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Laying Bare the Thought Behind the Defense

by Tony M.

Most people paying attention to the Catholic world talking about the Pope’s apostolic exhortation Amoris Laetitia (AL) have heard that a document was published recently billing itself as a “correction”: the Correctio Filialis (CF), on which I commented earlier. This was put out by a number of lay persons, mostly theology types, and some priests. The list of signers has grown, at last count it was at over 200.

I would not like to get into the thick of all the complex points made in the Correctio, I want to charge in a different direction. Francis clearly had a ghost-writer helping him with AL, (which is standard, all popes get assistance in writing their major docs), a priest he elevated, Archbishop Victor Fernandez. Fernandez has now issued a defense of AL, here,
that in my opinion has the clearest and most distinctly problematic statement of the thought behind AL – or, of the thought behind erroneous ways of interpreting it. By coming from Fernandez, who both holds Francis’s ear and helped write the document, it confirms that those who found the ambiguous passages of AL troubling were not just making it up: the passages were written in such a way because they can be used to support an underlying position that is wrong.

Here is the critical part of the text, at length [with my emphasis in bold, Fernandez’s in italics.]:

Amoris Laetitia brings back a teaching of St. Thomas Aquinas [it does not, Fernandez is proof-texting in the way I indicated in my first post. TM] on the application of the general principles: "The more we descend to matters of detail, the more frequently we encounter uncertainty" (AL 304). Francis does not affirm that general moral laws cannot provide for all situations, nor that they are incapable of impeding the decision of conscience. On the contrary, he says that "[they] set forth a good which can never be disregarded or neglected." However, "in their formulation they cannot provide absolutely for all particular situations" (AL 304). It is the formulation of the norm that cannot provide for everything, not the norm itself. And this applies not only to positive laws, but even to our way of formulating the natural law in its various expressions. In this line, the International Theological Commission, within the Pontificate of Benedict XVI, stated: "Natural law could not be presented as an already established set of rules that impose themselves a priori on the moral subject; rather, it is a source of objective inspiration for the deeply personal process of making a decision" (International Theological Committee, “In Search of a Universal Ethic: A New Look at Natural Law,” Rome, 2009, 59.).

The absolute norm in itself does not admit exceptions, but that does not imply that its succinct formulation must be applied in every sense and without nuances in all situations. "Thou shalt not kill" does not admit exceptions. However, it raises this question: should taking life in self-defense be included within the term "killing" prohibited by the norm? Should taking food from others to feed a hungry child be included within the term "stealing" prohibited by the norm? No one would doubt that it is legitimate to ask whether these concrete cases are actually included within the narrow formulations of the negative precepts "Thou shalt not kill" or "Thou shalt not steal."

For this reason, it is also licit to ask if the acts of a more uxorio cohabitation should always fall, in its integral meaning, within the negative precept of “fornication”. I say, “in its integral meaning,” because it is not possible to hold that those acts in each and every case are gravely immoral in a subjective sense. In the complexity of particular situations is where, according to St. Thomas, ‘uncertainty increases.’ Indeed, it is not easy to describe as an ‘adulteress’ a woman who has been beaten and treated with contempt by her Catholic husband, and who received shelter, economic and psychological help from another man who helped her raise the children of the previous union, and with whom she had new children and cohabitates for many years.

The question is not whether that woman does not know that cohabitation with that man does not correspond with objective moral norms. It is more than that. Some claim to simplify the matter in this way, by saying that, according to Francis, "The subject may not be able to be in mortal sin because, for various reasons, he is not fully aware that his situation constitutes adultery." (This is what Claudio Pierantoni stated in a recent conference, very critical of Amoris Laetitia in Rome on April 22, 2017.) And they question him that it makes no sense to speak about discernment if "the subject remains indefinitely unaware of his situation" (Ibid.). But Francis explicitly said that "more is involved here than mere ignorance of the rule" (AL 301). The issue is much more complex and includes at least two basic considerations. First, if a woman who knows the existence of the norm can really understand that not abandoning that man – of whom she cannot now demand a total and permanent continence – is truly a very grave fault against the will of God. Second, if she truly can, at this point, make the decision to abandon that man. This is where the limited formulation of the norm is incapable of stating everything.

In any event, the specific and principal proposal of Francis, in line with the Synod, is not concerning the considerations on the formulation of the norm. Why then is this question part of his proposal? Because he calls for much attention to the language that is used to describe weak persons. For him, offensive expressions such as "adulterer" or "fornicator" should not necessarily be deduced from the general norms when referring to concrete persons.

But his emphasis is rather on the question of the possible diminution of responsibility and culpability. Forms of conditioning can attenuate or nullify responsibility and culpability against any norm, even against negative precepts and absolute moral norms. This makes it possible not always to lose the life of sanctifying grace in a “more uxorio”cohabitation.

Francis considers that even knowing the norm, a person "may be in a concrete situation which does not allow him or her to act differently and decide otherwise without further sin. As the Synod Fathers put it, ‘factors may exist which limit the ability to make a decision’" (AL 301). He speaks of subjects who "are not in a position to understand, value or fully practice the objective requirements of the law" (AL 295). In another paragraph he reaffirms: "Under certain circumstances people find it very difficult to act differently." (AL 302).

He also recalls that John Paul II recognized that in certain cases "for serious reasons, such as for example the children's upbringing, a man and a woman cannot satisfy the obligation to separate" (FC 84; AL 298). Let us note that St. John Paul II recognized that "they cannot". Benedict XVI was even more forceful in saying that in some cases "objective circumstances are present which make the cohabitation irreversible, in fact." (SC 29b).

