Alexander Rodriguez

12/08/2015

alexmarison@gmail.com

Marriage
1 Separation of Church and State
Even though in the past, Church Law guided States and Empires, the proper realm of Church
jurisdiction is religious, not secular:

My Kingdom is not of this world…my Kingdom is not from here. 1

The Kingdom of Christ on earth subsists in his Church and, so, his Kingdom functions on earth. But its
jurisdictive acts of binding and loosing have no force in earthly matters; though performed on earth,
they have their force in Heaven.

I will give you the keys of the Kingdom of Heaven: whatever you bind on earth, shall be
bound in Heaven; and whatever you loose on earth, shall be loosed in Heaven. 2

This idea of the separation of Church and State as always been a tenet of the Christian Faith, since it
comes from its Object, but it has not always been held and taught by her members, at least since the
Christianization of the Roman Empire, but especially during the Middles Ages, and even until today.
However, in the last century, Church teaching has been purified and clarified more than ever on this
point. Popes Pius XII:

Her Divine founder, Jesus Christ, did not give the Church any mandate or fixed objective in
the cultural order. The end that Christ assigns her is strictly religious.… The Church must lead
men to God so they may unreservedly devote themselves to him.... The Church can never
lose sight of this strictly religious, supernatural purpose. The meaning of all her activities,
even to the final canon of her Code can only converge, directly or indirectly, with this end. 3

Even more authoritatively, Vatican Council II:

Christ, to be sure, gave his Church no proper mission in the political, economic, or social
order. The purpose set before her is a religious one. 4

Therefore, there is no power-sharing plan or utopian Religious State to be hoped for on earth. God,
himself, has established a 2-fold order in human society.

1
John 18:36
2
Matthew 16:19
3
Pope Pius XII, Address to the International Union of Institutes of Archeology, History and History of Art,
3/9/1956.
4
Vatican Council II; Gaudium et Spes, 42; 12/7/1965.

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 Pilate said to him: …Do you not know that I have authority to release you, and I have
authority to crucify you? Jesus answered him: You would have no authority over me at all,
unless it were given to you from above. 5

What is civil authority, then? Some uncertain power that the Church must guard against? Such an
attitude savors of dualism. Rather, it is a power that the Church must respect as from God. Just as
the authority of the Church comes from God, so does the State’s – both derive their legitimacy by
participation in the very authority of God.

Hence, representatives of the State would have no power to bind men in conscience, unless
their own authority be tied to God's authority, and be a participation in it. 6

The respective matters of Church and State have no necessary point of intersection; and their
jurisdictions do not interfere, in any way, so long as neither overreaches. One governs the body and
the other, the soul, which 2 aspects of humanity co-exist in an unmixed, unconfused hypostatic
union. It was Jesus Christ who effected this separation and made it official:

The Word of God is alive and working, and sharper than any double-edged sword, attaining
to the separation of soul and spirit.7

Just as Christ, by the Sacramental grace he merited for us, separates our spiritual nature from our
animal, untying the fate of the immortal soul from that of the corruptible body, and restoring
humans to their state of original justice – although leaving the effect of the mingling and confusion
that original sin caused for proof – so, he does for humanity, in the separation of Church and State.

2 Contracts Belong to the State

2.1 According to the Scriptures
It would be easy to conflate Religion and State of Ancient Israel. But it is possible to divide the
Mosaic Law into Civil and Religious sections. This is the reason for the 2 Tablets:

The Lord gave me the two tablets of stone written by the finger of God; and on them were all
the words which the Lord had spoken with you...8

Civil law may be divided into 2 kinds of laws: criminal and economic. Besides these, there is
administrative law, which is concerned with the State’s mission and governance of the community;
but criminal and economic laws have in common that they both are concerned with safeguarding
individual rights in and among the community. The first half of the Decalogue deals with Religious
law; and the second half, Civil law.

VI. Thou shalt not kill.

From the human right to life and duty of the State to protect it.
VII. Though shalt not commit adultery.
5 From the right form to contracts and to be protected from breach.
John 19:10-11
6
Pope John
VIII. ThouXXIII, Pacem
shalt notinsteal.
Terris, 49; 4/11/1963.
7
Hebrews 4:12.
8 From the right to own property.
Deuteronomy 9:10
IX. Thou shalt not bear false witness against thy neighbor.
From the right to a good name and credit; 2 and protection from unjust defamation.
X. Thou shalt not covet thy neighbor’s wife or goods.
From the right to be protected from unjust disfranchisement.
These commandments are the fundamental laws that would naturally be established by a civil
government in fulfillment of its duty to protect the fundamental rights of its people. One of these
rights concerns contracts. Therefore, adultery, here, is not spoken of as a subjective sin against the
moral law in the context of a marriage contract, but, generally, as an objective breach of any civil
contract.

As the second half of the Decalogue is a perfect outline for a Code of Civil Law, so is the first half, for
a Code of Church Law:

I. Thou shalt not have strange gods before me.

Mandate to guard against heresies.
II. Thou shalt not make an idol for thyself of anything.
Mandate to guard against idols, whether things, persons, or ideologies.
III. Thou shalt not take the name of the Lord thy God in vain.
Jurisdiction over oaths.
IV. Remember the Sabbath day, to keep it holy.
Mandate to see to the practice of suitable rites of worship.
V. Honor thy father and thy mother.
Respect for authorities, both secular and religious.

If Civil law has 3 kinds of laws, namely: criminal, economic, and administrative; then, Church Law, too,
comprises 3 kinds, which are: creedal, liturgical, and administrative. What mainly concerns us here,
though, is contract law; and we see that, according to the Decalogue, jurisdiction over the marriage
contract and, indeed, all contracts, belongs to the State.

2.1.1 Oaths
While the State has jurisdiction over contracts, the Church has it over oaths; and this makes sense,
since contracts are concerned with dealings between persons, but oaths are between God and
persons. Affirmations, promises, and contracts are the civil analogues, respectively, of oaths, vows,
and covenants.

Affirmations and Affirmative Oaths

An affirmation is a declaration whose credibility is strengthened by granting to a proper authority of

the right to punish oneself, in the event of perjury. This is also known as calling an authority to
witness to the truth of a declaration. An affirmative oath (or just “oath”), is an affirmation in which
God is called, directly or indirectly, as a witness. Affirmations which call witnesses that do not have
the power to bind the conscience and inflict punishment (i.e. those who are not proper authorities)

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or which do call such witnesses, but not in a legally acceptable manner, are informal and only bind in
the affirmer’s conscience.

Promises, Promissory Oaths, and Vows

A promise is a resolution to do or not to do something, to which end, one is bound by his own
conscience, secular authority, and/or divine authority, depending on who is called to formally
witness. When Divine authority legally binds a secular promise – as when it is accepted on behalf of
God by one of his legal representatives in Religion – it is called a promissory oath. A vow is a promise
made to God, directly or indirectly; and, therefore, it must be accepted by him to bind at all. The
difference between promissory oaths and vows is that the proximate or immediate beneficiary in the
former is human or worldly. Whereas, in the latter, the beneficiary of the promise is angelic,
heavenly, or God, himself.

Contract, Contractual Oaths, and Covenants

A contract is an exchange of promises, which bind in conscience, but which, also, in justice, always
bind by secular authority, when legally exchanged. Contractual oaths are contracts which also bind
by God, by direct or indirect invocation of him; e.g. by Heaven or one of the Saints or Angels, i.e.
something requiring faith in God, up to and including God, himself. Covenants are contracts made
with God. As with promissory oaths and vows, contractual oaths and covenants are also differ in that
the exchange of consideration in the former is between juridic persons, but in the latter, the
exchange is directly with God or some Heavenly being.

In order for affirmations, promises, contracts and their juramental counterparts to properly bind by
authority they must be made in accordance with State and/or Church laws for validity and liciety.
Otherwise they would be informal and bind only in conscience.

In the Catholic Church, the approval of a priest of a vow on behalf of God is required for it to be
legally binding. It may be said of any oath, that in order for it to legally bind, it must be ratified by a
legal representative of God, at least by tacit intention. But contracts are between persons and create
a civil bond involving civil commodities and services; and the guarantor of the civil rights of persons is
the State. Superadding an oath to a contract would not remove either party from the jurisdiction of
the State or allow them to shirk their civic duty in the sanctuary in the Church. We see in the
Decalogue that jurisdiction over all oaths is given to the Church; but jurisdiction over contracts is
given to the State; and the 2 are definitively separate.

2.2 According to the Magisterium

Church officials, in their ordinary capacity, ever since it gained control over marriages from the State,
have tried to maintain control. But their infallible pronouncements, supernaturally protected from
error, have always fallen short in proclaiming such a right with the same force and, in fact, leave
room for the opposite opinion.

It was certainly the intention of Fathers at the Council of Trent to affirm Church control over
marriage – and this she legitimately had in many places, having been conceded control over it by the
proper civil authorities. However, their affirmation of control neither ruled out the fact that this was
by concession and not by right nor that the State had control in its own right. Neither did the Fathers

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keep hidden a conciliar and stricter manner of expression rather than one that was purely legal and
bottom-line.

For instance, the Fathers speak of the “indissoluble” bond of marriage. But this indissolubility is
spoken of in connection with and alongside Christ’s prohibition against polygamy, which we know
was not indispensable, and the perfection of natural love and the sanctification of the spouses,
which is an ideal outcome, but not always a forgone conclusion of the availability of grace:

The first father of the human race…proclaimed the perpetual and indissoluble bond of
matrimony when he explained: This is at last bone of my bones and flesh of my flesh;
therefore, a man leaves his father and mother and is conjoined with his wife, and they
become one flesh. But that only 2 are united and conjoined by this bond, Christ the Lord
taught more clearly when…he said: So, they are no longer 2, but 1…

Christ, himself…merited for us by his Passion, the grace that perfects that natural love,
confirms the indissoluble union, and sanctifies the spouses. 9

Also, why would an “indissoluble” union be spoken of as being confirmed, as if it were a quality
subject to increase and not absolute? Because the Church never has used the term absolutely when
speaking in reference to the bond. There is absolutely no marriage in which the bond cannot be
broken, for even the one considered strongest, namely, a consummated Sacramental marriage, is
always dissolved upon, at least, the death of one of the spouses.

