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Chapter 9: Marriage, Sexual Acts, and Family Life

Question B: Is This Theology of Marriage Consistent with the Church’s Practice?

Various objections can be made against the view that not only the sacramentality of Christian marriage but the good of marriage as such requires that it be an exclusive and permanent union. Here, only specifically theological objections will be considered, in order to clarify what already has been explained and to defend the Catholic Church’s consistency in her teaching and practice.68

The theological objections can be summed up as follows. The Church dissolves nonconsummated marriages, grants annulments to couples who everyone thought were married, and dissolves nonsacramental marriages. These practices seem to make significant exceptions to indissolubility. Moreover, they are not recent inventions, but have their roots in the New Testament. For Jesus’ “absolute” prohibition of divorce is reported in Matthew’s Gospel with what appears to be an exception clause, and St. Paul apparently allowed converts from paganism to consider themselves free of their uncooperative pagan spouses.

1. The Church Is Coherent in Dissolving Nonconsummated Marriages

The Church holds three things: (i) that marriage is indissoluble, (ii) that the parties’ consent to marry, given under appropriate conditions, makes the marriage, and (iii) that even after the parties have given valid consent, their marriage can be dissolved, provided they have not consummated it by marital intercourse.69 These three propositions seem incompatible, and some suggest the incompatibility must be resolved by denying that marriage is indissoluble. However, (i) and (iii), considered by themselves, are consistent. And so the apparent incompatibility can be resolved, without qualifying marriage’s indissolubility, by explaining the sense in which consent by itself makes a marriage and showing that there remains a sense in which consummation by marital intercourse also is necessary for a marriage’s full reality.

a) “Consent makes marriage” must be understood in context. Historically, different marriage customs existed among the various peoples who became Christian, and during the first millennium the Church as a whole had no commonly agreed procedure for the marriage of Christians.70 Around the end of that time, various theories suggested different elements as partly or wholly constituting marriage: a formal engagement or other promises to marry in the future (perhaps sealed with an oath), the payment of a dowry (sometimes carried out in a way that made marriage appear to be the selling of the woman), the parties’ consent to marry (sometimes exchanged years before they would begin to live together), a nuptial Mass, the priest’s blessing (or, at least, his presence), the bride’s going to her new home (or being carried there), and the first act of marital intercourse.

Theologians and canonists addressed the question, and two main theories emerged: (i) that the parties’ consent by itself, given under appropriate conditions, is sufficient to make a marriage and (ii) that both the parties’ intention to marry and intercourse are necessary to make a marriage.

In favor of (i) was that consent plainly is necessary (both theories require it), while intercourse is inherently ambiguous, since unmarried couples can engage in it without thereby becoming married. But against (i) was a longstanding practice in the Church: after a man and a woman consented to marriage but before they engaged in marital intercourse, either might enter a monastery and take solemn vows, and the other was considered unmarried and free to marry. In favor of (ii) was that it reflected the common understanding of Jesus’ teaching, according to which indissolubility is grounded in the one-flesh communion formed by the spouses when they come together (see Mt 19.4–6; cf. Mk 10.6–9). But against (ii) were both the truth of faith that although Mary was always a virgin, she and Joseph really were married, and Roman law’s view of marriage as a voluntary association formed by the parties’ mutual consent.

Alexander III (pontificate 1159–81), in resolving problems about particular cases, moved toward a practical resolution of the theological and canonical debate. He took the position that consent by itself makes marriage, but that until marriage is consummated, the profession of public vows by either party dissolves it. This practical resolution, however, left the theoretical problem unresolved.

b) Consummation is necessary for marriage’s full reality. This problem can be clarified by recalling that marriage is a covenantal community. The parties to a covenant first undertake their mutual responsibilities and then seal their relationship by a cooperative performance (see CMP, 21.B). For instance, each Christian is initiated into the new covenant in two stages: baptism and faith make the individual a Christian, while participation in the eucharistic sacrifice and Holy Communion perfect his or her participation in the Church’s covenantal communion with Jesus.