This becomes particularly complex, for example, when the man is not a practicing Catholic. The woman is not in a position to oblige someone to live in perfect continence who does not share all her Catholic convictions. In that case, it is not easy for an honest and devout woman to make the decision to abandon the man she loves, who protected her from a violent husband and who freed her from falling into prostitution or suicide. The "serious reasons" mentioned by Pope John Paul II, or the "objective circumstances" indicated by Benedict XVI are amplified. But most important of all is the fact that, by abandoning this man, she would leave the small children of the new union without a father and without a family environment. There is no doubt that, in this case, the decision-making power with respect to sexual continence, at least for now, has serious forms of conditioning that diminish guilt and imputability. Therefore, they demand great care when making judgments only from a general norm. Francis thinks especially of "the situation of families in dire poverty, punished in so many ways, where the limits of life are lived in an excruciating way" (AL 49). In the face of these families, it is necessary to avoid "imposing straightaway a set of rules that only lead people to feel judged and abandoned" (ibid.).

I wanted to give you the core argument in full, so that you can see the entire tenor of thinking that is going on here.

First, Fernandez gives us a most difficult and sympathetic particular case, which I will expand with greater detail, adding more suppositions so as to give us a concrete situation in full: Let us say Jane and Phil were married in the Church, and then Jane was gravely abused by Phil. Let us assume also that given financial constraints and legal lack of support (laws that make it difficult for her to get out from under Phil’s abuse), she reasonably feels unable to independently leave the man and get a legal separation. Perhaps if she even tries she will be beaten and her life will be in real danger. However, along comes an ostensibly good man (?), Bob, (or at least one who rightly sympathizes with her plight and recognizes her inability to act by herself to leave Phil), who helps her decamp from living with the abusing husband, and gives her a place to stay and physical protection. Let us even assume (though with some pragmatic trepidation) that Bob initially did this without intending sexual cohabitation, at first, just out of the goodness of his heart, for pity’s sake. However, in the throes of relief from abuse, worry about her future, her admiration for the noble qualities of her rescuer, and constant close companionship, she falls in love with Bob and they start living ”more uxorio”, that is, living in the manner of husband and wife, a union of the whole life, including sexual union. Over time they then have 2 kids together. While Fernandez is silent about this, let us put the best spin available on this: Let’s also assume for the sake of the argument that she is subjectively confident (even ‘certain’, though the word carries moral baggage that is troublesome) that her marriage to Phil was never a true marriage, and that if the diocesan tribunal were to know all the facts they would be able to give a declaration of nullity. Hence, at least in her understanding, there is some room to debate whether her having sex with Bob can really mean adultery. Let’s accept her understanding, and allow that she has adequate subjective justification for saying that sleeping with Bob is not adultery, as she was never truly married to Phil. So, let’s sidestep that debate and simply discuss it with reference to fornication. And let us also assume that after 5 years or so, Phil gives up any intent to pursue his 'rights', Jane gets a divorce, and then she marries Bob in a civil ceremony. She does not attempt to get a declaration of nullity (perhaps she does not believe she can bring forward the kind of evidence the tribunal could use to determine that there never was a marriage with Phil), and knows darn well that the Church will not bless a marriage with Bob without it.

Let us admit that Jane can easily have very important deficits in moral capability to act freely in terms of her marital status with Phil. Long term abuse sets up psychological conditioning that could make her far less culpable for certain acts and effects than otherwise. For example, while a married woman naturally has important obligations for custody over her own heart, so that she does not willingly entertain thoughts that might lead her to be unfaithful, clearly that does not extend to refusing the help of a rescuer to get her out of severe abuse. And yet, that very rescue can create the conditions that lead to temptations of thought that become, eventually, enacted in falling in love with a man who is not her legal husband. So, the actual willing behavior of her being in love with Bob – to the extent it might have been avoidable for her - is (very likely) greatly diminished in culpability. And given the status of living in the same home with Bob (at least initially as financial necessity, and possibly for physical protection), once they are in love the unfolding story into actual acts of fornication may, also, be sufficiently diminished in culpability as to not represent mortal sin in its subjective requirement of “full consent of the will” (at least, in the first individual instances).

But Fernandez is NOT claiming merely that Jane may not be in a state of mortal sin because she has reduced consent of the will to acts of fornication. He makes much more important theological claims. In particular, that calling her act “fornication” is inappropriate. Why?

For this reason, it is also licit to ask if the acts of a more uxorio cohabitation should always fall, in its integral meaning, within the negative precept of “fornication”. I say, “in its integral meaning,” because it is not possible to hold that those acts in each and every case are gravely immoral in a subjective sense.

[By the way, we are not going to pass by in silence the shabby rhetorical tactic – so symptomatic of modernism – of pretending to present a “reasonable question” for discussion, when what you are really doing is making a claim without discussion. “It is also licit to ask” is not, here, meant to pose a question that the author will then explore at length and then come to his reasoned answer. No. Here it operates to present his own answer WITHOUT the argument: at least in some cases, it is certain that it must not be called ‘fornication.’ We reject the rhetorical tactic as what it is: arguing in bad faith. It is necessary to keep in mind, at this point, that Fernandez has not provided any argument to establish the thesis in any way, and does not even attempt to argue it. In fact, whether “it is possible to hold…” while also holding to Church teaching is just what is at issue, and not yet answered in the affirmative. Nor are the prospect good. Further modernist weasel-words using the subjunctive, etc. are these:

a person "may be in a concrete situation which does not allow him or her to act differently and decide otherwise without further sin. As the Synod Fathers put it, ‘factors may exist which limit the ability to make a decision’ "

“does not allow him to act differently” and “limit the ability to make a decision” are used to weasel out of actually STATING the precise choice the person is in fact making, which is ‘fornication’. The sentence is claiming (none of this “may be” stuff), that for some people in a situation like this, they ARE NOT ABLE to choose not to commit fornication. The “limit the ability to make a decision” is meant to cover up the actual reality, the sheer supposition that they are unable to make a decision to refuse to fornicate. And this is supposed to be obvious proof that the act cannot be fornication.]

