The great canonist Ed Peters has some first thoughts about the Post-Synodal Apostolic Exhortation Amoris laetitia. HERE
He doesn’t have a combox, so let’s him borrow this one.
There are as one might expect in a document of this length and written with access to the kinds of resources a pope commands, [I assume he means ghost writers]many good things said about marriage in Amoris. Whether those things speak with any special profundity or clarity is better left, I think, for each reader to decide individually. [A kind way to express that.]
That said, however, one must recall that Francis is not a systematic thinker. [By way of contrast, I just review Pope Benedict’s 2005 Christmas Address to the Roman Curia.] While that fact neither explains nor excuses the various writing flaws in Amoris, it does help to contextualize them. Readers who are put off by more-than-occasional resort to platitudes, caricatures of competing points of view, and self-quotation simply have to accept that this is how Francis communicates. [That’s fair.]
[And since Peters is a canonist…] Some juridic issues that were widely anticipated include:
Holy Communion for divorced-and-remarried Catholics. Francis does not approve this central assault tactic against the permanence of marriage, [the Kasperite “tolerated but not accepted” Proposal] but [but] neither does he clearly reiterate constant Church teaching and practice against administering the Eucharist to Catholics in irregular marriage situations. And, speaking of ‘irregular marriage’, [marriage! Some couplings are not any kind of marriage, but there are times in the Letter when that isn’t entirely clear.] nearly every time Francis uses that traditional phrase to describe what could more correctly be termed pseudo-marriage, he puts the word “irregular” in scare quotes, as if to imply that the designation is inappropriate and that he is using it only reluctantly.
Internal forum. Francis makes almost no commentary on the so-called “internal forum” solution. What little comment he does make on the internal forum in AL 300 is not controversial. [For example: “Conversation with the priest, in the internal forum, contributes to the formation of a correct judgment on what hinders the possibility of a fuller participation in the life of the Church and on what steps can foster it and make it grow. Given that gradualness is not in the law itself (cf. Familiaris Consortio, 34), this discernment can never prescind from the Gospel demands of truth and charity, as proposed by the Church.”]
Canon law in general. Francis makes almost no use of canon law in Amoris. What few canonical comments he does make are not controversial.
‘Same-sex marriage’. Francis leaves no opening whatsoever that ‘same-sex marriage’ can ever be regarded as marriage. AL 251. [Clear as a bell.]
Some problematic points (in no special order) include:
1. Speaking of divorced-and-civilly-remarried Catholics, Francis writes: “In such situations, many people, knowing and accepting the possibility of living ‘as brothers and sisters’ which the Church offers them, point out that if certain expressions of intimacy [i.e., sexual intercourse] are lacking ‘it often happens that faithfulness is endangered and the good of the children suffers’ (Gaudium et spes, 51).” AL fn. 329. I fear this is a serious misuse of a conciliar teaching. Gaudium et spes 51 was speaking about married couples observing periodic abstinence. Francis seems to compare that chaste sacrifice with the angst public adulterers experience when they cease engaging in illicit sexual intercourse. [An example of what I have mentioned before… the Letter glides from one group of people to another without distinctions. Also, it is useful to review Gaudium et spes 51, which liberals normally ignore because of it’s reference to abortion as an “unspeakable crime”. For liberals, V2 documents only contain non-condemnatory lollipops, hugs and fuzzy bunnies. GS 51: This council realizes that certain modern conditions often keep couples from arranging their married [married] lives harmoniously, and that they find themselves in circumstances where at least temporarily the size of their families should not be increased. As a result, the faithful exercise of love and the full intimacy of their lives is hard to maintain. But where the intimacy of married [married] life is broken off, its faithfulness can sometimes be imperiled and its quality of fruitfulness ruined, for then the upbringing of the children and the courage to accept new ones are both endangered. To these problems there are those who presume to offer dishonorable solutions indeed; they do not recoil even from the taking of life. [read=abortion] But the Church issues the reminder that a true contradiction cannot exist between the divine laws pertaining to the transmission of life and those pertaining to authentic conjugal love. For God, the Lord of life, has conferred on men the surpassing ministry of safeguarding life in a manner which is worthy of man. Therefore from the moment of its conception life must be guarded with the greatest care while abortion and infanticide are unspeakable crimes. The sexual characteristics of man and the human faculty of reproduction wonderfully exceed the dispositions of lower forms of life. Hence the acts themselves which are proper to conjugal love and which are exercised in accord with genuine human dignity must be honored with great reverence. Hence when there is question of harmonizing conjugal [married] love with the responsible transmission of life, the moral aspects of any procedure does not depend solely on sincere intentions or on an evaluation of motives, but must be determined by objective standards. These, based on the nature of the human person and his acts, preserve the full sense of mutual self-giving and human procreation in the context of true love. Such a goal cannot be achieved unless the virtue of conjugal [married] chastity is sincerely practiced. Relying on these principles, sons of the Church may not undertake methods of birth control which are found blameworthy by the teaching authority of the Church in its unfolding of the divine law. [artificial contraception]. Peters nailed it.]
