“Annulments” and a distinction: juridical and/or sacramental

Ed Peters, distinguished canonist, has come out of hibernation to post this helpful distinction. See his outstanding blog In The Light Of The Law, where there is no open combox.  Check with him often.

My emphases.

Confusing validity and sacramentality in marriage
by Dr. Edward Peters
Confusion among Catholics concerning annulments is not helped when “experts” featured in the Catholic press are themselves confused about annulments. [aka declarations or decrees of nullity, that is, that there was no valid marriage]

Peter Smith, writing in the National Catholic Register (21 jul 2014), interviewed two experts about the annulment process. The quotes from one of them, Benedict Nguyen (a canonist for the Diocese of Venice FL) are reliable; but the other expert, Dcn. Patrick O’Toole (actually featured in the article) is confused about the central question in every annulment case. [It’s not good tone confused about the “central questions”.] According to O’Toole, “We know a valid civil marriage occurred. The only question is whether a valid sacramental marriage occurred” (original emphasis). O’Toole repeats his phrasing later: “What we’re looking for is: Was everything that is required for a sacramental marriage there from the very beginning?” O’Toole is mistaken.

Not only is the sacramentality of a marriage NOT determined in an annulment case, the question of its sacramentality is not even RAISED in the process. The annulment process is about the validity of marriage and only about validity; a successful petition results in a “declaration of nullity”, not in a declaration of non-sacramentality. Experts must know and consistently present these distinctions if they are ever to help pew Catholics to understand first the fundamental juridic nature of all marriage and then the sacramentality of specifically Christian marriage.  [See?  Two concepts: juridical and sacramental]

Consider: if tribunals really regarded as null all marriages that were not “sacramental”, then no marriage between Jews, or between Muslims, or between Hindus, would be valid, for none of those marriages are sacramental. For that matter, no marriage between a Catholic and any non-baptized person would be valid, for such marriages are not regarded as sacramental, even when they are entered into in accord with canon law! This is nonsense, of course, but it’s the kind of nonsense that gains traction when an “expert” describes the central question in annulment cases to be about sacramentality instead of about validity.

There are, I’m afraid, several other problems in the article but the above should suffice to caution readers.

Sapienti pauca.

Prof. Peters, ladies and gentlemen, with his characteristically helpful clarity.

About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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  1. Dr. Edward Peters says:

    Hibernation? Ha! I haven’t been hibernating, I’ve been studying Latin this summer with Fr. Reggie Foster! Hibernation. Riiight. :) edp.

  2. Phil_NL says:

    With all due respect to Dr Peters, but I think he jumps a bit too conclusions here, in the last part – a bit of a rethorical florish:

    “Consider: if tribunals really regarded as null all marriages that were not “sacramental”, then no marriage between Jews, or between Muslims, or between Hindus, would be valid, for none of those marriages are sacramental. For that matter, no marriage between a Catholic and any non-baptized person would be valid, ”

    Implicitly, that seems to argue: of course those marriages are by and large valid, so by extention, Dcn O’Toole hasn’t thought things through.
    Now that last part may be true, that’s something I consider less than fully relevant to the point I want to make (nor am i arguing against Dr Peter’s main point). But the first part may not be so easily conceded. Are those indeed valid marriages, in general? I daresay most, perhaps a very great majority, are not.

    For starters, Muslim marriages. islam allows polygamy – it’s often the civil regime that disallows polygamous marriages in the relatively more civilized muslim countries, but a muslim can wed while already planning his second, third and fourth wife. In several countries, that’s exactly what they do.
    Then there is the issue, already debated here on other occasions, of divorce: both muslim and Jewish marriage allow for it. The permanency spouses of those religions intend when contracting a marriage is therefore of a different nature than the permanency spouses enter with a proper catholic marriage.
    Now I consider myself not sufficiently educated about hinduism to add examples from their religion (though some consider a proper marriage between man, wife and God; in hinduism one would have to ask ‘which god’..?) but I’ve already raised questions on a substantial part of marriages worldwide.