Thus, viewing marriage as a covenant, it is necessary to distinguish between (i) the moral bond which a man and a woman form in undertaking the roles and responsibilities of husband and wife and (ii) the one-flesh communion they form by beginning to live together as a married couple. The word marriage refers to both. The consent of the bride and the groom establishes the moral bond; but that consent is to enter into one-flesh communion, and so, insofar as marriage refers to the latter, it begins only when the couple come together, thus sealing their marital covenant. Now, the husband and the wife do not come together in one-flesh unity until they engage in marital intercourse. Thus, although the consent which the couple give in marrying is to form a permanent and exclusive union, the reality having these properties—marriage as unbreakable covenantal communion—is fully constituted only with the first act of marital intercourse.71

Thus, John Paul II explains that marital consent is a sacramental sign by reason of what it signifies:

However, this sacramental word is, per se, merely the sign of the coming into being of marriage. And the coming into being of marriage is distinguished from its consummation to the extent that without this consummation the marriage is not yet constituted in its full reality. The fact that a marriage is juridically contracted but not consummated (ratum—non consummatum) corresponds to the fact that it has not been fully constituted as a marriage. Indeed the very words “I take you as my wife—my husband” refer not only to a determinate reality, but they can be fulfilled only by means of conjugal intercourse. This reality (conjugal intercourse) has moreover been determined from the very beginning by institution of the Creator: “Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh” (cf. Gn 2.24).72

c) Mary was a true wife though she always remained a virgin. Catholic tradition understands Scripture (see Mt 1.16–25) as teaching that Joseph and Mary were validly married, and the faith likewise teaches that their marriage could not have been consummated by conjugal intercourse, since Mary always was a virgin.73 These truths of faith pose no problem for John Paul II’s explanation of the role of consummation in constituting marriage. For, according to that explanation, although Mary and Joseph were not two in one flesh, they were truly married, precisely in the sense that any bride and groom are married at the end of the wedding ceremony, when they have consented to marriage but not yet consummated it. The decision of Mary and Joseph not to consummate their marriage in no way violated the good of marriage. Moreover, even though their nonconsummated marriage never was “fully constituted as a marriage,” it was a true and ongoing covenantal communion, which was uniquely fulfilled: by the fruit of Mary’s womb, to whom Joseph, her husband, truly became father by consenting to God’s will for their marriage.74

2. The Church’s Annulment Process Is Not a Form of Divorce

Catholics who are separated or civilly divorced and wish to marry again often are encouraged to seek a declaration of nullity from a Church court. If they receive an affirmative response, they are free to marry in the Church, just as people who receive a civil divorce are free to marry in any civil society which recognizes that divorce. It might seem that the Church’s annulment process is the equivalent of civil divorce, but it is not.

a) An annulment states that an apparent marriage never really existed. While a civil divorce and a Church annulment are alike in facilitating a new relationship that will be regarded by the relevant law as marriage, the two processes are entirely different in their presuppositions and significance. Civil divorce presupposes that marriage is a legal relationship subject to the state’s authority, that a true marriage existed, but that civil authority terminates it. Annulment presupposes that the previous relationship, which appeared to be a marriage, really was not—that even if the partners entered the relationship in good faith and did all they believed necessary to marry, they did not succeed in marrying because of some defect in their consent, capacity to marry, or potential to fulfill the responsibilities of marriage. The Church’s annulment process, therefore, focuses on the question: When this couple appeared to marry, did they really marry or not? When someone seeking an annulment receives it, the response does not say, “You married, and your marriage is dissolved,” but, “In reality, you were not married.” Strictly speaking, the Church never annuls a marriage but only finds that an apparent marriage never existed and declares that fact by issuing a decree of nullity.

b) The annulment process is not changing into a divorce process. Apparently well-informed Catholics today sometimes claim that some tribunals, especially in the United States, actually grant divorces but call them annulments to keep up appearances. To this, at least two things must be said. First, to some extent the claim depends on hasty interpretation of the fact that the number of annulments has increased considerably. Much of the increase can be explained by wider awareness of the possibility of annulment, greater efficiency in the Church’s courts, an increase in the number of invalid marriages due to inadequate premarital catechesis and dissent from Catholic teaching regarding marriage and its essential properties, and legitimate development, based on Vatican II’s teaching on marriage, in the understanding of the requirements for a valid marriage. Second, perhaps in some cases the annulment process has been abused, either by someone seeking an annulment or by a tribunal, so that valid marriages have been declared null. But abuses do not constitute the Church’s practice, and any decree of nullity resulting from an abuse is worthless.

3. The Church Rejects the View that Adultery Justifies Divorce

According to Matthew’s Gospel, Jesus seems to qualify his teaching excluding divorce by making an exception in favor of a man who dismisses his wife because of “unchastity” (see Mt 5.32, 19.9). On this basis, many non-Catholic Christians believe that divorce on the ground of adultery is possible, and that at least an innocent or repentant party may remarry. The Catholic Church firmly rejects this view.

a) Jesus made no exception in favor of the ground of adultery. Critical opinion today supports the position that unchastity (porneia) in the so-called exceptive clause refers, not to adultery, but to some sort of sexual irregularity or wrongful sexual intercourse.75 Precisely what the clause refers to is disputed, but one plausible interpretation is that it concerns incestuous unions which pagans considered marriages but Christians held to be invalid.76 Another, older Catholic reading is that the clause admits divorce in the sense of separation but not the dissolution of a marriage which would open the way to another marriage.77

b) The “exceptive” clause does not qualify Jesus’ teaching. On both of those interpretations, and some other possible ones, the exceptive clause can be understood as clarifying Jesus’ teaching without making an exception to the indissolubility of marriage.

