On the Fernández Document: PART II

Eamonn Clark



Francis considers that even knowing the norm, a person “may be in a concrete situation which does not allow him or her to act differently and decide otherwise without further sin. As the Synod Fathers put it, ‘factors may exist which limit the ability to make a decision’” (AL 301). He speaks of subjects who “are not in a position to understand, value or fully practice the objective requirements of the law” (AL 295). In another paragraph he reaffirms: “Under certain circumstances people find it very difficult to act differently.” (AL 302).

Here, the Archbishop begins to violate his earlier commitment to looking beyond the possibility that one could be ignorant of the “norm” itself. This is its own mistake, as it tends toward emptying the meaning of Christian conscience. But what is more important, and indeed, in my opinion, the most important point to consider in the article, is the apparent suggestion of an impossibility of following the 6th Commandment. Trent condemned such opinions in the strongest terms: “If anyone says that the commandments of God are, even for one that is justified and constituted in grace, impossible to keep; let him be anathema.” (Canon XVIII, Session 6) Of course, a person who is not justified by grace (and therefore might not be able to follow the Commandments) is in mortal sin, and that sin is due to his or her own fault (along with the sins which result), as he or she resists God’s free gift of sanctifying grace. (The Buenos Aires guidelines also could be read as contradicting this anathema when they speak about continence not being “feasible.”) Nobody argues that such choices are easy to make and live out, but to say that they are impossible or that failing to make them is without guilt due to mere temptation is to contradict the clear teaching of the Church. Let us recall the sobering words of the Lord: “If anyone comes to me and does not hate father and mother, wife and children, brothers and sisters – yes, even their own life – such a person cannot be my disciple.” (Luke 14:26) If one must be ready to make these persons and one’s own life second to the Lord – goods which have frequently been used in the Amoris debate as foils for the choice to live “more uxorio” with a non-spouse – what of the sexual goods themselves which are being provided by an illegitimate lover? What of the distant possibility that that person might withdraw some financial and/or emotional support? Sometimes doing the right thing requires enormously difficult sacrifices, and it may also occasion sin in others – the witness of the martyrs demonstrates this.

He also recalls that John Paul II recognized that in certain cases “for serious reasons, such as for example the children’s upbringing, a man and a woman cannot satisfy the obligation to separate” (FC 84; AL 298). Let us note that St. John Paul II recognized that “they cannot“. Benedict XVI was even more forceful in saying that in some cases “objective circumstances are present which make the cohabitation irreversible, in fact.” (SC 29b).

A couple definitely may find themselves unable to separate physically or even according to civil law. Persisting in such a state does not of itself constitute sin. (While it is fitting for civil status to correspond to ecclesiastical and sacramental status, it is not absolutely necessary. In fact, one must change his or her civil status through divorce before changing his or her ecclesiastical status through annulment. To contract a second civil marriage while still ecclesiastically bound to another does indeed constitute a more serious act, but it could be justified, so long as the rights of the divorced party are not violated.) What should be evident, however, is that remaining together physically and civilly is distinct from living “more uxorio.”

This becomes particularly complex, for example, when the man is not a practicing Catholic. The woman is not in a position to oblige someone to live in perfect continence who does not share all her Catholic convictions. In that case, it is not easy for an honest and devout woman to make the decision to abandon the man she loves, who protected her from a violent husband and who freed her from falling into prostitution or suicide. The “serious reasons” mentioned by Pope John Paul II, or the “objective circumstances” indicated by Benedict XVI are amplified. But most important of all is the fact that, by abandoning this man, she would leave the small children of the new union without a father and without a family environment. There is no doubt that, in this case, the decision-making power with respect to sexual continence, at least for now, has serious forms of conditioning that diminish guilt and imputability. Therefore, they demand great care when making judgments only from a general norm. Francis thinks especially of “the situation of families in dire poverty, punished in so many ways, where the limits of life are lived in an excruciating way” (AL 49). In the face of these families, it is necessary to avoid “imposing straightaway a set of rules that only lead people to feel judged and abandoned” (ibid.).

The Archbishop’s points about the difficulty of such situations is granted. What requires much caution, however, is examining how mitigating factors work in the act of forming a habitual intention to continue “more uxorio.” If it is not a matter of a persistent acute fear or a mental illness, what must be shown is that some particular external temptation has become an internal force which has rendered the will unable to carry out its proper function – in other words, a true addiction. Sexual addiction is, I suggest, possible but extremely rare, given the fact that the vast majority of such couples may go a long time without intimacy for some other reason, such as a health condition or even simply the mundane distractions of daily life, quite unlike a real addiction. (We should also note that it is especially egregious for any person willfully to use as license to commit a sin those factors which would mitigate that sin’s culpability. This surely only adds guilt, even hardening a person’s heart in the vice.) 


