Footnote 329 and the Argentine Letter

As many readers will remember, footnote 329 of Amoris Laetitia makes the following point about divorced and civilly “remarried” persons who have serious reasons for not separating:

many people, knowing and accepting the possibility of living ‘as brothers and sisters’ which the Church offers them, point out that if certain expressions of intimacy are lacking, ‘it often happens that faithfulness is endangered and the good of the children suffers’.

In my letter to Cardinal Schönborn on Amoris Laetitia I made the following comment on that note:

This is the sort of excuse that I hear often in the confessional. In my experience the worst response to such excuses is prevarication or circumlocution. What they need to hear in all clarity is that one can never do an intrinsically evil action that good might come. Recently someone gave this very excuse in confession, and I hesitated a bit before replying, but when with some trepidation I gave her a clear response she was very grateful— it was really a moment of grace. The Holy Father does not explicitly agree with the above excuse, but certainly the natural impression that one receives from the way he cites it seems to be that he agrees, and I am afraid that this is how people looking for excuses will take it.

At the time, a reader objected (via e-mail) to my critique of footnote 329, by arguing that “certain expressions of intimacy” need not mean sexual intercourse:

The critics, it seems to me, understand the expression “expressions of intimacy” as a kind of standard pontifical euphemism for sexual acts which are mortally sinful when engaged in outside of matrimony. They take that for granted. But the fact is that “expressions of intimacy” represents something broader than sexual acts. This means that “expressions of intimacy” is not reducible to sexual acts. […] “Expressions of intimacy” are permitted not simply for those who our divorced and remarried, but also analogously for those who know and accept the possibility of living together as brother and sister. These expressions are not the same expressions, but analogous expressions.

To which I replied:

I do not understand your point about a man and a woman living together as brother and sister having “expressions of intimacy” analogous to the expressions of a married couple. Is this an analogy of proportion? [Sexual intercourse] : [marriage] : : [x] : [relation of brother and sister]? What is x? In Trollope’s novel The Eustace Diamonds, Frank, who is engaged to Lucy, kisses Lizzie “as a brother.” But then he reflects that this might cause some trouble with Lucy: «Frank was sufficiently experienced in the ways of the world to know that trouble would sometimes come from young ladies who treat young men like their brothers, when those young men are engaged to other young ladies. The other young ladies are apt to disapprove of brothers who are not brothers by absolute right of birth.» If we have a man (let’s call him Frank) who has been validly married to a woman (let’s call her Lucy), and civilly divorced, and has civilly “married” a second woman (let’s call her Lizzie), but has since converted, but has decided for serious reasons not to return to Lucy, but to live with Lizzie “as a brother,” then (it seems to me) that “expressions of intimacy” between Frank and Lizzie “as between brother and sister” would reasonably be resented by Lucy.

In any case, however, I was sure that the footnote would not be taken in the sense given it by my reader, but rather in the more scandalous sense that he evaded. And, “if a teaching document is almost ubique et ab omnibus understood in a harmful way, then it is not a good teaching document.”

Sadly, footnote 329 is indeed being interpreted by many pastors with the responsibility of implementing it in a harmful way. As again many of my readers will know, the bishops of the “pastoral region” (?) of Buenos Aires have issued a directive on the implementation of chapter VIII of Amoris Laetitia in which they read footnote 329 as referring to the difficulty of living as brother and sister in such situations [¶5]. And then they go on to argue in the following way:

In other, more complex circumstances, and when it is not possible to obtain a declaration of nullity, the aforementioned option may not, in fact, be feasible. Nonetheless, it is equally possible to undertake a journey of discernment. If one arrives at the recognition that, in a particular case, there are limitations that diminish responsibility and culpability (cf. 301-302), particularly when a person judges that he would fall into a subsequent fault by damaging the children of the new union, Amoris Laetitia opens up the possibility of access to the sacraments of Reconciliation and the Eucharist (cf. notes 336 and 351). These in turn dispose the person to continue maturing and growing with the aid of grace. [¶7]

This is an unacceptable conclusion (cf. the reflections by Elliot Milco and John Lamont).

Regrettably, the Holy Father himself has endorsed the Argentine document in a letter. This letter of the Holy Father’s example is a perfect example of a case I envisioned in the reflections on submission to magisterial teaching with which I introduced my letter to Cardinal Schönborn. The case has to do with that category of magisterial teachings with the least authoritative weight. In the Professio Fidei we promise religious submission of will and intellect to to “the teachings which either the Roman Pontiff or the College of Bishops enunciate when they exercise their authentic Magisterium, even if they do not intend to proclaim these teachings by a definitive act.” But this submission is not absolutely unconditional and certain, as it is with regard to definitive teachings. Teachings that are not intended to be proclaimed by “a definitive act,” do not fall under the definition of infallibility, and there is therefore a possibility that they might be in error.  Usually one submits to them, since one ought to trust the legitimate authority to teach reliably. But if the teachings are in conflict with more authoritative statements of the same or a higher authority then one has to start making distinctions. In some cases one can give a reverential reading, interpreting the problematic statement in the best possible light, but if there is no reasonable means of “saving of the appearances” then one must give preference to the more authoritative teaching. Pope Francis’s letter to the Argentine bishops seems to me a clear case where the appearances cannot be saved.