If unchastity refers to relationships considered by pagans to be marriages but considered by the evangelist to be illicit unions, the clause means only that some putative marriages are null.78 Perhaps people entered them in good faith before their conversion, but, becoming aware that these relationships could not be true marriages, Christians should rectify matters by divorce—divorce as understood by civil law.

If divorce refers to separation without the dissolution of the marriage, the “exceptive” clause was merely dealing with the new problem to which Jesus’ teaching gives rise precisely because it is unqualified. Jewish and Roman practices of divorce and remarriage forestalled questions about the obligations of people abandoned or betrayed by their spouses. But for those who accepted Jesus’ teaching as unqualified, the question inevitably arose: What then? On this interpretation, Matthew’s Gospel reports Jesus’ teaching with a clarification similar to that which St. Paul makes: “To the married I give this command—not I but the Lord—that the wife should not separate from her husband (but if she does separate, let her remain unmarried or else be reconciled to her husband), and that the husband should not divorce his wife” (1 Cor 7.10–11; cf. Rom 7.2–3).

c) The Church’s teaching on this matter is definitive. Some development did occur before the Church reached her clear teaching and firm discipline entirely excluding adultery as a justification for divorce, and the Eastern Orthodox churches eventually thought it possible to divorce in cases of adultery.79 However, the Western church settled the question during the Middle Ages. Thus, in 1439 the Council of Florence taught that adultery justifies only permanent separation, not divorce and remarriage (see DS 1327/702). Later, against Protestant claims to the contrary, the Council of Trent solemnly condemned anyone who says the Church erred in having taught and in teaching that marriage cannot be dissolved even on account of adultery (see DS 1807/977).

Although this canon of Trent’s does not explicitly define the indissolubility of marriage, it does so implicitly, for, as Pius XI teaches:

 If therefore the Church has not erred and does not err in teaching this, and consequently it is certain that the bond of marriage cannot be loosed even on account of the sin of adultery, it is evident that all the other weaker excuses that can be, and are usually brought forward, are of no value whatsoever.80

4. A Nonsacramental Marriage Is Indissoluble If It Is ‘Perfect’

St. Paul teaches that a Christian married to a nonbeliever should not divorce if the nonbelieving spouse is willing to maintain the marriage (see 1 Cor 7.13). “But if the unbelieving partner separates, let it be so; in such a case the brother or sister is not bound. It is to peace that God has called you” (1 Cor 7.15). On the basis of this passage, the Church’s canon law and the Holy See have developed the so-called Pauline and Petrine privileges.81 These constitute a practice by which the Church often permits a Catholic to marry despite the fact that either that Catholic or the person he or she wishes to marry was previously nonsacramentally married to a third party.82

Many today argue that this implies that all nonsacramental marriages can be dissolved, and that to say they are “indissoluble” only means, at most, that they should not be dissolved. Contrary to this view, the Church maintains, in accord with Jesus’ teaching, that marriage as such, not only Christian marriage, is inherently indissoluble.83

In an attempt to reconcile the Pauline and Petrine privileges with the indissolubility of marriage, theologians and canonists have distinguished between intrinsic and extrinsic indissolubility. The argument is that, while nonsacramental marriages are intrinsically indissoluble (so that no merely human power can dissolve them), they are extrinsically dissoluble by divine power, exercised vicariously by the pope. But this way of accounting for the theological data is unsatisfactory insofar as it implies that the good of marriage can be disposed of as a mere means to a religious end extrinsic to marriage itself.

