WHAT COULD GO WRONG?

By Philip C.L. Gray, March 2016

On September 8, 2015, Pope Francis significantly changed the way the Church handles cases of marriage nullity, commonly known as annulments. His motu proprio Mitis Iudex Dominus Iesus effected these changes in the Western (Latin) Church; Mitis et Misericors Iesus did the same for the Eastern Catholic Churches. It is important to note that the revisions only affect ecclesiastical laws having to do with procedures for hearing annulment cases. Acting as the chief legislator of the universal Church, the Pope used his power to alter ecclesiastical discipline. To be clear: He did not proscribe doctrine. He did not redefine marriage. He did not define a matter of faith or morals.

These changes in law take place during a time of rampant moral relativism that has imbedded itself firmly within modern thought and practice — including the thoughts and practices of clerics, religious, and laymen who catechize and influence millions of people. Oftentimes, this moral relativism is expressed in the Church by way of a negligence that encourages a coexistence with evil rather than affirmative action to denounce it. For example, what have bishops and priests done to decrease the number of divorces and encourage fidelity in marriage? Where was the outrage from American bishops over the Supreme Court’s recognition of same-sex marriage? What is the most affluent bishops’ conference in the world doing to address an evil that caused the destruction of Sodom and Gomorrah and was cited as a cause for the destruction of Jerusalem and the exile of the Jews (cf. Isa. 3:9; Jer. 23:14; et al.)?

The Historical Context

In the mid-eighteenth century, Benedict XIV was pope. The Protestant Reformation, the Counter-Reformation, and the defeat of the Ottoman Empire had occurred almost two centuries earlier. Catholicism was settling into a coexistence with Protestantism in Europe, and the Church’s influence in secular society was declining. Catholics were adopting Protestant views and values. Catholics married, divorced, obtained annulments, and remarried multiple times over short periods. The Pope was appalled. He lamented that many would go through three marriages, and some even six marriages, in a lifetime. The annulment process was easy. If couples agreed on the facts of their situation, they could obtain an annulment without the need for cumbersome bureaucratic processes. As the family goes, so goes society, and family life in the Catholic Church was on the verge of collapse during these years.

Benedict XIV acted decisively. In his bull Dei Miseratione (1741) he instituted new procedures and elements to the annulment process, including the appointment by the local bishop of a defensor matrimonii (defender of matrimony), whose job it was to defend the marriage bond itself in order to protect the institutions of marriage and the family.

Over time, these new elements had an instructive effect. By the twentieth century, it would be rare in Europe or in the Americas for anyone, including non-Catholics, to believe that the Catholic Church allowed divorce and remarriage. Yes, Catholics still had affairs and violated their marriage vows, but the Church’s clear position became an occasion for many couples to reconcile. In fact, both the 1917 and 1983 editions of the Code of Canon Law, in reflection and application of divine law, obligate pastors and couples to pursue reconciliation before an annulment — even if a separation or divorce has already occurred, and even if the marriage was invalid (cf. can. 529§1, 1676, et al.).

In 1972 the Holy See allowed what were called American Procedural Norms (APN) to be used experimentally in the U.S. The APN provided much the same procedures that Pope Francis’s revisions now provide: In most circumstances, only one judge need hear a case, there was no mandatory recourse to a second-instance review, and very short timeframes were established for the entire process so that cases could be completed within eight months. Many canonists and priests hoped that the APN would be introduced into the 1983 Code of Canon Law. But after more than ten years of the experiment, Pope St. John Paul II rejected them. The APN were considered a failure due to significant, negative effects on Catholic marriages and family life in the U.S.

What’s All the Fuss?

