Case XLII: Concerning Dispensation from the Impediment of Mixed Religion

The following Casus was proposed and solved in Rome, in the Apollinaris:

Bertha, a Roman maiden, was on a pleasure trip through England with her father, a widower. After a month spent in visiting various parts of the country, she chanced to meet with Titius, a wealthy Protestant, resident of the place of their meeting. The latter, conceiving a strong affection for Bertha, asked her hand in marriage of her father, who was willing to grant the request, placing only one condition, to which Titius willingly assented, viz.: that he (Titius) would take up his abode in Rome, in order that the devoted father might not be separated from his only daughter.

Bertha, however, remembered that there stood in the way of the union the impedimentum mixtae religionis; nor did she lack the courage to speak of it. On the contrary, she promptly went with her father and Titius to submit the case to the bishop of the locality, who had faculties for dispensing from such an impediment.

The bishop, being informed that Titius was willing to make the promises required by the Church, granted the dispensation and gave the necessary authorization to Caius, a priest, a friend of Bertha, to marry the couple. Caius, in order to please the latter, performs the ceremony in the chapel of a convent of which he is the chaplain; and immediately afterward says the Mass of the day—not the Votive Mass, pro sponso et sponsa.

After this Titius wishes to appear before a minister of his own denomination and repeat the ceremony. Caius, being consulted by Bertha, says that this may be done, extra templum, and provided, furthermore, that the minister uses no religious vestments or ceremonies, quia tunc deest ratio prohibitionis, nempe communicatio cum haereticis in divinis.

Bertha, following the decision of Caius, yields to the desire of Titius.

1. Who can dispense jure proprio from the impediment mixtae religionis?

2. What about the action and decision of Caius in the case?

Ad Primum.—The impedimentum mixtae religionis, which has long existed in the Church, is a general law. Hence the Pope alone can dispense from it jure proprio. Bishops can not, since the following general principle here obtains: "The inferior has no power over the law of a superior." This is confirmed by an instruction given by the Papal Secretary of State, November 15, 1858, in which it is expressly said “to which alone—that is, to the Apostolic See—belongs the power of dispensing from an impediment of mixed religion of this kind.”

While the bishop ex jure communi has the faculty—quasi-ordinaria—of dispensing in the case of some other non-diriment impediments, he does not enjoy that faculty in the case of the impediment here in question. Pius VII, in a Brief dated February 17, 1809, and addressed to the bishops of France, says that up to that time the Holy See had always refused to grant this faculty to bishops, especially in Europe, though it had been asked for with the greatest importunity. Now, however, by special indult, but still with some reluctance, this faculty is granted, especially for those places where there are many heretical sects, and particularly for sparsely settled districts, either for a definite time, or for a determined number of cases, by the Congregation of the Holy Office or of the Propagation of the Faith.

With regard to Caius, the priest who performed the ceremony in the chapel of the convent of which he was chaplain, it can be said that his action was allowable, since it was not in a country where, as for instance, in Belgium, a more rigid discipline is enforced. From the context it also appears that he used for the ceremony the rite prescribed in the diocesan ritual. Neither can he be blamed for so doing, if we suppose that the bishop had approved for the diocese, or at least tolerated, that form of ceremony for mixed marriages generally. (According to the above-mentioned instruction of 1858.) But the celebration of Mass, even though it was not the votive pro sponso et sponsa, but the one of the day, can in no way be justified if, as seems probable, it could really in the circumstances be considered as forming a part of the nuptial ceremony. If, however, it could not, and was celebrated after the ceremony merely to satisfy the devotion of the bride, it was allowable, especially as it took place in a private chapel. This would be the case if, for instance, the Mass at which the married couple assisted was the ordinary Mass celebrated at that hour every day in the convent, and the chaplain had simply made arrangements so that on this occasion it was preceded by the marriage ceremony. In such a case the Mass could not be said to have been celebrated for the married couple—rather they were obliged to arrange matters so as to assist thereat, possibly with no slight inconvenience to themselves. Finally Caius, asked by Bertha if she might, in deference to the wishes of her husband, go with him to have the ceremony performed by a Protestant minister, replied that she might do so, provided it be not in a church and that no religious rites or vestments be used, "for," he added, "in that case the motive of the prohibition will be wanting, viz., communicatio in divinis cum haereticis."

As to this point, it must be granted that some serious theologians and canonists take the same view as Caius, and for the same reason.

Gasparri (de Matr. Vol. I. n. 467) gives that solution to the case exposed above. Supposing, for instance, that the minister in lay clothing, and not in a church, were to wish happiness, etc., to the married couple, recalling the rights and duties of the state of life upon which they had entered, without pretending to add thereby anything sacred to the marriage already performed, and supposing, of course, that the Catholic party does not look upon this as in anyway a completion of the same, but simply as an act of complaisance toward the non-Catholic, whether the latter looked upon it as a sacred ceremony or not (Vechiotti III. Sec. 98).

It is true, that it is not here question of a mere civil assistance, for the contracting parties go before a heterodox minister ad sacra deputatus, but, on the other hand, it is also true that no heretical religious ceremony is performed, and consequently no real communicatio in divinis. However, care should be taken to avoid scandal, and this could be secured if the faithful were instructed as to the real motive and significance of the action of the couple in the circumstances.

Other theologians (v. g. Genicot II. n. 520) think that such an act could hardly be free from the appearance of at least an external adhesion to a heretical sect, and could not be allowed, since there would be an implied recognition of some religious authority in anon-Catholic minister.

To me it seems that perchance the solution might depend upon the circumstances prevalent in various countries and places, in particular upon the manner in which, according to received custom, such a procedure would be considered.