Jesuit priest Giancarlo Pani, professor of Christian history at the University of Rome “La Sapienza,” recently published an essay in La Civiltà Cattolica entitled “Matrimony and ‘Second Marriages’ at the Council of Trent.” In it, he defends the Greek matrimonial practice of “oikonomia” by which failed marriages can be dissolved and spouses permitted to remarry, or, what’s more often the case, to have their “new marriages declared valid” by the church “after penance.” He plainly hopes that this “tolerant tradition” may find its way into the Catholic Church.

For that aspiration, he claims no less an authority than the Council of Trent, which he believes implicitly sanctioned the Greek divorce practice in its canones de sacramento matrimonii.

His argument has two flaws. The first and more serious I can only mention here. In his essay, he not only assumes, but states several times that this form of divorce and remarriage is not in conflict with the doctrine of indissolubility, without providing an argument to vindicate the claim. The claim was refuted by Germain Grisez, John Finnis, and William E. May twenty years ago in their critical response to German Bishops Oskar Saier, Walter Kasper, and Karl Lehman, who had proposed a “compromise” to allow divorced and remarried Catholics in Germany to return to the Eucharist.

The second problem is with Pani’s interpretation of Trent’s Canon 7 on indissolubility. He follows the popular interpretation of Flemish Jesuit Piet Fransen, whose account, though widely followed, is badly flawed.[ref] Fransen’s doctoral thesis on canon 7 (De indissolubilitate Matrimonii christiani in casu fornicationis. De canone septimo Sessionis XXIV Concilii Tridentini, Jul.-Nov. 1563) was submitted to the Gregorian in 1947. In the 1950s, Fransen went on to publish six influential essays in the journal Scholastik on Trent’s teaching on marriage, which are reprinted in a collection of Fransen’s essays entitled Hermeneutics of the Councils and Other Studies, eds. H.E. Mertens and F. de Graeve (Leuven, Belgium: Leuven University Press, 1985). He summarized the conclusions of these essays in a widely read English essay entitled “Divorce on the Ground of Adultery—The Council of Tent (1563),” printed in a special edition of the journal Concilium, entitled The Future of Marriage as Institution, ed. Franz Böckle (New York: Herder and Herder, 1970), 89-100.[/ref] Pani’s article summarizes adequately the events of August 1563, so they need not be repeated here. But the wider story he tells deserves consideration:

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Although the Eastern (Orthodox) Church “rigorously affirmed and recognized the indissolubility of marriage,” nevertheless it permitted divorce and remarriage in some cases. The Fathers and theologians at Trent knew of the East’s ancient “ritus” (“custom”) and respected it. Many council Fathers were doubtful about the “exceptive clause” in Matthew’s Gospel (“except in cases of porneia”). They doubted whether divine revelation absolutely excluded remarriage in cases of adultery. Given the doubt, they resolved to “speak clearly on the indissolubility of marriage, but also to say that the doctrine cannot be regarded as a constituent part of revelation.” Their doubts came to a head in August 1563 with the famous intervention of the Venetian delegation, which urged the council Fathers for the sake of the divorce practices of the Greeks in Catholic lands not to directly condemn divorce and remarriage in cases of adultery. The petition won the day, and in the end the Council published an indirect formulation of Canon 7. This was obviously because a large majority of Council Fathers preferred leaving open the question of the legitimacy of the Greek divorce practices.

