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Harry J. ByrneApril 25, 2005

A Church That Can and Cannot Changeby John T. Noonan Jr.

Univ. of Notre Dame Press. 298p $30

John T. Noonan, a distinguished scholar and member of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, grounds A Church That Can and Cannot Change on the fact that the deposit of faith cannot change. He then identifies three areas where change in moral principles has undeniably occurred in the course of church history: slavery, usury and religious liberty. He points also to a fourth area in which he sees change now in process: divorce. Instead of employing an a priori approach, the author identifies and dates the changes that have occurred, examines how they came about and looks at how the new principles can be reconciled with their contradictory precedents.

Judge Noonan’s survey begins with human slavery and how it was regarded as morally acceptable from the time of St. Paul and Philemon down through the fathers of the church and a host of popes and moralists up until its official, long overdue condemation by the Second Vatican Council, which declared slavery to be intrinsically evil. Noonan cites “experience and empathy” as key factors in bringing about the change.

The author’s discussion of usury (making a profit from a loan) moves in the opposite direction—from initially being regarded as sinful to becoming morally acceptable. Popes, three general councils, bishops and moralists over the centuries pointed to its intrinsic evil. Noonan traces the tortured history of gradual justifications and the debate that went on for centuries over what forms of credit could be distinguished from the sinful usurious loan. When money, having been simply a medium of exchange, became a necessary element to establish a means of production—capital—the moral appraisal of a “loan” was seen in a different light. Experience and empathy on the part of religious authority also figured in the change regarding how the new use of money was morally perceived.

Noonan’s third example of change in Catholic teaching concerns freedom of conscience. A startling litany of pronouncements denouncing freedom of conscience and of religion issued from Pope Gregory XVI, the Fifth Council of the Lateran, the Council of Trent, Clement XIII and Pius IX, among others. In addition to consuming books, the flames of various inquisitions consumed Jan Hus, Joan of Arc, Girolamo Savonarola and many other “heretics.” It was not until 1965 that the magisterium’s longstanding opposition to freedom of conscience and religion was definitively overturned. Vatican II taught that freedom to believe was a sacred human right. Especially in this matter, experience and empathy with the victims had much to do with bringing about change. Noonan points out that doctrinal change and its implementation on this issue, as well as on slavery, took hold much earlier among rationalists and Protestants than within the Catholic Church. It was the thinking and actions of those groups that influenced Catholic thought. The author also points out that ideological tyranny under recent totalitarian regimes enlightened the European episcopacy on the importance of religious liberty.

On the issue of divorce, Noonan reviews the Pauline privilege from Paul through the first Latin commentator on Paul, Isaac (c. 380 A.D.), and then on to Gratian and the 12th-century canonists, theologians and popes. The Pauline privilege was then put in place: the first marriage is dissolved by the second marriage. Pius XI exercised the privilege in 1924 when he dissolved the marriage between an Anglican and an unbaptized person so that the unbaptized party could marry a Catholic. Many similar dissolutions followed, and in 1934 the Holy Office issued norms, which were circulated secretly to the bishops and not made available to the public. The excuse given for the secrecy was that the media would have distorted the information, but Noonan suggests that it may have been related to theological issues.

Pope Pius XII, in 1947, dissolved a marriage entered into by a Catholic and an unbaptized person before a Catholic priest, so that the unbaptized partner, now a Catholic convert, could marry another Catholic. Pope John Paul II, who regularly insisted on the indissolubility of marriage, issued new rules regarding the privilege in 2001 but, Noonan observes, published no regulation regarding its exercise. In 1980 a commission formed to revise the 1917 Code of Canon Law proposed Canon 1104, which declared that a marriage in which at least one party is unbaptized “can be dissolved by the Roman Pontiff in favor of the faith.” Other proposed canons, 1659 through 1662, sketched the procedure “for the instruction of the process.” In January 1983, the new code was promulgated. The five canons were gone!

What had happened? Umberto Betti, O.F.M., a member of a select group chosen by John Paul II to advise him on the revision of the code, had argued before the pope that the practice of dissolving the marriages of the unbaptized “was destitute of a secure theological foundation.” John Paul had responded, according to Betti, that he had confidence in the rules set up by Pope Paul VI in 1973 but that “such a grave question ought to be explored more deeply.” In this climate, and with the theological question unanswered as to what authority even the pope would have to dissolve the marriages (indissoluble by their nature) of individuals outside the Catholic Church, Noonan sees the unresolved questions, uncertainties and apparent contradictions as evidence of a moral doctrine in process of development, quite similar to the issues of slavery, usury and religious freedom in the early centuries. Once again, it seems, empathy on the part of the popes was a factor in granting these dissolutions. Noonan notes that the Protestant and Orthodox Churches have effectively resolved the problems to their own satisfaction.

This well-written and well-documented volume sees the role of experience and empathy regarding slaves, entrepreneurs faced with a new function of money and victims of religious intolerance as facilitating radical change in applicable moral principles and, at present, pointing to possible similar change regarding divorce. Cardinal Walter Kasper and many particpants in the two synods of bishops held in 1998, for Asia and for Oceania, as well as other bishops, clergy and laity are already on record as seeking ways to admit second-marriage Catholics to holy Communion. Implications regarding the acceptability of divorce are obvious. The upcoming 2005 Synod of Bishops on the Eucharist provides an opportune moment for the U.S. bishops to place this issue on the table.

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