Tuesday, Dec. 19, 2006  

The relationship between the juridical and the sacramental

Valid Marriage and Holy Matrimony

by Canon John H. Heidt
Canon Theologian of the Diocese of Fort Worth


When it comes to marriage discipline, I find that at least pastorally I adopt a position that seems rather lax to some of my traditionalist friends. This is due, I believe, to different ways in which we understand the relationship between the juridical and sacramental aspects of marriage.

Largely because of Rome’s influence there seems to be some confusion among us as to what validates or authenticates the sacrament of Holy Matrimony. As the very use of the term “validity” implies, Rome tends to confuse the institutional or juridical requirements of marriage with the authenticity of the sacrament. I know this is an old saw of mine, but it seems especially pertinent in the case of marriage where the two are so intertwined that it is sometimes difficult to distinguish one from the other.

Like us, Rome teaches that the proper ministers of Holy Matrimony are the couple themselves. A so-called “gay marriage”, for example, is not sacramental because it is celebrated by the wrong ministers as well as using the wrong matter. Secondly, the couple are not married in church but in bed, and therefore, an unconsummated marriage is no marriage at all and can always be annulled.

The purpose of the marriage rite is to ensure a public declaration by the couple of their intentions and to bestow a priestly blessing on their future union. Mothers shed a tear and others cheer, knowing what they are going to do and wishing more power to them. Just as the Eucharistic rite was instituted at the Last Supper before the fact of the crucifixion and resurrection, so in Holy Matrimony the public rite precedes the actual celebration of the sacrament.

Roman doctrine agrees with all this, and yet Rome also claims that the sacrament of Holy Matrimony is only validly confected through the offices of a Roman priest at a public marriage rite in which the priest functions as a civil officer of the state when receiving the couple’s vows and as an ecclesiastical officer of the church when celebrating the nuptial mass. Yet the Roman church acknowledges that the priest’s function as a civil servant is not necessary for sacramental validity. In France, for example, the legal or institutional rite is performed by a civil officer without benefit of clergy, and afterwards the couple come to the church for a nuptial mass and a blessing.  This seems entirely consistent with the practice of the early church where for the first few centuries there was no ecclesiastical rite of matrimony, but only the Eucharistic celebration of the civil marriage. Contrary to present Roman practice, neither the nuptial mass nor the nuptial blessing validated the sacrament of Holy Matrimony. The institutional or juridical aspect of marriage was a public declaration of intent before civil magistrates that the church then strengthened by a priestly blessing; the sacramental consummation of Holy Matrimony was later celebrated by a nuptial mass.

When people start living together with evidence of their intention to begin a permanent union, they are, in the eyes of the church, truly and authentically married. This was universally recognized by common law until abrogated by English civil law in the late nineteenth century, and, I believe, is still recognized in Texas Law by which a couple are legally married if they so much as make a public declaration of intent as simple as signing a motel register as “Mr. and Mrs.” As far as the church is concerned, if a baptized man and woman are living together sexually in the context of the Christian faith, they are performing a sacramental act. St. Paul claims that even if the marital act is celebrated with a prostitute a kind of sacramental union takes place. This incidentally may justify our canonical requirement that only one of the couple have to be baptized - though it places the un-baptized in a rather unenviable position.  Otherwise the canon falls into the same error as giving communion to the un-baptized.

Though the union of a man and woman living together sexually with some form of public declaration of intent, whether explicit or implicit, is an authentic or “valid” sacramental marriage, it is defective for two reasons.

First, forgoing the public ceremony goes against the basic human fact that the more intimate a relationship is, the more public support it needs. If you don’t have a public ceremony you will simply end up with public gossip about a private relationship. Also the lack of a public ceremony seriously contributes to our contemporary ambivalent, and even schizophrenic, attitude towards sex itself through the separation of sexual activity from love and the commitment to make (or create) love ’til death. This is much more socially pernicious than certain kinds of physical behavior, exposure, or sexual language, that most modern censorship condemns as suitable only for adults – though why this is considered adult entertainment when most of it is simply puerile I cannot imagine.

Secondly, so-called common law marriage lacks the church’s blessing. All couples living in a common law relationship without impediments should be encouraged to receive a nuptial blessing celebrated in the context of a mass. The ecclesiastical provision for blessing civil partnerships that are not allowed to be celebrated in church due to various impediments makes no sense at all. To forbid the juridical exchange of vows in church and then bless the sacramental union once it is legally accepted by the state is one more symptom of the current confusion between the juridical and sacramental.,

As we have said, common law marriage is defective and therefore shares to some extent in the nature of sin, but the gravity of the sin is at least partially determined by external circumstances. An economic system, for example, that makes it financially difficult or impossible to get legally married is more to blame for these defects than the couple living with its injustices, and far from suffering any punitive discipline by the church, they should be strongly urged to receive the church’s blessing in the context of a nuptial mass.