THE C q + h o l i e , CrvSctcfe. CJh TI b K a ^ d c j f O c c - T O i u i _ ftbhC. 8 4 W CATHOLIC CRUSADE FOR C H R I S T I A N DEMOCRACY P a s t o r a l Letter I s s u e d b y the American Bishops FRANCIS J. CONNELL, C.SS.R. P O W E R S O F THE CHURCH AND STATE O V E R M A R R I A G E W i t h Reference to the Question of S o c i a l D i s e a s e L e g i s l a t i o n $1.00 a year 53 Park Place Issued Fortnightly The America Press 5c a copy New York For Adult Education There is no better way to instruct adults in matters of faith than to tie down doctrinal truths to present- day occurrences. A M E R I C A does this every week in a live, up-to- date, authoritative way. W h y not interest your study clubs in subscribing to A M E R I C A ? "To our people we recommend A M E R - I C A . While it is an intellectual weekly review, the subjects discussed and the method of presentation are within the reach of the adolescent in high school. W e feel that A M E R I C A has a special work to achieve in the building of true appreciation of culture in the hearts of American Catholics, and in the mould- ing of sound thought and sturdy Chris- tian principles."—Sunday Visitor. $4.00 Yearly 4.50 Canada 5.00 Foreign Write in for Special Club Offer • T H E A M E R I C A P R E S S 53 Park Place New York, N. Y. T H E CATHOLIC M I N D , January 22, 1939. Volume XXXVII, No. 866. Published semi-monthly by The America Press, 53 Park Place, New York. Subscription postpaid, United States, 5 cents a copy; yearly, $1.00; foreign. $1.25. Entered as second-class matter, October 22. 1914, at the Post Office at New York, N . Y.. under the Act of March 4. 1879, Acceptance for mailing at special rates of postage provided for in Section 1103. Act of October 3, 1917, authorized on June 29, 1913. Trade-mark "Catholic Mind." Reg. Ü. S. Pat. Off. Seagfdfef THE CATHOLIC MIND Catholic Crusade for Christian Democracy Text of the Pastoral Letter issued to all Catholics in the United States in the name of all the Bishops of the country calling for a "Catholic Crusade" for Christian democracy issued in November. The letter was signed in his own name and in the name of the Bishops present at the annual meeting of the Archbishops and Bishops of the United States held at the Catholic University of America, October 12, 13 and H, 1938, by His Eminence, Dennis Cardinal Dougherty, Archbishop of Philadelphia. Reprinted from Catholic Action. TO the Priests and Faithful of the United States: On the occasion of the Golden Jubilee Year of The Catholic University of America, His Holiness, Pope Pius XI, has addressed a Pontifical Letter of grave import to Church and Nation. The Holy Father, alarmed by the revolutionary conditions prevailing in most countries, charges us in a special manner to prepare for what may be a turn- ing point in the history of the world. We must face the fact that the dangers of which His Holiness speaks threaten our own democratic institutions. The Pope emphatically calls upon us "to assume still greater and more momentous responsibilities than in the past." VOL. XXXVII JANUARY 22, 1939 No. 866 509 5 1 0 CATHOLIC CRUSADE When fifty years ago the Bishops of America, with great foresight and courage, besought Pope Leo XIII to establish a Catholic University with a Pontifical Charter at the Capital of the Nation, they proposed to make it a citadel of truth and Christian culture, where inquiring minds could confidently move truthward and expose error, however subtle or insidious. The history of the Catholic University during a half century records the efforts and sacrifices of Bishops, rectors, professors, priests, and religious communities, and the noble generosity of an appreciative laity. If the Catholic world looks with approval upon our school system as the most extensive and best organized to be found anywhere, a large measure of credit is due the Catholic University. This organization has not been effected without laying a heavy financial bur- den upon the shoulders of the laity. The sacrifices of the founders, promoters, and teachers of our grammar schools, high schools, and colleges in our respective dioceses can never be adequately described. But the contribution made by the University to this school sys- tem is not widely known outside educational circles. We, however, who are familiar with the University, realize how effective have been its inspiration and work in building up Catholic education in the dioceses of our country. Concerned as we naturally are with the educational needs of our own dioceses, the Catholic University may seem remote and, consequently, its influence on dioc- esan education may be underestimated, even over- looked. We must regard it, however, as an element essential to the completion of our educational system, and one which requires our unfailing and generous support. The Catholic University must be sustained by unanimous Catholic public