The papal apostolic exhortation in response to the Synod of Bishops on the family is expected to have some reference to the "internal forum" as a solution to the pastoral problems of divorced and remarried Catholics.
How to deal with divorced and remarried Catholics was one of the most divisive issues at the synod, which took place in October 2014 and October 2015. Cardinal Walter Kasper had recommended following the practice of the orthodox churches, which recognize only one valid sacramental marriage but allow for the divorced to be civilly married and readmitted to Communion after a penitential process.
Many bishops at the synod objected that this was contrary to the teachings of Jesus and the tradition of the Catholic church. The only way to deal with divorced Catholics, they said, was through a judicial process that concluded in an annulment -- a judgment that the original marriage was invalid. With an annulment, the parties could marry in the Catholic church.
In church law a bishop is the chief judge for any legal case in his diocese, although ordinarily he delegates that authority to his appointed members of the diocesan tribunal.
At the October 2014 synod, the synodal fathers overwhelmingly agreed that the annulment process should be simplified, and Pope Francis moved quickly on this by eliminating the mandatory appeal of annulment decisions and even instituting a "streamlined" process that could go directly to the bishop without a trial, "where the alleged nullity of marriage is supported by particularly clear arguments" (Motu proprio Mitis Iudex Dominus Iesus).
American canon lawyers believe that the Francis reforms could help countries, especially poor countries, where tribunals are anemic or nonexistent and few annulments have been granted. In the United States, the elimination of the mandatory appeal could cut one to six months off the process, but the other reforms would have little impact since the United States has a robust tribunal system and the annulment process has already been simplified.
One change that will impact the U.S. is the expansion of the jurisdiction of tribunals to cover cases where one party is living in a foreign country. This will especially help Hispanic immigrants seeking annulments.
American canonists are still trying to figure out how the new streamlined process will work. One canonical listserv is abuzz with more questions than answers, according to a member. It is clear that cases where one party objects to the annulment will still go to a tribunal, but other issues are unclear. For example, what cases could go directly to the bishop, and what are "particularly clear arguments" for nullity?
A few weeks ago, the Roman Rota issued an instruction, Sussidio applicativo del Motu proprio Mitis Iudex Dominus Iesus. It is currently not online and only available in Italian for 10 Euros from the Vatican printing office, which leads one to wonder whether the Rota got the memo about making annulments easier and cheaper. Copies of the document reportedly have just begun arriving at U.S. diocesan chanceries this week.
American canonists will be studying this document in the coming months for indications on how to proceed, but one expert who has read it said, "It is not that illuminating."
How the process is implemented may also greatly depend on the local bishop. So far, bishops are being cautious.
Meanwhile, Pope Francis is working on his apostolic exhortation, which is rumored will be published on the feast of St. Joseph, March 19.
One of the recommendations of the October 2015 synod was to allow the use of the internal forum process to deal with divorced and remarried Catholics. For older priests, this sounds like a case of "back to the future," since they remember the days following Vatican II when the internal forum was being used in the United States.
In the period immediately after the Second Vatican Council, the internal forum, sometimes called "the good conscience solution," was seen as a way of dealing with divorced Catholics who could not go through the annulment process.
The internal forum solution was being used by priests in a number of dioceses without objection from Rome, which wanted to see how the experiment would work out.
In June 1972, Bishop Robert Tracy of Baton Rouge advised his priests that they could, exercising due prudence, consider an internal forum solution for people of good conscience in second marriages who were convinced that they were truly married and that their prior marriages were either not valid or simply dead.
Jerry Filteau, at the time a young researcher at Catholic News Service, recently told me that he thought this was a story worth covering but had to take it to the national editor three times before the editor assigned it to a reporter for rewrite.
About two weeks later, Cardinal John Krol of Philadelphia, then-president of the U.S. bishops' conference, issued a strongly worded statement that "dioceses are not to introduce procedures that are contrary to current discipline." He said that the matter was being studied by the U.S. bishops and the Holy See and would be decided in Rome.
Sometime later, when Filteau was a CNS reporter, he interviewed some canon lawyers at The Catholic University of America, and the topic of the internal forum came up. One of the canon lawyers told Filteau, "You know, Jerry, internal forum solutions were being quietly explored in several U.S. dioceses at that time, and Rome was aware of it and watching to see how it developed. But when the story from Baton Rouge became too public, Rome felt it had no choice left. So they ordered Krol to issue a statement condemning it."
Communications between Rome and the American bishops continued back and forth on the question of the internal forum in the 1970s.
On April 11, 1973, the prefect of the Congregation of the Doctrine of the Faith, Cardinal Franjo Seper, warned the U.S. bishops against new moves that would undermine church teaching on the indissolubility of marriage. At the same time, he urged pastors to bring divorced and remarried Catholics back to the sacraments by "applying the approved practice of the church in the internal forum."
Instead of accepting this as a green light, the Americans asked for further clarification on what were "approved practices."
On March 21, 1975, Archbishop Jerome Hamer, OP, secretary of the CDF, responded "[T]his phrase must be understood in the context of traditional moral theology. These couples may be allowed to receive the sacraments on two conditions, that they try to live according to the demands of Christian moral principles and that they receive the sacraments in churches in which they are not known so that they will not create any scandal."
Where Bishop Tracy appears to have gotten into trouble was by publicly extending the internal forum solution beyond the question of validity to the issue of the old marriage being simply dead.
Strictly speaking, the internal forum is for cases where for one reason or another a divorced person cannot go through the normal external forum -- the tribunal process -- and yet in good conscience the person believes after conversation with a priest or canon lawyer, that his or her first marriage was invalid.
Again strictly speaking, the divorced and remarried person could not make this public and could only receive Communion where his or her marital status is unknown. As one canon lawyer explained, "what happens in the internal forum, stays in the internal forum."
That the use of the internal forum at the parish level could be routinely stretched beyond this strict interpretation was a possibility feared by the Vatican and some American bishops in the 1970s. As a result, it became increasingly out of favor, especially as the tribunal process (the external forum) became easier.
With the election of John Paul II, the tide turned against the internal forum solution. In 1997, Pope John Paul II and Cardinal Josef Ratzinger said that those living in an irregular union could come to the sacraments only if they lived "as brother and sister."
In the 1970s, many like Bishop Tracy wanted the internal forum to cover marriages that may have been valid but now are clearly dead. Like Pope Francis, they saw Communion not as a reward for the righteous but as food for sinners. Today, the argument over the internal forum continues with those favoring a wider interpretation opposed by those favoring a stricter approach.
While bishops, theologians, and canonists debate these questions, 62 percent of American Catholics have already come to the conclusion that it is okay for those who are remarried without an annulment to go to Communion. For them, the scandal is not that divorced Catholics go to Communion but that the church forbids them from receiving.
What Pope Francis will have to say about all of this in his apostolic exhortation remains to be seen. He could go with Cardinal Kasper's recommendation to adopt the Orthodox approach. Or he could support a sweeping interpretation of the internal forum process.
Encouraging the use of the internal forum only on the question of validity would disappoint many, but it could still open the way to Communion for many when psychological grounds are considered. For example, annulments can be granted when psychological immaturity has prevented a person from assuming the essential obligations of marriage, such as making a permanent commitment.
On the other hand, the apostolic exhortation may be vague on these issues, which will mean the debate will continue.
[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org.]
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