Particularly in the Canons published on marriage, the Fathers simply say: If anyone says that...the
Church cannot dispense from…or declare…degrees…anathema sit. 10 This of course, would have
been the case merely if the Church had had been conceded civil authority in some place, which she
had been.

Finally, famously in the final canon:

If anyone says that matrimonial cases do not belong to ecclesiastical judges, anathema sit. 11

This canon says neither “all” matrimonial cases nor “only’ ecclesiastical judges, making obvious the
intention of the Fathers or, at least, of the Holy Spirit, that civil judges were not to be defrauded of
jurisdiction.

However, it was not until the Age of the Enlightenment, in the 18 th century, that the implication of
this canon was taken advantage of by Statesmen and Churchmen, alike, to nullify the claim of the
Church to an ordinary authority over marriage contracts. Coming in the context of the
Enlightenment, as it did, this move was part of the much larger one toward the just and rightful
separation of Church and State, which, however, at the time, was perceived as an existential threat
by the pontiffs, who resisted.

For instance, in 1788, Pope Pius VI sent a letter to the Bishop of Mottola, who by the delegation of
the King of Naples, had been functioning as a civil judge, in order to inform him that Canon 12 could
not be interpreted in any other way than which gave full and sole jurisdiction over marriage
9
Council of Trent, Session 24, 11/1/1563; Doctrine of the Sacrament of Matrimony.
10
Ibid, Canon 3.
11
Ibid, Canon 12.

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contracts to the Church, because of the “notion of the sacrament” inherent in “all” marriage and the
status of the Church as the “only” judge of sacramentals. 12 This argument, however, in light of our
realization today, cannot be considered correct, even if, due to the active authority of Pope, it
demanded “religious submission,” for as long as he was in office and continued to teach as much.

This same Pope – who also still believed in the doctrine of investiture whereby civil rulers received
their legitimacy from the Church – 6 years after he dealt with the Bishop from Naples and 8 years
after the Synod of Pistoia, Tuscany, actually closed, condemned 85 propositions taken from its
decisions, among which were those that declared ordinary authority over the marriage contract
belonging to the State.13 This Synod looks to have decided for every tenet of Enlightenment (and
Jansenist) theology then current; and, so, it got a lot wrong, but not everything, since the
Enlightenment was not all wrong. In fact, 2 of the Synod’s major decisions, although proscribed at
the time, were later repackaged and sold by the Church, namely: liturgical reform, including use of
the vernacular and active participation of the laity, and the relinquishment of the Church claim to civil
authority by divine right. Incidentally, Pius VI, toward the end of his life, was, himself, divested of civil
authority by Napoleon, and forced into exile.

With the ambiguity of the last Ecumenical Council, and the struggle of the Papacy, since then, to
clarify it in favor of Church authority, one might well have thought that the next one would have
infallibly addressed the issue of ordinary jurisdiction over marriage, especially in light of all the recent
revolutions, but Vatican I (1864-7014) did not. Rather, dropping any claim to civil authority, it took the
opportunity to affirm and expound on the Church’s spiritual authority over Catholics. Accordingly,
with respect to marriage, the Council only concisely decreed that Catholics must accept the
approved rites of the Church with respect its celebration as one of the 7 Sacraments. 15 This makes
perfect sense, if one considers that the Church, at the time, could hardly have been sure of
concessions from ordinary civil authority to adjudicate marriage cases as to the contract, as it
undoubtedly would have been at the time of the Council of Trent.

Another hint that, even though it may have been the personal intention of Catholic hierarchs at the
time, it was not that of the Holy Spirit to insist on Church jurisdiction in the matter: not 10 years after
the Vatican I closed (1880) did Pope Leo XIII pen an impassioned Encyclical on marriage, in which he
decried the current trend to repudiate the Church’s claim. 16 In it, Leo reverts back to argument that
the Church’s jurisdiction over all marriages arises from the sacramental nature of them all, citing
Popes Innocent III and Honorius III, instead of following Vatican I, which restricted the Church’s
jurisdiction to the Sacramental rite proper. This Encyclical was followed up 50 years later (1930), by
one from Pope Pius XI, who echoed all Leo’s original points, including on the problem of jurisdiction,
which apparently was a perennial one.17

So, for sure, Vatican II (1962-65) would settle this issue once and for all in favor Church jurisdiction,
right? Far from it, the Council Fathers, in the Church’s biggest breach to date with the medieval
12
Pope Pius VI; Deessemus Nobis; 9/16/1788. Cf. Pope Leo XIII; Arcanum, 19.
13
Pope Pius VI; Auctorem Fidei, 59; 8/28/1794.
14
Including the planning period, which began on 12/6/1864; the Council opened and closed on 12/8/1869 and
10/20/1870.
15
Vatican I; Session 2, 5; 1/6/1870.
16
Cf. Leo XIII; Arcanum, 17-24; 2/10/1880
17
Cf. Pius XI, Casti Connubii, 34-35; 12/31/1930.

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doctrine of the right of Church dominance in civil matters, proclaimed the autonomy of society, the
family, and culture,18 while offering no quarter to the opinion that the Church had any authority
whatsoever over the marriage contract.

What did the Fathers have to say specifically concerning the Marriage contract?

[Authentic conjugal love] will never be profaned by adultery or divorce. 19

They offered their prediction that if a couple sincerely and continually work at it, there will never be a
breach. They spoke of “indissolubility” in exactly the same way the Council of Trent Fathers did – as
an ideal and something to strived for throughout life, but never a given. 20

They did speak of the rights of families, although not in terms of their contractual formations, but, at
least, of their subsistence in society, which rights must be considered to flow from their right to be
formed; and the responsibility to protect these rights was squarely placed on the State:

[Christian married partners] and the rest of the faithful, therefore, should cooperate with
men of good will to ensure the preservation of [families’] rights in civil legislation and to
make sure that governments give due attention to the needs of the family regarding
housing, the education of children, working conditions, social security, and taxes; and that in
policy decisions affecting migrants their right to live together as a family should be
safeguarded.21

Therefore, according to Vatican II, the family is autonomous, like society and culture, and not under
the direct authority of the Church.

2.3 According to Reason and Experience

The State has ordinary jurisdiction over marriage, as far as it is a contract; but the celebratory rite
surrounding the contract is set according to Church law and custom. A marital contract is formed
between persons and, therefore, it is the State’s responsibility to protect the rights of those persons
in the event of a contract dispute. But how can the State competently judge a contract that they did
not guarantee by ratification? How can anyone judge a law not its own? Furthermore, money and
property are often at issue in disputes and the Church does not ordinary control over such things;
she cannot ordinarily deal with disputes. Marriage contracts and those who enter them cannot be
considered the only contracts and types of person not entitled to the protection of the State.
Therefore, the State exercise jurisdiction of the marriage contracts.

It would be the prerogative of the State to set the valid wording of the contractual promises, in
accordance with natural law and local custom. Theoretically, there is no impediment that could not
be dispensed from which does not arise from Natural Law – and this includes all degrees of affinity
and consanguinity and polygamy. Certainly no non-baptized, but also no one baptized, should be
considered excluded from a real and, in the case of the baptized, Sacramental marriage, when a
contract is lawfully concluded.

18
Vatican II; Gaudium et Spes, 42,55; 12/7/1965. Also, Apostolicam Actuositatem, 11; 11/18/1965.
19
Gaudium et Spes, 49.
20
Cf. Ibid; Apostolicam Actuositatem, 11.
21
Apostolicam Actuositatem, 11.

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Power over the marriage or any other contract is not usurped by the Church, because of the
superaddition of an oath to it. Similarly, the infusion of a soul into an animal does not spiritualize his
natural animal functions. Rather, to the extent that soul participates in them, it, itself, is materialized,
as it were. Spirits on their own neither marry, nor are given in marriage. 22 Marriage is a physical
phenomenon. So, when we speak of spiritual marriage, this is not Sacramental and not exactly
analogous to physical marriage. Spiritual marriage is governed by supernatural laws; but physical
marriage is governed by natural law and social custom, as posited by the State.

Furthermore, not everyone is religious, yet everyone who is human, by right, is capable of marriage;
and all would concede that the State can exercise jurisdiction over the true marriages of unbelievers.
Since, it is a well-known principle that baptism, in itself, does not remove a person from otherwise
valid civil jurisdiction – that is baptism does not release a person from the obligation to follow just
civil law; then neither would baptism release a person from his State’s valid and just marriage laws;
and the Church cannot compel a person not to comply with civil law in favor of her own, when such a
law is not in contradiction with natural law; and there are very few natural law impediments, which
are absolutely indispensable.

3 Breach of Contract
3.1 According to Common and Mosaic Law
According to well-established contract law,23 a contract may be breached immaterially and materially:

In an immaterial breach, there is a substantial but unsatisfactory performance of the promise. Single,
immaterial breaches are venial, but done habitually over a period of time, they may constitute a
material breach.

In a material breach, there is an insubstantial or substantially incomplete performance of the

promise. If other conditions are met in a material breach, it may be adjudged fundamental and fatal,
tantamount t0 a repudiation of the contract. Material breaches are also termed betrayals, and they
give the right to the non-breaching party to terminate performance of his own promise and to seek
permanent rescission of the contract and full restitution.

In the marriage contract, adultery is a breach of contract; and adultery proper, as well as other
serious betrayals constitute a material breach. Thus the justification for a doctrine of adultery as
taught by the Orthodox Church in determining just grounds for a divorce.

