Inside Baseball

Ottaviani, Döpfner, and Article 33 § 1 of the Ordo Concilii

The history of the Second Vatican Council—which is to say, the nitty-gritty, technical stuff—has largely receded into inaccessibility. While the faithful are told—and told and told and told—how important the Council was to the life of the Church. It was a second Pentecost, a rebirth of the Church, and any number of other things. But the how and why of the Council are so poorly understood that this seminal event in the life of the Church might as well have happened on the dark side of the Moon. For our part, given our deficient formation in Church history, we have endeavored to find out more about what actually happened during the Council, including, when possible, the technical aspects of the events. While these technical aspects are, of course, interesting from an antiquarian standpoint, we think that there are lessons that can be drawn from them that may well be applicable today.

For reasons perhaps obvious to you, dear reader, we have followed the arguments of Alfredo Cardinal Ottaviani, then the secretary of the Holy Office (popes were their own prefects in those days). The first session of the Second Vatican Council did not go well for Cardinal Ottaviani. Not only did he find himself outmaneuvered by the Modernists and progressives but he also found himself humiliated openly during sessions of the Council. Perhaps the most notable incident occurred on October 30, 1962, during the debate over the draft constitution De Sacra Liturgia, which, after amendment, was issued as Sacrosanctum Concilium. Ottaviani rightly apprehended that the progressives were aiming at a complete revision of the Mass, widespread use of the vernacular, and communion under both species, among other things. (Acta Synodalia I.2.18–20.) And he said so. And in saying so, he ran over the allotted time for interventions. (The allotted time wasn’t exactly a hard-and-fast rule, either: the Ordo Concilii, art. 33 § 3, provided, merely: “Quilibet Pater de una eademque re, ex regula, semel tantum loqui potest, idemque rogatur decem momenta ne excedat.”) But Bernardus Cardinal Alfrink, a confirmed progressive, was presiding on October 30, and he ordered Ottaviani’s microphone cut—to applause in the hall, which was noted, perhaps cruelly, in the Acta Synodalia.

But the indignity suffered during the debate over De Sacra Liturgia would not be Cardinal Ottaviani’s last battle during the first session of the Council. The progressives, recognizing that some of the approved schemata prepared by the preparatory commissions would not achieve the sweeping changes they demanded, began to prepare and circulate their own draft schemata. The progressive Jesuit Henri de Lubac, in his Vatican Council Notebooks, reports that the Germans, including Jesuit Karl Rahner, prepared an alternate draft of the doctrinal schema almost as soon as they hit the ground in Rome. (Among the bright young priests helping Fr. Rahner draft an alternate schema was a young priest of Munich and Freising and rising theologian, Fr. Joseph Ratzinger. What a life the cloistered monk of Mater Ecclesiae has led!) The alternate schemata were, of course, circulated among sympathetic Council fathers. It goes without saying that Ottaviani objected to this practice.

The issue really began to come to a head on November 14, 1962, in the context of the hugely contentious discussion of Cardinal Ottaviani’s schema De Fontibus Revelationis. (One could write a book on the disastrous course of events surrounding De Fontibus Revelationis and its eventual replacement, Dei Verbum.) Ottaviani did not read the relatio personally—Msgr. Salvatore Garofalo, a professor at the Urbaniana and a member of the theological commission read the relatio, as a matter of fact—but he did make some prefatory remarks, including a very pointed comment about the alternate schemata then circulating:

Circumferuntur quaedam schemata quae essent substituenda schemati officialiter proposito. Hoc mihi non videtur congruere cum dispositione can. 222, par. 2, quae unice Summo Pontifici reservat materiam disponendam, et non esset reverens et obsequiosum erga Summum Pontificem, qui dedit discutiendum propositum schema officialiter, et igitur mens eius est ut hoc schema discutiatur, non alia quae privatim proponuntur. Si sunt correctiones faciendae, huic schemati fiant. Est liberum omnibus proponere correctiones, emendationes. Sed super hoc schema debet fieri discussio, non super alia.

(Acta Synodalia I.3.27.) In fact, Ottaviani’s spoken remarks on this issue were more pointed than his prepared text (cf. Acta Synodalia I.3.28). The theological commission had prepared—not without controversy—schemata for the Council to consider. The Council was supposed to consider the official schemata!

In support of his argument on this point, Ottaviani cited canon 222 § 2, which provided:

Eiusdem Romani Pontificis est Oecumenico Concilio per se vel per alios praeesse, res in eo tractandas ordinemque servandum constituere ac designare, Concilium ipsum transferre, suspendere, dissolvere, eiusque decreta confirmare.

