An Examination of Archbishop Fernández’s Erroneous Positions on Sexual Morality

His 'erroneous opinions are exactly why he was appointed to the DDF. The last thing Francis wants is a Catholic heading the Holy Office.

From Catholic World Report

By E. Christian Brugger, MA (Oxon), MTh

A 2006 essay demonstrates at least four areas where the Prefect-elect’s commitment to Catholic moral teaching is severely compromised; here is a close analysis of two of those areas.

Argentine prelate Víctor Manuel Fernández, prefect-elect of the Dicastery for the Doctrine of the Faith, should either recant his erroneous positions on sexual morality or resign his post at the DDF. A calm, competent, and clear-eyed analysis of Fernández’s 2006 essay entitled “The Trinitarian Dimension of Morality” shows that this statement is not only entirely warranted but an appropriate expression of concern for the welfare of the Church.

Fernández’s essay demonstrates at least four areas where his commitment to Catholic moral teaching is severely compromised: (i) his rejection of the Church’s prohibition of the use of contraception in marriage; (ii) his disregard for the teachings of Veritatis Splendor and Catholic moral doctrine on intrinsically evil acts and absolute moral norms; (iii) his departure from the traditional understanding of conscience and his shuffling between objective and subjective guilt/imputability in regard to those who choose acts of grave matter; and (iv) his implicit adoption of the condemned moral theory known as proportionalism.

This article engages the first two. The latter two are saved for future essays.

Fernández’s ethical method

Early in his 2006 essay, Fernández introduces “fraternal charity” as the central and determining concept of his wider ethical method. Fraternal charity is nothing more, he says, than “self-transcendence” toward one’s neighbor, which empowers the virtues with a “dynamism of ‘going out of oneself’”; this going-out-of-oneself-in-love is what he thinks constitutes the Trinitarian dimension of morality; and he refers to it as the “central hermeneutical criterion” of ethical decision making (pp. 145, 148). A hermeneutic is something that helps us evaluate or judge something else. Love of neighbor, then, (“fraternal charity”) is the central standard for evaluating and judging ethical questions.

From the perspective of the Gospel, this, of course, can sound reasonable. But it is important to see that Fernández provides no unifying standard, much less a traditional Catholic standard, for determining whether or not an act really is charitable. He even denies that a single standard exists in morality—“there is not a single rationality (racionalidad) in ethics”— arguing that “the hermeneutical criterion of fraternal charity applies differently in one or another of these various [ethical] rationalities” (p. 148). Lacking a consistent standard, however, people tend to rely on intuitions or inspirations of what feels right; but when the intuitions and inspirations of different people conflict, as happens frequently, especially in matters pertaining to sex, this approach leaves them with no way to determine whose are reliable and whose are not.

We see this confusion in Fernández’s treatment of “some questions of sexual morality” that concern how to apply the love-of-neighbor principle to the use of “sexual abstinence” in marriage (p. 150). Fraternal charity, he says, helps us to recognize that a spouse’s “incapacity for sexual abstinence” usually implies a “subjugation of the [other] spouse’s freedom, making one’s own pleasure prevail over the happiness of the other.” Doubtless this is correct. Spousal love requires husbands and wives to be able to abstain from sexual relations when necessary. An overly exhausted young wife and mother whose husband insists on conjugal relations during fertile periods because he can’t control his urges knows quite personally that his urges are taking precedence over her own and the family’s well-being. Lacking self-restraint is not an expression of fraternal charity.

Fernández’s statement on condoms

Fernández then considers a situation where he believes the exercise of sexual abstinence in marriage can contradict fraternal charity. He does not, as we might expect, elaborate a scenario where a spouse refuses to render the marital debt for non-grave reasons—for reasons, say, that are petty, self-centered or vindictive. Rather, he sets forth a scenario where a wife adopts abstinence as a means of upholding the moral law:

We cannot close our eyes, for example, to the difficulty a woman faces when she perceives that family stability is put at risk by subjecting her non-practicing husband to periods of continence. In this case, an inflexible rejection of all use of condoms would make compliance with an external rule take precedence over the grave obligation to care for loving communion and marital stability that charity more directly demands (p. 150).