The Pope, faithful to the real and limited possibilities which the Synod opened – and even against the proposals of progressive moralists – has preferred to maintain the distinction between objective sin and subjective guilt. Therefore, although it can be held with all clarity and forcefulness that sexual relations for the divorced in a new union constitute an objective situation of habitual grave sin, this does not imply that there necessarily exists grave sin in a subjective sense, that is to say, grave guilt that takes away the life of the sanctifying grace:

There has long been a distinction between “formal sin” and “material sin,” which seems to be what the Pope means by “subjective guilt” and “objective sin.” If there are factors which sufficiently mitigate or remove the guilt for what would otherwise be mortal sin, there remains “grave matter” but there is not mortal sin. This is not what is at stake in c. 915, however, as that canon refers to sin in a distinctly legal sense, which is related to but different from the moral sense… For example, a gullible and innocent person who is otherwise free to receive Holy Communion in public might have to be denied if he or she were tricked into wearing a rainbow sash under the pretext of celebrating the Noahic covenant. Onlookers would take scandal at the knowledge of an objective situation (“rainbow sash-wearing”) which would be reasonably assumed to mean that this individual is a committed LGBT activist, which itself is reasonably assumed to mean obstinate and persistent grave sin. That the soul of this individual is in grace is not a consideration in this situation.

The Church possesses a solid body of reflection concerning mitigating factors and situations. Hence it is can no longer simply be said that all those in any “irregular” situation are living in a state of mortal sin and are deprived of sanctifying grace. (AL 301).

One is left wondering when and where this was ever said with any universality. There are no documents cited to support the thought that there has been a true development here. If the Archbishop’s text is taken in its plain meaning, the possibility of an irregular couple living in continence is included, rendering his claim without the kind of significance he seems to envision it having. The apparently implied meaning is that irregular couples living “more uxorio” may not be in mortal sin due to mitigating factors impinging on their culpability for such acts. This, I submit, is not a development at all, just a theoretical possibility which has always existed – and is unlikely to exist in reality with much frequency.

It is already widely accepted – even in the Catechism – that “imputability and responsibility for an action can be diminished or even nullified by ignorance, inadvertence, duress, fear, habit, inordinate attachments, and other psychological or social factors” (CCC 1735).

The paragraph cited is only directly and fully applied in the Catechism in its treatment of self-abuse (#2352), a sin which lends itself to conditioning and inadvertent commission in a way that relations with another human being do not.

For Francis, however, it is not the concrete circumstances that determine objective morality. That forms of conditioning can diminish culpability does not mean that what is objectively evil may become objectively good. Suffice it to read the following sentence: “Because of forms of conditioning and mitigating factors, it is possible that in an objective situation of sin – which may not be subjectively culpable, or fully such – a person can be living in God’s grace” (AL 305). That is to say, it remains an “objective situation of sin”, because there remains the Gospel’s clear proposal on marriage, and this concrete situation does not objectively reflect that. Francis, like the Synod, maintains the existence of objective truths and universal norms, and has never defended subjectivism or relativism. God’s plan is a marriage understood as an indissoluble union, and this point was not placed in doubt either in the Synod or in his pontificate.

There is some rhetoric in this paragraph, but we should notice that the Archbishop points out “that what is objectively evil [cannot] become objectively good.” Could this be a way to leave one with the impression that what is objectively evil could become “subjectively” good? Whatever the case, while there has perhaps not been subjectivism or relativism or “situationalism,” in some circles there has been some consequentialism insofar as the possible good outcome of some adulterous act (or some bad outcome of failing to commit some adulterous act) has been suggested as rendering that act less objectively grave in itself, but the Archbishop seems to have avoided this by implying that such a consequence rather inhibits freedom and therefore mitigates culpability. While the former is condemned, the latter is at least questionable. The mere existence of external or even internal temptation does not mitigate culpability, and it is a stretch to say that in these difficult cases a person faced with such consequences is necessarily overcome by them in a way that inhibits the natural operation of the intellect and will in a way that would eliminate grave guilt for an objectively grave sin.


On the other hand, Francis has never claimed that anyone can receive communion if he is not in the grace of God. But, as we have just seen, for someone to be deprived of sanctifying grace, it is not always enough that a serious objective fault exists. Therefore, there can be a path of discernment, open to the possibility of receiving the nourishment of the Eucharist.

