Consensual Incapacity to Marry

By Catherine Godfrey-Howell and Raymond Leo Cardinal Burke

The anthropology that supports marriage perceives justice to be a particular reality, and for this reason marriage will always be a subject of law and of great interest to jurists and sociologists alike. With respect to the realization of justice in marriage, understood as the moment the bond is created, Catholic ecclesiology and canon law articulate an original legal category––namely, the consensual incapacity to marry.  In the last fifty years, however, and despite the juridical innovations provided by the current Code of Canon Law promulgated in 1983, American canonical practice in the sphere of marriage law has lost its foundation. The consequences of this include mechanisms of judgment that are rendered incoherent although not inactive, particularly in local tribunals reviewing claims of marriage nullity. In other words, the application of law in the Catholic Church moves forward without a clear indication of its anthropological basis. Canon law, then, on the issue of marriage is perceived to be purposefully oppressive or absolutely meaningless.

 Jurists, scholars, and members of the Roman Curia acknowledge that, more than a general response to this crisis of law and marriage, what might be needed most is greater scrutiny of the canon in which the formula for consensual incapacity appears. It is furthermore acknowledged that American canonical practice is perhaps the most influential in the world, and is responsible for shaping and sustaining the global attention given to this issue. To fully grasp the crisis and the best way forward, a profile of this canon in American jurisprudence is fundamental and demanded presently. The new course charted by canonical studies and formation of jurists, as well as the new developments in ecclesiastical legislation, will find guidance in this study provided by Catherine Godfrey-Howell, and further insight in the foreword given by the American Cardinal prelate and former Prefect of the Apostolic Signatura, Raymond Leo Cardinal Burke.

• Language: English
• Publisher: St. Augustines Press
• Release date: Jul 20, 2020
• ISBN: 9781587311352

Book preview

5.

Introduction

The present work is a modified version of the dissertation originally entitled, Consensual Incapacity to Marry: A Profile of Canon 1095 in American Jurisprudence (2018, PUSC, Rome). Excerpts of unpublished cases have been removed and alteration of certain sections have been made to accommodate privacy and accommodate the reader who wants the point and not the pasture. The main subject of the dissertation (canon 1095) is the same here—namely, the notion of consensual incapacity to contract marriage in American canonical scholarship and practice. The category of this kind of juridical incapacity is singular to the discipline of canon law, with its concept of justice that no longer exists elsewhere or in any other legal system. The particular nature of this category is also shaped by the concept of human conjugality, which now exists almost exclusively in Christian anthropology.

The School of Canon Law at the Pontifical University of the Holy Cross during their 16th triennial conference in 2012¹ presented studies on the concept and formula of consensual incapacity given in canon 1095 of the CIC-83 (the current Code of Canon Law). The treatment of this issue attempted to enter into a line of thought that is frequently overlooked when focusing on the more immediate aspects of the application of the canonical norm [of canon 1095] because one forgets that behind problems of interpretation there are oftentimes deeply rooted theoretical problems.² Among the pressing questions in need of examination were the sense of distinction but relation of the three numbers of this canon, with special attention given to the relation of numbers two and three: number two presents the lack of discretion of judgment and number three presents instead the inability to assume the essential obligations of marriage.³ Members following this conference also compared the text of the CIC-83 to contemporary ways of applying this canon and in what way the so-called capacity for marriage is associated—in contemporary scholarship—with the act of consent and the subsequent development of the marriage relationship.

One of the more striking features of this conference was the extent to which the content seemed new when compared to knowledge of American interpretation of this canon and its application. The conference provided several important lines of inquiry, but there were other questions that perhaps were not directly intended—namely, is this research regarding consensual incapacity novel or simply unimplemented in American scholarship and tribunals?; What exactly is the common or prevailing interpretation of canon 1095 in American practice and scholarship?; If it seems to have its own particular and isolated development, does this mean American canonists are wrong?; Lastly, why does the degree of attention given to the conjugal perimeters of marriage, or descriptions of marriage as a conjugal union, differ so widely in American canonists?

The present study seeks to provide a more comprehensive exegetical profile of canon 1095 and the formula of consensual incapacity that is actually applied in American jurisprudence. If one understands not just particular differences but also the reasons why American jurisprudence has developed in the way that it has, one discovers that American canonists (and those individuals whose research unfolds strictly in the United States with American peers) over the last half century have engaged in a seminal undertaking unlike any that has occurred elsewhere in the world, and which has produced several critical outcomes. First, the American canonical discipline has employed the interdisciplinary method of research and practice, and done so in admirable ways especially considering the frequent lack of a coherent model. In this sense, American canonists will never be guilt of being positivists or narrow-minded. Second, canonists were highly attuned to the same sentiments that precipitated Vatican Council II and attempted to provide responses of their own to the many questions and concerns of the lay faithful and religious. They have been remarkably convincing on the grounds of their devotion to involvement in these issues. Third, canonists have implemented a particular vision and interpretation of canon law in light of Vatican Council II and an interdisciplinary method that has been comprehensive, consistent and committed to fidelity, and the majority (with some notable exceptions) move from a desire for unity and understanding rather than an upheaval of doctrine and authority.

