The Episcopal Church and Divorce

After the Revolutionary War the American branch of the Church of England became the Protestant Episcopal Church of the United States, reorganizing itself as a loose confederation of dioceses. It adopted a national government consisting of a General Convention which meets every three years in two houses, the House of Bishops and the House of Deputies. The latter is composed of equal numbers of clergy and laity, elected by the dioceses. On important matters the House of Deputies votes by orders; that is, the clergy and laity vote separately, and to be adopted a measure must pass not only in both houses but in both orders of deputies.

The first General Convention adopted a body of canons (church laws), but marriage and divorce were not regulated by canon until 1868. The only guidance before that was a joint resolution of the two houses which provided that

the Ministers of this Church … shall not unite in matrimony any person who is divorced, unless it be on account of the other party having been guilty of adultery.ⁱ

A canon to this effect was adopted in 1868. In 1877 Convention expanded the marriage canon to provide that persons thought to be married contrary to the law of the church were not to be admitted to the sacraments except by a “godly judgment” of the bishop. Presumably the bishop’s judgment concerned whether or not the persons actually had married contrary to the church’s law. In any case, admission to the sacraments of such remarried persons did not become a common practice until many years later.

In 1886 a Joint Committee on Marriage appointed by the previous Convention delivered a report which can be taken as the baseline from which to measure the changes we shall be observing. It is a full exposition of the conservative stance from which we shall trace a radical departure in slightly less than 100 years.

First, the committee sees the church as possessing an authority that is little recognized today —

It is desired and expected that [the Church] shall speak, and with no uncertain sound, and tell the people, in terms so plain that every one can understand, what Marriage is; how, and under what conditions, it should be solemnized; and for what causes, and in what manner, it may be dissolved. On these points great numbers of persons throughout this country are waiting for clear statements.ⁱⁱ

In addition the committee takes a clear and succinct theological stance —

The parties to Marriage … [are] fallen and corrupted by the sin which is in their members. …

Hence arises the need of statutes fitted to restrain passion … and to secure compliance with the will of that Supreme Being whom man is … never more likely to offend than when moved and drawn away by the desires and lusts of the flesh. …

Divorce with permission to marry again is not conceded by the Church, unless the ground of divorce be adultery, and in that case the guilty party is absolutely excluded from marrying again during the lifetime of the other.ⁱⁱⁱ

In support of this position the committee cites Leviticus 8:6–19, 20:11–21, Deuteronomy 27:20,22–23 , Matthew 5:32, 19:9, Mark 10:11, Luke 16:18, Romans 7:2–3, and 1 Corinthians 7:10–11.

In the meantime the national divorce rate was climbing rapidly. In 1860 there were 1.2 divorces per 1000 marriages, in 1900 4.0, in 1910 4.5, and in 1920 7.7.^iv

The nation’s first reaction to this increase was an attempt at repression.

Between 1889 and 1906 … state legislatures across the country … enacted more than one hundred pieces of restrictive marriage and divorce legislation in an effort to stem the tide.^v

Behind this attempt was the Victorian ideal of marriage.

The divorce cases from the 1880’s in Los Angeles … suggest that marriage was based on duties and sacrifices, not personal satisfaction. … Husbands and wives neither expected nor hoped that their spouses would provide them with ultimate fulfillment in life, or that the home would be a self-contained private domain geared toward the personal happiness of individual family members.^vi

In the 1880’s … husbands were to provide the necessities of life, treat their wives with courtesy and protection, and exercise sexual restraint. … A wife’s duty was to maintain a comfortable home, take care of household chores, bear and tend to the children, and set the moral tone for domestic life.^vii

This view of marriage stands in sharp contrast to today’s view. Contemporary Americans see personal fulfillment and happiness as the purpose of marriage and the family. Between the late nineteenth century and the mid-twentieth the change from the one to the other was taking place.