Her “non-practicing” [no practicante] husband is resolved to use condoms and insists on having sex. Fernández says that under these circumstances a wife’s refusal to engage in condomistic sex could be a violation of a grave obligation. In the terminology of moral theology, a “grave obligation” is one that the moral law requires us to keep under pain of mortal sin. So, the DDF prefect is asserting that it is sometimes mortally sinful for a faithful Catholic spouse, usually a wife, to refuse to use condoms—or cooperate in her husband’s use of them—because such principled rejection would be gravely contrary to married love.

A wider conversation

In the first decades of the 20^th century, there was some disagreement among theologians as to whether a wife could engage in licit cooperation with a spouse who illicitly engaged in withdrawal with ejaculation. All were agreed, however, that to tolerate her husband’s use of condoms was illicit cooperation.

In 1916, the Sacred Penitentiary contributed to the debate. It responded in the affirmative to a question of whether a husband resolved to use condoms should be “equated with a rapist” by his wife and opposed by her with “the resistance which a virgin must offer to an attacker” (see Noonan, Contraception, p. 433).

In 1930, Pope Pius XI settled the question in his great encyclical Casti Connubii, addressing whether it is licit for a woman to permit her husband’s “perversion of the right order”. The English translation on the Vatican website reads:

Holy Church knows well that not infrequently one of the parties is sinned against rather than sinning, when for a grave cause he or she reluctantly (non vult) allows (permittit) the perversion of the right order. In such a case, there is no sin, provided that, mindful of the law of charity, he or she does not neglect to seek to dissuade and to deter the partner from sin. (No. 59).

This translation would appear to permit a wife without sin to allow her spouse to use condoms so long as she is reluctant and makes a good faith effort to “dissuade” him from sinning, which sounds close to the Fernández scenario.

“Reluctantly”, however, is a bad and misleading translation of the Latin “non vult”, which literally means “does not will”. Reluctancy connotes internal struggle, an emotional disinclination to do something that can be overcome for good reasons, such that one ends up willing to do the thing despite one’s reluctance. But this is surely not what the authoritative Latin text means to communicate. The Vatican Italian translation is better: she “permits but does not consent to” (alla quale pure non consente) her husband’s sinful action.

A clearer translation is:

Holy Church knows well that not infrequently one of the parties is sinned against rather than sinning, when for a truly grave reason she permits but does not will—does not consent to—the perversion of the right order. In such a case, there is no sin … (CC, 59, emphasis added).

Casti Connubii says she permits but does not will his “perversion of the right order”. The perversion to which Pius is referring is, of course, the husband’s choice to deliberately frustrate the generative power of a conjugal act. Avoiding these acts is necessary to “preserve the chastity of the nuptial union” (56). Pope Pius affirms (as do Vatican II, Popes Paul VI, John Paul II and Benedict XVI) that sex acts that are not open to the transmission of life do not respect the full truth of marital self-giving, in the words of John Paul II, are a “falsification of the inner truth of conjugal love” (FC 32, see also GS 51, HV 12-14, CCC 2363, 2366, 2369-2370). Morally speaking, they are non-marital acts.

For sex to be marital—meaning for it to be the kind of sex sufficient to “consummate” a marriage—it must be a “conjugal act which is suitable in itself for the procreation of offspring” (CIC, Can. 1061 §1). In the Fernández scenario, the husband’s choice for condomistic sex has ensured that the act is non-consummative and so non-marital.

Disputed question

We might ask whether it is possible for the wife to will marital intercourse despite the fact that her husband wills a condomistic act. Some otherwise sound moralists have thought so. They have argued that in cases where one spouse wishes to engage in intercourse open to new life and the other wishes to engage in a sexual act not open to life, the former can and may engage in sexual intercourse open to life—i.e., in licit marital intercourse—with her spouse despite that spouse’s choice to engage in an act not open to new life (Aertnys, Damen, and Visser, Theologia moralis, ed. 18, vol. 4 [Turin: Marietti, 1969], pp. 266-69).

This conclusion, however, cannot be sustained. Since marital intercourse is a unitary act in which the spouses freely become one-flesh, marital intercourse cannot take place unless both spouses mutually engage in that unitary act. Since the husband’s use of a condom renders that act non-marital, her act cannot be marital intercourse and for that reason cannot be licitly willed.

She may, however, licitly tolerate her husband’s non-marital sexual advance by not resisting it in the hope that her husband will be placated. This puts the wife, who is a true victim, in a very difficult situation. While she may allow her husband to do what he is set on doing, it would be gravely wrong for her willingly to engage in his illicit act—and the offending husband surely wants not just her reluctant toleration but her willing cooperation.