Another right, with regard to, at least, personal services contracts – of which marriage is a species –
which should be considered inviolable is the right to back out of the contract; to terminate
performance even without lawful cause. Not that one could back out with impunity, as in the case of
a fundamental breach, but as a conscience clause and in the interest of the freedom to repent. It is
already a recognized principle that courts cannot directly enforce personal service. Even if they rule
that service should be rendered, in the exceptional case that cover cannot be effected, it is enforced
“by an injunction preventing the promisor from performing elsewhere rather than by an injunction

22
Matthew 22:30.
23
Cf. The Restatement (Second) of Contracts, American Law Institute, 1981; et al. Contract Laws.

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requiring the promisor to perform.”24 This right not to be compelled to perform a personal service
would apply especially to marriage, when it comes to sex, even though an unjust termination of
performance of the marital act would constitute a repudiatory breach and be subject to legal and
moral consequences as such. This is the justification for no-fault divorce, which should not be
confused with divorce with impunity. Demonstration of fault would also still factor into special
awards for damages.

Even Mosaic Law, as heavy-handed and intrusive it could be on other points, did not wish to reserve
to the judgment of its tribunals divorce proceedings, except, perhaps, as to the settlement.

When a man takes a wife and marries her and it happens that she finds no favor in his eyes,
because he has found some impurity in her, and he writes her a certificate of divorce, and
puts it in her hand, and sends her out from his house, and she leaves his house, and goes and
becomes another man’s wife…25

But even in terms of the settlement – or, rather, the legal right to a settlement, which the divorce bill
signified – this was objectively predetermined and eventually included as an essential part of the
prenuptial marriage agreement, which would stipulate damages, in case of divorce.

Was the Torah from God and an expression of Divine Law? It was certainly from God as an exercise of
valid civil and religious authority, as all true civil and religious authority is participation in the
authority of God. Also, it was certainly based on divine revelation, at least as to the Decalogue, which
were given to Moses from Heaven. Furthermore, the authorities’ development and adaptation of
those Words to Jewish society, to the extent it was fair and just, was also inspired by God.

Was divorce a just precept of the Law and, therefore, valid and binding? I do not think there is any
doubt as to this. It was not only a valid precept of Mosaic Law, but it preceded Moses, and was in
effect during the time of the Patriarchs. According to St. Thomas Aquinas, Abraham properly
divorced Hagar:

It seems that it could not be lawful by dispensation to dismiss a wife. …On the
contrary, Abraham carnally knew Agar with the disposition of a husband towards his wife, as
stated above (65.5, 2, and 3). Now by Divine command he dismissed her, and yet sinned not.
Therefore, it could be lawful by dispensation for a man to dismiss his wife.26

Dismissal or divorce (separation would not have required any dispensation) could have been made
legal – and it was legal; and not only in the nation of Israel, but before Israel even existed, in the land
from which Abraham came and the land to which he went. The legality of divorce is not prejudiced,
either, by the next question Thomas addresses in his Summa: Whether it was lawful to divorce a wife
under the Mosaic Law. For, since that it was a valid civil law has already been shown, the lawfulness
he now speaks to is one of morality: Was divorce a sin or not? This is a valid question, because some
things justly permitted by law might still objectively be sinful to the law-abider, like prostitution or
drugs. St. Thomas answers in the negative, that is, divorce is not morally licit; but he presents the
opposite opinion as possible, too:

24
Cf. Restatement §379.
25
Deuteronomy 24:1-2.
26
St. Thomas Aquinas, by Fra Rainaldo da Piperno; Summa Theologica; Supplement to the Third Part, 67.2.

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 …others are of opinion that if it had been a sin for a man to dismiss his wife, this ought to
have been indicated to him, at least, by the law or the prophets: Show My People
their wicked doings (Isaiah 58:1). Else [His People] would seem to have been neglected, if
those things, which are necessary for salvation and which they knew not, were never
made known to them: and this cannot be admitted, because the righteousness of
the Law observed at the time of the Law would merit eternal life. For this reason, they say
that, although to dismiss one's wife is wrong in itself, it nevertheless became lawful
by God's permitting it; and they confirm this by the authority of Chrysostom, who says that
"the Lawgiver by permitting divorce removed the guilt from the sin."27

Today we may answer this question about which Thomas is not certain with the certitude of the
Church’s well-developed teaching in such matters: Insofar as divorce is a breach of contract and a
breaking of one’s promise, it always implies objective evil; but sometimes it is a necessary evil and
may even bind in conscience, as in the case of abuse, adultery, or incurable dereliction. Therefore,
separation and sometimes even divorce may be sinful or not, depending on the circumstances.

This explains why God “hates” divorce, because of what it implies, namely, a breach; but also how
God can, himself, divorce in justice:

…the Lord has been a witness between you and the wife of your youth, against whom you
have dealt treacherously, though she is your companion and your wife by covenant. “For I
hate divorce,” says the Lord, the God of Israel, “and him who covers his garment with
wrong.”28

“And I saw that for all the adulteries of faithless Israel, I had sent her away and given her a
writ of divorce, yet her treacherous sister Judah did not fear; but she went and was a harlot
also.”29

Was the divorce that was permitted truly a dissolution as to the bond or was it some other form of
dispensation? The most obvious answer is that it was a dissolution, since remarriage was allowed;
and this is my answer. But what is there to say that remarriage after divorce was not a separate
dispensation or essentially polygamy and, in this way, not necessarily the result of a dissolution? At
least 2 things:

1. Jesus says “divorce” was permitted because of sinfulness, but does not add a second,
separate permission for remarriage after divorce, even though he addresses remarriage in
the same sentence, which implies that the remarriage was a right and freely contracted in
the event of a perfect Mosaic divorce.

 “Because of your hardness of heart Moses permitted you to divorce your wives; but from
the beginning it has not been this way. And I say to you, whoever divorces his wife, except
for immorality, and marries another woman commits adultery.” 30

27
Ibid 67.3.
28
Malachi 2:14-16.
29
Jeremiah 3:8.
30
Matthew 19:8-9.

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 2. If another marriage was contracted, after a divorce, it was most solemnly decreed that not
under any circumstance was it to be permitted for the remarried to return to the former
spouse. If the first couple were still actually married, there would not seem to be a reason to
prohibit reconciliation. The reason given for the prohibition is because the former spouse has
“defiled” herself by remarriage:

…And if the latter husband turns against her and writes her a certificate of divorce, and
puts it in her hand, and sends her out of his house; or if the latter husband dies who took her
to be his wife: then her former husband who sent her away is not allowed to take her again
to be his wife, since she has been defiled. For that is an abomination before the Lord, and you
shall not bring sin on the land which the Lord your God gives you as an inheritance. 31

Does this “defilement” refer to sex outside marriage? Not at all, since the defilement due to
adultery is not an automatic cause for divorce and even if a divorce occurs because of
adultery, if the adulterous spouse has not yet remarried, repentance and reconciliation are
still possible and encouraged (cf. Shepherd of Hermas) – but only up until the point of
remarriage, which implies that the defilement is the remarriage, itself, the new contract, and
not merely sex. But how could the remarriage, of itself, constitute an impediment to
returning to the first husband, even in the event of its natural dissolution with death,
whereas anytime up till the time the remarriage is contracted, reconciliation is still hoped for?
This could only be because remarriage consummates a divorce. Therefore, the defilement of
remarriage consists in willfully giving up the chance for repentance and reconciliation.
Remarriage is no longer considered an impediment to reconciliation with the first husband; it
would be hard to demonstrate that it was ever considered one outside of Mosaic Law. The
enduring value of this prohibition is that it reveals divorce as to the bond is consummated by
remarriage.

Thus marriage is rescindable like any other contract, which makes sense since it is a real contract; and
protection in the case of adultery, as well as the right to terminate the performance of the marital
act, must be afforded and upheld by the State.

But was this dispensation and power to divorce only really ever given to the nation of Israel and their
forefathers? Were basic rights and freedoms respecting marriage only awarded by God to one race?
Or did one race have a monopoly on the problem of hardness of heart? Of course not.

If Jewish men had the permission to legally divorce their wives and remarry, other nations and
communities would have had the same permission by the same authority which is proper to all civil
governments, which is a participation in the authority of binding and loosing of God, himself. There is
no civil precept, for that matter, from the Mosaic Law that would have been denied to any other
nation, inasmuch as it could have been derived from Natural Law. Moreover, what these
communities were doing by their own authority before the time of Jesus’ coming was not undone by
the evangelical counsel against divorce that they did not hear – as if it is not an error, anyway, to say
that Jesus intended to take away any authority from civil government.

31
Deuteronomy 24:3-4.

11
How does the State have the power to dissolve a marriage? They do it by their ordinary authority. It
does not take the Apostolic authority to dissolve the marriage bond, since the Jews did this before
Christ, without any spiritual authority to bind or loose sins. They did it with their ordinary civil
authority, to bind and loose from contracts; the same way their surrounding communities did it and
all the communities of the world. Therefore, if the Church has properly exercised jurisdiction over the
marriage contract, it was also done in a civil capacity.

3.2 According to the Gospel

How does one interpret what the Gospel says concerning divorce and remarriage? By a thorough
study of the relevant verses and their context, in light of Church teaching. One Church teaching that
could be brought to bear in exegesis is that Jesus had no intention of contravening just civil law in
anything he ever said or did. But the following will not need this assumption so much to prove its
point, as it will, itself, be proof of it.

In Matthew there are 2 places that Jesus speaks on the issue of divorce and remarriage: one is in the
Sermon on the Mount; and the other is in the response to a captious question by the Jewish
authorities. Both of these statements give virtually the same prohibition. But the one in the context
of the Sermon is clearly in the form of an Evangelical Counsel; also known as Counsel of Perfection.
That is, it is not to be taken literally as an abrogation of Mosaic Law; but, rhetorically, as a more
perfect way of keeping the moral law, which is the spirit of the Mosaic and not in contradiction with
it.

