Marriage, Pope Francis, and Canon Law: 21 Questions for Father Robert Kaslyn, S.J.

Father Robert J. Kaslyn, S.J., is a Jesuit priest and canon lawyer who serves as Dean of the School of Canon Law at Catholic University of America—the only school of canon law in the United States. He earned his doctorate in canon law (J.C.D.) from St. Paul University in Ottawa. He also holds S.T.B. and S.T.L. degrees in theology from Regis College at the University of Toronto.

Father Kaslyn specializes in ecclesiology and the sacrament of holy orders. His doctoral dissertation, “‘Communion with the Church’ and the Code of Canon Law,” was published by The Edwin Mellon Press with a foreword by Cardinal Avery Dulles, S.J. His theology licentiate thesis was “Karl Rahner’s Theology of Sacrament.” He also serves as an occasional media source on canon law issues in the United States.

On Sept. 8, I interviewed Father Kaslyn by email about canon law and various issues related to marriage.

Pope Francis announced today some major changes to the Code of Canon Law in regard to the annulment process. As the ranking dean of canon law in the United States, what can you tell us about this decision? 

The Holy Father, in the two documents issued today, attempts to reconcile the indissolubility of marriage, divine teaching that cannot be changed, with the current judicial process in force by which a party to a marriage or both parties request a Tribunal to determine whether in fact their relationship is indeed a valid marriage. Reforms in the judicial process aim, according to the Holy Father, at expediting the process in certain cases and not at undermining the teaching on the indissolubility of the marital bond. 

One of the significant changes is the removal of a mandatory appeal process, if neither party has taken advantage of appealing the first instance decision within the determined time. In addition, in “manifest cases” of nullity, a shorter process may be utilized. This process may be utilized when, for example, full marital consent was not exchanged, in as much as there is stubborn persistence in infidelity from the time of the marriage; the procuring of an abortion to avoid the presence of children; or the use of violence in order to obtain the other party’s consent to the marriage. 

The Pope reiterates the importance and necessity of “moral certitude," as has been required, in decisions in which the nullity of a particular marriage has been declared. This emphasis serves to re-force  the teaching on the indissolubility of marriage. Pope Francis states that moral certainty requires not only sufficient proofs of nullity but also the exclusion of any prudent positive doubt in fact and in law.

Whether the two goals–to preserve the indissolubility of marriage and to adapt the judicial process in determining nullity–are in fact compatible can only be determined over time and through implementation of the norms in particular cases.

As Pope Francis attends the World Meeting of Families in Philadelphia later this month, many Catholics expect him to offer a positive vision for marriage and family life amid the challenges of the contemporary world. What basic principles of family life and marriage do we find in canon law as currently promulgated?

Please allow me to preface my response to your question with a basic principle of canon law. Pope John XXIII surprised many by announcing in 1959 that he wished to call a synod for the Diocese of Rome and an ecumenical council; the latter event in turn would lead to the revision of the Code of Canon Law then in force. The Commission revising the 1917 Code began its work in 1965 with Pope Paul VI reminding the members that they must develop a new way of thinking (novus habitus mentis). This process concluded with the promulgation of the present law in 1983. 

During the revision process, an important principle emerged: canon law reflects theology but does not create theology. In other words, canon law reflects Church teaching; therefore, if a non-definitive Church teaching were to develop in its formulation, then the Code would necessarily need amendation to reflect that development.

The Code therefore does not offer anything substantially different than Church teaching on marriage and family life: essential themes present in the theology of marriage are reflected in the Code, for example, a recognition that both the husband and wife are equal partners; each possesses rights and obligations; marriage as a covenant is a partnership of the whole of life which is ordered by its nature to the good of the spouses and the procreation and education of offspring, concepts present in conciliar teaching such as Gaudium et spes 48. This theological teaching reflected in the Code provides the faith context in which the contemporary understanding of marriage is lived.

With the Synod on the Family, there has been a lot of speculation in the media about the current and future state of Catholic teaching on “divorced Catholics receiving communion.” But divorced Catholics, as long as they do not remarry outside the church without an annulment, are already free to receive communion. What insights does the 1983 Code of Canon Law give us on this subject?

