Remarriage After Divorce: The Case for Authoritative Discretion

I

No problem bothers the churches with a more gadfly-like persistency than that of remarriage after divorce. Under what conditions, regulations, prescriptive canons, discretions, legalities, or rigors shall it be permitted — if at all? Each and every communion is edgy on the subject. Each and every communion has its own dissociate policy. In no field is practical church unity less evident and more needed. And in no group is the issue more intense than in the Protestant Episcopal Church. Almost one might say that this Church is a burning glass to focus rays from all sacerdotal angles. For within it is an inclusiveness of variant opinion more extreme than in any other. Its Anglo-Catholic wing dates its fundamentalism from no mere Reformation century, and its liberals, while not libertarians of laissez-faire faddisms, are nevertheless decidedly modern-minded. Between these schools of interpretation there is inevitable divergence of opinion on many a subject, but on marriage, divorce, and remarriage there are such typical diversities of philosophy and practice that no other faith will find its policy unrepresented in the debate.

Because the pitted convictions connote more than internal interest, all who are concerned that the churches shall maintain their spokesmanship for the sober better judgment of society must take notice.

If you and I are not gravely perturbed by the tandem polygamy-polyandry which the sensationalist pagans of today accept, but which conforms sufficiently to legality to be got away with, we should be! Even if we dismiss the flamboyant headlines, mounting statistics from the divorce courts amply justify the terror decent people feel at undisciplined laxity. Granted that far the greater number of remarriages are not multiple, but only the second marriages of men and women whose justification therefor seems to their sober friends both advantageous and comparatively deserved, the churches cannot be untroubled by the ease of ‘readjustments’ and the placidity of community acceptance. The churches must take a more united stand; not be swept by the tide of the times into easygoing blandness where there is no footing at all. But is there no stand short of the rock of absolute rigor? Must the Church austerely decree the indissolubility of all marriages?

Perhaps the saucy answer which the hard-boiled will fling is that the churches really have to do only with a small fraction of the total divorce constituency, and that they may legislate and fulminate to their hearts’ content, yet society will go its own go, regardless. It is true, the churches admit, that a very small fraction of the total divorce constituency is of church members. A questionnaire answered by 787 Episcopal parishes, 695 Presbyterian, 682 Baptist, 520 Congregationalist, 1062 Methodist (and none of these selected unless for likelihood of maximum danger), reported that in 87, 92, 91.09, 93.9, and 93.9 per cent of the congregations, respectively, one or less divorce was known of husbands and wives both of whom had been in regular relationship with their church. The Roman Church’s figures would be even tighter.

To be sure, this questionnaire was quoted in 1931, but the figures six years later cannot have changed by floodgate volume. The Church’s joyous assertion is that such statistics prove the constructive, practical influence of religious practice. That stability of character and that grace of team-play mutuality which build the unbreakable family evidently have something done for them by the spiritual reality of church life. Indeed, in a great majority of such homes there is not only a bond which defies strain, but such a normal, positive affection that the wrench divorce implies has never come into remotest contemplation. Yes, the churches will cheerfully admit that the divorce problem is in comparatively small degree the problem of ‘the family of God.’ But the degree is less small each year!

This does not end the Church’s rebuttal to the taunting sophisticate. For, the ecclesiast might observe, even said sophisticate seems to feel that he wants a church wedding when the time comes. No Justice of the Peace’s ceremony gives quite the Class A rating in prestige given by a church ceremony. The ‘Church’s blessing’ is still sought, to give the kudos of respectability, even by those who have little other use for the Church — which would seem to give the churches a whip hand in the matter, if they dare to use it.

There are some of us who wish the vaunted principle of the separation of Church and State could apply here. Marriage is an economic and social institution; in this the State is involved. Marriage may also be sacramentally holy; in this the Church is involved. If the time could ever come when by definite interchurch agreement the churches would surrender their secular function, retaining only their truly spiritual privilege, then those persons who were ready only to attempt a minimum (economic and social) standard for marriage would utilize only the secular agency; but those ’who were conscientiously ready to attempt a maximum, spiritual standard would come to the Church and, by making their vows of fealty before its altar, commit themselves publicly to the endeavor to realize ideals of perfection in their union. Relieved of all tieup with non-spiritual secularism, the Church would surely find its dealings with its legitimate own more flexible and mystic.

