Constitutional Originalists, Marriage, and Decrees of Nullity

By Fr. Jerry Pokorsky ( bio - articles - email ) | Jun 09, 2023

The judiciary of the United States has two main factions: those who read English (originalists) and those who redefine the words of the Constitution to their liking. During her Supreme Court confirmation hearings, Ketanji Brown Jackson famously refused to define what a woman is, demurring, “I’m not a biologist.” We find the same confusion in the Church.

The Church requires an “originalist” understanding of marriage.

The bond of marriage

Jesus teaches: “What therefore God has joined together, let not man put asunder.” (Mt. 19:6) According to the Church’s canon law, the Sacrament of Matrimony is valid between two baptized persons with the intentions of fidelity, permanence, exclusivity, and openness to children. It is customary during marriage preparation to make inquiries of close relatives for the suitability of the marriage. The free exchange of promises by the bride and groom in the presence of two witnesses, expresses consent before God (with the priest or deacon representing the Church). Families form the foundation of a culture. Matrimony needs the protection of the law for families to flourish.

Usually a Catholic priest receives documentary permission from the government to represent civil authorities in the exchange of promises. For Catholics, secular accommodation is unnecessary for the validity of the Sacrament of Matrimony. However—a justice of the peace often (unwittingly, of course) witnesses a valid sacramental marriage for baptized Protestants.

Catholics must play by Church rules. Catholic marriages must occur in a sacred Church space unless the Church authorities permit otherwise. Violations render the marriage invalid. (In these married-outside-of-the-Church situations, a “documentary decree of nullity” is routine and easily obtained, although it is often better to patch up the union, if possible, in a marriage “convalidation” ceremony.)

The Church recognizes the sacramental validity of the marriage of baptized Protestants in their churches—or even by a justice of the peace—with sufficient consent. If one or both spouses are unbaptized, the marriage is valid (with the correct intentions) but not sacramental. Alas, we must add that the parties are male and female. (It is a strange necessity to write there is no such thing as “gay marriage.”)

Civil divorce and decrees of nullity

A lawful marriage is intact until the death of a spouse. The Church does not permit divorce and remarriage and encourages those in troubled marriages to “work things out.” Catholics who undergo a civil divorce are not free to remarry—or even date others—because of the religious presumption of the validity of their sacramental marriage. “Marriage possesses the favor of law; therefore, in a case of doubt, the validity of a marriage must be upheld until the contrary is proven.” (Can. 1060)

When a couple secures a civil divorce, the participants (one or both) may approach the Church’s marriage tribunal to seek a formal judgment regarding the status of their marriage and determine whether their marriage was valid from its inception. A priest—often a parish priest—helps the person identify the grounds for a declaration of nullity and compile the necessary paperwork. The priest usually becomes an “advocate” for the “petitioner” seeking the decree. The advocate recognizes some evidence supporting possible grounds but necessarily trusts the marriage tribunal process for proper adjudication.

The Role of the Marriage Tribunal

The marriage tribunal process is extensive and complicated, regulated by the Church’s canon law. But like the proceedings of the Supreme Court, the integrity of the judicial process depends upon whether the judges (and others) are “originalists” in terms of the teachings of Jesus (and Canon Law) or dismiss His words as ever changing, along with changing cultural norms. The adjudication of marriage requires fidelity, competence, and astute prudence.

The Church judicial tribunals ask a question of fact: “Did God seal the consent of this marriage?” If the evidence proves a sufficient and persuasive juridical defect during the exchange of promises at the time of the wedding ceremony, the marriage is invalid. Canon law identifies many deficiencies and “impediments” that reveal a refusal or pathological inability to enter into a lifelong, faithful exclusive union open to children. (The elderly can marry because they do not willingly obstruct conception.)

Events that transpire after the wedding are relevant only if they provide evidence of a significant defect at the time of the exchange rendering the marriage null. For example, behavior that slips into abusive alcoholism may or may not suggest a disqualifying inability to enter a valid marriage (although a legal separation—even civil divorce without remarriage—may be necessary to protect a spouse from injury). In contrast, contraception and sterilization often provide persuasive evidence of rejecting openness to children—an essential explicit or implicit element during the exchange of promises.

The task of the marriage tribunal is daunting. The judges, advocates, and others hold the lives of others in their juridical hands. Tribunal personnel stand before God and His Church as witnesses investigating and adjudicating a marriage torn by civil divorce. A decree of nullity does not ratify a divorce; it concludes before God that a lawful sacramental marriage consent never took place.

(The so-called Pauline and Petrine privileges deal with natural—not sacramental—marriages where one or both parties are unbaptized and invoke the Church’s “power of the keys.” These intricacies need not distract us from our limited purposes here.)