opinion in order to as- sume its rightful supremacy in the field of Catholic education. We must not think of the Catholic University as an 511 CATHOLIC CRUSADE isolated unit. Its progress will benefit all of us. Under its guidance our diocesan institutions can go forward, strengthened by Christian principles and standards and assured of timely warning against the dangers of secularism in education. The work of the University proper during fifty years has progressed as steadily as its resources per- mitted. These resources, in comparison with those of other universities and in consideration of the vast pos- sibilities in the field of higher Catholic education, have been sadly inadequate despite the generous gifts of many Catholics and the annual University Collection taken up by order of the Holy See. The process of establishing a great center of learning and culture in our day and in our country is a slow one—too slow, indeed, in view of the pressing need of such an educa- tional center. Let us, therefore, frankly acknowledge that after fifty years we are still building a Catholic University. It is, then, with a sense of our grave pastoral re- sponsibility that we beg all our people to be mindful of the urgent needs of the Catholic University and to heed the plea of our Holy Father to make the Jubilee Year an occasion not only of retrospect and commemoration but also and chiefly of prospect and dedication. In that prospect and dedication we, the shepherds of souls, cannot but realize our need in these crucial days of outstanding leaders among the clergy and laity. Our seminaries and colleges are doing excellent work in laying solid foundations for this leadership. It is upon these foundations that the Catholic University, through graduate studies, would build with living stones the city of truth and Christian culture. Signal success has been achieved by Catholic universities in countries small in extent and meager in resources. Shall we, blessed in a vast country with more abun- dant resources and freedom to hearten us, do less for our University? 5 1 2 CATHOLIC CRUSADE The Holy Father in his Jubilee Letter lays special emphasis upon the sublime mission of the University in guarding the social heritage of man in the natural and supernatural order. Pope Pius XI knows better than any other living person how that heritage is endangered today. "The world has entered," he says, "upon one of those periods of unrest, of questioning, of disorientation, and of conflict which have been well described as turning points of history. Christian doctrine and Christian morality are under attack from several quarters; dan- gerous theories which a few years ago were but whis- pered in the secret conventicles of discontent are to- day preached from the housetops, and are even find- ing their way into action; private immorality and public subversion have in many places raised the ban- ner of revolt against the Cross of Christ." We Bishops, shepherds of souls, whose duty it is to guard the sheep of Christ and to seek other sheep not of His fold, are seriously alarmed by the spread of subversive teaching and by the audacity of subversive action in our country. We are witnesses today of proclamations and programs which, if translated into action, would destroy all that is just and ennobling in liberty-loving America. When, therefore, Pope Pius XI says that the Catholic University "must, be- cause of the exigencies of the present age, give spe- cial attention to the sciences of civics, sociology, and economics," His Holiness calls us to the defense of our democratic government, framed in a Constitution that safeguards the inalienable rights of man. The Pope explicitly instructs the Catholic University to "evolve a constructive program of social action, fitted in its details to local needs, which will command the admiration and acceptance of all right-thinking men." This charge solemnly approves the American Hier- archy's traditional position of unswerving allegiance to our free American institutions. 513 CATHOLIC CRUSADE To carry out the injunction of the Holy Father it is necessary that our people, from childhood to mature age, be ever better instructed in the true nature of Christian democracy. A precise definition must be given to them both of democracy in the light of Cath- olic truth and tradition and of the rights and duties of citizens in a representative republic such as our own. They must be held to the conviction that love of country is a virtue and that disloyalty is a sin. To foster this Christian concept of citizenship, the Bishops in their annual meeting have charged The Catholic University of America to compile at once a more comprehensive series of graded texts for all edu- cational levels. On the foundation of religious train- ing, which is the distinctive characteristic of our schools, these texts will build an enlightened, consci- entious