    The problem is: when someone calls it marriage, that doesn’t mean it is marriage, as the west is now learning by means of the so-called ‘gay marriage’. I think it’s high time we ask those questions in a much broader context; I fear we’ve overlooked them way too long already.

  3. jhayes says:

    Interesting to read the questions in the application form for an Annulment:


    “Sacramental” may not be the precise word. But I think the basic point of the NCR article is correct – the existence or not of a civil marriage is a factual question which can be resolved by consulting public records, while the existence of a marriage which is valid in the Church’s eyes (whatever it is called) is much more complicated – as illustrated by the questionnaire

  4. Dr. Edward Peters says:

    Phil_NL. You are misunderstanding some key points here and then attributing your misunderstanding to me. Ah, it’s good to be out of hibernation again.

  5. Phil_NL says:

    Dr Peters,

    I’m happy to be educated, but if those points I’m apparently not getting aren’t identified, well, that’s going to be a bit difficult.

    Secondly, I went to some lengths to explain what I’m arguing. At no point am I attributing any misunderstanding to you. All I’m arguing is that, in my opinion, the possibility that a whole lot of marriages from other religions are indeed null, should not be dismissed out of hand.
    Apart from that remark – which appears to me a rethorical device than anything else, to be honest – we have no disagreement; nor do the things we write about overlap on any front. Which, to be frank, seems to limit the potential for both misunderstandings and their attribution.

  6. Jerry says:

    re: Phil_NL:

    “Implicitly, that seems to argue: of course those marriages are by and large valid, so by extention, Dcn O’Toole hasn’t thought things through”

    Dr. Peters’ point is valid if a valid non-sacramental marriage is a possibility, even if none occur in practice due to the widespread prevalence of impediments or lack of consent. While you may have inferred that his statement indicates non-sacramental marriages are <by and large valid, I think a more reasonable interpretation is that some non-sacramental marriages are valid.

    While the Muslim and Jewish faiths view marriage in a way that excludes one or more of the essential attributes, this does not mean that every Muslim or Jew excludes those attributes, just as many, if not most Catholics, do exclude at least one of the essential attributes despite Church teaching to the contrary.

  7. Jerry says:

    re: jhayes – are you aware that if you have completed that form, by providing a link to it here you have violated the sworn oath not to reveal the questions?

  8. TWF says:

    The Church has the power to dissolve VALID natural (non-sacramental) marriages. Thus, I am not certain that belief in the possibility of divorce is an impediment…as it is in fact Catholic teaching that such marriages CAN be dissolved. If two Muslims enter into a valid, natural marriage, and the wife later becomes Catholic, for which the husband leaves her, she can apply to have her marriage dissolved under the Pauline Privilege if she seeks to marry a Catholic man.

  9. Phil_NL says:


    I do not contest the validity of Dr Peter’s points (especially that sacramentality isn’t even raised, and therefore moot). Nor would I argue that all non-sacramental marriages are invalid by definition (I have in the past argued that they may be presumed to be invalid, but that’s another discussion, which we had in another thread a while ago, and not a point I made here).

    What I do argue is that the situation that is presented as a possible consequence of the error of Dcn O’Toole, namely that non-sacramental marriage may be invalid, might still obtain for wholly different reasons, having nothing to do with their non-sacramentality, more precisely that nowadays, very few outside the Catholic Church intend the attributes even of natural marriage.

    To make an analogy (borrowing a bit from physics), suppose someone said that cooling an object to absolute zero would increase its mass. That’s rubbish. A consequence would be that matter would appear out of thin air. However, someone could point out that, while the proposed mechanism to create matter would be nonsense, the laws of physics do allow for – a very brief – creation of matter out of a vacuum. The process would be wrong, but an implication of that supposed process may be true through other means.
    That was the type of reasoning I was practising in my post.

    I consider the Pauline privilige an instance of the power of the Keys, where the demands of religion trump even that of natural marriage. But do note that the situation is different up to a point, namely that in such a case the appeal to dissolve the marriage is, albeit indirectly, to divine power, as granted to Peter and his successors. All other cases of divorce / dissolution are based on human power: some person arrogates to himself the power to dissolve marriage, and many religions and civil society accept that power, where there is actually none (changin, IMO, intent). So I do not see that as an inconsitency that would undermine my arguments.

