With Good Reason Fidelity to Moral Truth and the ‘Law of Graduality’ at the Upcoming Synod on the Family

Jul 6, 2015

In this article I intend to address a series of problematic and closely related ideas bearing on perennial Catholic moral teaching and its underlying understanding of the human person. All of them, in one way or another, have already manifested themselves in the run-up to the 14th General Assembly of the Synod of Bishops-to be held in October on the theme of "the vocation and mission of the family in the Church and in the contemporary world."  

There has been much speculation that the deliberations that will ensue at Synod 2015 could lead to some dramatic changes in the Church's pastoral ministry to Catholics who divorce and remarry civilly, to those who cohabitate, and to those who live in same-sex unions, and that consequently those changes might imperil Catholic doctrine on the indissolubility of marriage.  At very least, those deliberations will not be unimportant, especially in giving shape to Pope Francis's mind on these matters, his of course ultimately being the final word.

We should be grateful that these problematic ideas do not appear to have significantly influenced the synod's working document-the Instrumentum Laboris-released last month. My point however, is that, if not consistently avoided by a majority of the synod fathers, these ideas still have the potential to exercise considerable influence on the participating prelates, and were they to do so, would have irreversibly deleterious consequences for the Catholic faithful.

Allow me to begin, however-especially for the benefit of readers who have not been following the synod preparation closely-with a brief, but by no means exhaustive, recap of important moments in the ensuing debate.

Recap of the debate and the controversy

The preparations for Synod 2015 have occasioned a renewed debate within the Catholic Church over questions most Catholics believed to have been essentially settled matters: whether, and under what circumstances divorced and civilly remarried Catholics (without benefit of annulment and continuing to enjoy sexual relations in the second union) could be allowed to approach holy communion; whether the Church can in some way validate such second unions; how the nullity of one's marriage ought to be determined.  Catholic teaching on these issues was expounded in Pope St. John Paul II's 1981 apostolic exhortation Familiaris Consortio (specifically in number 84)-itself, the product of a synod on the family-and the doctrine later incorporated into the Catechism of the Catholic Church (Cf. 1649-1651). Be that as it may, Pope Francis believed these issues were worth revisiting, and that is what many good minds in the Church have been doing over the past several months. Not surprisingly, new questions have also been attached to the aforementioned issues: Can the Church grant some kind of validity to cohabitating couples? Can the Church not affirm the "values" present in same-sex relationships without compromising her stance on homosexuality?

In February 2014, at the request of Pope Francis, Cardinal Walter Kasper gave a lecture titled "The Gospel of the Family" to an extraordinary Consistory of Cardinals gathered in Rome in preparationfor the upcoming synods, in which he included a series of proposals for dealing with the divorced and remarried. It was, we might say, the first volley in what has become the current tense and very public theological debate. Then, in October of 2014, a smaller, preparatory synod with a select number of bishops convened in Rome to commence discussions.  

At the halfway point of this first-extraordinary-synod, a "mid-term" report provoked considerable controversy.  This report was supposed to have taken and represented the pulse of the bishops, presenting in written form a summary of their input thus far into the issues at hand. Instead, that document reflected much more the ideological bent of its several authors, who seemed to consider that much was up for grabs in terms of the Church's pastoral approach to the divorce and remarried, challenging the Church to countenance the "constructive elements" present in the relationships of cohabitating persons and to "value the sexual orientation" of "homosexual persons."

Such proposals were considerably tempered a few weeks later with the publication of the final synod report (relatio synodi). This then became the basis for Instrumentum Laboris published today. This new working document incorporates the 2014 synod final report in its entirety, but almost doubles its content in size by incorporating input from a months-long consultation process with dioceses around the world.  

It is well known that not a few Catholic bishops are sympathetic to Kasper's proposals, especially in his native Germany. Indeed, it came as no surprise in early May when the Zentralkomitee der deutschen Katholiken (Central Committee of the German Catholics) released a statement encouraging the Synod fathers to give serious consideration, among other things, to "a re-evaluation of the methods of artificial birth control,"… "an integration into the life of the Church of spouses who now live in a second marriage after a divorce, and also their admittance to the Sacraments after a sound decision of conscience," and "the unconditional acceptance of the cohabitation of loyal same-sex partnerships, and a clear attitude opposed to those current exclusions and devaluations of homosexual persons."

