THE COMPLEX QUESTION OF MIXED MARRIAGES
L A D I S L A S C)RSY, S . J .
The new ecumenical spirit has swept through the Church as a warm breeze in the spring sweeps through a wintry landscape. The comparison of the first days of spring with this ecumenical age is not inept: the warm breeze is there, mutual good will among all who believe in the saving power of Christ is great and intense, and it is the earnest of a rich future. At the same time it is clear that the winter which has reigned among Christians for many centuries has done great damage, and it will take a long time to repair it all. We need the ecumenical spirit, and the fresh and warm air it brings to us all, but we must realize that we are just in the beginning of a new era, which may bring the final solution only in the future.
For those who have to face the realities of Christian living it has to be admitted that it is in a mixed marriage that one sees the sad division of Christendom brought into the very centre of the family; and it is there that the division of minds in faith is reflected in everyday actions and attitudes. In the family the problem of the division of the Church of Christ becomes a burning problem, and it tends to focus more especially on the education of the children.
Is there a solution to the problem of mixed marriages? The answer is, Yes, there is one solution, namely unity in faith. Apart from unity in faith there is no solution that would entirely and for ever cancel all difficulties or problems. This is a point that needs stressing at the outset, for the agony of the mixed marriage situation is, when one reflects, only a form of the general agony of divisions in faith. Many writers have recently urged that we press on for a solution of the painful problem of mixed marriages. They sometimes fail to realize that the solution is basically no easier than that of the reunion of Christians. We have to do all we can to bring it about, but must not mistake the sowing time for that of the harvest. We are still concerned with beginnings.
SETTING T H E P R O B L E M
The purpose of this article is to set theproblem of mixed marriages before our eyes in three ways, i.e. theologically, legally in its proper historical context, and not least ecumenically. It is also intended to see what practical
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steps can be taken now to help all those who either intend to contract a mixed marriage, or whose existing married life is already that of a mixed marriage.
To set the problem theologically means to recall the principles on which the Catholic Church will have to insist humbly but firmly. Not to recall them would be to betray the trust of those Christians who rely on our sincerity, and would be to leave ourselves open to the charge of equivocation or of unintended deception. To set the problem historically means to show what is accidental in the legislation about mixed marriages and conse- quently changeable according to the needs of historical circumstances. To speak ecumenically means to let charity reign supreme. At the same time some assumptions will have to be made, as for example that which concerns the right of the Church to legislate in marriage, as she has done especially in the sixteenth and in the twentieth centuries. It is also assumed here that there is a common Christian interest to protect the holiness of marriage. In fact many Churches legislate concerning marriage, thus it is not necessary for an Anglican parson to celebrate the marriage of divorced people. It is also true that many Protestant and Orthodox Churches are certainly opposed to mixed marriages, thus a Baptist might well regard marriage with a Catholic or an Anglican as nothing less than apostasy from the Baptist congregation. There is here a token of the concern on the part of all religious people to make such marriages as they think are worthy of their Christian beliefs. Both the assumptions made here, that of the Churchs right to legislate and that of a common protective interest, are important.
I hope to cover the field to some extent with a suggestion of dialogue with various groups: non-Catholic writers who are inclined to scent intolerance in the Catholic position, Catholic writers who plead for rapid and profound changes as also with those Catholics who above all value the quality of prudence in the present legislation. But before the dialogue begins it will be useful to give a summary of the present laws and to outline their historical background.
If a Catholic intends to contract a mixed marriage, which is a marriage between a Catholic and a baptized non-Catholic, he has to obtain a dis- pensation from his bishop, or from the Holy See (as the case may be) from the impediment of mixed religion. If the impediment were disregarded, this would not make the marriage invalid; but no bishop or parish priest would agree to witness a mixed marriage without previous dispensation; and since the presence of the local bishop or of the local parish priest is itself required for a valid marriage (apart from exceptional circumstances, e.g. when no priest is available for a whole month, or when there is danger
T H E C O M P L E X QUESTION O F M I X E D M A R R I A G E S 369
of death), the dispensation cannot in practice be disregarded. The parties are said to have to contract in canonical form, i.e. before the local bishop, or the parish priest, or before a priest especially delegated by either of these, and it must also be before two witnesses.
However, the dispensation in question is not given by the bishop, unless the request is accompanied by three promises: (1) the non-Catholic party has to promise to respect the faith of the Catholic partner; (2) both parties have to promise that they will have all the children educated in the Catholic religion; (3) the Catholic party has to promise that he will do his best by prayer and example to lead his non-Catholic partner to the Catholic faith.
If the bishop is satisfied that the promises have been seriously made, and that there is a good reason to give the dispensation (e.g. the small number of Catholics in the district), he gives it and the parties are free to marry, although never with the same liturgical solemnity that is the right of purely Catholic marriages.
One can see at once that the whole legal edifice stands on the form of the marriage. It has to be contracted in a form prescribed by Canon Law, if not, it will not be a sacrament; it will not be a marriage at all. Take away the form and the carefully built legal edifice collapses. Marriage legislation in the Church was a matter of slow growth. Up to the time of the Council of Trent all marriages that were contracted in a way that was naturally sufficient to manifest a true will to marry were good and valid in Church law, even if popes and bishops insisted that good Christians should celebrate their marriage in their parish church.
