The synod answers: “Who am I to judge?”

by Douglas W. Kmiec

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The synod of bishops on the family is history and the takeaway is the bishops of the church have answered the famously inclusionary kindness implicit in Francis' "who am I to judge" by answering that they will. And their judgment? Divorced and civilly remarried -- keep wearing the Scarlet A, and same-sex marriage is declared disanalogous to traditional marriage. And that was that.

Sad missed opportunity. The papal response was so disarmingly Christ-like that it could not help but spread well beyond the formal bounds of Catholicism and raise expectations to the heavens.

The Pollyanna version of the paper hangs on its lack of clarity. The buzzwords are "discernment" and the bishop's "orientation." While there is no straight answer to whether divorced and remarried Catholics can receive communion, don't bet on it. The divorced should not feel excommunicated, says the document, which is a bit like saying to an uninvited sibling who shows up at the door: "well, ok, since you are here. …"

Discernment may or may not distinguish between the latitude to be given to an innocent spouse versus the willfulness of an abusive or abandoning spouse. It is likely that local pastors and bishops will resist -- or simply lack the time -- to sink into detail. But without that detail, which for privacy reasons will remain shrouded, all exceptions are likely to be perceived as arbitrary, and thus, capable of giving scandal.

Again, what all this means will be up to the local ordinary; but the texture of the document conveys second-class citizenship to those who are divorced and remarried. The inequality may be less conscious than consequential for this reason: pastors simply lack the means, training or availability to enter as a support or counselor into the lives of married parishioners, so the complex "accompaniment" of a pastor with a divorced couple will, if done, stand out and shine an unwanted light upon marital difficulty and sow seeds of division by the inevitable gossip. Putting the matter bluntly, the burden of proof will fall on the divorced and remarried to justify their inclusion in liturgy, education and other parish activity to which others not in marital difficulty assume entitlement. This will not sit well with the divorced and remarried. It might be different if the worldwide church had more of a presence helping marriages not in a crisis to avoid difficulty, but the modern Church in most venues lacks this.

There is little evidence that the Synod contemplated the significance of how remarriage and an exchange of promise in a new relationship might heal as Christ healed those suffering some of life's other infirmities. It cannot be that the deeply emotional, life-changing injury of divorce felt by the spouses and families of those going through civil divorce is of a lesser order than helping the blind see or the lame walk. Presumably, many bishops would agree with this characterization of divorce and its personal implications, and, especially the most conservative among them would say, it is for that very reason we condemn divorce and any implied sanction of the practice. Yet, what the synod failed to grasp, was that the condemnation of divorce by imposing exclusionary penalty upon those suffering its aftereffects is a little bit like the oncologist raging against cancer by ignoring those in need of treatment.

Adopting an attitude condemning the victim is not socially helpful either. Only someone blinded by ignorance or unconscious distain for the misfortune of another could fail to see how the consequence of divorce is the separation of father or mother from child, grandparent from grandchildren, and kin from kin. Divorce is so disorienting and so destructive because it erodes even the confidence of those happily married and renders the significance of marriage to the young implausible if not incredible. Divorce undermines the most intimate community upon which all of civilization relies.

Yes, of course, the ideal of indissolubility is better. But again that is like telling the patient who comes to the hospital, since you cannot be in perfect health, we will not use any of our talents to approximate it.

The synod's brief discourse of same-sex marriage is equally hurtful. It is a cruel hoax to say that the church is welcoming of those of same-sex orientation and yet in the same breath not give any acknowledgment of the poignancy of that human relationship.  Is it not an extraordinary act of love for one human being to say to another: "I want to walk with you, to be your support, to care for you in illness and to share in your joys?" That statement is no less extraordinary when it is made between two of the same gender. When the church declares itself closed and disapproving of such relationship, it separates itself from the welcoming nature of Christ, and instead, sets itself up as judge with a standard that is disregarding of the Thomistic advice not to make the perfect the enemy of the good.

Not all law of course advances the common good, and the church modernly must be prepared to condemn that which is indeed destructive of human life or right. This is especially important because Church history is not unblemished. There is unfortunate evidence that the Catholic church pulled its punches and left our Jewish brothers and sisters to fend for themselves against the spurious "enacted laws" of Hitler's Germany; laws that purported to justify the Nazi final solution. The Supreme Court's treatment of all citizens with an equality of rights is in no way analogous.

It is ironic that the synod was so dismissive of American law. Right-wing lobbyists have pushed the Catholic church in America to claim the slightest administrative burden to be deeply offensive to religious freedom -- especially in the provision of healthcare services with which the church disagrees. Around the globe there is troubling persecution of the believers of many faiths.  Men, women and children are each day murdered by fundamentalists simply for the expression of different beliefs. There is nothing comparable in the United States threatening religious belief or practice, and for the cardinals and bishops of the United States to assail minor administrative tasks like filling out a form to allow employees to have access to publicly provided contraception is near Orwellian in its characterization. The Jesuit John Courtney Murray, who is largely responsible for the modern Catholic understanding of religious freedom, observed that the church's view on contraception cannot be made to depend upon the imposition of law, but rather must rely on the persuasiveness of homiletic teaching in the pews.

Bishops drafting their synod paper may think there is no harm done by the severe disappointment of the expectations raised by Francis' visit. Those who defeated the papal direction may think it merely a debating exercise to produce a document so ambiguous in its phraseology that it could mean anything. They are wrong.

The disappointment with this document is great. It has already estranged many and I know for a fact that it has severed relationships that could have strongly reaffirmed marital love in a remarried setting. The Holy Father was asked about same-sex marriage, divorced and remarried Catholics, etc., and he responded: "who am I to judge?" Apparently, abhorring the vacuum of their own self-importance, the bishops' understood Francis' query as their own implied delegation to judge others to be unworthy.

If Francis does not write swiftly to remedy the Synod's murky but mean-spirit conception of the faith, it won't matter what kind of car he drives.

[Douglas W. Kmiec is a U.S. Ambassador (ret.) and Caruso Family Chair in Constitutional law & human rights. Ambassador Kmiec and his spouse of 38 years divorced following a profound tragedy and Parkinson’s disease entering their lives. Neither has remarried.]

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