American citizenship. We, therefore, entreat all the Faithful of every walk in life to unite in this Catholic crusade for bet- ter citizenship, which will bring to every individual wider opportunities for sound social education. Through its own proper agencies, the Catholic Uni- versity will put before the people its financial plea, which we earnestly endorse. We trust that all will re- spond generously to the appeal of the Holy Father and thus enable our University to render to our coun- try the priceless service of a more enlightened and vigorous Catholic citizenship. During the Jubilee Year we entreat all committed to our pastoral care to join with us in making it pos- sible for the Catholic University to render a greater measure of service to education and to religion. We ask for the University from all the children of our schools, from the communities of our Sisterhoods and Brotherhoods, and from the Faithful the gift of a daily prayer, and from our priests a daily memento in Holy Mass. May the Divine Teacher deign to make our Cath- 5 1 4 MAY T H E STATE FOEBID M A E E I A G E ? olic center of learning at Washington a providential exponent of the principles of a Christian social order which will command the acceptance of all right- thinking American citizens. In his own name and in the name of the Bishops present at the Annual Meeting at Washington, 1938. •K D E N N I S CAEDINAL DOUGHEETY, Archbishop of Philadelphia. M a y the State Forbid Marriage Because of a Social Disease? FEANCIS J . CONNELL, C . S S . R . Reprinted from The Ecclesiastical Review, December, 19S8. AN extensive campaign against venereal diseases is being conducted in the United States today, with the active cooperation of both State and Federal gov- ernments. Undoubtedly, a movement of this nature is urgently demanded, for the ravages of social diseases are indeed harrowing and their victims throughout our land are numbered by the millions. It is stated that one out of every ten persons in the United States contracts syphilis at some time in his life.1 Surely, then, out of love for country as well as out of Chris- tian charity all Catholics should cooperate in every lawful manner toward exterminating, or at least di- minishing, these dire ailments. One of the methods employed in this campaign is "eugenic legislation"—the passing of laws which for- bid persons to marry as long as they are suffering from a venereal disease. More than half the states of 1 Time, October 31, 1938, p . 37. 515 MAY T H E STATE FOEBID M A E E I A G E ? the Union have already passed such laws. Some of these laws merely forbid the marriage of a diseased person; others declare the marriage of such a one null and void, at least when he has not informed the other party of his condition.2 The usual procedure of this eugenic legislation is to oblige those intending to be married to secure a certificate from a physician, at- testing that they are free from venereal diseases, be- fore they will be granted a marriage license. The li- cense is good for only a limited period; if not used be- fore the expiration of that time it becomes ineffective, and if the person wishes to marry he must procure a new certificate and a new license. However, no one is permanently barred from marriage on account of the presence of a social disease; if he takes treatment and is declared cured, the disability ceases and a license is granted. This type of eugenic legislation has won high praise, especially from persons interested in social welfare. Among those who have voiced their com- mendation have been some prominent Catholics, in- cluding members of the clergy. In view of this fact, and also because priests are not infrequently asked to give their opinion on such legislation—and perhaps at times even to promote it by their influence—it seems opportune to discuss at some length the question of the state's power to forbid marriage to persons af- flicted with a communicable venereal disease. The first and most basic principle pertinent to tne subject is this: Only the Catholic Church possesses the authority to establish impediments, whether diriment or merely prohibitive, for the marriages of baptized persons. That the Church is empowered to constitute diriment matrimonial impediments is an article of faith, solemnly defined by the Council of Trent. 3 The definition mentions only diriment impediments, be- 2 Alford, Jus Matrimoniale Comparatum, p . 148 seq. s Denzinger, Enchiridion, n. 974. 5 1 6 MAY T H E STATE FOEBID M A E E I A G E ? cause the Church's power to establish these was es- pecially impugned by the Reformers. That ecclesi- astical authority is competent to constitute merely pro- hibitive impediments also is implied in this same defi- nition inasmuch as the greater power of invalidating contains the lesser power of merely forbidding. More- over, from the early centuries the Church has been accustomed to establish and to enforce impediments, both diriment and merely prohibitive, regarding this as an application of the binding and loosing power imparted by Christ to the Apostles and to their suc- cessors in the government of the Faithful. 