If you woke up and found a fire raging in your home, what would you take with you out of the house? Would you go for irreplaceable items that have significant meaning, or would you grab the latest newspaper? When the fire department comes, the firemen don’t throw fuel onto the blaze to give themselves more to do. They just do their job. It’s a simple fact: We protect what is important to us. Unfortunately, Mitis Iudex Dominus Iesus removes necessary protections provided by canon law. The world is burning the institution of marriage with the fires of hedonism (fornication, divorce, abortion, same-sex unions, etc.), and the Pope gives us an easier way to claim freedom from our spouses. Here’s how:

No automatic review: Reflecting a fundamental principle of the ancient system of (civil) Roman law, all affirmative decisions issued by a Church tribunal must be reviewed by a higher court and either ratified by that court or submitted to an ordinary examination at trial. This mandatory second-instance review is a check and balance intended to discourage subjectivity, collusion, and laxity in the exercise of justice in the Church’s judiciary. Many characterize this as an “automatic appeal.” It is not an appeal but an obligatory review intrinsic to this system of justice. Pope Francis has abolished this mandatory second-instance review for marriage-nullity cases.

Fewer judges: Canonical trials require a tribunal of at least three judges to issue a decision. This requirement also provides a check and balance in favor of objectivity and justice. The current Code of Canon Law allows conferences of bishops to allow a single clerical judge (deacon or priest) to issue a decision in marriage-nullity cases during the first-instance trial, though bishops are not obligated to allow only one judge. Second-instance reviews must retain three or more judges. Francis has regularized the use of a sole judge. With the abolition of a mandatory second-instance review, marriage cases will now be decided habitually by a single cleric.

Rejection of an appeal: Currently, a second-instance tribunal must follow a very specific process to determine whether an appeal made against a lower court will be heard. The initial decision to hear the appeal or ratify the lower court is given by a decree that explains the motivation of the three judges involved. The Pope has added the possibility of a second-instance tribunal to dispense from such a process and issue a rejection of the appeal in limine (literally, “at the gate”). This simply means that the head of a second-instance tribunal, or one properly empowered by law or delegation, could reject an appeal summarily and simply issue a letter to that effect.

Pope Francis’s intention is to limit the number of cases heard on appeal. As expressly stated in his motu proprio, a second-instance tribunal could reject an appeal in limine if it believes the appellant is abusing the right to appeal with an evident lack of supporting documentation. Another reason is termed instrumental appeal, meaning the appeal is intended to harm the other party by dragging out the process.

The new process: The diocesan bishop is the first judge of his diocese — that is, regardless of his training or background, every diocesan bishop, by virtue of his consecration and office, supervises the administration of justice in his diocese and may choose to serve as a judge in any trial conducted by his diocesan tribunal. Francis has now obligated bishops to act as sole judges in all fast-tracked cases within their respective dioceses.

The new fast-track process is “to be applied in cases in which the alleged nullity of the marriage is supported by particularly clear arguments.” Of note, supported by particularly clear arguments would apply in cases when both the man and woman in the marriage-nullity process agree to the fundamental facts associated with the claim of nullity. This is a departure from canon 1536§2, which does not allow a judge to arrive at moral certitude in favor of marriage nullity from the testimony of the parties alone.

A Canon Lawyer’s Analysis

In my opinion, these changes to the annulment process will prove harmful to the virtue of justice and diminish necessary safeguards that protect the sanctity of marriage and the family. Here’s why:

– Any legitimate and just system of law provides checks and balances against subjectivity, collusion, and any other element that might obstruct the execution of justice. For centuries, marriage-nullity trials have relied on the element of mandatory second-instance reviews, three-judge panels in the first instance, and the procedures used on appeal to safeguard objectivity and truth. Removing these elements without providing other checks and balances substantially alters the system of law and creates significant loopholes that allow unjust practices.

For example, I know of many cases in which a petitioner “bought” an annulment. In one case, I actually saw a letter identifying the reward to be given. In other cases, I know of judges who rendered decisions out of fear of reprisal by their bishop or the judicial vicar. More commonly, most tribunal judges I have encountered in the U.S. demand a lower threshold of proof to arrive at moral certitude than demanded by papal instructions and long-standing jurisprudence. In my experience, the facts surrounding the marriages in question often have little value. I have long used the now-removed elements to ensure objective hearings for my clients. The results have been staggering: More than ninety percent of the decisions issued against my clients were overturned on appeal. In some cases, corrective action was taken against tribunal personnel. Effective December 8, 2015, those safeguards no longer exist.