But it is of great importance to emphasize that our duty to submit to the Holy Father’s teaching in general is not touched by this circumstance. We cannot allow ourselves to take this case as an excuse for rejecting the Holy Father’s teaching generally. Religious submission of will and intellect to non-definitive teachings of the Supreme Pontiff is conditional only in the very limited sense sketched out. We can still be good ultramontanes.


19 thoughts on “Footnote 329 and the Argentine Letter

  1. Is there also a ‘relatively unconditional submission’?
    ‘ …Amoris Laetitia was the fruit of the labor and prayer of the whole Church with the mediation of two synods and of the Pope …’

    And if the matter is prudential, then so it has been when discussed in ‘more authoritative statements’.
    Infallibility can’t simply depend on some formal conditions. The Pope makes it very clear that he really means what he declares, and if he doesn’t ‘proclaim the teaching by a definitive act’, it’s not because he’s uncertain of it.


  2. I understand that the letter to the Argentinian bishops was a private letter, not a letter openly sent by the Roman pontiff to all the faithful of a local church. In that case, it doesn’t even seem to reach the lowest level of magisterial teaching. It is a characteristic of the magisterium that it is not exercised in a corner. “Ego palam locutus sum mundo: ego semper docui in synagoga, et in templo, quo omnes Judæi conveniunt, et in occulto locutus sum nihil.”

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  3. The magisterial teaching is ‘Amoris laetitia’, not the letter to Mons. Fenoy. I don’t believe that writing a letter to Mons. Fenoy means ‘exercising the magisterium in a corner’. The Gospels themselves record cases when Jesus ‘taught in a corner’, and not only in the synagogue (and presumably not in Hebrew, to look more stern and savvy). And it might be that Francis dares to have a slightly different notion about how and … where he is allowed to teach. But he is just a Jesuit priest from a corner, teaching in a corner.


    • The profession mentions ‘religious submission of will and intellect to the teachings’; but it doesn’t mention the ‘respectful disagreement’. Or does it? Respectful (to one’s own mind), or not, dissent is dissent, and public dissent is public dissent.


      • It is true that the profession does not explicitly say that religious submission of will and intellect conditional, but if one looks up what the expression means in theological manuals one finds that it is generally so taken. In the intro to my letter to the Cardinal I quoted Tanquerrey’s statement: «One is not certainly bound, therefore, to these declarations to assent of faith, but internal and religious which we establish by legitimate ecclesiastical authority; nor [is it] absolute assent, since the decrees are not infallible, but prudential and conditioned, so far as presumption rests with the superior in matters of faith and morals.» (Tanquerrey, Synopsis Theologiae Dogmaticae, vol. 1, p. 571, n. 844; cited in Ripperger, Magisterial Authority, p. 35)


        • It is very true, and the question is one of the thorniest; as you quote, internal and religious assent is still required, and if these teachings should not be trusted as if the dogmas, they should be trusted nonetheless, with ‘internal and religious assent’, ‘obsequium religiosum’, as in the wonderful conciliar exposition: ‘’ … it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will. His mind and will in the matter may be known either from the character of the documents, from his frequent repetition of the same doctrine, or from his manner of speaking ‘.
          And in ‘Donum …’: ‘the response called for is that of the religious submission of will and intellect. This kind of response cannot be simply exterior or disciplinary but must be understood within the logic of faith and under the impulse of obedience to the faith’.
          Please be assured that I hold your blog and your posts in much esteem, and I find you a trustworthy and gentlemanly interlocutor.


        • The ‘ Instruction on the Ecclesial Vocation of the Theologian’, from 1990, also makes a distinction as to the meaning of conscience: ‘conscience illumines the practical judgement about a decision to make, while here we are concerned with the truth of a doctrinal pronouncement. This is furthermore the case because while the theologian, like every believer, must follow his conscience, he is also obliged to form it. Conscience is not an independent and infallible faculty. It is an act of moral judgement regarding a responsible choice’.
          It’s also true that, in real life, requiring assent from another has very often been used as a stick to hit someone, and I try to be aware of this tendency of blackmailing the other with rules, etc..
          The debating of these things may seem or become awkward inasmuch as questions pertaining to faith are ruled as legal questions, or as questions pertaining to an ‘established religion’.