So far, the Archbishop has neglected to cite the governing canons (c. 18, c. 213, c. 915, and c. 916). It is now a serious problem: c. 915 does not preclude from public access to Holy Communion those known with moral certainty by the minister to be in personal grave sin – c. 916 does precisely this, but it does so only in private administration. This distinction is absolutely essential to a coherent discussion of the entire issue.

This is only possible if a different way of thinking about the consequences of the norm is accepted. This does not admit exceptions with regard to the objective evaluation starting from an absolute moral precept, but he allows a discernment with regard to its disciplinary derivations. Although the norm is universal, however, “since the degree of responsibility is not equal in all cases, the consequences or effects of a norm need not always be the same” (AL 300). “This is also the case with regard to sacramental discipline, since discernment can recognize that in a particular situation no grave fault exists” (AL footnote 336).

This could be possible for private reception of Holy Communion, but it is not possible for public reception. But this would not constitute a new discipline at all, for it has always been the case that private reception is allowed given the minister has no reasonable certainty that the communicant is in mortal sin.

The question that arises is the following: Can this be discerned in pastoral dialogue? The Pope says yes, and that is what opens the way to a change in discipline. Francis’ great novelty is in allowing that a pastoral discernment in the realm of the “internal forum” can have practical consequences in the manner of applying the discipline. The general canonical norm is maintained (cf. AL 300), although it cannot be applied in some cases as a consequence of a path of discernment. In this discernment, the conscience of the concrete person plays a central role with regard to his real situation before God, his real possibilities, and his limits. That conscience, accompanied by a pastor and enlightened by the guidelines of the Church, is capable of an assessment that gives rise to a judgment, sufficient to discern regarding the possibility of access to communion.

Surely, determining personal culpability for past actions could be helped by a dialogue with a priest or other learned individual. Once again though, in such a setting, away from the distressing and mitigating factors which would encroach on a person’s freedom in an acute way sufficient for rendering that person less responsible than what mortal sin requires, it is not possible to choose to continue habitually in a “more uxorio” relationship with the non-spouse without mortal sin. Intending to continue choosing such acts, even if only because one foresees the impinging of one’s freedom, cannot be rendered less culpable merely on account of the difficulty of refraining from those acts or the goods which might be lost due to their omission – a person must really intend to try to avoid these acts. (Such a decision might be without grave guilt if the person has a mental illness, such as PTSD or split-personality disorder which would be carried into every situation, thus rendering the habitual presumption to continue “more uxorio” insufficiently free to constitute mortal sin.) What is even more inadmissible is the usurpation of a tribunal’s proper role or a contradiction of the judgment of a tribunal. This would undermine the judicial system of the Church, such that we would have a kind of canonical vigilantism.

Does this imply that a judgment can be given about one’s own state of grace? St. John Paul II stated that “the judgment of one’s state of grace obviously belongs only to the person involved, since it is a question of examining one’s conscience.” (“De gratiae statu, ut patet, iudicium solum ad singulos homines spectat, cum de conscientiae aestimatione agatur”: EdE 37b.) But it must be clarified that it is only a certain moral security, the only thing which someone can obtain before approaching to receive communion. It is never a certainty, however much one may be unaware of having violated a commandment. The Council of Trent defined that, looking at ourselves, we cannot be certain about our state of grace (cf. Session VI, chapter 9). We speak, then, of that minimal “moral security” that the person can obtain after a process of personal and pastoral discernment, which should not be based only on a single general norm.

To reiterate, this would only be relevant for private reception, not public reception.

Up to now, discernment about an attenuated culpability did not allow for removing consequences at the external or disciplinary level. The disciplinary consequences of the norm remained unaltered, because they were based only on an objective fault against an absolute norm. Francis proposes to go one step further. It is true that the general norm is not purely a discipline, but it is related to a theological truth, such as the union between Christ and the Church which is reflected in marriage. But sometimes “undue conclusions from particular theological considerations” (AL 2) are derived when they are translated into a rigid discipline that admits no discernment whatsoever. This is the point where Francis makes a change with respect to the previous praxis.

It must be asked: what specific change is being made? There is no change in law on this point, either in Amoris Laetitia, Mitis Iudex Dominus Iesus (where he actually did reform canon law on marriage), or any document of Pope Francis, nor is there a clear and authentic interpretation of canon law (such as would allow for a different application of c. 915, as St. John Paul II did with respect to allowing the divorced and civilly remarried publicly receiving Holy Communion if they were living in continence and were reasonably sure there could not be scandal taken), as has already been argued. I submit that until such is done, nothing can be presumed to have changed, either in legislation or its authentic interpretation.


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