In their 1920’s study of Muncie, Indiana … Robert and Helen Lynd … noted that Muncie’s population increasingly adhered to the notion of “romantic love as the only valid basis for marriage.”^viii

And

Gradually the notion of personal happiness began to loom larger and larger as a component of marriage.^ix

Two other developments significant to divorce and remarriage were taking place during this period as well. The first was that social scientists were beginning to study divorce, and lawmakers and others were listening. One sign of this change was a “sudden passion for statistics,” the development of the “quantitative ethic.”^x Of particular importance were Carroll D. Wright’s reports for the U.S. Department of Labor — “in many respects [they] … marked the beginning of the ascendancy of the social sciences in marriage and divorce policy.” ^xi The second was the popularization of psychology and psychiatry, which gave Americans a different view of the causes of marital discord. “The post-World War I era was distinctly under the influence of the behavioral sciences, particularly psychoanalysis.”^xii

After 1887 no significant canonical action concerning marriage and divorce was taken by the Episcopal Church until 1931, but a large crack in the dam became evident in 1916 when the Marriage Commission made a key recommendation —

The refusal of the Church to bless and solemnize a marriage need not be followed by a permanent exclusion from the Sacraments.

Consideration must be had of the good faith in which a marriage may have been entered on, in ignorance of the Church’s law … and of the practical impossibility in many cases, without greater wrong, of the breaking up of a family. In some such cases there must be a power of discretion, very carefully exercised, to admit or readmit persons to the Sacraments. ^xiii(Italics mine)

The Commission presented a canon that empowered the bishop to admit divorced and remarried persons to the sacraments. This measure was approved in the House of Deputies by a large majority of the clergy, but failed by a small majority among the laity.

The Convention of 1931 did, however, take a significantly altered position. Two important new canonical provisions were adopted and the Marriage Commission’s report bore witness to a new understanding of marriage and divorce.

Education for marriage now became a high priority of the canons —

Ministers of this Church shall within their Cures give instruction both publicly and privately, on the nature of Holy Matrimony, its responsibilities and the mutual love and forbearance it requires. …

[The] Minister … shall instruct the contracting parties as to the nature of Holy Matrimony, its responsibilities, and the means of grace which God has provided through his Church.^xiv

Even more importantly, annulment as a means of dissolving marriage was moved front and center. A list of impediments was drawn up; that is, conditions existing at the time of the marriage that rendered it null and void; and further —

Any person whose former marriage has been annulled or dissolved by a civil court may apply to the Bishop … to have the said marriage declared null and void by reason of any of the … impediments.^xv

The door was beginning to open. The Episcopal Church was looking for ways to cope sympathetically with the high rate of divorce in modern marriage. It was not yet ready to break with tradition, but it was eager to find as much wiggle room as possible within that tradition.^xvi

This conclusion is made very clear by the report of the Marriage Commission.

Your Commission is agreed that in some way the Church must take a more sympathetic attitude toward divorced people. The majority offers an amendment to the Canon which would allow the remarriage of divorced people but under very definite conditions, namely, that a divorced person must wait a year before remarriage, and then receive the permission of a[n ecclesiastical] court. … A minority report … [proposes] that if the court permits and the parties have already been married by some civil officer, a clergyman of this Church may read a Service of Blessing.^xvii …

An increasing number of Christian people think it inconsistent with the mind of Christ that the Church should extend no real forgiveness to divorced people who are remarried, but declare that they live in a state of adultery. It is impossible legally, and undesirable morally, that the second marriage should be broken up.^xviii…

There is grave spiritual danger in always expecting men and women who have been married and divorced to live thereafter in a state of celibacy.^xix …

Many of our best thinkers do not consider divorce an unmitigated evil. … In these later days emphasis has been increasingly laid on the promises in the marriage vow “to love, comfort, honor and cherish,” and the feeling has gained ground that the breaking of these promises seriously invalidates the rest of the vow. … There is surely something to be said for the point of view that requires those who are married to observe the ordinary laws of righteousness and decency if they expect their married life to continue. Your Commission believes that the only real way in which we can sanctify the institution of marriage is to sanctify it in practice.^xx

The report revealed a new attitude towards sex —

Until within a few years the whole subject of sex has been taboo. … Training must be given in the dignity, the beauty and the glory of sex. …^xxi

A far cry, this, from the report of 1886, which viewed marriage as a means of restraining “passion” and curbing “the desires and lusts of the flesh”!

