A scandalous marriage

Disclaimer: I am not a canon lawyer or theologian and I cannot speak officially. Any errors or illogicalities in the below must be imputed to me and not the the law or doctrine of the Catholic Church.

The news that Boris Johnson and Carrie Symonds have married in Westminster Cathedral will strike many as an insult to the dignity of marriage, and to Boris’ previous wives and children. The news seems to make a mockery of the idea that the Church defends marriage, and it will be a source of pain to many Catholics, and spouses of Catholics, who have had to prove the invalidity of a previous marriage in a marriage tribunal. Today I want to offer a concise explanation of why this has happened. I will agree that the marriage looks scandalous, and I will show how it is the result of a misguided recent change in canon law; but I will also point out that the clergy at the cathedral were bound to follow the canon law, and to assume that Boris and Carrie were sincere in seeking a Church wedding.

The first thing to understand is that marriage is written into human nature by God, but realized in individual cases by means of law. Human children naturally need long and stable rearing: therefore marriage is written into human nature. But any one human marriage is realized through law, because a marriage is fundamentally a contract recognized by the community. So, for example, if I were stuck on a desert island with ten other people and no books, and I wanted to marry one of the women, then I could devise some ceremony that expressed all the essentials of marriage, I could have the community witness our exchange of vows, and I could thereby have a valid marriage. But if I tried the same in the U.K., then I would not have a valid marriage, because the U.K. prescribes other legal forms for marriage. Similarly, in some places people can validly marry at 16, in others, only at 18. The civil community has a right to regulate marriage by any reasonable laws.

Hence there are two aspects to most marriages: human nature which defines marriage in abstract, and the civil law through which marriage is contracted. Amongst Christians, there is also a third aspect: the Church. The Church has something to say about both the nature and the law of marriage. First, she holds doctrines about the nature of non-Christian marriage and of Christian marriage. St Paul himself taught us about the nature of Christian marriage at Ephesians 5:22-33, explaining that the relationship between a Christian husband and wife was (or should be) analogous to the relationship between Christ and the Church. As with all doctrine, today’s bishops have the authority to teach what the Church has always believed, no more no less.

Second, the Church legally regulates the marriages of her members, just as civil states legally regulate their marriages of theirs. We can see the Church doing this as early as 1 Cor 7:10–15. The Church claims that the bishops are the successors of the apostles, and that they still have a regulatory authority. The bishops cannot change (though they can tease out and precisify) doctrine, but they can change legal regulations. In regulating marriage, the Church always seeks to obey the local civil laws, unless they are evidently unjust (e.g. she does not consider herself bound to obey anti-miscegenation laws). But she makes her own laws for her members too.

In summary: the nature of marriage can be defined in abstract, but marriage is always realized through law. Non-Christian, natural marriage is subject to the law of the civil community. On a Catholic conception, the Church is a visible, Christ-instituted body with a legal jurisdiction; hence Christian marriage is subject to her law, too.

As this implies, the institution of marriage has to be defended on two levels: we need to understand marriage aright, but we also need to uphold the contract law through which each individual marriage is contracted. The Church has a very clear doctrine of marriage: marriage is written into human nature; a valid marriage is a lifelong exclusive contract open to the gift of children. Marriage between baptized Christians, furthermore, is a sacrament, fortified by special graces. Marriage can only be consummated by a non-contraceptive sexual act. If the will of one of the parties to marry depends upon his opinion that a valid marriage is dissoluble, then the marriage is invalid. Because of 1 Cor 7:10–15, the Church has the right, under very specific circumstances, to dissolve certain non-sacramental marriages in favour of Christian ones; but no human power (including that of the Church) can dissolve a valid and consummated sacramental marriage.

But the Church also has a thorough law of marriage, like any civilized community. It is in the application of this canon law to individual cases, that things inevitably get messy. (Possibly this messiness shows that the Church should not be in the business of legal regulation at all—as some protestants might say. On the other hand, the West’s civilized, formalized system of marriage grew out of the Church’s attempts to formalize marriage in the canon law; and besides, other bodies such as the Church of England also have a canon law of marriage. Indeed, before civil divorce was made accessible in 1857, the Church of England’s marriage law was much used and discussed).

Now, in Boris’ case, the key fact is that he was baptized in a Catholic church. In the Church’s view, the Church therefore has jurisdiction over him for the good of his soul: for it is terribly dangerous to be a baptized Christian, and yet to fail to practice one’s faith. This jurisdiction extends to regulating his marriages. The law of the Church says that every Catholic must marry in a ceremony approved by the Church, otherwise his marriage is invalid. Boris formed his previous marriages without permission; therefore they were invalid. Nevertheless, canon law provides that the children of invalid marriages are legitimate, provided that at least one of the couple undertook the marriage in good faith; hence Boris’ intra-marital children presumably remain legitimate. (Such marriages are ‘putative marriages’).

