Tuesday, September 15, 2015

Worries about the arguments for annulment reform

The Blessing of the Bride
In my last post, I summarised the arguments of the canonist Edward Peters on problems raised by the reform of the annulment procedures by Pope Francis' motu proprio Mitis Iudex.

I want to base my own reflections around two mutually inconsistent attitudes which are the hallmark of all too many reforms carried out in the Church since Vatican II, which appear to be present in this reform as well. (I wrote this post before reading Rorate Caeli's translation of excerpts from an article by Msgr. Pio Vito Pinto, the leader of the commission which crafted this reform; the article confirms my observations.)

The first is an impatience with the traditional approach to whatever the issue might be. In this case, the traditional approach places the burden of proof on the side of the validity of a marriage, which has the result that gaining an annulment takes on the appearance of a hurdling race. A petitioner has to prove that the marriage was void; he or she has to seek out grounds, and then evidence for those grounds, and then do it all over again with a second tribunal.

Where the system has been corrupted, of course, these obstacles may not be difficult to overcome, but the procedure still consists of overcoming them one by one. Where it has not been corrupted, then it remains a very real possibility that a petition will be refused even when the marriage is truly invalid, simply because it could not be proved to be invalid: in exactly the same way that a guilty man may walk free from from a criminal court for lack of evidence. But in the case of annulments, it does not appear to be a matter of erring on the side of caution, in that way that not imprisoning people without sufficient evidence counts as erring on the side of caution, but of erring on the side of bloodyminded intransigence. A refused petition is in most cases today a refusal to allow a couple married (or soon to be married) outside the Church to return to (or remain in) good standing and receive the sacraments. Isn't the very possibility of refusing a petition to a person in a marriage which is in reality invalid a horrifying one? Should we not err on the side of the invalidity of the marriages in front of tribunals?

No, of course not. Because the final result desired by petitioners is not, in fact, a declaration of nullity, in almost every case, but a valid marriage - a new one, that is, with a new partner. To place the burden of proof on the side of invalidity is to place a doubt on every single marriage on the face of the earth, including the marriage the petitioner wants to contract as soon as the decree is granted. It is, to this extent, self-defeating.

Placing the burden of proof on the guilt of the defendant in a criminal court would mean placing a doubt about the innocence of everyone - you, dear reader, me, and everyone else - since were any of us to end up in a court of law, where these things are tested, on however tenuous grounds, our innocence would be doubted until evidence could be produced to vindicate it. Such a burden of proof would be an affront to us all; it would destroy the sense that anyone was ever simply to be treated as a law-abiding citizen. In the same way, for tribunals to reverse the burden of proof about the validity of marriages, would be to destroy the assumption present in everyday life that our own marriages, and the marriages we encounter every day, should be taken seriously as valid, without some compelling reason to the contrary. It would destroy the social meaning of marriage among Catholics: the sense that, if you've been through a marriage ceremony, you were definitively married, and no more needed to be shown or said. Even if the marriage has, so far, been 'brief', or if there are arguments, or, heaven help us, if a baby appeared only 8 and a half months after the service.

There is, as I say, a sort of impatience with the traditional approach, an impatience with the kind of argument I have just made, because of a fixation with a specific pastoral problem. No one is saying the pastoral problem is not real: it is all too real. It is just to say that before gutting the procedures employed by the Church for however many centuries, we should think it through.

A degree of sympathy with the wisdom of our predecessors in the Faith, if only for the sake of argument, is absolutely necessary when carrying out reforms to long-standing disciplines, as it is to reforms to the liturgy. If, instead of such sympathy, we have ridicule and invective, then it is entirely predictable that the results of the reform will be calamitous.

The second and, in fact, inconsistent, attitude which seems to be at work is a reliance on abstruse theoretical concepts or distinctions from the very tradition being rejected with disdain to justify a position. The other day I noted in passing the distinction employed to justify altar girls from a canon legal point of view: that servers are substituting no longer for male-only clerical acolytes, but since Paul VI's reforms to minor orders they are substituting for non-clerical male-only ('instituted') acolytes. To hell with such arguments: ignoring all the theological, historical, and pastoral issues to justify an unheard-of novelty on wafer-thin legal pretexts.

