In response to the changes recently made to the annulment process by Pope Francis, I would suggest that we examine the matter a bit more closely and then take a wait and see approach before drawing any conclusions.
The motu proprio reforming the Code of Canon Law (for the Latin Church), Mitis Iudex Dominus Iesus, is available on the Holy See website in Latin and Italian, Vatican News Service, however, provided an English translation wherein the following seven changes are set forth.
Now, bearing in mind that I do not possess a J.C.D. (Juris Canonici Doctorate) but rather only an S.C. (Sensus Catholicus), let’s walk through these items together one at a time:
- A single judgement in favour of executive nullity: it would appear appropriate to no longer require a double conforming decision in favour of the nullity of the marriage to enable the parties to be able to contract a further canonical marriage, instead considering sufficient the moral certainty reached by the first judge in accordance with the rules of law.
EXAMINE: No longer will an initial judgment of nullity have to be submitted to a “court of second instance” for review and either confirmation or denial; rather, the initial ruling will suffice.
WAIT: Don’t be lulled to sleep by data suggesting that the court of second instance has historically upheld the first ruling in the overwhelming majority of cases. The mere existence of the secondary procedure arguably served to keep sloppiness (and any tendency toward liberal activism) somewhat in check.
SEE: With this built-in system of “checks and balances” thus removed, the chances of an improper judgment becoming final has undoubtedly increased.
- A single judge under the responsibility of the bishop: the constitution of the single judge, in any case clerical, is in the first instance the responsibility of the bishop, who in the pastoral exercise of his judicial power must ensure that the former does not engage in any form of laxity.
EXAMINE: Juridical power will be concentrated in this single judge in an unprecedented way thanks to item 1 above.
WAIT: One can safely assume that this judge will be of like mind with the bishop who appointed him. This is obvious enough, but since we’re now looking at a “single judge,” it is far easier for a given bishop to effectively dictate the mindset and direction of the tribunal.
SEE: Men like Cardinal Reinhard Marx of the Archdiocese of Munich and Freising, who has made no bones about his intent with respect to opening pathways to Communion for the civilly divorced and remarried, will appoint a judge who will rule accordingly; i.e., he isn’t about to appoint a man who thinks like Cardinal Burke.
- The same bishop is the judge: … The bishop in his Church, of which he is constituted pastor and head, is for this reason judge among the faithful entrusted to him. It is hoped, therefore, that in both large and small dioceses the same bishop may offer a sign of the conversion of the ecclesiastical structures, rather than completely delegating the judicial function in matters of marriage to the offices of the curia. This is especially relevant to the shorter procedure, established to resolve the most evident cases of nullity.
EXAMINE: Any bishop that would have otherwise felt the need to constrain the desire to run roughshod over the tribunal’s decision making process, now has a papal mandate to do exactly that.
WAIT: In some dioceses, the notion of “especially” and “most evident” will eventually come to naught, and the matter of obtaining an annulment will revolve around one’s local bishop. In short, what is now a juridical procedure will quickly devolve into an administrative process.
SEE: We can well expect disparity to exist from diocese to diocese, as one bishop’s “laxity” is another bishop’s “mercy.” In other words, getting married and remaining in a “conservative” diocese might just be for life, whereas doing so in an uber-liberal one might be tantamount to entering into a prenuptial agreement wherein the parties are all but guaranteed the ability to retain the unmarried state should things get dicey.
- Short procedure: Indeed, aside from streamlining processes for the declaration of nullity, a form of shorter process is designated – in addition to the current documentary procedure – to be applied in cases in which the alleged nullity of the marriage is supported by particularly clear arguments”. The Holy Father observes that “it does not pass unnoticed that a shorter procedure may endanger the principle of the indissolubility of marriage; for precisely this reason I have required that in such a procedure the judge be the bishop himself who, due to his pastoral office, is with Peter the greatest guarantor of Catholic unity in faith and in discipline”.
EXAMINE: The “documentary process” refers to cases that are black and white; e.g., a previous “marriage” that was conducted by a Justice of the Peace and is therefore null due to lack of form as evidenced by the documents alone. The Holy Father has introduced a new concept; nullity “by particularly clear arguments.”
WAIT: One does well to recall that a majority of the bishops at the Extraordinary Synod of 2014 voted in favor of an article (found in the final relatio) that suggests “a more individualized approach, permitting access in certain situations and with certain well-defined conditions, primarily in irreversible situations and those involving moral obligations towards children who would have to endure unjust suffering. Access to the sacraments might take place if preceded by a penitential practice, determined by the diocesan bishop.”