Prior to reading and interpreting the Code of Canon Law, an individual must understand that the Church’s law recognizes various origins of law: divine and/or natural law which derives from God; human law which derives from a human legislator, either in the civil (secular) sphere or in the Church. Human laws deriving from a human legislator reflect the limitations inherent in any human activity; these laws can and do change. We may judge human laws, civil and ecclesiastical, on how well or how poorly such laws reflect natural and/or divine law. Certain norms are considered unchangeable, such as the indissolubility of marriage. Catholic Church teaching on marriage, therefore, and the application and interpretation of that teaching in our contemporary world (as has been done throughout the centuries of Church history) must take cognizance of that which can change and that which cannot change.

Many people, even Catholics, don’t understand the difference between divorce and annulment in Catholic teaching. Canonically speaking, how would you explain the difference between them?

A civil divorce results from a decision, made by the parties to a marriage or by one of the parties, to end the marital relationship. A declaration of nullity—commonly called an annulment—is a declaration by a Church tribunal (court) and not the parties that a specific relationship between a man and a woman, ostensibly a marriage, never came into existence in the first place. The Church does not deny that there was a relationship between these two individuals but rather decides on the basis of evidence presented that this relationship was not that which the Church defines as marriage. 

The reason for such a declaration could be that the parties were obligated to marry before a Catholic priest or deacon and two witnesses and did not do so (and they did not request a dispensation from this requirement); an impediment could have been present (that is, some specific act or condition that prevents the parties from establishing marriage, such as arises when a man abducts a woman for the purpose of marriage or an ordained deacon attempts marriage); or true marital consent between the parties did not exist. For example, a couple who marry but the husband refuses to even consider having children or a couple who enter into marriage with the intention that neither needs to remain faithful to the other or that the marriage could end at any time at the desire of either party. The parties are consenting to establish some type of union, but not to marriage as understood by the Church.

In what ways is Catholic teaching on divorce, remarriage, communion, and annulment a matter of canon law only or also a theological issue?

I return to a couple of points which I have already made: canon law reflects theology and Church teaching. If an individual wishes to earn a canon law degree—the licentiate in canon law—he or she must have a theological and philosophical background, because such a background is presupposed in the study of Church law. And as I mentioned earlier, the Church has no authority to change divine and/or natural law; the Church teaches that the indissolubility of marriage is a matter of divine not human (ecclesiastical) law.

There are also many people who don’t understand the difference between civil law and canon law. How would you explain it to them?

The explanation depends on the meaning of the adjective “civil.” From one perspective, the majority of nations follow one of two legal traditions: the common law tradition, as in the United States and England, and the “civil law” tradition based ultimately on Roman law. “Civil law” here refers to a system of law in distinction to common law; in general terms, “civil law” is codified law and, for example, there is no precedent (stare decisis) whereas common law is not codified and is based on custom and, e.g., precedent. The civil law tradition finds its origin in Roman law; canon law follows that legal tradition.

From a second perspective, the most important and clearest distinction between canon law and other systems of law depends upon teleology: while civil or secular law aims, hopefully, at the organized well-being of its constituent members, Church law is at the service of the mission entrusted to the Church by Jesus Christ, the salvation of men and women. This spiritual dimension necessarily influences the law of the Church.

When you tell someone you’re a canon lawyer and they ask “what’s canon law,” what do you say?

I generally approach that question from an ecclesiological perspective. Lumen gentium explicitly teaches that the Church is both an organized society and the mystical body of Christ; the Church is both a visible assembly and a spiritual reality. This is in the incarnational principle: Jesus Christ is both God and human; the Church is both the Mystical Body and an organized society. Pope Paul VI warned against the dangers of dividing the Church as though one could differentiate between a “Church of the gospel” and a “Church of law.” To the extent that the Church is an organized society, the Church needs regulations to govern both its internal activities and its external relationships. But again, that visible and organized society (including its law) is ultimately a means to fulfill the Church’s spiritual purpose: the salvation of men and women.   

If we already have civil laws, why do we need canon law? How do they relate to each other?

When Saint Pope John Paul II promulgated (that is, established as law) the Code of Canon Law, he explained that the Code’s purpose is “to create such an order in the ecclesial society that, while assigning the primacy to faith, grace and the charisms, it at the same time renders easier their organic development in the life both of the ecclesial society and of the individual persons who belong to it.” In other words, the law is at the service of the divine mission entrusted to the Church. Secular or civil law does not aspire to such heights but rather aims at order within a particular society or structure. At times, the code gives recognition to civil law (such as that governing legal contracts), provided that law is not contrary to divine law or a law already exists in the Church regulating that matter. 

