FROM A CANON LAWYER: Fr. Alesandro’s Honest Call for Revolution

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By Edward Peters, JD, JCD, Ref. Sig. Ap., January 30, 2018

In proposing that “the [C]hurch should be open to the idea that sacramental marriages pass through varied stages apart from sexual intercourse before absolute indissolubility emerges”, Fr. John Alesandro, a respected American canonist, is calling for revolution.

Like all good revolutionaries Alesandro employs stirring rhetoric to attract adherents to the cause, claiming, for example, that “the Catholic Church has simplistically ‘canonized’ marriage, stripping down its sacred and sacramental character as a covenant and likening it to a secular contract. The time has come to liberate the sacrament of marriage from its austere identification with natural marriage by recognizing its sacramental uniqueness, the newness Christ gave it, and the fact that the fullness of this mystery comes about not in an instant but through a couple’s interpersonal growth into the ‘one flesh’ of Genesis…

Wow. Where do I sign up?

To be sure, unlike most of his co-revolutionaries, Alesandro is no patzer sprinkling canonical terms such as “internal forum” onto the mash of feelings being served up by some as a substitute for sound catechesis and faithful discipline. Even the amateurs’ favorite (though routinely botched) distinction between objective and subjective culpability is only mentioned once by Alesandro, and that, mostly as a distraction to be avoided by supporters of the cause.

Rather, in the wake of his tendentious depiction of the Church’s unswerving efforts to preserve Christ’s teaching on marriage and her progressive attempts over the centuries to understand that teaching better and articulate it more fully, Alesandro the canonist, with a professional dexterity and a personal honesty that cloaks the startling nature of his proposal, identifies two canonical-doctrinal points that must be confronted if the project to approve, in the short run, holy Communion for divorced-and-remarried Catholics, and, in the longer run, the mitigation of Church teaching on the complete indissolubility of consummated Christian marriage, is to succeed, namely: what is Christian (read: sacramental) about ‘Christian marriage’ and what does consummation mean in regard to Christian marriage?

While I think Alesandro’s more disturbing proposals for “renewal” turn on the consummation issue, his comments on the sacramentality of marriage warrant brief contextualization for readers, too, and I look at them first.

Alesandro raises a question long familiar to canonists and sacramental theologians but unnerving perhaps to newcomers, namely, how can (indeed must) every marriage between two baptized people (i.e., not necessarily Catholics, not even necessarily ‘religious’ folks) automatically be a sacrament? It is a fair question (Benedict XVI asked it back in 2005) to which a comprehensive answer has not yet been offered by the Church. But upon appreciating the importance of this question readers can easily slip into a wrong concern, namely, suspecting that maybe marriage between two baptized persons could exist without its being a sacrament and therefore, like other non-sacramental marriages, could be dissolved for the spiritual benefit of either or both parties, paving the way for one or more subsequent marriages presumably each more ‘faith-filled’ than the previous.

My response to that concern is simple: while the Church has not yet comprehensively explained how all marriages between baptized parties are necessarily sacramental, that sacramentality is preciselywhat she proclaims about such marriages and does so with, I suggest, the infallible certainty of her ordinary magisterium. Now, if the sacramentality of all marriages between the baptized is being infallibly taught then the fact that important questions remain aboutthat teaching in no way allows one to question the assertion itself.The task of canonists and theologians is to discover such truths as might flow from the assertion not to dispute their foundation.

More could be said about some of Alesandro’s observations on the sacramentality of marriage—for example, do any informed observers really think that “natural marriage and sacramental marriage are identical” or hold, contrary to Canon 1099, that “they are sacramentally and indissolubly married [who] deny that very sacramentality”?—but his comments about the canonical consequences of consummation are more radical and more worrisome. So, on to them.

First, Pope Alexander III did indeed reconcile two theories about what made marriage (consent vs. consummation) but he did not—as one might surmise from reading Alesandro’s description of the decision without his background—come up with those theories out of thin air; both theories had many, many centuries of support behind them.

That said, the notion of consummation has passed through various attempts at identifying what the act was that rendered Christian, i.e., sacramental, marriage impervious even to a pope’s considerable power over sacraments. A chuckle-stifled “well, you’d know it if you saw it” test would not suffice, for sexual relations between two people, let alone between spouses, speak at many levels.

Some attempts to identify consummation as, say, that which follows from the “exchange of rights to the body” (1917 CIC 1015, 1081), would strike some today as excessively legalistic, but they were at least attempts to identify reliably what this discussion is about. The Second Vatican Council’s development of a wider personalist understanding of marriage as the coming together of the whole of life (consortium totius vitae) of two persons is another advance, but must one conclude that such broadening of horizons on marriage demands abandonment of earlier insights about consummation? The Code revision commission was clear that, for example, the richer “covenant” imagery for marriage in law did not replace, but rather assumed, earlier “contract” language.  Communicationes 15: 221-222. May we not conclude something similar here, that this conjugal ‘sharing of the whole person’ includes those acts that are reserved for the married, even if marriage certainly means more than that? Or does “renewal” in one area of law require repudiation of another?

As is the case with the automatic sacramentality of Christian marriage, I think that the basic understanding of consummation as a specific act that confers (extrinsic) indissolubility on Christian marriage is a truth taught with infallible certainty by the Church’s ordinary magisterium. But unlike the questions one hears about the sacramentality of marriage no one has seriously challenged the understanding of the nature of the conjugal act or its canonical-doctrinal implications for centuries. That fact alone should put the brakes on public ruminations toward redefining consummation and/or reconsidering its impact on Christian marriage until it is carefully sorted.

But if prudent caution in the face of possible doctrinal certainty is not enough to quell speculation herein, let this point serve: Alesandro is suggesting substituting for a concrete, verifiable act carrying crucial canonical and doctrinal consequences, a criterion-less, ever-evolving, quasi-intuition about what consummation is (a process wherein “the actuation of true interpersonal self-giving” occurs … no, really?) and about when (if ever, for “hindsight may be the only way to determine whether such completion occurred”) consummation confers on Christian marriage the fullness of indissolubility that God placed in marriage. Alesandro’s amorphous test does not even qualify as the proverbial “hard case” that makes bad law for it is not a discernible case or test at all.

In sum, even if the notions of sacramentality and/or consummation need reform, that is, if we need to refine our understanding of the two things that render marriage completely indissoluble per Our Lord’s teaching, then criteria such as Alesandro seems to have in mind are not the way to go, for they introduce deep and unresolvable uncertainty into an institution that millions upon millions of people need confidence in here and now.

And that’s not a call for reform and it’s not a call for “renewal”. That’s a call for revolution.


Edward Peters, JD, JCD, Ref. Sig. Ap.

Dr. Peters has held the Edmund Cdl. Szoka Chair at Sacred Heart Major Seminary in Detroit since 2005. He earned a J. D. from the Univ. of Missouri at Columbia (1982) and a J. C. D. from the Catholic Univ. of America (1991). In 2010, he was appointed a Referendary of the Apostolic Signatura by Pope Benedict XVI. For more infomation on Dr. Peters, see CanonLaw.Info.