  10. Bosco says:

    It would be mighty helpful were a definition of what constitutes a ‘sacramental’ marriage’ and a ‘juridic marriage’ was set forth in the piece.

    I’m not the brightest penny in anyone’s pocket, but with all due respect Dr. Peters’ brief exposition left me confused at best.

  11. jhayes says:

    Jerry, the link to the form is in the NCR article which Dr. Peters linked from his article. No, I haven’t filled one out myself – not sure why you would think I had.

    If you want to see more forms used in annulment cases, these are on the same public website (Diocese of Green Bay).


  12. JARay says:

    It is several months since Fr. Finigan on his blog “The Hermaneutic of Continuity” discussed the difference between a valid marriage and a sacramental marriage. No Catholic can have a sacramental marriage with anyone who has not been baptised.
    Why? you may ask!
    The reason is that it is the two spouses who confer the sacrament on each other. The priest is there as the witness for the Church but he does not confer the sacrament on the couple. They are the ones who confer it.
    Now, an unbaptised person cannot confer a sacrament on anyone. Nor can any sacrament be conferred upon an unbaptised person since the sacrament of baptism must be received before any other sacraments. Hence, in the case of a Catholic marrying an unbaptised person neither can confer the sacrament of marriage on the other. It follows then that the marriage will be a valid marriage but not a sacramental marriage.
    Fr. Finigan did note that in the case of a ‘valid’ marriage which is not a sacramental marriage it is easier to question the subsequent validity of the marriage and come to the conclusion that it was invalid and hence pronounce the “marriage” to be annulled, i.e. there never was a marriage in the first place.
    It is far more difficult to declare a decree of nullity in the matter of a sacramental marriage.

  13. Bosco says:

    You have recounted from your recollection of Father Finegan’s blog that “…the two spouses… confer the sacrament on each other.” I understand that to be the case.

    However, such being the case, would you infer that the psychological maturity of the parties (their understanding of what is being undertaken and contracted) is indispensable matter for validly conferring the sacrament? If such maturity is absent then is the marriage ‘sacramental’ notwithstanding?

    Would it be like attempting to baptise with a liquid other than water (emergency baptism excepted)?

  14. jflare says:

    OK, now I AM confused!
    I’d had the impression that the question of nullity was, indeed, about the validity and sacramentality of the marriage, both.
    I’m not married, nor seriously contemplating being married, but a more thorough explanation would be quite helpful.

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  16. After reading the comments here, I think this point needs to be stated: validity is the canonical presumption, the “starting point,” for all marriages. Hindu marriages. Jewish marriages. Islamic marriages. They are all presumed to be valid by the Church. Every single one.

    The Church investigates the validity when, and ONLY when, a case is presented to her and she accepts the case. Otherwise, in the eyes of the Church, marriages are valid on their face. This is to be our position as lay people as well–validity is the starting point. Invalidity must be objectively proven before a tribunal.

    To speculate on other culture’s invalid marriages is to put the cart before the horse. Start with “these marriages are presumed to be valid in the eyes of the Church.” Once this point is understood, I think some of the other issues raised in the comments here will make sense.

  17. Phil_NL says:


    Yes, that is the starting point as it stands now. But it is a position that is odd, given the deference it gives to practices which are clearly against Church teaching, and the gigantic stretch it involves in the definition of the characteristics that make a natural marriage. My comments, at least, will make sense only when one realizes that the wisdom of this starting point (of presumed validity) is exactly what I have grave, grave doubts about.

  18. Phil, are you proposing that the Church change its presumption? If so, then this would be a disaster. It is far more merciful for the Church to presume validity than to presume invalidity.

    Again, the distinction raised in the OP is between validity and sacramentality. Very very different concepts. All marriages are presumed valid. Not all marriages are presumed sacramental, and, as stated in the OP, the sacramental aspect of marriage is not investigated in the annulment process. Only the validity.Why? Because if the marriage is found to be invalid, then the parties are free to marry.