On the other hand, as much as the Commission saw the “glory of sex,” it criticized modern dreams of romance —

A … most crying need is to break down the prevailing romantic idea of marriage. … Nothing is more needed than the realization that the best married love is an achievement.^xxii (Italics in the original)

The authority of the new psychology stemming from Freud and of its practitioners is made explicit —

A generation ago it was almost universally assumed that practically all grounds on which divorce was granted were grounds arising after marriage, but the amazing increase of knowledge in psychology and psychiatry has made it reasonably clear that many of the causes for divorce are character causes, which existed long before the marriage took place. … It is generally understood that a large percentage of sexual maladjustments, which are such a prolific cause of marital unhappiness, are due to early childhood training or lack of training. Any clergyman who declared null and void marriages of this sort would doubtless gain the support of psychiatrists and social workers.^xxiii…

It would be easily possible to extend the principle of annulment to cover all sorts of mental and moral deficiencies that existed in people before marriage.^xxiv

These paragraphs are of particular interest because they articulate a new type of grounds for annulment — “character causes, which existed long before the marriage took place.” By all logic the Commission should have included these sorts of psychological grounds among the impediments to be included in the marriage canons, but it did not. Doubtless Commission members felt this was one step too far. The Church was not yet ready for such a sweeping change.

The Commission offers a brief biblical justification for its conclusions. First, the “command” of Christ concerning marriage and divorce is not to be taken literally.

The teaching … is found, along with other equally specific commands that few people accept literally, such as the command not to take oaths, to turn the other cheek if one is struck, to give to everyone that asks of you, and to take no thought of the morrow.^xxv

Authoritative biblical scholars are quoted.

In Bishop Gore’s mind clearly Christ did lay down an explicit law in regard to marriage.^xxvi

But

Canon Streeter … says … “The idea that a definite ruling on this question is to be found in the words of Christ rests, I believe, on a misapprehension. … Christ’s … forgiving attitude toward those who were guilty of adultery receives peculiar emphasis in the Gospels.^xxvii

And, further, Canon Streeter finds venerable precedent for not taking the “plain teaching of our Lord” as law —

If [Christ] condemned the remarriage of divorced persons, it is equally true that in saying “Those whom God hath joined together, let no man put asunder” He condemned the separation of all those who have been married. … Nevertheless from the beginning the Church in all its branches has recognized the need of separation from bed and board.^xxviii

Finally, the Commission cites the practice of the Eastern Orthodox Church as precedent for admitting various grounds of divorce and remarriage.^xxix

This kind of biblical, theological and practical reflection by commissions on marriage continued through the ’30s, ’40s and ’50s.

In preparation for the Convention of 1937 a pamphlet consisting of articles by various scholars^xxx was sent at the Commission’s request to every member of Convention. The Commission itself appeals not only to such scholarly opinion but to personal experience —

Year by year more of us have to face the divorce evil within our own families, or within the circle of our close friends.^xxxi

And to modern, secular teachings —

[A] difficulty with annulment is that our studies in education and psychology make it clear that the character attributes which wreck marriage have been formed long before the marriage.^xxxii

Thus, in this last reflection the Commission of 1937, like the Commission of 1933, is enunciating a psychological and radical impediment to marriage that it is not ready to recommend for canon law.

In 1940 the Commission again recommended that “persons remarried after divorce should not for that reason be deprived of Holy Communion,”^xxxiii but Convention took no action.