II

Yet, since this disentanglement seems unlikely, the churches have still a major step they could take, either separately or together: to restrict the Church’s validations to the Church’s own members. This sounds audaciously drastic. What! Not marry all the couples who apply — or at least all who have not a divorcee participant? Exactly! We have anomaly enough with ‘Easter Christians’ without ‘Wedding Christians,’ too, who exploit the Church for a fashionable flavor lent their wedding and are not seen again inside church doors.

And most certainly we must divest ourselves of those ‘Rewedding Christians’ who wish the Church’s benediction to vindicate their post-divorce union and intend no continued loyalty to the thus-used Church. If there is to be any remarriage at all allowed after divorce, in the delicate and intimate question of which person is the really innocent and therefore deserving victim of the marital catastrophe no one who is not closely in touch with the lives of the applicants can be in any position to judge. Pastoral acquaintance and proper church standing ought to be axiomatic.

The casual shopper for a marrying parson has no rightful claim. The marriage ceremony is as much to be thought a milestone moment in a continuous evolution of character by the Church’s help as is confirmation or its equivalent. One does not confirm the momentary, drop-in stranger; why should one marry an unaffiliated, unknown pair and wave them on their triumphant way with a certificate? Even if the case involved a nonChurch individual who could produce a court decree which evidenced exactly the canonical grounds on which remarriage is permitted and on which the Bishop would give his nihil obstat, should the remarriage then be performed? Is the pronouncement by the exploited Church only a bit of magic, to be bought for a fee or had for the asking? No, the marriage ceremony goes along with the other gifts the Church dispenses to those whom, by shepherded comradeship, it knows to be ready for them. Both before and after the wedding there must be contact and won trust. Let the churches tighten up their usage and put marriage into the curriculum of continuous pastoral eduction of their own people’s lives. Most of all, remarriage after divorce is only to be considered for those persons whose characters can be vouched for by their actual clergyman.

III

The present Canon 41 of the Episcopal Church code fails in two directions. It allows its ministers to remarry the innocent party in a divorce granted at least one year previously on the ground of adultery, the Bishop having been sufficiently assured of the legal decree to that effect. (Where sundry specified grave wrongs are proved to have existed before the marriage, the Bishop is authorized to treat the dissolution of that union as an annulment; but this provision really has no bearing on the problem here discussed.) One failure of this canon is that there is no stipulation that only church folk may apply for this ecclesiastical considerateness. With the second insufficiency of the canon the conscience of the average realistic layman is much more concerned: —

The realists remind the canonists that divorces are seldom sought on the ground of adultery. Yet a tragically greater number of unions are wrecked by unfaithfulness than ever nominate it in the unbinding of the bond. Courteous camouflage covers the gross carnality of the adulterer by specious euphemisms of desertions, extreme mental cruelty, or incompatibility. Surely the Church should base its action on actualities, not on nominal allegations which mask them.

The story runs, however, that one forthright Bishop was accustomed to go behind the legal allegation to discover whether the seventh commandment had been violated, that the truly innocent ex-partner might have the benefit of the canon’s intention. He was soon indicted for defamation of character by one he had personally adjudged guilty on the legally unmentioned count; for the prosecutor recited that, since everyone knew the Episcopal Church allowed remarriage to the innocent party only on this specific charge, it was plainly connoted by the Bishop’s sanctioning of the remarriage that the party of the second part was an adulterer, although the court had found no such guilt. Who can blame any Bishop, thereafter, for being prudent and declining to accept extralegal evidence? And if the other person of a divorce remarries, any Bishop will hesitate to brand that marriage as an adultery, thus enabling the more tardily applying person to claim the benefit of the canon. For the prior remarriage is legally sanctioned and cannot safely be called immoral.

Actualities thus seem checkmated.

Realists also know that unfaithfulness is not the only wrong which destroys the home. Insanity, perversions, cruelty of all sorts, long imprisonment for crime, habitual drunkenness — the list of vitiations could be much extended. All the causes for divorce accepted by the State are not fictional devices. There are other sins than sexual. Are they sufficient to persuade the Church that a marriage in which they intolerably occur is not a true marriage? There are those who feel so.