    I cannot think of a reason why a Church tribunal would need to investigate whether a particular marriage was sacramental. Either both parties are baptized (sacramental and presumed valid), or one is baptized and the other is not (not sacramental and presumed valid), or they are both not baptized (not sacramental and presumed valid). Far more straightforward than determining validity.

  19. Phil_NL says:


    Yes, I do think the Church should change its presumption. Not because of anything in the OP by the way; Dr Peter’s article merely contained a turn of phrase that I believe is unfortunate, as it also is based on the assumption that every marriage would, unless proven otherwise, be valid. My points have nothing to do with sacramentality.

    And, if I may continue the aside I do argue about: I think it is in fact not very merciful at all to presume validity. It is akin to changing the rules mid-game should one or both spouses convert: they would have been free to marry and divorce prior to conversion, but after conversion the first marriage would suddenly be presumed valid again, and therefore the second marriage adulterous. I see little mercy in that – at best some justice, but even that is in my opinion a stretch, as other religions wed with the understanding that divorce is indeed possible.
    Not to mention the other reasons why this presumption is problematic, namely that we allow others to define marriage / what we recognize as marriage. In the olden days that was not too much of an issue, but the last century we’ve seen that the rest of the world is not to be trusted with the definition of marriage – and that, as with islam, as well as the gay-marriage issue in the West, the rest of the world is suddenly a lot closer.

  20. Phil, admittedly, I don’t know how the Church treats polygamous marriages when one (or more) of the parties convert. Perhaps there is no presumption of validity in those cases, since they are invalid on their face. Similar to how the Church views a second marriage–it is invalid on its face, since the parties were not free to enter into it due to the presence of a first, and presumed valid, marriage. Perhaps gay marriages will be treated similarly–no presumption of validity since it’s invalid on its face.

    Regarding the question of mercy: let me use an analogy to explain why I believe mercy sides with a presumption of validity. It’s not a perfect analogy, and you may not agree with it, but I think it’s close enough to demonstrate my point. Let me preface it with this statement: I understand the difference between divorce and annulment.

    I don’t know where you live, but here in the United States we used to have a system for divorce which was fault-based. If a spouse wanted to leave a marriage, divide the assets, and negotiate child custody and child support, the state would only get involved if the spouse could prove that the other spouse had done something really bad (adultery, abandonment, abuse, etc.). Under this system, the state had a presumption: a presumption of permanence. The state presumed that marriages were permanent, and would not get involved in making determinations about the minutia of family life unless one spouse was being a major jerk.

    Starting in the late 1960s-early 1970s, states began changing their divorce laws to remove fault as a requirement for the state to get involved. This change is commonly known as “no fault divorce.” It removed the state’s presumption of permanence, and replaced it with a presumption of impermanence. Now the state gets involved in making determinations about the minutia of family life at the behest of one spouse, for any reason or no reason. Under the old system, accusations had to be proven under the normal rules of providing evidence for such things. Under the new system, accusations are made by spouses and acted upon by the courts with little to no evidence. It was a massive transfer of power from families to the state, and the state has abused this power. The state is actively involved in breaking up families, for any reason or no reason, and without evidence of wrong doing by the “reluctantly divorces” spouse. And I have not discussed the impact this has had on children, but it has not been positive.

    I know that “no fault” divorce has many fans, but I am not among them. I believe mercy sides with the state presuming permanence in marriage, since the state has no business meddling in the minutia of family life when it’s not proven that one of the spouses did anything wrong.

    Similarly, if the Church adopted a widespread presumption of invalidity, wouldn’t that send a message that the Church doesn’t respect marriage?

  21. saint and sinner says:

    Now, an unbaptised person cannot confer a sacrament on anyone.

    Actually, CCC #1256 explicitly states that a person who is not baptized may nevertheless validly confer baptism on another.