(Emphasis supplied.) In Ed Peters’s indispensable translation of the 1917 Code, this is rendered:

It is for this same Roman Pontiff to preside himself or through another over the Ecumenical Council, to establish and designate the matters that are to be treated and the order to be observed, and to transfer, suspend, dissolve, and confirm the Council and its decrees.

(Emphasis supplied.) That is to say, the pope sets the agenda for ecumenical councils and determines what they will consider.This remains, essentially, the law of the Church today (can. 338 § 2). Cardinal Ottaviani could well have also cited chapter 8 of the Ordo Concilii Oecumenici Vaticani II Celebrandi, which plainly anticipates that the official schemata would be discussed and amended through debate in the public sessions. Regardless of the legal authority, Ottaviani had a point: when John XXIII distributed the commissions’ draft schemata, he “establish[ed] and designate[d] the matter . . . to be treated.”  In Cardinal Ottaviani’s opinion, the Council fathers were therefore obligated to consider the “official” schemata, not agitate for the alternatives, such as the one prepared by Karl Rahner and his collaborators.

The debate over De Fontibus Revelationis went badly. As soon as the relatio was over, Cardinals Liénart and Frings, two leaders of the progressive faction, rose to attack the schema on various issues. (One can read the Acta Synodalia to see exactly why the progressives hated Ottaviani’s De Fontibus Revelationis, needless to say the effects of such a clear, precise statement of Catholic doctrine on ecumenism were deplored.) The battle continued on November 17. Julius Cardinal Döpfner, the young archbishop of Munich and another confirmed progressive, rose to criticize Cardinal Ottaviani’s points. In fact, he argued for a major revision to the procedure of the Council that would open the door to the alternate schemata:

Hanc disceptationem minime timeamus—ceteroquin in quaerenda veritate spectaculum unionis et caritatis in Spiritu Domini praestantes—neque ut irreverentia erga Summum Pontificem censenda est talis discussion. Nam in Ordine ab ipso Summo Pontifice dato legimus (art. 33 § 1), quemvis Patrem de unoquoque schemate admittendo vel emendando vel etiam reiciendo verba facere posse. Ex quo constat: ex laboribus praeparatoriis nullum oritur praeiudicium, et omnino intactum remanet nobis munus diiudicandi quid fiat de unoquoque et etiam de hoc schemate… Post disceptationem in genere autem fiat suffragium, utrum schema ut totum accipiatur an non. Quo suffragio peracto, videbimus quomodo ulterius procedendum sit. Si revera praesens forma schematis maioritati competenti Patrum placuerit, uti subiectum ulterioris laboris adhibeatur; si non, novum schema elaboretur. Et hoc, secundum meum humile iudicium, praeferendum esse videtur, quia a punctis diversis tendentiis et curis magis approprinquante exordium sumeretur.

(Acta Synodalia I.3.125) (Some original formatting omitted.) In other words, according to Cardinal Döpfner, because the Council fathers could, under article 33 § 1 of the Ordo Concilii, urge the rejection of a schema, there was no presumption in favor of the official schemata. And, based upon this lack of presumption, Döpfner took took the argument a step farther: after the general discussion of an official schema, there should be a vote whether the schema should be taken up or not. Obviously, as a German Council father, Döpfner knew that there were alternate schemata circulating, especially Rahner’s draft of a doctrinal schema. And given the course of the debate over De Fontibus Revelationis, one wonders whether Döpfner knew something the rest of the Council fathers didn’t.

Cardinal Ottaviani intervened shortly after Cardinal Döpfner’s speech and responded to the German’s points, suggesting that Döpfner simply did not understand how the preparatory commissions worked. (Acta Synodalia I.3.131.) Ottaviani also responded to Döpfner’s extraordinary suggestion that the schemata receive a general up-or-down vote after the initial debate:

Quod attinet ad novam propositionem factam quando iam labores sunt in fine istius constitutionis, quando iam maioritas…, fortassis cuidam non placet quod iam maioritas se expendit pro approbatione in forma generali cum emendationibus utique istius constitutionis; nunc fit propositio, ut respuatur. Hoc mihi videtur contrarium canoni 222, § 2. Videtur contrarium etiam ipsi dignitati istius consessus.

(Id.at I.3.132.) Once again, Ottaviani raised canon 222 § 2 as an objection to the notion that the Council could reject an official schema. The pope sets the agenda of an ecumenical council and the pope proposed the official schemata.