In these years Convention began taking active steps to gather information. The Women’s Auxiliary had sent out a questionnaire from which it concluded that “certain trends of thought were evident, which indicated a desire on the part of the large majority that the Church should reexamine its position on the whole subject.”^xxxiv The Commission of 1943

felt it advisable to obtain opinions and suggestions from as wide a circle as possible. It has therefore sought advice from the Seminaries of the Church. … We also asked each diocesan bishop to appoint a cooperating committee in his diocese.^xxxv

And it once again recommended that psychological causes existing before a marriage be considered grounds for annulment. This time it went further and proposed a canon —

of the marriage bond

… If the Bishop finds that the former contract could not be the spiritual union taught by Christ, because of … the existence of abnormalities, defects or deficiencies of character sufficient to prevent the fulfillment of the marriage vows, or … the existence of an irremediable mental, moral, or spiritual deterioration or incapacity, the causes of which were latent before the previous contract and exposed by the marital relationship, and that these causes as far as they can be determined are not present in a proposed marriage, he shall grant the applicant’s request.^xxxvi

This proposal was defeated, but in the following Convention (1946) a similar impediment was finally adopted—

Such defects of personality as to make competent … consent impossible.^xxxvii

The Convention of 1946 also appointed a special committee to gather information about what bishops were actually doing —

Resolved, That a special committee … to obtain from diocesans copies of judgments. … to collate them; and once a year to publish to the members of the House of Bishops their findings as to procedure followed. …

Although by no means all of the Bishops have sent such copies of judgments and answers, enough have been received to warrant the conclusion that in the almost unanimous opinion of the Bishops (two dissent), the present Canons are an improvement on the former discipline … that they are working well; that the pastoral approach, which is the underlying principle of the Canons, to the question of marital failure is approved as more in accord with the mind of Christ than the judicial approach; that judgments are conservative but give due consideration to justice and mercy as well as to the Christian ideal of marriage. … At the same time many of the Bishops have requested clarification of the Canons in some respects. …^xxxviii

In this committee report we also see a clear statement of the shift of opinion that has been taking place. Not only is the Episcopal Church troubled by the problems of modern marriage; two schools of thought are now explicitly acknowledged —

The Canon recognizes two points of view as legitimate: one, that if one or more of the impediments existed before marriage, no marital bond was created; the other, that if one of the impediments arises after marriage, the marital bond is broken.^xxxix

Interestingly enough the practice of the bishops on both sides of the question seems to have been much the same —

The copies of judgments which we have received show a surprising unanimity in conservatism. It is evident that in practice procedure is much the same under both points of view.^xl

With the Convention of 1946 the Episcopal Church had reached a plateau, a resting place that lasted almost thirty years, consisting of one possible solution to the problem of modern marriage — an extended, highly flexible doctrine of annulment that recognized psychological impediments, coupled with a crude method of readmitting to the sacraments those who remarried outside the church’s law. It was also a roomy compromise between the competing schools of thought, capable of interpretation narrowly or broadly. It proved, however, not to be the answer to the problem, but a method of widespread learning. This was recognized by the Commission of 1958, which said “The present canons permit the accumulation of a store of experience which will, in due course, enrich and purify our moral theology in this area.”^xli

In the secular world there were new developments —

In the 1960’s … the movement toward statutory reform in the direction of “no-fault” divorce was inaugurated. … These new laws represented the first significant alteration in divorce codes of the twentieth century. ^xlii

It was during this period that I was ordained (1953) and began to accumulate for myself the experience of which the report was speaking. In the introduction I havedescribed how I dealt with a second marriage in which the husband sought my approval of going off with another woman. This was just one of many such experiences.

One set of experiences concerned those who remarried. I had to tell them they could not take Communion for a year and then could be readmitted only by application to the bishop. Even though, in the early years, I agreed with our canons I felt defensive about what I was doing. I felt mean. And I could see the contradictions clearly — “You people are not really married, but if you live together faithfully we’ll let you back in.” (Ugh! I felt compromised.) And the couple didn’t like it. And parishioners didn’t like it. And it kept happening. It was a constant in parish life.