Instead of using a distinction between intrinsic and extrinsic indissolubility, it seems better to take account of inherent differences in marital relationships arising from differences in the objects of the consent which constitutes marriage, and on this basis to distinguish between ‘perfect’ and ‘imperfect’ marriage. Given this explanation, the Church’s practice based on St. Paul’s teaching does not imply that nonsacramental marriages are therefore dissoluble, but rather that imperfect marriages, although dissoluble, are valid marriages.

a) The Church holds nonsacramental marriage indissoluble. Pius XI, commenting on “What God hath joined together let no man put asunder,” states the Church’s position:

Wherefore, Our predecessor Pius VI of happy memory, writing to the Bishop of Agria, most wisely said: “Hence it is clear that marriage even in the state of nature, and certainly long before it was raised to the dignity of a sacrament, was divinely instituted in such a way that it should carry with it a perpetual and indissoluble bond which cannot therefore be dissolved by any civil law. Therefore although the sacramental element may be absent from a marriage as is the case among unbelievers, still in such a marriage, inasmuch as it is a true marriage there must remain and indeed there does remain that perpetual bond which by divine right is so bound up with matrimony from its first institution that it is not subject to any civil power. And so, whatever marriage is said to be contracted, either it is so contracted that it is really a true marriage, in which case it carries with it that enduring bond which by divine right is inherent in every true marriage; or it is thought to be contracted without that perpetual bond, and in that case there is no marriage, but an illicit union opposed of its very nature to the divine law, which therefore cannot be entered into or maintained [note omitted].”
 And if this stability seems to be open to exception, however rare the exception may be, as in the case of certain natural marriages between unbelievers, . . . that exception does not depend on the will of men nor on that of any merely human power, but on divine law, of which the only guardian and interpreter is the Church of Christ.84
Thus, the Church holds that her practice, developed on the basis of St. Paul’s teaching (see 1 Cor 7.15), does not imply that nonsacramental marriages as such are dissoluble. Rather, the practice is based on the belief that God himself wills an exception, which the Church interprets and applies.

b) Some licit nonsacramental unions are dissoluble. Assuming that the Pauline and Petrine privileges are based on an exception to the indissolubility of marriage, one wonders: How can God will this exception? Surely, the requirement of indissolubility is not merely a divine law imposed on human beings. Rather, it follows from the nature of man, woman, and marital communion as God creates them. It seems inconsistent and in violation of the principle that grace perfects rather than negates nature to suppose that, although from the beginning God designs marriage to be indissoluble, yet for the benefit of Christians he wills certain nonsacramental marriages to be dissolved through the Church’s vicarious exercise of his authority.85

To solve this puzzle, it helps to notice that Pius VI, in the passage Pius XI quotes, overgeneralizes in writing that every marriage is either “really a true marriage, in which case it carries with it that enduring bond which by divine right is inherent in every true marriage; or it is thought to be contracted without that perpetual bond, and in that case there is no marriage, but an illicit union opposed of its very nature to the divine law, which therefore cannot be entered into or maintained.” This dichotomy leaves no room for the marriages of people in Old Testament times, which, while surely not merely illicit unions, were “thought to be contracted without that perpetual bond” to which Jesus recalled attention. Indeed, it is possible to hold that those marriages were in truth both valid and dissoluble, for, according to one school of theological opinion which the Church has never rejected, the people of Old Testament times did not sin when they remarried after divorce.86

c) God permits fallen humans to marry imperfectly. The theologians who held that the marriages of people in Old Testament times were both valid and dissoluble posited an explicit divine dispensation to account for their dissolubility. However, Scripture offers no evidence of such a divine dispensation, and, except in Christian societies, humankind as a whole understands marriage much as the people of the Old Testament did. Couples consent to marriage as it is understood in their society, and in the fallen human condition other societies share the hardness of heart (see Mt 19.8, Mk 10.5) which accounted for Moses’ acceptance of divorce. Some non-Christians may believe that marriage should not be dissolved, and a particular non-Christian couple may hope their own marriage will be a lifelong union; but marriages of non-Christians in societies where divorce is accepted usually are “thought to be contracted without that perpetual bond.”

No Catholic theologian or canonist supposes that all these marriages are invalid, nor does anyone suppose that all these couples receive a divine dispensation. The common view is that these nonsacramental marriages are valid and indissoluble, even though the parties do not know about indissolubility, consent to marriage as they find it in their society, and can be divorced and remarried validly in the Catholic Church if they meet the conditions for a Pauline or Petrine privilege. This view, however, suffers not only from its legalistic explanation of the so-called privileges, but from its supposition that the free choices of people consenting to marriage understood in their society as dissoluble nevertheless regularly constitute indissoluble unions. This is implausible, for the consent constituting marriage is a free choice, and people can choose to do only what they believe they can do.87

