Chapter — Slater, Morals of To-Day
Chapter VI: The New Code and the “impedimentum Disparitatis Cultus.”
WRITING to the Christians of Corinth, St. Paul says: " Bear not the yoke with unbelievers."* In these words, and those which follow them, the Apostle tells the Corinthian Christians that they should enter into no intimate union, and especially marriage, with non-baptized persons. The danger of perversion, the difficulty of bringing up children in the faith and practice of Christianity, if one of the parents were an unbeliever, and the communicating with unbelievers in sacred rites, were the reasons of this prohibition. These reasons show that the prohibition is of natural and divine law. However, a marriage entered into in spite of the prohibition would be valid, though unlawful. In other words, difference of worship is only a prohibitory impediment by natural and divine law, not a diriment impediment of marriage.
During the early Christian centuries this prohibitory impediment was frequently insisted on in local councils of the Church and even in the imperial legislation of the later Roman Empire. Between the eighth and the twelfth century, marriage contracted in spite of the prohibition began to be looked upon as null and void, as no marriage at all. The change was gradually introduced by custom, and so it came to pass that about the twelfth century difference of worship became a diriment impediment of
marriage by a universal custom of the Church. In the sixteenth century, when a considerable number of Japanese were converted to the Christian faith, the question arose whether this customary law bound them. It was decided that they were bound by it just as by other universal laws of the Church, whether written or unwritten. Henceforth it was a settled principle of Catholic marriage law that a baptized Christian could not validly marry a non-baptized person without a dispensation from the competent authority.
There is no room for difficulty in this impediment of Christian marriage when the baptism of one of the parties is certain and the non-baptism of the other is likewise certain. But great difficulties arose when the baptism was uncertain. Cases of such uncertainty would be comparatively rare when both parties were Catholics, and if the difficulty arose it could easily be removed by making certain of the baptism by administering it conditionally. Some priests did this even in the case of the doubtful baptism of non-Catholics, but the practice was condemned by the Roman authorities. In modern times marriage cases wherein difficulties arose from doubtful baptism were by no means uncommon. In course of time a great number of decrees on such cases were issued by the Roman authorities, and, based on these, certain rules were formulated by canonists and theologians or even by the Roman Congregations themselves.
In settling such cases the Roman Congregations constantly adhered to and applied the principle—Doubtful baptism must be held as valid baptism with regard to the validity of marriage.
In the application of this principle to the solution of marriage cases it was presupposed that careful inquiries had been made concerning the baptism of the parties. Sometimes these inquiries were impossible, evidence on the fact of baptism or on its validity could not be obtained. The Bishop of Savannah reported to the Holy See that cases like the following frequently occurred in his part of the United States: Two non-Catholics married and afterward separated. One of them subsequently wished to become a Catholic and to marry a Catholic. It was sometimes impossible to obtain evidence concerning the baptism, especially of the other party to the previous marriage. The bishop asked whether in such cases of marriage between non-Catholics he might make use of presumptions concerning the baptism of the parties, founded on the religious character and practice of the parents or of the sect to which they belonged, and of the prescriptions of their rituals. The Sacred Congregation of the Holy Office on August 1, 1883, answered in general that this might be done, after inquiries had been made in each particular case. Further on we shall have occasion to refer again to this well-known decree of the Holy Office.
Applying the principle that doubtful baptism must be held to be valid baptism with respect to the validity of marriage, it follows that marriage between a party certainly baptized and another doubtfully baptized must be held to be valid. Marriage must also be held to be valid when contracted between two parties both doubtfully baptized. Marriage between one doubtfully baptized and another certainly not baptized will be invalid.
Before the issue of the new Code of Canon Law there was great disagreement among canonists and theologians as to the meaning of these rules, based on numerous decrees of the Roman Congregations, and on which all were agreed. There were two main currents of opinion as to the meaning of the rules. According to one opinion, the rules were to be taken in an absolute sense, so that if, for instance, at the time of marriage one of the parties was certainly baptized and the other doubtfully baptized, the marriage was and remained valid even though subsequently it was discovered for certain that the latter party had never been baptized. This was the opinion of Cardinal Gasparri.* The other opinion held that the sense of the rules was that such marriages were to be held valid as long as the doubt remained about the baptism. There was a presumption of law that such marriages were valid as long as the doubt remained, but as a presumption of law yields to the truth, such marriages were to be held invalid if afterward it became certain that one of the parties was certainly baptized, and the other was certainly not baptized. This was the opinion of Wernz and of others.†
No great difficulties could ordinarily arise from the application of the rule that marriage between one certainly baptized and another doubtfully baptized must be looked upon as valid. It was but an application of the principle that in doubt sentence must be given in favour of marriage. The same may be said of cases where both parties were doubtfully baptized.
* De matrimonio, n. 597.
† Wernz, Jus Decretalium, IV., n. 508.
