Mary’s Advocates’ Rebuttal to Ed Peters

Controversy over Church Teaching on Divorce

FOR IMMEDIATE RELEASE
From: Bai Macfarlane, Director Mary’s Advocates, Rocky River Ohio
May 20, 2017

On Saturday 13 May 2017, Mary’s Advocates sent recourse to the Congregation of Education regarding a controversy (100 pages seen here). With the non-profit organization Mary’s Advocates, I work to reduce unilateral no-fault divorce.  After much research, I found that a party, who married in a Catholic ceremony, is required by canon law to have the bishop’s permission before filing for civil divorce. This is the procedural canon law regarding separation and civil divorce. Pewsitter published the story on Wednesday 17 May 2017 about my recourse, “Appeal to the Holy See Controversy Over Church Teaching on Divorce.”

On Thursday, 18 May 2017, canonist Ed Peters, published a blog posting, “Do Catholics need to seek Church permission for divorce?”  He started his posting by referencing an unnamed author who took recourse to Rome about these canons. I am that unnamed author.

[(note added July 12, 2017), Peter’s says in that blog,  “[P]art of the disagreement between the author [Bai Macfarlane] and the diocese turns on the weight to be accorded a 2015 letter from Cdl. Coccopalmerio, president of the Pontifical Council for Legislative Texts, wherein he opines against the assertion that Catholics must obtain episcopal permission prior to filing for divorce.]

In Peter’s blog, he points readers to his article in a print journal on the same topic, “Do Catholics need ecclesiastical permission to divorce?”  In this article, he concludes that the procedural canon law regarding separation and civil divorce is “symbolic.” He says the requirement to have the bishop’s permission before filing for divorce is not applicable in the Unites States because we are a non-concordat nation. That is, our Bishops don’t have an agreement with the civil governments, whereby the Church and the States have jointly designated which of the two (the Church or government) will control and decide cases of separation and divorce.

He also says that “Catholics who are merely civilly separated or divorced are eligible for Holy Communion regardless of whether they utilized a canonical process for the cessation of conjugal life.” For any spouse who has endured decades of civil court’s destruction of his natural right to be involved in the upbringing of one’s children because of unilateral no-fault divorce, this unqualified statement by Peters is shocking.

Catholics who kill another human being are also are eligible for Holy Communion, but those who wrongly murder someone cannot go to Communion, until they confess and make amends. Those who wrongly abandon marriage, force divorce, and destroy their own family life, commit a grave, immoral offense against nature (according to the Catechism). Because of unilateral no-fault divorce, most divorces in this country are forced on a spouse who did nothing grave to justify separation.

Mary’s Advocates emphasizes that we need to implement the canon law to safeguard faithful spouses and children. Otherwise, people get hurt and scandal is given.

Imagine if we had a policy that an employee at the city aquarium could push a visitor inside the shark tank, only after getting permission from the aquarium’s director.  The aquarium’s director is responsible for ensuring that all the safety equipment has been properly set.  If the safety equipment is not set up, visitors get attacked and killed by sharks.  Canon law on separation of spouses is the same.  The bishop, or his mandated delegate, has competence to safeguard that Catholics only seek separations that are fair, and in accord with divine law. If not, innocent spouses and children get attacked by the sharks (no-fault divorce lawyers and immoral judgments). Furthermore, the Church has the authority to admonish the sinner.

Update (22 May): In Ed Peters blog from May 18, he added a note, dated the day after my Rebuttal. “Update (21 May): ‘Mary’s Advocates’ has posted a ‘Rebuttal to Ed Peters’ taking issue with the arguments I set out in the FCSQ, or at least, with how they understand my arguments. I don’t see much use in replying, I’ve made my case and they’ve made theirs. Readers can form their own conclusions about which presentation is more likely correct and, more importantly, Roman authorities will certainly reach theirs in due course.“

Update (25 May): Peters discusses a Latin work and translates section 831 (pg. 828-29) of Cappello.  Cappello is discussing whether, or not, it is ever legitimate for a Catholic to petition in the civil forum. Cappello concludes that in certain circumstances, the Church tolerates a party approaching the civil forum. Cappello is not talking about whether, or not, a party is free to make the decision with no approval from a bishop. In 1950, a revised edition of the same work was published with changes in section 830, which covers competent authority for separation cases. See both editions HERE.

