Disparity of Worship

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(Disparitas Cultus)

A diriment impediment introduced by theChurch to safeguard thesanctity of the Sacrament of Marriage. To effect this purpose a law wasnecessary that would debarCatholics from contracting marriage withpersons unfit to receive the sacrament. The unfitness consists in

This unfitness, in whole or in part, is to be found in allpersons who are not of theCatholicFaith and worship. Disparity of worship, in a general way, signifies a difference of religion or worship between twopersons. This state of disagreement may be antecedent to, or consequent upon, their marriage. Consequent disparity occurs in the case of twopagans or unbaptizedpersons, one of whom, becoming a convert, isbaptized in theCatholicFaith or validlybaptized in someChristiansect after marriage. The marriage is not affected by this consequent disparity of religion. Another species of consequent diversity of worship which does not militate against the marriage is that of twoCatholics, one of whom after their union apostatizes, or turns infidel,Mohammedan, etc. Antecedent disparity is twofold: considered in its strict and proper sense it is called perfect disparity of worship, or simply disparity of worship, and implies a different relation on the part of the contracting parties in the matter of an essential religious rite, to wit, theSacrament of Baptism. Viewed in a less strict, but still a proper, sense, it is named imperfect disparity of worship or, more commonly, mixed religion (mixta religio), which presupposes an equality as to the reception ofbaptism, but denotes a divergency as to form ofbelief and religious observance. Imperfect disparity, or mixed relgion, does not render void the marriage of aCatholic with abaptized non-Catholic; but it does make it (unlessdispensation intervenes) illicit andsinful. However, such a marriage may be null and void on account of another diriment impediment, e.g.clandestinity.

Disparity of worship, in its strict sense, and as the subject of this article, is that diversity which exists between twopersons, one of whom has, and the other has certainly not, receivedChristian baptism. This disparity exists between abaptizedChristian, whetherCatholic or non-Catholic, and apagan,Mohammedan,Jew, or even acatechumen (believer in theCatholicFaith yet notbaptized). Imperfect disparity of worship, or mixed religion, might more strictly and aptly be named disparity offaith, sincefaith (an internal act), and notbaptism, is the point of difference; perfect disparity of worship, on the contrary, might more aptly and properly be called disparity ofbaptism, for the reason that the external act (baptism), and not the internal assent of the mind (faith), is the fixed point of dissimilarity. Baptism has been chosen as the basis of this diriment impediment for a twofold reason:

Personalfaith, on the contrary, viewed either as the internal assent of the mind or as the outward profession of the internal act, is subject to change and not always easy of demonstration, and hence could not afford a certain and immovable foundation. The primary reason whyCatholics are debarred from intermarriage with unbaptizedpersons is because the latter are not capable of receiving the Sacrament of Matrimony, asbaptism is the door to all the othersacraments. Furthermore, according to the more probable opinion, theCatholic party who, with adispensation, marries an unbaptizedperson, does not receive the sacrament or the concomitantgraces (cf. Sanchez, Bk. II, disp. viii, n. 2;Pirhing, Bk. IV, tit. i, n. 71;Schmalzgrüber, Bk. IV, tit. i, n. 307; Billot, "De Ecclesiæ Sacramentis", pars posterior, 359 sqq.;Hurter, III, 538, n. 598; and Wernz, who examines the reasons for the opposite opinion and answers them, "Jus Decret.", IV, 63 sqq.). TheChurch has not decided this question; hence the opinion of Dominicusde Soto (In IV Sent., art. iii,ad finem),Perrone (II, 306), Rosset, who holds that it is the more probable (De Sacr. Matrimonii, I, 284 sqq.), and Tanquerey (Synopsis Theol. Dogmat., II, 648, n. 31), to wit, that theCatholic does receive the sacrament, is tenable. The marriage, according to both opinions, is certainly sacred (Leo XIII, "Arcanum", 10 Feb., 1880) and indissoluble.

