I appreciated the many thoughtful responses to my brainstorming on ways to improve the annulment process. Regarding my first suggestion; stopping the practice of requiring the couple to seek a civil divorce
before filing for a declaration of nullity, a few people suggested that this needed to be in place because of the fear that the church might be sued for alienation of affection.
I actually addressed this issue, briefly, in the original post as I’ve heard this argument before. I’d like to address it in a little more detail now.
I will say that, in all humility, I am neither a canonist nor a civil lawyer, so I appreciate that I am not writing in any authoritative manner, but having been around this issue, and discussed it with bishops, canonists, and attorneys at one point or another, I have some insights that I think might contribute to the conversation.
1. While it is true that some states do still have alienation of affection laws on the books, they are rarely enforced these days. That said, it can still happen (so adulterers beware).
2. That said, the alienation of affection that can occur from one’s spouse taking a lover strikes me as a very different matter than a spouse refusing to sleep with one’s mate because a marriage has been found invalid by a tribunal. Specifically, in this case, the Church is acting like a counselor who says, “Your marriage isn’t healthy.” That doesn’t cause two people to stop sleeping together. It may, but it may not. If the Church were to say that a marriage was invalid, that would not automatically cause the couple to stop sleeping together. As far as I know, a therapist has never been sued for alienation of affection. Why would the Church if, in its consultative capacity, it told a couple that their marriage was invalid. That’s simply a finding of fact, not a command.
3. You might say, “Well, if the Church finds the marriage invalid, then sleeping together would be a sin and that’s where the alienation of affection occurs.” That strikes me as silly. All the Church would have to do to defend itself is show the pre-marital sex rates (or abortion rates, or adultery rates, or divorce rates, or contraception rates, etc, etc, ) for practicing Catholics. The simple fact is that the Church making a statement about something compels… absolutely no one to do anything they don’t already want to do.
4. Finally, the constitutional issues at play in trying to sue the Church for alienation of affection are mind boggling. I really have a hard time, even in this current Church-hostile culture, imagining that such a suit would pass muster.
At the end of the day, using alienation of affection as an excuse for the Church to not do its job of guiding the faithful through their marital difficulties seems unconscionably cowardly to me. Seeking legal counsel is one thing. “Pastoring by Lawyer” is, as the scandal has taught us, quite another.