Cappello, in Section 838,  shows that a spouse is not allowed to seek a civil divorce without having first undergone a canonical case. This case would involve an ecclesiastic investigation and decision in which the spouse was granted permission (freedom/license) to file for divorce.  “Quoad coniuges, haec in praxi tenenda sunt: … 4° – Cum causae matrimoniales ad Ecclesiam pertinent, non licet coniugibus potere divortium civile, nisi antea ob causam canonizam licentiam se separandi obtinuerint.”  Translation is “the following are to be done in practice by spouses: … 4° When matrimonial cases pertain to the Church, it’s not allowed for spouse to seek a civil divorce unless first they have obtained the freedom for separating themselves by a canonical case.”

My Response to Peters’ Blog

Herein are my responses to Peters’ blog posting and article just published in the scholarly journal “Fellowship of Catholic Scholars Quarterly” 40/1-2 (Spring-Summer, 2017) 61-64.

PETERS: “Some intelligent (but not canonically trained) persons, interested in promoting Church teaching on marriage, have come across these canons and—notwithstanding the heavy logistical demands that adopting their proposals would place on bishops and their staff—assert that observance of these norms must forthwith be urged by bishops and pastors upon pain of pastoral dereliction.”

BAI: In addition to coming across these canons, I’ve come across hundreds of pages of scholarly writing about the canons and posted them all on Mary’s Advocates’ website. I understand that implementing the canons would be a heavy logistical demand. However, is that a reason to ignore them?

Church leadership chooses where to put their time and resources, and they choose which demands to meet. For example, there is an obligation for priests to be available to conduct the Sacrament of the Anointing of the Sick when someone phones.  This pastoral care takes resources and training. If a diocese wanted to put the same priority on having priests be able to make “sick calls” when there was a marriage crisis, what is stopping them?  Right now, divorce transfers thousands, and thousands of dollars to civil lawyers. Just imagine how that money could be better spent by Catholic mediators, arbitrators, canonical judges, and pastors that would implement canon law on separation of spouses cases.

PETERS: “In contrast, Canons 1692-1696 (outlining the procedure for seeking Church permission to discontinue conjugal life) are new and thus lack significant roots in canonical tradition.”

BAI: Peters is making the point that canon 1692 was not in the 1917 Code of canon law, and says there is little significant roots for it. This is the canon that describes the role for the bishop before a party can file for civil divorce. Canonical Tradition includes more than only the 1917 Code of Canon Law. On Mary’s Advocates’ website, for example, I show references from the Acts of the Plenary Councils for the Unites States, Acts from Provincial Councils of various states, decisions from the Holy See’s Sacred Congregation, decisions from the Propagation of the Faith, the decisions from the Sacred Congregation of the Holy Office, (former title of the Sacred Congregation for the Doctrine of the Faith), and Gasparri’s Codicis Iuris Canonici Fontes.  These sources show the roots in canonical tradition that I imagine would be easily found by a “canonically trained” person, of which I am not.

PETERS: “For example in 1978 advisors to the Coetus on Marriage ‘suggested that all the materials on separation while the bond endures [the future Canons 1151-1155] not be retained in the Code but rather should be left to episcopal conferences which, if they felt it necessary, could enact local norms in accord with the practices of their peoples.’ ([note] 4: Communicationes 10:118).”

BAI: “Coetus on Marriage” is the group of canonical advisors that were working on the revision of canon law that was promulgated in 1983. Peters cites the records of the advising commission. Their records are published in books named “Communicationes,” which has numbered volumes. He is citing page 118 of volume 10. There are two sections in the canon law about separation of spouses. One section is under sacraments and the other section is under procedure.  In the sacraments section are shown the grounds for separation of spouses and some language about ecclesiastical authority’s permission. In the procedure section is more language about the bishop’s permission.