4 The Church's authority in this matter extends to all bap- tized persons, whether Catholic or non-Catholic. How- ever, in practice the Church does not bind non-Catho- lics by certain of the impediments—disparity of cult, for example. That the Church alone, to the exclusion of every civil authority, can constitute matrimonial impedi- ments for baptized persons, while probably not an article of faith, is so certain a doctrine that it would be rash to deny or doubt it.8 A few eighteenth-cen- tury theologians, such as Tournely 6 and Billuart,7 held that the civil power as well as the Church can es- tablish impediments for the baptized; but this view is no longer tenable in the light of numerous Papal pronouncements.8 The Code is quite explicit on this point: "It belongs only to the supreme authority of the Church to declare authentically when the divine law impedes or invalidates matrimony. To the same supreme authority it belongs exclusively to constitute other diriment or prohibitive matrimonial impediments 4 Matthew, xvi, 19. 5 Cf. Wernz-Vidal, Jus Matrimoniale, n . 4 8 ; Gasparri, De Matrimonio n 238. 6 De Matrimonio, Q. 7, a. 2. 7 Diss. 6 a. 2. 8 E. sr. Pius V I in Auctorem Fidei ( D e m l n g e r , n . 1560), Leo X I I I in Encyclical Arcanum (Acta S. Sedis, Vol. 12, p . 882 seq.) and in L e t t e r to Bishop of Verona ( A c t a S. Sedie, Vol. 26. p . 469 s e q . ) , Pius XI in Encycli- cal Catti Connubii (Acta Ap. Sedis, Vol. 22, p . 689 seq.) MAY T H E STATE FORBID MARRIAGE ? 5 1 7 for baptized persons after the manner of a universal or particular law." 9 The doctrine that the Church alone has the power to establish impediments for the marriage of baptized persons is a logical deduction from indubitable Catho- lic tenets. By the decree of Christ Himself the valid marriage of two baptized persons is always a sacra- ment. 1 0 But the Church, and the Church alone pos- sesses the divinely granted authority to legislate con- cerning the administration of the sacraments and to declare authentically what dispositions are required on the part of those who receive them. Nor is any distinction between the sacrament and the contract admissible,1 1 for it is absolutely certain that the con- tract and the sacrament are identical.1 2 The same process of reasoning is not applicable to the marriage of a baptized person with one who is unbaptized, for such a marriage is certainly not a sacrament for the unbaptized party, nor most probably even for the bap- tized party. 1 3 However, every marriage is at least a res sacra, and accordingly the type of marriage in question comes under the jurisdiction of the Church, at least from the part of the baptized person, because the Church has authority to regulate the res sacrae of all who bear the baptismal character. It is to be noted that Pope Leo XIII in his Encyclical Arcanum argued to the Church's authority over the marriages of Christians from the principle that matrimony is in itself a res sacra.1* Now, what authority has the State in the matter of matrimonial impediments? First, the State can most probably establish impediments, both prohibitive and diriment, for the marriages of unbaptized per- e Canon 1038. 10 Denzinger, 1765 ; canon 1012. 11 I t was by m a k i n g such a distinction t h a t Tournely and Biliuart arrived a t t h e conclusion t h a t t h e s t a t e can legislate f o r t h e contract. 12 Cf. Arcanum (Acta S. Se dis. Vol. 12, p. 394) ; Caati Connubii (Acta Ap. Sedia, Vol. 22, p . 554). IS Hervé, Manuale Theologiae Dogmaticae, Vol. IV, n. 441. 14 Acta S. Sedis, Vol. 12, p . 892. 5 1 8 MAY T H E STATE FOEBID M A E E I A G E ? sons. This view, formerly rejected by a number of theologians, is nowadays favored by the majority, and is even supported by decisions of the Roman Congre- gations.1 6 Indeed, according to Gasparri, 1 6 an unbap- tized person contracting marriage with one who is baptized is subject to civil impediments.1 7 Others however, such as De Smet,1 8 hold that complete juris- diction over such a marriage belongs to the Church by reason of the baptism of one of the parties. Secondly, the State may legislate for the merely civil effects of the marriages of baptized persons. This is clearly stated in the Code.1 9 The basis of this principle is the fact that marriage, besides being a sacrament or at least a res sacra, is also a natural institution bearing many important relations to civil society, and as such is subordinate in some measure to civil legislation. By merely civil effects are meant those consequences of the marriage that are separable from the lawfulness and the validity of the marriage itself—that is, those concerned with merely adminis- trative and temporal matters, such as the dowry, the rights of succession of the children to titles and to property, etc.2 0 This power of the State does not ex- tend to any effect inseparably connected with the validity or the lawfulness of the marriage (such as the legitimacy of the children), and a fortiori does not embrace the right to determine the requisites for the validity or the lawfulness of the contract, in the case of baptized persons. As Pope Leo XIII asserted: "It is well to call to mind that the civil power can set diers to war, or segregates those afflicted with a con- tagious disease in order to prevent its spread. Un- up and regulate the civil effects of marriage; but what 15 Herve, op. cit., n . 