A more plausible account is that such marriages are valid but imperfect precisely as marriages, and are divinely permitted inasmuch as God allows fallen human beings to continue to participate in the good of marriage despite their hardness of heart, that is, their inability, due to original sin, to comprehend, commit themselves to, and live up to marriage’s essential properties of indissolubility and exclusivity. Their marriages lack permanence and exclusivity, not because marriage as such can be dissoluble and nonexclusive, but because imperfect marriages lack these properties. And imperfect marriages lack them because the marital consent which constituted them was defective, not due to personal bad will of the parties but due to fallen humankind’s hardness of heart.88

d) Imperfect marriages both are and are not marriages. People lacking the light of the gospel consent to marriage as they find it in their society. This always includes the essential elements of the good of marriage itself. Intending this, they intend the good which is the object of that first principle of practical reason grounded in the natural human tendency to mate, have children, and bring them up. However, marriage as they find it and consent to it does not include marriage’s essential property of indissolubility and sometimes does not include exclusivity. Such couples form a relationship which participates in the good of marriage, yet also falls short of the requirements of that good, and so does not perfectly realize it. Their willing is inconsistent, since their consent falls short of the commitment necessary to realize fully their intention to share in the good of marriage. Such inconsistent willing brings into being a relationship that both is and is not a marriage. And that relationship is dissoluble, not insofar as it is a marriage but insofar as it is not.

Someone might object: It is absurd to say that a relationship both is and is not a marriage, since it either does or does not meet the essential conditions for marriage; and if it does not, it is not a marriage at all and should be called an “illicit union,” not an “imperfect marriage.” This objection would be sound if marriage were a natural species, since each natural entity must belong to some definite species and, logically, cannot do so without having all the essential properties of that species. But while marriage is natural insofar as it is a basic human good, it is a moral species insofar as its instances come to be by choices specified by intellectual judgments, with the result that relationships constituted by commitments specified both by true beliefs about the good of marriage itself and by erroneous beliefs about its essential properties neither fail entirely to realize that good nor realize it perfectly.89

68. A brief statement of the standard objections: Karl Lehmann, “Indissolubility of Marriage and Pastoral Care of the Divorced Who Remarry,” Communio 1 (1974): 219–42. A more extensive summary of dissenting opinions involving the standard objections: Richard A. McCormick, S.J., Notes on Moral Theology: 1965 through 1980 (Washington, D.C.: University Press of America, 1981), 84–86, 332–47, 372–81, 544–61, 826–41. A reading of these summaries of opinion makes it clear that all of the dissenters either assume that marriage is dissoluble (that its dissolution is wrong but possible, so that remarriage also is wrong but possible) or have a very legalistic conception of the moral norms which flow from marriage’s indissolubility; that is, they think of these norms as rules to be applied and mitigated, not as moral truths necessitated by the covenantal reality of marriage. Many also take for granted a proportionalist conception of moral judgment. These elements of their view already have been dealt with in question A or in volume one; what remains to be done in this question is to dispose of the common arguments which attempt to appeal to theological sources against the Church’s actual teaching on marriage’s properties.

69. See CIC, c. 1056; c. 1057, §1; c. 1142. C. 1061, §1, defines consummation by stating that a marriage is said to be “consummated if the parties [having exchanged valid marital consent] have performed between themselves in a human manner the conjugal act which is per se suitable for the generation of children, to which marriage is ordered by its very nature and by which the spouses become one flesh.”

70. For the history summarized here, see George Hayward Joyce, S.J., Christian Marriage: An Historical and Doctrinal Study, 2nd ed. rev. (London: Sheed and Ward, 1948), 39–67; E. Schillebeeckx, O.P., Marriage: Human Reality and Saving Mystery, trans. N. D. Smith (New York: Sheed and Ward, 1965), 287–97; Theodore Mackin, S.J., Marriage in the Catholic Church: What Is Marriage? (New York: Paulist Press, 1982), 145–75.

71. In speaking of the coming to be of marriage, Vatican II (GS 48) treats “the conjugal covenant” and “irrevocable personal consent” as identical (cf. CIC, c. 1057, §2). However, the Council does not thereby imply that the consent of the bride and the groom fully constitutes the conjugal covenant; consummation, fulfilling consent, also is necessary. To deny this would be to assert that Vatican II implicitly contradicts the Council of Trent’s definitive teaching that solemn religious profession dissolves a true marriage which has not been consummated (see DS 1806/976).

72. John Paul II, General Audience (5 Jan. 1983), 2, Inseg. 6.1 (1983) 42, OR, 3–10 Jan. 1983, 7.

73. On the reality of the marriage of Mary and Joseph, see Leo XIII, Quamquam pluries, ASS 22 (1889–90) 66–67, PE, 110.3. Mary’s perpetual virginity pertains to faith on the basis of Scripture and very rich and extensive tradition; see Michael O’Carroll, C.S.Sp., Theotokos: A Theological Encyclopedia of the Blessed Virgin Mary, rev. ed. (Wilmington, Del.: Michael Glazier, 1983), 357–62. The New Revised Standard Version translates Mt 1.25: “but had no marital relations with her until she had borne a son”; however, the meaning of the Greek preposition (heos) translated until does not imply that Mary and Joseph engaged in marital intercourse after Jesus’ birth.

