As we noted in our post, “Staying too long at the dance,” yesterday, Roberto de Mattei reports that the Synod’s relatio finalis ended up adopting the Germanicus group’s proposal largely because the original draft relatio, which, according to De Mattei, essentially restated the Instrumentum Laboris, could not garner sufficient support in the aula. Now Sandro Magister reports, in the context of the broader Ratzinger-Kasper debate,

So then, in the German circle during the last week of the synod there was unanimity on precisely this last hypothesis that Ratzinger in his day presented as a study case: that of entrusting to the “internal forum,” meaning to the confessor together with the penitent, the “discernment” of cases in which to allow “access to the sacraments.” And in the “Germanicus” in addition to Kasper were cardinals Marx and Christoph Schönborn, plus other innovators. But there was also Gerhard Müller, prefect of the congregation for the doctrine of the faith and a staunch Ratzingerian.

But when the “German” solution went into the final document – which in turn was replacing a previous draft torn apart by criticisms – and went to the assembly for a vote, it could not be approved without further softening of its language, to the point of eliminating all innovation. And thus “access to the sacraments” was diluted to a generic “possibility of fuller participation in the life of the Church.” In the text that was ultimately approved, in the paragraphs on the divorced and remarried, the word “communion” does not appear even once, nor does any equivalent term. Nothing new, in short, with respect to the ban in effect, at least not if one holds to the letter of the text.

(Emphasis supplied.)

The draft relatio was apparently released under strict secrecy—we recall hearing that originally the draft could not be taken from the aula, but that restriction was eventually relaxed to give the Synod fathers time to study it—so it is unlikely that the “lost draft” will ever see the light of day. But it would be interesting to know what, precisely, was in the first draft relatio that made the Germanicus proposal, watered down further or not, the better choice. However, looking at the three documents we do have might shed some light on the lost draft.

Let’s examine first the Instrumentum Laboris on the question of a penitential path, since Roberto de Mattei reports that the lost draft essentially restated the Instrumentum here:

A Way of Penance

122. (52) The synod fathers also considered the possibility of giving the divorced and remarried access to the Sacraments of Penance and the Eucharist. Various synod fathers insisted on maintaining the present discipline, because of the constitutive relationship between participation in the Eucharist and communion with the Church as well as her teaching on the indissoluble character of marriage. Others proposed a more individualized approach, permitting access in certain situations and with certain well-defined conditions, primarily in irreversible situations and those involving moral obligations towards children who would have to endure unjust suffering. Access to the sacraments might take place if preceded by a penitential practice, determined by the diocesan bishop. The subject needs to be thoroughly examined, bearing in mind the distinction between an objective sinful situation and extenuating circumstances, given that “imputability and responsibility for an action can be diminished or even nullified by ignorance, inadvertence, duress, fear, habit, inordinate attachments, and other psychological or social factors” (CCC, 1735). [This foregoing bit is just the relevant section from the 2014 Relatio Synodi.]

123. Concerning the aforementioned subject, a great number agree that a journey of reconciliation or penance, under the auspices of the local bishop, might be undertaken by those who are divorced and civilly remarried, who find themselves in irreversible situations. In reference to Familiaris Consortio, 84, the suggestion was made to follow a process which includes: becoming aware of why the marriage failed and the wounds it caused; due repentance; verification of the possible nullity of the first marriage; a commitment to spiritual communion; and a decision to live in continence.

Others refer to a way of penance, meaning a process of clarifying matters after experiencing a failure and a reorientation which is to be accompanied by a priest who is appointed for this purpose. This process ought to lead the party concerned to an honest judgment of his/her situation. At the same time, the priest himself might come to a sufficient evaluation as to be able to suitably apply the power of binding and loosing to the situation. 

In order to examine thoroughly the objective situation of sin and the moral culpability of the parties, some suggest considering The Letter to the Bishops of the Catholic Church concerning the Reception of Holy Communion by the Divorced and Remarried Members of the Faithful of the Congregation for the Doctrine of the Faith (4 September 1994) and The Declaration concerning the Admission to Holy Communion of the Faithful who are Divorced and Remarried of the Pontifical Council for Legislative Texts (24 June 2000).