SEE: It is evidently “particularly clear” to many bishops that the indissolubility of marriage constitutes a sentence of “unjust suffering” upon those who enter into it. These men have been handed justification, by the pope no less, for applying that same heterodox reasoning to the process of granting annulments. In so doing, they can lay claim to upholding the traditional doctrine (which makes the attainment of an annulment necessary), while undermining it entirely.
- Appeal to the Metropolitan See: it would be appropriate to restore the faculty of appeal to the Metropolitan See, since this office of the head of the ecclesiastical province, stable throughout the centuries, is a distinctive sign of the synodality of the Church.
EXAMINE: This appeal is a one-way street for seeking an appeal in cases where nullity is allegedly wrongly denied. There is no process of which I am aware for appealing cases where nullity is allegedly wrongly granted.
WAIT: Decisions rendered, for example, in the Diocese of Peoria under Bishop Jenky (a so-called “conservative”), would be subject to being overturned by the Metropolitan See of the Archdiocese of Chicago under Archbishop Blaise Cupich.
SEE: As Pope Francis appoints more of his own, like Blaise Cupich, to other Metropolitan Sees, the direction in which judgments of nullity will go isn’t exactly a mystery.
- The competence of the Episcopal Conferences: the Episcopal Conferences, which must be above all driven by the apostolic eagerness to reach the lost faithful, are strongly aware of their duty to share in the aforementioned conversion, and fully respect the right of the bishops to organize the judicial power in their own particular Churches. … Along with their proximity to the judge, the Episcopal Conferences, to the extent possible, must ensure just and dignified retribution to tribunal staff, ensuring that the processes are free, since the Church, in a matter so closely linked to the salvation of souls, demonstrates the gratuitous love of Christ by which we have all been saved.
EXAMINE: The word “retribution” above (retribuzione in Italian) is better translated remuneration, or the payment of wages.
WAIT: No one can deny that individual bishops already feel compelled, at least in some measure, to adopt the “group think” of that bureaucratic machine known as their National Episcopal Conference. Here in the United States, and presumably in most other nations as well, this pressure invariably moves ordinaries in a leftward direction.
SEE: This same liberalizing pressure will now come to bear on the annulment process, if for no other reason than one does not do well to bite the hand that feeds them.
- Appeal to the Apostolic See: It is convenient, in all forms, to maintain the appeal to the ordinary Tribunal of the Apostolic See, that is the Roman Rota, respecting an ancient judicial principle, so as to strengthen the bond between the See of Peter and the particular Churches, in any case taking care, in the discipline of such appeal, to limit any abuse of the right, so that it does not jeopardise the salvation of souls.
EXAMINE: The buck stops in Rome, but once again, one notes that this is a one-way appeal in obtaining a judgment in favor of nullity.
WAIT: The mindset of Rome with respect to the matter at hand is obvious enough from the moto proprio presently under discussion. Even so, more clarity still can be gleaned from the words of Cardinal Francesco Coccopalmerio, President of the Pontifical Council for Legislative Texts, the body charged with the task of interpreting the law of the Church.
Speaking to America Magazine last October at the conclusion of the Extraordinary Synod, Cardinal Coccopalmerio said:
Allowing what many synod fathers described as ‘an administrative procedure,’ by which the local bishop can declare the annulment of a marriage ‘for grave and urgent reasons.’ This could happen even in the absence of external evidence or witnesses, when the bishop considers the couple themselves as ‘credible witnesses’ to what was the actual situation in their marriage.
I am very favorable to this third solution; it is often the only way forward … We must adopt the hermeneutics of the pope; we must adapt the procedure to the concrete situation of individuals for grave and urgent reasons.
SEE: In time it will become obvious that the motu proprio has put in place all that is needed to make this “solution” a reality.
CONCLUSION: The timing of the motu proprio’s release was well-calculated in advance.
By publishing the Letter nearly one month before the Synod of Bishops convenes, the Kasperians have been further emboldened to press forward without fear; with their adversaries put on notice that this pope intends to get what he wants, no doubt the full court press to recruit votes in favor of “pastoral practices” that will cause doctrines to fall like dominoes has shifted into overdrive.
In short, this motu proprio represents the formal beginning of that process whereby the indissolubility of marriage will be undermined in a way that allows the “reformers” to claim adherence to tradition, even as they set in motion its undoing.