A special “Dossier” of reflections on some of the issues facing the Synod. The key point: we must support the family in every possible way.

The hall that will host the Synod of Bishops on the Family, October 5-19. In the small photo,  German Cardinal Walter Kasper, whose reflections have sparked controversy.

The hall that will host the Synod of Bishops on the Family, October 5-19. 

German Cardinal Walter Kasper, whose reflections have sparked controversy.

German Cardinal Walter Kasper, whose reflections have sparked controversy.

Cardinal Walter Kasper’s address to the College of Cardinals last February was intended to provide “a theological basis for the subsequent discussion among the cardinals” then meeting in Consistory in preparation for the forthcoming extraordinary Synod of Bishops on the Family.1 Pope Francis, having re-read the talk after it was delivered, as is now well-known, movingly paid tribute to the cardinal the following day.

The discussion in the Consistory was, by all accounts, a heated one. It sparked off a furious debate in the European and North American media, both mainstream and social. The debate focused almost entirely on one section of the talk, the part dealing with the admission of the divorced and remarried to the sacraments. On being asked about this precise topic on his return flight from Jerusalem to Rome recently, Pope Francis seemed to express a certain frustration that the discussion had fuelled false expectations with regard to the Synod: “What I didn’t like, was what some people, within the Church as well, said about the purpose of the Synod: that it intends to allow remarried divorcees to take Communion, as if the entire issue boiled down to [that] case” (Zenit).

The same comment could be applied to Kasper’s own talk. The greater part of the text is devoted to a summary, and development, of his 1977 book on the theology of Christian marriage. Its style is easygoing, its language simple, its thoughts generally profound. It deserves close, albeit critical, study.

After an introduction outlining briefly the crisis facing the family in modern so-called advanced societies and its sociological causes, Kasper acknowledges that the Church’s teaching seems to be “out of touch” with the modern world. His aim, however, is not to present anew the Church’s teaching but rather to present anew “the Gospel of the Family.” In other words, his intention is to present the good news about the family as a divine gift not a burden, fully aware that today we experience “the disintegration of the self-evidence of the Christian faith and the natural law understanding of marriage” (4).

And so he proposes to begin radically, that is, starting from the roots of faith, so as to enable the Church to present the faith as a path to life’s happiness. The term “path” is used repeatedly.

Using a refreshingly new terminology, he shows how the basic truths about the family are rooted in nature, or more accurately, in the order of creation. This is the “ideal” (in fact, the natural law) as revealed in the Old Testament. (In this section he outlines his appealing but essentially misleading interpretation of Humanae Vitae.) Next, he discusses the messy existential situation of the human condition, namely the structures of sin, brokenness and division in family life, again as illustrated by recourse to the OT. Then follows the third and richest section: the family in the order of salvation.

Here Kasper attempts to elucidate the theology behind the indissoluble bond of marriage based on in the teaching of Jesus. It is essentially a gift of grace, and so, beginning with Eph 5:32, the Church eventually came to recognize Christian marriage as a sacrament.

Then follows the fourth theme: the family as domestic Church.

The contemporary stress on the family as a small church within the big Church and its intrinsic relationship to basic Christian communities is primarily due, he claims, to the missionary situation in today’s [Western] world where Christians have become “cognitive minorities.” (22)

The fifth and final section is devoted to the pastoral problem of the divorced and remarried, more specifically the question of their admission to the sacraments. This is the section that has been the subject of debate. Even though Kasper begins and ends his reflections with the disclaimer that one “may not reduce the problem to the question of admission to Communion” (25, 33), in fact this whole section — together with two Excursus, a five-page-long concluding “Comment” on the discussion among the cardinals at the Consistory, and an “Afterword” — deals with this precise topic.

Raphael's masterpiece The Wedding of the Virgin.

Raphael’s masterpiece The Wedding of the Virgin.

The previous four sections demonstrate Kasper’s own understanding of the Gospel revelation regarding the indissolubility of marriage. This is important, since he claims that his own pastoral suggestions in no way call its (dogmatic) binding force into question. As he states: “The indissolubility of a sacramental marriage during the lifetime of the other partner [sic] is a binding part of the Church’s faith tradition, which one cannot repeal or water down by appealing to a superficially understood and cheapened sense of mercy” (26).

