By David Bentley Hart in ‘Commonweal’ (USA), 26 August 2019

As I am not a Roman Catholic, I cannot pretend to have any stake in—or, for that matter, any particular right to an opinion regarding—the controversy surrounding Amoris laetitia. From the vantage of Eastern Orthodoxy, there is nothing particularly scandalous in the document—certainly nothing repugnant to the Eastern Christian tradition’s understanding of Scripture, ecclesial law, or pastoral practice—but that is an observation of only the most boringly incidental kind. I do, however, know enough about the development of Christian tradition, both East and West, to note that many of the claims made by Catholic traditionalists have been wildly inaccurate. Not that this is surprising. It is always the “traditionalists” (Orthodox no less than Catholic) who tend to have the most tenuous and idealized concept of the actual traditions of their churches, and necessarily so. The one thing they cannot tolerate is ambiguity. But, alas, history is nothing but ambiguity, and the actual historical record is very rarely the traditionalist’s friend.

Not that I would dismiss the dissenters from Amoris laetitia simply on historical grounds. I merely insist that their dissent, if it is grounded in theological principles they believe to be indubitable, should not be diluted by association with easily discredited fictions about the Christian past. I have no doubt, for instance, that Ross Douthat’s alarm at the apparent leanings of the current pontificate on these issues is sincere and prompted by genuine spiritual concerns. But when it becomes clear that he imagines that current Roman Catholic practice regarding divorce and remarriage—especially permanent exclusion from the Eucharist for the remarried—has been the consistent teaching of the Catholic Church from the earliest centuries, and that this is the inarguably correct interpretation of Scripture, and that it is clearly the Orthodox Church that has deviated from the ancient rule of the faith, it becomes difficult not to reject everything he has to say on the matter out of hand. The problem is not simply that he is wrong on the facts; it is that he obviously has a concept of the early centuries of Christianity that borders on fantasy.

Then again, I suppose that most of us do, at least at certain times. It is natural to think that what seems urgently important to Christians now must have occupied at least as prominent a place in the Christian self-understanding of earlier ages. And so, where documentary evidence to that effect is lacking, we are all too ready to supply the deficiency with our own fond imaginings. We speak with ardent earnestness today of the “Christian family,” for instance, largely unaware that the very concept is scarcely two centuries old, and is more a relic of nineteenth-century sentimental bourgeois piety than an expression of the ethos of the Gospel. Christ’s indifference to the special claims of familial loyalty seems to have been almost perfect (see, for example, Matthew 12:47–50 or Mark 3:32–35). Nor, in the early centuries, was there any distinct concept of “Christian marriage,” or of the moral merits of connubial happiness. Paul, for instance, grudgingly allowed that the married state was a licit concession to the irrepressible carnal appetites of the morally feeble (1 Corinthians 7:9), but he certainly didn’t see it as encompassing some special sphere of sanctity.

Neither, for several centuries after the Apostolic Age, did any Christian theological authority think of marriage as a sacrament in our sense. Augustine (354–430) thought it might be described as a sacramentum in the proper acceptation of the Latin word: a solemn and binding oath before God. But even then, although he took the term chiefly from Jerome’s rendering of Ephesians 5:32, he certainly did not number matrimony among the saving “mysteries” of the church, alongside baptism and the Eucharist. Neither did anyone else, for many, many years. Even the great Church Fathers tended to treat marriage as little more than a civil institution, no different in kind for Christians than for non-Christians. One need only look, for example, at John Chrysostom’s fifty-sixth homily (on the second chapter of Genesis) to see how unacquainted even a late-fourth-century theologian of the highest eminence was with any concept of “holy” matrimony. And, inasmuch as they thought of marriage chiefly as a natural fact rather than as a sacred vocation, the Christians of late antiquity did not treat it as a theological topic.