74. John Paul II, Redemptoris custos, 7, AAS 82 (1990) 13, OR, 30 Oct. 1989, 2, teaches: “The Son of Mary is also Joseph’s Son by virtue of the marriage bond that unites them: ‘by reason of their faithful marriage both of them deserve to be called Christ’s parents, not only his mother, but also his father, who was a parent in the same way that he was the mother’s spouse: in mind, not in the flesh’ [note omitted]. In this marriage none of the requisites of marriage were lacking: ‘In Christ’s parents all the goods of marriage were realized—offspring, fidelity, the sacrament: the offspring being the Lord Jesus himself; fidelity, since there was no divorce’ [note omitted].” Cf. S.t., 3, q. 29, a. 2.

75. For helpful summaries of exegetical views, including some others less favored than those mentioned here, with references to the leading proponents of each view, see Pierre Adnès, S.J., Le mariage (Tournai: Desclée, 1963), 23–28; Schillebeeckx, Marriage, 142–55; for a briefer summary of the main views: Benedict T. Viviano, O.P., “The Gospel According to Matthew,” in The New Jerome Biblical Commentary, ed. Raymond E. Brown, S.S., Joseph A. Fitzmyer, S.J., and Roland E. Murphy, O.Carm. (Englewood Cliffs, N.J.: Prentice Hall, 1990), 642–43.

76. John P. Meier, Matthew (Wilmington, Del.: Michael Glazier, 1980), 53, explains: “All too common in the eastern Mediterranean, such marriages were forbidden by Lev. 18:6–18. Some rabbis allowed a Gentile to maintain the incestuous union when he entered Judaism, and similar problems about these unions arose when Gentiles became Christians. The problem is mentioned in Acts 15:20, 29; 21:25; and 1 Cor 5:1. In all these texts porneia is used to describe the incestuous marriage. The ‘exceptive clause’ is thus the exact opposite of a relaxation of Jesus’ radical morality.”

77. See DS 1327/702 (Council of Florence); St. Thomas, Super evangelium S. Mattthaei lectura, on 5.32 and 19.9. This classical reading can be sustained by modern critical exegesis; see Quentin Quesnell, S.J., “Made Themselves Eunuchs for the Kingdom of Heaven (MT 19, 12),” Catholic Biblical Quarterly 30 (1968): 335–58; Quesnell points out (347–48) that the reading is found as early as St. Clement of Alexandria.

78. Schillebeeckx, Marriage, 148, explains: “Porneia, then, was a marriage that was null and void according to the Jewish law, and thus also according to the canon law of the primitive church following the apostolic decision of Acts xv.20–29.” But Schillebeeckx goes on (154) to favor the position that the clause refers to separation without remarriage.

79. It often is argued that various Church Fathers and councils permitted divorce on the ground of adultery, but much of the material on which such arguments depend need not be interpreted as approving remarriage following divorce after a valid marriage was consummated, and so can be read as entirely compatible with the Church’s teaching and practice. See Anthony J. Bevilacqua, “The History of the Indissolubility of Marriage,” Proceedings of the Catholic Theological Society of America 22 (1967): 253–308; Gilles Pelland, S.J., “Le dossier patristique relatif au divorce: Revue de quelques travaux récents,” Science et esprit 24 (1972): 285–312, 25 (1973): 99–119; E. Hamel, “The Indissolubility of Completed Marriage: Theological, Historical, and Pastoral Reflections,” in Contemporary Perspectives on Christian Marriage: Propositions and Papers from the International Theological Commission, ed. Richard Malone and John R. Connery, S.J. (Chicago: Loyola University Press, 1984), 181–200; Henri Crouzel, S.J., “Remarriage after Divorce in the Primitive Church: A Propos of a Recent Book,” Irish Theological Quarterly 38 (1971): 21–41 (the book criticized is Victor J. Pospishil, Divorce and Remarriage: Toward a New Catholic Teaching [New York: Herder and Herder, 1967]).

