REFORM OF THE ROMAN CATHOLIC LAW ON MIXED MARRIAGES
The rest if the Christian world will measure the readiness of the Second Vatican Council to undertake reform by its ecumenical attitude. There is nothing in the Roman Catholic Church which so sorely needs reforming as its relationship with the rest of the Christian world. Up to now Rome has equated herself in a very definite way with the Church of Jesus Christ and has called upon all those Christians separated from her to return to her. It is not until a change takes place here that it will be possible to speak of a reform.
Against this background the problem of mixed marriages between Roman Catholic and non-Roman Christians is of outstanding ecumenical importance. The law of the Catholic Church on mixed marriages is a faithful reflection of its claim to ecclesiastical exclusiveness. Parts of this law, however, go back to a pre-ecumenical period of conflict (Otto Karrer). The way in which Rome handles the question of mixed marriages in the future must therefore be appraised as the touchstone of an authentic desire for effective rapprochement between the churches.
Like marriage in general, mixed marriages are far from constituting one of the peripheral problems in the theological debate between Roman and non-Christians. According to the Roman Catholic conception, marriage is a sacramental HeiZsgemeinschaft (redemptive fellowship), As such it is part of the Churchs life and being. Thus, in the doctrinal conversation with Rome, the question of marriage forms part of the major ecumenical theme of ecclesiology . Everything which is discussed here concerning the limits of the Church and membership of it, concerning the relation between the Church of Jesus Christ and the confessions, concerning the sacramental reality of non-Catholic communities, and concerning the place of law in the church and the relation of the redemptive fellowship of the church to secular institutions, has a direct bearing on the question of marriage. The outstanding theological
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importance which all questions concerning marriage thus assume explains as the same time the whole difficulty and delicacy of the ecumenical conversation with Rome at this point.
In a theological conversation which has such broad rarrlifications, rapid solutions are not to be expected. But on the question of mixed marriages we have the advantage of being in the position of riot having to conduct the discussion on this level alone. There are already practical possibilities for a partial reform of the law on mixed marriages which need not impair the existing doctrinal and juridical foundations of the Roman Catholic Church. Thus it seems all the more to be ;i question of good will whether Rome is here prepared to make the indispensable minimum allowance for ecumenical exigencies and the actual circum- stances of life.
In what follows it is impossible to separate the two levels of doctrinal foundations and practical possibilities. But a distinction should be drawn between the immediate and the ultimate goals. The ultimate goal remains real doctrinal agreement on the core of the apostolic witness to Jesus Christ on the major problems of the Churchs proclamation and also on the basic understanding of marriage. But this goal is unat- tainable unless already at this stage the churches meet each other with respect and Christian love in their mutual treatment of their members.
I. Basic theological and legal questions
1. Between baptized Christians a valid marriage can c d y come about as a sacrament. This dogmatic statement is the basis of the law of the Roman Catholic Church concerning marriage and mixed marriages. According to this, marriage brings about an effectual participation in the union of Christ with the Church, it is an element in the sacramental Heilsordnung (scheme of salvation) and a constituent part of the life of the Church itself. This lofty conception of marriage contains a core of truth and deserves to be discussed ecumenically. Scripture obliges us to regard marriage in as close a relation as possible to communion with Jesus Christ. The mystery of marriage is bound up with the same love with which Jesus Christ loved his own even to the supreme sacrifice. OnIy through this love can the true unity of man and woman in marriage be realized. There is thus an interplay between proper married life on the one hand and the spiritual relationship to Jesus Christ on the other. It is for this reason, and this reason alone, that mixed marriage is in fact a serious problem.