Do not think that I came to abolish the Law or the Prophets. I did not come to abolish, but to
fulfill. For amen, I say to you: until heaven and earth pass away, not the smallest letter or
stroke shall pass from the Law until all is accomplished. Whoever, then, voids one of the least
of these commandments, and teaches others to do the same, shall be called least in the
kingdom of heaven; but whoever keeps and teaches them, he shall be called great in the
kingdom of heaven.32

The prohibition of divorce and remarriage is so contextualized as an Evangelical Counsel that it is

presented 3rd among 6 given (reprinted below), all of which have the exact same rhetorical form,
which is:

You have heard it said [precept of Mosaic Law], but I say to you, [counsel for a more
perfect fulfillment of the moral precept from which the Mosaic derives].

Again, this manner of speaking never represents a repeal of the Mosaic Law.

32
Matthew 5:17-19.

12
For instance, in the 2nd Counsel, Jesus cites the Commandment against adultery. Now, we have
already shown that this was a civil precept, which addressed the responsibility of government to
afford protection from breaches of contract. However, the word, itself, also denotes a sin; and it is to
this sin, not the civil precept, that Jesus speaks here. This is the same dichotomy which we saw made
in the Summa, as well.

In the 1st Counsel, the crime of murder is referred to – for which one “shall be liable to the court” –
however, Jesus then counsels as to the morality of the precept against which murder civilly offends
and thus he proscribes all acts of hatred against one’s neighbor, even those which are interior.

Being angry is not a crime. But murder is – and by drawing a comparison between the 2, Jesus is
neither criminalizing anger nor, decriminalizing murder. Likewise, in reference to adultery in the 3 rd
Counsel: adultery, in one sense, is a breach of contract, but, in the other, private sense, it is a
personal sin. This is not to say though that the treatment of the personal sin of adultery as crime
deserving of corporal punishment and not a civil matter was condoned by Jesus. For even though he
did not come as a civil ruler, he did reveal his feelings on the subject of treating the objectively mortal
sin of adultery as a crime deserving of death, when he saves the adulteress from being stoned. 33 It is
amazing that he does this without the exercise of any legislative authority, but by understated
example and a recommendation, as opposed to the way he treats of matters which pertain solely to
ecclesiastical or moral law.34

The Evangelical Counsels:

You have heard that the ancients were told, “You shall not commit murder” and “Whoever
commits murder shall be liable to the court.” But I say to you that everyone who is angry
with his brother shall be answerable to the court; and whoever says to his brother, “You
good-for-nothing,” shall be answerable to the High Court; and whoever says, “You fool,”
shall be sentencable to hellfire.

You have heard that it was said, “You shall not commit adultery”; but I say to you that
everyone who looks at a woman with lust for her has already committed adultery with her in
his heart….

It was said, “Whoever divorces his wife, let him give her a certificate of divorce”; but I say to
you that everyone who divorces his wife, except for the charge of fornication, makes her
commit adultery; and whoever marries a divorced woman commits adultery.

Again, you have heard that the ancients were told, “You shall not make false vows, but you
shall fulfill all your vows to the Lord.” But I say to you, make no oath at all, either by heaven,
for it is the throne of God, or by the earth, for it is the footstool of His feet…. But let your
statement be, ‘Yes, yes’ or ‘No, no’; anything beyond these is of evil.

You have heard that it was said, “An eye for an eye, a tooth for a tooth.” But I say to you, do
not resist an evil person; but whoever slaps you on your right cheek, turn the other to him
also….

33
John 8:3-11.
34
Cf. the Sermon on the Mount and John 2:14-17.

13
 You have heard that it was said, “You shall love your neighbor and hate your enemy.” But I
say to you, love your enemies and pray for those who persecute you, so that you may be
sons of your Father who is in heaven…Therefore you are to be perfect, as your heavenly
Father is perfect.35

Thus the Evangelical Counsel to never divorce. Impossible to follow in every instance, since
sometimes divorce is the right the thing to do; but the same can be said of turning the other cheek,
which is the 5th Counsel. For when he was struck in the face after he invoked his right not to answer
the High Priest, Jesus did not acquiesce in this instance, according to his counsel, but turned to the
guard and told him to justify his action. Similarly – in fact, so similar that these appear to be parallel
passages or a couplet:

Paul, looking intently at the Council, said, “Brethren, I have lived my life with a perfectly good
conscience before God up to this day.” The high priest Ananias commanded those standing
beside him to strike him on the mouth. Then Paul said to him, “God is going to strike you, you
whitewashed wall! Do you sit to try me according to the Law, and in violation of the Law
order me to be struck?” (Acts 23:1-3)

Paul was a paragon of perfection and Jesus was Perfection, Itself. Neither men, in these instances,
should be judged as having fallen short of perfection by not following the Counsel of Perfection,
which by definition as a counsel does not apply in every case. Nor should anyone automatically be
considered as having abandoned perfection – much less sinned – by not following the Counsel to not
divorce and remarry.

There is also the issue of the exception clause in this Counsel: except for the charge of fornication.
Such a clause is not found in any parallel passages outside of Matthew. This kind of relaxing
interpolation is found elsewhere in Matthew. For instance, where Luke says: Blessed are the poor;
Matthew says: Blessed are the poor in spirit. Again, Luke says: Blessed are those who hunger; but
Mathew says: Blessed are those who hunger and thirst for justice. There are other examples, too,
and they are all unique to Matthew, which indicates that this exception clause is also an interpolation
meant to soften the tone of the Counsel. Either the Matthean author or an early editor of Matthew
must have felt that Counsel, in its original form, was liable to be misunderstood or taken as law; in
which the case, the exception clause could be seen as making it interpretable in terms of Mosaic
Law, which allows divorce and remarriage for charges of “impurity,” 36 of which “porneia” appears to
be a translation. However, on the wording of the exception, the Catholic Encyclopedia says:

… [It is], in general, fully vouched for by the more reliable codices. Also, the greater number
and the best have “commits adultery.”37

A reading of “adultery” as opposed to “fornication” would do little an interpretation of this

exception clause as relaxing. Inasmuch as adultery could be considered a more serious breach than
fornication, reading adultery on the surface might tighten the relaxation, but we have shown above
that Mosaic Law also makes use of the term adultery as a general synonym for any breach and need

35
Matthew 5:27-48.
36
Deuteronomy 24:1.
37
Lehmkuhl, Augustinus; Divorce (in Moral Theology); 3a. From The Catholic Encyclopedia; 1909.

14
not refer to adultery proper. Furthermore, this is the same Gospel wherein Jesus extends the idea of
adultery to even a mere lustful glance:

You have heard that it was said to them of old: You shall not commit adultery.  But I say to
you, that whosoever shall look on a woman to lust after her, has already committed adultery
with her in his heart. (Mathew 5:27-28)

Therefore, an exception for adultery could be seen as just as wide as one for fornication.

However, a true reading of “adultery” would completely invalidate the opinion that this clause does
not permit an exception to the prohibition of divorce and remarriage. This opinion rests on the
ambiguity of the word “porneia,” which they make to refer here to some strange kind of sexual
immorality that would invalidate a marriage anyway, according to Mosaic Law. But, why would Jesus
make an exception to his prohibition of divorce, if the marriage were annullable already?

Least likely of all is the opinion that says the exception clause, because of its placement in the
sentence, is referable only to divorce and not remarriage, as if to say that divorce might be ok in
cases of adultery, but never remarriage. However, if divorce were admitted, then not remarrying
would clearly just be a matter of discipline and not an impossibility. But, since remarriage can be seen
as a corollary or consequence of divorce, then a grammatical reference to only divorce would still
also consequently include to remarriage.

The other mention in Matthew of divorce and remarriage comes in Chapter 19. The Pharisees ask
Jesus whether it were lawful to divorce for any reason at all. This happens to be another example of
a relaxing interpolation. In the parallel passage in Mark, the same question does not include the final
clause, “for any reason at all,” as if Matthew is allowing that divorce is permissible for certain
reasons. Now, this conversation is removed from the context of the Sermon on the Mount, however,
the question asked might be seen as a follow up question on the counsel that was given during his
Sermon, all the more so since the Pharisees frame their question so that it acknowledges the
exception he made room for in his Sermon. This, then, would contextualize his response, not as
statement on the Mosaic Law, per se, but the moral law on which is based. This is also clear in Jesus’
response which goes well beyond Mosaic Law, back to the beginning of Creation. Jesus, therefore, is
speaking of divorce, here – as he was in his Sermon – in terms of Natural and Divine Law, not civil
law.

Pharisees came to Jesus, testing Him and asking, “Is it lawful for a man to divorce his wife for
any reason at all?” And He answered and said, “Have you not read that He who created
them from the beginning ‘made them male and female,’ and said, ‘for this reason a man shall
leave his father and mother and be conjoined to his wife; and the two shall become one
flesh’? So they are no longer two, but one flesh. What therefore God has conjoined, let no
man separate.”38

You will also recall that this dichotomy of civil and moral liciety is the same one made in the Summa,
which is treated there at length. Besides, it is more natural to assume that the Pharisees were not
questioning Jesus about whether some Mosaic Law were valid, but whether it were sinful to abide

38
Matthew 19:3-6.

15
by it. Furthermore, Jesus already acknowledged the validity of the Law, earlier, in Matthew. 39
Therefore, Jesus’ response refers to the moral force of the contract and its indissoluble ideal, but not
to the toleration of divorce in civil law. This is made clearer in the follow up question and response:

They said to Him, “Why, then, did Moses command to ‘give her a certificate of divorce and
send her away?’ He said to them, “Because of your hardness of heart Moses permitted you to
divorce your wives; but from the beginning it has not been this way.” 40

“Why then was the law made, if it were immoral to follow?” “Because of the inevitability of sin, but
this is not the way it should be.” The law is not sinful to follow in every case, although divorce does
always represent an objective evil, since it is a breach of contract. Divorce would not be needed in a
utopian paradise, where there were no sin and death, but such is not the reality.

It is also already a well-established principle, in both moral theology and jurisprudence, that evil
cannot altogether be legislated away, but that, sometimes, codes of law must tolerate certain evils in
order to prevent greater ones. Divorce and breach of contract laws are perfect examples of this.