They did, however, treat it as an issue of moral discipline. But here, it turns out, they tended to take a surprisingly pragmatic approach both to the frequent dissolution of marriages and to the frequent remarriage of divorced spouses. Obviously, they regarded both as sinful in some sense. But neither Orthodox nor Catholic tradition (which in the first millennium were of course one and the same) treated divorce and remarriage as the equivalent of apostasy. Not only were the remarried as a class not excluded from communion for life, or required to abstain from sexual union in order to gain readmission to the sacraments; it was actually inscribed in some synodal canons that they should not be permanently excommunicated (see below). Moreover, precisely because marriage was not regarded as a worthy object of theological reflection, the practices of the early church were far more fluid and ad hoc than we might like to believe.

In his Commentary on Matthew, for example, Origen (ca. 184–253) notes that many of the bishops of his time permitted both divorce and remarriage among the faithful. Canon 11 of the Council of Arles (314) recommends that a divorced man not remarry so long as his former wife still lives, but also grants that, for healthy young men incapable of the continence this would require of them, remarriage may prove necessary. Basil the Great (ca. 330–379) instructed Amphilochius of Iconium to allow men abandoned by their wives to remarry without penalty. It was he, also, who apparently first established an official penitential discipline for remarried laity: a second marriage, after either bereavement or divorce, requires one to two years of abstinence from the Eucharist, while a third marriage requires three to five. These rules remained canonical at least as late as the days of  Theodore the Studite (759–826) and Patriarch Nicephorus I of Constantinople (c. 758–828). Incidental remarks of Epiphanius of Salamis (c. 315–403) show that remarriage for the divorced was not in his day regarded as an eternal bar to sacramental life. The Council of Carthage (407) proclaimed that abandoned spouses should, ideally, refrain from second marriage, but that, if they could not, they should undergo penance before being readmitted to communion. Even Augustine, while firmly convinced that marriage should as a rule be indissoluble, nonetheless confessed in his Retractiones that he had no final answer on the issue.

The most crucial pronouncements on the matter, however, were promulgated in 692 in the canons attached to the Sixth Ecumenical Council (Constantinople III) of 680–681 by the Council in Trullo. Canon 87, which largely reprises the rule of Basil, prescribes that a man abandoned by his wife be allowed to remarry without any penitential sequel. But if it is he who is the truant spouse, he must endure seven years of penance—the first as a “shedder of tears,” the next two as a “listener,” like a catechumen, the next three as a “maker of prostrations”—before he may take the Eucharist again (without any obligation to dissolve his second marriage).

Now, it is true that the Council in Trullo was accepted as fully part of the ecumenical deposit only by the Eastern patriarchs, but that should not distract us from what is most significant here. Rome demurred as to the ecumenical status of the council principally because no properly certified Roman legate was present and because, in consequence, certain of the ritual practices enshrined in the council’s canons differed from Western usages. The actual doctrinal and moral contents of the canons, however, including the eighty-seventh, were offensive to no one. Certainly the council was no cause of division among the patriarchates. Pope Hadrian I (r. 772–795) praised its canons, in fact, and even now its ninety-first canon is routinely cited by Catholic apologists as proof of the church’s dogmas regarding abortion.

To be honest, many modern believers would be shocked to learn how late in Christian history a clear concept of marriage as a religious institution evolved, and how long it took for it to be absolutely distinguished from what would come to be thought of as common-law unions, or for the church to insist on its solemnization in all cases. They would be even more disturbed, I imagine (as much on democratic principles as religious), to discover that throughout much of the Middle Ages the whole issue of wedlock certified by the church concerned mostly the aristocracy, inasmuch as marriage was chiefly a matter of property, inheritance, and politics. As far as we can tell, among the peasantry of many lands, and for many centuries, marital union was a remarkably mercurial sort of arrangement, one that coalesced and dissolved with considerable informality, as circumstances dictated. And the clergy did not, for the most part, give a damn.