Extent of the impediment

This impediment exists only in instances where the disparity is of such nature that one of the contracting parties is, and the other party is certainly not,baptized. Everybaptizedperson,Protestant as well asCatholic, is subject to this disqualifying and annulling impediment, because Christ gave theChurchjurisdiction over all who belong to it bybaptism. Under the name "Catholic" are here included, besides practicalCatholics, childrenbaptized as infants in theCatholicChurch but never reared or instructed in her teachings,Catholics who have fallen away orapostatized from theCatholicFaith and have joined otherdenominations or turned infidel. Oncebaptized alwaysbaptized, and always subject to thelaws of Christ and Hisinfallible Church, is axiomatic. Disparity of worship embraces and renders null and void (nodispensation having been granted) the marriage

It does not extend to, or make void, the marriage

Seeing that the parties in the second and third classes have beenbaptized, it is evident that their marriages are outside the domain of the diriment impediment, whose aim is to protect the sacrament.

Difficulties as to the marriages ofCatholics with non-Catholics, and of non-Catholics with one another, or withpagans or other unbaptizedpersons have in these days multiplied, due either to absolute omission ofbaptism, or its careless and often invalid administration even among the so-calledChristiandenominations.Doubts about the administration (dubium facti) or valid administration (dubium juris) ofbaptism in thesesects are as a consequence frequent, and render complex the question whether or not disparity of worship covers the marriages in these instances. The safe guide in this confusion is the axiom: adoubtfulbaptism, as regards a marriage already, or about to be celebrated, is presumed to be valid if, after due investigation, thedoubt is still insoluble or it is not prudent (on account of delay, etc.) to remove it. This rule, so different from that governingbaptism as anecessary means forsalvation, is based upon the principle that theright to marry yields but to the evidence (notdoubt) of the non-baptism. Accordingly, disparity of worship invalidates the matrimonial union of one doubtfullybaptized with another certainly notbaptized. Thedoubt may concern the act ofbaptizing or the validity of theceremony. Investigation on these points must proceed in this manner: search must be made of the ritual belonging to the denomination of the party concerning whosebaptism there isdoubt, and if the ritual teaches the necessity ofbaptism, and prescribes the use of the validmatter and form in its administration, and, further, if theparents are strict adherents and observers of their religion, there is acertainty (sufficient for marriage) that thebaptism was valid. If the ritual prescribesbaptism with thenecessarymatter and form, but, upon investigation, a seriousdoubt remains, thebaptism is still considered valid. If, on the contrary, thesect repudiatesbaptism, forbids infant-baptism, or admits tobaptism only adults of thirty years, or theparents assert that they do not belong or wish to belong to anysect or denomination, but are satisfied with pleasing the Supreme Being by a good, moral life rather than by any fixed form of worship, then there is nocertainty, not even a presumption, in favour of thebaptism in childhood. Should theparents be careless and negligent in the observances of thesect of which they are members, or belong to a denomination which, whilst not rejectingbaptism, yet does not admit its necessity, and in which, ordinarily,baptism is not administered, then there is no presumption for or against thebaptism of their offspring, and each individual case must be referred toRome (Congreg. of theInquisition, 1 Aug., 1883).

Disparity of worship does not affect the marriage of aCatholic orbaptized non-Catholic with one whosebaptism, even after careful investigation concerning thebaptismalceremony or its validity, remainsdoubtful. Neither does it in any way influence the marriage of two who, after diligent examination, are still considered doubtfullybaptized. There is a difference of opinion among the jurists andtheologians as to the influence of this diriment impediment upon the marriage of two doubtfullybaptized, if after investigation it turns out for acertainty that one was certainly unbaptized. The more common opinion is that disparity of worship does not nullify this marriage. Gasparri gives as reason that the consuetudinary law never contemplated this case, and hence does not influence it (De Matrimonio, I, nos. 597 and 601). Wernz (IV, 772, note), Gury-Ballerini (II, 831), and others say that the marriage is valid, but give as reason theChurch'sdispensation, either special or general. Lehmkuhl (II, 536) distinguishes and asserts that if adispensation from the prohibitive impediment of "mixed religion" has been granted antecedent to the marriage, the union is valid; his reason, however, that theChurch in dispensing with the prohibitive did not implicitly dispense with the diriment impediment, seems to be at variance with adecree of the Holy Office (29 April, 1840, n. 2) which clearly states that theHoly See dispenses with the impediment of disparity of worship only in express terms. Where nodispensation has been granted, he holds that the marriage is null on account of the existing disparity of worship and must be revalidated. He recognizes, however, as valid the marriage of the doubtfullybaptized, if they had been considered and had considered themnselvesCatholics, and had followedCatholic practices, and afterwards it was discovered that one of them had not beenbaptized (loc. cit. in note).