Later in May, an invitation-only private gathering-including the presidents of the episcopal conferences of Germany, France, and Switzerland, and some fifty bishops, theologians, and other assorted experts and invitees under the direction of German Cardinal Reinhard Marx-was held at the Gregorian University in Rome in late May. The prime focus of this assembly was a strategy for advancing the Kasperian proposals, including some form of Catholic "affirmation" of homosexual unions. Adding to a sense that lines are being drawn and sides taken, a symposium of African bishops met in Ghana in early June. The two groups of prelates could not be more at odds on those proposals.

Responses to Kasper's Proposals

It is not difficult to find thoughtful accounts of all the debates that have ensued in the past year and a half. Here I will briefly identify some of the key responses to Kasper's proposals, keeping in mind that these proposals are not recent.  

In 1993, Kasper joined Archbishop Oskar Saier and then-bishop (later Cardinal) Karl Lehmann, in authoring a pastoral letter that advocated for the admission of divorced and civilly remarried Catholics to Communion. Their implicit contention in that pastoral letter-that the bond once established by valid, sacramental, consummated marriages sometimes simply dissolves, and that a Catholic could in conscience decide that such was the case with his or her previous sacramental marriage and thus approach communion in good faith-was dealt a devastating rebuttal a year later by Germain Grisez, John Finnis, and the late William May.

An excellent essay by several authors (the majority Dominicans from the House of Studies in Washington, DC) detailed a systematic response to Kasper's proposals.  Christian Brugger has addressed proposals very similar to Kasper's put forth by the Jesuit Giancarlo Pani-detailing specifically how we would best interpret the Council of Trent's approach to the practice of oikonomia by the Orthodox Churches (whereby under certain circumstances a blessing is given to a second (civil) marriage after a period of penance). Finally, the most comprehensive and authoritative response to date was the volume edited by Fr. Robert Dodaro, Remaining in the Truth of Christ, which counted five Cardinals among its co-authors and was nothing short of a very public rebuke of their colleague Cardinal Kasper.

Some Problematic Ideas

Ideas have consequences-we well know.  My concern here is a series of highly problematic and closely related propositions with regard to conscience, human freedom, the moral qualification of human choices, and the Church's understanding of our progress in moral living that may well be exerting an influence on the thinking of any number of Catholic bishops, especially many of those set to participate in Synod 2015.

I would note from the outset that my reflections here invite the valid question-and concern-as to exactly what metaphysics and what philosophical anthropology each of the Synod fathers will bring to his task in October. Theology presupposes philosophy, just as revelation presupposes lived human existence.  Show me the framework of your theological system, and I will tell you something about the metaphysics on which it is built.

I am not intimately familiar with the theological system or project-presumably he has one-of Cardinal Kasper, whose theological output and influence in the final decades of last century was considerable. Fortunately, others are. A recent critical assessment of the philosophical underpinnings of Kasper's theological project by Professor Thomas Heinrich Stark illustrates this very point in spades.

Whence the Eagerness to Affirm the Positive (Within the Disordered)?

Let's begin by asking why the authors of the October 2014 synod midterm report felt so compelled to explore avenues for a more or less formal Church "affirmation" of the "positive elements" to be found in "faithful" cohabitating relationships and in same-sex unions, and to "value" the sexual orientation of "homosexual persons"?  There is much more behind this than mere political correctness, or succumbing to one of our odd moralistic fetishes du jour, namely that of "affirming positive values" (in just about anything), or simply a hat-tip to a secular culture which demands such affirmation.

To fall short of such an affirmation-in the mind of not a few theologians and bishops-would be to remain beholden to an impersonal ethic of rule-following, an ethic putatively in tension with the lived reality of these individuals, and incompatible with a sound pastoral sensitivity and personalistic approach to morality.  Cardinal Kasper has been quite clear on his perception of this supposed tension when he seems to imply that fidelity to absolute moral norms is incompatible with the Church's understanding of the flexibility of positive law (technically referred to by the Greek term epikeia), which needs to be malleable in view of the applications and adaptations that could not be foreseen by the framers of such laws. This is well and good as far as it goes for positive law. Of course to suggest that all moral norms should be subject to such adaptation and flexibility is not only to conflate positive law with the whole of moral normativity but also to suggest the non-existence of moral norms that have no exception, a stance incompatible with perennial Catholic moral teaching.

Accordingly, I argue that this eagerness to entertain such notions rests on at least two problematic conceptions: an idea of conscience whereby it is construed as a personal decision and a faulty notion of human freedom.