  22. eulogos says:

    Having lived the majority of my married life in a “valid but not sacramental” marriage, the idea that the Church would not presume that my marriage was valid really disturbs me. How could someone like me with a (then) non-baptized spouse, ever get into the Church? When my first son was baptized the priest said, “If there was anything wrong with your marriage, Fr. C would not have let you into the Church.” In fact, Fr. C had carefully explained to me the difference between validity and sacramentality, and that a marriage of two unbaptized people was considered to be valid, which I assume means, presumed to be valid. If such marriages were presumed not to be valid, I would have had to have persuaded my husband to marry me “in the church” or either left him, or stayed out of the Church. That strikes me as contrary to scripture, for one thing, since St. Paul said that if a nonbeliever will live in peace with a believer, they ought to stay together.

    I was baptized about a year after my marriage. It was about 35 years before my husband was baptized. By then we had had 9 children together. I am told that our marriage became sacramental when he was baptized, since a valid marriage cannot exist between two baptized people without being sacramental.

    I don’t think one can assume that everyone except Catholics thinks marriage is temporary and contingent. I know that when I was 17 and pregnant and we discussed getting married, my then boyfriend now husband said, “Well we could get married, but we would have to accept that we would separate if it didn’t work out,” and I said, “That’s not marriage.” (I remember the moment; we were on the Long Island RR). There was a huge amount that I did not know at 17, but I knew that. When we did get married two years later, we both understood it to be permanent, even though we both had problems and attitudes that I am sure would be found to be problematic if someone looked into it.

    I am for the presumption of validity.
    Susan Peterson

  23. JARay says:

    @Bosco. I have joined your blog so you now have my email address and you can then correspond with me if you wish.
    @saint and sinner. Yes, you are right. A non-baptised person can confer the sacrament of baptism if it is done with the right intention and uses the prescribed words. BUT can you imagine a case where that would happen? As I say, the sacrament of baptism MUST be given before any other sacrament can be received. Hence, in the case of a Catholic marrying an unbaptised person then the marriage is Valid but it is NOT a Sacramental marriage.

  24. jhayes says:

    An Italian news service reprints comments in Osservatore Romano by Cardinal Coccopalmerio on the Synod (Italian only)

    Città del Vaticano, 24 lug. (TMNews) – “Certamente è auspicabile una procedura più rapida per la dichiarazione di nullità del matrimonio”. Lo afferma all’Osservatore Romano, in vista del sinodo di ottobre sulla famiglia, il cardinale Francesco Coccopalmerio, presidente del pontificio consiglio per i Testi legislativi.

    “Qualsiasi miglioramento è opportuno; però questo deve sempre salvaguardare la finalità essenziale del procedimento che è la ricerca della verità. Si deve cioè conoscere se questo matrimonio è valido oppure no. Stiamo facendo passi avanti. Stiamo riflettendo da qualche tempo nella commissione speciale del nostro dicastero circa la possibilità di snellire la procedura. Non siamo ancora arrivati a risultati da ritenersi soddisfacenti, però abbiamo individuato due ipotetiche soluzioni: ridurre a uno i gradi del giudizio — anche se lo ritengo poco opportuno — o favorire il giudice unico, anziché il giudice collegiale. Ma, ripeto, sono solo due ipotesi ancora da approfondire. Probabilmente si dovrà configurare anche una forma di intervento più diretto del vescovo, che potrebbe, in alcuni casi, rendere la procedura più veloce”


    He mentions that his some possibilities his group is looking at, although they haven’t come to a recommendation yet:

    – require approval by just one panel instead of two.
    – allow decisions by single judges instead of panels
    – provide for more direct action by the bishop

  25. Phil_NL says:

    FruityPebbles, eulogos

    FruityPebbles, I have to disagree on that front. No fault divorce is indeed a power transfer, but that power shouldn’t be there – in human hands – to begin with. If there would be a single definition of marriage, it would have to be one where “fault divorce” (for want of a better term; I mean divorce under the old regime, where e.g. infidelity was proven) is also ruled out. Otherwise you would have to differentiate between marriages where divorce is possible (civil and protesant ones, for starters) and those where it isn’t.

    The core of the matter is that, for at least a century*, the Church and society do mean different things when they use the word ‘marriage’. This might be a bit of a leap in common law countries, where a distinction between civil marriage and a religious marriage was rarely codified or even employed, but Napoleon did at least do several countries the favor of making clear that what the state sees as marriage might be something altogether different than what the Church or indeed natural law would make of it. I therefore reject any argument that has as a basis that the Church should or would consider what happens in civil, rather than ecclesiastical, law as having any effect. That would hand over power from the Church to the state, which is most unwisely, as the state will not wield it in a manner conforming with Catholicism.