Besides the Code of Canon Law, we also have the Code of Canons of the Eastern Churches for orthodox churches which have returned to communion with Rome since the Great Schism and for Eastern churches which never broke communion. Although this Eastern code complements the Western code in some places, there are also differences. How does the Eastern code approach marriage and how does it differ in that respect from the Western code?

The Catholic Church (those in communion with the Bishop of Rome) consists of some 24 Churches sui iuris, one of which is the Latin Church and governed by the Code of Canon Law; the other 23 Churches sui iuris are governed by each Church’s particular law and by the Code of Canons of the Eastern Churches. All are equal to one another. A Church suiiuris is described in the Eastern Code in canon 27 as “a group of Christian faithful united by a hierarchy according to the norm of law which the supreme authority of the Church expressly or tacitly recognizes as sui iuris.” The first paragraph of canon 28 describes “rite” as “the liturgical, theological, spiritual and disciplinary patrimony, culture and circumstances of history of a distinct people, by which its own manner of living the faith is manifested in each Church sui iuris.”

In summary form, the one Catholic Church consists of 24Churches sui iuris—the preferred term; neither “rite” nor (definitely not) ‘uniate’ should be used in reference to the Eastern Catholic Churches—each of which has its own spiritual patrimony and manner of living the one faith. Therefore, the Code of Canons of the Eastern Churches takes cognizance of the commonalities existing among the Eastern Churches sui iuris as well as the uniqueness of each of these Churches.

The description of marriage in both codes reflects Church teaching on marriage; the Latin Code reminds us that the marriage between the baptized has been raised by Christ the Lord to the dignity of a sacrament (c. 1055). The Eastern Code states that the matrimonial covenant has been “established by the Creator and ordered by His Laws” (canon 776). Both statements reflect Gaudium et spes 48: God is the “author” (auctor, perhaps “originator”) of marriage with its values and purposes. In other words, God intended from the be ginning that men and women would enter into marriage with one other; among the baptized, this union as a sacrament offers the parties sacramental grace to assist them in fulfilling their obligations.   

More specifically, the Eastern Code includes (whereas the Latin Code does not) the diriment impediment of spiritual affinity (that is, the relationship between a baptized person and that person’s baptismal sponsor; canon 811). The Eastern Code also requires, for validity,  the sacred rite, that is, assisting at and blessing the marriage by the local hierarch, local pastor or priest. (Thus, a deacon cannot validly marry two Eastern Catholics or a Latin Catholic and an Eastern Catholic).  

Pope Benedict XVI made some minor changes to the language of the Code of Canon Law in a couple of spots, but he did so in separate decrees rather than by issuing a new edition of the book. While it’s impossible under current universal law to admit Catholics who are divorced and remarried outside of the church to communion until they get annulments, Pope Francis has reiterated they are not excommunicated and has hinted that a change in church discipline on divorce may be possible. If Francis were to authorize changes in canonical discipline on the subject of divorce and remarriage, allowing for a limited number of ecclesiastical divorces as in the Eastern Orthodox churches, how significantly would we need to alter the 1983 Code of Canon Law?

There are a number of distinct issues raised by your question. Yes, Pope Benedict XVI did amend the Code and I would suggest that such changes as well as those by Saint Pope John Paul II cannot be described as minor. One example: Pope Benedict through his apostolic letter Omnium in Mentem amended the two canons introducing the Sacrament of Holy Orders. He enacted these changes so that the Code would reflect better the theological teaching found in Lumen gentium 29 and in the Catechism of the Catholic Church (which itself had been amended by Pope John Paul II to convey more clearly the teaching of Lumen gentium). This demonstrates an earlier point I made: canon law reflects Church teaching. 

Excommunication is a penalty, specifically a censure. Except for a certain period after the Third Plenary Council of Baltimore, this penalty has not been applied to those Catholics who divorce and then enter into a second, civil marriage. Thus Pope Francis was reiterating a straightforward fact. But a penalty, such as excommunication, is distinct from the issue of personal responsibility in accepting and living the faith; those Catholics who divorce and then marry civilly a second time have chosen an action that contravenes divine law governing the indissolubility of marriage. Church teaching on the indissolubility of marriage is the issue that must be addressed, not simply a change in the Code of Canon Law.