Nevertheless, as the patristic Christian world yielded to the medieval, East and West did begin to grow apart in the severity with which they dealt with divorce and remarriage among the enfranchised classes. To some extent, it would not be unfair to say that the former fell too much under the sway of Byzantine civil law; and perhaps a militant Newmanian would claim that the latter was being led by the Spirit toward an ever fuller understanding of its own doctrinal inheritance. But the fact remains that neither East nor West, in the early centuries, promoted or practiced anything remotely as strict as modern Roman Catholic teaching prescribes. And, indeed, for almost all the premodern period, the differences between East and West were nowhere near so pronounced as modern Catholic traditionalists imagine. In the West, divorces became harder to obtain, but not impossible. One of the best attested in the historical record was that of the Earl of Gloucester, Gilbert de Clare, and his wife Alice de Lusignan: the formal dissolution of their wedding vows was requested in 1271, but was not granted by the pope until 1285. But it was granted. Nor was their case unique. Later Catholic historians, out of embarrassment, tend to characterize these rare but real ecclesially dissolved marriages as annulments, identical in kind to those so easily obtained today. But no one at the time took them as such.

As I say, history is ambiguity. Perhaps, then, the issue ought to be adjudicated solely in light of the explicit pronouncements of Scripture. Curiously enough, however, it is precisely the New Testament record—especially as originally read by those closer in culture and language to its authors—that accounts for a great deal of the imprecision and variety of the church’s practices in its early centuries. The oldest text in the canon that addresses the issue of divorce, historically speaking, is of course 1 Corinthians 7. There it is quite clear, for instance, that in Paul’s view a Christian husband ought not to divorce (literally, “send away,” “expel”: ἀφιέτω) an unbelieving wife and a Christian wife ought not to abandon an unbelieving husband, but he explicitly qualifies his advice with the condition that, in both cases, the unbelieving spouse must also consent to the arrangement (7:12–13). “But, if the unbeliever separates, let the separation happen; in such circumstances, the brother or the sister is not enslaved” (7:15). As for the issue of remarriage afterwards, Paul’s at times positively sublime gift for obscurity here raises certain insurmountable obstacles to a single sure interpretation. “Have you been bound to a wife? Do not seek divorce. Have you been divorced from a wife? Do not seek a wife. But if you do indeed marry you do not sin” (7:27–28). It is simply impossible to tell whether the “you” to whom Paul is speaking is the same divorced “you” of the immediately preceding sentence (as the plain syntax of the passage would seem to suggest), or whether instead he is tacitly reverting to an earlier reference to those who are as yet unmarried.

In any case, one feature of the text that one should not overlook is the asymmetry in Paul’s formulation of the ways in which a marriage might break apart: a man may “divorce” his wife, but a woman can only “abandon” her husband. It is a distinction in usage that one should keep firmly in mind in trying to make sense of how the pronouncements of Christ on the matter might have been read by the earliest Christians. The truth is that the very word “divorce” becomes somewhat equivocal when we use it as a designation both for the Mosaic legal mechanism of which Christ speaks in the synoptic gospels and for the ex consensu termination of a marriage with which we are familiar today. Under the Mosaic code, only the man enjoyed the power of issuing a writ of separation; and, in an age and place in which a wife was typically much younger than her husband and always entirely dependent upon him for her livelihood, such a writ entailed the expulsion of a woman from her home without property, protection, or any means of supporting herself. Should a man tire of his wife and become enamored of another girl or woman, the only permissible method for exchanging his old bride for the new one was effectively to condemn the former to a life of total penury, and often of prostitution. It was entirely in keeping, then, with Christ’s constant excoriation of every injustice worked against the defenseless and the poor that he should condemn as an adulterer any man who would cast his wife away to a life of utter desperation in order to replace her with someone more to his fancy (Matthew 5:32, 19:9; Mark 10:11; Luke 16:18), and accuse him of forcing his former wife to commit adultery in turn (Matthew 5:32). Hence it is that the immediate response of Jesus’ disciples to these pronouncements is merely: “If such is the responsibility of a man with a wife, it is not profitable to marry” (Matthew 19:10).