Pani laments that this “page” in Trent’s teaching on marriage “seems to have been forgotten by history.” But how can it have been forgotten when Walter Kasper,[ref] Kasper, Theology of Christian Marriage (New York: Crossroad, 1977), note 87, p. 98, also p. 62.[/ref] Charles Curran,[ref] Charles E. Curran, Faithful Dissent (Sheed & Ward, 1986), 269, 272.[/ref] Michael Lawler,[ref] Michael Lawler, “Divorce and Remarriage in the Catholic Church: Ten Theses,” New Theology Review, vol. 12, no. 2 (1999), 56.[/ref] Kenneth Himes,[ref] Kenneth Himes and James Coriden, “The Indissolubility of Marriage: Reasons to Reconsider,” Theological Studies, vol. 65, no. 3 (2004), 463.[/ref] James Coriden,[ref] Ibid.[/ref] Theodore Mackin S.J.,[ref] Mackin, Divorce and Remarriage (New York: Paulist Press, 1984), 388.[/ref] Victor J. Pospishil,[ref] Victor J. Pospishil, Divorce and Remarriage (New York: Herder and Herder, 1967), 66-68.[/ref] Francis A. Sullivan S.J.,[ref] Francis Sullivan, Creative Fidelity: Weighing and Interpreting Documents of the Magisterium (New York: Paulist Press, 1996), 131-134.[/ref] Karl Lehmann,[ref] Karl Lehmann, Gegenwart des Glaubens (Mainz: Matthias-Grünwald-Verlag, 1974), 285-286.[/ref] and Piet Fransen S.J. (to name just a few) have repeated it continually over the past fifty years?

The story actually goes back to the seventeenth century. The anti-Roman theologian Paul Sarpi[ref] Sarpi (1552 -1623), “Istoria del Concilio Tridentino” (London, 1619); English translation, History of the Council of Trent (1676). His Istoria, much read by Protestants, has been criticized as slanted against the Roman Curia; see L.F. Bungener, History of the Council of Trent (New York: Harper & Brothers, 1855), xix-xx.[/ref] and the Jansenist Jean Launoy[ref] Jean de Launoy (1603–1678); see De regia in matrimonium potestate (1674), par. III, art. I, cap. 5, no. 78; in Opera (Cologne/Geneva, 1731), tom. 1, cap. I, p. 855.[/ref] argued that the Council meant to leave open the question of whether remarriage after divorce was sometimes legitimate.[ref] Bossuet wrote of Sarpi: “He was a Protestant under a religious habit, who said Mass without believing in it, and who remained in a Church which he considered idolatrous.” [/ref]

Pani indicts the secretaries and diarists of the Council for their “eloquent silence” about this story. An alternative interpretation of their silence seems to me more obviously correct: Pani’s story is a post-conciliar creation. Not that the events he cites, especially the Venetian intervention, did not occur. They plainly did. But there is no historical basis for his claim that the Council—by which I mean the vast majority of voting bishops—saw Canon 7 as permitting the divorce practices of the Greeks. Many scholars before the middle of the twentieth century argued that Trent intended to define absolute indissolubility as a de fide truth, for example, Dominic Palmieri[ref] Dominico Palmieri, Tractatus de Matrimonio Christiano, Typographia Polyglotta S. C. de Propaganda Fide (Rome 1880), p. 142.[/ref] and Giovanni Perrone,[ref] J. Perrone, SJ., De Matrimonio Christiano, vol. 3 (Rome, 1861), bk. 3, ch. 4, a. 2, p. 379-380.[/ref] the eminent author and editor of the French Dictionnaire De Théologie Catholique, Alfred Vacant[ref] A. Vacant, s.v., “Divorce,” Dictionnaire de théologie catholique (1908), vol. XII, cols. 498-505.[/ref] (1908) and dogmatic theologian, George Hayward Joyce, S.J.[ref]George Hayward Joyce, S.J., Christian Marriage: An Historical and Doctrinal Study (London: Sheed and Ward, 1933), 395.[/ref] More recently the same has been defended by the then-future pope, Joseph Ratzinger,[ref]In a 1972 essay, “Zur Frage nach der Unauflöslichkeit der Ehe: Bemerkungen zum dogmengeschichtlichen Befund und zu seiner gegenwärtigen Bedeutung” (in Ehe und Ehescheidung: Diskussion Unter Christen, eds. Franz Henrich and Volker Eid (München: Kösel, 1972), 47, 49), Ratzinger says he follows Fransen on Canon 7. By 1986 he shows that he changed his mind: “the Church’s position on the indissolubility of sacramental and consummated marriage … was in fact defined at the Council of Trent and so belongs to the patrimony of the Faith” (see quote in Charles E. in Curran, Faithful Dissent (Sheed & Ward, 1986), p 269. [/ref] and moral theologians Germain Grisez and Peter Ryan, S.J.[ref] Peter F. Ryan, S.J. and Germain Grisez, “Indissoluble Marriage: A Reply to Kenneth Himes and James Coriden,” Theological Studies 72 (2011), 369-415.[/ref]

To demonstrate conclusively the falsity of the Pani-Fransen interpretation would take a book-length treatise. But several things can be said to show that it is questionable. To understand the true intentions of the Fathers at Trent, we must not first look, as Pani does, to the intervention of the Venetian delegation. We must first look at the rock-solid consensus of the Fathers and theologians in every discussion of marriage from 1547 till August of 1563.

