Reflections on the Document “The Sacrament of Marriage and Its Impediments”

by Rev. Dr. Patrick Viscuso, Perry T. Hamalis, David Heith-Stade, Rev. Dr. Chrysostom Nassis, Rev. Dr. Alexander Rentel, and Christos Tsironis

According to the theological vision of the Church, the bond of love is to be found at the core of marital life. Marriage is viewed within the framework of love, which is the core “quality” of the Church’s theological anthropology. Marriage is not only a rational choice, but also a “harvest” of holiness and the “fullness” of the life of faith.

One of the most complicated challenges for the Church is to express the evangelical premises of Christianity on marriage in a manner that serves contemporary societies and families. The Church is called to illustrate the meaning and scope of marriage in social, cultural, and legal contexts, while remaining true to the Scriptures and her theological, canonical, and pastoral tradition.

The Pre-Conciliar Document

As rightly observed in the pre-Conciliar document, “The Orthodox Church maintains, as its fundamental and indisputable doctrine, that marriage is sacred.” We recommend that there be a positive statement at the start, which will offer the most accurate picture of pastoral tradition and spirituality. The document emphasizes the sacredness of marriage, links the defense of its sacredness to the protection of the family, and outlines a framework of marital impediments, elements we feel can be developed further.

Marriage was divinely instituted at the beginning of God’s creation of the world and was declared honorable and made a mystery through the first sign at Cana. As a divine creation, the nuptial union is described as a “spiritual communion” and “the capability of assuring the human race’s continuation.” As a mystery, marriage is an “indissoluble bond” and “icon of the union of Christ and the Church.”

Marriage is also described as the “free union between man and woman.” The term, “free union,” is generally understood as a romantic union between two or more persons without legal or religious recognition or regulation. This phraseology must be avoided to prevent misunderstanding. The intent here is to express the necessity of free matrimonial consent.

The sacerdotal prayer (ἱερολογία) is an invocation, an epiclesis, whereby “through the blessing of the Holy Spirit” matrimonial consent and love might reflect “the love of Christ and the Church”, become “a small church or an icon of the Church”, and thus express a “Christocentric typology.”

Marriage is so linked to the family and the formation of children that the defense of its sacredness is necessary for Church and society in general. The third clause of the definition of marriage attributed to the Roman jurist Herennius Modestinus, “a communion of divine and human law”, is used to express the distinction between those marital impediments derived from Roman Law that protect the “natural bond” and others that protect the sacredness of the mystery.

Recommendations and Analysis

(i) The citation of Modestinus’s formula leads to the question of the definition of “the family.” By quoting Clement of Alexandria, the document takes the position that, without children, the marital union cannot be considered a family bond. This does not do service to the pastoral and theological understanding of marriage and family. Marriage’s purposes are said to include mutual salvation and procreation, but no unanimity in the Church exists regarding the prioritizing of the two and the matter appropriately remains a subject of “theological opinion.”

(ii) Although marriage is described as an “indissoluble bond”, the document references annulled and dissolved unions as necessary for the formation of a new marriage. We recommend including theological, canonical, and pastoral explanations of divorce and annulment. Our contemporary approach should at the same time both (a) bear witness to the theological principles underlying matrimony and (b) reflect upon and assess social facts and present realities.

(iii) Pastoral and ethical issues faced today are not addressed. These include fertility, adoption, unexpected pregnancy, contraception, addictions, abuse, infidelity, pornography, disabilities, and the spiritual, emotional, and economic effects of divorce. By not speaking to these issues, are we not placing ourselves in a false isolation, failing to articulate our living Tradition, and not addressing the challenges involved in sustaining healthy, holy marriages and families?

(iv) The interpretation of Modestinus’s formula is contrary to the canonical tradition that views the “communion of divine law” as representing unity in faith and the “communion of human law” as the couple’s treatment as a consortium under civil legislation. Although the Eucharist is not a necessary element in the establishment of matrimony, there is no discussion of its reception during marital life and its fulfillment of a symbolic role with regard to the worthiness of the couple and their marriage. This also leads to the question of “double religious marriages”, that is, once in a Christian community outside the canonical boundaries of the Church and a second time within the Church. How does the Church approach such a practice? In pluralistic, secular societies, civil marriage is normative and, in many cases, required as a separate legal act. The phenomenon of “double marriages” (civil and religious) may emerge on account of legal requirements, or for economic and administrative reasons. These factors do not necessarily degrade the bond of love between spouses and their Christian faith.

(v) The position of the Church on impediments to marriage, as outlined in the document, is not clear. Local Orthodox churches interpret specific canons in various ways. Absence of consent is not addressed. Lineal and collateral consanguinity, affinity, and adoption are not clearly defined. The impediment of the three previous marriages, without clarifying whether civil or ecclesiastical marriages are involved, is dealt with along with bigamy. Monastic tonsure, by its mere affirmation, falsely implies this is an issue of crucial importance in the Church. The real question lies in what truly constitutes monastic tonsure, ρασοευχή or κουρά, which in turn leads to the consideration of its impediment to marriage. Describing priesthood as an impediment based on “the prevailing canonical tradition” appears to imply that there may be other traditions equally acceptable. Local Orthodox churches have allowed such unions after widowhood, based on hierarchical discretion.

This essay was sponsored by the Orthodox Theological Society in America’s Special Project on the Holy and Great Council and published by the Orthodox Christian Studies Center of Fordham University.

Rev. Dr. Patrick Viscuso is Professor of Canon Law at the Antiochian House of Studies, former president of the Byzantine Studies Association of North America, and a specialist in Byzantine and Oriental canonical legislation.

Perry T. Hamalis is Cecelia Schneller Professor of Religion at North Central College in Naperville, Illinois.

David Heith-Stade is the vice secretary of the Society for the Law of the Eastern Churches and a scholar of canon law.

Rev. Dr. Chrysostom Nassis is an assistant professor of Byzantine liturgy in the School of Pastoral and Social Theology at the Aristotle University of Thessaloniki, Greece.

Rev. Dr. Alexander Rentel is Assistant Professor of Canon Law and Byzantine Studies and The John and Paraskeva Skvir Lecturer in Practical Theology at St. Vladimir’s Orthodox Theological Seminary.

Christos Tsironis is assistant professor of Social Theory: Christianity and Modernity in the School of Theology at the Aristotle University of Thessaloniki, Greece.

Please join us June 23-25 for our “Tradition, Secularization, Fundamentalism” conference.