Let’s do a quick recall of basic moral theology, via Veritatis Splendor: there are 3 fonts or sources of the moral act that make it to be both a fully human act, and to be morally good or morally bad in its concrete reality: the object, the intention, and the circumstances. The object of the act provides the “species” of the act, i.e. what kind of act it is. The core teaching of VS can be summed up in these two theses: (1) We must not do an act evil in its species, even if it is good in its intention or its circumstances. This is an absolute moral principle that applies for every individual act in its concrete reality. (It is not one of the moral precepts like “thou shalt not kill”, it is a meta-rule more basic than the precepts: it does not operate to tell us “do this” or “avoid that”, it is an interpretive principle of how the precepts and moral norms work.) (2) An act is determined in its species by the object of the act, not by the other two fonts – not by the two fonts of intention or circumstances.

I say, “in its integral meaning,” because it is not possible to hold that those acts in each and every case are gravely immoral in a subjective sense.

Fernandez would seem to be saying that because the guilt of a grave sin cannot be imputed to Jane insofar as her subjective condition – due to the circumstances – then the act isn’t even fornication.

The woman is not in a position to oblige someone to live in perfect continence who does not share all her Catholic convictions. In that case, it is not easy for an honest and devout woman to make the decision to abandon the man she loves, who protected her from a violent husband and who freed her from falling into prostitution or suicide. The "serious reasons" mentioned by Pope John Paul II, or the "objective circumstances" indicated by Benedict XVI are amplified. But most important of all is the fact that, by abandoning this man, she would leave the small children of the new union without a father and without a family environment. There is no doubt that, in this case, the decision-making power with respect to sexual continence, at least for now, has serious forms of conditioning that diminish guilt and imputability.

The best spin I can put on Fernandez argument is this: In Jane’s initial circumstances (grave abuse), she rightly had a reason to come into Bob’s orbit (i.e. living with him and under his protection and care) and it cannot be considered an imputable (culpable) offense against God that she fell in love with Bob. She felt (subjectively) that she ought to be free to marry Bob, because her ‘marriage’ to Phil never was a real marriage. Thus, given her morally non-culpable state of being in love with Bob, and her ‘understandable’ belief that she ought to be free to marry Bob, her attempted (i.e. civil) marriage to Bob occupies a kind of “subjectively real” status for determining her other moral acts, such as, of course, sleeping with him: it isn’t “fornication” insofar as she is “married” to him, and that (civil) marriage “subjectively speaking” is “real” for the purposes of deciding the nature of her actions.

But this makes no sense at all, and is completely contrary to VS, to Aquinas, and to doctrinal teaching. For a mortal sin, the three conditions are (a) grave matter; (b) awareness of the wrongness of the act; and (c) true consent of the will to the act. A person’s committing what is objectively the grave sin of fornication (i.e. grave matter) can result in his being not imputed with the grave guilt of mortal sin due to a defect in knowledge or in consent, which are subjective elements affecting the imputability of guilt. But Catholic teaching never allowed for the notion that defects in consent which reduce guilt could change the nature of the act, which is determined by its species, and which is based on the object of the act.

Traditionally, the remote intention of the act (the second font of morality for the human act) is considered to be a “subjective element”. But if the subjective elements of intention can alter the species of the act, then ultimately the morality of the act depends on two fonts of morality, and it would be nonsensical to say that an act is evil in regard to its object if its object were to be rendered good in virtue of the good intention and circumstances.

Let’s take the particulars. A complete act of sex is fornication if the parties know they are not married, if the act as they understand the choice to have sex includes "I am not married to the other person". That’s the species.

Since she got a civil divorce from Phil and married Bob civilly, (presuming she knows _that_ the Church calls the second marriage not a marriage – for why else did she get a civil marriage instead of the Church’s blessing?), what is her understanding of her relationship to Bob? If she thinks that “the Church is wrong, I am not married to Phil because he abused me” then she misunderstands what marriage is. If she thinks “I was never married to Phil and therefore I was free to marry Bob”, she might even be right in an objective sense, but she has no validation of her belief by the Church. In any case, the fact that she got a civil marriage to Bob and not a Church marriage means that she knows the Church does not agree that she is married to Bob, indeed, the Church says that regardless of whether she is actually married to Phil or that so-called marriage was always null, she cannot be actually married to Bob without having followed canonical form. I suppose that one could say that “she repudiates the Church’s conclusion” (on whether she has to get an annulment and get the marriage with Bob blessed by the Church in order to be married to Bob), and therefore she might really think that she can marry Bob...even without the blessing of the Church…but it hardly helps the state of her soul to replace fornication with heresy or apostasy. Let’s avoid heresy and apostasy, and stick to the notion that she recognizes that the Church says she is not married to Bob as being “the rule” that tells her whether she is married, in which case she is AWARE of her bedroom antics being “having sex without being married to Bob”, i.e. fornication.

The critical factor is that her psychological conditioning from abuse and grave need of a rescuer / defender may well affect her understanding of whether she “is married” to Phil, but it should have no bearing on her understanding of what she is doing as trying to marry Bob absent canonical form. She knows ABOUT getting the Church’s assent to marriage (that’s why she got married to Phil that way), and she declines to worry about it with Bob. Her mental state about Phil is not her mental state about what it takes for her as a Catholic to get married to Bob. That she WANTS to be married to Bob because he is a “great guy”, because he rescued her, and because they are in love, does NOT constitute psychological basis for her thinking that she can achieve a real marriage with Bob without canonical form. That is, not without her habitually telling herself that the Church’s rule requiring canonical form is wrong or irrelevant – which hardly constitutes the necessary condition of invincible ignorance to achieve non-culpable status for trying to marry Bob civilly and then living with him without a real marriage. To put it succinctly: being abused by Phil does not create canonical form for marrying Bob. It does not provide exculpable reason for Jane to think she achieves a marriage with Bob without asking the Church’s blessing. Nor does any other factor, and she has no subjective or objective reason for understanding her behavior in bed with Bob other than as “having sex without being married to Bob”.

Therefore, the species of the act she engages in is fornication.

Fernandez wants to represent that the fact that she has 2 kids with Bob, and that she feels she cannot stop granting him sexual favors when “he isn’t even Catholic” are grounds for some kind of alteration in “what she is doing”. That fails, also.