80. Pius XI, Casti connubii, AAS 22 (1930) 574, PE, 208.89. It often is pointed out that Trent purposely avoided condemning the practice of certain Eastern churches. However, while Trent was careful not to affront those churches, the canon to which Pius XI refers, read in the context of the Council’s whole doctrine on marriage (DS 1797–1812/969–82), clearly entails that the practice of the Eastern churches is not in accord with the truth which Trent defines. One especially must consider the other canon concerning indissolubility: “If anyone says that the marriage bond can be dissolved by reason of heresy, domestic incompatibility, or willful desertion by one of the parties: let him be anathema” (DS 1805/975). Since this dogmatic definition bears directly on indissolubility and directly condemns the opinion that marriage is dissoluble on any of the leading grounds other than adultery, arguments supporting dissolubility based on the indirectness of the other canon only reach cases involving adultery. But few if any Catholics who today offer such arguments conclude that marriage is dissoluble only on the ground of adultery.

81. See Joyce, Christian Marriage, 469–99.

82. See CIC, cc. 1143–50, with the commentary by Thomas P. Doyle, O.P., in The Code of Canon Law: A Text and Commentary, ed. James A. Coriden, Thomas J. Green, and Donald E. Heintschel (New York: Paulist Press, 1985), 814–19; Congregation for the Doctrine of the Faith, “Privilege-of-the-Faith Cases: Instruction and Procedure” (6 Dec. 1973), Canon Law Digest 8 (1973–77): 1177–83 (see related material, 1184–88); Ignacio Gordon, S.J., “De processu ad obtinendam dissolutionem matrimonii non sacramentalis in favorem fidei,” Periodica de re morali, canonica, liturgica 79 (1990): 511–76; New Catholic Encyclopedia, s.v. “marriage, canon law of”; Donald J. Gregory, The Pauline Privilege: An Historical Synopsis and Commentary (Washington, D.C.: The Catholic University of America Press, 1931). Anyone who might be able to take advantage of this practice of the Church should contact the diocesan tribunal or consult a Catholic pastor, who will help to initiate the necessary canonical procedure. Any marriage in which either party is not baptized is nonsacramental: since the non-Christian spouse cannot share in the sacrament, which is the marriage covenant itself, neither can the Christian spouse.

83. See DS 1797–99/969; GS 48; CIC, c. 1134; cf. St. Thomas, S.c.g., 3.123.

84. Pius XI, Casti connubii, AAS 22 (1930) 551–52, PE, 208.34–35.

85. Such a view can seem satisfying only if the problem is considered legalistically. Similar legalism leads some to argue: if nonsacramental marriages can be dissolved by the Church, they can be dissolved by others if there is an adequate reason to do so. It also leads some to argue: since the Church can dissolve nonsacramental marriages and nonconsummated sacramental marriages, surely the Church can dissolve any marriage. For a clarification of legalism and an argument for excluding it from the whole of pastoral practice: Germain Grisez, “Legalism, Moral Truth, and Pastoral Practice,” Anthropotes 6 (1990): 111–21. Schillebeeckx, Marriage, 158, manifests dissatisfaction with the legalistic view of the Pauline privilege by suggesting that the marriage dissolves itself, for “there must have been a kind of error substantialis (fundamental mistake) in the conclusion of the contract if the non-Christian no longer desired to live with a believer in marriage.”

86. See St. Thomas, In Sent., 4, d. 33, q. 2, a. 2, qu’lae 2–3 (S.t., sup., q. 67, aa. 3–4). St. Thomas presents this view as a probable opinion, though he prefers a different account.

87. Pietro Gasparri, Tractatus canonicus de matrimonio, ed. nova, 2 vols. (Vatican City: Ex Typis Polyglottis Vaticanis, 1932), 2:27–29 (§§ 806–7), articulates the argument for the supposition that people consenting to marriage understood in their society as dissoluble constitute indissoluble unions: (i) people who marry intend true marriage, and that is marriage as God instituted it, namely, an indissoluble union; (ii) to suppose the contrary would be to suppose that all the marriages of nonbelievers, of Greeks, of Calvinists, and so on are invalid; (iii) it also would be contrary to the favor of the law that marriage enjoys; and (iv) it is not in accord with the fact that most people getting married are not then thinking about divorce or a second marriage. To (i): People who marry do intend marriage as God instituted it in the sense that they intend as their end the good of marriage to which a basic precept of practical reason points; however, they intend marriage as they find it in their society in the sense that they choose to marry and consent to marriage only as they know it and consider it possible for themselves. One must grant that the objective requirements of the end cause the intention of it to imply a will toward indissolubility and unity; however, one must deny that consent to marriage thought to be dissoluble is an efficacious will to form an indissoluble union. And it is consent, not the intention of the good of marriage as an end, which makes marriage. To (ii): One can grant that to suppose the contrary is to suppose that all those marriages are invalid as perfect marriages; still, one can hold that in general those marriages are valid as imperfect marriages. To (iii): It is contrary to the favor of the law that marriage enjoys to suppose that any particular putative marriage is not a true marriage and to put the burden of proof on the one who holds it valid; however, it is not contrary to the favor of the law that marriage enjoys to hold on the basis of a general principle (the relationship between a free choice and its specifying object) that people who do not think marriage is indissoluble do not consent to indissoluble marriage. (In other words, this element of Gasparri’s argument begs the question of principle at issue by invoking a presumption which properly concerns the judgment of particular cases according to relevant principles.) To (iv): One can grant that most people getting married do not expressly condition their consent on dissolubility and that this fact is decisive for people who marry as Catholics and for anyone else who enters marriage in a society that holds marriage indissoluble; however, since people who live in a society that holds marriage dissoluble take dissolubility for granted, they can consent to marriage only as they know it, and so they constitute only dissoluble unions.

