Today Public Policy Institute director MARTIN SCICLUNA analyses the roles of Church and State in relation to marriage, in the absence of divorce legislation
Christians have debated the proper relation of Church and State for more than a millennium. From an early period, all denominations recognised that Church and State have different spheres of authority and that each should respect this division. The Catholic Church in Malta has historically and constitutionally held a special position. Although differences of emphasis over this issue once seemed a major point of division between Church and State in Malta in the 1930s and again in the 1960s, it is clear that today the Catholic Church in Malta recognises the fundamental difference between the roles of the Church and the State, and that healthy respect for that difference is essential for both. In an elegant and well-written article in Malta Today in June 2008 setting out the Church’s position on aspects of divorce, Archbishop Cremona quoted from Pope Benedict XVI’s Encyclical, Deus Caritas Est, of 25 December 2005.
He made it clear that while he considered the Catholic Church in Malta had a valid contribution to make to the debate on divorce, the Church would not seek to interfere – as opposed to participate – in this process since it is fundamental to ensuring that legislators and society are not placed under duress when considering this issue. A spirit of democratic dialogue, stemming from a willingness to be open-minded and open to persuasion should prevail. An unnecessarily intransigent interpretation of Catholic moral teaching, which led to the earlier Church/State clashes, is hopefully therefore unlikely today.
It is worth repeating the relevant extracts which the Archbishop quoted in his article. Pope Benedict states: “The just ordering of society and the State is a central responsibility of politics... The two spheres [of State and Church] are distinct, yet always inter-related. Justice is both the aim and the intrinsic criterion of all politics. Politics is more than a mere mechanism for defining the rules of public life: its origin and its goals are found in justice, which by its very nature has to do with ethics. The State must inevitably face the question of how justice can be achieved here and now. But this pre-supposes an even more radical question: what is justice? The problem is one of practical reason; but if reason is to be exercised properly, it must undergo constant purification, since it can never be completely free of the danger of a certain ethical blindness caused by the dazzling effect of power and special interests.
Here politics and faith meet. Faith by its specific nature is an encounter with the living God – an encounter opening up new horizons beyond the sphere of reason. But it is also a purifying force for reason itself. From God’s standpoint, faith liberates reason from its blind spots and therefore helps it to be ever more fully itself. Faith enables reason to do its work more effectively and to see its proper object more clearly.
This is where Catholic social doctrine has its place: it has no intention of giving the Church power over the State. Even less is it an attempt to impose on those who do not share the faith ways of thinking and modes of conduct proper to faith. Its aim is simply to help purify reason and to contribute, here and now, to the acknowledgement of what is just.
The Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply.” 3
Different faiths: one law
In relation to marriage, the Church and State have different, though not mutually exclusive, sets of concerns. The State, through its legislators, must decide what decision is best for the whole of society, striking the proper balance between the human rights and the natural aspirations of individuals and the interests of the community and society as a whole. A State which legislates only in the interests of the majority is setting itself against the principles of social justice. Genuine social justice requires recognition by the State of the freedom and rights of all individuals and the right, which every individual has, to well-being under the law without any form of discrimination. Individuals must decide how to behave in accordance with their own religious or other beliefs. All major religions, including the Catholic Church, accept that in a democracy Parliament’s decisions about what sort of behaviour should be lawful are not necessarily the same as what is considered morally right on a purely religious basis.
Our legislators have been elected to Parliament with a duty to cater for the needs of society as a whole while recognising that minorities also have the right to the State’s support. Legislators cannot properly represent the heterogeneous society that Malta has become while being religiously sectarian. They have a duty to work objectively and disinterestedly for a better world and the politics they express should be secular. The position our legislators adopt on the issue of re-marriage after legal separation, therefore, should transcend private religious conviction and seek the best answer which will benefit the whole of Maltese society.
The kind of marriage which is recognised by the law does not depend for its validity on the rules of a particular religion. The courts of law decide a person’s legal status. The distinction between religious ceremonies of marriage and their legal effect is highlighted by the purely secular form of marriage provided by the State.
Although marriage in Malta is most often seen as an automatic consequence of a religious ceremony, it is the law of the State that sets its own terms for recognising the legality of such marriages, as set out in Chapter 255 of the Laws of Malta, the Marriage Act.