A Problematic Conception of Moral Conscience

The view of conscience as personal decision conflates the genuine judgment of conscience (something which can and should arise in one's interiority fundamentally independent of one's emotions and decision-making capacity) with mere moral opinion.

Granted, this is something of a default understanding of conscience in our contemporary culture.  Its highly problematic reduction of conscience to the level of moral opinion, however, sets it deeply at odds with the perennial Catholic, natural law understanding of conscience.  

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Aquinas held that conscience in the strict sense was as an act of human reason-called a judgment-following upon and concluding a time of deliberation. Conscience is reason's awareness of a choice or action's harmony or disharmony with the kind of behavior that truly leads to our genuine well being and flourishing. If our choice is not in accord with the judgment of a rightly formed conscience, then that judgment will linger in our awareness and present itself as a felt disharmony between the choice and the moral norm (and corresponding virtue) that is being violated. While such felt disharmony is indeed of an emotive nature (e.g., a healthy emotional guilt), the judgment of conscience remains something distinct and irreducible to the negative feeling that happens to accompany it.

In a word, in the Catholic understanding of conscience-based firmly on the thought of Aquinas (who in turn, it must be pointed out, was simply being a student of human psychology here)-conscience does not create moral norms: it is not literally autonomous-a law unto itself. Rather, conscience is the manifestation of human practical reason guiding an individual to be fully reasonable, to embrace and be harmonious with a perceived ordering of personal choices and actions which most fully respects the integrity of the human goods involved and is most conducive to one's genuine flourishing and that of others.

One might make "decisions" based on "opinions" about how to achieve the good, but such decisions might actually have nothing to do with the genuine judgment of conscience on such matters. On this view, conscience is essentially creative, autonomous, a law unto itself, settling personal moral matters by way of autonomous decision.

A Problematic Conception of Freedom and Moral Self-Determination

The aforementioned faulty view of human freedom posits that it actually operates on two levels, one conscious-the state in which we make everyday choices-and the other deeper, transcending conscious awareness, wherein we find our true self-worth and determine ourselves as moral beings. Presumably, barring stark evidence to the contrary (such as having a zest for acts of genocide), everyone's fundamental option is in the "right" direction from the get-go of one's moral life:  the radical orientation of one's whole life is toward God, as evidenced by the collective whole of one's "right" moral choices in everyday life, the rightness of which is primarily assessed by the motives that inform them.  

Given this two-tiered understanding of personal freedom, a person can licitly at times choose what these theorists would term as "pre-moral," "physical" or "ontic" evils (such as abortion, adultery, euthanasia, and the like), albeit reluctantly and regrettably, and bring them about. However, if brought about for personally valid and substantial reasons, such choices and actions can be "right" moral options. Nor do these choices have an impact on the core or fundamental moral goodness (the "fundamental option") of the persons who thus operate as long as their choices are buoyed by right motivations and a careful moral calculus that has assured a greater net outcome of good consequences over evil or less desirable consequences in choosing and acting.

I have just described, of course, the conception of human freedom that underlies the set of moral theories broadly characterized as Proportionalism, all of which were definitively refuted in Pope St. John Paul II's landmark encyclical Veritatis Splendor.

Proportionalism can be defined as a moral theory that proposes the possibility of determining right and wrong action by calculating the maximum Net good or minimum Net harm entailed in performing that action.  This theory holds that such a calculation is possible in light of a reasoned consideration of benefits and harms (especially in terms of foreseeable consequences) entailed in the proposed action, and in light of what would follow by its omission. These benefits and harms would then be calculated. The theory then proposes that right action would be that which offers a better proportion of benefit to harm. Consequently, if that calculation is made with care, and choices made intending the greater net good as an outcome, one could conceivably choose and commit even behaviors which the Church has consistently held to be intrinsically evil, and not in any way compromise one's basic moral orientation or "fundamental option".

While Veritatis Splendor thoroughly excoriates this dualistic understanding of human freedom which separates choices and actions from one's basic moral orientation, those ideas-though perhaps fallen from the prominence they enjoyed in the 1970s and 1980s-are still influential in the thinking of not a few priests (and, it is to be feared, bishops) who were students of Proportionalist professors of Catholic moral theology during their seminary years.