For the first, the fact that kids came later can hardly be grounds for what she thought she was doing at first. At first she had to know that what she was doing constituted “having sex without being married to Bob”, which is fornication. How can the arrival of kids CHANGE the nature of the acts that she keeps on consenting to? Somehow, the obligation to the children does it, to keep them with their father meant that continuing to have sex with Bob was not fornication. Why?

Because it would be unconscionable to continue to live with Bob but not have sex with him, when “he isn’t a practicing Catholic.” Because (as Fernandez. puts it)

The woman is not in a position to oblige someone to live in perfect continence who does not share all her Catholic convictions. In that case, it is not easy for an honest and devout woman to make the decision to abandon the man she loves, who protected her from a violent husband and who freed her from falling into prostitution or suicide. The "serious reasons" mentioned by Pope John Paul II, or the "objective circumstances" indicated by Benedict XVI are amplified. But most important of all is the fact that, by abandoning this man, she would leave the small children of the new union without a father and without a family environment. There is no doubt that, in this case, the decision-making power with respect to sexual continence, at least for now, has serious forms of conditioning that diminish guilt and imputability.

But again, (according to Fernandez) it is the gravity of her situation, and the severity of the conditions, that mean that her act CHANGES from fornication to something else. He wants to make it so that the subjective considerations in her mind – namely, that she seems to imagine that she owes to Bob to give him a lifetime of sex for his sheltering her – changes her act from fornication to something else.

Leave aside why it matters if Bob is “practicing” if he is Catholic – shouldn’t she say something about his selfish desires if he is a Catholic but not practicing? And besides, JANE is, also, not a practicing Catholic either, so why is Bob’s practicing status important? Never mind, let’s assume that Fernandez meant that he wasn’t even Catholic, and the "practicing" was a stupid mistake.

So, Bob rescues Jane from ‘hell’, a husband who wants sex and thinks that gives him the right to abuse her. Now, years later, Jane realizes that she should never have entered into a sexual relationship with Bob without marriage, and wants to stop the sexual relationship because they aren’t married, but she is afraid that if she says “no”, that Bob…will abuse her? Is that what she fears? Can’t she use the fact that initially Bob recognized spousal abuse when he saw it, as a starting point for the discussion she has to have with him?

Or suppose that Jane imagines that she owes Bob sexual satisfaction, and that she believes that she was never truly married to Phil. Why, then, does she not pursue the annulment that she ought to be able to get (if she is right), and then marry Bob in the Church? Is it that she thinks that she has “no right” to ask Bob to wait that long – a couple of years? Engaged couples wait that long all the time. Is it that she thinks that she can’t get the annulment, maybe because she went to a priest and he explained that her imagined reasons are not valid reasons? Then why does she still consider herself to have never validly been married to Phil?

Or: suppose that she wants to say “no” to Bob, but she is afraid of Bob then deciding to not continue to act as her husband in other ways. Is she afraid that Bob will start acting like what he REALLY IS, i.e. not her husband? Why then, is she afraid that Bob will not continue to act as the father of her children, which he REALLY IS, also?

Or: suppose that what she fears is that Bob will use her past and her kids as a ploy to demand sex from her even though she doesn’t really want to have sex with him now that she realizes that she ought not. The term for a situation where a man forces a woman to have sex with him on the basis of pressure (threat of evil) applied to her or other parties, and the woman complies unwillingly, is “rape” (or some other species in the same genus). Does she want to continue to submit to rape “for the sake of the children”, indefinitely? Alternatively, the term for a woman who willingly complies with a man who asks for sex outside of marriage on the basis of some favor he is willing to bestow is “prostitute”. Does Fernandez want her to become Bob’s long-term prostitute out of gratitude for saving her from a life of…prostitution?

Let us not call too much attention to the phrasing in which Fernandez calls Jane “an honest and devout woman”, at least, not after laughing about it uproariously for several minutes. “Honestly”, if she wants to be an honest woman, she should insist that Bob do the right thing and make an honest woman out of her, she should GET that annulment, and then demand Bob marry her if he wants sex. And as for “devout”, one wonders just what kind of devotion he has in mind. I suppose she might be devoted to Bob, but is it too much to ask that a bishop keep in mind the notion of being devoted to God at the same time? But I am sure it was just a throw-away phrase, so let’s just throw it away: She is neither honest nor devout.

The assumption built into Fernadez’s line

The woman is not in a position to oblige someone to live in perfect continence who does not share all her Catholic convictions

is fatally flawed from a Catholic standpoint. Fatally, horribly, and BLATANTLY flawed. Whether she seemed to give a promise to Bob of granting sex, in a civil marriage, she never did make a _valid_ promise of that nature – for she could not validly promise that to Bob outside canonical form. And having sex with him, even for a long time, does not create such an “obligation” to continue to sin, it creates an obligation to STOP and repent. Hence Fernandez puts the obligation on the wrong side of the line. There is no obligation that she satisfy Bob’s desire for sex, Bob and she ALWAYS HAD an obligation to live in perfect continence as long as they were not married.

One might suppose that if Jane never told Bob that she was Catholic, and that she was not free to marry him, then Bob might have assumed (in a civil marriage) that he was really marrying her. First of all, not many people are completely unaware that Catholics treat marriage as a matter of Church involvement. Bob has (at a minimum) an obligation of due diligence to AT LEAST CONSIDER whether she is free to marry from the standpoint of the Church. He doesn’t get brownie points for being “nice” to her by not even asking.

Secondly, Bob doesn’t have a moral right to have Jane be “not a Catholic” if it is inconvenient to him. She didn’t promise that, and he had no right to demand that. If she came to her senses after 5 years and said “I knew all along that I am not married to you, Bob, because that’s what my Church says”, in (civilly) marrying a Catholic he willingly submitted himself to a false relationship with a Catholic. That she treated him shabbily is true, but does not change the nature of their relationship and that it was wrong of her to do what she did. And Jane, without abjuring her Catholic faith, cannot say that she has an obligation to him that is contrary to the Catholic teaching on marriage, an obligation to give him sex outside of marriage. By setting up his “not in a position to oblige someone to perfect continence”, Fernandez sets up an opposition between Jane’s (pretended) “obligation” to Bob and her (true) obligation to God and to her own human nature and person made in God’s image. Invalid presuppositions. Fernandez is trying to construct a scenario where Jane imagines that she bears an obligation to Bob that she simply does not have. And any priest she goes to in order to discern her situation must educate her to that truth: she does not have that so-called obligation. If she then holds on to it, that is not due to exculpable ignorance.