– My concerns about removing essential elements of a process apply also to the innovation of a fast-track process for particular cases of marriage nullity. This innovation is similar to certain elements of the APN and pre-1741 processes. It was the failure of those procedures to provide objectively for the protection of rights that led to their demise.

– The innovation of in limine rejection of appeals is disturbing. It is held as a matter of natural law that a person’s right to appeal is inalienable. I recognize that this innovation in the process does not abolish the right to appeal. I also understand that the implementation of law must be reasonable, and that unreasonable appeals should be rejected. Nonetheless, given the aversion of many American tribunals to evaluate the facts of a marriage-nullity petition objectively and comprehensively, I am concerned about how this will be done and about the motivations used to reject appeals.

Currently, in limine rejections of appeals are an element of the administrative appeal process at the Apostolic Signatura. However, if the Supreme Tribunal rejects a casein limine, the appellant has the right to demand a full hearing from that Tribunal’sCongresso. In other words, though the prefect or secretary might reject an appeal, the appellant can force a panel of prelates to review the case and issue a decision on the merits of the appeal. If such a safeguard is not provided in marriage-nullity appeals, this innovation — together with the loss of three judges and the loss of a mandatory second-instance review — allows for significant abuses.

In his motu proprio, Francis cites the example of “instrumental appeals” by non-Catholics who have already remarried civilly as a potential reason to reject an appealin limine. This means a second-instance judge must determine the appellant’s intentions for appealing and may dismiss the appeal without a hearing on the evidence. The potential for abuse is immense.

– It is important to note that most marriage-nullity cases in the U.S. are not currently contested — i.e., both parties seek the freedom to remarry and usually get what they want. The current process also allows for a rejection of an appeal, with minimal review by the higher court. Given the very high percentage of cases overturned on appeal and the ability of a higher court to reject an appeal in the current system, I wonder what value the in limine rejection would actually have in an objective process.

– It is also important to note that the Holy Father expressly intended to streamline the annulment process in order to provide for the salvation of souls. He wants people in irregular unions — the divorced and remarried — to have greater opportunity to reconcile with the Church and receive the sacraments again. Herein lies a significant problem.

Divine law intrinsically ties the salvation of souls to the truth (cf. Jn. 8:32). As noted by Pope St. John Paul II, adherence to and protection of the truth in annulment cases expresses true pastoral sensitivity. This sensitivity must be directed toward the truth, not toward granting the parties the freedom to remarry. This is true freedom: to recognize the truth of one’s circumstances and choose to accept the grace of those circumstances. If that means one’s marriage is null, the parties may remarry in the Church; but if evidence is lacking, they must gracefully accept the circumstance and either reconcile with each other or live a chaste life. Salvation of souls requires us to desire and pursue what is true, not to call true what we desire.

Where Do We Go From Here?

I am deeply concerned about how marriage and the family will be viewed and promoted in the wake of these changes. The disciplines of the Church are instructive, and I fear that these new disciplines will encourage a change in the perception of the Church’s doctrines. What is the solution? “I beseech you to contend earnestly for the faith once delivered to the saints” (Jude 3). Be faithful to the truth. Be faithful in your marriages. Do not be confused. We must reclaim the Sacrament of Holy Matrimony for what it is — the “primordial sacrament,” as Pope St. John Paul II put it. Matrimony is the only sacrament that existed before sin, and the only one that was not given as a result of sin.

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Philip C.L. Gray, J.C.L., is President of the Saint Joseph Foundation (stjosephcanonlaw.com; 740-937-2054), a nonprofit organization that assists the faithful in protecting their rights under canon law. This article originally appeared in somewhat different form in the foundation’s newsletter Christifidelis (vol. 33, no. 6; Nov. 4, 2015) and is reprinted with permission.