Peter’s citation of Communicationes 10:118 shows the records from those developing the sacraments section.  On Mary’s Advocates’ website, I compiled the records from the advisors on both the sacraments and procedure sections. Records From Commissionis Codici Iuris Canonici Recognoscendo. On my webpage, I cite the same record Peter’s cites: Schema de Sacramentis, 1978 January 31, February 1, (page 118-121).

Just because that advisory group decides not to include certain provisions in their section of the law does not prove that the provisions do not exist at all. The provisions to which Mary’s Advocate’s points are in a different section of the law: the procedure section. We emphasize the section that requires a party to have his bishop’s permission before filing for civil divorce, or civil separation.

Peters cites the fact that the sacraments advisory group discussed the possibility of omitting altogether from the canon law anything about cases of separation of spouses. Just because there was a discussion about something before a law was established, does not mean that the law was, or was not, established.  For example, today there is obviously discussion amongst bishops about whether, or not, those in second so-called marriages who want to continue to have sexual relations should receive Holy Communion. The discussion does not prove that any doctrine, law, or practice, has been established, or not established.

PETERS: “Likewise in 1979 advisors to the Coetus on Procedural Law argued that ‘this title on separation cases [the future Canons 1692-1696] should be suppressed because spouses never bring separation cases to ecclesiastical tribunals, or the whole matter should be left to local law.’ The coetus replied, however, that these canons ‘cannot not be in the general law’ and retained them despite concerns that they would remain essentially unused.’ ([note] 5: Communicationes 11:272).”

BAI: Peters cites one issue discussed by the advising commission for procedural law from their 1979 discussions. But there are other issues recorded from their discussions too, which I cite on Mary’s Advocates’ webpage for the Commissionis. On 31 March 1979, there was a question of whether the tribunal judge, or the bishop, would have authority to grant permission for a party to approach the civil forum. The requirement for the bishop’s permission could have been named a “precaution” or named a “precept.” The commission voted to make the requirement a “precept.”  Precepts are more firm and there is no license for a tribunal judge to exercise his own discretion to overlook a “precept.” (Communicationes 11:273 [Macfarlane’s 13 May 2017 recourse to Congregation of Education: English Translation, page 35; Latin page 34 and 55])

Peters did not cite records from the procedural commission’s discussions on 19 April 1971. They discussed the importance of the Church not renouncing its own duty and right to protect families from having imposed upon them a separation plan that may, or may not, be contrary to divine law.

(Communicationes 40:147 [Macfarlane’s recourse to Congregation of Education: English Translation, page 26; Latin page 22 and 42])

PETERS: “Consider this advice from the standard pre-Conciliar canon law textbook used in American seminaries during the twenty years leading up to Vatican II: ‘A party seeking separation should normally be referred to the Ordinary. However, since people usually hesitate to enter into direct communication with diocesan officials in these matters, it will usually be well not to insist on this obligation if the parties are unaware of it, especially if the separation is already in effect and there is no great scandal connected with it.’ ([note] 6: Bouscaren & Ellis, Canon Law: A Text and Commentary (1946), 572.)”

BAI: Peters cites in footnotes 6, 7, and 8 books published in 1946, 1954, and 1963 that he says were used in seminaries. On Mary’s Advocates’ website, I cite other books that could have just as easily been used in seminaries. For example, we show “Canonical Procedure in Matrimonial Cases” published in 1948 by Msgr. William J. Doheny, C.S.C., J.U.D., who was an advocate and procurator at Signatura and Rota and Assistant Superior General of the Congregation of Holy Cross. His work states, “Before beginning a suit in the civil courts for separation, Catholics must consult, beforehand, the proper ecclesiastical authorities, even though they previously received from the Church a decree or sentence authorizing separation” (page 650).

Moreover, the Very Rev. Henry A. Ayrinhac, the President of St. Patrick Seminary, outside of San Francisco, published a text in 1918, Marriage Legislation in the New Code of Canon Law. He taught, “The Third Plenary Council of Baltimore, n. 126, forbids having recourse to the civil courts without consulting the Ordinary. A regular trial is not required, but only the Bishop’s permission.”