But there were great difficulties about the third rule, which decided that marriage between one doubtfully baptized and another certainly not baptized was invalid. It is difficult to understand how such a marriage could remain invalid, even if it were afterward discovered that in fact neither party was baptized. The marriage would then be a legitimate marriage between two unbaptized persons over whom the Church has no jurisdiction. Cardinal Gasparri admits that in this case such a marriage would in fact be valid. Yet several decrees are quoted which seem to apply the rule absolutely without reserve. One of these is the following: An Anglican, about the validity of whose baptism there was grave doubt, married an Anabaptist woman who certainly was not baptized. They quarrelled and separated. The man afterward married a Lutheran and expressed a desire to be received into the Catholic Church. The question as to which marriage was valid was submitted to Rome. On July 20, 1840, the Holy Office answered: Provided that it was certain that the Anabaptist was not baptized, the first marriage was invalid; and provided that there was no other diriment impediment between the parties, the second was valid. Here was a question of previous marriage, a diriment impediment to a second marriage by natural and divine law. There was grave doubt as to whether the Anglican had been validly baptized. And yet, on the ground that the Anabaptist certainly had not been baptized, the man is allowed to remain with his Lutheran wife. There are other decrees of the same import. On them and on other grounds Lehmkuhl based his theory that doubtfully baptized persons were subject to the jurisdiction of the Church by divine law. The contention was novel, and it has not met with the approval of canonists and theologians in general.
Moreover, the rule that marriage between one party doubtfully baptized and another certainly not baptized is invalid seems to expose the validity of marriage too much to subjective estimates of greater or less or sufficient probability. The rule seems to have disappeared from the legislation of the new Code.
"Marriage contracted by a person not baptized with a person baptized in the Catholic Church or with a convert to it from heresy or schism is null." The diriment impediment of difference of worship therefore exists now by the written law of the Church between a non-baptized person and one baptized in the Catholic Church or one converted to the same. This law governs cases wherein the Catholic baptism of one of the parties is certain and the other is certainly not baptized.
The second section contains the law which now governs cases wherein one of the parties was only commonly held to be baptized or his baptism was doubtful at the time of the marriage. It is as follows:
"If a party at the time of contracting marriage was commonly held to be baptized or his baptism was doubtful, the validity of the marriage must be upheld in accordance with Canon 1014 until it is proved for certain that one of the parties was baptized and the other not baptized." nothing about non-Catholic baptized persons. Very frequently, so frequently that in many dioceses it is accepted as the rule, there is room for doubt as to the fact of baptism in the case of non-Catholics, or at least as to its validity. At most, non-Catholics will be commonly held to be baptized if their baptism is not actually doubtful. It seems to me, then, that non-Catholics are chiefly referred to in Section 2 of the Canon, The baptism of Catholics is usually certain, and only in comparatively rare instances can it be said of them that they are commonly held to be baptized; and rarer still are cases of doubtful baptism among Catholics. Section 2, then, should be applied to non-Catholic marriages, as to that of the Anglican and the Anabaptist quoted above, when occasion requires. I am led to this conclusion by the following arguments. As Fr. Ferreres says, heretics and schismatics must still in general be considered to be subject to ecclesiastical law unless they are expressly excepted. They are expressly excepted in the provisions of the Ne temere decree as embodied in the new Code, but they are not expressly excepted from this Section 2 of Canon 1070.
Canon 1014 merely states that marriage is favoured by law, and that, in doubt, its validity must be upheld until the contrary is proved. Now, therefore, in case of doubt concerning the baptism of one of the parties to a marriage, the validity of the marriage must be upheld in all cases until it is conclusively proved that one of the parties has been baptized and the other has not been baptized. There is a presumption of law that a marriage is valid when one of the parties is doubtfully baptized, and it must be held to be valid as far as this impediment of difference of worship is concerned until it is proved that one of the parties was baptized and the other not baptized, and the existence of the impediment is established for certain.
Does this rule apply only to Catholics, or does it apply to Catholics and non-Catholics alike? Fr. Ferreres, in his Epitome, recently issued, prints the two sections of the Canon as one, and then says: " Unde validum est matrimonium inter haereticum baptizatum (extra Ecclesiam Catholicam nec ad hanc conversum) et non baptizatum."*
It seems to me that we must distinguish between the two sections of the Canon. The first section refers only to one who has been baptized in the Catholic Church or who has been converted to it from heresy or schism. It asserts
* Epitome, n. 931.
The law is general, and Ubi lex non distinguit nec nos distinguere debemus. Indeed, as already observed, it seems specially meant for cases of non-Catholic marriages which for one reason or another come under the judgment of the Church. Such cases are very common in modern times; they have been legislated for in the past, as we have already seen. It is inconceivable that the new Code provides us with no rules by which to decide practical and important cases when they arise.
Cardinal Gasparri, in his references to the Code, gives some dozen decrees and instructions on which Section 2 of Canon 1070 is based. At least one, that of the Holy Office, August 1, 1883, to the Bishop of Savannah, refers exclusively to non-Catholic marriages. It seems to me, then, that though the Church asserts nothing expressly about non-Catholic marriages and this impediment of difference of worship, yet she gives us a rule whereby we may decide the practical difficulties which frequently arise from non-Catholic marriages. Applying that rule, I should say that marriage between a person certainly and validly baptized, even outside the Catholic Church, and another certainly not baptized, is invalid. But in cases where baptism outside the Church or within the Church is not certain or not certainly valid, the validity of the marriage must be upheld until it is proved that one of the parties was baptized and the other not baptized.