SECOND CHANCES AND STATUTES OF LIMITATIONS (KAVENY)

Here is some additional material from Kaveny’s chapter “Second Chances and Statutes of Limitations: Engaging Walter Kasper” for us to think about and discuss. 

 Amoris laetitia “appears to have opened the door to the reception of communion by people in that situation [divorced and remarried].” (221)

-Cardinal Schöborn: “there is an organic development of doctrine” in the document. (221)

-Cardinal Baldisseri: need to interpret the document in light of the pope’s emphasis on mercy. (221)

Kasper argues that mercy is God’s essential nature, that mercy means the opportunity for second chances, and that these principles must govern the church’s teaching on remarriage and access to communion.

-Kasper requires that divorced and remarried person must be “properly disposed”:    

-sincerely sorry that they failed in the first marriage    

-return to first marriage is definitely not possible    

-second marriage cannot be abandoned without incurring new guilt    

-tries to live out the second marriage in the context of faith    

-longs for the sacraments of penance and communion as a source of strength

Objections to Kasper: Sacramental marriage endures till death of one of the partners => second marriage involves repeated acts of adultery.

Kaveny: Meaning of “adultery” and the wrong it works has changed. Today, adultery centrally involves betrayal of one spouse by another—diverting sexual intimacy, emotional support and perhaps even financial resources away from the marriage. (227).

-None of these continues once the marriage has ended in civil divorce.

 -Divorced and remarried persons are not committing a series of discrete, wrongful acts of adultery. “They are engaged in an ongoing, committed, and organized life project, which includes but is not limited to sexual relations.” (231)

 -Remarriage precludes restoration of the original marriage without ending the new marriage, which itself would be a new wrongdoing.

-“Catholics, after all, do not believe that marriage extends into eternity. A marriage as a joint project between two people is over, therefore, when there is no possibility of its being revived in this life. Consequently, the wrongs committed by marriage partners against that marriage are completed once they are civilly divorced, and it is clear that their relationship is no longer salvageable.” (228-229)

Insights from civil law reasoning:

Importance of clearly and properly defining the wrongful act, in particular, making clear what is a “continuing offense” rather than a “completed offense”

-Toussie v United States: Supreme Court ruled that Toussie had committed one crime that was completed when he failed to register for the draft w/in five days. He did not keep repeating the crime every day for years. So he could not be charged after the five-year statute of limitations.

-An ongoing relationship does not constitute multiple crimes of adultery. (Mormon polygamy cases In re Snow and In re Nielsen) (230-231)

-In law, “the mere fact that the effects of an offense persist throughout some length of time does not make it a ‘continuing offense.’” (233)

Statute of limitations based on principle of “repose” (mercy) so people can get on with their lives. (234)

Intent of lawmaker: What did Jesus say and do? (237ff)

-Context: disparity in power and vulnerability between husband and wife

-Pastoral concern shown with Samaritan woman at the well and with the Pharisee’s woman taken in adultery: Jesus does not tell either to return to her first husband

-Mark 10 debate with Pharisees is “academic,” not “pastoral"

-While breaking a marriage is a sin, Jesus is not teaching that it is “a sin that continues indefinitely, without possibility of effective repentance as long as one’s first spouse is still alive.” (241) “As Cardinal Kasper has repeatedly noted, his proposal does not give such persons a second ship in the form of another sacramental marriage. It does, however, grant them a ‘plank of salvation’—namely, renewed admittance to the sacraments. Granting this renewal will bring the letter of canon law into harmony with its spirit. More important, it would reflect the merciful Spirit of God as revealed in Christ Jesus—the God who, as the apostle Paul states, has called us to peace.” (243) 

Two questions from Eric:

 (1) Isn’t it whether grace flows to the participants by virtue of their mutually shared love rather than whether it meets formal criteria set by old, unmarried men that makes a marriage sacramental?

(2) When Jesus says, "Let not man put asunder," isn’t he implying that men (and women) can "put asunder," can end a marriage? And wouldn’t this count strongly against the doctrine that marriage lasts till one partner dies? Jesus is not saying that the marriage lasts regardless of what one or both partners do, but that it should last. When it does not last, it's over. There's sin (probably on both partners' parts) that can be repented and, with God's mercy, moved beyond.