    So I believe that mercy should be applied in isolation of what civil authorities do. And frankly, since there are numerous ways in which civil authorities can make inane laws, and since people do react to civil laws, what is going to be mercy? Is it merciful to assume validity so to force the couple together again (even at small odds), or is it merciful to release them from a bond that was no true bond to begin with, and which they wouldn’t have entered if only they’d considered it a permanent union, rather than one that would last till they thought divorce to be an easier way? What people have done in response to a flawed civil definition of marriage – and people do respond to that, especially outside the Church – might not in mercy be held against them. At least, not as a general rule.

    Which brings me to eulogos remarks.

    A presumption of non-validity may not be nearly as troublesome as you suggest. First of all, the ideal situation is of course that one partner helps to convert the other one as well. But even if that isn’t possible or realistic, a convalidation of some sort would sort the matter. A Catholic can, after all, marry a non-Catholic as well in a valid marriage, so if one started out as two non-Catholics, the situation should be able to be made in order after one converts, even if the other spouse doesn’t. Of course, there may be a small category of cases where the spouse adamantly refuses to cooperate with such an attempt, but that looks more like a situation for prayer than a general legal solution to me.

    You last penultimate paragraph deals with the possibility of validity outside the Church. Surely, that possibility is there, but how often does this apply? “Well we could get married, but we would have to accept that we would separate if it didn’t work out” is probably a line of thought accepted by the vast majority of non-Catholics. Are we to assume validity for the sake of the few marriages that are? I think that actually does more harm than allowing the spouses to make the case for validity upon conversion. The point is that there are loads of people carrying around baggage from unwise “marriages” they cannot shed, while if there are two people who do wish to make the commitment in a way that is sufficient for validity, they can always do so at any time they please. They would not be harmed by the presumption of invalidity, as they can always lift that presumption if they both choose to. The hard cases are where they didn’t choose to do so to begin with, acted upon that situation later by divorcing and marrying again, but later discover the Church sees that in a different light.

    Finally, back to FruityPebbles last remark, I think that making the distinction between proper, valid marriages and those which aren’t – regardless of whether they are invalid due to not have a man and a woman, or more than 2 partners, or deficient in permanency, or whatever other reason – actuall strenghtens real marriage. For the simple reason that all the shady practices by others are separated from true marriage. The commingling of the terms, which weakens marriage because the vital characteristis get overlooked, would end.
    The idea that there is just ‘marriage’, which means fundamentally the same to everyone, is, in my humble opinion, dead and won’t be back for decades, if ever. Nothing short of a miracle will convert society back. We can pray for one, but it would be folly to ignore the fact we don’t have it right now. What society calls marriage often isn’t. It’s high time we adjust our ecclesiastical laws to reflect that.

    *as I would pinpoint the problem more on remarriage than divorce per se; marriage can fail and spouses separate, while still being tied together even if they can’t live that bond. Only when there is a second marriage, then the first bond must have ended in all respects.

  26. Phil: “I therefore reject any argument that has as a basis that the Church should or would consider what happens in civil, rather than ecclesiastical, law as having any effect. That would hand over power from the Church to the state, which is most unwisely, as the state will not wield it in a manner conforming with Catholicism.”

    If you believe that the state should not be involved in marriage, are you proposing that the Church handle the issues related to justice when it comes to the separation of spouses, such as asset division and child custody/support issues?

    “I think that making the distinction between proper, valid marriages and those which aren’t – regardless of whether they are invalid due to not have a man and a woman, or more than 2 partners, or deficient in permanency, or whatever other reason – actuall strenghtens real marriage. For the simple reason that all the shady practices by others are separated from true marriage. ”

    This same argument was made by the proponents of no fault divorce. It didn’t work out the way they had hoped. The institution of marriage was not strengthened. It was weakened.