But there is a complication here. Between 1983 and 2009, canon law said that, if a baptized Catholic married without permission, then his marriage was invalid unless he had already defected from the Church by a formal act. However, for various reasons, this ‘unless’ caused great confusion, and proved unworkable. (There is a discussion of this point at Canon Law Made Easy1). Benedict XVI therefore removed it from canon law. From a Catholic point of view, Benedict had the legislative authority to make this change. He wasn’t changing the Church’s doctrine about the nature of marriage, but merely her legal framework for regulating it. Even so, his action was perhaps a mistake, and I hope that others would join me in demanding that the Church have a serious re-think about how to deal with the difficult cases in which a Catholic leaves the Church, marries, divorces, and then wants (or claims to want) to return to the practice of the faith via a new marriage.

Nevertheless, readers may still feel that I am missing the central question, the real scandal in this case. For Boris’ marriage does seem like a true scandal in the biblical sense—a stumbling block to one’s faith. It’s all very well explaining why, according to the letter of the law, Boris was allowed to marry, and how this can be shown to be reasonable in terms of Catholic ecclesiology. But the point is that the Catholic Church allowed an adulterer, a man one of whose partners had an abortion, an overall scandalous man to marry within his local church—which just happened to be an especially grand and significant one. Isn’t this an insult to his previous wives, and to the institution of marriage itself? Isn’t it offensive to those who have had to explain the invalidity of a previous marriage to a diocesan marriage tribunal, perhaps in intimate detail?

All I can say is this. Imagine you were a priest. A man comes to you: he says he is penitent; he claims to want to return to the faith; he says he wants for the first term to form a truly valid and committed Christian marriage to raise his young child in stability. Your law, which your Church must follow in order to be consistent and civilizing, says that his previous marriages were indeed invalid. Under such circumstances, it is very hard to refuse to help. Catholics have a legal right to reasonable access to the sacraments. It will probably not be your fault if the man turns out to be insincere: that will be on him. But what if he really is penitent, and you turn him away? Then that will be on you. As I say, there is also a small child, Wilfred Johnson, to consider. His parents’ past lives and children are not his fault, but his parents’ marriage could now achieve some stability for him, if for none of Boris’ other children. Well, he then is the lucky one of all the children—but that is not his fault either. Most of all, let us not rush to assumptions: perhaps Boris and Carrie really are penitent, and really are resolved upon a new, Christian, life. Boris, after all, is an intelligent and learned chap: it’s not at all impossible that the Holy Spirit has worked through his reason and led him to the faith by a slow process of conversation and study and prayer.

There is, it must be said, some wiggle room in canon law here. Canon law says that a bishop’s2 permission is required for the marriage of ‘a person who has notoriously rejected the Catholic faith’ or ‘a person who is bound by natural obligations toward another party or children arising from a previous union’. By implication, the bishop can withhold his permission in such cases. The second clause is there to prevent a person marrying if he has not made adequate provision for previous children or partners. The first clause is usually taken to apply to people who have acted as explicit enemies of the Faith. Nevertheless, If I had been been the Archbishop of Westminster—and such a thing I am certainly not, nor trained nor ordained to be!—then perhaps I would have thought hard about those provisions. Mindful of the scandal of the marriage, probably I would have permitted it on the proviso that Boris walk three times round the City of Westminster barefooted and hair-shirted, as a public sign of penitence. But then modern bishops are rather hesitant about things like that.

Indeed, this, for me, is the rankling point about Boris’ wedding. To allow a manifest public sinner to wed without having first undertaken public penance, is arguably a source of scandal. (Here one remembers the benevolent, salvation-orientated firmness of past ages’ bishops such as St Ambrose, who forced the Emperor Theodosius I to do public penance, and St Thomas Beckett, who stood up to the king). Public penance–a demonstration of definite reversion to the Faith–would also have provided some clarity for Anglicans, who have a right to know whether the Prime Minister–who formally recommends the appointment of C of E bishops–is now Catholic. Indeed, all voters have a right to know this: some old-school protestants might want to change their votes if Boris is Catholic. The extreme secrecy of the wedding was perhaps designed to minimize scandal, but to non-Catholics it may look suspicious.

Yet who can judge the individual case, except the men ‘on the ground’ who have had all the difficult conversations, and–what’s more–understood the PM’s unique security requirements? All one can say is that is that the clergy were in a difficult position, and that their decision to marry Boris and Carrie was comprehensible in the circumstances. It would be ungenerous for other Catholics to speculate about Boris’ and Carrie’s motives; if both have returned to the practice of the faith, then we must and will welcome them fully onboard the Ark of Salvation(3) to which the Holy Spirit has led us in our pitiful unworthiness. Yes, the clergy’s actions look appalling; but ultimately, priests cannot consider how something looks: they have to do what they can to serve all those who ask for their help. This may lead to absurdity; but sometimes in life, there is no consistent way to avoid absurdity. Law is messy; so is life.

1 https://canonlawmadeeasy.com/2019/09/26/why-cant-an-ex-catholic-marry-validly-outside-the-church/

2(or other ordinary’s)

3 (Other possible avenues of salvation available, but it isn’t a good policy to rely on them. See Lumen Gentium)