PETERS: Peters spends nine paragraphs discussing the writings of Roman canonist Felix Cappello. (Citing author: Felix Cappello. Title. Tractatus Canonico-Momlis de Sacramentis. V (1947), 828-29). Peters concludes the following about Cappello:

“In short, notwithstanding spousal separation canons that, in terms virtually identical to those used in the 1983 Code, required all Catholics to obtain ecclesiastical permission to discontinue conjugal life, canonists of the prestige of Cappello held that Catholics who did not live in ‘concordat nations’ could directly approach civil tribunals in most such cases, provided only that they did not regard a civil decree of divorce as settling canonical issues such as the validity of their marriage.”

…. “I find the cost of retaining in law ‘symbolic’ norms, if that is what these canons amount to in many places, to be high (if only in terms of their potential to cause confusion among the faithful), but the Legislator apparently concluded otherwise. Nevertheless, even ‘symbolic’ canons must be read in accord with their text and context, ([note] 16 citing canon 17) and the context of the canons on spousal separation strongly suggests that they are not to be applied in all countries the way they might be applied in some.”

BAI: Peters quotes four paragraphs directly from Cappello, wherein Cappello showed three possible opinions about parties obtaining civil divorce in territories that did not have a concordat. A concordat is an agreement between governmental authorities and church authorities. The possible opinions listed by Cappello made no mention of whether, or not, the bishop’s permission is required before a party files for civil divorce. Cappello was only discussing the possibility that divorce, in some cases, could be tolerated.  However, Peters starts drawing his own conclusions about which the reader is unsure whether the conclusions are from Capello or Peters.

Since Peters did not provide the exact quote from Cappello of which Peters either summarizes, agrees, or extrapolates, I can’t comment on what Cappello did, or did not, write.

Update

However, I can comment on what Peter’s wrote. Concordat nations are those that have an agreement between the government authorities and the church authorities wherein they both decide that a) the Church can manage separation of spouses and divorce cases, or b) they both decide that the state can manage separation of spouses and divorce cases.   

In non-concordat nations, no such agreement exists. The USA is a non-concordat nation. In the USA, the Church never agreed that the state can manage all cases of separation of spouses. Canon 1692 says that the bishop’s permission before filing for a civil divorce is required, unless particular law in the faithful’s territory waives the requirement.  If the USA had a concordat with any civil government about the management of separation cases and divorce, the bishops of the USA would have enacted particular law for our territory telling us about the concordat, and telling us that the requirement to have the bishop’s permission is waived.

Peters says that where there is no concordat, no permission of the bishop is required. Mary’s Advocates concludes the opposite: where there is no concordat and corresponding territorial canon law (i.e. particular law), the bishop’s permission is required.

On Mary’s Advocates website is shown the opinion of a modern canonist that explains the conditions required before the Church would ever enter a concordat agreement with the civil government, wherein the civil government is supposed to manage all cases of separation of spouses and divorce. Carmelo de Diego-Lora, in 1985, wrote Spanish work “Mediddas pastorales previas en las causas de separacion conyugal.”  Some of his writings have been published by the Vatican’s publisher Libreria Editrice Vaticana and “Mediddas pastorales” was published by Servicio de Publicaciones de la Universidad de Navarra, where he teaches:

“It must be thought, in order to be coherent, that if the Church has ceded, through the Concordat, jurisdiction in the causes of separation to civil jurisdiction, it is because the legislation on the separation of spouses of these States (assignees of the Jurisdiction) shows an essential conformity, in this matter, with the requirements of the divine, natural or positive right.”  (page 222-223. Rough google translate from Spanish to English, See more).

Mary’s Advocates emphasizes that we need to implement the canon law to safeguards faithful spouses and children, otherwise people get hurt.

Peters puts a lot of weight on the fact the Catholics don’t ask for the canon law on separation of spouses to be implemented. Mary’s Advocates show a party how to ask for the law to be implemented. See our Petition to Bishop.