The main issue, as he sees it, is raised by the new situation created by the Napoleonic Civil Code (1804) which first introduced civil marriage, an initiative that was later taken up by successive countries. The Church responded with the 1917 Code of Canon Law by imposing severe restriction and punishments for those who were divorced and remarried. These punishments were removed in the 1983 Code, while Pope John Paul II in Familiaris Consortio (1981) and Pope Benedict XVI in Sacramentum Caritatis (2007) went so far as to “speak well-neigh lovingly of such Christians.”

“Is not a further development possible … [that] carries forward and deepens more recent traditions?” Kasper asks. By way of precedent, he instances the way the Second Vatican Council made breakthroughs with regard to ecumenism and religious freedom, “without violating the dogmatic traditions” (27). Can the same be done with regard to the question of admitting remarried divorcees to the sacrament?

Any answer to the question, Kasper rightly states, must needs be nuanced. However, since what is involved in the pastoral care of remarried divorcees in no way suggests any development in any dogmatic tradition, one wonders, if Vatican II can be cited as a precedent. What cannot be denied is that there is always room for development of canonical and pastoral practices and procedures, as the history of the Church demonstrates, but they must be in harmony with the Church’s dogmatic teaching on the sacraments of marriage and the Eucharist.

His own answer is restricted to a consideration of two pastoral situations or rather, more precisely, specific cases — an exercise in casuistry in fact. Firstly, he considers those who are subjectively convinced that the first marriage was invalid, a conviction shared by many pastors who doubt if those who entered the first marriage had either the faith or the consent to the essential characteristics of marriage needed for receiving the sacrament. Secondly, he takes issue with the 1994 Letter of the CDF which taught that the divorced and remarried, though unable to receive Holy Communion, could and should receive spiritual communion. Kasper advocates instead admission to Communion under certain strict conditions. In so doing, he draws especially on an article on the subject by then-Professor Joseph Ratzinger published in 1972.

What can one say to these propositions? One cannot deny the passionate concern of Cardinal Kasper for divorced and remarried Catholics who, sorry for the failure of the first marriage, now find themselves in a second union. Apart from dealing with this matter in his earlier publication on the theology of Christian marriage, then-Bishop Kasper, together with two other German bishops of the Upper Rhine Province, made a widely-publicized case for the admission of remarried divorcees to the sacraments. This was rejected by the CDF in its Letter of 1994. Kasper’s talk to the Consistory would seem to be an advance on his earlier position. But is it acceptable? The short answer, in my opinion, is: not quite.

Let us look first at Kasper’s most controversial proposal in his talk to the Consistory before then looking at his first proposal.

The Holy Family, a classic theme of Byzantine iconography.

The Holy Family, a classic theme of Byzantine iconography.

Arguing casuistically, Kasper outlines the exceptional case, which in his opinion, would justify admission to the sacraments: someone who is sorry for the failure of the sacramental marriage, cannot get out of the obligations incurred by the second civil marriage, tries to live a life of faith and to raise his or her children in the faith and who “longs for the sacraments as a source of strength in his or her situation.”

Kasper then asks rhetorically: “Are we going to let him or her starve sacramentally so that others may live?” (30). This is not an argument but an appeal to emotion. Is it justified?

Earlier he had effectively rejected recourse to the notion of spiritual communion in these circumstances, as suggested by the CDF’s 1994 Letter and reiterated by Benedict XVI in 2012. Kasper asks rhetorically: “If such a person can receive spiritually why not sacramentally?”