The Church’s interest in marriage Marriage as a rite and as a relationship is a vital part of the Catholic faith. The love and fidelity of spouses is seen by the Church as a spiritual, as well as a secular value. Marriage is a Sacrament, a sign of God’s grace bestowed on human love. Gaudium et Spes, which was promulgated by Pope Paul VI on 7 December 1965, talked
of the need to foster the nobility of marriage and the family.
The Church understandably regards its attitude to the morality of personal relationships as of great significance. It holds dearly to its belief in the indissolubility of marriage. Following the teachings of any religion, however, is a matter of personal conscience, not legal duty. The enforcement of that duty depends not on the law of the State but on personal conscience.
Clearly, in this context, the State should not interfere in the Church’s affairs, for example by requiring that persons whose marriages had been dissolved by a court of law, but not by an ecclesiastical tribunal, be entitled to re-marry according to the rites of the Church. It does not follow that the civil dissolution of marriage, if introduced, would deny freedom of religious practice to those conscientiously opposed to it. Although a person’s religious convictions may not permit divorce, his or her freedom of religious practice and beliefs are not violated by allowing re-marriage after legal separation and civil dissolution.
Legislating for divorce – as has already been done for separation after break-down of marriage – would not force anyone to revoke his or her moral stand on marriage. It therefore follows that the pursuit of the ideal of a life-long marriage is not jeopardised by the introduction of laws for the civil dissolution of marriage. If the State continues to deny the right of civil dissolution of marriage after legal separation, it cannot do so simply on the basis of the religious beliefs of one part of society.
The State’s interest in marriage Neither compassion for the victims of marriage breakdowns who have formed unofficial second unions in which they lack the recognition and protection of the law, nor the Church’s teaching on marriage bear directly on the State’s duty.
The moral, as well as the civic, imperative to be considered by the State is the doing of justice, which must be even-handed, and the enhancement of the common good of society. The essential questions raised are two-fold: those of fairness, liberty, protection of the weak and those who form a minority in society, as well as the wider social consequences for society as a whole. It is what humanity, reason, justice and the common good tell us we ought to do.
Persons married but separated are denied the right to re-marry. Legally, if they form a new relationship there is no husband, no wife, merely a co-habiting couple. The couple’s offspring are not the children of married parents in the eyes of the State – and in Malta they currently have no legitimacy. The social exclusion of the couple’s non-status and the psychological disability of having no means of confirming formally their commitment to one another are compounded by problems of inheritance and property rights and much else, since none of the legal entitlements enjoyed by those who are married can be invoked by persons in such a second
union. It is manifestly in the interests of the common good of society to rectify this inequity. The obvious way to do so is to regularize second unions by bringing them within the scope of marriage law. The availability of civil dissolution after legal separation would make this possible. This is the civic imperative to be considered by the State. In assessing such a law, the determining factor for the State should be the requirements of justice and the common good of society. A secular, democratic State, bound to pluralism and committed to the protection of the civil rights of each individual, must do justice by and on behalf of all its citizens, thereby strengthening the bonds of society as a whole. This is the moral imperative.
Marriage is a social institution. It is the preferred context for a wide range of social functions, especially for raising children. It is an enduring and exclusive partnership for the giving and receiving of love and the upbringing of children. Marriage is a vital pillar of society. As such, the State has the right and the duty to regulate it. Despite wide agreement on the importance of marriage and the family, there is disagreement about their nature and how best to regulate them. There is a particular disagreement over whether marriage should involve an irrevocable, exclusive and life-long commitment with no release from it under any circumstances.
This difference is highlighted where a relationship has completely broken down and one or both spouses would like to remarry and have this new position acknowledged by the State’s laws and the stability that marriage provides.
The State must consider the interests in this situation of those of the individuals involved: the spouses, their children (if any) and the persons who would be second spouses. It must also, quite properly, examine the economic, social, psychological and other consequences of divorce. At the same time, the State must consider the impact of divorce on the institution of marriage, which is of concern to everyone. Would the stability of marriage generally be under-mined by accepting that the bond of marriage is dissoluble and that people who have legally separated may remarry?