But Döpfner’s position got an unexpected boost against Ottaviani’s canon 222 § 2 argument. Norman Cardinal Gilroy, an Australian, was in the chair on November 17, and he read a note, responding to Ottaviani’s remarks:

Aliquis Pater conciliares mihi tamquam praesidi scripsit: «Enixe rogo em.mum praesidem congregationis ut attentionem Patrum dirigat ad canonem 33, sectionem primam. Est quod sequitur: “Quivis pater verba facere potest de unoquoque proposito schemate vel admittendo vel reiciendo”. Attentio dirigatur ad verbum reiciendo».

(Id.) (Emphasis supplied.) It is apparent, then, article 33 § 1 is therefore a significant procedural rule for this moment in the history of the Council: Cardinal Döpfner cited it as in support of his argument that no presumption existed in favor of the official schema, and it was the basis of the note passed to Cardinal Gilroy to shut Ottaviani down. And, given that the debate over De Fontibus Revelationis turned out to be a tremendously significant moment in the first session of the Council—indeed, the whole Council—one might say that article 33 §1 is a significant procedural rule for the history of the Council as a whole. But what does it say?

One must look for a copy of the the Ordo Concilii Oecumenici Vaticani II Celebrandi, as it was during the first session of the Council. (The Council’s procedures were later revised during the Council itself on a sort of ad hoc basis, including during the debate over De Fontibus Revelationis.) However, the 1962 Ordo Concilii can be found in Latin as an appendix to John XXIII’s motu proprio Appropinquante Concilio, helpfully available in Latin and Spanish on the Vatican’s website. There, you find article 33 § 1:

Quivis Pater verba facere potest de unoquoque proposito schemate vel admittendo, vel reiciendo, vel emendando, suae orationis summa Secretario generali saltem tres ante dies scripto exhibita.

It’s a procedural provision. The Council fathers could make an intervention urging the adoption, rejection, or amendment of an official schema so long as they provided a copy of their written text to the Council general secretariat. That’s all. It is certainly not a mandate for an anything-goes discussion. And the progressives at the Council probably knew that, since they assiduously avoided quoting the final clause of the provision: suae orationis summa Secretario generali saltem tres ante dies scripto exhibita.

If the procedural aspect of article 33 § 1 weren’t clear enough from its words, the remaining provisions of article 33, make it clear:

§ 2. Oratio ita ordinanda est ut prius de principiis generalibus, postea vero de particularibus dispositionibus agatur, schematis ipsius. semper ordine servato.

§ 3. Quilibet Pater de una eademque re, ex regula, semel tantum loqui potest, idemque rogatur decem momenta ne excedat.

§ 4. Si orator obiecti vel temporis assignatos limites praetergrediatur, potest a Praeside ad eosdem revocari.

§ 5. Qui emendationes proposuit, absoluto sermone, scriptam relationem eandemque a se subscriptam Secretario generali tradere debet.

§ 6. Qui singula verba vel paragraphos schematis emendanda censuerit, scriptam formulam proponere tenetur, prioribus substituendam.

In other words, article 33 simply sets forth the procedure of debate in the Council aula. One doubts very much that it was intended to have the substantive significance that Cardinal Döpfner attached to it during his intervention. Certainly, the text, when it isn’t silent, seems to assume that the Council will be debating the official schemata, not preparing and circulating alternate schemata. However, when Döpfner made his intervention and when Gilroy read out the note essentially restating Döpfner’s position, the implication that article 33 § 1 abolished any presumption in favor of the official schemata went almost unchallenged. Almost: on November 20, Bishop Luigi Carli—later to become the subject of some controversy during the debate over Nostra aetate—intervened at length regarding the interpretation of article 33, and he argued against the broad interpretation articulated by Döpfner. (Acta Synodalia I.3.231–33.) Too late, though.

All of this is, of course, interesting in its way. Certainly, the inside baseball of the Council is fascinating, not least since it adds context to the documents the Council ultimately handed down. It also fosters enormous sympathy for Cardinal Ottaviani, who was, it seems, outgunned by the organized progressives at every turn. But there is, it seems to us, another reason for interest in this episode: the progressives’ approach to the law.

Consider what happened in outline form. Ottaviani cited canon 222 § 2 against the practice of preparing alternate schemata. Döpfner quoted part, but not all, article 33 § 1 of the Ordo Concilii in support of the argument that the official schemata enjoyed no presumption and that the Council should take an up-or-down vote on each official schema after the general debate. Ottaviani returned to canon 222 § 2 during the debate, and someone passed a note to Gilroy also quoting part, but not all, of article 33 § 1, and implying that it authorized that sort of practice. In other words, Döpfner’s selective quotation of the rule was used to justify a revolution in procedure plainly not foreseen by anyone but the progressives.

Laws, which ought to be construed harmoniously, were turned against each other. And it largely worked. It seems to us that one can find examples of this sort of activity in various circles today. This, then, is a reason why it behooves traditionally minded Catholics to familiarize themselves with the events at the Council.