Problematic is the phrase “ecclesiastical divorces as in the Eastern Orthodox churches” in as much as the theological understanding of Eastern Orthodox practice is not as straightforward as this statement might imply. For example, the Orthodox agree on the indissolubility of marriage and, to an extent, the Orthodox Churches may be said to “tolerate” marriages of the divorced under very specific conditions, as these churches would permit the remarriage of widows and widowers only under certain conditions. 

Finally, “until they get annulments” is problematic in that every marriage enjoys the presumption that it is valid. If one of the parties or both of the parties in a marital relationship request(s) a declaration of nullity, he or she or they must submit proof to overturn the presumption that their marital relationship is valid. 

For all of these reasons, potential changes in current Church teaching would require much more theological reflection, discussion and analysis. Depending upon the result of that analysis, the Code would then be amended to reflect any changes that might be made.

With the recent U.S. Supreme Court ruling that legalizes same-sex civil unions, American Catholics are starting to discuss and appreciate the difference between government-recognized marriage and the sacrament of matrimony as practiced by the church. From your perspective as a canon lawyer and sacramental theologian, how would you characterize the difference between marriage as a civil institution and matrimony as a sacrament?

Terminology is important; simply because a human law asserts a statement as fact does not necessarily make that statement true or honest. The sacrament of matrimony is, according to divine law, between a man and a woman. Recognition of equal rights within same-sex unions may be considered or judged by some as a positive development in secular law, but such recognition of equal rights cannot change the fact that such unions are not the same as the sacrament of matrimony.

A sacramental marriage, by the way, arises from two baptized people entering into marriage. The marriage of a Catholic and an unbaptized person may be graced by God but it is not a sacrament.

To clarify the separation between church and state on the topic of marriage, some Catholic leaders from both sides of the political spectrum are now arguing that we should “get out of the marriage business,” following the practice in countries like Mexico where priests conduct a church wedding and leave the couple to visit the local government for a civil ceremony. From your perspective as a specialist in ecclesiology, how would this new role of the church in U.S. society sit with canon law?

History is as important as theology. In Europe, the requirement of a civil ceremony prior to any Church ceremony was a direct attempt to limit the Catholic Church’s ability to exercise a spiritual role within society. Governments wanted to sideline the Church and therefore refused to give (or removed) recognition of Church marriage ceremonies conducted by presbyters. I am not certain that such a paradigm would be a positive one to follow.  

The Council of Trent mandated the form of marriage as a legal requirement and did so to counterbalance the dangers of clandestine marriages—that is, marriages which occurred only through the consent of the man and the woman, without necessarily having witnesses present.   

Changes in the form of marriage—such as requiring a civil ceremony first—might occur, but a full analysis of the underlying theological values in the theology of marriage must be done first.

Citing canon law, some critics of same-sex civil unions have called on Catholic schools to fire homosexual teachers who get married under the new federal law. Others have called on bishops to excommunicate them. Meanwhile, still others are wondering if pastors will allow same-sex Catholic couples to use their parishes for civil ceremonies. Since universal law (the 1983 code) doesn’t specifically address same-sex civil unions, to what extent is it now the responsibility of bishops—not school principals, religious orders, or the pope—to formulate particular laws which address new pastoral challenges in this emerging U.S. context?

You have certainly raised a number of complex issues in this question! For example, excommunication, as I mentioned previously, is a censure, a penalty. Certain penalties are incurred when the individual commits a particular delict (crime) in canon law—for example, a priest who violates the seal of confession. But in other cases, a bishop or other authority figure must utilize a procedure in order to penalize an individual. Allow me to cite two canons: Canon 221 §3 states, “The Christian faithful have the right not to be punished with canonical penalties except according to the norm of law.” And canon 1341 establishes: “An ordinary is to take care to initiate a judicial or administrative process to impose or declare penalties only after he has ascertained that fraternal correction or rebuke or other means of pastoral solicitude cannot sufficiently repair the scandal, restore justice, reform the offender.” In other words, to use a canonical penalty such as excommunication, certain procedures must be followed in order to act validly.

A second issue you raise, the use of Catholic Churches, requires an understanding of the purpose of such buildings. In summary form, canon 1214 states, “By the term church is understood a sacred building designated for divine worship to which the faithful have the right of entry for the exercise, especially the public exercise, of divine worship.” Therefore, any activity which occurs within the Church must be congruent with its purpose, divine worship and public liturgical celebrations. 

