Sacramentality of marriage

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Chapter 2 Sacramentality of marriage

Canonical considerations

Development of c. 1055

The CIC/17, two canons dealt with the issue of sacramentality in marriage. In the introductory canons regarding marriage, the Code stated that marriage between two baptized persons was automatically a sacrament in c. 1012. The implication is that a valid marriage between Christians cannot exist without it being eo ipso a sacrament. Sacramentality appears to be an essential component of marriage, and capable of exclusion. In c. 1013, the essential properties of marriage are unity and indissolubility, and c. 1086, §2, when addressing the exclusion of “some essential property of marriage” notes that their exclusion by a positive active of the will invalidates marriage. However, when addressing error of law in c. 1084, sacramental dignity is list together with unity and indissolubility as elements that would result in the invalidity of marriage if a person was in error about one of these elements.66 Consent is vitiated when error that influences the will causes one of these essential elements to be excluded.67 The differences in c. 1012 and c. 1086, §2 beg the question: Why did the CIC/17 mention sacramentality (sacramental dignity) when addressing error of law but omit its listing when addressing exclusion? Is there really an incongruity? The evolution of c. 1012 of the CIC/17 into c. 1055 of the CIC/83 is indeed complex. Following the Second Vatican Council, which ended in 1965,68 was the establishment of a Commission for the Revision of the Code of Canon Law. 69 There were many committees (individually known as a coetus), personalities, and schemata that were presented, and their debates were recorded in the collective tomes known as Communicationes. By tracing these endeavors, one can see the mind of the drafters of the canons on marriage.
Between 1966 and 1973, there were seventeen sessions related to marriage,with the coetus on Marriage meeting for the first time in October 24-29, 1966.71 As a point of clarification, it was suggested by members of the coetus that the problem with the incongruity was not with c. 1086, §2 (on exclusion/simulation), but with c. 1084 (on error).72 They reasoned that term sacramental dignity should be removed from the canon.73 In 1975, the first Schema on the Sacraments was presented74 with no mention of sacramental dignity associated with the new formulation of c. 1084.75 Between February 1977 and February 1978, the coetus on Marriage76 met twenty-four times in five sessions to review comments and insights from the Roman Curia, worldwide conferences of bishops, and faculties of canon law, among others. In session 3, (May 16-21, 1977), 77 when matrimonial consent/error was again being discussed, it was recommended that the previous wording of the CIC/17 be restored. A vote was taken, and ended in a tie; thus the traditional wording was not restored.78 Discussion on norm 302, §2 on simulation was also discussed, but nothing was changed. While some well known scholars would disagree with this decision79 and argue in favor of including both error about sacramental dignity and exclusion of sacramentality in marriage, none were persuasive enough to alter the 1980 Schema.In 1981, a Relatio was published,80 which was an amalgamation of comments received. In the section of the Relatio on the error of law (c. 1053 of the Relatio), there is a reference to the Sacred Congregation for the Doctrine of the Faith and its insistence that the traditional wording be restored and that the same be done to the canon on simulation (c. 1055, §2 of the Relatio).81 However, at the Plenary Session of the Commission for the Revision of the Code (October 20-28, 1981), the phrase “or sacramental dignity” was again discussed, because of ecumenical sensitivities, particularly the lack of understanding of marriage as a sacrament by Protestants, and the publication of Pope John Paul’s Encyclical Familiaris Consortio in 1980.82 With an intervention from Cardinal Josef Ratzinger, who would become Prefect for the Doctrine of the Faith [and the future Pope Benedict XVI] within a month of the plenary meeting, a compromise was reached83 with a proposal that the words ‘or sacramental dignity’ be inserted into the error of law canon, where the doctrine would be expressed but only indirectly (Error concerning the unity or indissolubility or sacramental dignity of marriage does not vitiate matrimonial consent provided that it does not determine the will) but that the words not be inserted into the simulation canon. In this way, said Ratzinger, the doctrine is stated and stated clearly (in the error canon) but not in an offensive way that would create difficulties. … It was understood, in light of Ratzinger’s intervention, that either the phrase ‘marriage itself’ or the phrase ‘some essential element of marriage’ or the phrase ‘some essential property of marriage’ included sacramental dignity in a marriage of two baptized people; and so the doctrine that would be stated explicitly but indirectly in the error canon would be stated only implicitly, and so inoffensively, in the simulation canon.”84 With this compromise, the CIC/83 would maintain the traditional wording for both canons.