Does the Church really need a new “Pastor Bonus”?

Edward Condon, who, if you’ll remember, broke the news about Cardinal Coccopalmerio’s letter about the question of consent to the processus brevior, has a piece at the Catholic Herald about Francis’s ongoing project of Curia reform:

Rereading Pastor Bonus, it is hard to see where that document could be meaningfully changed to prevent the kind of financial chicanery we are reading about, other than by the creation of a Secretariat for the Economy, which has already been done. Pastor Bonus outlines what the various Vatican departments are and what matters they deal with, it is not the curial equivalent of a civil service code; that does exist and is called the General Regulations of the Roman Curia, and about the reform of this we have heard next to nothing.

While the reordering of the curial departments might be useful in some respects, like the creation of one department to handle everything pertaining to the laity, it cannot prevent or address ongoing abuses by those who work in those departments.

Pope Francis has spoken strongly and often of his disapproval of careerism in the Curia, yet we have seen sadly little, if anything, done to discourage it. While the C9 group of cardinals was drawn from around the world and could at least have represented an outside perspective for reform, this has not carried over into actual curial appointments. The most high profile appointments under Francis have continued to go to career Vatican civil servants, including Cardinal Parolin, as Secretary of State, and Cardinal Mamberti as head of the Apostolic Signatura, the Vatican Supreme Court, to say nothing of the highly controversial appointment of Mgr Ricca to the IOR, or Vatican Bank. All of these appointments were made by Francis under advice from the very Curia he is trying to reform, with the ridiculous consequence that he has had to write to his own Secretary of State reminding him to run the Church according to the rules.

(Emphasis supplied.) If you’re especially interested in the Church’s administrative regulations, the General Regulations of the Roman Curia are available in Italian here. We have remarked a couple of times that the project of sweeping reform of the Curia, so much on the cardinals’ minds as they prepared for the conclave, seems to have fallen into second or third prominence on the Holy Father’s agenda. Certainly, the promised rewrite of Pastor Bonus has not appeared. And on this issue, Condon’s point is pretty sound: where could Pastor Bonus be improved? We’re not so sure.

Certainly, codifying, for want of a better word, the competence of the Fidelis Dispensator entities would be nice, as would long-term clarity on the role of the Council of Cardinals. And, if the Holy Father does erect a super-congregation for family, laity, and life, as he promised at the Synod, it would be nice to have its competence codified. But, in the main, as Condon notes, Pastor Bonus only sets out the competence and jurisdiction of the various dicasteries, and even then only in very broad terms. The implementation of that competence and jurisdiction comes in other sources of law. For example, one has to consult sources other than Pastor Bonus to figure out what the penal jurisdiction of the Congregation for the Doctrine of the Faith is—an important issue if one is worried about allegations of heresy, for example—especially the so-called Substantive Norms.

A brief digression: we have long complained that the Church’s sources of law are remarkably opaque, and that real transparency will not be possible until all the faithful can access, in a language they can understand, all of the relevant law. In the United States, most states make not only statutes and regulations but also judicial decisions available for free via the internet. (The federal government is very good about statutes and regulations, but less good about many judicial decisions.) In addition to the states’ publications, private services like Westlaw and Lexis provide access to statutes, regulations, and judicial decisions at all levels. Compare that to the Church of Rome, which makes some things available, but not all, and not always in widely spoken languages. (Italian is not widely spoken outside Italy, as some Synod fathers noted.) One big gap is the relative unavailability of Rotal jurisprudence, which provides hugely important glosses on the relevant canons, especially in matrimonial cases. The Vatican’s website is also a mess, which is a problem when it comes time to access important legal documents.

Put it like this: while “apostolic constitution” is a term of art, it is helpful to think of Pastor Bonus as a constitution for the Curia. And, as with any constitution, it deals in broad strokes. The detail work comes later and elsewhere. So, the question is, really, whether the broad strokes of Pastor Bonus need to be replaced with the broad strokes of another document. And that is not so clear. But even if Pastor Bonus needs to be replaced by a new document, it is not clear that that fixes the problem of the Curia. Condon again:

While a new version of Pastor Bonus will be an interesting, and probably helpful, development in the governance of the Church, it is not going to be the panacea of reform many are hoping for. If we ever hope to see real transparency in the governance of the Church, there needs to be reform, not of the Vatican departments, but of those working in them.

(Emphasis supplied.) On this point, given the Holy Father’s stringent Christmas speech to the Curia, it seems that Holy Father agrees.

The lost draft and the German moment

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.
(Original emphasis omitted, our emphasis supplied.)

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.