However, and yet due to these efforts, these outcomes have produced certain further outcomes. First, the broad interdisciplinary approach has been used to essentially restructure the canonical discipline and indefinitely open the boundaries of the canonical inquiry. Second, the pastoral and theological concerns that have occupied the attention of American canonists and influenced canonical praxis relied more on how similar issues were resolved in a secular socio-political context—and with other gestures of purely pastoral solidarity—and very little on the precise insights and indications of Church teaching and doctrine and how these insights already contained indications of their relation to juridical questions. Third, American canonists have committed themselves to a lengthy and consistent application of a particular line of reasoning, but likewise effectively demonstrate that certain conclusions are based on premises that have been unanimously accepted and applied in argumentation but never properly tested for their respective soundness, or truth. The validity of American jurisprudence is, then, potentially misleading. In sum, the virtues of American canonical practice are overshadowed by the dominating itch to be seen and understood by the universal Church rather than to first seek to understand. American scholarship over time has revealed gaps and shortcomings that indicate more patience and diligence were in order.

A second series of questions emerged during the research of this dissertation that represents another area of uncertainty and sometimes divergence in canonical jurisprudence: How is the contribution of psychology (and psychiatry) to be implemented? The history of the development of interpretation of consensual incapacity in American jurisprudence shows that this question has not been definitively answered and is often not taken seriously.⁴ The role of the expert is based on specific needs of the instruction of a given case, but the argumentation in cases often reveals that canonists use psychology and psychiatry not only to interpret facts of the case but the law itself regarding marriage and consensual incapacity, and they do so as creatively as the field of psychology allows.

This study, through the profile provided of canon 1095 and consensual incapacity in American jurisprudence, aims to provide i) the principle elements, terminology and juridical headings of contemporary scholarship and application of this juridical category of incapacity; ii) the theoretical roots of prevailing (popular) contemporary jurisprudence, and how these took hold prior to the promulgation of the CIC-83 and the formulation of canon 1095 and its legal category of incapacity; iii) how these roots and developments were sometimes motivated by specific non-canonical (that is, not juridical and at times even socially controversial) interests; and iv) what aspects of contemporary jurisprudence are therefore particular and differ from post-Vatican II legislative indications such that they should be finally refuted and no longer used in relation to canon 1095 or any other canonical legislation. Like the conference of 2012 and its exposition of canon 1095, this study scrutinizes the theory and motivations behind the use of canon 1095 in American jurisprudence and its foundations, and in doing so hopes to fill what ends up being a sizeable hole in contemporary canonical exegesis.

The formula of consensual incapacity and its interpretation is deeply connected to both the substance of jurisprudence as well as procedure and praxis. Canon 1095 is one of the principal avenues by which canonists implement an overarching vision of law and its innovation in the areas of both process and normative interpretation. Furthermore, consensual incapacity has been associated with new ideas about marriage, how to incorporate these new ideas in legislation and how to change juridical procedure into a better reflection of pastoral experiences (and what changing procedure into a reflection even means). The contribution of American canonists to the idea and use of consensual incapacity was a part of an impetus of research considered to be reform or renewal in this sense.⁵ An example of this is the American Procedural Norms (APN) of 1970, which were in part an attempt to project this creative-substantive innovation onto the practice and theory of the universal Church.⁶

As stated, American canonists embarked on an impressive enterprise unmatched by peers in the universal Church. It is understandable that American practice has noticeably influenced canonical practice in other countries and a wider theoretical development of consensual incapacity. This influence has been documented, for example, in the 1970s when Spanish dioceses were sending marriage cases to the United States for a swift and assuredly affirmative judgment. The flight of cases increased after the emergence of the APN and the motu proprio Causas matrimoniales.

The ecclesiastical tribunal of Brooklyn began to introduce a standard practice contrary to the Code of Canon Law and the ‘American Norms’ to resolve with greater speed the many cases of marriage nullity which were being introduced, through discovering and admitting in ecclesiastical jurisprudence new capita; for example, ‘inhabilitas assumendi onera seu obligationes matrimonii, inhabilitas ineundi communitatem vitae et amoris,’ etc. This ‘praxis’ has since been initiated by other American ecclesiastical tribunals. [. . .] The fame acquired by various American tribunals due to the publicity and propaganda which those involved have made of their activities, has infected ecclesiastics of other countries. Various judges and persons who work in Spanish ecclesiastical tribunals have traveled to the United States to learn the new methods.⁷

These cases primarily treat those questions referring to grounds of nullity contained in canon 1095.