Origin of the impediment

This impediment, inasmuch as it is diriment, is not enjoined by the natural, Divine, or written ecclesiastical law, but has been introduced by a universal custom and practice in the Eastern andWestern Churches since the twelfth century. The natural and Divinelaws do, however, repudiate and prohibit such marriages as tend to frustrate the primary ends of marriage by exposing believers and their offspring to the loss of theirCatholicfaith, and this prohibition continues in force so long as the danger exists and no proportionately grave cause dictates the necessity of such marriage. TheMosaic Law (Deuteronomy 7:3) prohibits marriage between theIsraelites and theChanaanites, and even theSamaritans (who kept the Law and had the Book of Moses), on account of theheathenish ceremonies they observed, lest theJews might be turned away from the service of thetrue God and cling to the worship of thefalse gods of theirpagan wives. The Pauline injunctions (1 Corinthians 7:39), "… let her marry to whom she will but only in the Lord" and (2 Corinthians 6:14): "… bear not the yoke with [i.e. do not marry] unbelievers", do not, indeed, declare invalid the marriages ofChristians with unbelievers, but certainly do earnestly forbid thefaithful to marry unbelievers unless the ends ofChristian marriage are safeguarded and grave and weighty reasons exist for the union. Certainly in the time ofSt. Paul and immediately afterwards the proportionately small number ofChristians was sufficiently grave cause for permitting such intermarriages with the hope of the conversion of the unbelieving partner.

With the development of theChurch and its growth in numbers, opportunities forChristian marriage increased, proportionately grave reasons for mixed unions (unless in rare cases) ceased, and then the natural and Divinelaws asserted their right to prohibit such marriages as tended to frustrate the ends of the matrimonial sacrament by exposing theCatholic to a weakening or loss offaith, the offspring to a lack ofChristianeducation, and thefamily to a want of thatChristian love which is its verycorner-stone. TheChristian laity, as well asclergy, realized from sad experience and observation the ordinary tendency of mixed unions to a compromise or loss offaith on the part of theCatholic, and the un-Catholic bringing-up or at leastreligious indifference, of the children, and, finally, injury to domestic peace andhappiness by the constant exposure to disputes, and sometimes bitter quarrels, about the fundamental principles ofCatholicFaith, and the consequent weakening, if not total extinction, ofChristian love between husband and wife (St. Ambrose, De Abraham, Bk. I, ch. ix, says: "There can be no unity oflove where there is no unity offaith"). At different periods and in different countries (especiallySpain and Gaul) particular councils inveighed against them, and although these canons were not strictly observed, and there were manymixed marriages in the days of Sts. Jerome (Lib. I in Jovinianum) andAugustine (Lib. de Fide et operibus, ch. xix), yet after the death of the latter, and especially from the seventh to the twelfth century, the detestation of them so increased, and the conviction that they were notChristian marriages, and therefore to be shunned and not contracted, grew so strong and general throughout the entire Church that as far back as the twelfth century it was a universal custom and practice which even had the force of a universal church law (Bellarmine, De Controversiis, III, De Sacramento Matrimonii, Bk. I, ch. xxiii;Benedict XIV, Constit. "Singulari nobis", paragraphs 9 and 10).

