Catholic World News News Feature
Marriage, Annulments, and Gobbledygook December 28, 2001
By Msgr. Clarence J. Hettinger
In a letter to the editor, published in the August/September 1997 edition of this magazine, Mario di Solenni states, "However, CWR--despite several recent articles questioning, if not disparaging, the annulment process--has yet to confront the key question." The question Mr. Di Solenni would have CWR address ("Are judgments of the Church regarding the validity of a marriage binding regardless of their objective correctness? In other words does the Church have the authority to bind and loose even when she makes bad pastoral and administrative decisions?") may indeed be worth pursuing. But it is not the key question.
To those who view the current profusion of annulments as an unmixed blessing, any serious treatment of the scandal will seem unnecessary. But for those who view that profusion as a scandal, I submit that the key question must be the validity of the theological basis on which Church tribunals have usually justified their decisions.
Some observers--such as Robert Royal, in an article entitled "Catholic Gobbledygook," published in First Things in October 1997--have seen the secular journalists' fascination with the topic, coming with the publication of Sheila Rauch Kennedy's book Shattered Faith, as an example of Catholic-bashing in the media. Unfortunately, the facts speak for themselves. There is a scandal here, and it would be a public scandal even without Shattered Faith.
THE PUBLIC SCANDAL
The evidence has come in several different forms:
o With his highly publicized assessment of the annulment process as "a bunch of Catholic gobbledygook," Congressman Joseph Kennedy implied, beyond question, a loss of faith in the doctrine of the indissolubility of marriage.
o The very title of Sheila. Kennedy's book--Shattered Faith--stresses a loss of credibility for the Church.
o One recipient of an annulment, quoted by Bob Zyskowski in an article published by US Catholic last year, saw the annulment process as "a hoop the Catholic Church makes you jump through,... the Church washing away someone's wrongdoing, the Church looking the other way."
o Marion Crowe summarized the public scandal bluntly in an article with the revealing title "The Annulment Game: Let's Pretend," published in Commonweal last September: "Although the literature on annulment is very insistent on the point that annulment is by no means 'divorce, Catholic-style,' that is, in fact, what it is."
o Susan Jacoby's review of Shattered Faith for Newsday, excoriated the pseudo-scientific rationale for annulments, writing: "The entire process, as Kennedy describes it, has been thoroughly corrupted by the kind of retrospective psychological analysis--talk about gobbledygook!--that has made a mockery of so many criminal trials. Psychotherapists are asked by ecclesiastical tribunals to provide ex post facto opinions about people's supposed intent on long-ago wedding days."
o Yvonne Crittenden writing for the Toronto Sun on "How a Kennedy Discards his Family," began her own caustic review of the Kennedy book with the words "The Roman Catholic Church's bizarre practice of annulling marriages...." She concluded: "It is an abuse of power and a perverse practice that needs to be revealed for what it is." Shattered Faith, she said, was "a thought-provoking look at a subject that seems well worth reforming or abandoning altogether."
WHAT IS GOBBLEDYGOOK
The true Catholic sense is that these and similar critics must be wrong to condemn the Catholic process of annulments altogether. The American tribunal system--scandalous though it as in its current excessive productivity--is well worth reforming. Still popular sentiment--some of it clerical--based on the testimony of either personal or second-hand experience, strongly favors the abandoning the ecclesiastical tribunal system as it stands today. The attempts to eliminate the argument by sweeping the evidence under the rug will not make the scandal go away.
Being a battle-weary tribunal veteran of more than forty years, I might have remained quietly upset by the scandal. However, the matter became highly personal when I received a particularly sharp response from a friend during an email conversation about the warts and wrinkles of the Church. My correspondent made the common observation that annulments appear to be given as favors, in return for favors of other sorts. The Church "is subject to politically motivated compromise," he wrote. Of the notion that an annulment comes as the result of an impartial judicial inquiry, he was bluntly incredulous. "A tribunal?" he wrote; "Give me a break!"
In answering my friend Jim I was forced to think through the phenomenon which Congressman Kennedy had so memorably summarized as "gobbledygook"--the annulment process as it is generally perceived today. I started with the term itself: gobbledygook. Although Jim did not use that specific term, he might well have done so when he wrote of "political compromise." The term "gobbledygook" was invented by a politician.