Also, given that all Jane truly is being expected to do is to act on her (already existing) knowledge that she is not married to Bob, by not sleeping with him, the “obligation” she should be expecting of Bob is an obligation he owes her anyway and that she ought to _think_ that he owes her: to respect the integrity of her moral person (and his own, of course). If she says to him “but we are not married, Bob”, then he is free to get a civil divorce from her and seek a marriage with someone else: this is not an “obligation of perfect continence” forever.

If Jane and Bob had truly gotten married, and then Jane was in a terrible accident where she could no longer have sex, Bob would be under an obligation of “perfect continence” until her death or her (miraculous) recovery of health. The nature of the marriage vows, “for better and for worse”, do not guarantee “sex for life”. There is no escape clause if you aren’t getting enough sex. There is no escape clause for an innocent spouse if the other spouse abandons her and takes up with a floozy. The “obligation to perfect continence” is really an “obligation to due chastity”, which is valid and applicable to all persons in all their conditions: every teen and young adult before marriage has an obligation to perfect continence; every widow remaining unmarried has an obligation to perfect continence; every single person who has not met the right partner has the same obligation; every priest and nun has the same obligation – but for life. Bob is not being picked out for special torture. Nor is this a “Catholic” thing, it is natural law and an obligation on everyone. Jane has every right to demand Bob’s adherence to the natural law.

But most important of all is the fact that, by abandoning this man, she would leave the small children of the new union without a father and without a family environment.

But by NOT abandoning this man, (or, better, by not seeking an annulment from Phil and then a real marriage with Bob), she has left her small children in the fraudulent environment of a “family” that is not a true family, she has given bad witness to her kids on the importance of marriage and vows and obedience to the Church and putting God before all else. She has refused to trust God, and relied on (a) man instead. She has placed worldly good before eternal good. She has damaged her own children’s grasp of the nature of man and the natural law.

[*Empirically speaking, at least in this country, millions of married couples with children have gotten divorces and “provided for” the welfare of the kids by mutually worked out arrangements of care and custody. While doing something along these lines would be hardly ideal, neither would Jane be continuing to cohabit with someone not her husband, and neither is pretending they are married beneficial to the kids. One wonders what the rate of divorce is in Argentina, from which Fernandez hails, and how they handle custody – presumably the woman always gets custody, going by his unstated assumption. The right thing to do is for them to stop living as husband and wife until she can get an annulment from Phil. If they can in any way achieve separate living quarters, such as in adjacent apartments, while both remaining in the kids’ daily lives, this MEETS her objective of taking care of the children. If they cannot, then their living as brother and sister within the same home still satisfies the need to take care of the kids. The presumption that a man and a woman cannot be asked to live alongside each other without sex is built into Fernandez’s analysis, and it is absolutely contrary to Catholic doctrine. In fact, the marriage vows, “for better and for worse,” include the possibility of situations where they are morally obliged to be continent anyway, such as severe health problems (e.g. if one gets AIDS, or if one cannot physically engage in sex). Fernandez simply doesn’t seem to believe in the marriage vows.

Moreover, in probably about half of the situations like Jane’s, Jane and Phil would have had a kid or two before she left him. What about taking _those_ kids away from their father? While it is obviously true that raising children away from their father is less than ideal, so is raising children with an abusive father. At some point, the prudential determination has to weigh the goods and evils to be foreseen, and decide whether staying with the father is better or worse. But in any case, living with Bob as brother and sister because he is the father of the children Jane had with him is better than living with Bob as if married when she is not. If Bob simply will not live in peace with that choice, then living with him is worse for Jane and for her children.]

Last point: it appears that Fernandez is mendacious. Well, let me qualify that: he uses a pair of quotes with such an abandonment of the true and necessary context that their use amounts to a falsehood. They are from JPII and Benedict:

He also recalls that John Paul II recognized that in certain cases "for serious reasons, such as for example the children's upbringing, a man and a woman cannot satisfy the obligation to separate" (FC 84; AL 298). Let us note that St. John Paul II recognized that "they cannot". Benedict XVI was even more forceful in saying that in some cases "objective circumstances are present which make the cohabitation irreversible, in fact." (SC 29b).

He presents this as if the two popes were permitting sexual cohabitation, but this is exactly NOT what they were saying. Rather, they were permitting (when impossible to reverse the living arrangement) NON-sexual cohabitation, i.e. as brother and sister:

Finally, where the nullity of the marriage bond is not declared and objective circumstances make it impossible to cease cohabitation, the Church encourages these members of the faithful to commit themselves to living their relationship in fidelity to the demands of God's law, as friends, as brother and sister; in this way they will be able to return to the table of the Eucharist, taking care to observe the Church's established and approved practice in this regard.

The Church’s approved practice in this regard is that they receive communion only with scandal removed. For example, communicating not in Mass but in the sacristy after Mass, having first committed to living as brother and sister. There is no excuse for this travesty of quotes. None at all. Fernandez must have known he was mis-using the texts - either that or he is an ignorant bumbler and has no right to be spouting his opinions.

In practice, it seems that Fernandez thinks it is unconscionable to subject Jane to the onerous burden of living with Bob as brother and sister, and with the (apparently just as objectionable) burden of asking the pastor for communion after Mass, or going to a parish where they are not known. It is not that such a burden is hard and we cannot expect her to succeed perfectly, it is (in his world-view) that such a burden is not even acceptable to consider. If Jane and Bob come to Fernandez for discernment of their situation, he would NOT inform them of any obligation to observe the moral law on chastity.