Realists also thrust home the further question: why will not the Church forgive and absolve realized, tragic mistakes, sometimes where there is yet no gross iniquity a-festering? It forgives the penitent other sins; why not the really anguished one of its faithful own whose first marriage clearly never should have been? Is this query on too thin ice for sacerdotal comfort?

IV

All this seems to make toward the allowance of authoritative discretion somewhere in the Church. If the Church is to face facts for the benefit of those it knows from vital touch to be Laocoön victims and give them the chance for one honest, wholesome love, even after a wretched blunder, is there any alternative to authoritative discretion? The alternative is not unauthoritative indiscretion on the part of a chance clergyman for the complaisance of non-Church indifferentists (for that chance clergyman might conceivably and exceptionally be a spineless milksop with no won’tpower in his make-up, an idiosyncratic individualist, or even a fee-seeker). Nor is it discretionary authority too completely vested in even the earnest parish priest, who could be too easily accused of favoritism or bigotry by his own parishioners. Rather, it is authoritative discretion permitted some trustworthy higher official who can coördinate regional practice but who must first of all seek the frank opinion of those who have had pastoral intimacy with the applicants — this authoritative discretion to cover only bona fide members of the Church.

To meet all these contentions the Commission of Marriage and Divorce in its report to the assembling General Convention of the Protestant Episcopal Church recommends the following addition to the existent canon: —

Any person whose former marriage has been dissolved for any cause by a civil court may after the expiration of one year from the granting of the divorce apply to the Bishop of his or her diocese for permission to marry another person; and nothing in this Canon shall deprive the Bishop of his ecclesiastical power to permit such remarriage, if, in equity and good conscience, he shall choose so to do. However, before such permission is granted by the Bishop, he shall take legal and, if necessary, other advices, including that of the clergyman of the parish of which the applicant is a member. He shall also inquire into the character and personality of the parties to the previous and proposed marriage, and must determine whether the spiritual welfare of the parties thereto and of society will be served by the proposed marriage.

Does this seem sane, humane, and Christian?

V

At this suggestion rigorous conservatives rise up and shout a resounding unanimous protest. This modest modification of the canon rouses them to honest indignation. In the name of Christ and of ancient custom they rebel.

One of the basic courtesies of controversy is to assume that one’s opponent is high-minded and conscientious, even if perhaps mistaken. Only small-minded partisans impute unworthy motives to those who honestly differ from them. The Catholic party believes implicitly and devotedly in its austere, inflexible standards, interpreting Christ’s words as its authority to do no otherwise. The concern so deeply felt is because certain key texts in the Gospels seem to it final authority for all time. To defend the Master’s dicta both fundamentalist Evangelicals and Anglo-Catholies are aroused.

For example, the editor of the LivingChurch, the leading Anglo-Catholic weekly, voices this ‘shocked and distressed ’ cry: ‘Never in [his] recollection has any official body in the Church so completely negatived the teaching of Christ and the practice of the Catholic Church for 2000 years as the Commission’ in this recommendation. Ringingly the High Churchman repeats, ‘Those whom God hath joined together, let no man put asunder.’ Only death can break the bond. No matter what catastrophic sins, slow poisons of bitterness, or even separation from bed and board may come, the man and woman are still inexorably a married pair. The more extreme Catholics avail themselves of the ‘practically unanimous’ finding of the Higher Critics of the Gospels that the exception clause in Matthew v. 32 is a later interpolation and no part of the original sweeping word of the Master (‘Whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery’), for neither Mark, an earlier Gospel, nor Luke, in repeating the same injunction, includes it. So, according to this, even adultery does not sever the marriage!