  27. Phil_NL says:


    No, the Church would not need to go into the material goods or custody areas. It’s wholly unsuited to do so, and it’s not it’s job anyway. For having a marriage is not dependent on asset division arrangements, and frankly, there would not be any of that, as the Church does not recognize divorce to begin with!

    What I have in mind, practically speaking, is more a development of the situation we have on the European continent since the French revolution: if a couple wants to marry, they go to Church for the spiritual side of things (or not, if they aren’t religious), and also to town hall to sign the legal paperwork (which may sort division of goods, etc.). Both sides happily ignore eachother on that day. The main chance I’m advocating is that the Church continues to ignore any civil paperwork after the wedding day as well. If a (presumably) non-valid marriage breaks up, it’s none of the Church business, and a valid marriage cannot be terminated in the eyes of the Church.

    As for the historical argument you’re making, I believe it worked out exactly that way because – certainly in the common law countries – people had a single definition of marriage. If all arrangements that receive a sticker with the word “marriage” on it, regardless of their contents, are seen as a true marriage, than yes, you damage the word and suck the meaning out of it.

    I think that such a concept of marriage cannot be defended. It depends too much on the good will of others, and that is absent. Rather than trying and failing, therefore increasing the damage even further, I propose that the Church takes control and operates its own definition, based on natural law and 2 millenia of Tradition. If you allow your opponents to control the definitions, in effect control the language, they will be far ahead (see, e.g. Orwell). Separate what is different, give it a clear distinction in word and practice, and defend your own ground.

  28. Suburbanbanshee says:

    PhilNL: Even in the days when Catholics were marrying pagans, or when polygamy among Franks was as common as polygamy in some parts of Africa today, the Church presumed validity until proven otherwise.

    Presuming non-validity would be presuming that adults have no power to make valid contracts of any kind unless proven otherwise.

    Are you seeeeeriously saying that you want to take a contract test every time you want to buy gas or pick up a Slim Jim at Walmart? Because sure, there are people out there who think they should be able to return a used can of Spaghetti-O’s, but we don’t give tests on that. We presume validity for anybody capable of moving through the checkout line with money in hand.

  29. Phil, are you advising a retreat from the debate on civil marriage?

  30. Phil_NL says:


    No, as I said in another thread, the presumption is not that non-Catholics are incapable of making valid decisions, including marriage. The presumption is that, even though they are capable of doing so, they don’t do it in practice when it comes to marriage. More precisely, they cannot be taken at their word (’till death do us part’ being the operative phrase in English-language cermonies, I believe), as the meaning that is given to those words is colored by society, which renders it, less euphoniously, “till death do us part, or the divorce lawyer, whomever happens to come by first”.

    There is no fundamental agreement over what it means to buy at Walmart (though, as a European, I must admit that a Slim Jim is uncharted territory to me). There is a fundamental disagreement what the word ‘marriage’ means. In the olden days, not so much (muslims, pagans and the like were rarely in the picture, and the West looked to the Church for these matters). Nowadays, the difference is profound.
    People are capable of entering into a valid marriage, but if they don’t intend permanence, they don’t have a valid marriage. And that applies, in my opinion, to the vast majority of non-Catholic marriages these days.


    I consider that debate long lost. And not because of the gay marriage issues that have made such inroads in the last decade. Not even when no fault divorce was introduced, but when remarriage after divorce became acceptable was that debate lost already. It’s hard to pinpoint exactly (it differs by country), but it’s at least a century, often two (another fruit of the French revolution), in most of the West.

    The debate that remains should be, from the Catholic side, conducted with an aim of pointing out the errors that the vast majority of society is making. Not with the aim of having society conform its laws to what’s right without convincing them what’s right first; that has yielded nothing but a hopeless rearguard action for decades. And trying to hold on to a definition by society that isn’t Christian, hurts the Church every step along the way. Only when the Church says flat out “you call it marriage, but to us it isn’t” can it teach clearly.

  31. While I believe that the United States will have gender neutral marriage (aka, “gay marriage) in every state in a short time, I also believe the debate over civil marriage is still worthy of engagement. There are two reasons I say this, and they are interrelated.