The cardinal fails to consider the fact that spiritual communion might in the long run, paradoxically, be spiritually more ben­eficial to someone who is aware of his or her irregular situation (but cannot see any way out of it at the moment) than to someone in full communion receiving the sacrament more or less ritualistically. One is reminded of the parable of the Pharisee and the tax-collector (Lk 18:9-14). Being starved of the sacraments, to use Kasper’s emotive language, may well intensify one’s desire for God, one’s love of God, knowing that a humble, contrite heart He will not spurn (cf. Ps 51:17) — and that, if we persevere, He will give us the grace to achieve the end of pleasing God: full repentance which includes a radical change of life-style (such as living as a brother and sister). Kasper would grant a remarried divorcee absolution in the sacrament of penance in the case he outlines “after a period of reorientation” (32, see also 45-6). It is not clear what he means by “reorientation,” but evidently it cannot be repentance in the true sense — metanoia — since Kasper does not seem to require that resolution to amend one’s life which is needed for absolution.

St. Paul visiting the family of Aquila and Priscilla.

St. Paul visiting the family of Aquila and Priscilla.

In Excursus 2, Kasper cites what he claims to be evidence (taken mainly, it would seem, from Professor Ratzinger’s 1972 article) to support his claim that in the early Church “there was, according to customary law in many local churches, the praxis of pastoral tolerance, clemency, and forbearance after a period of penance” (37). Kasper fails to quote the later Cardinal Ratzinger, who in 1998,2 citing a review of the relevant texts of the Fathers by P. Pelland, pointed out that during the Patristic period, “divorced and remarried faithful were never admitted to Communion after a period of penance.”

Kasper’s interpretation of the admittedly somewhat ambiguous canon 17 of the Council of Nicaea (325) does not hold up to scrutiny. It has been convincingly ar­gued that, in line with the earlier synods of Elvira (c. 306) and Arles (314), it probably refers to second marriage after the death of one of the spouses.3

With regard to the other case which Kasper discusses (concerning doubts about the validity of the first marriage), there might indeed be some room for development here in terms of Church praxis and canonical procedure.

The cardinal discusses the situation where, due to lack of faith on the part of one or other spouse or lack of consent to a proper understanding of marriage as indissoluble, such marriages might well be invalid. Judgment of this, he rightly insists, cannot be left to the parties involved. Instead he asks if perhaps the usual “juridical path,” as he puts it, might be supplemented by “other, more pastoral and spiritual procedures,” details of which he does not provide.

“Alternatively,” he adds, “one might imagine that the bishop might entrust this task to a priest with spiritual and pastoral experience as a penitentiary or episcopal vicar” (28).

It is of note that recourse to the “internal forum” was not entirely ruled out by Cardinal Ratzinger in 1998, since the canonical procedures are not of divine law but Church law (and so subject to change if necessary). Here Kasper and Ratzinger would seem to be in agreement. However, Ratzinger also stressed at the time that “the conditions for asserting such an exception must be precisely clarified in order to exclude arbitrariness and to defend the public character of marriage which is withdrawn from subjective judgment.” Kasper is silent on this.

Kasper devotes a helpful Excursus to the question of “implicit faith,” the minimum, as he sees it, needed to receive a sacrament. But he fails to explore the possible implications of the teaching of the Church to the effect that the sacrament of matrimony is due to the baptized character of the spouses, not their subjective faith. Again it is worth noting that in 1998 Cardinal Ratzinger did not rule out the possibility of a marriage being invalid due to lack of faith: “It is a matter to be clarified,” he wrote, “whether every marriage between two baptized persons is truly ipso facto a sacramental marriage.” However, he pointed out that one legal question needs to be addressed beforehand: what degree of clarity about the lack of faith is needed so that a sacrament does not come into being? And therein lies the rub.

In a footnote to the same text,4 the German translators (presumably at the request of the Pope) include an off-the-cuff comment by Pope Benedict XVI during his meeting with the clergy of Aosta, July 25, 2005. There he described as especially painful the situation of a remarried divorcee who repents and comes to faith while in the second marriage and yet is excluded from the sacraments. That, the Pope admits, is truly a great suffering. However, after debates on this precise topic held in the Congregation for the Doctrine of the Faith with different Bishops’ Conferences and with specialists, he admitted that he himself had become less se­cure about his former position regarding the lack of faith that would render the first marriage invalid and called for more profound reflection. Kasper’s Excursus might offer a starting point for such reflection.