The other set of experiences concerned divorced persons who wished to remarry. I tried conscientiously to administer the canons and to be pastorally helpful to the couple. If they were going to remarry, I wanted the new marriage to go well. So I enquired into their old marriages — what went wrong? I needed to know in order to look for an applicable impediment, and I wanted them to learn from their previous experience. I did not want them to repeat it in the new marriage. These attempts didn’t go well. I wasn’t very good at helping them learn, or maybe most of them were not ready to learn. And as much as I scanned the list of impediments for something morally clear — marrying your aunt or lying about your identity or concealing venereal disease — I practically never found anything like that. I kept having to appeal to

Such defects of personality as to make competent … consent impossible.

In fact, as the years went by, I tended to take it for granted that our application to the bishop for remarriage would appeal to this impediment. I worked diligently with the couple to find psychological grounds for the failure of the previous marriage — and to my satisfaction we always found them, they were always there. Of course, it became clearer and clearer that “annulment” was a legal fiction, that in fact we were talking about causes for divorce. And it became wearisome to keep up the pretense. So toward the last I gave it up. I decided to drop the pretense and go ahead and remarry people without applying to the bishop.

My experience was far from unique. Parish priest after parish priest, bishop after bishop kept having such experiences and came to the same conclusion.

And so did lay persons.

One other sort of unhappiness lent force to our changes of mind. A double standard for clergy was being applied. If a priest divorced and remarried in violation of the canon he was deposed from the ministry. That was an end to his career in the church. There was no readmission for the clergy. This left a very bad taste. It also caused large numbers of clergy to stay in unhappy marriages against their will and against the will of their wives.

By the Convention of 1973 we Episcopalians had had so many unhappy experiences with the canons of 1946 that 21 memorials and petitions to the General Convention were adopted by the clergy and laity of our dioceses evincing our dissatisfactions^xliii; for example —

Resolved … that the … General Convention … write new material, not from a punitive attitude, but from an attitude of understanding, love, and compassion; … [and] deal not so much with the failures of the past as with the reasons for believing that the new marriage may be truly Christian. (Diocese of Albany)

The provisions of [the marriage canons] present unintended hardships for the clergy and people of this Church, frequently destroying the effective pastoral relations when most needed. (Diocese of Delaware)

The [marriage] canons … are often extremely difficult to administer with true pastoral concern; … the administration of these canons often results in the appearance of the Church turning her back on persons in a time of great need for spiritual strengthening and guidance. (Diocese of Kansas)

This is virtually the only moral issue in which the Church stands in judgment over its members and freely exercises its power of ex-communication, while permitting persons who commit adultery, murder, and other serious acts to remain communicants in good standing. (Diocese of Kentucky)

There is general unhappiness and confusion over the administration of our present marriage canons … and … this diocese desires a revised national canon which both upholds the uniqueness and sanctity of Christian marriage, yet provides pastoral concern, love, forgiveness, mercy, and justice for contemporary man and woman. (Diocese of Massachusetts)

The present canons have proved inconsistent in application, lack greatly in pastoral concern, and often provide a double standard. (Diocese of New Hampshire)

It is evident from the pastoral experience of the Church that our present marriage canons are in need of revision. (Diocese of New Jersey)

The present canons cause grave confusion and hurt to thousands of the faithful. (Diocese of South Carolina)

The existing canonical regulations have, in the experience and observation of many, resulted in consequences deficient in compassionate love and departing from strict justice. (Diocese of Southern Ohio)

We believe that mercy and justice should be the determining considerations in adjusting each case. (Diocese of Tennessee)

As a result new canons recognizing divorce and permitting remarriage were adopted by overwhelming margins in the House of Deputies, by 108 to 4 among the clergy and by 111 to 2 among the laity. In the House of Bishops the vote was 76 to 57. There has been no controversy since. A working consensus had been reached.