Maury Maverick, a Texas congressman, introduced this neologism to denote "that terrible, involved, polysyllabic language those government people use down in Washington." The usage of the word, of course, has not been limited to a description of official governmental prose. In essence, gobbledygook has become nearly synonymous with "jargon," which in turn refers to "the technical terminology or characteristic idiom of a special activity or group."
There is room for charity in dealing with those who generate gobbledygook, as well as those who are on the receiving end. What comes out of the mouth of a specialist as jargon strikes the ears of the non-specialist as gobbledygook. Thus the gobbledygook produced by marriage tribunals is not necessarily erroneous because it is opaque to the outsider. But because it lacks clarity, their unique language has contributed to the widespread suspicion that the tribunals are not being forthright.
When I responded to my friend Jim, I wrote:
Come on, give me a break. The American tribunal system is just one of your difficulties with the Church as you see it. In this particular instance--among several others--the Church as you see it is not the Church established by Christ on Rock, but the ministers of the Church in her tribunals.
Jim more or less conceded my point, but again he had a provocative answer: "This is the only Church I experience."
For Jim, his particular Church--the Church which he sees at work in his diocese--is the only Church that matters. On the same basis one can excuse Sheila Kennedy, the author of Shattered Faith, for unloading on the Church all her distress about the unwelcome annulment of her marriage, and the treatment she received at the hands of a local tribunal. It is indeed the Church that grants annulments. Consequently it is the Church which appears to be at fault when she tolerates the decisions reached by local tribunalists who do not follow her doctrine, law, and jurisprudence.
MISPLACED CONFIDENCE
The Catholic doctrine which my friend Jim sees as compromised by the behavior of tribunals is the teaching regarding the indissolubility of marriage. Along with Mrs. Kennedy and countless others, he sees a Church that is inconsistent. The Church was quite ready, willing, and able to accept solemn vows of marriage which was to be unbreakable except by death. Then just a few years later the Church appeared just as ready, willing, and able to say that the parties did not bring the corresponding bond into existence.
Congressman Kennedy took this point a step further. His use of the word "gobbledygook" and his later public use of the term "Catholic divorce" have two clear implications. First he suggests that the American tribunal system is open to the nullification of a martial bond--a bond which a presumably competing priest judged to be unbreakable when he presided at the wedding. Second he implicitly affirms the justice of Sheila Kennedy's complaints against the Church.
While Jim is right in recognizing that the authority of the Church's teaching on indissolubility has been undermined by the rash of annulments, he would not blame the Church for this problem if he were not laboring under a common basic misapprehension--namely, that the Church is wholeheartedly in favor of annulments. The truth is that, for a number of reasons having to do with the public good, civil and ecclesiastical, the Church does not favor annulments. Pope John Paul II found it appropriate to repeat in 1981 what Pope Pius XII had originally stated in 1941: "As regards declarations of nullity, everyone knows that the Church is wary of them and is disinclined to give them."
When he made that statement, Pope Pius XII was probably reacting to two 1941 Rota cases in which the judges perceived signs that an "annulment mentality" had started to sprout. Certainly Pope John Paul II, speaking 40 years later, was reacting to the decisions of tribunals which had begun acting as annulment mills in various regions of the Western world.
The teaching which Pope Pius XII felt obliged to recall that "everyone knows" in 1941 was officially stated as early as the Decretals of St. Gregory IX in 1234. John Abbo and Jerome Hannon, in their 1952 commentary The Sacred Canons, quote from that statement: "it is preferable to allow some parties to remain in a relationship that may not be a marriage or a valid marriage than to risk the violation of the natural law by separating others who are validly united in a marital bond."
We can gain a more sympathetic understanding of today's problem if we recall the situation between 1941 and 1968--the latter being generally identified as the base year, when the explosion in annulments began. During that period the majority of marriage cases considered by Church tribunals resulted in favorable decisions--that is, decisions to grant annulments--for very good reasons. Almost exclusively tribunals were judging cases which were based on facts that could be demonstrated, often with the force of empirical truth--claims based on the fact that a partner had not been baptized, or that the partners were related by blood or baptismal relationships. In such cases most parish priests could accurately judge if and when they had collected sufficient documentation, and when they had done so they could be fairly confident that the judges would render a favorable decision. Judges, of course, shared the same confidence about these relatively uncomplicated cases.