As for the culpability of the woman who remarries (Mark 10:12), one must also remember that no woman, under the circumstances of that age, would have abandoned her husband for any reason other than to attach herself to another man. Moreover, the word ἀνήρ used in this passage means both “man” and “husband.” It would have been perfectly natural, then, for the earliest Christian interpreters of the gospels to assume that Jesus was speaking specifically about a wife who leaves her husband in order to be wed to another, perhaps obliging her second husband in the process to dispose of an inconvenient prior wife of his own. Certainly it would have been assumed that the man who marries a divorced woman (Matthew 5:32; Luke 16:38) is in fact someone who has lured the woman away from her home. At least, such a reading would seem to be largely confirmed by Matthew’s gospel, where a man who merely lusts after a “married woman” (γυνή) has already committed adultery in his heart (5:27), and where the dominical prohibition on men divorcing their wives is explicitly qualified by an exception for cases of πορνεία, or “harlotry” (5:32, 19:9).

Perhaps none of this tells us exactly how we should now understand the New Testament’s treatment of the issue of divorce. It certainly does not help us decide whether the terms in the New Testament that we habitually translate as “divorce”—in the gospels ἀποστάσιον (writ of separation) and ἀπολύσις (dissolution, release); in 1 Corinthians λύσις (loosing, dissolution) and ἄφεσις (sending away, expelling)—should be understood as exact equivalents of the sort of ex consensu “divorce” or διαζύγιον codified in imperial law, effected between two adults, each of whom “had a person” before the court. It does, however, allow us to understand how it is that the Christians of the first several centuries of the church did not naturally conclude that they were obliged to regard divorce and remarriage as constituting a permanent rupture of sacramental communion. For one thing, neither Paul nor Christ (at least, if Matthew’s gospel is accorded the same doctrinal weight as Mark’s and Luke’s) absolutely forbade every kind of divorce. Why then would the church have done so? And it does not seem unreasonable to wonder whether the various meanings of the scriptural terms we translate as “divorce” ought not to give us pause, and make us wonder whether we are not attempting to make sense of both the past and the present in terms of practices very different from our own.

At least, I do not find it intuitively obvious that Christ’s condemnation of a very specific unjust legal practice of his time and place, inflicted upon women who could make no appeal against it and whom it left defenseless, or of a very particular act of betrayal on the part of a truant wife and her lover, applies in the same way to the consensual dissolution of a hopeless marriage by two legally enfranchised adults. I do not mean to minimize even that sort of divorce. But I think we have all seen truly disastrous marriages, and we all know that there are few situations in life more spiritually, psychologically, and morally devastating. And it is worth asking whether that was what Christ was talking about at all. Or, then again, perhaps it is not. In fact, no Christian tradition assumes that this was what Christ meant. Hence even Rome allows for annulments. But here we arrive at the greatest ambiguity of all.

I have been asked on a few occasions to speak on the differences between the Orthodox and Roman church teachings and practice regarding divorce and remarriage—generally with the expectation that I will attempt to justify one over against the other, or at the very least hold them in tension. I have generally declined the invitation, not because I think the issue too complicated, but because I do not actually believe there is much real difference on this matter between the two communions, and yet I know that saying so will almost certainly initiate an excruciatingly tedious argument. It is not the case, it seems to me, that the Eastern church is especially lax with regard to marital dissolution while the Western is especially strict. Both are remarkably pliant and pragmatic (sometimes to a deplorable degree) when the crisis comes. In fact, this is what strikes me as so odd about the exuberant anguish occasioned by a few small, hesitant, almost majestically ambiguous formulations at the edges of Amoris laetitia. Viewed from any sane perspective, the Roman communion is absolutely brimming over with divorced and remarried persons who suffer no impediment at all in approaching the sacraments.