Yet, with the discernment of a true mother, the Church weighs the great burden of human
weakness, and well knows the course down which the minds and actions of men are in this
our age being borne. For this reason, while not conceding any right to anything save what is
true and honest, she does not forbid public authority to tolerate what is at variance with
truth and justice, for the sake of avoiding some greater evil, or of obtaining or preserving
some greater good. God Himself in His providence, though infinitely good and powerful,
permits evil to exist in the world, partly that greater good may not be impeded, and partly
that greater evil may not ensue. In the government of States it is not forbidden to imitate the
Ruler of the world; and, as the authority of man is powerless to prevent every evil, it has (as
St. Augustine says) to overlook and leave unpunished many things which are punished, and
rightly, by Divine Providence.41

So what does Jesus mean, exactly, when he says: What God has conjoined, let no man separate? I
know one thing it does not mean: that divorce is impossible; that no one has the power that death
has to dissolve the conjugal bond. To say that there is no power with the potential to grant divorces
in any and all cases such as death has – even when this power is properly a participation in God’s own
power, and thus deny such a power also to God, himself – is really to say that death has more power
than God. This is dualism and, taken to its logical end, would deny one of the fundamental truths of
Christianity, namely, the Resurrection.

But God raised [Jesus] up again, putting an end to the agony of death, since it was impossible
for him to be held in its power.42

This power over death was not reserved by God, either:

39
Ibid 5:17-18.
40
Ibid 19:7-8.
41
Pope Leo XII, Libertas, 33.
42
Acts of the Apostles 2:24.

16
 For just as the Father raises from the dead and gives them life, even so, the Son also gives life
to whom he wishes.43

This is the will of him who sent me. That of all that he has given me I lose nothing, but raise it
up on the last day.44

And Jesus demonstrated his power over death when he raised Lazarus from the dead.

Did I not say to you that if you believe, you will see the glory of God? 45

And Jesus gives his power to his disciples, whom we also know have raised from the dead:

Amen, amen, I say to you, he who believes in me, the works that I do, he will do also; and
greater works than these he will do; because I go to the Father. 46

Therefore, we should not marvel that the State, which exercises the very authority of God – much
less the Church, when she uses civil authority – has the same power as death to dissolve a marriage.

Continuing in Matthew, the very next verse, which is added to Jesus’ answer, is a reposition of a part
of the Evangelical Counsel:

And I say to you, whoever divorces his wife, except for fornication, and marries another
woman commits adultery.47

This obviously does not follow; and, in the parallel passage in Mark, it is absent, and since Mark does
not feel the need to soften the evangelical rhetoric on chastity as does Matthew, we may assume
that it is absent in Mark, because it is absent in his source, too. But I would not say critically remove
it, yet.

What does follow, in both Matthew and Mark, is a private speech given by Jesus to his disciples, in
which he restates the Evangelical Counsel on marriage. But in Matthew, since this restatement is
added to his speech in public, the private discussion begins with a question from his disciples on how
to accept such a hard teaching. Jesus, then, assures his disciples that celibacy is not meant for
everyone:

Not all men accept this statement, but only those to whom it has been given….He who is
able to accept it, let him accept it.48

In the parallel passage in Mark, this assurance of non-universality is not added to the restatement of
the Counsel, but it might be implied from the fully private nature of the transmission in this case.

Finally, in Luke, the only mention of the prohibition of divorce and remarriage comes in what appears
to be a random place with not much context, but the context it does come with is most important:

43
John 5:21.
44
John 6:39.
45
John 11:40.
46
John 14:12.
47
Matthew 19:9
48
Ibid 19:11-12.

17
 But it is easier for heaven and earth to pass away than for one stroke of a letter of the Law to
fail. Everyone who divorces his wife and marries another commits adultery, and he who
marries one who is divorced from a husband commits adultery. 49

These 2 sentences, while they are not, on the surface, consecutive, do have this in common: they
both have parallels in the Sermon on the Mount.50 For some reason, it appears that, in Luke’s source,
these 2 verses were separated from the Sermon; but they still belong to it. Therefore, this prohibition
should be interpreted in the same way as the one that came from the Sermon in Matthew, that is, as
an Evangelical Counsel.

3.3 According to the Apostle

We now turn to Paul, to see what can be gleaned of his teaching with respect to divorce and
remarriage from his letters:

Now concerning the things about which you wrote: it is good for a man not to touch a
woman. But because of fornications, each man is to have his own wife, and each woman is to
have her own husband. The husband must fulfill his duty to his wife, and likewise also the
wife to her husband. The wife does not have authority over her own body, but the
husband does; and likewise also the husband does not have authority over his own body, but
the wife does. Do not defraud one another, except by agreement for a time, so that you may
devote yourselves to prayer; and come together again, so that Satan will not tempt you
because of your lack of self-control. But this I say by way of concession, not of
command. Still, I wish that all men were even as I myself am. However, each man has his own
gift from God, one in this manner, and another in that. But I say to the unmarried and to
widows that it is good for them if they remain even as I. But if they cannot control
themselves, let them marry; for it is better to marry than to burn. 51

“Concerning the things which you wrote: it is good for a man not to touch a woman.” The context of
these verses is apparently that a desire was expressed to him for instruction on the virtue of chastity.
The following instructions, then – whether to the unmarried, the widowed, or the married – should
be taken not as all that is allowable by civil law, but by the law of perfection in the Gospel. It should
also be clarified that when Paul says that husbands and wives have “authority” over each other’s
bodies, it should not be taken in a way that is contradictory with the basic right one has to terminate
performance of the marital act without lawful cause. Rather, the authority, in this matter, refers to
one’s right to expect performance; but remedies for non-performance can never include coercion,
because besides being unjust, in itself, it is inherently prejudicial to the female sex, which is
proportionately weaker as to the body.

But to the married, I bid, not I, but the Lord, that the wife should not leave her husband (but
if she does leave, she must remain unmarried, or else be reconciled to her husband), and that
the husband should not divorce his wife.

“But to the married, I bid, not I, but the Lord….” As in what is in accord with the moral law; for, as a
rule, any breach of contract is an objective evil and savors of imperfection.
49
Luke 16:17-18.
50
Matthew 5:18, 32.
51
1 Corinthians 7:1-19.

18
 But to the rest, I say, not the Lord, that if any brother has a wife who is an unbeliever, and
she consents to live with him, he must not divorce her. And a woman who has an unbelieving
husband, and he consents to live with her, she must not send her husband away. For the
unbelieving husband is sanctified through his wife, and the unbelieving wife is sanctified
through her believing husband; for otherwise your children are unclean, but now they are
holy. Yet if the unbelieving one leaves, let him leave; the brother or the sister is not under
bondage in such cases, but God has called us to peace.

“But to the rest, I say, not the Lord…” The objective moral norm is hereby proved not to be rigid.
What he counsels next departs from a rigid interpretation of moral perfection, nevertheless, with
respect to cases of disparity of cult and in favor of the Faith, it still is in accord with Evangelical
perfection, in his opinion. This is the Pauline Privilege – an exception to the strict interpretation of
the Evangelical Counsel, in cases of disparity of cult in favor of the Faith.

A woman is bound by the law as long as her husband lives: but if her husband die, she is at
liberty. Let her marry to whom she will, only in the Lord. But more blessed shall she be, if she
so remain, according to my counsel. And I think that I also have the spirit of God. 52

The law a woman is bound by in marriage until the death of her husband is both the civil and moral
one. But a divorce will unbind her from the civil law; whereas, strictly speaking, she would remain
bound by the moral law until her husband’s death. Paul’s personal counsel, though, goes beyond the
Evangelical, which is to be faithful to one marriage – it is not to marry at all, that is, celibacy.

The Pauline Counsel in a word:

Have you been bound to a woman? Do not seek to be divorced. Have you been divorced from
a woman? Do not seek another wife.53

So, we see that there is nothing in Paul that is irreconcilable with our interpretation of the Gospel.

The Evangelical and Pauline or Apostolic teachings on marriage that have come down to us are
counsels for a greater perfection than what can be attained by merely following the Law. The Church
does not err in teaching these counsels, but no one in the Church should think that abidance by these
counsels is absolutely necessary for salvation, lest we fall forever into the momentary error of the
disciples and many other heretical hardliners that were to come. For, concerning those who take the
Evangelical Counsel literally, the more familiar they become with the reality of marriage, the more
disposed they will be to counsel against it altogether, since it will all too often seem to them an
inevitable occasion of adultery:

The disciples said to [Jesus], “If the relationship of man with his wife be like this, it is better
not to marry.”54

The disciples would have been right, indeed, if what Jesus had just said, by way of counsel, was
actually meant to repeal the old law and establish a new one which was to apply to all men equally
and not just to those who could voluntarily accept it:

52
1 Corinthians 7:39-40.
53
Ibid 7:27.
54
Matthew 19:10.

19
 But [Jesus] said to them, “Not all men accept this statement, but those to whom it has been
given. For there are eunuchs who were born that way from their mother’s womb; and there
are eunuchs who were made eunuchs by men; and there are eunuchs who made themselves
eunuchs for the sake of the kingdom of heaven. He who is able to accept it, let him accept
it.”

So now we see how we may interpret the Council of Trent, which Cardinal Ratzinger, as Prefect of
the Congregation of the Doctrine of the Faith, already admitted “did not explicitly pronounce any
condemnation” of the Eastern praxis, according to which they permit divorce and remarriage; 55 and
so, many commentators who affirm that canon 7 was specifically worded so as not to offend the
Greeks56:

If anyone says that the Church errs, in having taught and teaching, that, in accordance with
Evangelical and Apostolic doctrine, the bond of matrimony cannot be dissolved by reason of
adultery on the part of one of the parties, and that both, or even the innocent party who
gave no occasion for adultery, cannot contract another marriage during the lifetime of the
other, and that he is guilty of adultery who, having put away the adulteress, shall marry
another, and she also who, having put away the adulterer, shall marry another, let him be
anathema.57

The Evangelical and Apostolic doctrine referred to are the teachings which are contained in the
Gospel and Paul’s writings on a way of perfection which goes beyond mere legality. The Roman
Church does not err in teaching this doctrine or in holding the faithful to a stricter discipline in
accordance with it, as it does when it imposes the discipline of celibacy its clergy; and, at the same
time, the Roman Church does not condemn as erroneous the Eastern Orthodox teaching and
practice.