496. 16 De Matr., n. 256. 17 As is evident, if this view is followed, some difficult problems in t h e practical m i n i s t r y can be i m a g i n e d ; f o r example, when t h e Catholic p a r t y of a m a r r i a g e coming under t h e impediment of disparitas cultus h a s received t h e requisite dispensation f r o m t h e Church, b u t t h e unbaptized p a r t y is bound by a diriment impediment of t h e State. 18 Betrothment and Marriage, n . 438. 16 Canon 1016. 20 De Smet, op. cit., n . 427. 519 MAY T H E STATE FOEBID M A E E I A G E ? proximately concerns marriage itself must be left to the jurisdiction of the Church." 2 1 Thirdly, the State may at times indirectly prevent marriages—even those of baptized persons—when the use of one of its proper civil rights entails as a conse- quence that some persons are rendered incapable, either permanently or temporarily, of marrying or, if already married, of using their conjugal rights. Such an exercise of civil power takes place when the State condemns a criminal to prison for life, or sends sol- derlying this doctrine is the well-known moral prin- ciple that a bad effect may at times be permitted as a concomitant or a consequence of a good effect. In this instance the bad effect is the restriction of the natural right to marry or to use marriage. It is to be noted that the State's reason for employing its power in such a case must be proportionate to the grave in- convenience inflicted on those inhibited. Fourthly, the State may use its legislative and coercive powers regarding what is prescribed or for- bidden by the natural law concerning marriage, in as f a r as violations of this law are detrimental to the welfare of civil society. This power extends to the baptized as well as to the unbaptized. De Smet says: "The State can take cognizance of offenses against public order committed by Christians in their married life, and vindicate the law by the punishment of such crimes as adultery, incest and wife-murder. But it could not do so precisely in relation to the marriage as, for instance, by forbidding or suspending the co- habitation of the parties." 2 2 However, this power of the State over baptized persons is limited to matters prescribed or forbidden by the natural law according to the teachings of the Catholic Church, for, in regard to such persons, "It belongs only to the supreme au- thority of the Church to declare authentically when the divine law impedes or invalidates marriage." 2 3 21 Acta S. Sedis, Vol. 25, p . 460. 22 Op. ct't., n . 427. 23 Canon 1038, § 1. MAY T H E STATE FORBID MARRIAGE ? 520 Now, if we apply these principles to the question at hand it seems to follow with irresistible logic that according to Catholic doctrine the laws of our States forbidding marriage to those afflicted with venereal diseases are encroachments on the Church's divinely granted jurisdiction. If these laws bound only un- baptized persons there would be no complaint from the standpoint of the violation of ecclesiastical rights, al- though even then the legality of such measures from the standpoint of the natural law could be discussed; 2 4 but since they bind both baptized and unbaptized, they must be regarded as transgressions of the order of authority as established by God. This is the teaching of Sabetti-Barrett, S.J.: "Only the Church can estab- lish impediments, whether diriment or prohibitive, for Christian marriage. . . . Leprosy and any other revolt- ing and contagious disease, such as syphilis and epilepsy, are not impediments." 2 6 "All the new laws regarding eugenic marriages passed in our country violate the power of the Church." 2 6 Even more ex- plicit is Damen, C.SS.R., professor of Moral Theology at the University of the Propaganda in Rome: "Q. May the civil authority prescribe a medical examina- tion for those about to be married? A. For baptized persons the civil authority may not prescribe this ex- amination in such wise that if this condition is not fulfilled, marriage is forbidden to them . . . for thus the State would be directly or indirectly establishing an impediment, either diriment or prohibitive, and this the State is entirely incapable of doing." 