Justice or “healing ministry”?

Some suggest that this marriage tribunal process is a fuzzy “healing ministry.” But we must understand the notion as the application of justice with its (often) painful clarity. Tribunal personnel adjudicate the validity of marriages in the eyes of God and His Church, regardless of feelings. The laborious proceedings require orthodoxy, honesty, and competence. It is unjust to give the impression that an annulment proceeding is primarily a long spiritual process rather than an arduous and honest juridical proceeding.

Catholic singles clubs for the divorced

Diocesan programs often sponsor mixed-sex conferences for the separated and divorced. They (unwittingly, one hopes) encourage wounded souls to seek the consolation of members of the opposite sex who share in their suffering. It is a disservice to the separated and civilly divorced for Church authorities to expose them to these institutionalized occasions of sin. These programs thoughtlessly (one hopes) disregard the power of sexual attraction in times of trauma. The programs also cast the competence of chancery personnel into doubt.

A diocesan entity invited me in the 1990s—as a young priest—to make a presentation on the “spirituality of the separated, divorced, and widowed.” In my naivety, I was baffled by the mix. But I delivered an orthodox talk on the three stages of spiritual life, with the Ten Commandments forming the foundation. I added that until someone is free to marry, dating others is an occasion of sin.

The crowd gazed at me with cold contempt. After the presentation, a kindly elderly woman approached me and asked, “Don’t you know what’s going on here? It’s a Catholic dating game for the divorced.” I dutifully reported the incident to the authorities and didn’t receive a response. Neither did they invite me back for an encore.

Failures of—and obstacles to—pastoral discretion

In a recent parish bulletin announcement in the Midwest, the pastor introduced his “newest Catholics” and his plan to witness their wedding soon. In his interview, the new Catholic responds: “I live with my fiancé N., two daughters N. (5) and N. (3), 2 dogs, 3 cats, and 7 chickens. My hobby is hunting, but I enjoy spending time with my family and friends in any way that I can. …The holy sacraments, values and beliefs systems, and community. These are three aspects that stand out to me about the Catholic Church.”

Let’s not be judgmental. The couple could be living as “brother and sister.” Sarcasm aside, there might be a morally plausible explanation for the living arrangement, but the pastor had no business chirping about the appearance of illicit cohabitation in his bulletin. Why? The appearance of a Church authority approving unlawful cohabitation may tempt others to do the same.

Alas, priestly efforts to require couples to separate before marriage have become rather quaint. (Couples commonly say they are saving money by cohabitation. But when they acknowledge habitual sexual relations, they reveal that their living together is not all about money.) Many parents nervously ignore cohabitation and think marriage will remedy the irregularities. A conscientious priest becomes an obstacle to their hope.

Cohabitation is so common and damaging to the marriage consent (do the exchange of promises have meaning to the couple?) that annulment proceedings would likely use the fact to support a decree of nullity.

Occasionally, civilly divorced Catholics who have remarried—after receiving a decree of nullity from the Church—deepen their faith and worry that a “liberal chancery tribunal” granted the judgment in error. Just as we presume marriage is valid unless proven otherwise (in Church courts), a Tribunal decree also enjoys the favor of the law. Church officials stand before the judgment seat of God for their decisions. Cutting to the chase: Relax and live your marriage with confidence.

Restoring the integrity of the marriage promises

In the (highly accurate) movie, A Man for All Seasons, Thomas More learns that Parliament will pass an Act requiring citizens to take an oath supporting King Henry VIII’s unlawful marriage (following his divorce from Catherine of Aragon). More asks, “But what is the wording?” His son-in-law dismisses the question, saying, “We don’t need to know the wording—we know what it will mean.” More objects, “It will mean what the words say. An oath is made of words. It may be possible to take it. Or avoid it.” He later explains, “What is an oath then but words we say to God? When a man takes an oath … he’s holding his own self in his hands. Like water.… And if he opens his fingers then—he needn’t hope to find himself again.”

St. Thomas More received a martyr’s crown because he knew the meaning of words and refused to condone Henry’s unlawful marriage by attending the ceremony and taking the oath.

The solemn exchange of marriage promises reveals the integrity of the bride and groom. So do the words that challenge the validity of the marriage bond. In matters of canon law, we need originalist Church jurists to carry out their noble duties. Ask them (and couples during marriage preparation), “Who is your favorite Supreme Court justice?” If they answer, “Ketanji Brown Jackson,” flee. The exchange of promises at a wedding form the foundation of marriages, families, and culture.

“What therefore God has joined together, let not man put asunder.”