When Canon 6 (which became Canon 7) was presented to the Fathers on July 20, 1563, after undergoing several iterations, it read as follows:

If anyone shall say, that on account of the adultery of a spouse the marriage can be dissolved, and that it is licit for both, or at least the innocent spouse who gave no cause for adultery, to remarry, and that he is not an adulterer who dismisses an adulteress and marries another, nor she an adulteress who dismisses an adulterer and marries another: let him be anathema.[ref] CT, IX, 640.[/ref]

There is nothing extraordinary about this formulation, since its content is more or less the same as the content of the very first condemned propositions (numbers 3-5) proposed by Angelo Massarelli, Secretary General, to the Council in April 1547.[ref] CT, VI, 98-99.[/ref] It directly condemns the propositions that marriage can be dissolved on account of adultery; that it is ever licit for adulterous spouses to remarry; and that a spouse who divorces an adulterous spouse and remarries is not guilty of adultery. From Trent’s earliest discussions, this was the consensus of the Council Fathers. As to authorities, the prelates referenced Jesus and St. Paul, the Canons of the Apostles, Jerome, Ambrose, Augustine, Chrysostom, Origen, Hillary, Popes Innocent I, Leo I, Alexander III, and the Councils of Mileve, Elvira, Constance, Florence, and Lateran IV, among others.

When Catholic thinkers of the sixteenth century, such as Erasmus and Catarinus, suggested that the doctrine of absolute indissolubility should be watered down, their proposals were condemned by the faculties of theology of the Universities of Cologne, Leuven, and Paris. Augustine’s conclusion that the exceptive clause in Matthew should be read in accordance with the more restrictive teachings found in Luke 16, Mark 10, and Romans 7:1-3 was held by most everyone; “separation of bed, not bond” was the maxim of the day.

Pani mentions the significant doubt against absolute indissolubility posed by the Bishop of Segovia on August 14, 1563 (as does every author who follows this interpretation).[ref] CT, XI, 709.[/ref] He does not mention that from the earliest discussions of marriage, a consistent and substantial majority affirmed, contra the Segovian view, the Augustinian maxim bed, not bond, no exceptions. A few names should suffice to demonstrate this: Council President and Papal Legate, Cardinal Cervinus; Archbishops Materanus, Naxiensis, Aquensis, and Armacanus; Bishops Aciensis, Sibinicensis, Chironensis, Sebastensis, Motulanus, Motonensis, Mylonensis, Feltrensis, Bononiensis, Sibinicensis, Chironensis, Aquensis, Bituntinus, Aquinas, Mylensis, Lavellinus, Mylensis, Caprulanus, Grossetanus, Upsalensis, Salutiarum, Caprulanus, Veronensis, Maioricensis, Camerinensis, Thermularum, Mirapicensis, and Vigorniensis.

In a summary statement recorded in the Acta on September 6, 1547, we read: “The responses of the fathers varied; but the vast majority agreed that adultery cannot dissolve a marriage; that if one marries another when his spouse is still alive, he commits adultery; and that for no reason can they be separated except as far as the bed.”[ref] CT, VI, 434[/ref] To authorities who oppose this view, the majority agreed “that separation should be understood only so far as separation of bed and not bond according to the interpretation of the doctors (and declaration of St. Paul in 1 Cor. 7:10ff and Romans 7:2ff, and Mark 10:11 and Luke 16:18 as well as Matthew 5:32 itself).” Finally, the majority agreed “the understanding of scripture should be according to the declaration of the Church.”[ref] CT, VI, 434-435. [/ref]