Divorce is often presented as based solely on the selfish happiness and emotional self-indulgence of those who wish to end a failed marriage. Such an argument ignores completely the traumatic anguish and pain of those whose marriages break down, often in spite of repeated attempts to save the marriage. It is an insult to the people concerned and an affront to charity and compassion.
The plight of these people is a legitimate concern of the State. The individuals’ right, in all consciousness, to choose their own domestic and family relationships, and to expect due respect and acknowledgement of those choices from the State, together with the wider benefits to society from the stability provided by re-marriage, are fundamental. The basic right to be free from unequal treatment is a civil right. The right to marry is also recognised as a civil liberty – a basic right and freedom that is guaranteed by the courts and the laws of Malta.
Respect for such rights does not run counter to the general interest of the State in supporting marriage. It reinforces it. The State’s interest in marriage is as a social institution, a relationship that performs certain important social and economic functions. After marriage breakdown, the legal relationship ceases to correspond with these functions. Often, it is the second informal and non-legal relationships that maintain a house-hold and rear and educate dependant children. It is for the greater common good to give such relationships the status and stability that comes from the possibility of re-marriage under the law rather than the inherently unstable relationships of co-habitation.
To fail to recognise such relationships, as is the case in Malta today, is actually to undermine the institution of marriage and the family by denying them the equal respect and recognition which comes from being married. It is the duty of society and the State to weigh up the issues on the basis of the interests of the community as a whole, and not simply on the basis of private religious convictions about the meaning of marriage to our own lives. The rights of all citizens must be protected equally whatever their gender, race, religious beliefs or social standing. Such rights should not harm others, as opposed to merely offending their religious beliefs.
The State’s law-making duties To sum up on the different interests of Church and State – of religious convictions on the one hand, and the State’s law-making duties on the other – the Church, as much as any other group in our society, has the right to hold and express its own views about social questions and, in particular, about the best form for the law of marriage. This report has set out that case as even-handedly as possible. But it has also explained what it believes is the proper role of the State in relation to marriage and civil dissolution after legal separation. If, in that context, the Church wishes to say – at it does – that dissolution would do more harm than good, then it is the Church’s democratic right to do so.
This is the position which the Archbishop of Malta has adopted. Quite correctly, however, he does not claim that the doctrine of the Church should automatically have the force of law, only that its views should be heard.
If the law happens to coincide with the Church’s specific teachings it is because the law reflects some secular value, independent of religious belief. This should not be a doctrinal struggle, but an earnest endeavour by people of good-will to find a just and practical solution to an urgent problem. Legislators have a duty to ease the human suffering caused by marital break-down and have been given the capacity and the will to pursue this. It is hoped they have the humanity and conscience to do so responsibly.
State and Church have a vested interest in stable marriages. Legislators have many considerations in mind when they are drafting or enacting legislation. Legislators have to consider those who are not Catholics, those who do not accept the Catholic Church’s teachings, and those who, in all consciousness, take a decision which differs from its teachings. State legislators have a duty to try to give citizens all freedom that is consistent with the rights of others, as well as arbitrating in the name of the common good of society between various interests. Good legislators should enact laws which will benefit the well-being of society as a whole.
Ultimately, legislators have to acknowledge that religious faith is a private matter and the principle of the separation of civil and religious authority is among the most important characterisations of a liberal democracy. Their primary concern and responsibility should be for the well-being of all the individuals within society and the good governance of all citizens in a way which is reasonable, just and beneficial for society as a whole, recognising that this often involves hard choices and imperfect answers.
This article is an excerpt from ‘For Worse, For Better: Re-marriage After Legal Separation’, published by the Today Public Policy Institute, June 2009
Any comments?
If you wish your comments to be published in our Letters pages please click button below. Please write a contact number and a postal address where you may be contacted.
Download front page in pdf file format
All the interviews from Reporter on MaltaToday's YouTube channel.
In an elegant and well-written article in Malta Today in June 2008 setting out the Church’s position on aspects of divorce, Archbishop Cremona quoted from Pope Benedict XVI’s Encyclical, Deus Caritas Est, of 25 December 2005. 