Declaration of Authorship
Abstract
Introduction 
Preliminary considerations of the Canon Law of Marriage in light of the teaching of the Church 
Chapter 1
1.1 Statement of the problem
1.2 Nature of sacramental dignity (c. 1055, §2)
1.3 Secular vs. the sacred: covenant/partnership 
Chapter 2 Sacramentality of marriage
2.1 Canonical considerations
2.1.1 Development of c. 1055
2.1.2 Historical – From Decretales of Gregory IX to through CIC/17
2.1.2.1 Inseparability of contract and sacrament for the baptized
2.1.2.2 Roman Law Perspectives on Marriage
2.1.2.3 Ex opere operato [by the ‘work worked’] as sacramental
‘automaticism’
2.1.2.4 Expansion of Tridentine term ‘marriage’ to ‘marriages contracted between the baptized’ (Gasparri)
2.1.2.5 Ius Vigens – CIC/83
2.1.2.6 Non-inclusion vs. exclusion
2.1.2.7 Nature of Simulation
2.2 Theological Considerations
2.2.1 Biblical – overview of Scriptural traditions
2.2.2 Patristic
2.2.2.1 Ante-Nicene – Basil, Gregory of Nanzianzen, John Chrysostom
2.2.2.2 Basil
2.2.2.3 Gregory of Nanzianen
2.2.2.4 Chrysostom
2.2.3 Post-Nicene – Augustine and Ambrose
2.2.3.1 Ambrose of Milan (338-397)
2.2.3.2 Augustine of Hippo (354-430)
2.3 Scholastic
2.3.1 Aquinas’ officium communitatis
2.3.2 Tridentine theology as explanation of Church policy and not of marriage itself
2.3.3 Developments in pre-conciliar Papal and Rotal Jurisprudence
2.3.4 Second Vatican Council and the Personalist Dimension
2.3.5 Post-Second Vatican Council: International Theological Commission and Familiaris Consortio
Chapter 3 Developments
3.1 Definition of sacrament constricts
3.2 Paradigm shifts
3.2.1 The (un)changing nature of divine law and historical/literal critical methods
3.2.2 Aristotelian philosophy as once valid frame of reference for scholastic philosophy and theology
3.2.3 Radical Sanation (Sanatio in radice)
3.3 Gradation/progression of sacramental marriage 
3.3.1 1980 Synod of Bishops
3.3.2 Gradation in Diocese of Autun, France
3.4 Betrothal as a precursor to sacramental marriage and moving beyond ‘living together’ 
3.4.1 Betrothal – Engagement
3.4.2 Betrothal in the CIC/83
3.4.3 Current trends in Betrothal
3.5 Ministers and Recipients
3.5.1 Intention Receives Significance in Light of Faith
3.5.2 A Human Act
3.5.3 Regarding the Role of Faith
3.5.4 The Object of Consent
3.6 Identification of baptized unbelievers 
3.7 Praxis of the Roman Rota
Chapter 4
4.1 Inability to maintain the presumption facere quod facit Ecclesia 
4.2 Proving the Intention against Sacramentality
4.2.1 The Framework of Traditional Proofs
4.2.2 Proving Positive Exclusion in the Baptized Non-Believer
4.3 Surveys 
4.3.1 The CARA Survey
4.3.1.1 Principle areas of interest
4.3.1.2 Analysis of CARA Survey data
4.3.1.2.1 Familiarity with Catholic Teaching on Marriage
4.3.1.2.2 Marriage between two baptized persons is a sacrament
4.3.1.2.3 Marriage between a Catholic and a non-Christian is a sacrament
4.3.1.2.4 Influences on One’s View of Marriage
4.3.1.2.5 Distinctiveness of Marriage in the Catholic Church
4.3.1.2.5.1 Sacramental nature of marriage in the Catholic Church
4.3.1.2.5.2 The presence of God at the wedding and in the marriage
4.3.1.2.5.3 A stronger, long-lasting commitment between spouses
4.3.1.2.5.4 Limitations on divorce and remarriage
4.3.1.2.5.5 More rules and regulations
4.3.1.2.5.6 There are no distinguishing characteristics
4.3.1.2.5.7 Less common theses among other responses
4.3.1.2.6 Marriage is whatever two people want it to be
4.3.1.2.7 Marriage is an outdated institution
4.3.1.3 Influence and Use of Data
4.4 Marriage according to the Mind of the Church
4.5 Sacramentality Survey 
4.5.1 Principle areas of interest.
4.5.1.2 Faith and Sacraments
4.5.1.3 Intention in Marriage
4.5.1.4 Faith and Society
4.5.1.5 Faith as learned behavior in marriage
4.5.1.6 Nature of Sacraments
4.5.2 Analysis of Sacramentality Survey data and specific questions
4.6 An overturning of the presumption in light of data
Chapter 5
5. Practical Consideration 
5.1 Statement of intention 
5.2 Statement of necessity of faith at time of consent 
5.3 Need for pastoral preparation
5.4 Effect on possible grounds
5.5 Status of the Question Today 
5.6 Ecumenical Considerations 
5.7 Conformity of Grounds
5.8 Concluding Remarks 
Appendices 
Charts and Graphs
Bibliography

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ON THE SACRAMENTALITY OF MARRIAGE: THE DIVERGENCE OF CANON LAW AND THEOLOGY AND THE INABILITY TO MAINTAIN THE PRESUMPTION OF FACERE QUOD FACIT ECCLESIA