3.4 According to Hermas of Rome

I would also like to call on the witness of Hermas of Rome, whom I take, with Origen, 58 to be the one
Paul referred to in his Epistle to the Romans and an Apostolic Father. This would date his work to the
last quarter of the first century and, according to internal evidence, during the Papacy of Clement.
However, before critical use can be made of Hermas, a critical edition is needed, but this is easy
enough to provide here for the few verses that apply to our discussion.

Hermas contains anachronistic interpolations from the latter half of the 3 rd century. Novatianists, at
the time, and other Cathars denied that, in this life, post-baptism, one could be absolved from the
sins of idolatry or digamy. This belief was not even on any heretic’s radar at the turn of the 1 st
century, but it is contained by interpolation in Hermas. Fortunately, there was little to no alteration

55
Joseph Cardinal Ratzinger, as Prefect of the CDF; Concerning Some Objections to the Church's Teaching on
the Reception of Holy Communion by Divorced and Remarried Members of the Faithful; 2c; 1998.
56
Giancarlo Pani, Matrimony and ‘Second Marriages’ at the Council of Trent; La Civiltà Cattolica, 4, 3-104;
4/10/2014. Also cf. Walter Kasper, Charles Curran, Michael Lawler, Kenneth Himes, James Coriden, Theodore
Mackin S.J., Victor J. Pospishil, Francis A. Sullivan S.J., Karl Lehmann, and Piet Fransen S.J. – all cited by E.
Christian Brugger; Damnatio Memoria? The Council of Trent and Catholic Teaching on Divorce; The Public
Discourse (The Witherspoon Institute); 10/17/2014.
57
Council of Trent; Session 24, Canon 7; 1563.
58
Origen, Commentary of the Epistle to the Romans, 10.31.

20
of the original text, which makes the heterodox interpolations glaring. Another thing we know for
sure is that when Tertullian read Hermas, as late as the first quarter of the 3 rd century, it did not
contain these interpolations, which he himself would have favored. Instead, Tertullian blasts Hermas,
whose work is commonly called “Shepherd,” referring to it as “that apocryphal
Shepherd of adulterers.”59 Although Tertullian was a rigorist, he was by all accounts perspicacious;
but that Hermas could be called a book of adulterers is not at all apparent in the way it has come
down to us. Yet, he concedes that Hermas condones adultery – and by adultery, he means not the sin
proper, which it clearly does not condone, but rather divorce and remarriage.

The diocese of Rome, down to the time of Novatian, had a reputation of being relatively lax on
adultery, and this makes sense if we consider that the Apostolic work of Hermas was written in
Rome. By the time of Novatian, however, efforts were already being made to discredit Hermas, as by
casting doubt on its early date,60 in direct contrast to internal evidence and earlier reputable
witnesses like St. Irenaeus and Origen. It is my opinion, that it was a Novatianist, if not Novatian,
himself – a scholar of Rome and anti-pope – who finally corrupted Hermas, directly by making the
interpolations (which we will place in brackets as we go along). At that time, it would not have been
hard for a leading scholar to collect all the copies of a given work in his city, since all but a few were
probably in a single library; and the majority of Christian Academia, which had always leaned a little
puritanical, would have been all too eager to emend their copies to match the Roman edition.

I said to [the Angel], “Lord, may I ask you a few questions.” “Speak,” he said. “Lord,” I said,
“if someone who trusts in the Lord has a wife, and he discovers that she is in any sort of
adultery, does the husband living with her sin?” And he said to me, “As long as he does not
know about her, he may live with her sinning. However, if the husband finds out about her
sin and the wife does not repent, but persists in her fornication, and the husband continues
to live with her, he becomes liable for her sin and a sharer in her adultery.” “What, then,
Lord,” I said, “is the husband to do, if his wife persists in her ways?” “Divorce her,” he said,
“and let the husband remain by himself. [But if he divorces his wife and marries another, he
also commits adultery.]”61

The word “divorce” here is literally “dissolve,” as in the New Testament, and so it clearly refers not
to a separation from bed and board, but a divorce from the bond. That the interpolation does not
belong will be seen, principally, by what comes after, but as it stands now, it shows awkward
redundancy in the use of the word “divorce” which is due to it being a word-for-word reposition of
the Evangelical Counsel.62 Continuing:

And I said to him, “Lord, what if the divorced wife should repent, and the wife wishes to
return to her husband: shall she not be taken back?” And he said, “Amen, if the husband
does not take her back, he sins, and brings a great sin upon himself; for he ought to take back
the repentant sinner. [But not frequently. For there is but one repentance to the servants of
God.]”

59
Tertullian; On Modesty, 20.
60
The Muratorian Fragment, 73-80.
61
Shepherd of Hermas; 2.4.1.
62
Cf. Luke 16:18. “Everyone who divorces his wife and marries another commits adultery.”

21
(This interpolation is an expression of the strictest form of Novatianism. Rigorism, indeed, exists in
every age, and the age of the Apostolic Fathers was not excepted; but it will be another 100 years
after this work was written, till it approaches the extreme seen here. That Hermas was a well-known
and respected work, considered canon in many places until the third century, is also evidence that it
did not give cause to Novatian’s errors, but, rather, was corrupted by them.)

“For her repentance, therefore, the husband ought not to marry.”

This must have been the line that filled Tertullian with the most hatred for this work, because this
clearly reckons remarriage would be an option, but for the repentance of the former spouse. The
reason, clearly given, for not remarrying, after a divorce, is to allow the one divorced time for
repentance. In this sense, waiting to remarry could be considered a form of penance for the
conversion of the one’s former spouse; and the words “right away”63 could easily be imagined to
follow. But even without those words – whether they were not included or they were redacted – if
the only reason given for not remarrying is the hope for repentance, then, in the case that there is no
hope for it, there would be no reason at all to not make use of one’s right to remarry. But if the
commission of the sin of adultery were really a reason not to remarry, as was inferred by the first
interpolation we came to, then this line would be: on the one hand, irrelevant and unnecessary, since
duty would preclude gratuity; and, on the other, rash and scandalous, since it would propose to
make the immediate cause of our indebtedness to the law a human being.

Also, the fact that the innocent party should unceremoniously take back the guilty, who is still
referred to as his “divorced wife,” even after a divorce from the bond, is further evidence that it is
not until remarriage that a divorce is consummated.

“The same rule applies to both men and women.”

Men and women have equal rights in marriage disputes.

“Not only,” he said, “is it adultery when persons defile their flesh: but, when they do the
same things as the gentiles, they also commit adultery. And so, if a person persists in such
acts and does not repent, keep away from him and do not live with him, otherwise you have
a part in his sins. This precept is given to you – that both husband and wife should remain by
themselves – because in such persons is repentance possible.”

This must have been, then, the second most hated line of Tertullian. Adultery is loosely interpreted
here as a material breach of the marriage contract, which includes not only sins of sexual nature, but
sins against every aspect of communal life. This would not contradict matrimonial canon 5 of the
Council of Trent, either:

If anyone says that the bond of matrimony can be dissolved on account of heresy, or irksome
cohabitation, or by reason of the voluntary absence of one of the parties, let him be
anathema.

For, this canon is in the present tense and, therefore, may be interpreted as simply referring to the
current state of things, which was, in the 16 th century, that divorce for such reasons was impossible,
by law.

63
In Greek, “euthys.”

22
Finally,

[“I do not, then,” he said, “give occasion for a person to get his way in sin, but for him to no
longer commit sin. And, as to his past sins, there is One who is able to provide a remedy; for it
is He who has authority over all.”]

This last verse of the chapter sums up the peculiarly Novatianist assertion, that only God had the
power to forgive every sin, and not anyone in Church, whether priest or Pope.

3.5 According to the Great Church

3.5.1 Pre-Conciliar
Before the time of Novatian, there were other rigorists and ascetics who, at least in theory, also held
that digamy was morally impermissible. Among which were: Ptolemy, Justin and Theophilus;
Athenagoras; and Origen. The difference, though, between these, who remained in communion with
the Church, and the later Novatianists, is that there is no evidence that the former refused
communion with digamists, themselves, or at least with their Bishops who pardoned them.

Another thing about those who disagreed with digamy, it was not on the grounds that divorce was
impossible. On the contrary, divorce was universally recognized as effectual. Consequently, the
ascetics were often careful to point out that adultery, when applied to digamy, was done so de jure,
that is, in accord with the moral and Evangelical law, but not de facto. Sometimes, for greater clarity,
they would use a qualifier or another word altogether for digamy, as in: “specious adultery,” 64
“cloaked adultery,”65 “adultery by desire,”66 and “limited fornication.”67 The reason for this was that
marriage, in both its ratification and rescission as a contract, was a matter of civil law. The
abnegation of one’s legal rights beyond monogamy, for the sake of the Gospel, did not make them
disappear. Jesus was not taken as having abrogated civil law, but only as having prescribed a stricter
way of life.

However, the greatest and most authoritative Christian of his generation was the Bishop of Lyons,
St. Irenaeus (c. 140-202 A.D.), a disciple of St. Polycarp. His position with respect to digamy and the
separation of Church and State is an early representation of the true Christian one:

…the Lord also showed that certain precepts were enacted for them by Moses, on account
of their hardness, and because of their unwillingness to be obedient, when, on their saying to
Him, “Why then did Moses command to give a writing of divorce, and to dismiss a wife?” He
said to them, “Because of the hardness of your hearts he permitted these things to you; but
from the beginning it was not so;” thus exculpating Moses as a faithful servant, but
acknowledging one God, who from the beginning made male and female, and reproving
them as hard-hearted and disobedient. And, therefore, it was that they received from Moses
this law of divorce, adapted to their hard nature. But why do I say these things concerning
the Old Testament? For in the New also are the Apostles found doing this very thing, on the
ground which has been mentioned, Paul plainly declaring, “But these things I say, not the

64
Athenagoras of Athens; Embassy for the Christians, 23.
65
Ibid
66
Cf. St. Justin Martyr; First Apology, 15.
67
St. Basil of Caesarea; Letter 188, Canon 4.