2 7 But, it could be asked, do not such legislative re- strictions come within the competency of the State by virtue of its authority over the civil effects of mar- riage, since the health of its citizens is surely a vital factor in the well-being of a nation? To this we reply that if the civil authorities concerned themselves with 24 De Smet, op. eit., n . 422-424. 25 Compendium Theologiae Moralis, n . 842, § 6. 26 Id. n . 874, Q. 8. 27 Theologia Moralis, Vol. II, n . 636. 521 MAY T H E STATE FOEBID M A E E I A G E ? the merely natural aspects of the matter—for exam- ple, by instructing, the citizens about the nature and the virulence of social diseases and by providing reme- dies for them—the State would be acting within its proper sphere. But once the State takes legislative or coercive action regarding the supernatural contract of marriage in the case of baptized persons, or deter- mines the conditions required of those who wish to make this contract, the State is exceding the bounds of the merely civil effects of marriage. But could not the State segregate those afflicted with venereal diseases, and thus prevent them from marrying? And if the State can do this, why can it not restrain them from marrying without such segre- gation ? The answer is that, while the State could un- doubtedly segregate diseased persons for a time in order to cure them and to prevent the communication of the disease to others through the use of the same implements, dishes, etc. (if such segregation were reasonably deemed necessary), nevertheless the in- capacity of those thus segregated to marry would be only a consequence of a licit and necessary use of the State's proper authority. And this is entirely differ- ent from the use of legislative measures which directly prohibit marriage itself, just as an operation directly intended to procure abortion is entirely different, un- der the moral aspect, from the necessary excision of a diseased organ which as a consequence brings about the ejection of a living fetus. However, the argument that seems to be most weighty in favor of the State's power to pass eugenic legislation takes its stand on the natural law. It is proposed thus: The State may enforce the natural law governing marriage, as it does when it prohibits polygamous unions or punishes adultery. But it is against the natural law for a person afflicted with a communicable social disease to marry, because the usual consequences of such a union are the infection 5 2 2 MAY T H E STATE FOEBID M A E E I A G E ? of the healthy consort and the procreation of diseased offspring. Consequently, the State may suspend the marriage of diseased persons until their cure is at- tested. Passing over the major of this argument, 2 8 let us concentrate on the minor. Is it against the natural law for one afflicted with a communicable social dis- ease to marry? All Catholic moralists admit that there is a grave violation of the natural law when a diseased person marries one who is healthy and is not aware of the other's condition. And Monsignor Nau states: "A confessor would be obliged to refuse abso- lution to a penitent determined to contract a marriage or to have marital intercourse with the consort under these circumstances." In fact, as the same writer goes on to say, a priest acquiring the knowledge of such a condition as a professional secret and not merely under the sacramental sigillum may reveal it to the innocent party. 2 9 But the claim that it is against the natural law for a diseased person to marry one who knows of the presence of the disease and yet is willing to enter marriage is not upheld by Catholic theologians as a group. On the contrary, we read in standard authors such statements as these: "Leprosy, or any grave ailment of the same nature, even though antecedent (to the marriage) and unperceived does not impede or invalidate the contracting of the mar- riage." 3 0 "When a (social) disease is found out by both parties (of an engaged couple) they are not obliged to marry, although they may do so if they wish—the Church does not forbid them." 8 1 Some theologians do not discuss explicitly the case with which we are concerned, but all treat a parallel 28 As was said above, t h e principle t h a t t h e S t a t e may enforce t h e n a t u r a l law r e g a r d i n g m a r r i a g e in t h e case of baptized persons c a n n o t be accepted without qualifications. However, in t h e p r e s e n t instance we can a b s t r a c t f r o m this question. 29 Marriage Laws of the Code, n . 17. so Wernz-Vidal, op. cit., n . 489. This holds o fortiori if both a r e a w a r e of t h e disease. 81 S a b e t t i - E a r r e t t , op. cit, n . 842, § 6. 