This impediment is binding onChristians of newly converted or evenpagan countries, where there has been no such custom inasmuch as there have been noCatholics. The opinion ofLessius and others to the contrary is clearly refuted by the granting of faculties byGregory XIII to theChristian missionaries ofJapan to dispense with this impediment in the cases of newly convertedJapaneseCatholics. Manytheologians and canonists say that there is one exception to this nullifying law, and that is the instance of an emigrantCatholicfamily settled in apagan country without a singleCatholic neighbour, forty or fifty days journey removed from the nearestCatholic, and unable on account of the distance or want of means to leave the country or procure adispensation from the impediment, and thus compelled to remain their whole lives single or marrypagans (Santi-Leitner, IV, 74; Gasparri, De Matrimonio, I, 429). It does not seem that disparity of worship holds in a case of this kind; the ecclesiastical law under such circumstances does not bind a man so as to deprive him of his natural right to marry. Wernz, however (Jus Decret., IV, 775, n. 37), holds the opposite opinion.

Dispensation from the impediment

TheChurch can dispense from this impediment inasmuch as it is ofecclesiastical institution. It never does so unless for gravest reasons and upon the fulfillment of certain conditions and guarantees that safeguard, as far as possible, the ends of the Sacrament of Matrimony. The natural and Divinelaws before permittingmixed marriages, exact the removal of all danger to thefaith of theCatholic and to thebaptism andCatholic bringing-up of all of the children of the marriage. TheChurch cannot dispense with thisnecessary requirement, and, the better to ensure its presence, insists upon certain conditions and promises, which must be committed to writing and signed and, in some instances and countries, also sworn to, by the unbaptized party to the pact. The unbeliever promises faithfully to comply with the requirements of theChurch, and theChurch on her part grants the permission for the marriage. The promises on the part of the unbaptized party are:

TheCatholic petitioner for thedispensation must also give promise (usually also written, in order that the dispenser may have a moralcertainty of the absence of danger to the substantial ends of the sacrament) that he (or she) will strictly attend to his (or her) personal religiousduties and have all the childrenbaptized and properly reared and trained in theCatholic doctrine and practice, and that byprayer and good example and other legitimate and prudent means he (or she) will constantly labour to bring about the conversion to theCatholicFaith of his (or her) unbaptized partner. The promise to strive to effect the conversion of the unbeliever is of special importance, although too frequently lost sight of. The conversion most assuredly eliminates the last vestige of possible perversion of theCatholic party, ensures the primary end of marriage, i.e., the bearing and rearing of children for theChurch andheaven, and rounds out, by the perfect unity of the married couple infaith andChristian love, their marriage according to its great type, the union ofChrist with theChurch. Even with all these promises, written and sworn to as safeguards toChristian marriage, adispensation cannot be licitly given unless a grave necessity proportionate to the great risks to be encountered, justifies the marriage.

Thisdispensation, in former days very rarely granted inCatholic countries, is now of more frequent occurrence, owing to the existence of "civil marriage" and the growing indifference on the part ofparents in the matter of their children'sbaptism. The rule of theChurch was, and is, not to grant adispensation from this impediment unless in provinces or countries where theCatholics are largely outnumbered by the non-baptized inhabitants. Rather than dispense from the disparity of worship, theChurch will more willingly and readily grantdispensation from the diriment impediments of affinity andconsanguinity, precisely for the reason that in the latter cases there is no danger to thefaith of eitherCatholic or offspring, while in the case of the former, even though thenecessary promises are made and kept, there is always danger ofreligious indifference on the part of theCatholic parent, and especially of the children on account of the example of the non-baptized parent. Thepope alonesui jure can dispense with this impediment;bishops cannot. They, however, aredelegated to do so, but in thepope's name and by virtue of the delegated authority. Thus thebishops inpagan countries—China,Japan,Africa, etc.—and in countries where the unbaptized largely outnumber theCatholics, asEngland,United States, etc., have ample faculties in respect of this impediment. Today the only case (and should there be danger in delay it is not: see Formula T, 11 June, 1907) reserved toRome in the faculties granted tobishops of theUnited States is that of aCatholic with anorthodoxJew, i.e. acircumcised follower ofJudaism. The case of aJew uncircumcised, or evencircumcised if he has abandonedJudaism, is not reserved.