Of course, even if she engages in sexual behavior, it may be that her fear prevents her from giving deliberate consent; and if she did consent, it may be that her confusion about what she could rightly do prevents her from realizing the grave wrongness of consenting. But neither of these considerations can justify advising the wife to cooperate willingly with her husband’s illicit act, much less show that she is morally obliged to do so.

Any husband who places his wife in this compromising situation tempts her to sin. We can apply to husbands Pope Pius’s fearful warning to priests who by “approval or guilty silence” confirm spouses in the sin of contraception: “let him be mindful of the fact that he must render a strict account to God, the Supreme Judge, for the betrayal of his sacred trust” (CC, 57).

A correct interpretation of Casti Connubii

The “truly grave reason” that Casti Connubii, 59, seems to be envisaging, is a situation analogous but not identical to the 1916 Sacred Penitentiary, where the husband stands in the position of an aggressor. Pius moderates the Penitentiary’s conclusion about the resistance the wife is obliged to offer by teaching that so long as she does not consent to her husband’s immorality, she guiltlessly permits his violation. Her welfare is at stake, harm could come to her if she refuses, so she tolerates his behavior but withholds consent. This is not reluctantly engaging in a marital act with one’s spouse, as a wife may do when her husband abruptly wakes her from deep sleep in the middle of the night with his urgent request. This is refusing to participate in—not willing—her husband’s act. That act, his act, is a non-marital sex act. It follows, as I said before, that the wife may not will but only tolerate her husband’s illicit act. If this is what she does, then neither her intended end or means, strictly speaking, will be to have sex with her husband. She intends to defend herself by an act—non-consensual toleration of his sexual aggression—that placates her husband.

This behavior is not conjugal, for it does not realize the good of marital unity. It does not bring about a personal one-flesh union, for it unites the spouses neither as free agents cooperating with each other nor as bodily selves. The husband’s act is no more an act of unitive intercourse than if he perpetrated against his wife an act of anal penetration.

Moreover, if she is justified and even morally obliged to engage in condomistic sex, as Fernández argues, it is not clear why the choice of other kinds of non-marital sexual acts in marriage for the sake of realizing the perceived goods of “loving communion” and “marital stability”, e.g., mutual masturbation, anal sex, other forms of contraception, could not also be justified and even morally obligatory.

The Vademecum for confessors

In 1997, during the pontificate of John Paul II, Cardinal Trujillo, President of the Pontifical Council for the Family, published a pastoral guide for confessors that seems to contradict the teaching of Casti Connubii.  Raising the problem of a spouse who intentionally renders sex non-procreative, the guide says (concerning the innocent spouse), “cooperation [with the spouse’s sin of contraception] can be licit when the three following conditions are jointly met”: first, “when the action of the cooperating spouse is not already illicit in itself; second, “when proportionally grave reasons exist”; and third, “when one is seeking to help the other spouse to desist from such conduct”.

Trujillo overlooks the fact that whereas the wife might be able to cooperate only materially with the sin of contraception, her material cooperation would inevitably be wrongful because she could only tender it by making the intrinsically immoral choice of engaging in non-marital sex.  Said another way, she could choose to have sex with her husband without intending as an end or means his choice precisely as contraceptive; but, as stated above, since consummative marital intercourse is a unitary one-flesh act, it cannot take place unless both spouses engage in it.  Since the husband’s contraceptive choice renders the act un-“suitable in itself for the procreation of offspring” (CIC, Can. 1061), she could not choose to engage in that unitary act without choosing a non-consummative and so non-marital act.

Trujillo was so focused on the issue of material cooperation with contraception that he overlooked the fact that sex under these conditions would be non-marital, and if the wife engaged in it, she would be violating the first condition.  So, strictly speaking, I do not disagree that if the three conditions were met, the cooperation could be licit.  The problem is that the first of those conditions can never be met.  It is important to note, however, that a document signed only by a Cardinal on behalf of a pontifical council has little or no magisterial weight, while Casti Connubii, which the pastoral guide seems to contradict, is an encyclical promulgated with a high degree of ecclesiastical authority.

The Prefect’s errors

Fernández obviously does not follow Casti Connubi’s moral teaching. His scenario does not envisage a wife withholding consent from her husband’s illicit act, but rather freely consenting to condomistic intercourse for the sake of “loving communion” and “marital stability”.