Why? Because Bob has a right to sex, (and so does Jane, reading between all those lines of Jane’s (false) concern for Bob) because sex is a ‘sacrament’ more important than the Holy Eucharist. Because the civil “marriage” must be viewed as creating real marital obligations based on subjective desires even though the Church has insisted for many centuries that it does not. Instead of looking for healing with the Church’s sacraments, Fernandez looks to healing with sex, which is why he wrote the grotesque book “Heal Me With Your Mouth: The Art of Kissing” in 1995. This, it would seem, is the root perspective behind Fernandez’s arguments. Sex. Must Have Sex. Nothing is allowed to stand in the way.

This is the mentality behind the "defense".

Comments (15)

That abuse of JPII and Benedict is really...slimy. He *must* know he is misrepresenting their thought. Ick.

If a couple in the situation you describe is obligated to live as "brother and sister," how do they make this known to other people, esp. young people, so as not to cause scandal? Presumably other people *think* they are having sex, because other people think of them as civilly married and just assume they are living as husband and wife, given outward appearances. If they don't take steps to correct this, they're setting a bad example. On the other hand, it would obviously be highly embarrassing to go around telling everyone you meet, "Okay, so I'm divorced and civilly remarried, but I'm Catholic, and I now think it would be wrong for me to be having sex with my second civil husband, because I haven't got an anulment yet, so we're living as brother and sister. Just to let you know."

First, you don't have to tell "everyone you meet". You do the following things:

You get a civil divorce. Change names back.
You get separate bedrooms. Preferably, have one live next door, but that's pretty hard.
You get separate bank accounts.
You separate other finances - credit cards, cars, etc.
You never kiss and snuggle up. Physically, you treat each other as mild friends.
You take separate cars to functions when you are not bringing the kids - at least some times.
You repeatedly, visibly, publicly, notably ask each other about scheduling, whether he would be willing to do X, will she consider doing Y? Don't take any of that for granted.

In short, you unravel the "union of the whole life". You treat each other as belonging to separate households - that just happen to work closely.

For the 3 to 4 dozen families that you know closely enough that they will be very puzzled about what all of the above means - you tell them "we have gotten a divorce because we know better now, and although we are still living under the same roof to take care of the children we do not live as a married couple." You tell them once, and let that be it - new people can just find out about it the same way people have always found out - by observing, by asking others, etc. When you don't call each other "dear" and "my better half" and you introduce the other by stating his or her last name distinctly, that leads people in the right direction.

I have to admit that sounds pretty painful for the kids, and you'd have to explain pretty explicitly to the older ones. I have no idea what one would say to the little ones.

I agree it is pretty painful. That's a pretty good reason not to get into that situation. But it's not REALLY more painful than a couple who gets a divorce because they can no longer live with each other's failings - but they still have to work together for the kids. The kids are still subjected to the painful "no, we are not married any more, but yes, we do really love you..." and all the other heartbreaking stuff for kids. You don't have to go into detail about why you got the divorce.

It is less harmful than waiting until the kids are 20 and then telling them "oh, no, the Church does not consider us married. We have been receiving Holy Communion all these years to help you think everything is OK, even though we know we are living a lie." The truth does usually come out eventually and then the only other option is to INSIST that the Church is completely wrong, "we really are married in spite of the Church's constant teaching", which amounts to either heresy or apostasy.

Tell me if I am wrong, but my impression is that when you adopt a little girl, you don't wait until she is 20 to tell them "you're adopted, all those comments about who you look more like was just smoke and mirrors". You tell her all along, gently, carefully. Generally withholding the information that "yes, your biological mother terrible made a mistake and slept with a guy that she wasn't married to...", not because it's shameful to the child but because the child doesn't need that information.

Sure, but if the couple has been making a family all along (a real family) for their kids, and *especially* if they have hope of there being an annulment and of being able to remarry canonically, and if there are no other reasons (such as abuse, etc.) for separating, one would like to think that there would be a way to stop having sex without literally civilly divorcing, separating finances, separating their lives, etc., and telling their kids that they are getting a divorce. Kids deserve a family in which mom and dad are together, not in which they have totally separate households. The pain of divorce comes in part from the family breakup, even if it is amicable. Moreover, in a healthy family, mother and father model male and female gender roles and a healthy male-female relationship, aside from how often or whether they are having sex. All of that would be possible in some of the other cases brought up by analogy--e.g., if there were health problems making sex impossible. Obviously, the problems there arise both from issues of scandal and from issues of temptation. If you're still thinking of yourselves as husband and wife and presenting yourselves as *loving each other* to your children and keeping the family together, the temptation to consummate the relationship sexually is greater. But it has to be acknowledged that breaking up the family as much as possible by divorce, etc., is itself going to do damage to the kids and deciding prudentially if it's possible to thread the needle of telling them the truth (esp. the older ones) about your not being man and wife in the eyes of God *for now* (though you're hoping that will all get sorted out in a couple of years), not having sex, but also not subjecting them to the confusion and disruption of an actual divorce.

All that being said, you're certainly right about the thought behind the encyclical that Fernandez ghost-wrote. And his pretense that this isn't undermining long-standing Catholic teaching is despicable.

and *especially* if they have hope of there being an annulment and of being able to remarry canonically,

Sure, there will be some mitigating and extenuating circumstances that alter what is most prudent. If the couple really does have a chance to get the previous marriage annulled, then doing all that unraveling is probably not truly prudent, and just sleeping in separate bedrooms might be enough - along with frequent confession AND NOT receiving communion in front of the whole parish as if they were not in a problem situation. And not overtly and intentionally acting all snuggly and "married-like" in front of others, instead acting as a particularly reserved, prim and proper couple in the 1930's might have acted, for the interim period.

Moreover, in a healthy family, mother and father model male and female gender roles and a healthy male-female relationship, aside from how often or whether they are having sex. All of that would be possible in some of the other cases brought up by analogy--e.g., if there were health problems making sex impossible.