2. Speaking of “Christian marriage, as a reflection of the union between Christ and his Church”, Francis writes “Some forms of union radically contradict this ideal, while others realize it in at least a partial and analogous way.” AL 292. This simple phrasing requires significant elaboration: forms of union that most radically contradict the union of Christ and his Church are objectively adulterous post-divorce pseudo-marriages; forms of union that reflect this union in a partial, but good, way are  all natural marriages. These two forms of union are not variations on a theme; they differ in kind, not just in degree.
3. Speaking of what the Catechism of the Catholic Church 2384 describes as “public and permanent adultery”, Francis writes that some post-divorce marriages can exhibit “proven fidelity, generous self-giving, [and] Christian commitment”. AL 298. Many will wonder [I’m one of them…] how terms such as “proven fidelity” can apply to chronically adulterous relationships or how “Christian commitment” is shown by the public and permanent abandonment of a previous spouse.
4. In AL 297, Francis writes: “No one can be condemned for ever, because that is not the logic of the Gospel!” To the contrary, it is precisely the logic of the Gospel that one can be condemned forever. CCC 1034-1035. [1034 Jesus often speaks of “Gehenna” of “the unquenchable fire” reserved for those who to the end of their lives refuse to believe and be converted, where both soul and body can be lost. Jesus solemnly proclaims that he “will send his angels, and they will gather . . . all evil doers, and throw them into the furnace of fire,” and that he will pronounce the condemnation: “Depart from me, you cursed, into the eternal fire!” 1035 The teaching of the Church affirms the existence of hell and its eternity. Immediately after death the souls of those who die in a state of mortal sin descend into hell, where they suffer the punishments of hell, “eternal fire.” The chief punishment of hell is eternal separation from God, in whom alone man can possess the life and happiness for which he was created and for which he longs.] If one meant, say, that no one can be ‘condemned for ever’ by earthlyauthority, one should have said so. [NOTA BENE] But, of course, withholding holy Communion from those in “public and permanent adultery” is not a “condemnation”[NOT] at all, so the point being made is not clear.
5. In AL 280-286, directly discussing sex education for youth, I did not see any acknowledgement, indeed not even a mention, that parents have rights in this important area. Perhaps that is to be gleaned from comments about parents made elsewhere in AL.
Okay… that was one Peters Post. And there is another, as long as we are at it.
The law before ‘Amoris’ is the law after
[This is interesting…] To legislate for the Church popes usually employ certain types of documents (e.g., apostolic constitutions, motu proprios, ‘authentic interpretations’ …[Bulls] ) or they use certain kinds of language (e.g., ‘I direct’ or ‘I approve in forma specifica’). Amorislaetitiae, an “apostolic exhortation”, is not a legislative document, it contains no legislative or authentic interpretative language, and it does not discuss Canon 915. The conclusion follows: whatever Canon 915 directed before Amoris, it directs after, including that holy Communion may not generally be administered to Catholics living in irregular marriages. [Get that? Amoris laetitia DIDN’T CHANGE LAW or DOCTRINE. Of course that’s not what will be claimed by those who haven’t been inclined to obedience or sound teaching.]
