Synod document highlights epikaia: Justice sweetened by mercy

This story appears in the Family Synod 2015 feature series. View the full series.

by James Ewens

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As a priest ordained in 1970, I can only say, "The Vatican -- finally -- has come full circle." Back then, it was the 1968 Humanae Vitae document on birth control that heightened both the clergy's and the laity's awareness that canon law made provisions for situations where church law and practical life "didn't quite fit together."

Say, for example, it's 2 a.m. You're on a highway in the middle of the desert -- at a stoplight that is shining red. And does not stop shining red for 5 or 10 minutes. It's very dark. There's no other car in sight. At what point do you decide, "The hell with it: I'm going through." Some Catholics would call this epikaia -- a situation that wasn't imagined when the law was written, so you just have to do the best you can and make a prudential decision. (Others, more simply, would call it common sense). Cardinal Walter Kasper, in a Commonweal interview (referenced in a May 8, 2014, blog at stated "Epikaia says that a general rule must be applied to a particular situation -- very often complex -- taking into consideration all circumstances. ... For the great canonists of the Middle Ages, epikaia was justice sweetened with mercy."

By the time Pope Paul VI had, finally, produced his encyclical on birth control, declaring that only "natural means" (e.g. abstinence, or the rhythm method) were acceptable ways for Catholic couples to limit their number of children, many Catholic women of childbearing age had already decided for themselves that the birth control pill was also acceptable for them to use. By the early '70s, the number of women who thought this grew to 95 percent, where it remains today. Their choice was, surprisingly, endorsed by most of the national groups of bishops (including those in the U.S.) who made written comments about Humanae Vitae after it was published. And they did so in the context of the internal forum, a long-cherished process in the church that states that if there is a conflict between a law of the church and a Catholic's individual, informed conscience, a person is allowed to assert the primacy of conscience in decisions s/he makes.

The three votes taken by the bishops at the recently concluded Roman synod re-affirmed that right for Catholics who are in a second marriage and chose not to apply for an annulment after the first one was ended. Of course, many of these Catholics had already followed their consciences and continued to receive Communion after their re-marriage. And many pastors in parishes across the globe had, knowingly, allowed them to do so.

However, countless millions of others involved in second marriages, believing they were "excommunicated," felt they were barred from receiving Communion because they never got an annulment. The synod's vote overturns that widely believed -- but terribly unjust -- ruling for the universal church. And by emphasizing the validity of the "internal forum" where the role of the individual conscience is primary, it provides a mechanism for the church -- and its pastors -- to de-escalate the strident tone it frequently assumes when discussing other controversial issues such as stem cell research, same-sex marriage, married and female clergy, and voting for politicians who approve of abortion rights.

(Archbishop John Myer in New Jersey, take note: Your recent declaration that "Catholics who vote for politicians who favor abortion are not allowed to receive Communion" -- your prohibition is null and void. Because individual conscience trumps ecclesiastical edict. Your fellow bishops assembled in Rome said so. By a two-thirds majority vote.)

The votes of the Synod of Bishops are, perhaps, only the tip of the iceberg for the gradual transformation of church rules, structures and practices that Pope Francis has prophetically initiated in his grand reformation. Let your conscience -- carefully formed in the context of tradition, morality and experience -- be your guide. Along with a generous dollop of epikaia to ensure that justice is, indeed, sweetened by mercy.

[James Ewens has worked as a chaplain in hospice care and with the mentally ill during his 30 years as a priest. He is retired and lives in North Lake, Wis.]

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