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  6. I marvel at the stubborn assumption that one makes here that Pope Francis is approving adultery, and offering communion to adulterers/those in (consciousness of) mortal sin. When the Argentine bishops speak of a non feasible option the option in question is not chastity as member of the binary of chastity/adultery. The non-feasible option is that of proposing the-live-as-brother-and-sister and solution. That the pastor does not propose this option does not mean that one is approving adultery. It does not even mean that the couple in question is practicing adultery. That is not presupposed. If a couple within the context of a penitential process accepts the commitment to live as brother and sister in the supposed situation, the door opens to the sacraments through sacramental absolution of the sin of adultery (This is affirmed by John Paul II, etc.): is the door to the sacraments forever closed for those to whom the pastor judges it imprudent to propose the brother and sister solution? The answer of the Argentinian bishops is that it does not necessarily remain closed. Why? Because, as Pope Francis says in Amoris Laetitia, mitigating circumstances can change the equation. The Argentinian bishops cite Amoris Laetitia correctly here. And Pope Francis approves of their interpretation of his thought. Everything is in order. Pope Francis has developed the doctrine of John Paul II, not contradicted it.

    I am the one that Fr. Edmund Waldstein cites regarding the meaning of “expressions of intimacy.” He asks me what kind of analogy do I have in mind as I speak of expressions of intimacy analogous to, but not equal to marital relations. Indeed it is an analogy of proportionality. Biblically marriage is the princeps analogatum of all friendships and of all intimacy. Fr. Waldstein asks me: “What is the x?” (the limit of expressions of intimacy according to which they do not constitute adultery). The answer is 1. Obvious; and at the same time 2. Destroyed by trying to spell it out in merely external terms. One enters into the sexual-control-freak casuistics that ensues upon understanding moral injunctions in a merely exterior sense, and the obsession with sex which is the root of all evils in this question. The assumption is that one by ceasing to have sex, ceases to commit adultery, which seems logical at first blush, but is shown to be a false assumption as one takes seriously the Evangelical doctrine concerning adultery according to which there is also adultery of the heart.

    Pope Francis once again is not approving adultery, and is not inviting people to trample on the holiness of the sacraments. He is making the sacraments available to those in need of them. He does this because he is urging pastors to care for their sheep.


    • «The assumption is that one by ceasing to have sex, ceases to commit adultery, which seems logical at first blush, but is shown to be a false assumption as one takes seriously the Evangelical doctrine concerning adultery according to which there is also adultery of the heart.» — That was indeed the point of my quotation from Trollope; not only is sexual intercourse between someone who has been validly married and someone else with whom they are now living in a “second union” adultery, but also any “analogous” expression of intimacy. «Frank was sufficiently experienced in the ways of the world to know that trouble would sometimes come from young ladies who treat young men like their brothers, when those young men are engaged to other young ladies. The other young ladies are apt to disapprove of brothers who are not brothers by absolute right of birth.»


      • The fact that adulterous heart will express itself not in a number of analogous expressions of its sinful intention does not mean that a pure heart, (one that knows and accepts the proposition of living as brother and sister) may not express itself. Intimacy is not reducible to sexual intimacy. By permitting persons who have committed to living as brother and sister to live under one roof, one is, by definition permitting intimacy because: that is what living under one roof means (sharing on table, but not one bed), Such intimacy has innocent expressions. But the point here is that neither the Church nor the Vicar of Christ has given a general permission to the divorced and remarried to live under one roof as long as there is no sexual intimacy. There is no general rule here, there is rather an exception. This exception was recognized specifically by John Paul II. Pope Francis simply develops the discourse of exception. But an exception is measured by a rule. The rule in question is not “Thou shalt not commit adultery” for this has no exception (Cfr. the thesis of Veritatis Splendor about certain negative moral precepts). Indeed, the Sixth Commandment is not a mere rule. (The rigorist, like his cousin the laxist, turns all moral precepts into mere rules). The rule in question is the rule by which Holy Communion is withheld from the divorced and remarried. This rule can have exceptions. Pope Francis develops doctrine in this regard. This is what Pope Francis did as he approved the guidelines of the Bishops of Buenos Aires. He does not approve adultery. Where there is adultery there is mortal sin. Thence it follows that where there is no mortal sin, there is no adultery, “Material adultery” might be called adultery in an extended sense: per accidens but not per se. Thus it is unjust to affirm that the divorced and remarried, (all!) live in mortal sin. The divorced and remarried are adulterers secundum materiam, but that does not make them adulterers per se. This is what the critics of Pope Francis are oblivious to.


  7. “I was sure that the footnote would not be taken in the sense given it by my reader, but rather in the more scandalous sense that he evaded. And, “if a teaching document is almost ubique et ab omnibus understood in a harmful way, then it is not a good teaching document.”
    This is not a solid hermeneutics. One judges a text on what it says, not on what one thinks people (per accidens) will think it means. Good teaching can sometimes come in new and valiant formulations which not everyone will understand from the outset. The teaching of Our Lord was often like that. The bottom line is truth.


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