(Some emphasis supplied.) Let’s look next at the relevant section of the third Germanicus report, as translated by Mark de Vries at his blog, In Caelo et in Terra:

It is known that there has been strong struggle, in  both sessions of the Synod of Bishops, about the questions of whether and to what extent divorced and remarried, faithful, when they want to take part in the life of the Church, can, under certain circumstances, receive the sacraments of Confession and the Eucharist. The discussions have shown that there are no simple and general solutions to this question. We bishops have experienced the tensions connected to this question as many of our faithful, their concerns and hopes, warnings and expectations have accompanied us in our deliberations.

The discussions clearly show that some clarification and explanation to further develop the complexity of these questions in the light of the Gospel, the doctrine of the Church and with the gift of discernment. We can freely mention some criteria which may help in our discernment. The first criterium is given by Pope Saint John Paul II in Familiaris consortio 84, when he invites us: “Pastors must know that, for the sake of truth, they are obliged to exercise careful discernment of situations. There is in fact a difference between those who have sincerely tried to save their first marriage and have been unjustly abandoned, and those who through their own grave fault have destroyed a canonically valid marriage. Finally, there are those who have entered into a second union for the sake of the children’s upbringing, and who are sometimes subjectively certain in conscience that their previous and irreparably destroyed marriage had never been valid”. It is therefore the duty of the pastors to travel this path of discernment together with those concerned. It would be helpful to take, in an honest examination of conscience, the step of contemplation and penance together. The divorced and remarried should then ask themselves how they dealt with their children when their marital Union fell into crisis? Where there attempts at reconciliation? What is the situation of the partner left behind? What is the effect of the new relationship on the greater family and the community of faithful? What is the example for the young who are discerning marriage? An honest contemplation can strengthen trust in the mercy of God, which He refuses no one who brings their failures and needs before Him.

Such a path of contemplation and penance can, in the forum internum, with an eye on the objective situation in conversation with the confessor, lead to personal development of conscience and to clarification, to what extent access to the sacrament is possible. Every individual must examine himself according to the word of the Apostle Paul, which applies to all who come to the table of the Lord:  “Everyone is to examine himself and only then eat of the bread or drink from the cup; because a person who eats and drinks without recognising the body is eating and drinking his own condemnation. That is why many of you are weak and ill and a good number have died. If we were critical of ourselves we would not be condemned” (1 Cor. 11:28-31).

(Emphasis supplied.) Finally, in Rorate‘s translation, here are the two most relevant passages of the relatio finalis just approved:

85. Saint John Paul II offered an all-encompassing criterion, that remains the basis for valuation of these situations: “Pastors must know that, for the sake of truth, they are obliged to exercise careful discernment of situations. There is in fact a difference between those who have sincerely tried to save their first marriage and have been unjustly abandoned, and those who through their own grave fault have destroyed a canonically valid marriage. Finally, there are those who have entered into a second union for the sake of the children’s upbringing, and who are sometimes subjectively certain in conscience that their previous and irreparably destroyed marriage had never been valid.” (FC, 84) It is therefore a duty of the priests to accompany the interested parties on the path of discernment according to the teaching of the Church and the orientations of the Bishop. In this process, it will be useful to make an examination of conscience, by way of moments of reflection and repentance. Remarried divorcees should ask themselves how they behaved themselves when their conjugal union entered in crisis; if there were attempts at reconciliation; what is the situation of the abandoned partner [“partner” in the original Italian]; what consequences the new relationship has on the rest of the family and in the community of the faithful; what example does it offer to young people who are to prepare themselves to matrimony. A sincere reflection may reinforce trust in the mercy of God that is not denied to anyone.

Additionally, it cannot be denied that in some circumstances, “the imputability and the responsibility for an action can be diminished or annulled (CIC, 1735) due to various conditioners. Consequently, the judgment on an objective situation should lead to the judgment on a ‘subjective imputability'” (Pontifical Council for Legislative Texts, Declaration of June 24, 2000, 2a). In determined circumstances, the persons find great difficulty with acting in a different way. Therefore, while holding up a general rule, it is necessary to recognize that the responsibility regarding specific actions or decisions is not the same in every case. Pastoral discernment, while taking into account the rightly formed conscience of persons, should take these situations into account. Also the consequences of the accomplished acts are not necessarily the same in every case.