But for a wife who is sinned against in this way to be acting in an objectively upright way, she must either refuse him entirely or only tolerate his imposition of condomistic sex. In the latter case, she would be engaging in an act of self-defense against her husband’s aggression, but such an act cannot realize “loving communion” and “marital stability”. It is one intended to minimize harm inflicted on herself.

The Prefect’s casuistical error seems to be rooted in a more deeply flawed conception of morality. He says the wife who refuses to participate in her husband’s condomistic sex is guilty of “an inflexible rejection” of the use of contraception. But does not Veritatis Splendor and Catholic moral doctrine teach that Christians and all people of good will are called always and everywhere to reject intrinsically evil acts “because the choice of this kind of behavior is in no case compatible with the goodness of the will of the acting person, with his vocation to life with God and to communion with his neighbor” (no. 52, also 78)?

The problem would go away if there were no intrinsically evil acts, which seems to represent Fernández’s conviction. It is hard to reconcile his conclusion concerning a wife’s participation in her husband’s condomistic sex with an affirmation that his sex is intrinsically evil.

He illustrates his moral misconceptions further when he says the wife’s principled rejection of condom use “would make compliance with an external rule take precedence over the grave obligation to care for loving communion and marital stability”. The external rule to which he is referring is the central moral norm articulated in Humanae Vitae 14 prohibiting “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation—whether as an end or as a means.”

We might ask what this norm, according to Fernández, is external to? The prelate replies quite plainly: external to the demands of “loving communion and marital stability”; external to love of neighbor.

By arguing that conformity to the norm against contraception is contrary to neighborly—and so marital—love, Fernández has turned Catholic morality on its head. He has done an end-run around Veritatis Splendor and the entire Catholic moral tradition, by maintaining that classic negative moral norms are binding only within the framework of a conception of neighborly love relativized by his so-called “trinitarian dimension of morality”.

But according to Catholic tradition, all the unchanging norms of the natural law—which includes the central norm taught in Humanae Vitae—are intrinsically related to human good and human flourishing. Veritatis Splendor teaches unambiguously that it is not possible to obey God and thus love God and neighbor, without respecting these precepts (see VS 4, 13).

In particular, the norms of sexual ethics arise precisely from a consideration of what unconditional respect for the goods of marriage require: at a minimum, a firm rejection of all intrinsically evil actions (see VS 90). Moral norms prohibit condomistic sex because it is bad for marriage. A firm adherence to these norms testifies to the intrinsic relationship between moral norms, human goods, and human flourishing, indeed, testifies to what an actual respect for fraternal charity demands.

Conclusion

Fernández’s defense of condom use in marriage cannot be reconciled with Casti Connubii’s treatment of a wife who is “sinned against rather than sinning”. Fernández envisages a scenario where family instability is threatened by a wife’s adherence to the norm prohibiting all intentionally contraceptive acts, an adherence that he wrongheadedly refers to as “compliance with an external rule”, that he caricatures as “inflexible”, and that he believes would violate the requisites of marital charity.

He is wrong on all fronts. A husband who disregards his wife’s grave conscientious moral objections by demanding condomistic sex has already undermined family stability. A wife’s resistance to her husband’s immorality is not “an inflexible rejection” but rather a principled refusal to do evil, a decision made not on the basis of an extrinsically imposed rule, but in reverent conformity to moral truth, a firm commitment to conjugal chastity, and respect for her husband whose sin she refuses to compound through formal cooperation. It also expresses a mother’s love towards her children who would be harmed by their parents’ sin. If, however, the husband forces himself on her against her will, she does no wrong to defend herself by permitting but not willing his evil act. The husband who does this, however, harms his wife and doing so severs marital communion. The idea that by yielding to his unjust demands to engage in condomistic sex she nurtures “loving communion and marital stability” and so realizes the demands of neighborly love is naïve and preposterous.

Fernández’s defense of a wife’s contraceptive cooperation in her husband’s condomistic sex and reliance on a flawed understanding of the mutuality of marital intercourse, together with his not-so-subtle and strategic disregard for the teaching of Veritatis Splendor and Catholic moral doctrine on intrinsically evil acts and absolute moral norms, demonstrates that in the absence of a recantation of his errors, the Cardinal-elect is unfit to serve as the Church’s chief defender of doctrine.