When presented with the July 20, 1563 draft of Canon 6, more than 200 Council Fathers (Cardinals, Archbishops, Bishops, Abbots, and Generals of Congregations) commented on it. All knew that the end of the debates on marriage was drawing near. If there were widespread doubts or dissatisfaction among the Fathers about the directness of the formulation, the inclusion of the anathema, or its implications for the divorce practices of the Greeks, we would expect a significant number of Fathers to register an objection—“non placet”—to the canon. Only seventeen register disapproval, mostly on account of the “opinions of the Greeks.”[ref] “non placet, quia ferit Graecos and Ambrose” (Archbishop Cretensis), CT, IX, 644.[/ref] More than 85 percent of the voting prelates were satisfied with a direct formulation of an anathema condemning remarriage after adultery, with a large majority explicitly approving its content (placet).

Three weeks later, on August 11, came the Venetian proposal for an indirect formulation. Approximately 136 prelates spoke out in favor of the proposal. What accounts for this change? Was it because the Council Fathers preferred leaving open the question of the legitimacy of the Greek divorce practices, as Pani et al. suggest?

This conclusion must be rejected. Is it plausible that within three weeks the vast majority of voting prelates abandoned absolute indissolubility in order to permit some instances of divorce and remarriage?

In the final version of Canon 7, the Council adopts four other important changes that contradict this conclusion. First, it added the phrase “iuxta evangelicam et apostolicam doctrinam” to ensure that the succeeding propositions condemning the denial of indissolubility in cases of adultery are understood to have their origin in divine revelation. Second, it replaced the normative term “should not . . . contract” (“non debere . . . contrahere”) with the substantive term “cannot . . . contract” (“non posse . . . contrahere”) making it clear that remarriage after divorce is not only always wrong, but impossible. Third, to ensure that the canon transparently addresses the indissolubility of the bond of marriage, it adopted the term “vinculum matrimonii” to replace “matrimonium.” Finally, it adopts for the first time a doctrinal preface to precede its canons on marriage. This is plainly meant to establish a doctrinal framework within which to read and interpret the canons.

The introduction grounds the truth of indissolubility in the natural law (the created order), the inspiration of the Holy Spirit in the Old Testament, and in the will and teaching of Jesus as expressed in the New Testament. And it asserts that not only are the “schismatics” condemned, but also “their errors” (“eorumque errores”), that is, their erroneous propositions about the nature of marriage, including their unquestionable denial of the absolute indissolubility of marriage.

The more plausible explanation for the sudden turn is that the Council Fathers remained convinced that marriage cannot be dissolved on account of adultery, or anything else, and that they should teach this as a truth of faith. They had been willing to teach it in the form of a direct anathema condemning its denial. But Venice’s intervention had alerted them to a possible consequence of doing so—namely, the disrupting of the delicate balance of relations between Greek Christians and the Roman hierarchy in the Mediterranean islands. They believed the proposition asserting the absolute indissolubility of marriage was true and that it pertained to divine revelation, and they intended to teach both of these, but to do so in a way that minimized undesirable consequences. They did not turn to an indirect formulation because of doubts about the interpretation of the “exceptive clause,” for fear of scandal by “anathematizing Ambrose,” or because they wished to leave the Greeks free to follow their ancient divorce customs. The Venetian appeal won the day on the pastoral ground that an indirect formulation was less likely to disrupt Greek-Roman relations in Venetian territories.

Pani’s idea that the Fathers when publishing Canon 7 intended only to condemn Luther and the Reformers but leave uncriticized the divorce practices of the Greeks is inconsistent with the reasoned judgment on the absolute indissolubility of marriage of the vast majority of Council Fathers and theologians from Spring 1547 to the end of Summer 1563. As Ryan and Grisez state: “although Trent does not [explicitly] anathematize the practice of economia, canon 7 entails that its application to ‘remarriage’ after divorce is contrary to faith.”[ref] Op. cit., footnote 180.[/ref]

Pani’s ironic term “damnatio memoriae” is indeed fitting. But it is not the Council Acta, secretaries, diarists, or commentators who impose a silence on Trent’s true teaching. Rather, it is those who in the name of “evangelical mercy” would replace a de fide truth with a “tolerant” fancy.

A version of this essay appears at Chiesa.