The Council Fathers at Trent were much preoccupied with the problem of hidden, or clandestine marriages. If anybody could thus marry as he pleased, confusion about who was married to whom and from what date was bound to follow. Thus came the decree of Trent, Tametsi, to remedy the situation. Henceforward all Christians would have to marry in the presence of their parish priest and some witnesses. So far, so good. There was, however, in the Church a basic prerequisite : a law had to be promul- gated in every parish and diocese before it became binding in that parish or diocese. Given the rapid spread of Protestantism, and the enmity towards Rome of princes who embraced the new religion, the law could not be promulgated in many places. In spite of complications a gradually rational pattern emerged from the confusion, and the Holy See admitted as legitimate the interpretation that in those regions where the law was not promulgated, it was not binding either; and further that it did not bind heretics, and in some places at least that they could communicate their exemption to a Catholic in the case of a mixed marriage. Hence there was
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no universally binding form for a mixed marriage. The consequence was the existence of regions where the Tridentine form was necessary both for purely Catholic marriages and for mixed marriages, and at the same time there were other regions where the pre-Tridentine law was still in full vigour for mixed marriages. It was Pius X who through the well-known decree Ne Temere established uniformity for the whole Catholic Church. Since Easter 1908, mixed marriages have had to be contracted according to Tridentine legislation. For some time however two exceptions were admitted: in Germany the Apostolic letter, Providu (1906), allowing mixed marriages to be contracted outside the Catholic Church, remained in vigour, and at the request of the Hungarian bishops it was extended to all regions under the jurisdiction of the Hungarian crown. But the Code of Canon Law, promulgated in 1918, has done away with all exceptions. There is one law only in the Church today, the same for mixed as for purely Catholic marriages: all have to be contracted in the same canonical form.
O F F E N S I O F R A T R U M : THE COMPLAINT O F NON-CATHOLICS
As the legislation of the Church has moved step by step towards appar- ently greater severity, a sense of resentment has taken root in the hearts of many Christians who are not Catholics. When the breeze of the ecumenical spirit came and it was felt that a new era of friendly relations was beginning, then the problem of mixed marriages soon came to the surface, and non- Catholic Christian communities, their leaders, their scholars and their faithful asked and are now asking for legal changes, as a token of good will on the part of the Catholic Church towards other confessions.
The request to change our laws may take various forms of expression. Sometimes it is an outright accusation that the Catholic Church has placed the law above the Gospel coupled with a friendly admonition that reform is timely. Sometimes it is a theological discussion which concludes that there are doctrinal reasons for the change, since the validity of the marriage is dependent upon the will of the parties, and not upon Canon Law. Sometimes it is a plea on grounds of fairness and equity to adapt our laws to those of other Christian communities. Sometimes it is a protest on behalf of those who, because of the severity of our laws, are in serious difficulties. However it may be expressed the opinion in substance of non- Catholic Christians about our mamage laws can be summed up in the one word, intolerance. For them it makes its appearance in many waysandalso in many degrees of unpleasantness. And of course intolerance hurts: wherever it is present, good will cannot flourish.
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Among non-Catholic bodies it is often thought that the greatest obstacle to Christian unity is the claim of any one Church to be the true Church of Christ regardless of others. This is precisely, it is pointed out, what Catho- lics are doing, And the laws on mixed marriage are a faithful reflection of this attitude of mind. Admittedly, they argue, one cannot expect a change in dogmas, but why could not the Catholic Church make a little practical step towards unity, by mitigating the laws concerning mixed marriages? It would not touch any point of faith and such laws are in any event a late development in Church history. But such a step would pave the way for better things, towards a slow growing together in dogmatic belief. The dismantling of intolerance should begin with a dismantling of the laws about mixed marriages.
For a Catholic theologian to answer such a discourse is not easy. He has at heart, no less than his partner in the dialogue, the need that exists of showing good will towards all. At the same time he knows that there cannot, nor ever will be, what would amount to a levelling down of Catho- lic dogmas to the point that all can accept. He has to say this in all honesty, even at the risk of hurting the other-which he will regret. He would add that perhaps a change in marriage legislation may be indicated, but the question will have to be decided in a doctrinal context that does not dimin- ish the claim to be the true Church of Christ.
However, tlle accusation of intolerance goes further. The Catholic Church in effect asks the non-Catholic who intends to marry a Catholic to sign promises, and to celebrate the wedding before a Catholic priest. Is there not here a singular lack of respect for the conscience of the non- Catholic? Is this lack of respect not all the more offensive in that the Catho- lic Church is always vindicating freedom of conscience for her own mem- bers? A non-Catholic who genuinely believes in the truth of his own reli- gion cannot in conscience sign away all the children, cannot, if he respects the religion of his fathers, go into a Catholic church to be married there, for he would be disregarding his own community and his own church or chapel where he learned to be a good Christian. Thus it is the Catholic Church that should change its laws in such a way that full respect can be paid towards the conscience of the non-Catholic party. In particular (a) promises should not be sought from a person who is not a Catholic and so not under the authority of the Catholic Church and (b) the religious education of the children should not be given over to the Catholic party only. It is the natural right of a parent to teach his child about God and his Kingdom. An equitable distribution of rights and duties is needed. ( c ) Nor should the religious community of the non-Catholic party be ex- cluded from the celebration of the marriage ceremony: this recognition is
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due to them as to true Christians who have a right to partake in the joy of a member of their body. The substance of this argument is that the Catholic Church is intolerant because it does not respect the conscience of the non- Catholic.
In order to clear the way towards a better understanding with our fellow-Christians from whom this accusation comes, let us say at once that respect must be paid towards the conscience of all men of good will, even if they are held to be in error. Erroneous belief that does not spring from ill will does not destroy the right of the human person to be respected, and to hold firmly and freely what he believes to be the truth. Violation of this principle is not Christian. But there is a qualification and it is this: when two persons claim a right, and their claims conflict in such a way that there is no possibility of adjustment or of compromise, and at the same time for the sake of a greater good it is necessary that one of these two should act or choose, then one of them will have to give up his own claim, and leave the other to act. This is a law of life itself, and it is a m...