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The proposal of Cardinal Walter Kasper about the possibility of remarried Catholics to receive communion has attracted much attention. His main idea, namely to accept Orthodox teaching on divorce, is not as new as some think.

In the European heartlands of what is today Austria, Germany, and the Czech Republic, theology took under German Emperor Joseph II (1780–1790) a remarkable turn. Following the Imperial policy of extrapolating the influence of the state over the Church, theologians began to accept more and more government control in ecclesiastical affairs; even priest seminaries were no longer a space free from government intrusion. This policy, called Josephinism, held that the state has not only the right to defend the Church, to reform it in the case of harmful activities, and to inspect it, but also to convene councils or synods, to end theological controversies, to censor theological books, and to tolerate other religions. The Church was thus completely subjugated to the whim of the state government.

An important theological question that Josephinist theologians posed was the possibility of divorce and remarriage. In 1783, Joseph II promulgated a decree in which he defined marriage as a civil contract. In so doing, the Habsburg monarchy found orientation in French legal thought that had conceded their kings similar rights. Consequently, only governmental offices could decide about impediments to marriage, marital duties, and the dissolution of the marital bond.

One problem that the increasing state influence caused was the question of divorce. If divorce was suddenly possible in state law, how should the Church react? Should it acknowledge that two previously married persons were suddenly no longer conjoined in a sacrament, or maintain its teaching that a valid marriage between two baptized Christians was indissoluble unless one of the partners died?

In 1817, the Department of Catholic Theology hosted an academic essay contest reflecting on the previous three decades of theological controversy, in which the ex-Jesuit Karl Joseph Michaeler (1735–1804) and Benedict Werkmeister (1745–1823) argued for the possibility of a divorce of a valid sacramental marriage. The department posed this question for the contest: “Is it a Catholic dogma that the marriage bond between two living spouses cannot be dissolved?”

The young theologian named Frenzel amassed a remarkable amount of sources and argued that the indissolubility of marriage was not contained in scripture, nor in the utterances of the Fathers nor the councils and could therefore not be regarded a dogma. Instead, he found ample evidence that the Church Fathers had a more differentiated view and that even several particular councils (e.g. Toledo in 681 or Compiegne in 756) allowed divorce and remarriage in cases of adultery. The Council of Florence’s decree for the Armenians (1439) which had confirmed indissolubility was for Frenzel not legally binding because the decree was written after the official ending of the council.

Even in the canons of the Council of Trent (1545–1563) nothing spoke against the possibility of divorce and remarriage, he argued. After all, Frenzel explained, Trent had only taught that adultery was no reason for the dissolution of the marriage bond but had not stated that marriage per se was indissoluble and thus a dogma. All of this was certainly a very idiosyncratic way of reading the tradition of the Church, but we must not forget that the understanding of “dogma” was still in flux and not defined until sixty later at the First Vatican Council (1870/71).

Yet, it is fascinating to see how Frenzel tries to use the Council of Trent to support his view that a sacramental marriage was dissolvable. He insists that one cannot interpret scripture differently from the Church Fathers. Since, in his reading, none of them teaches the indissolubility of marriage and some recognize the possibility of breaking up the marital bond through divorce in case of adultery, one then must come to the conclusion that divorce is theologically possible. Since the Greek Uniate Churches, who kept this tradition, were never condemned for this praxis, it seemed for Frenzel possible that also the Latin Church could implement it. It is also noteworthy that decades later, Frenzel published a refutation of his own ideas—a requirement for his ordination to the episcopal see of Ermland.

Sound familiar? It should. In Germany today, where the Church is supported by state taxes and is the second biggest employer, Cardinal Kasper’s proposal sounds similar to Frenzel’s. The Cardinal has never argued against the indissolubility of a valid, sacramental marriage or doubted it, but a number of theologians believe that his proposal would ultimately lead to floating ideas such as Frenzel’s.

The past does not give us clear-cut answers for present-day problems. Nevertheless, history reminds us of the roads not taken, and demands that we not dismiss the reasons they were chosen against. After all, some roads were not taken because they lead into the abyss.

Ulrich L. Lehner is professor of religious history and theology at Marquette University. The above is an excerpt from his forthcoming book “The Catholic Enlightenment. The Forgotten History of a Global Movement” (Oxford University Press, 2015).

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