In the case of the annulment process, we are hearing arguments like this: that a bishop has the authority to grant annulments, and therefore can do so: even without having the expertise or evidence or even the time to come to a proper judgement on a case. Yes, he has the authority, but in the concrete (aka 'pastoral') situation, so what? That doesn't mean he doesn't have to use his brain.

Or again, that because a case has a feature which is sometimes associated with invalidity, such as pregnancy at the time of the wedding (which might be connected with undue pressure to marry - if we were talking about 1950s Kentucky), then it makes sense to throw all the safeguards of a full-length investigation and tribunal out of the window. Yes, such features are of interest and merit investigation, but if we are going to bypass the proper procedures because a marriage might be invalid, we are going to end up doing this every single time.

These arguments are nothing more than figleaves, conjuring tricks to distract attention from the rabbit being sneaked into the hat. You hear them all the time on the lips of people like Mgr Basil Loftus, who likes to justify swallowing a camel by straining at a gnat. We are supposed to be impressed that they've been able to cite some technical-sounding concept, and if we don't understand what they are talking about, so much the better. Do the people making the arguments even believe them? Do the neo-conservatives who allow themselves to be swept along by them believe them? I do not know. But they represent something particularly repugnant in the Catholic tradition: intellectual tomfoolery.

I want to end by underlining a point of Edward Peters: the doubts which will be sown in the minds of married Catholics, about the validity of their marriages.

First, we must recognise that most people do not distinguish sharply between the validity of their marriages, and the ease of getting a declaration of nullity. If we say to someone: 'gosh, the circumstances of your wedding were such that you could easily get an annulment', we are saying 'you marriage would seem to be null'. If the Pope appears to be saying to them: 'hey you, married people, if you come into some ever-widening set of categories, such as that you've not been married for very long [seriously], then you are eligible for a fast-track annulment process by friendly non-lawyers which sounds a lot like a rubber stamp', what they are going to hear is: 'your marriages may well be invalid': 'The door is open for you to chuck in your spouse and try again.'

Divorce today is not, mostly, about escaping with some financial support from a drunken lout you were pressured into marrying at 18 by an overbearing parent. This 2015, not 1815. No, it is about escaping from a so-so relationship in the hope--usually unjustified--of finding a more attractive mate. The nice way of putting it is to say it is about the pursuit of 'happiness', but 'happiness' here is of a rather special kind. It is the tingly feeling a middle-aged man gets when he jumps into bed with a woman half his age. It is the achievement of a woman who ejects a hard-working 'beta' husband from the family home and welcomes an 'alpha jerk' to share her bed, and her first husband's earnings.

I don't think that the people of the early 21st century are uniquely wicked; I just think that they respond to incentives and to popular ideology, in this case the ideology of 'happiness'. The Church has had a very difficult time trying to counter the incentives of the evolving civil law on divorce, and the ideology of decadent Romanticism served up in films and magazines about 'starting again' and 'finding true love'. What is being proposed, in quickie annulments, is that the Church gives up the struggle. Instead of saying: 'we are Catholics, we take these things a bit more seriously; we can't stop you getting a civil divorce but we aren't going to congratulate you about it'; the Church will seem to be saying: 'we value bums on pews and money in the collection plate so much that we'll give you the paperwork for whatever you want to do.'

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  1. Your second point here is very good and should be made more often.

  2. "In the same way, for tribunals to reverse the burden of proof about the validity of marriages, would be to destroy the assumption present in everyday life that our own marriages, and the marriages we encounter every day, should be taken seriously as valid, without some compelling reason to the contrary. It would destroy the social meaning of marriage among Catholics:"

    If Cardinal Kasper is to be believed, a presumption of invalidity is exactly what the Pope has about most marriages. Judging by the grounds given for the "fast track annulment process", Kasper's claim seems credible because the Pope doesn't seem to have a clue about what the requirements for validity in marriage are. Most of the grounds cited are sentimental - not legal.

  3. Glad you used the qualifier 'mostly' when describing divorce/annulments as being about wanting to chuck in the towel and find a better partner.

    Also bear in mind that over-bearing parents wanting their children to marry well do still exist in 21st Century Britain.