Really, when one looks at it closely, in light of both the empirical facts and the abstract principles of the matter, the distinction between divorce and annulment is specious all the way down. For one thing, as regards actual cases on the ground, anyone who has seen a sufficient number of annulments at close quarters (and I have witnessed quite a few) knows that they are not only fairly easy to obtain for those willing to make the effort, but that the terms governing them are applied with such plasticity that it is difficult to see how any marriage could fail to meet the standards. True, abusus non tollit usum (abuse does not do away with proper use); but, in fact, there really is no abuse involved. The very concept of annulment, as something ontologically distinct from divorce, is logically incoherent, and really can be taken seriously only by a mind so absolutely indoctrinated to believe that the Roman Catholic Church does not tolerate divorce and remarriage that no evidence to the contrary can alter that conviction.

The very premise that a marriage can be pronounced null and void, in effect retroactively (since that same marriage would be regarded as real and legitimate if suit for annulment had never been brought forward), on the grounds of some original defect of intention that means it was never a real marriage to begin with (though again, it would be considered a real marriage if that defect were never exposed), basically provides a license to regard every marriage as provisional only. After all, in what union of a man and a woman could one not detect some crucial defect of original intention if one were to seek it? Moreover, if one looks at the criteria customarily used to prove that a marriage was never really a marriage, they scarcely differ at all from the criteria that the Orthodox Church—in principle, at least—is supposed to accept as legitimate grounds for divorce. And what is a divorce, after all, other than a recognition that the original marriage was contracted in ignorance and without full mutual commitment to everything a true marriage is?

In the end, both communions grant dissolutions of marriages and tolerate remarriages with perhaps far too little reluctance; certainly neither requires a real penitential reconciliation with the church, as prescribed by the ancient canons. It might make Catholics feel better about their Eastern brethren if the Orthodox Church called these separations “annulments,” and issued formal absolutions from wedding vows under such terms. I have to say, however, that I am glad it does neither. To my mind, the concept of annulment is not only specious and logically contradictory, but also somewhat insidious—in fact, often rather cynical and cruel. It is terrible enough when a marriage—something on which a man and a woman, at what is usually a fairly innocent moment in their lives, have staked their futures and their hopes for happiness—falls apart. It is somehow all the more terrible when, solely for the sake of avoiding institutional embarrassment, we are asked to indulge in the fiction that it was never a real marriage to begin with.

I know of a woman whose well-connected husband managed to obtain an annulment without her consent, and on grounds that would have scarcely qualified him as a plaintiff before a secular divorce court. And I happen to know that, of the two, he was the far more culpable in the matter. What she found bitterest of all in the final settlement was that, according to her church, no one was obliged to admit that her life as a wife and mother of twenty-six years—in a union freely contracted, sacramentally solemnized, physically and fruitfully consummated—had broken apart. Rather than properly acknowledge the tragedy she had endured, she was expected to consent instead to something perilously close to golden-age Hollywood farce (Robert Montgomery and Carole Lombard discover that their marriage license from three years before was jurisdictionally irregular, and that they are not really man and wife in the eyes of the law, and oh, what hilarity ensues. . . ). To her it seemed both humiliating and dishonest to pretend that what had disintegrated after a quarter century, and left her emotionally shattered, was in any sense something less than a true marriage.

In any event, as I said at the beginning, I have no answers to propose to Catholic believers on the issue. More to the point, though, I also think the search for answers is somewhat pointless under the conditions that actually obtain. I cannot make myself believe that the distinction between divorce and annulment is logically sustainable. And so, as far as I can tell, the situation in both the Orthodox and the Roman churches is, for all intents and purposes, the same. Both communions call marriage a sacrament, both bless it before the altar as something that should in principle never be dissolved, and yet both do allow for such dissolution, and provide mechanisms for reconciling the separated spouses to the church. The communions use different words at certain crucial junctures, and justify the abrogation of sacramental vows by slightly different reasoning, but in the end the effect is the same. In either case, what occurs is a kind of spiritual and personal catastrophe. There is only, it seems to me, a single significant difference between their practices: in only one of the two communions is that catastrophe compounded by what sometimes looks like a cynical duplicity.