Marriage on death row

October 4, 2015 § 24 Comments

Both a death sentence and a declaration of nullity are fallible juridical decisions, made by fallible people exercising fallible judgment after looking at some evidence.  We are told that it is more merciful to err on the side of not executing a convict, because sometimes we will inevitably get it wrong.

The same kind of reasoning applies to declarations of nullity, it seems to me.  A wrong declaration of nullity  turns the parties into material adulterers.

One difference is that often enough (though certainly not always) parties in the proceeding unanimously want to believe that a valid marriage never occurred.  This gives rise to the idea that, whether factually accurate or not, declarations of nullity are a kind of mercy.  And in that sense a “lenient” annulment process is more akin to euthanasia than it is to  accidentally executing the innocent. Permission to die and permission to commit adultery are considered “mercy”; because sometimes doing the right thing can be very difficult, and that is not something that people like to hear.

§ 24 Responses to Marriage on death row

  • Mike T says:

    On the flip side, you may often subject innocent parties to the tyranny of the subjective in both cases. In the case of the executions, how much intent should be required before you say it’s justified in executing someone? Personally, I’m a big advocate for regular use of felony murder; if we sent thousands of felons to the gallows every year because a victim died during their felony, the death penalty probably would become a serious deterrent, but I know my view is not popular outside of the political right. To me, the innocent parties victimized by a homicide in the course of intentional, felonious conduct should not be subjected to the tyranny of subjectively figuring out “just how much he intended to hurt the victim and how far.”

    So it seems obvious to me that if one of the parties was serious and you find out that the other shows a reasonable degree of heterodoxy on marriage, chances are pretty good they didn’t take the vow seriously at the time in some meaningful way. On one of your own posts, you or someone else noted a major Catholic figure (not the Pope, I believe) who said he figured most Christian marriages are invalid because most Christians reject the traditional definition of marriage.

    As a Protestant, I fully agree with that sentiment. The number of mainline Protestants and “Jesus loves me!!!!! Lulz!!!!” Evangelicals who could fit right into the mold of Dalrock’s criticisms is huge. It seems to be a serious and universal problem.

  • donalgraeme says:

    Zippy, would the motto “err on the side of caution” be appropriate, despite its simplicity?

  • Scott says:

    Mike T I think you make a great point there but it’s almost like you are saying to those who were not properly catechized they have ground for annulment.

    This would let a huge number of Orthodox and Catholics off the hook.

    I am blown away by how many of my brothers and sisters (I am Orthodox) are OK with birth control and divorce. They see those as “Catholic” positions. But they are older than the schism. You do not need the magisterium to get there. The church fathers and tradition were unanimously against them.

  • […] makes similar points for strictness in the annulment process here and here (although he would not agree with all of my points below).  In the interest of pushing the […]

  • Kidd Cudi says:

    as were almost all protestant denominations until the pill became widely available and effective

  • Kidd Cudi says:

    on the plus side, Cardinal Peter Erdo isn’t the worst.

  • Mike T says:

    Mike T I think you make a great point there but it’s almost like you are saying to those who were not properly catechized they have ground for annulment.

    I am not a Catholic, but my understanding is that if you can prove that your spouse did not accept Christian teaching on marriage at the time of their vows, that is a ground for annulment. From a Protestant perspective, this would apply in spades to many Protestant churches because it is common to see people reject the permanence of marriage, embrace contraception in a way that absolutely undermines “be fruitful and multiply” and even the gender roles.

    I’ve turned a few people I know to actually seeing the Catholic position on annulments as reasonable. Conservative Protestants often take a position that is basically the same as the Catholic Church’s minus the possibility of annulments. The way I explained it was along the lines of if you knowingly didn’t agree to Christian teaching on marriage when you said “I do,” all you did was lie your ass off to God. A contract built on a lie, is built in bad faith and that makes it generally unenforceable against the innocent party.

  • Rejecting Catholic teaching on marriage only invalidates marriage if it “determines the will”. So unless a spouse can be proven to have made a statement to the effect of, “I wouldn’t get married if …”, it should not justify an annulment.

  • Zippy says:

    AR:

    … unless a spouse can be proven to have made a statement to the effect of…

    You seem to be assuming (among other things) that only things which are stated are willed. But this is obviously not true. Most of our acts – all of which are willed – do not follow statements (e.g. “I choose to eat this sandwich”).

    Mind you, my views on this whole subject are far from closed. And I think issuing no annulments at all would probably be better than the current situation, and in any event that very few annulments should be issued, for reasons I’ve given.

    Whether a marriage is valid or invalid is indeed determined by the will at the time vows are exchanged. But “willed” is clearly not a subset of “made explicit statements to the effect that”.

  • Mike T says:

    One such action could often be the pursuit of civil divorce outside of a very serious situation. It’s quite reasonable to assume that if someone pursues a divorce for banal reasons that they probably never actually held to the view that marriage is permanent. It’s possible they did, but more likely that they did consider divorce to be an option in situations where it isn’t.

  • Kidd Cudi says:

    Mike, I think you’re underestimating our ability to rationalize backwards.

  • Scott says:

    One such action could often be the pursuit of civil divorce outside of a very serious situation. It’s quite reasonable to assume that if someone pursues a divorce for banal reasons that they probably never actually held to the view that marriage is permanent. It’s possible they did, but more likely that they did consider divorce to be an option in situations where it isn’t.

    This I think accounts for the vast majority of divorces. It’s the equivalent of crossing your fingers behind your back at the altar.

  • Mike T says:

    The Episcopal Church used to have a pragmatic solution to such cases. The wronged spouse could remarry, the one guilty of the wrong could not. It was sort of like an annulment, only it left the dishonest/unethical party bound to their vows whether they were made in good faith or not.