This self-confidence persisted, however, even after the tribunal's stock-in-trade became cases based on psychological grounds. Unfortunately, such cases present grave problems with what canon 1530 terms the judge's task to "dig out the truth." Proofs have to be dredged up from memories which may have been deliberately buried, so that the judges will encounter the well-known possibilities of false memories and coloration of events recalled from a distant past. The evidence presented--gathered by mail, without any real safeguards to protect the truth--are then subject to the quite fallible judgment first of "experts" and then of the judges themselves. Yet these grave difficulties have not shaken the self-confidence of the tribunals--even when many people might think it should be shaken. Civil jurists, even if they acquainted with the ways of the canonical courts, must marvel at the "efficiency" of the American tribunal system, where the unchallenged annulment cases overwhelm the challenged cases by a ratio of approximately 2,500 to 1.
THE WRONG QUESTION
However, there is a problem with the tribunal system even more fundamental than misplaced self-confidence, strange jurisprudence, and disregard for the protection of the truth. It is a theological error, the result of an illogical jump from an incontestable fact to an erroneous conclusion. The fact is that tribunals generally deal with marriages endowed with sacramental dignity; the error is that tribunals are called to investigate whether or not the sacrament of matrimony was received. The error might have been avoided through a meditation on canons 1055-1056.
Judging from the evidence available in the popular press, one would conclude that this error is committed by clergy and laity alike. Among the laity, for example, Thomas Droleskey wrote in The Wanderer:
The bond of a valid sacramental marriage lasts until death; ... there is the presumption of a valid sacramental marriage ... not even the worst of situations ends the bond of sacramental marriage. [emphasis added]
While what Droleskey says is absolutely true of sacramental marriages, it is also true of non-sacramental marriages. However, Droleskey has unwittingly accepted the agenda of the American tribunal system with his definition of a declaration of nullity: "A decree of nullity is not a Church divorce; it is a finding that a valid sacramental bond never existed." He explains that this judgment is based on the determination that the couple were "unprepared to undertake valid sacramental marriages."
Among the parish clergy, Father William Saunders (in "Explaining an Annulment," published in the Arlington Catholic Herald) says: "When a baptized Christian man freely marries a baptized Christian woman, they form an indissoluble, sacramental bond.... In the eyes of God and the Church, an indissoluble sacramental marriage is presumed to have occurred."
Again this is true as far as it goes, but Father Saunders goes awry when he tries to explain the factors which could render a marriage invalid. "The declaration of nullity," he says, "simply states that a sacramental marriage did not take place." In other words, he too believes that the object of the matrimonial trial is to determine whether or not there was a sacramental marriage.
Father Michael Smith Foster, who serves as a presiding judge on the Boston Metropolitan Tribunal and a collegiate judge on the Provincial Court of Appeal, wrote a ten-segment series on the question of annulments for his archdiocesan newspaper, the Pilot. In it he devoted a whole segment to explaining the role which the sacramentality of marriage plays in annulments. Father Foster started his segment 2--which was entitled "Other Sacraments Can also be Declared Null,"--by stating: "Declaring a sacrament null pertains not only to marriage but to the other sacraments as well." That is a striking statement. But it does not account for the fact that Christian marriage is different from all the other sacraments, in ways we shall explain below.
On the national level the same attitude can be seen; Msgr. Francis J. Maniscalco, communications director for the US Catholic Conference, wrote in the Detroit News that the Kennedy-Rauch marriage "did not constitute a Catholic sacramental marriage."
A SACRAMENT BUILT ON NATURE In order to sustain the proposition that sacramentality is the object of the matrimonial trial, one must in effect argue that the human spokesmen of the Holy Spirit at Vatican II (or some lesser authority) changed the divine design of marriage. Certainly there is nothing in the documents of the Council documents to support that suggestion. Yet some theologians, perhaps misled by a flaw in the most popular translation of the Council documents, have espoused such a position.