    1. There are structural features of civil marriage that need to be defended. Most of the rank and file among the opposition believe two things about marriage that we also believe: that marriage is only for “two” people (and by extension, parenthood), and that close relations cannot marry. These shared beliefs are an opportunity for us to make our argument, but in order to be made effectively I believe it must be made in a certain way. It must be made in a way that encourages them to defend what they claim to believe (ie, in the “twoness” of marriage, and that close relations may not marry).

    For example, I have had great success in posing a very simple question: “Why two?” When marriage is defined as “any two consenting adults who are not closely related,” it becomes impossible to defend the “twoness” of marriage (and parenthood). But people don’t realize this until they are encouraged to defend “two.” Then they come up empty handed. It’s the same with close relations. Their main argument is “marriage is not procreative.” OK, if that’s true, then why can’t close relations marry? Again, they have no reply.

    One of the problems for our side is that our arguments are too complex for the average person. So posing simple and unanswerable questions helps demonstrate that their arguments are not as air tight as they believe them to be.

    2. Since civil marriage will continue to decompose, I prefer to be on the record as having tried to defend it. The decomposition of civil marriage is going to have many ill effects for the generations that must live under it. For example, we are already seeing the idea of three or more legal parents gain traction due to gender neutral marriage (because the idea of “two” for marriage and parenthood is not defensible under the new definition). This will be a nightmare for those kids who are subjected to it. It’s already bad enough for kids whose parents divorce–going back and forth between two households one’s entire childhood is fundamentally unjust. Now imagine additional “parents'” homes to negotiate, and these new “parents” aren’t even genetically related to the child. Imagine the power these new “parents” will have over the legitimate parents. Imagine the expansion of judicial authority over children and families. Yes, all of this and more is coming, but I think it will be good if more and more of us will on the record for trying to stop it.

    Just so you know, Phil, I am sympathetic to your assertions that civil societies don’t understand the permanent bond in marriage, and how this creates problems for those who convert and are in divorced/remarriage situations. I am also sympathetic to your desire to find an easier way for those who are divorced and remarried.But I don’t believe the Church or Christians should disengage from the debate on civil marriage, as their are too many issues pertaining to justice in regards to children. Since we are not able to disengage, it doesn’t look like we’ll be able to change the presumption of validity.

  32. Phil_NL says:


    I don’t see how our arguments regarding the marriage debate are weakened if we make more stringent demands on marriage in the internal forum – as it would only surface after people become Catholic; as we’re talking about a presumption of non-validity, and not an actual determination under the power of the Keys, non Catholics are not affected if they don’t convert; God will sort out their situation anyway. And to be blunt, I rather get it right than make it simple, if those turn out to be mutually exclusive. Also, be prepared that many not having an answer to “why two?” will soon also have no answer to “why not three?” (or 5, as in islam).

    Nor does placing stricter demands on marriage in the internal forum hamper efforts to point out the negative vonsequences of the course society is taking. In fact, we always placed additionsl demands on Cstholics, namely that they cannot divorce.

    In fact, the discrepancy is more poignant between Catholics who marry only civilly or outdide the Church, and non-Catholics. In the first case the current presumption is validity, in the second the marriage is directly declared invalid due to defects of form – demands on form that bind (only) Catholics. I think that discrepancy, as well as the annullment mill, are more damaging to our position.

    Lastly, concern for divorced and remarried is in fact not my main objective here. It would be a great relief to those who got, in a way, ‘the rulebook changed mid-game’ due to conversion, but that would be a nice side -benefit (it would also change precisely nothing for those who divorced and remarried as Catholics).
    My main concern is that of power : if the Church recognizes civil actions, however fsr removed from its teachings, then it one the one hand condones these actions, and on the other hand makes itself a hostage to the civil government. What ever the government decides, has automatic effect for the Church, until such time the Church manages to respond. That is simply too dangerous, especially with definitions of marriage in such flux. We don’t want to find out if there has been a 3-person ‘marriage’ and a man and a woman of that marriage convert if that part was a valid one, and similar nonsense. Even if we haven’t quite reached thst stage yet, the principle is just wrong.

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