  • Elspeth says:

    The wronged spouse could remarry, the one guilty of the wrong could not. It was sort of like an annulment, only it left the dishonest/unethical party bound to their vows whether they were made in good faith or not.

    This is Mike T the Protestant standard, or it was before “abuse” was deemed cause for divorce and then every bad feeling used to signify the presence of said abuse.

    It’s gotten so absurd that it’s taught that abuse is tantamount to the abandonment by an unbelieving spouse that Paul wrote about, and of course, “The believing spouse is not bound in such cases.”

    Even though I am aware of Catholic doctrine I still find myself taken aback when a Catholic spouse finds herself (or himself) left by a mate who abandoned and married someone else and they tell me that they are not free to remarry.

    Much like strict gun control laws, this without question leaves the law abiding person to suffer unjustly as the law breaker goes on his merry way.

  • Zippy says:

    Elspeth:

    Much like strict gun control laws, this without question leaves the law abiding person to suffer unjustly as the law breaker goes on his merry way.

    That is the way of things in this world, until that final stop in Eternity. For people who don’t believe in Purgatory and Hell it can seem mighty unfair.

  • Zippy says:

    People who believe in a just God, however, should tremble for the fate of the one who “got away with it”.

  • Zippy:

    I should have been more clear, I meant that the Church should not issue annulments unless there was an explicit statement, because the Church must judge according to externally discernible facts. I did not mean to deny that such an inner intent could actually invalidate marriage.

  • Mychael says:

    This is Mike T the Protestant standard, or it was before “abuse” was deemed cause for divorce and then every bad feeling used to signify the presence of said abuse.

    This is what happened to my husband. He did not yell, hit, cheat, etc. But he is quite stoic, which was called “abandonment” ergo “abuse.”

    He tried for several years to “win her back” making all manner of “improvements” to himself and constantly signaling to her that he was still available, while she, well, didn’t reciprocate the loving gesture.

  • Mike T says:

    I meant that the Church should not issue annulments unless there was an explicit statement

    That rules out the ability to show substantial circumstantial evidence that contradicts a claim of good faith. For example, suppose your wife were to undergo a Dr. Jekyll/Mr. Hyde-like transformation in personality. My mother worked with a young guy whose new wife did that. She suckered him into marriage by acting like a good girl, then became a stark, raving bitch within a few weeks after the wedding. Treated him like garbage, turned sex into a weapon, wouldn’t listen to him.

    I would say that that is a very obvious case where the person had no intent on being a good spouse.

  • Mike T says:

    This is Mike T the Protestant standard, or it was before “abuse” was deemed cause for divorce and then every bad feeling used to signify the presence of said abuse.

    This has nothing to do with me. It’s the standard the Episcopal Church used to apply as explained to me by my life-long Episcopalian grandmother, whose father was a priest. And as I understand it, it applied to virtually any divorce that wasn’t caused by extreme misconduct.

  • Zippy says:

    Sacramental marriages (that is, marriage of baptized Christians) are not valid unless they are done according to the laws of the Church, so in that sense validity is tied to the Church’s (changeable) positive law. The most common example is that under the current canon law Catholics are required to observe canonical form when marrying (protestants who have never been Catholic are, interestingly enough, exempted from this requirement of the positive law of the Church).

    It is possible in Catholic theology for there to be an “impediment due to crime”. The only kind of case I am aware of (I am only vaguely aware of it, I haven’t done any due diligence) is that when an adulterer murders his spouse to marry his adulterous partner he is impeded from marrying his adulterous partner. I am not sure there is any reason why there couldn’t in theory be additional ‘impediments due to crime’ though.

    It may look like one party ‘gets away with it’ in a case like Elspeth describes, but keep in mind that neither spouse can ‘remarry’ sacramentally if they are in fact sacramentally married to each other. Sure, the ‘bad spouse’ can apostasize and go pretend to marry someone else, but she isn’t actually getting married. She is just shacking up and pretending to marry, no more legitimately married than two fags with a piece of paper from city hall, or a woman on the Internet pretending to marry a bridge.

  • @Mike T

    What is being a “good” spouse? Where would the line be?

    @Zippy

    Impediment due to crime prevents marriage between a man and a woman who have cooperated physically or morally in the voluntary killing of one of their spouses, or between a person who voluntarily kills his/her spouse with a mind to marrying a specific other person and that person, or between a person who voluntarily kills another person’s spouse with a mind to marrying that person and that person. Used to be that this impediment barred a person who voluntarily killed their spouse from marrying anyone. That is the only impediment of crime.

    Somewhat related is affinity. It used to create an impediment between a fornicator and his accomplice’s relatives to the same extent as between a married person and their spouse’s relatives. But now it only applies to marriage. Although, there is now the impediment of public propriety, which bars marriage with the parent or child of a person that one has been invalidly married to or has lived in notorious and public concubinage with.

  • Mike T says:

    What is being a “good” spouse? Where would the line be?

    If you’re referring to my Jekyll/Hyde comment, the key point would be where the behavior is simply not at all reasonably associated with an effort to live up to the vows. In that particular case, it happened not long after the wedding which leads reasonable people to see it as a bait and switch, not a vow taken in good faith with normal human failings.

    For women, an example would be your husband is a nice, friendly guy then starts beating you a few months into the marriage over minor fights or you catch him in bed with his ex-girlfriend weeks after a sex-filled honeymoon.

    I am not a Catholic, but I would say that such actions would legitimately prejudice authorities against that person’s vows as they speak strongly against their character so close to the time when the vows were made. A spouse who has a torrid affair after 20 years of faithful monogamy is more likely, circumstantially, to have taken the vows seriously than one who is caught 20 days after the vows were exchanged to have seriously intended to abide by their vows.

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