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But Roman Catholic theology oversteps a limit which must not be overstepped when it conceives of marriage as a sacramental means of dispensing the divine grace of salvation. Marriage, however, can only be defined as a secular estate and an earthly lifelong partnership, which does not impart the grace of God in Jesus Christ, but receives it. In making this criticism one must further consider the great importance attached to law in the Roman Catholic conception of marriage. Marriage is understood as a contract and is therefore as such already a legal phenomenon. But according to this conception contract and sacrament are identical. Thus essential elements of a contract acquire an inappro- priate theological significance. The law of contract cannot manage without formal legal provisions and a legal casuistry which goes into every detail. The equation of sacrament and contract necessarily intro- duces the drawbacks of legalism into spiritual and personal relationships.
2. Further it must be noted that the Roman Catholic Church regards the law as a means of asserting itself as the Church of Jesus Christ. It is counted as part of the Churchs nature and task that it should regulate by law, and in this way safeguard, all its vital functions and all aspects of the Christian life of its members, and thus invest them with reality. To this end, the immutable divine law is first declared, unfolded and codified. The Church adds from its historical experience and from a sense of pastoral responsibility an ecclesiastical law with a catalogue of penal sanctions. This ecclesiastical law comes under the category of education and discipline, and is in principle capable of alteration and of adaptation to the historical circumstances of the moment.
This system of law fosters the temptation to invest as many legal maxims as possible with the supreme authority of the divine law. In addition there exists a tendency to confuse with each other the funda- mental level of dogma and of divine law on the one hand, and the educa- tionnally defined level of ecclesiastical legislation on the other. In particular, the law regarding marriage is a classic example of how the boundaries dividing divine law from ecclesiastical law become blurred, Ecclesiastical law acquires thereby an authority which does not fall to it by nature. The effects of this are disconcerting. The sacramental effectiveness of marriage is bound to the observance of formal legal provisions. An offence against the latter results in the invalidation of the marriage and in total exclusion from the sacraments of the Church. Ecclesiastical law, which is dictated by the needs of the time, becomes the criterion for absolute religious and moral judgments, and moreover
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also for exaggerated demands on state and society. The Chirch itself constructs grave causes of offence which weigh upon the consciences of the faithful and supposedly lay them open to the judgmenl of God.
3. Dogma and law are the basis of the Roman Catholic Churchs claim to total jurisdiction in the matter of marriage. Fundamentally all that is left to the secular power is to regulate the law concernin;; property and name. All baptized non-Catholics are included in this jurisdiction. The central factor is the legal maxim on the form in which the marriage is to be contracted, which was proclaimed by the Tametsi decree of the Council of Trent in 1563. According to this decree a valid sacramental marriage takes place only if it is contracted in the presence of the competent Roman Catholic priest as an officiating witness. It is important for our examination of this matter to note that Rome has never attri- buted to this general formal obligation the character of a compelling dogmatic necessity arising out of the nature of marriage. It is not the officiating priest who dispenses the sacrament, but the parties to the marriage dispense it to each other. The sacramental character of marriage depends not upon the form in which the marriage is contrncted, but upon the baptism of the marriage partners. So long as the haptism of non-Catholic Christians is recognized , their marriage must also count as a virtual sacrament. For this reason canon law states that non- Catholic Christians are exempt from the formal obligation AS defined by the Council of Trent and can contract a valid sacramental marriage outside the Catholic Church (can. 1099, para. 2, first promulgated by means of the Declaratio Benedictina of 1741 for Holland and Belgium). In fact, generally speaking, Rome was very circumspect in enforcing even upon Catholics the decree Tametsi of 1563, taking into account the prevailing circumstances in each case. It was not until the decree Ne tempere of 1908 that the formal obligation became bindins upon all Catholics. This remains an ecclesiastical regulation and is thus in principle capable of alteration. Here is one of the points at which a reform of law concerning mixed marriages could be started.