The Emperor Constantine (seated on the lower left) presides over a session of the Council of Nicaea (325 A.D.).

The Emperor Constantine (seated on the lower left) presides over a session of the Council of Nicaea (325 A.D.).

Cardinal Kasper uses the term “path” frequently during his discourse, mostly suggesting thereby the changing nature of our pilgrim journey. He claims that his proposal to admit remarried divorcees to the sacraments under strict conditions “is not a broad path for the masses, but a narrow path for indeed the smaller segment of divorced and remarried individuals who are honestly interested in the sacraments” (32-3). It may be a small path at the outset, but, one must ask, would it inexorably lead to the broad path that leads to de­struction of the family as God intended it, especially in our media-driven age, when the principle of allowing remarried divorcees into full Communion will be the only message the majority will hear? The Church’s teaching on the indissolubility of a valid and consummated sacramental marriage — and its adhesion to it in practice — is a bulwark against all those social forces Kasper outlined in his introduction which are indeed undermining the family. It has been argued by many that it is part of the Church’s prophetic voice needed to evangelize the contemporary secular world. It will always be a sign of contradiction.

In his concluding comment on the discussion among the cardinals that followed his talk, Kasper stressed the need to avoid talking about the divorced and remarried, since the situation of each is unique. That, of course, is true. Also true is the fact that the same basic principle of the indissolubility of marriage applies to all situations. His appeal to Newman’s essay “On Consulting the Faithful in Matters of Faith” (cf. 46-7), it seems to me, is misplaced, since Newman never suggested that the opinion of the faithful should be sought on a controversial moral or canonical issue, as Kasper seems to suggest. Newman was dealing with dogmatic issues, which, it seems to me, does not apply to this situation, where the question is about the practical implications of the uncontested teaching of the Church on marriage.

In his “Afterword: What can we do?” the cardinal offers some reflections on four steps to be taken (by the Church) in order to arrive at “a perfectly unanimous solution” to the problem (49). He has many good points to make, even though one may question the underlying message, which is a prolonged plea to avoid a rigoristic, legalistic approach to finding a solution. Using unusually emotive language for a theologian, he asserts that certain solutions cannot be brought about using a “sledgehammer, whether on one’s own authority or by adopting a threatening pose” (49). He fails to see that his own argument to allow remarried divorcees admission to the sacraments seems to be framed within the legalistic, casuistic mindset of the older manuals of moral theology.

The Church’s teaching on the indissolubility of marriage is not a law that has to be interpreted, newly developed, or circumvented by clever casuistry; it is a principle that determines our virtuous behavior — virtue being that ar­duous path, marked by the Cross and made possible by grace that alone leads to true happiness and eternal glory.

Cardinal Kasper expressed a wish that the Synod will “open the door a crack for people’s hopes and expectations” (47). But, one might ask, to what extent were those hopes and expectations fuelled by the earlier attempt by the German bishops of the Upper Rhine (and the more recent attempt in the Archdiocese of Freiburg-in-Bresgau) to justify the admission of some divorced and remarried faithful to the sacraments? No wonder Pope Francis was worried about igniting false expectations for the Synod.

A more relevant question might be: to what extent are those hopes and expectations characteristic of the affluent local Churches of Western Europe and North America? It will be interesting to hear voices from the young Churches in Africa and Asia on this subject.

The Synod will consider the situation of the family in the universal Church, where other issues affecting the Christian family might need to be addressed with greater urgency.

1 Cardinal Walter Kasper, The Gospel of the Family (Mahwah, NJ: Paulist Press, 2014). Page references in brackets in the text are to this edition.
2 The text I am using is the German translation of the third part of his Introduction to Volume 17 of the series Documenti e Studi published by the Congregation for the Doctrine of the Faith (CDF): Sulla pastorale dei risposati. Documenti, commenti e studi (Città del Vaticano, 1998, 20-29). The footnotes were added. Quoted here as Introduction.
3See Adam C. Cooper, “Cardinal Kasper and the Church Fathers” in Catholic World Report, July 8, 2014.
4 See above footnote 2.

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