A Problematic Appeal to the Law of Graduality

These ideas inevitably lead some to suggest that it can be possible for at least some of the baptized to remain validly, legitimately, without consequence to their ultimate salvation, and in varying degrees, in communion with the Church even when, in their life-style choices (their decisions), they openly reject the Church's perennial moral teachings on marriage, cohabitation, premarital sex, and sexual activity between persons of the same sex.  To be clear, we're not talking about persons who might engage in such behaviors in a state of invincible ignorance (which the Church's moral tradition naturally understands can attenuate and even eliminate personal responsibility); the idea here is that persons would knowingly engage in such behaviors acknowledging the inconsistency of such behaviors with Church teaching, even that they are gravely sinful.  The further idea is that, in response the Church would somehow find a way to affirm some degree of soundness in their moral status, and "good standing" with the Church, to use a more common expression. Granted, even the baptized who persistently remain in un-repented  mortal sin still remain related to the Mystical Body-but the theologically laden concept of communion cannot adequately describe the nature of that relationship.

To arrive at such a proposition, in addition to the preceding notions, requires taking more than a bit of theological license with a principle of Catholic moral teaching normally referred to as the law or principle of graduality, or the law of gradualness (hereafter LOG). The principle seems to have come to the fore of the moral theological lexicon particularly when John Paul II referred to it in Familiaris Consortio (in a paragraph which includes an internal quote of a homily he delivered at the close of the sixth Synod of Bishops, October 25, 1980):

And so what is known as "the law of gradualness" or step-by-step advance cannot be identified with "gradualness of the law," as if there were different degrees or forms of precept in God's law for different individuals and situations. In God's plan, all husbands and wives are called in marriage to holiness, and this lofty vocation is fulfilled to the extent that the human person is able to respond to God's command with serene confidence in God's grace and in his or her own will (34).

Though not offering a precise formulation of the LOG, John Paul II, in the same exhortation, points to the proper Christian context which forms the framework in which the LOG is to be properly understood:

What is needed is a continuous, permanent conversion which, while requiring an interior detachment from every evil and an adherence to good in its fullness, is brought about concretely in steps which lead us ever forward. Thus a dynamic process develops, one which advances gradually with the progressive integration of the gifts of God and the demands of His definitive and absolute love in the entire personal and social life of man. Therefore an educational growth process is necessary, in order that individual believers, families and peoples, even civilization itself, by beginning from what they have already received of the mystery of Christ, may patiently be led forward, arriving at a richer understanding and a fuller integration of this mystery in their lives (9).

Hence, the LOG, properly understood, has its origin in the very reality of human psycho-moral development: as in most areas of human development, so too in the moral sphere, maturity manifests itself through a gradual process-"steps"-toward an ever deeper appropriation of right moral behavior as instantiated in concrete choices and actions.  In the Christian context, it articulates the gradual nature of conversion. Genuine conversion places us necessarily on a course that intends steady progress-notwithstanding human weakness and occasional moral failures-toward an ever more consistent and holistic embrace of the truth of Christ's moral teaching.  Historically, as a "law" or moral principle, the LOG was applied in the Church's missionary endeavor as a measure for pastorally guiding converts to a steady embrace of moral precepts as presented by the Church. This is the necessary context in which the Church understands the LOG.

But it is vitally important to understand, as noted in Familiaris Consortio 34, that the LOG does not imply that either the convert or the Church should craft and validate individualized and autonomous moral norms "as if there were different degrees or forms of precept in God's law for different individuals and situations." That would constitute the very perversion of the law of graduality to which John Paul refers-namely, the "graduality of the law." Converts to the faith are to be led and assisted in appropriating the new moral requirements of life in Christ in progressive steps of gradual conversion and exigency, assuring them of God's mercy, presence, and grace, safeguarding against their discouragement, accompanying them in a step by step renewal of life, but without diminishing the full import of the moral requirements.

The authors of the October 2014 synod midterm report creatively attempted to import into this sound principle of moral and pastoral theology another notion of "graduality," which has its own, very distinct theological context: namely, the degrees of relationship of the different Churches and ecclesial communions (and of persons baptized in those communions) to the Roman Catholic Church.  This movement of thought may be discerned in number 17 of that report:

In considering the principle of gradualness in the divine salvific plan, one asks what possibilities are given to married couples who experience the failure of their marriage, or rather how it is possible to offer them Christ's help through the ministry of the Church. In this respect, a significant hermeneutic key comes from the teaching of Vatican Council II, which, while it affirms that "although many elements of sanctification and of truth are found outside of its visible structure ... these elements, as gifts belonging to the Church of Christ, are forces impelling toward Catholic unity" (Lumen Gentium, 8).