86. The path of accompaniment and discernment orients these faithful to becoming conscious of their situation before God. The conversation with the priest, in internal forum, concurs to the formation of a correct judgment on what prevents the possibility of fuller participation in the life of the Church and on the steps that may favor it and make it grow. Considering that in the same law there is no graduality (cf. FC, 34), this discernment must never disregard the demands of truth and charity of the Gospel proposed by the Church. In order for this to happen, the necessary conditions of humility, reserve, love for the Church and to her teaching, in the sincere search for the will of God and for the desire to reach a more perfect answer to the latter, are to be guaranteed.

Let’s look at the differences briefly. On one hand, the IL position would commit the entire process to the priest, allowing the parties to come to an “honest judgment” about their situation and allowing the priest to form his own judgment sufficient to exercise the power of binding and loosing. In essence, the spouse could come to the conclusion that his first marriage was no marriage, the priest could agree with him, declare the prior marriage void, and the spouse would be readmitted to the Eucharist.

The Germanicus position backs away from the IL position somewhat by acknowledging that there are some impediments—like, oh, a prior, presumptively valid marriage—that are absolute roadblocks to communion. However, Germanicus seems to bring forward the basic component of the IL position; that is, the spouse, in conversation with his confessor, can still come to a basic judgment about his situation, including his objective situation, that would permit him to approach the living Body and Blood of the mighty God. Germanicus did, however, quote Paul in 1 Corinthians about the grave danger of unworthily approaching the Eucharist.

Finally, the RF position largely ratifies the Germanicus position. As we have noted before, Germanicus called for an examen about the spouse’s conduct of the marriage. So does the RF. Germanicus called for an internal forum solution. So does the RF. However, if there is a significant difference between Germanicus and the RF, it comes when you compare Such a path of contemplation and penance can, in the forum internum, with an eye on the objective situation in conversation with the confessor, lead to personal development of conscience and to clarification, to what extent access to the sacrament is possible (from Germanicus) with The conversation with the priest, in internal forum, concurs to the formation of a correct judgment on what prevents the possibility of fuller participation in the life of the Church and on the steps that may favor it and make it grow (from RF). The difference seems to come between “to what extent access to the sacrament is possible,” which seems to result in the basic outcome of the IL position, that is the spouse and the priest coming to a conclusion that the spouse may approach the Eucharist, versus “what prevents the possibility of fuller participation in the life of the Church and on the steps that may favor it and make it grow,” which implies that prior marriages need to be resolved via a nullity case (among other things). Remember that Sandro Magister reports that the Germanicus position had to be “softened” in order to pass. This could be that softening.

It seems to us that if, as De Mattei reports, the lost draft restated the IL position, the Synod fathers might well have objected to the fact that the entire process would be committed to the priest, the spouse, and their consciences, and that the priest would have the power of the keys to do something about the prior marriage. Germanicus never went that far, explicitly, and instead called for an examen and a conversation in the internal forum, with an eye on objective realities, whatever that means, to reach a point of clarity about the spouse’s situation. In other words, the talk of objective realities could be seen as a hook for the Church’s traditional teaching on marriage and adultery. Thus, it seems entirely possible that Germanicus’s report would be more palatable to moderates.

However, we’re still not sure that there is a huge difference between the IL position and the Germanicus/RF position. It seems to us that all the potential for abuse—and, frankly, sacrilege—present in the IL is still present in the Germanicus/RF position. The priest and the spouse still journey together—or whatever—toward a correct judgment on what, if anything, stands between the spouse and full participation. Now the possibility remains open that the answer could be “nothing,” notwithstanding the objective realities of the situation. This was the possibility in the IL and the Germanicus report. It is true that the RF adds some talk about the teachings of the Church, meant generally to include Familiaris consortio and the like, graduality, and the demands of the Gospel. However, the RF also IL’s talk about reduced culpability while omitting Germanicus’s citation to 1 Corinthians 11. By doing this, it seems that the RF gives everyone the ultimate out: Yes, the prior marriage was presumptively valid. Yes, this is objectively sinful. But, setting all that to one side, there are extenuating circumstances tending to diminish culpability.