finding a solution. Using unusually emotive language for a theologian, he asserts that certain solutions cannot be brought about using a "sledgehammer, whether on one's own authority or by adopting a threatening pose" (49). He fails to see that his own argument to allow remarried divorcees admission to the sacraments seems is framed within the legalistic, casuistic mindset of the older manuals of moral theology in which he was trained as a seminarian, albeit of a laxist tendency. The Church's teaching on the indissolubility of marriage is not a law that has to be interpreted, newly developed, or circumvented by clever casuistry; it is a principle that determines our virtuous behaviour - virtue being that arduous path, marked by the Cross and made possible by grace that leads to true happiness and eternal glory.
Cardinal Kasper expressed a wish that the Synod will "open the door a crack for people's hopes and expectations" (47). But, one might ask, to what extent were those hopes and expectations fuelled by the earlier attempt by the German Bishops of the Upper Rhine (and the more recent attempt in the Archdiocese of Freiburg-in-Bresgau) to justify the admission of some divorced and remarried faithful to the sacraments. No wonder Pope Francis is worried about igniting false expectations for the Synod. A more relevant question might be: to what extent are those hopes and expectations characteristic of the affluent local Churches of central Europe?
The Synod will consider the situation of the family in the universal Church, not least in Africa and Asia, where other issues affecting the Christian family urgently need to be addressed.
© D. Vincent Twomey SVD
2. The text I am using is the German translation of the third part of his Introduction to Volume 17 of the series "Documenti e Studi" published by the Congregation for the Doctrine of the Faith (CDF): Sulla pastorale dei risposati. Documenti, commenti e studi (Città del Vaticano, 1998, 20-29). The footnotes were added. Quoted as Introduction.
Version: 14th June 2014