2.         This case hinges on whether, under c. 1095, 3° , a person with a homosexual tendency can validly consent to marriage. The main jurisprudential principles governing the question are well established and will be briefly recalled. In recent years, however, radical changes have marked many secular appreciations of homosexuality, perhaps especially within the field of psychiatry and psychology; and these changes certainly merit consideration, also so as to weigh their possible effect on canonical jurisprudence.

I. The Facts

1.         John D., an architect, and Jane A., met in 1958. Soon after John proposed to her, and they became engaged in March 1959. The marriage, which took place in October 1961, in - Malta, followed a fairly normal course for three years, during which time a daughter was born. Later on, in 1967 and 1970, two adulterous children were born of Jane's repeated infidelity; John however forgave her, adopting the children. Finally, at the end of twenty years, she left John and went to Rome where she contracted a civil marriage with here last lover.

I. The Facts

1.         Towards the start of 1977 Gregory and Danuta met and immediately fell in love. After some months they contracted civil marriage. The religious ceremony took place on March 26, 1978. No children issued from their married life, which went well for a year. Then Danita was brought to trial before the civil authorities and given a jail sentence. In April 1979 the spouses separated. After obtaining a civil divorce, Gregory married another woman civilly in 1983.

It is trite to say that the christian - and also the canonical - perception of marriage, especially since the Second Vatican Council, has become more and more "personalistic". Personalism itself needs to be properly understood. It is not to be confused with subjectivism or individualism, which convey the false suggestion that the individual person can find human fufillment in relating just to himself and making himself the centre of his concerns and ambitions. In order to preclude this possible confusion, some wisely insist that personalism necessarily involves interpersonalism. Interpersonalism in fact stresses more directly the capacity and need for self-transcendence in the individual; and insists on man's "social dimension" as a vital aspect to his personalistic fulfillment. Pointing this out, Karol Wojtyla notes that marriage is the first expression of this "social dimension", enriched also by the "new duties and demands" which the married commitment calls for (Person & Community: Selected Essays, 1993, 248). The commitment of marriage is personalist also because it is essentially interpersonalist.

I. The Facts

1.         Daria and Max first met in June 1979. They were soon engaged and began having sexual relations. They married in Jan. 1980 in "X-burg", NY. During the first years of their married life, the couple took part together in Bible-study meetings, first with a Protestant fundamentalist sect, and later with a Catholic charismatic group. Their married life, with the birth of five children (the last in 1988) lasted almost ten years, not certainly without difficulties due to the character and behavior of both man and woman. In December 1989, Daria initiated the separation, followed by a civil divorce in Nov. 1990. In Jan. 1991 she presented a petition to the Tribunal of Davenport, alleging the nullity of the marriage on account of "serious problems preventing rational judgments concerning matrimonial rights and duties (c. 1095, 1 and 2)", and of "psychological problems rendering [both parties] incapable of assuming the essential obligations of marriage (c. 1095, 3)".

8.         On the juridic effect of a psychic anomaly: Enormously increased investigation in this century into the concept of "mental health", has led to acceptance of the fact that psychic infirmities are much more frequent than was formerly acknowledged. It has been established not only that such pathologies exist in varying degrees, but that many psychic disorders affect a person just in some areas of his or her life, while leaving intact his or her capacity to act normally in other areas. In the field of civil law and secular courts, these findings have opened up new debates about the proper legal understanding of personal responsibility or accountability, and about the validity of certain acts.

Use of proper terminology. The years 1968-1983 witnessed the revision of the old Code of Canon Law, so as to bring the law of the Church more in line with the ecclesial spirit of the Second Vatican Council. It was a period when many new ideas, being proposed and debated in doctrine or jurisprudence, were considered in depth by the Pontifical Commisssion charged with the revision. Concepts, phrases and formulae were weighed and sifted; many were passed over or rejected; others were molded and developed until they reached a final configuration in which they were approved and incorporated into the new Code.

[English version: Studia canonica 32 (1998), pp. 243-252]

I. The Facts

1.         Martha, a school teacher, was 32 years old when she met John, a business man four years her senior, as she was returning from church. John told her that he had been observing her for some time, and soon proposed marriage. The parties were engaged in May 1983. The engagement was very normal and peaceful, being spent almost always in the house of Martha, with whose family John got on very well. He was considered by all to be an ideal match; yet immediately after the wedding, in September 1983, Martha states that she observed a radical change in the man's personality. She claims that already on the honeymoon he became rude, a liar, having no care for her, and even cruel and violent. Their life together, from which no children were born, went on for three years. Finally in 1986 she returned definitively to her family.

II. The Law

2.         Discretion and prudence. Both first and second judgements in the case before us work from approximately the same concept of the nature of the discretion of judgment needed for valid matrimonial consent. They expound ideas which, despite broad references (made without specific quotations) to certain pre-Code rotal sentences, are not accepted in established jurisprudence. Both courts invoke a doctoral thesis (Walden University, 1981) which purports to relate canonical discretion with the virtue of prudence as analysed by St. Thomas. Among the elements of discretion one would therefore include: Memoria ["Has the person had enough time and experience of past events to know how things work out?"]; Docilitas ["Has the person been receptive to the advice of older, more experienced people, seeking their knowlege frequently, respectfully and humbly?"]; Solertia ["Has the person shown a skill in making a quick assessment of a situation, shrewdly figuring out what would be best to do?"]; Providentia ["Does the person have the capacity to look ahead, to foresee how his action will affect his future, to act in such a way as to attain a future goal?"], etc. It is from this basis that the second instance judges seek to resolve the question before them: "what can be said about the Petitioner's decision to consent to marriage? Was the decision made prudently with insight and foresight? Was it truly an actus humanus or was it rather an actus hominis?" (Acts, 189-191).

[English version: Studia canonica 32 (1998), pp. 239-243]

I. The Facts

1.         Five years after their first meeting, followed by an acquaintance and engagement marked by a very harmonious relationship, the parties in this case married in April 1975. She was then nineteen years old, he a year older. Despite the absence of children due to medical difficulties on her part, their married life for at least ten years was serene and happy. Then he got involved with another women, and after two years (i.e. in 1987) left his wife. This was an immense blow to her; in her sorrow she did everything possible to bring about a reconciliation; but to no effect.