88. John T. Noonan, Jr., Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia (Cambridge, Mass.: Harvard University Press, 1972), 341–92, narrates the development of canon law and the Holy See’s practice in regard to the dissolution of nonsacramental marriages. Plainly, the actual rationale of those who brought about the development has been legalistic, based simply on the pope’s vicarious power. The explanation proposed here in terms of the category of imperfect marriage, therefore, is only theological, not historical. Someone might point out that the CIC, c. 1086 and c. 1125, prevents a Catholic from entering a nonsacramental valid marriage unless (c. 1125, 3<198>) both parties have been “instructed on the essential ends and properties of marriage, which are not to be excluded by either party.” (This provision is new; it was not included in the corresponding canons in the 1917 Code—c. 1061 and c. 1070.) From this it could be argued that if couples really meet this requirement in entering a nonsacramental marriage, it would not be dissoluble according to the theological explanation in terms of imperfect marriage, but would be according to the legalistic rationale in terms of the pope’s vicarious power. So, the argument would conclude, the explanation in terms of imperfect marriage does not account for possible cases to which the Church’s present practice could extend (and to some cases to which it already has extended). The answer is that the fault need not be with the explanation: it is possible that the Holy See’s practice should not extend to certain cases encompassed by the legalistic rationale (and, since the details of the Holy See’s practice rest neither on any solemn definition nor on any teaching of the universal, ordinary magisterium, the practice can be based on a doctrinal mistake). Even so, in practice faithful Catholics will proceed in accord with the judgments of the appropriate authorities of the Church; a theological theory such as that proposed here should not be followed in practice against the judgment of the pope and/or bishops in communion with him.

89. Still, someone might ask: Are two pagans who marry, thinking divorce possible, truly married or not, prescinding, now, from questions about their personal responsibility. The answer: They are truly married, yet their marriage is essentially defective, and they are not married precisely insofar as it is defective. Gregory XIII explained that “connubia inter infideles contracta, vera quidem, non tamen adeo rata censeri, ut necessitate suadente dissolvi non possint” (DS 1988/—). Canonists often use ratum as if it were synonymous with sacramental, but even if the two words have the same reference, they do not have the same sense: ratum means settled, unalterable, or firm. Neither Pope Gregory nor the canonists explain why only a sacramental marriage is ratum. But if those who attempt marriage in good faith while believing it dissoluble form true but imperfect marriages, one can see why such marriages are not rata and so are dissoluble, although marriage as such, not only sacramental marriage, is essentially indissoluble. Noonan, Power to Dissolve, 239–301, narrates the history of canonical jurisprudence which has been based on the dilemma that the marital consent of nonbelievers and Protestants who think divorce possible must be presumed not to exclude indissolubility, and that the contrary presumption would imply that all such marriages simply are invalid. The explanation developed here escapes between the horns: intending to marry, not merely to enter into some lesser relationship, people in good faith who are not in a position to understand marriage as indissoluble can marry; but not rightly understanding marriage, they cannot consent to, and so do not form, a perfect marriage. Noonan goes so far as to say at one point (274): “Policy had hardened to the point where intent to marry indissolubly appeared to be a presumption required by the infallibility of the Church.” This statement of Noonan’s, however, interprets the thrust of an argument of Pius VI in a letter to the Bishop of Prague (which Noonan quotes on the same page), and this argument expressly concerns the validity of the marriages of non-Catholics who believe that divorce is possible. On the theory that such marriages are imperfect, they would be valid but dissoluble—a possibility Pius VI did not consider (and that Noonan does not articulate). Finally, it is important to note that nothing in Noonan’s account supports the view that the Holy See’s practice and judgments in this matter meet the conditions for infallible teaching by the ordinary magisterium, which include both the proposal of the teaching as something which must be held as absolutely certain and the moral unanimity of the whole college of bishops (see CMP, 35.D).