So, assuming that no annulment is probable: I think that presenting a picture analogous to "we are a brother and sister who adopted you and love you" would be, if not perfect, at least good enough. (Like in Anne of Green Gables). That's part of the "living as brother and sister". (And no, I recognize that it's not exact, that's why I said "analogous" - they really are the biological parents, and they should not pretend to have adopted the kids.) While they cannot directly model "married couple" dynamics, they can certainly model "adult male and adult female who love each other properly as non-spouses" behavior, which is not bad as a second choice. It is certainly better than a single-parent "family" where the father is seen twice a year or something.

I remember an axiom, "Hard cases make bad law". It seems today, in all areas, that axiom is turned on it's head. The left argues that all laws must be made based on hard cases. It's just bad logic and bad faith rhetoric. The whole idea is to manipulate emotions.

Kevin, I think you hit the nail on the head. In AL itself (but ambiguously), and Fernandez's defense (more clearly), there is this proffer of a notion that morel "laws" don't ever actually apply in real life concrete conditions, all they are is something like approximations of what you would usually do if you were a person of good will. I.e. more like a statistical average than an actual law. In that context, hard cases are what show that there is no law: because Jane is in a difficult spot, her knowingly sleeping with a man who is not her husband is not "fornication", and instead becomes "the best she can do." This is part of why Professor Josef Siefert called AL a "theological atomic bomb" - and promptly got fired from his chair at a Spanish university for doing so.

It isn't Catholicism at all.

Completely off-topic:

Don't you get tired of being Catholic (and, in general, Christian) in a time like ours? Because I'm more than fed up and exhausted. Every day comes with another chunk of bad news.

It's not only that the world becomes more and more insane. That would be bad enough. Nobody in 2000 years of Christian history has had to deal with something like that. Even Christian heresies (or Judaism or Islam or Buddhism) seem sensible enough when compared to the monster anti-Christian ideology we are dealing with.

It's not only that. It's the Church quickly becoming non-Christian, only a sect of the religion of the Left with some Christian language to sugarcoat it. We know that God is in control, but for the less mystical of us, it gets really desperate. For instance, I never thought I would see a Pope like Francis. Is this a valid Pope or sedevacantists are right? I never thought I was going to devote so much time to the concept of papal infallibility. We are in uncharted territory.

You fight your own flesh, you fight an anti-Christian world and now you have to fight the Church, even the Pope. Too much for a weak man like me. You speak with fellow Christian saying that X is wrong and they reply "But the Pope says that X is right! Who are you to say that the Pope is wrong?" When you speak with priests and even try to help them to fight secularization, they don't want nothing to do with it (when they are not openly hostile). They don't do anything and they don't want anybody to do anything. It gets very lonely. Only some people on the Internet like you seem understand the problem.

You guys seem bright and well balanced. How do you deal with this without getting emotionally exhausted? Could you share some tips? I would love to know about them.

Emporer, what you point out is a very real problem. It gets to me sometimes too, and I am not sure that there is a good solution, but I do have a few things that I would suggest.

First, there have been times in the past when the pope was terrible - sometimes when he had despicable morals, and sometimes when his orthodoxy left something to be desired. The Church weathered those times, so presumably (with God's grace) she can do so again. It must have been terrible for Christians at the time of Arian heresy, when so many bishops were heretics and when the pope was somewhat lax in stating the true doctrine. But God raised up Athanasius to help lead the way, and (eventually) clear up the nonsense. We regular folk just have to keep plugging away, and keep going to confession to get back on their feet when we fall.

Secondly, I suggest that you seek out, if you can, a local parish that says the old form of the Mass (the "traditional" Latin Mass, or the "Mass in the Extraordinary Form"), if you haven't already. Many priests who are prepared to say that mass are theologically and pastorally sound. Even if you only get there once a month, it can be a community of sorts to ground you and give you support.

You guys seem bright and well balanced. How do you deal with this without getting emotionally exhausted?

I think that the truly effective counter to that kind of exhaustion is a good prayer life, by which I mean time spend in meditation or contemplation with God, not saying specific prayers - i.e. time spent in friendship with Him, even if it is "just" sitting in front of the tabernacle and pouring out your worries. The nuns who belong to Mother Teresa's order, the Missionaries of Charity, insist that they cannot continue to provide assistance to those who are in such great need, except by setting aside considerable amounts of time every day for prayer. From this source they draw the inner peace and energy that allows them to take on the difficulties they face every day. Also through prayer you gain the ability to let the problems that are not yours to deal with alone, so that they do not drag you down. (I wish I practiced better what I preach, but I do try.)

That said, I have to say that we are living in one of the worst of times, and it should not be surprising that things seem difficult, they REALLY ARE difficult. In a recent interview with England's "Catholic Herald",


Cardinal Burke commented that "Perhaps we have arrived at the End Times." I don't want to be alarmist or jumping at shadows, but he points out some pertinent things to consider. Perhaps most significantly, the Bible tells us to expect "in those times" bad leaders even in the Church who will lead the people astray who are not observant and who do not bother to prepare themselves for the times of darkness. Based on such prophecy, and private revelations to various saints, and explicit teachings by saints such as St. Robert Bellarmine, it is not impossible for a Pope to be a heretic, or to attempt to formally teach error. I do not comment about whether Francis falls into that category. But it is impossible for any pope to formally teach heresy in an ex cathedra dogmatic teaching (because of the Holy Spirit who would prevent him), and all lesser statements by which he might attempt to teach heresy (such as under a form that would be part of the ordinary magisterium) would perforce necessarily be interpreted so as to not contradict all the prior magisterial teachings of the Church. By keeping to the faith as already revealed and taught from the time of the Apostles, we do shall not go astray. There cannot be a new teaching with magisterial authority that overturns prior magisterial teaching.

Oh, and as Fr. Zuhlsdorf has often said: don't read too much of the daily news and nasty blog entries. A small sampling is sufficient for the day unless you are doing research into a specific issue. Piling on the troubles in Malaysia and the evils in Rio and the persecutions in Syria and on and on will drag your attention away from where it needs to be. Say a small prayer for them and let it go, move on to something that is more permanent and uplifting.