23
 Lord.” And again, “But this I speak by permission, not by commandment.” And again, “Now,
as concerning virgins, I have no commandment from the Lord; yet I give my judgment, as one
that has obtained mercy of the Lord to be faithful.” But further, in another place he says,
“That Satan not tempt you for your lack of self-control.” If, therefore, even in the New
Testament, the Apostles are found granting certain precepts in consideration of human
infirmity, because of the lack of self-control of some, lest such persons, having grown
obdurate, and despairing altogether of their salvation, should become apostates from God –
it ought not to be wondered at, if, also, in the Old Testament, the same God permitted similar
indulgences for the benefit of his People, drawing them on by means of the ordinances
already mentioned, so that they might obtain the gift of salvation through them, while they
obeyed [at least] the Decalogue, and being restrained by him, should not revert to idolatry,
nor apostatize from God, but learn to love him with their whole heart. And if certain persons,
because of the disobedient and ruined Israelites, assert that this power was limited to the
Teacher of the Law [i.e. Moses], they will find in our dispensation, “that many are called, but
few chosen;” and that there are those who inwardly are “wolves,” yet wear “sheep's
clothing” in the eyes of the world; and that God has always preserved freedom, and the
power of autonomy in man, while, at the same time, he has issued his own exhortations...68

Origen of Alexandria (185-254 A.D.), in his travels throughout the Near East, including a visit to Rome,
testifies that he came across Bishops who permitted digamy. Now, Origen’s own approach to
interpreting the Gospel was literal to a fault, so one would not be surprised that he personally did
not see a way out in Christ’s words, per se. Nevertheless, he reasoned along the exact same line as
Irenaeus, that pastors could justify permission digamy by a lesser-evil argument, just as Moses had
justified it.

…some of the laws were written not as excellent, but as by way of accommodation to the

weakness of those to whom the law was given; for something of this kind is indicated in the
words, “Moses for your hardness of heart suffered you to put away your wives;” but that
which is pre-eminent and superior to the law, which was written for their hardness of heart,
is indicated in this, “But from the beginning it has not been so.”… 69

(Origen makes a distinction here between 2 kinds of law: one that prohibits and punishes evil and
another that tolerates and deals with it: a legislator has the right to make both kinds of law; and as
we saw earlier, so say Pope Leo XIII and St. Augustine.)

But, now, contrary to what was written [by way of excellence], some even of the Rulers of
the Church have permitted a woman to marry, even when her husband was living, doing
contrary to what was written, where it is said, “A wife is bound for so long time as her
husband lives,” and “So, then, if while her husband lives, she shall be conjoined with another
man, she shall be called an adulteress;” not, indeed, without reason, altogether, for it is
probable this concession was permitted in comparison with worse things, contrary to what
was “from the beginning,” ordained by law and written [as excellent].

68
St. Irenaeus of Lyons; Against Heresies 4.15.2.
69
Origen; Commentary on Matthew, Book 14.23.

24
Scornfully referring to the use of the lesser-evil argument in regard to digamy by the Pope in Rome,
Tertullian, the precursor to Novatian, writes circa 215 A.D.:

…they make the fear of succumbing to adultery and fornication their reason for marrying as

often as they please, since “better it is to marry than to burn.”70

He could not understand the application of the lesser-evil argument in this case:

Why, then, do they withal grant indulgence, under the name of repentance, to crimes for
which they prescribe remedies by their law of polygamy?71 …For, again, adultery and
fornication will not be ranked at the same time among the moderate and among the greatest
sins…72

In other words, Tertullian asks: how can one allow an adulterous marriage to persist under the
pretext of preventing adultery? Is one adultery greater than the other? As if there is no difference at
all between casual sex and sex inside a committed relationship. But Tertullian gives the true answer
to his own question, later on in the same text when he acknowledges – in accordance with the
language of Scripture, the assumption of civil law, and the common church practice – that divorce is
a dissolution of the bond, so that, properly speaking, remarriage after divorce is not adultery, except
relative to the law of Evangelical Perfection. Accordingly, he calls the imputation of adultery to
remarriage after divorce an “instrument” employed by Paul to goad the divorced to compliance with
the counsel:

Meantime withal, [Paul,] while prohibiting divorce, uses the Lord’s precept against adultery

as an instrument for providing, in the event of divorce, either perseverance in widowhood or
else a reconciliation of peace….73

Admitting in another place:

Alike when divorce dissevers marriage as when death does, [a woman] will not be bound to
him by whom the binding medium has been broken off.74

Not only Tertullian, but Julius Africanus also witnesses to the perfect dissolution of a legal divorce:

…a widow, whether by divorce or by the death of her husband…75

And Athenagoras of Athens:

…a person should either remain as he was born, or be content with monogamy; for digamy is
only a specious adultery. …For he who deprives himself of his first wife, even though she be
70
Tertullian, On Modesty, 1.
71
“multinubentiae” Literally, “multinubiality,” but in Greek this would be the more familiar “polygamy,” for just
as “digamy” was used at this time to refer the twice-married, so did “trigamy” and “polygamy” refer to the
thrice and 4-or-more-times married, regardless of whether any of the previous wives were still alive. Cf. St. Basil
of Caesarea; Letter 188, Canon 4. Also of note, the Orthodox Church still follows this ancient interpretation of
the terms and this canon of Basil to the letter, whereby they do not permit polygamy or more than 3 marriages,
under any circumstance.
72
Tertullian, On Modesty, 1.
73
Ibid, 16.
74
Ibid, 9.
75
Julius Africanus; Epistle to Aristides, 3.

25
 dead, is a cloaked adulterer, resisting the hand of God, because in the beginning God made
one man and one woman, and dissolving the strictest union of flesh with flesh, formed for
the intercourse of the race.76

So, it is as if, for lack of a scarier word, Tertullian would maintain calling sex after a divorce
“adultery,” as a tactic to prevent remarriage; knowing full well that Jesus used the term de jure and
not de facto.

However, neither Tertullian, nor Novatian after him, another Roman scholar, would let their correct
understanding of the legitimacy of digamy sway them:

But by us precaution is thus also taken against the greatest, or, if you will, highest crimes, vis-
à-vis, in that it is not permitted, after believing, to know even a second marriage,
differentiated though it be, to be sure, from the work of adultery and fornication by the
nuptial and dotal tablets: and accordingly, with the utmost strictness, we excommunicate
digamists, as bringing infamy upon the Paraclete by the irregularity of their discipline. The
self-same liminal limit we set for adulterers, also, and fornicators; dooming them to pour
forth tears barren of peace, and to regain from the Church no ampler return than the
publication of their disgrace.77

Thus Tertullian of Carthage.

However, there was wide divergence in the treatment of so-called digamists across Christendom;
and discipline differed from diocese to diocese. Even among rigorists, themselves, there were
differences of opinion, with those Bishops who would have liked to characterize every sex act that
transgressed monogamy. Others, like Novatian, himself, were able to tolerate adultery proper, as
Cyprian makes a point of when refuting him, but he could not forgive digamy, which he deemed
adulterous. Nevertheless, there were Bishops that would offer pardon to all so-called adulteries, a
practice attested to by Origen and Tertullian, whether approvingly or not, and a practice cogently
defended by St. Cyprian (200-258 A.D.), Bishop of Carthage, who was, not only a far greater authority
in their home city than Tertullian, but, again, would be received as the greatest authority of his
generation78.

And do not think, dearest brother, that either the courage of the brethren will be lessened,
or that martyrdoms will fail for this cause, that repentance is relaxed to the lapsed, and that
the hope of peace is offered to the penitent. The strength of the truly believing remains
unshaken; and with those who fear and love God with their whole heart, their integrity
continues steady and strong. For to adulterers even a time of repentance is granted by us,
and peace is given. Yet virginity is not therefore deficient in the Church, nor does
the glorious design of continence languish through the sins of others. The Church, crowned
with so many virgins, flourishes; and chastity and modesty preserve the tenor of their glory.
Nor is the vigor of continence broken down because repentance and pardon
are facilitated to the adulterer….

76
Athenagoras of Athens; Embassy for the Christians, 23.
77
Tertullian, On Modesty, 1.
78
The greatest saint and mystic in the Church at this time, though, I take to be St. Denis of Paris, who I think is
the same as the pseudo-Areopagite, probably originally from Alexandria.

26
 And, indeed, among our predecessors, some of the bishops here in our province thought
that peace was not to be granted to adulterers, and wholly closed the gate
of repentance against adultery. Still they did not withdraw from the assembly of their co-
bishops, nor break the unity of the Catholic Church by the persistency of their severity
or censure; so that, because by some peace was granted to adulterers, he who did not grant
it should be separated from the Church. While the bond of concord remains, and the
undivided sacrament of the Catholic Church endures, every bishop disposes and directs his
own acts, and will have to give an account of his purposes to the Lord.79

Thus, from the beginning of the Church until the 3 rd Century, there is ample evidence that the Church
recognized that civil divorce could dissolve the bond as perfectly as death; and that, on this account,
permission for digamy was considered a disciplinary matter; that is, it was a question of moral and
not absolute possibility; and that, as a matter of fact, there were Bishops throughout the Church,
who permitted digamy, on the basis of their Apostolic jurisdictive authority in the area morals and in
accordance with Scripture, in view of the salvation of souls.