The simple words of the Council, in Gaudium et Spes 48, are: "Hoc vinculum sacrum ... non ex humano arbitrio pendet." This can be translated plainly: "This sacred bond does not depend on human decision." In other words, God is totally in charge of the bond of marriage. The received translation, however, is basic gobbledygook: "the existence of the sacred bond no longer depends on human decisions alone." That wording would encourage us to believe that from the beginning until Vatican II the bond of marriage was subject entirely to the whims of humankind, and that only now, after all these millennia since Adam and Eve, the Church had allowed the Creator to assume some (unspecified) authority over the marital bond.
My essential argument here rests on a simple rhetorical analysis of Gaudium et Spes 48, following the original Latin text. Perhaps unbeknownst to the many people who depend exclusively on English translations, this article was crafted in two sections, the first of which was written as a single paragraph. That first section presents marriage as the Creator's gift to humanity. What is presented here is a vision of natural, non-sacramental marriage, which involves all the wonderful, personalist endowments tribunalists like to discuss.
Then, after completing its presentation on the work of the Creator, the Council changes its focus to the Savior's gift in a second, three-paragraph section. The Council opened the second section with the statement: "Christ the Lord abundantly blessed this multiform sign of love." The Council Fathers explain that the Lord elevated natural marriage to new heights, but did not in any way change its nature or essence. If we believe that grace builds on nature, we must believe also that the sacrament of matrimony is built on natural marriage. Therefore it is the latter--natural marriage--which must be the proper object of the matrimonial trial.
This analysis finds support in the words of John Paul II, from Familiaris Consortio 68:
The sacrament of matrimony has this specific element that distinguishes it from all the other sacraments: It is the sacrament of something that was part of the very economy of creation; it is the very conjugal covenant instituted by the Creator "in the beginning."
In other words, marriage is the only sacramental reality which antedated the coming of Christ. If, then, as one of the prefaces for the wedding Mass says, marriage is "the one blessing not swept away by the Flood," that primordial, antediluvian marriage is what Christ blesses as soon as two baptized people have taken that blessing of the Creator upon themselves by contracting marriage in the proper form.
Here one may also usefully consult the Catechism of the Catholic Church (1615) : "It is by following Christ, renouncing themselves, and taking up their crosses that the spouses will be able to 'receive' the original meaning of marriage and live it with the help of Christ."
Since the spouses both receive the original meaning of marriage and also live it in the fullness of their Christian faith, they "receive" the Adam-and-Eve model of marriage and then "the help of Christ" elevates it to sacramental dignity. Again, therefore, the sacrament cannot be the object of the matrimonial trial. That object must be marriage as the Creator instituted it "in the beginning"--in its original, non-sacramental meaning.
FOUR MISLEADING STATEMENTS
In the article from the Detroit News which was quoted above, in which he said that the Rauch-Kennedy case did not involve a "sacramental marriage," Msgr. Francis Maniscalco, the spokesman for the US Catholic Conference, made four other statements which deserve attention. 1) "The Sacrament of Matrimony ... involves both a contract and a ritual." 2) The qualifications for marriage are sought in "the natures on whose foundation a truly sacramental marriage could or could not be built." 3) "The community of life and love ... should characterize all marriages but is essential to the Sacrament of Matrimony." 4) "The Catholic Church also re-emphasized a personalistic theology of marriage" which "held spouses to a much deeper internal reflection on what the sacrament of marriage is about." Let us consider those statements one by one.
1) "The Sacrament of Matrimony ... involves both a contract and a ritual." This statement is incomplete, because it does not distinguish the two possible moments of sacramentalization. It is true of the celebration of marriage between baptized persons; their marriage becomes sacramental at the moment when the essential marriage ritual has been celebrated in the proper form. But the statement is not true of the marriage of a couple involving a baptized and a non-baptized person, in which the latter has subsequently been baptized. At the moment when that second partner receives baptism, the marriage is elevated to the dignity of a sacrament ipso facto without any need at all for a new marriage ritual.
2) What are "the natures on whose foundation a truly sacramental marriage could or could not be built?" According to canon 1083 (supported by canons 1058 and 1060) the "natures" that people must bring to their wedding, are, minimally the nubile personalities of normal 16-year-old boys and 14-year-old girls. Mother Nature would be an evil mother if she did not provide the necessary mental and emotional (as well as physical) equipment for marriage at the point in life where the natural urge to marry has begun to assert itself. Absent some presumably rare mental, emotional, or physical disability due to original sin, the Adam-and-Eve model of marriage is available to each and every one of their descendants.