I'm not Roman Catholic, just to clarify (I'm a low-to-medium-high Anglican), but if I were Roman Catholic (I know it's presumptuous to give any advice) one thing I'd definitely do is parish-shop. I know that some Catholics believe that that is wrong, not in a "mortal sin" sense but in some more vague sense--that not going to your nearest local parish somehow reflects a lack of faith in the validity of the Sacrament there, or too much individualism, or a Protestant attitude, or something. But very traditional Catholics have explained quite firmly (as Tony implies) that there is absolutely nothing "Protestant" about trying to find a faithful parish with a faithful, conservative priest, and indeed that a person's own shepherding and especially that of his children may make it imperative that he look farther afield than the closest parish to where he lives.

Actually, Lydia, this is a very good point. I had a discussion about this sort of thing with my parochial vicar (i.e. assistant pastor) back about 25 years ago, and have since had (relatively) confirming comments by other priests: There is nothing in canon law that specifies that a person must attend mass at his local parish.

Canon Law does provide that the pastor has definite obligations to the members of the parish, and those are (usually, except for "personal prelatures") determined by geographical boundaries. Everyone inside the boundaries belongs to the parish in terms of what the pastor owes to the people. But there is very little obligatory the other way.

Members of the Church are obliged to support the church, but there is no specification on how they are to do that. You can donate to your parish, or to the diocese, or to some other parish, or to the Vatican, etc. In strict justice, you do owe at least a _portion_ of support to the priests who say the masses that you regularly attend - this can be satisfied generally with as low an amount as 2% of your income - though you should expect to donate more to the Church as a whole. At 2% (as a general rule), the priests and parish should be able to function.

If you have children who will be receiving sacraments, you will run into some degree of difficulty if you try to get them in a parish other than the one where you are located. But not an insurmountable problem. The way the parochial vicar described it, you have a right to seek out spiritual support that is helpful to YOU, in the conditions you actually have. If that means you need a more "conservative" mass (i.e. one said following the rubrics, for example), you have a right to seek it. No pastor has a right to tell you not to go to some other parish for mass, (as long as that other parish is not a heretical sect). If you find a parish that you find is feeds your spirit what you need (and this is NOT the same thing, exactly, as "is more comfortable", if you need to be less comfortable with, say, lukewarmness), you have a legitimate reason to transfer most or even all of your activities to that parish.

So, here is what follows: say you have been attending St.Joe's, 2 parishes away, for 6 months or a year, and have been putting checks in the collection basket, and have shown up for other activities as well. Enough so that the pastor Fr. Smith at least knows your face. Go to him and tell him what's going on. Ask him if he wants to enroll you in his parish or not. He may be willing to do so, even though there are complications to it. Or Fr. Smith may say "on the books, remain a member of your current (geographical) parish, but you may consider yourself part of our parish family for most things." Either way, what you want to do is get him to be willing to work with you on sacraments for the kids. If he accepts you as a member of the parish, fine, it's (mostly) easy. If the other way, he may STILL be willing to talk to the pastor of your "home" parish and get that pastor to accept your kids getting the sacraments at St. Joe's. Or, at a minimum, to have your kids do CCD and sacrament prep at St. Joe's, and have the office tell your "home" pastor "yes, they did the preparation for the sacraments here at St. Joe's."

Even if St. Joe's is willing to take you on as a parishioner, there remains some red-tape-ish sort of problem with that, because there is no clear way for you NOT to be a member of the geographical parish. And the registry of the sacraments is always presumed to be up to date at your geographical parish. So, more than likely, even if Fr. Smith "enrolls" you in St. Joe's, you are all better off if he always sends official notification to your home parish of any sacraments for the kids. That way nothing falls through the cracks.

The only really difficult problem is if Fr. Smith simply won't work with you in any sense to solve the sacrament problems. And this is very unlikely - after all, you have basically told him that HIS parish feels like home to you. Even so, you can still go to your home parish and simply ASK the pastor "we have always felt like fish out of water here, and are much more involved in parish life at St. Joe's. Is it OK with you if Annie gets her First Communion there, if Fr. Smith is willing to allow it?" It hurts nothing to ask, and a fair number of liberal priests don't really mind. If he is OK with it, ask him for a letter signifying that approval, so you can present it to Fr. Smith.


Following your prompt the other day, and sorry the delay in getting back to you, I have now had a chance to read your take on ++Fernandez.

While it will not eliminate your concerns, I do think I can explain one aspect which you have identified as puzzling.

In essence, as I understand him, Fernandez discusses two different approaches to the question.

The first is his own personal view, which though he admits the Pope didn't accept it, he continues to think is licit to ask about. This view is basically a definitional argument - Maybe we can define some things out of the meaning of intrinsically evil adultery or fornication (as Aquinas does with theft vs a starving man taking what the need).

Now this argument basically does have the problems you identify - You can ask the question, but without making an actual case, it is a worthless suggestion. And his preliminary attempt at a case (adding dishonesty to the definition) certainly fails (it doesn't cease to be adultery if I tell my wife beforehand).

But given Pope Francis didn't endorse this approach in AL, as Fernandez himself admits, I think there is a good news story here. This view shouldn't be accepted, & the Pope rightly didn't. All good - Fernandez lost his argument with the Pope.

Fernandez then goes on to explain a second view, the one the Pope had him include in AL. For Francis, as Fernandez notes, fornication doesn't cease to be fornication. Francis thinks maybe we shouldn't call all who engage in it fornicators as it is mean, but it remains the grave matter of fornication (though potentially subject to reduced culpability etc).

The key take out being that this second view, the teaching of AL, doesn't play games the objective moral question (ie Fernandez's comments on those lines only relate to his personal view, not to the view he attributes to AL).

Scott Smith

Scott, thanks. I will have to review Fernandez' article to see if that helps me make sense of it.


I'm "the Emperor is naked" again. I have been through some very busy days in my life.

Tony and Lydia, thank you very much for your tips. I think I can practice all of them, except the Latin mass (I live in a small country with no Latin mass).

Lydia, I apologize for confusing you with a Catholic. Anyway, all Christians are united in these difficult times.


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