The “Orthodox Practice”: A solution to divorce, remarriage and Communion?

By Dr. Jeff Mirus ( bio - articles - email ) | Dec 12, 2014

Since the working document for the 2015 Synod on the Family includes, among its points for discussion, the “Orthodox practice” on marriage, we should take a few moments to discover the questions this raises. It is a case of discerning whether the Church can find, in the way the Orthodox churches handle divorce and remarriage, a way to enhance Catholic pastoral care for those who are divorced and remarried—or for altering the traditional Catholic practice of refusing Communion to those in invalid second marriages.

The latter possibility arises because both the Orthodox and the Catholic practices purport to derive from the same Patristic roots. Therefore, some commentators have wondered whether there is more than one possible path for the Church’s pastoral ministry. In the 2014 book which occasioned so much controversy, Cardinal Walter Kasper followed the Orthodox practice in his suggestion that, under certain special circumstances and after a period of penance, those who find themselves in invalid second marriages could be admitted to Communion.

I have read three studies of this question, one by John M. Rist on “Divorce and Remarriage in the Early Church”, another by Archbishop Cyril Vasil’, SJ on “Separation, Divorce, Dissolution of the Bond, and Remarriage” in the Orthodox Churches, and a third by Fr. Juan José Pérez-Soba and Stephan Kampowski in “The Experience of the Primitive Church: Faithfulness to the Gospel of the Family”. (See my earlier review of the books which contain these resources: Ignatius Press into the Breach: Trumping the Kasper Proposal.)

Based on these studies, I will do my best to describe the current state of the question regarding the “Orthodox practice”.

What the Orthodox Churches Do…and Why

Each of the Orthodox Churches permits divorce in a limited set of special circumstances. They also permit remarriage in a kind of secondary union, celebrated differently and even penitentially, which nonetheless is understood to regularize their situation and permit full participation in the life of the Church.

But the reasons they have gone down this path are not flattering. As a matter of record, Orthodoxy does not have anything like the full and consistent theological development of the Christian doctrine of marriage that has characterized the Catholic tradition. The Church in the West was never closely aligned with a monolithic State, and its doctrine of marriage developed from within to demand significant differences between Catholic practices and the ancient Roman practices concerning marriage.

In contrast, the Church in the East, after the conversion of Constantine in the fourth century, became closely allied to the emperors and their policies, and so tended to approach marriage as a matter of social law, with a strong emphasis on aligning the practice of the Church with that of the State. Unsurprisingly, therefore, the various Orthodox Churches have permitted divorce for different reasons at different times, and they have not even been consistent with each other. Moreover, the supposition in Orthodoxy is that once a couple has been judged to be divorced by the State, the Church will issue an accommodating statement of dissolution.

It is also significant that the Catholic Church presupposes important distinctions among the concepts of civil marriage, sacramental marriage, separation, divorce, invalidity and nullity. But such distinctions are peculiarly absent in the Orthodox Churches.

The Orthodox do acknowledge the indissolubility of marriage as taught by Christ as the ideal, and they stress that this is the expected and ordinary state of things. This explains why second marriages are accorded a theoretically reduced status. But in practice, Orthodox developments concerning marriage are inconsistent. For the Orthodox, the essence of marriage is thought to be the communion of life shared by the couple. In the last analysis, there is a strong tendency to conclude that if that communion has ceased in practice, then the marriage has dissolved.

But this is nearly the opposite of the Catholic view. It is very close to the false psychologism which dominates many Western tribunals: If the marriage did not work, it means that the couple was incapable of marriage. But in the Catholic Church, this is not a doctrine. It is an abuse.

Patristic Antecedents

There remains the argument that the Orthodox can find justification for their approach to marriage in the practices of the early Church and the Fathers. Since this case has most recently been advanced by Cardinal Kasper, I should mention that all three of the authors I have read conclude (with surprising gentleness and grace) that the Cardinal has rather consistently played fast and loose with his source material, or at least relied heavily on other scholars who have done the same. Unscholarly and even deceptive advocacy has been substituted for sound argument.

There are a few references in early Christian writings to bishops who permit second marriages in some cases, but these references come from writers who oppose the practice, recognizing it as a departure from the norm. There are also a handful of early texts (and no more than that, despite a vast testimony to the opposite position) which modern scholars might find ambivalent or even useful for justifying a change in practice. Unfortunately for those so tempted, it is fairly easy to demonstrate that these texts do not mean what they are sometimes alleged to mean. This can be done by examining either the immediate context or other writings by the same author.

The most important example is Canon 8 from the Council of Nicaea, which was directed toward the “Cathari” (also called Novatians). In the name of superior purity, the Cathari refused to accept those who had formerly apostatized and also those who had married a second time. As a condition for reconciling the Cathari to the Catholic Church, the Council decreed: “[I]t is fitting that they [the Cathari] profess in writing…to remain in communion with those who have been married twice and with those who have lapsed during persecution.”

Shabby scholars have taken this to justify Communion for divorced Catholics in invalid second marriages. But to understand what this canon really means, we must grasp the context. Remember St. Paul’s advice: He thought it a superior course for widows to consecrate themselves to God rather than to marry again, but he acknowledged that they were in fact free to marry, and at times even recommended that young widows should do so (cf. 1 Cor 7:8-9 and 1 Tim 5:11-14). But the Cathari (which means “the pure ones”), or Novatians, fell into errors of rigorism. One of these was the assertion that it was immoral for a widow or widower to marry a second time—even though (by definition) the first spouse had died.

Thus Canon 8 addresses a specific Cathar error by simply decreeing that they cannot shun communion with widows and widowers who choose to marry a second time. In similar ways, the few other citations used to justify Communion for those in invalid second marriages can easily be explained.

Conclusion

It would, of course, be simplistic to assume that my scholars are the right scholars. Just because I believe that evidence to justify the “Orthodox practice” is all but non-existent does not mean this is so. Moreover, the ultimate decision must be made by the Magisterium under the authority of the Holy Spirit, and not by even a majority of scholars, all of whom could be wrong.

This leads me to a double conclusion. On the one hand, it is perfectly legitimate for the bishops to examine the “Orthodox practice” thoroughly to see if it suggests effective alternatives to Catholic pastoral practice that still support Catholic doctrine. On the other hand, I believe the conclusion will be negative with respect to Communion, just as Pope John Paul II concluded in 1981 (see Familiaris Consortio #84) and just as was reaffirmed by the Congregation for the Doctrine of the Faith in 1994 (in a statement which actually addressed the faulty Patristic arguments).

One hopes that the synodal process on the family will lead to more effective ways to include divorced and remarried Catholics in the Church’s pastoral ministry. But it is unreasonable to expect—or to fear—that the Synod will reach a different conclusion on this particular point.