The latter principle regarding degrees of relationship to, or communion with the Church, is articulated in the 2000 Declaration from the Congregation for the Doctrine of the Faith, Dominus Iesus:

On the other hand, the ecclesial communities which have not preserved the valid Episcopate and the genuine and integral substance of the Eucharistic mystery are not Churches in the proper sense; however, those who are baptized in these communities are, by Baptism, incorporated in Christ and thus are in a certain communion, albeit imperfect, with the Church. (17)

That formulation has its roots in the Second Vatican Council's decree on ecumenism, Unitatis redintegratio, 22, and-as suggested by the authors of the midterm report-in Lumen Gentium, 8.

However, to import the latter notion of gradualness into the law of graduality, is to open up a space for the very "graduality of the law" denounced by Familiaris Consortio. To further suggest that in such a conflation of meanings the synod fathers should discover "a significant hermeneutic key" that would enable them to affirm the "positive elements" discoverable in intrinsically disordered behaviors-or to affirm that Catholics who, in deliberate contradiction of the Church's moral tradition, engage in such behaviors yet remain nonetheless (albeit "imperfectly") in a communion of life with the Church-is not only intellectually dishonest but also incompatible with the Church's received understanding of how our deliberately chosen behaviors shape us as moral beings and affect our relationship with the Author of the moral order. In a word, such a project is-through and through-incompatible with moral truth as consistently taught by the Church guided by the Holy Spirit.  Genuine pastoral concern for men and women on the road of conversion can never be served by infidelity to that truth.

Diakonia veritatis

In the end, the synod fathers bear the grave responsibility of the diakonia veritatis-the ministry of truth, so eloquently elaborated by Pope St. John Paul II in his encyclical Fides et Ratio (Cf. nn. 49-56). As the same Pontiff observed in his first encyclical, Redemptor Hominis, "Being responsible for that truth also means loving it and seeking the most exact understanding of it, in order to bring it closer to ourselves and others in all its saving power, its splendor and its profundity joined with simplicity" (n. 19). Notwithstanding the evident and ever-growing complexity of the manner in which the Church attempts to communicate truth to a post-modern secular culture, we can only hope that the synod fathers will think well, think carefully, and think with the Church-sentire cum Ecclesia.

The Instrumentum Laboris for Synod 2015 gives some tentative assurance that these very problematic ideas can and will be eschewed by the synod fathers.  The notion of graduality operative in the working-document seems sound and consonant with the Magisterium.  As for specific proposals that have seemed in tension with the Church's received teaching and pastoral practice, I would note:

•    The "journey of reconciliation or penance" for the divorced and civilly remarried (through which they might be admitted to Holy Communion) about which the document suggests "a great number agree" in paragraph 123 is nothing other than a reaffirmation of the pastoral elements already outlined in Familiaris Consortio, 84: guidance of the local bishop, the couple avail themselves of the Sacrament of Penance, investigation into the nullity of the prior bond, and commitment to live as brother and sister.  

•    While paragraph 123 also refers to a second more problematic conception of a "way of penance" leading to communion (one that would place discernment of their situation in the hands of a priest designated for the purpose, and rely largely on the couple's and the priest's assessment of the validity of their prior bond) it is mentioned only in passing.

•    For the divorced and civilly remarried who are not on such a penitential path, the document does push the notion of pastoral "inclusion" of such persons in their local Christian communities to an extreme, even appearing to suggest (paragraph 121) that the exclusion of persons in these irregular situations from liturgical ministries (e.g., lectoring at mass) should be "re-examined."  

•    The possibility of the Church assuming some form of the practice of the Orthodox Church in blessing second marriages (oikonomia) is only given a brief, and less than enthusiastic, mention in paragraph 129.

•    With regard to persons with homosexual tendencies, the working document simply reaffirms (paragraphs 130-132) what should be current pastoral practice in the Church, namely, that such persons are to be received with respect, gentleness, and sensitivity. At the same time, the working document strongly reaffirms that "there are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family." It also affirms that the world's bishops are not to succumb to cultural pressures on this question.

Fully certain that the Holy Spirit is constantly assisting the Church, and particularly the successor of Peter, we pray that the synod fathers-in the form of a final synod report, along with the Holy Father's eventual post-synodal apostolic exhortation itself-will not back away from the moral imperative of articulating fundamental truths about the human person: that all share a common human nature whose fulfillment comes about by participation in intelligible human goods pursued through choice and action in accord with right reason, and that human persons can know universal truths about our human nature and about what does and does not fulfill that nature, and what consequently is incompatible with Divine charity in this life and in eternity.

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