To this conclusion, however—and recalling that the burden of proving that the law changed is on those who claimed that it changed, not on others to prove that it hasn’t—I can anticipate at least three rejoinders. [This guy’s posts are worth their weight in gold. More, actually since posts don’t weigh anything… but you get my drift.]
The first is easily dismissed.
1. Pope Francis wrote that “Each country or region, moreover, can seek solutions better suited to its culture and sensitive to its traditions and local needs.” AL 3, and 199, 207. But of course developing local approaches to proclaiming universal truths is a hallmark of “pastoral theology” (when that concept is properly understood and not offered as cover for avoiding the demands of Christian doctrine). [This, friends, was one of the things I feared the most in anticipation of this Letter – and, frankly, in everything else this Pope does – namely, devolution of the role of, for example, the mandate of the CDF to local conferences. That would be disaster of the highest order. Also, I once fell afoul of a prof of “pastoral theology” from a Roman university just exactly what “pastoral theology” is: he couldn’t tell me. He got mad at me, of course.] Church documents often encourage local initiatives, but they never authorize dilution, let alone betrayal, of the universal teachings of Christ and his Church. Amoris might well have left itself open to regional manipulation (as Robert Royal has explained) but Catholics committed to thinking with the Church will not develop particular approaches to ministry among the divorced that betray the common truth about the permanence of marriage. [As I wrote yesterday. The orthodox and faithful can find in this Letter a challenge to even greater compassion and zeal in pastoral ministry. Those who have abandoned fidelity and obedience, and who have violated the promises and oaths they made a ordination, will continue on their course of deceiving souls, but with greater energy, hiding behind this new Letter.]
A second rejoinder is, however, more complex.
2. In AL 301 Francis writes: “Hence it is can [sic] [yep… sic… but remember that an English version will (eventually) have no real authority once (if) the Latin comes out… yes, I am an optimist. I am also an unreconstructed ossified manualist.] no longer simply be said that all those in any ‘irregular’ situation are living in a state of mortal sin and are deprived of sanctifying grace.” [I’ve received questions about that already. I suppose that there are some people who are so poorly formed they haven’t the slightest clue about what they are into. Also, there are others who really have undertaken the “brother sister” solution. Remember: living together is in itself not the sin of adultery or fornication. One might be putting oneself in an occasion of temptation and sin, which could be sinfully irresponsible, but it’s the sexual contact that is gravely sinful. This applies to two men or two women who live together. Sexual contact makes that sinful.] This presents a more substantial objection to my conclusion above for, at first glance, Francis seems to attack the very idea that the irregular situation usually produced by a post-divorce civil remarriage is gravely sinful. [Yes, that is what that statement seems to be. It is at least poorly written.] We need to consider this possibility carefully.
Setting aside whether any Church document ever ‘simply said’ what Francis implies above, one can agree that it would be wrong to assert that “all” people living in “any” irregular situation are necessarily “living in a state of mortal sin”. If even one person living in an irregular marriage situation does so with no suggestion of sin—and I can think of many*—Francis’ point, narrowly and literally read, stands.