3) "The community of life and love ... should characterize all marriages but is essential to the Sacrament of Matrimony." In other words, the community of life and love is essential to sacramental marriage but only desirable for natural marriage. That is not what the Church teaches. I refer to my analysis of Gaudium et Spes 48: the community of life and love is one of the essential natural characteristics of marriage. The Council never said a word to suggest that Christ changed the contract when he elevated it for baptized spouses. As Abbo and Hannan put it in their commentary on the old Code of Canon Law, "Christ did not change the nature of the contract or of marriage." However--interdum dormitat bonus Homerus--even those highly respected authors failed to take into account those marriages which are sacramentalized by a baptism of one of the partners which takes place sometime after the wedding; they say, "It is the act creating the indissoluble alliance (matrimonium in fieri) which has been elevated."
4) "The Catholic Church also re-emphasized a personalistic theology of marriage" which "held spouses to a much deeper internal reflection on what the sacrament of marriage is about." We need to consider this statement in light of the balancing act the Church must perform when the divine primordial right to marriage comes into conflict with the Church's divine obligation to safeguard the sanctity of the sacrament from nullity and hence from sacrilege. According to John Paul II, writing in Familiaris Consortio 48, "when in spite of all efforts engaged couples show that they reject explicitly and formally what the Church intends to do when the marriage of baptized persons is celebrated, the pastor of souls cannot admit them to the celebration of marriage." Here the Holy Father makes it clear that marriage can be denied only if the marriage would be invalid because of the couples' rejection of the sacramentality of the union. Lesser emotional defects are not adequate reason to deny the couple the use of the sacrament--or, by implication, to conclude that no valid marriage took place.
FROM MISUNDERSTANDING TO SCANDAL
One grave result of the changes falsely charged to the theology of Vatican II has been the spate of statements like those reported by Michael Rust in a news story about the annulment process published last year by the Washington Times.
Many see it as (in the approving words of dissident theologian Charles Curran) a "loophole" that the Church found and then "drove a Mack truck through." Indeed, canon lawyers sometimes boast there isn't a Catholic marriage in the United States that they couldn't annul.
Coaching his point in terms that are more formal and more respectful of the Church, Robert Royal nevertheless reaches a similar conclusion: "At least in theory, it may be that almost any couple getting married will lack due discretion in some respect, laying open the possibility that virtually any marriage that comes to grief may also be declared sacramentally void."
This loophole, Rust concluded, "has helped the United States become the Nevada of the Catholic Church."
What did those canon lawyers actually say, which prompted the Washington Times reporter to write that "there isn't a Catholic marriage in the United States that they couldn't annul?" If they understand annulment to be divorce from the bond, they are saying that a valid marriage can be dissolved. Since this impossible, they must mean be referring to a declaration of nullity. So they are saying that no American marriage is valid. Can that be the effect of the Council's teaching about marriage? Or is it rather that all Americans are vulnerable to some devastating mental or emotional virus which is inescapably triggered at the moment of marriage?
To sum it up, natural-law marriage is by divine design prior to the sacrament of matrimony; there cannot be a sacramental marriage without a natural bond. If a tribunal really and truly investigates the existence of marriages precisely as sacramental, that tribunal might from time to time declare invalid a marriage which was in fact invalid but this would be by pure accident.
In all other cases decided on the basis of such investigation, one might be tempted to say that annulment is "Catholic divorce" insofar as the decree of nullity permits remarriage while the bond of marriage remains intact. However this too would be an incautious statement. An annulment is a declaration of nullity--and declaration that the marriage bond does not exist--and since it enjoys the favor of the law (canon 124 ยง2), it stands as authoritative as long as it has not been successfully challenged.
Congressman Kennedy reflected the sentiments of a lot of people when he used the word "gobbledygook" to summarize what he knows about the annulment process under the current American tribunal system. The tribunals do indeed justify their decisions by using wordy and generally unintelligible jargon. But what else would one expect when people think they can find what they want by looking in the wrong place and then try to explain that indeed they have found it?
[AUTHOR ID] Upon retirement from St. Jude's Parish in Peoria, Illinois, five years ago, Msgr. Clarence Hettinger returned to duties with the Tribunal of the Diocese of Peoria.