This delegated faculty tobishops is given only for a specified period of five years or for a certain number of cases and requires that thebishop in granting adispensation must state that it was conceded by virtue of Apostolic delegation of specified date. Where the impediment is occult, and there is danger in delay,bishops may dispense without express faculty ofRome, which in such cases is presumed to grant it. Allbishops can (decrees of Congreg. of Inquis., 20 Feb., 1888, and 1 March, 1889) dispense, and delegate theparishpriests to dispense, from the impediment of disparity of worship in the case of one who is in danger of death but is only civilly married or lives inconcubinage. The aforesaid promises cannot be omitted. The sick party must promise absolutely to observe the requirements of the natural and Divinelaws and to carry out the injunctions of the ecclesiastical law as far as possible (Collectanea S. C. de Prop. Fide, n. 2188). Bishops cannot dispense in instances where the ends, purposes, and substantialblessings of the sacrament are well protected, unless there also exists a grave and proportionately weighty reason. There are sixteen canonical reasons, some grave and others still more grave (Instruct. S. C. de Prop. Fide, 9 May, 1877). Should thebishop dispense without cause, thedispensation would be null and void. Thepope'sdispensation, in a similar case labouring under the same defect, would be valid. The reason of this difference is that abishop cannot violate thelaw of his superior (in this instance the universal law), whereas thepope, who is supreme legislator, can dispense from universal ecclesiastical laws. He cannot, however, do so validly with the prohibition of the natural and Divinelaws; hence he must have, before conceding thedispensation, a moralcertainty that the practice of the Faith by theCatholic, and theCatholicbaptism and rearing of the children, are amply protected. TheHoly See dispenses from this impediment only for the gravest reasons and only in express terms (Collectanea S. C. de Prop. Fide, n. 948, 2); hence adispensation from mixed religion instead of disparity of worship would not suffice for the validity of the marriage.

All theEuropean Governments (exceptAustria) ignore this impediment. The Austrian impediment is different from theecclesiastical impediment. Its basis is the profession offaith, and not thebaptism of the parties, and so far asCatholicism is concerned, this civil impediment is more injurious than otherwise. According to the Austrian law, the marriage of aCatholic with aJew, or other unbaptized party, is civilly invalid as long as theCatholic remains in theCatholicChurch. Should theCatholic leave theChurch, and announce that he (or she) held nobelief in anyfaith, the marriage with an unbaptized partner would be civilly valid. Unbaptized parties can, on the other hand, enter into civilly valid marriage withbaptizedProtestants. TheChurch in grantingdispensation from disparity of worship, thus permitting the marriage of aCatholic and an unbaptizedperson, by that act dispenses also from all impediments of purelyecclesiastical institution, from which the unbaptized is exempt (exceptclandestinity; cf. "Praxis Curiæ Romanæ"; "Ne Temere", 2 Aug., 1907); theChurch does this in order that the exemption of the unbaptized may, on account of the indissolubility of the marriage, be communicated to theCatholic party (Congreg. of Inquis., 3 March, 1825). Thisdispensation never includesdispensation in any degree in the direct line nor in the first degree of the transverse line (Gasparri, op. cit., nos 700, 701). This impediment, which ispublici juris, can be invoked by anyCatholic to annul a marriage contracted without thenecessarydispensation. The burden ofproof rests upon the challenger, who must clearly demonstrate that there was either no act ofbaptismal administration or that the act of administration which actually took place was certainly invalid. The usual canonicallaws of evidence are supplemented by speciallaws laid down for the demonstration of theceremony or the validity of thebaptism. The customary norm (c. iii, X, De presby. non-bap., III, xliii) in case of practicalCatholics does not govern the cases of non-Catholics or negligentCatholics. The rules prescribed by the Congreg. of theInquisition (1 Aug., 1883, and 5 Feb., 1851) for the verification of the fact or non-fact of thebaptism, as also of the validity of the act, must be strictly followed.

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