But Francis’ assertion here could mean something more contentious, namely: that we can no longer assert that any individual living in an irregular union could be “living in a state of mortal sin”—an assertion that would, I suggest, place Francis in opposition to Church tradition. [This is what libs are going to say. But they will be happy about it!] Let’s consider this possibility more closely:
A) The phrase “living in a state of mortal sin” could be understood as a short-hand way to describe many morally wrong living situations, one that summarizes Church teaching that all Catholics must, on pain of committing grave sin, abide by certain laws and teachings regarding marriage and sexual activity. That is how all of the canonists, moral theologians, and clergy whom I know, and most of the lay Catholics in my circle, use the term. I think it consistent with the Catechism of the Catholic Church. But,
B) The phrase “living in a state of mortal sin” could also be taken as judging the state of another’s soul based on their living arrangement. Whether speaking from ill-will or from inaccurate catechesis, Catholics who describe others (let alone all others) living in irregular marriage situations as “living in a state of mortal sin”—meaning by that phrase that such persons have necessarily incurred the guilt of grave sin—should indeed cease thinking and speaking that way. [See what I wrote, above.]
So, if the pope was thinking about those who use the phrase “living in a state of mortal sin” to imply an ability to read souls, then his admonition that one must not speak this way is quite sound, it does nothing to detract from the Church’s view that post-divorce civil marriage is an aggravated form of adultery, and it impacts not one jot or tittle of Canon 915. But to construe the pope’s words here as denying that freely living in an irregular marriage situation can be, as the Catechism holds, gravely sinful, and that therefore Canon 915 is not applicable to such cases, would be to attribute to the pope a conclusion at odds with Church moral and sacramental teaching. That accusation should not be casually made. [And yet we see that there are some – at some web sites – who are making that claim.]
Finally, however, let’s assume that, however he expressed himself, [admittedly ineptly] the pope somehow really believes that few Catholics, perhaps none, living in irregular marriages are subjectively culpable for their state. Even that conclusion on his part would [NB] have no bearing whatsoever on the operation of Canon 915 [!] because, as noted above, Canon 915 does not (and cannot!) operate at the level of interior, subjective responsibility, but rather, it responds to externally cognizable facts concerning observable conduct.
Yet a third possible rejoinder relies another eisegetical reading of Francis’ words. [“eisegesis” means to “read into” a text when interpreting it one’s own presuppositions and agendas, etc.]
3. Some think that AL fn. 351[the Infamous Footnote reads, about priests helping people to discern the truth of their “irregular” situations: “351 In certain cases, this can include the help of the sacraments. Hence, “I want to remind priests that the confessional must not be a torture chamber, but rather an encounter with the Lord’s mercy” (Apostolic Exhortation Evangelii Gaudium [24 November 2013], 44: AAS 105 , 1038). I would also point out that the Eucharist “is not a prize for the perfect, but a powerful medicine and nourishment for the weak” (ibid., 47: 1039).”] and its accompanying text authorize holy Communion for Catholics in irregular marriages. I would ask, recalling that a matter of law is at issue, where does Francis do this? The pope says that Catholics in irregular unions need the help of the sacraments (which of course they do), but he does not say ALL of the sacraments, and especially, not sacraments for which they are ineligible. [Which probably means Holy Communion. But also remember that, without purpose of amendment, they cannot be absolved in the Sacrament of Penance. Also, if they are compos sui and in danger of death they don’t manifest sorrow for manifest sins they cannot be confirmed or anointed.] He says that the confessional is not a ‘torture chamber’ (a trite remark but not an erroneous one). And he observes that the Eucharist is not a prize for the perfect (thank God), but a powerful spiritual medicine, which it is—unless it is taken unworthily or in violation of law, a caveat one may assume all Catholics, and certainly popes, know without having to say it. [Dear Dr. Peters… I think that, today, we have to remind people of this, even prelates.]
Bottom line: sacramental rules are made of words, not surmises. Those who think Amoris has cleared a path to the Communion rail for Catholics in irregular marriages are hearing words that the pope (whatever might be his personal inclinations) simply did not say.
* Example: One who was baptized Catholic but raised without knowledge of that fact, is (incredibly) bound by canonical form and thus, if married outside of form, he or she would be, by definition, living in an irregular union. It would be ludicrous to refer to such a person as “living in sin”. I can offer a dozen more fact patterns that would duplicate this point.
I love the smell of clarity in the morning.
Be sure to visit In The Light Of The Law for more large doses of refreshing clarity.