A third issue is particular law. The Code of Canon Law is universal law, that is, it applies to all Latin Catholics all over the world. Particular law is law which applies to a particular diocese or territory or area for a conference of bishops. Several considerations should influence the decisions of individual bishops in their response to these pastoral challenges. First, a bishop should aim for consistency throughout the diocese on major policy issues; in achieving this goal, his presbyteral council may offer him sound advice. Second, laws are presumed perpetual; therefore, a bishop may choose to establish guidelines or policy statements rather than laws because guidelines (as acts of executive or administrative authority, not legislative authority) are easier to change as circumstances change. Fourth, the laws of a diocese cannot be in conflict with universal law, that is, laws from a higher legislator.  Finally, as the supreme legislator noted, law in the Church should give priority to faith, grace and charisms; this is true for diocesan as well as universal law. Law should serve the community of faith in a positive way and, as the law requires, penalties may be needed but only after other means have been tried and have failed. There are only limited legislators in the Church—most often, Catholics experience either universal law such as the Code or particular law such as the norms of the diocese in which they reside. Proper law—the law governing religious institutes—pertains only to members of those institutes.

You have a lot of experience with ordinary Catholics through your roles as canon lawyer, dean of the canon law school at Catholic University, and Jesuit priest. What are some common misunderstandings you encounter among Catholics, either in the classroom or in the pew, in regard to canon law?

Canon law is a tool and as with any tool, it is only as good as the person who uses it. The prior code of canon law was only available in Latin; now the code is available in most if not all modern languages. That is good but at the same time a person cannot simply start reading the code and interpreting it as he or she wishes. As a legal document, based on the civil law tradition and ultimately on Roman law, one needs training in understanding, applying and interpreting the law.

And if an individual states, “You cannot do that, the law forbids it,” I suggest that individual is doing a disservice to the law and to the Church. The law might mandate certain actions or forbid other actions, but does so only for a specific reason or purpose—there are reasons underlying laws, and ultimately law serves the Church’s mission.

If you could tell every Catholic just one thing about canon law, what would it be?

In the intentionality of the lawgiver, law is at the service of the People of God and of the Church.     

As a Jesuit, you are rooted in the Ignatian spirituality of “finding God in all things.” Where do you find God in canon law?

I find God in the purpose (the teleology) of the law—law is at the service of faith, grace and charisms. If I am asked to provide canonical service to an individual, then I have an obligation to provide the best canonical advice I can, within the context of the Church’s mission and ultimate purpose, the salvation of men and women. And at times, I realize that I have done as much as I can with the tools at my disposal and I must put the individual or individuals involved in the hands of God through prayer. 

In both the Western and Eastern codes, what is your favorite canon and why?

In both codes, two canons establish the context for the exercise of the obligations and rights of the faithful: the obligation to maintain communion and the recognition that the common good at times must take priority over the individual. As Lumen gentium teaches, God desired to save men and women not as individuals but as a community of faith; maintaining communion and recognition of the rights of the community as a whole and as individuals reminds us that we are part of something greater than the individual apart from others. 

What have been some personal highlights of your ministry in canon law?

I requested permission for canon law studies because I believed and still believe that the best interpretation and application of canon law comes from a theological understanding of the Church first and foremost. In other words, canon law is not practiced within a vacuum or in isolation but within a specific ecclesiological vision. As we know, the code must follow the teachings of the Second Vatican Council, and the Council did not offer one ecclesiological perspective but several. Nonetheless certain principles have emerged from the Council that assist in articulating a renewed ecclesiology which in turn presents a context for understanding the role of law.

I have been able to assist individuals in various ways and that has been a blessing to me and, I believe, to them as well.

What have been some challenges in your canon law ministry?

I would say a misunderstanding of canon law from two perspectives: those who dismiss canon law as mere legalism and those who overemphasize the law as a means to threaten people. Neither approach is helpful; neither approach takes full cognizance of the role of law in the Church and how and why it differs from secular law. 

If you could tell Pope Francis one thing about the U.S. experience of canon law during his visit, what would it be?

Rather than speaking of canon law in isolation, I would wish to note that the Catholic Church in the United States is quite diverse while remaining within the communion of the Church. Unity is not uniformity, as indicated by the fact that the Catholic Church consists of 24 Churches suiiuris, including but not limited to the Latin Church. Such diversity can be a source of discomfort to some but also a source of grace and growth in the Holy Spirit.

Any final thoughts?

Thank you for this opportunity to offer my personal perspective on the role of canon law in the Church.   

Sean Salai, S.J., is a contributing writer at America.