What counter-arguments can the liberals advance? Let us give them too the credit of high-souled sincerity; they are not intending ‘completely to negative the teaching of Christ.’ The advocates of authoritative discretion are endeavoring to understand the genius of Christianity and honorably to apply its ideals in modern practice. Their arguments are worthy of an open-minded hearing. They are these: —

1. So far as textual oracles go, one cannot comprehend Jesus’ intention without taking into consideration the marriage and divorce customs of Palestine. Despite alleviations, even in His day they were still licitly unjust to women, who had little or no standing in that masculine world. We too frequently omit the reminder that bigamy or polygamy were still legal, that bond slavery still persisted, that a cast-off wife, dismissed at her husband’s whim, sometimes even without the ‘bill of divorcement’ to prove her status, had little alternative for support but the sale of herself, dowry-less, for bread and clothes and housing. It was crassly taken for granted that ‘ a woman could violate only her own marriage; a man could violate only that of another’ — that is, it was not considered a masculine sin unless a man took another man’s wife. Jesus was attacking this double standard. He declared for monogamy and for absolute parity of human rights between husband and mate. Women were to Him just as much persons as men, with souls as well as bodies to be defended from abuse.

His treatment of women ‘sinners’ is in line with this. The woman taken in adultery (notice the man was let go scotfree!) and the ex-wanton at Simon’s feast, since miscalled the Magdalen, were shown a surprising but penetrating pity. Without palliating their lechery, He bluntly said there were worse sins: uncharitable malice and cocksure, coldshoulder self-righteousness — a judgment of comparative guilt that our inherited code has reversed in its scale of condemnations. Jesus’ criterion was not of the flesh but of the soul. His Church must put the soul’s interests where He did. It cannot by inflexible rules, based on single texts.1

The proof text quoted for absoluteness is found in the compilation of sayings called the Sermon on the Mount. Prophetically unqualified norms are held high. There is no denying that the perfect ideal for marriage is a matehood maturing and deepening from youth to old age, with a close-knit family life bred on its enriching membership-one-of-another through all the years, until, despite the other text in the case, even death cannot really part.

2. But Jesus was not a legislator. His method was of inspiration, not of statutes. To single out some sentence and use it as iron authority for lawmaking is alien to His spirit. If one sentence is to be so used, why not adjacent ones? ‘Thou shall not kill,’the old commandment (the Church accepts the soldier’s profession!), is intensified to condemnation of hateful scorn; are we to discipline all scornful folk? The advice to cut off an offending right hand or to pluck out an offending eye, immediately preceding the marital text, is not generally taken as a statute.

As for a proof text, the trouble is that an alternate one can usually be found to meet it head on. How about the one that a house divided against itself cannot stand? Or that of the only unforgivable sin, which is evidently not divorce? No, we must attempt the discovery of His prevailing, undeviating spirit, in consonance with which every word is to be interpreted.

If there is anything which shines out from first to last through all the record of the Master it is His insistence upon the infinite and unique value of the individual soul. To that everything must subserve. Individuality must be encouraged, stimulated, and allured to self-fulfillment through its spontaneities. He worked as a friend with friends, aiding their progressive use of liberty for self-realization. His love was not saccharine pampering; He could be surgeonruthless if necessary. But never even in discipline did He stretch personality on a Procrustes’ bed.

3. We strike the basic stratum of His conviction about institutions in His word that the Sabbath is made for man, not man for the Sabbath. Sabbatarianism was the tingling quick of the law of that day; He would not be less afraid of the sensitive quick of our code, but would say, ‘Marriage was made for human beings, not human beings for that institution’s sake.’ Nothing could be more fundamental than this principle. On such a reading of His heart the liberal stakes his case for authoritative — that is, safeguarded — discretion in the Church. No inelastic rule can ever be adequate for all sorts and conditions of men — and women.

Discretion, pray, to permit deserving ones due chance at a true and lasting love; but only authoritatively granted, not indiscriminately allowed for any casual remating pair at the whim of the accidental clergyman. If the ultimate judgment of a proper official, acting ‘in equity and good conscience,’is that ‘the spiritual welfare of the parties thereto and of society will be served by the proposed marriage,’can anyone truly contend that this negatives Christian morals? Does it not seem more Christlike than inflexible rigor? If only there were probability that some such authoritative discretion might become the custom of all the churches!

  1. ’Those whom God hath joined together’ is perhaps a conditional phrase. Not every pair are brought together by God-intended and God-guaranteed fate. The true mates are fewer than all wedding participants. — AUTHOR