4. It is true that some recent tendencies in Roman Catholic theology, which are likely to bring about a decisive change in the law concerning the contraction of marriage, give cause for alarm. Accordmg to the interpretation prevailing hitherto, the baptized marriage partners them- selves carry out the outward sign of the sacrament of marriage, i.e. they enter upon the marriage contract in the presence of the pries, who acts as witness and as guarantor of the ecclesiastical form of the marriage
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contract, and in this way they constitute the sacrament. The new theory (which is advocated by Klaus Morsdorf and Michael Schmaus, among others) adds the active collaboration of the priest as a constitutive factor in bringing about sacramental marriage. The theory of consent which has existed up to now, and according to which marriage is based upon the mutual exchange of consent to matrimony, is modifled and expanded by the theory of essential collaboration on the part of the Church. The ecclesiastical form of the marriage contracts thus acquires a value which it has not possessed hitherto, namely that of dogmatic necessity.
It must be admitted that such a development would make the present law on marriage and mixed marriages appear more logical. But at the same time the bridges would be destroyed which have hitherto linked the Roman Catholic conception of marriage with that of the rest of Christendom. By making provision for a dispensation from the external formal obligation Rome acknowledges the marriage of baptized non- Catholics as a valid sacramental marriage. It is not easy to imagine how dispensations can continue to be given if the collaboration of a priest is made dogmatically necessary. At the same time the law on mixed marriages would have to become even more stringent. This is the way which the exclusive conception of the Church contained in the encyclical Mystici corporis Christi of Pope Pius XI1 (1943), in conjunction which the increased emphasis upon the sacramental character of marriage, would suggest. But it is the way to further social and ecumenical isolation, and the Roman Catholic Church must be urgently warned about this. Marriage is not simply the domestic affair of the Church alone. It is a fundamental social institution and, at least in the form of mixed marriage, the common concern of Christendom.
II. On the history and the nature of the law on mixed mamages 1. Even if we turn our attention, in what must now be discussed,
away from the tendencies we have just described, it remains true that the categorical rejection of mixed marriages springs from the dogmatic and legal foundations of the Roman Catholic Church. Marriage as a HeiZsgemeinschuft (redemptive community) is held to be endangered if the two partners belong to different confessions and hold to different or even opposed beliefs about salvation. A mixed marriage will make the Roman Catholic partner run the risk of apostasy and will endanger the Catholic education of the children. If these dangers cannot be removed, the Catholic Church prohibits the marriage as a matter of
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divine law to which there can be no exceptions. Furthermore, the Church supposes in a mixed marriage an inequality in the eyes of the: law that affects the Catholic partner, since the non-Catholic conception of mar- riage would permit divorce and remarriage. To secure marriage as a sacramental Heilsgemeinschaft, to protect the Catholic from apostasy and from inequality before the law, to guarantee a Catholic zducation of the children: these are the basic concerns of the Roman Catholic law on mixed marriages. Only where they are assured will the Church make an exception to the rule that a difference in religion must prohibit or at least delay marriage.
2. It is important for our present discussion that we glance at the history of the law on mixed marriages, which is closely linked with the treatment of the decree Tumetsi since its promulgation in 1563. To do this we must distinguish between mixed marriages contracted .according to the regular forms and those that are irregularly contracted.
According to the Tridentine law an irregularly contracted mixed marriage is invalid, since the Catholic partner is in any case subject to the obligation to observe the regular forms. For many years the Roman Catholic Church evaded this consequence in areas of substantially mixed populations by adapting the prescriptions for regularity of the ecclesias- tical law for each particular situation. The Catholic certainly remained prohibited from entering into a mixed marriage contracted irregularly under pain of excommunication or exclusion from the sacraments. He could only, and still can only, be restored to full membership of his church by a complicated procedure for rehabilitation. But the 1741 Declaratio Benedictina, that allowed recognition of a purely non-Catholic marriage, also attributed sacramental validity to a mixed marriage contracted irregularly in spite of the prohibition. This legal situation gradually spread throughout Central Europe, to the point where it was explicitly re-confirmed for Germany, and later even for Hungary, by the Constitutio Providu of Pope Pius X in 1906.
To this day we lack an explanation...