3.5.2 The Councils

The early 4th Century, saw 3 Councils convened, which were representative of every part of
Christendom. They were in Granada, Arles, and Ankara. Each of these Councils made a point of
canonizing the doctrine that communion with digamists was possible.

The Council of Elvira – present-day Granada, which is in Southern Spain, near Africa – was attended
by 19 Bishops and took place about 304 A.D.. In its canons, which no one could say lacked rigor, a
distinction is made between digamy for cause and without cause. In the case that no cause was
given, a woman who left her husband and remarried was permanently barred from communion,
under all circumstances. However, a woman who left an adulterous husband and remarried could
receive communion, even while her first husband was still alive, at least when the need arose from
illness.

Such women who, without antecedent cause, leave their husbands and couple with another,
may not even at the end receive communion.80

Such believing women, who leave an adulterous believing husband and are drawn to another
one, are prohibited from being drawn. If she is drawn to another husband, she may not
receive communion at any time before her first leaves this world, unless perhaps a necessity
due to sickness compels it be given her.81

Let us not overlook, let it not be lost on anyone, that women, specifically, are mentioned here, not
men; and when Origen remarked that it was strange to see divorce and remarriage condoned, he
also specifically said, in the case of women. The inference being that for men there was a different
standard. This was of course Ancient Rome. The Julian Law of Adultery made no provision for
women; but it required men, under threat of prosecution, to divorce adulterous wives. Not even did

79
St. Cyprian of Carthage; Epistle 51.20.
80
Council of Elvira, Canon 8.
81
Ibid., Canon 9: Item femina fidelis, quae adulterum maritum reliquerit fidelem et alterum ducit, prohibeatur
ne ducat; si duxerit, non prius accipat communionem nisi quem reliquerit prius de saeculo exierit; nisi forte
necessitas infirmitatis dare compulerit.

27
Mosaic Law explicitly give the right to women to divorce their husbands; and Churchmen of the day
pointed out that even in the New Testament, the clearest prohibitions of divorce are directed against
women, not men; it was accordingly Roman, Jewish, and Christian custom to treat men and women
differently at divorce court:

The sentence of the Lord that it is unlawful to withdraw from wedlock, save on account of
fornication, applies, according to the argument, to men and women alike. [Church] custom,
however, does not so obtain.82

Since only women are mentioned in the above conciliar canons, it may safely be assumed that the
case of men was dealt with entirely at the discretion of the Bishop, and in all likelihood with greater
lenity, in view of civil law.

To put women on par with men and to tolerate them to divorce would been countercultural; and to
permit a woman to remarry while a husband with a claim was still alive could have been cause for a
lawsuit.83 Therefore, if permission were given to women for digamy, which, indeed, we know it was
by certain Bishops, it had to be on the strength of a principle believed to invalidate civil law, as in the
principles of equity and equal rights. But, without a doubt, it would have just been easier for a Bishop
to enforce the Evangelical Counsel in all cases: because if he allowed had the faithful to make use of
the rights by law, since the law was prejudicial to women, he would have had to contend with his
own conscience; but, if he had treated men and women equally in spite of the law and custom, then
he would have had to contend with potential objections from civil authorities, Roman culture
warriors, formally schismatic Cathars, and even Christian rigorists. Considering all this and, especially
since it took place during Galerian persecution of Christians, the canons of the Council of Elvira,
which allow a woman in digamy for cause to receive communion, even if only in emergencies, were a
sort of proclamation for equal rights under Roman Law. But, in the silence of the same with regard
to men, which meant there was no canonical impediment to digamy in their case, they were a bolder
proclamation for equity in the Evangelical Law of Perfection.

In 311, Galerian finally relented in his persecution of Christians and issued his Edict of Toleration. This
together with the other official acts toward the same end and, finally, the Edict of Milan by Emperors
Constantine and Licinius, in 313, I take to be the occasion of the real conversion of the Empire.

When you see that this has been granted to [Christians] by us, your Worship will know that
we have also conceded to other religions the right of open and free observance of their
worship for the sake of the peace of our times, that each one may have the free opportunity
to worship as he pleases; this regulation is made that we may not seem to detract from any
dignity of any religion.84

When the State allows the free practice of all Religion which does not upset the public order, this is
ideal and perfect. As soon as the State begins to derogate unjustly from the freedom of conscience
with respect to Religion, even in favor of the true one, it becomes less than perfect.

82
St. Basil of Caesarea; Letter 188, Canon 9. Also, cf. ibid Letter 199, Canon 21.
83
St. Justin Martyr; Second Apology, 2.
84
Lactantius; On the Deaths of the Persecutors 48. From the Edict of Milan.

28
Despite the initial edicts declaring Christianity licit, the Emperor in the East, Maximinus, continued
the persecution, until he succumbed in the summer of 313. In early 314, a Council was convoked at
Ancyra, now known as Ankara, the Capitol and geographic center of Turkey. It is said to have been
attended by 12 Bishops, but that it was representative of the entire Christian East. In its 20 th canon,
men and women are treated as equals when it comes to breaches of the marriage contract – a
practice which surprised Origen, when he traveled throughout the region, 100 years earlier.

If the wife of anyone has committed adultery or if any man commit adultery it seems fit that
he [i.e., the guilty party] shall be restored to full communion after seven years passed in the
prescribed degrees [of penance].85

While this canon does not pertain to digamists – since, in the East, the charge of adultery was not so
loosely applied as in the West – still, it does purport equality. However, adultery was more narrowly
construed than what even common sense would suggest, because it did not apply to married men
who had sex with unmarried women; whereas, it applied to married women, regardless. This was a
canon of the Church, but it followed from Roman law and custom, which distinguished between the
sex crimes of adultery and “stuprum” (translatable as fornication), both perpetrated by married
men. St. Basil, Bishop of Caesarea, Cappadocia, explaining the canons of the Church to St.
Amphilochius, Bishop of Iconium:

If a man living with a wife is not satisfied with his marriage and falls into fornication, I account
him a fornicator…. Nevertheless, we have no canon subjecting him to the charge of adultery,
if the sin be committed against an unmarried woman. …So the wife will receive the husband
on his return from fornication, but the husband will expel the polluted woman from his
house. The argument here is not easy, but the custom has so obtained. 86

Such was the “power of autonomy”87 of the State in matters over which it properly had jurisdiction
that its laws were able to influence and even dictate canon law.

Later that same year (i.e. 314), in response to the Donatist schism, which was causing social unrest in
the West, the Emperor Constantine convoked a Council at Arles, an important Mediterranean port
city of the time. It was attended by, at least, 33 Bishops from around the Empire, including 3 from
Britain. The most notable participants were Bishop Marinus of Arles, who chaired, Bishop Chrestus of
Syracuse, Bishop Caecilian of Carthage, and the 4 Roman clerics who represented Pope Sylvester.
This Council was considered Ecumenical by St. Augustine. Canon 10 of the Council:

Concerning those [men] who have apprehended their partners in adultery – such as are
believing youths and prohibited to be wedded88 – please, to the extent that it is possible, may
counsel be given them, that, as long as their wives are alive, even though they are
adulterous, they are not to take another.89

85
Council of Ancyra; Canon 20.
86
St. Basil of Caesarea, Letter 199, Canon 21.
87
St. Irenaeus of Lyons; Against Heresies 4.15.2.
88
(prohibentur nubere) Or “unable to remain wedded,” as in conscience.
89
Council of Arles; Canon 10(11): De his qui conjuges suas in adulterio deprehendunt, et idem sunt adolescentes
fideles et prohibentur nubere, placuit quantum possit consilium eis detur, ne viventibus etiam uxoribus suis,
licet adulterae sint, ut non alias accipiant.

29
This canon is so far the strongest direct evidence for the dogmatic permissibility of digamy; and,
coincidentally, it also happens to specifically address the case of divorced men. As we suspected, it
permits them to remarry, while their first wife is yet alive, with impunity, only adding that it would be
better if they remain unmarried. Mark, also, the obsequious tone the canon strikes, in the presence
of the Emperor, in suggesting that the Evangelical Counsel, not be followed, but even proposed to
men. But, in any case, this caution makes sense, since proposing the hard counsel following such
tragedy would not be pastoral or considerate of the innocent party; and it could be construed by civil
authorities as, both, an attempt to place Church’s authority over the State’s in a civil matter and to
defraud a citizen of his rights as provided for by law.

I would also argue that, as clearly permissive as this canon is, it is actually stricter than the others,
which specifically make concessions for women in direct contradiction to civil law. That this canon
did not do as much, is probably, though, a direct result of the Emperor being present at the
proceedings. Nevertheless, this canon shows that digamy is definitely allowable and acceptable by
Divine Law.

Finally, this was the dogma that was proclaimed in the 8th canon of the First Ecumenical Council of
Nicaea, in 325 A.D.:

Concerning those who call themselves Cathars, if they come over to the Catholic and
Apostolic Church, the Great and Holy Synod decrees that they who are ordained shall
continue as they are in the clergy. But it is before all things necessary that they should
profess in writing that they will observe and follow the dogmas of the Catholic and
Apostolic Church: that is to say, that they will have communion with the digamists and
those who have lapsed in persecution, who have had both a period [of penance] laid
upon them, and a time [of restoration] set; so that in all things they will follow the
dogmas of the Catholic Church.

There are many other Councils and Synods and Saints, Fathers, and early Christian witnesses to cite in
defense of digamy, but there will be no greater authority, for or against it, than this Conciliar canon.
In it, digamy is dogmatized; the permissibility of unqualified digamy is infallibly taught and
proclaimed. Therefore, no new dogma would have to be proposed in order to permit it, again; the
Roman Church would only need to return to her ancient discipline, in compliance with the 8 th canon
of the First Ecumenical Council.

Finally, in defense of the Church’s transcendental infallibility under the Roman Pontiff in face of the
long-standing Roman tradition of disallowing digamy: The Church does not transcendentally err in
not allowing what is allowable; she would, however, so err, if she were to allow what is not allowable
– which is another reason why this undeniable evidence of official allowance in the early Church
should settle the issue.

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