This study consequently presents both the effect of theory on procedure as well as the effect of procedure on theory, the latter odd exchange being often overlooked. The profile of canon 1095 in American jurisprudence illustrates how this is possible and in some cases explicitly intended. Part of the importance of this study resides in the exposition of certain procedural proposals as attempts to dictate substantive juridical trends or at times serve as the means to actualize pastoral initiatives that fall beyond the scope of the canonical discipline. Because the United States achieved its own particular, positive procedural norms for determining marriage nullity, it was equipped—in this mentality—with the means to offer its own solutions to certain pastoral-theological issues. The interpretation and application of canon 1095—more precisely, the grounds of consensual incapacity—in American jurisprudence is now used to perpetuate this same mentality.

The inspiration of the canonical inquiry that was articulated during the period that produced the APN later provides an interpretative key to canon 1095. This inspiration is summed up in the description of juridical proceedings as being legal-pastoral experience. Before the revised promulgated canonical legislation in 1983, the proposed changes read in the schemata were assessed [by American canonists] in terms of their fidelity to Vatican II, their responsiveness to contemporary legal-pastoral needs and their reflecting the best insights of our canonical tradition.⁸ These expressions are not immediately alarming, but in reality they do not include an adherence to the canonical discipline and its exigencies. The prevailing view of the CLSA was that the scope of canonical study should extend beyond strictly canonical issues and elaborate the role of law in the church especially in light of contemporary theological developments.⁹ The CLSA furthermore did not believe the breadth of legal-pastoral experience from the Anglo-American regions was appropriately represented.¹⁰ The new essence of the canonical inquiry as legal-pastoral is not an indication of its being anti-positivistic, rather an indication that it seeks to rescue the law from its being legal. There is no defense of the canonical discipline found in ecclesiology, an ironic turn given the impressive ecclesiological-doctrinal thrusts of Vatican Council II.

This legal-pastoral experience is both a point of reference and future objective of the canonical reform that actively utilizes canon 1095 and the concept of consensual incapacity. As a point of reference it includes (1) a growing awareness of the interdisciplinary (especially theological) dimensions of canonical reform, (2) a concern to ensure the active involvement of all believers in the church’s mission, (3) a concern to protect the exercise of their substantive and procedural rights, (4) a concern to foster the appropriate exercise of authority at all levels of church government.¹¹ As an objective, this legal-pastoral experience used interdisciplinary approaches to, among other initiatives, revisit the nature of the marriage bond (i.e. its necessary indissolubility), redefine the role of the faithful in the Church’s mission via an organization and articulation of fundamental human rights¹² and collaborated with the Catholic Theological Society of America to ensure the free speech of dissident theologians during these decades (the correction of error was considered a violation of this).¹³ The contemporary interpretation of consensual incapacity cannot be separated from these initiatives and was frequently applied in service to these projects rather than according to the authentic legislative intent of canon 1095 and its strictly juridical category of incapacity.

A profile of the grounds for consensual incapacity in canon 1095 is inextricably connected to these corollary developments connected to the legal-pastoral experience. It is the opinion of the author that these developments do not share the same degree of favor today among canonists and theologians as they did decades earlier, and still many more canonists do not recognize how one’s interpretation and application of canon 1095 might be changed if the connection were made between these developments and prevailing jurisprudence surrounding canon 1095. Nor do many canonists understand the far-reaching theoretical consequences of misapplying the category of consensual incapacity, among these being the erosion of the concept of human conjugality and the marital union as the most irreducible human relation and nucleus of the family.

A further note regarding sources, attention is given primarily to the efforts of the Canon Law Society of America (CLSA), a body of professionals that commanded research and the endorsement of jurisprudence. During the process of Code revisions the CLSA was not formally consulted, but the CLSA Code Revision Task Force regularly advised the NCCB on drafts of the proposed law particularly through its Canonical Affairs Committee.¹⁴ In fact, the NCCB used the CLSA evaluations of the proposed legislation as its own, forwarding it to the Code Commission via its Canonical Affairs Committee.¹⁵ The direction of canonical study and practice in the post-conciliar decades both in the United States and abroad, which continues in part today, was forged by the CLSA. The main critics of the revised Code, however, are also generally the main authors of canonical scholarship during that time. Writing a decade prior to the new Code and decades after, these authors have shaped jurisprudence according to a vision of law that, with respect to marriage legislation and consensual incapacity, at times cannot be reconciled with the legislative decisions of the Pontifical Commission for the Revision of the Code of Canon Law and the acting members of Vatican Council