523 MAY T H E STATE FOEBID M A E E I A G E ? question—the lawfulness of conjugal intercourse while one of the married parties is suffering from a serious communicable disease. And while some condemn marital relations as unlawful in such circumstances,3 2 others—the majority, it would seem—teach that in- tercourse is permitted (though the healthy party is not bound to grant i t ) , at least when the sin of in- continence is thereby avoided. Thus Sabetti-Barrett: "Although when the healthy party has reason to fear infection from a serious disease, this party is not obliged to give conjugal relations, yet he or she may do so out of conjugal love, and often this would be a noble deed of charity. And even though defective off- spring are conceived, yet it is better to be thus than not to be at all, as Saint Thomas says." 3 3 Father Davis, S.J., says: "If there is syphilis or other venereal disease, the conjugal act is very dangerous to the healthy party, and they must abstain, except in grave danger of incontinence, and after the healthy party has been informed of the condition, or with mutual con- sent." 8 4 Of course, the case of those wishing to be married is not exactly on a par with the case of those already married, for a more serious reason is needed to excuse the acquisition of conjugal rights by a diseased person than to justify the use of rights previously acquired. Nevertheless, according to Catholic principles, there can be justifying causes in the former as well as in the latter case, and especially the benefit accruing from matrimony as a remedium concupiscentiae. All the physical afflictions that can ensue from the marriage of a diseased person, both to the healthy consort and to the offspring, are an immeasurably lesser evil than one mortal sin which the marriage could avert. Even the probability that the marriage might be productive 32 E. sr. Marc, lnstitutiones Morales, II, 2103, regards intercourse as u n - lawful d u r i n g t h e first and second stages of syphilis, n o t d u r i n g t h e t h i r d stage. Cf. F e r r e r e s , Compend. Theol. Mor. II, 1144. ss Op. eit., n . 941. 84 Moral and Pastoral Theology, Vol. I V , p . 251. MAY T H E STATE FORBID MARRIAGE ? 524 of still-born children, deprived of the opportunity of receiving Baptism—a point which would strongly ap- peal to Catholics—does not militate against this prin- ciple. For it is better that these children should be thus than not be at all—better from the standpoint of the honor which their existence gives to God, better from their own standpoint, since the natural beatitude they will enjoy for all eternity in Limbo is a greater good than non-existence. Let it not be thought that I am proposing the mar- riage of a diseased person as something ideal. I should strongly recommend to such a person that he remain single until he is cured. I should certainly insist that he inform the other party of his condition. But if the healthy party is aware of the circumstances and is still willing to enter wedlock, I could not accuse them of violating the natural law, especially if there is danger of sins of incontinence in the event that they remain unmarried. Finally, let us remember that the only authority on earth empowered to declare authentically when the divine law impedes or invalidates marriage is the su- preme authority of the Catholic Church.3 6 Now, in the many pronouncements, so detailed and so explicit, emanating from the Holy See, where has it been de- clared that the natural law forbids the marriage of persons afflicted with social diseases? Of course, in those States in which eugenic laws have already been passed, Catholics must in prudence conform to the statutes. Yet, it is well for all the members of the Church, both priests and laity, to realize that according to Catholic teaching such laws do not bind baptized persons in conscience, but are rather an infringement on the Church's authority and an unwarranted restriction of the natural right to marry. Catholics, especially priests, should be care- ful not to praise these laws; on the contrary, where 35 Canon 1038. 525 MAY T H E STATE FOEBID M A E E I A G E ? they are not yet in existence they should use their in- fluence to prevent their being passed. Our non- Catholic legislators could hardly be expected to ap- preciate the theological arguments which constitute the chief basis of our objection. But other argu- ments can be utilized, such as the danger that eugenic legislation will increase extramarital relations, and thus tend to the lowering of moral standards among our people. Five years ago, Monsignor Nau, writing of eugenic legislation as something proposed, said: "It would be fraught with the greater evil of concu- binage." 3 8 Undoubtedly, this common-sense scholar predicted truly. Only a few days ago I received a letter from a young Redemptorist missionary in Puerto Rico, where the eugenic legislation went into effect on September 1, 1937. He informs me that the number of marriages in the entire island during the year preceding the enforcement was 16,151, while the number during the first year under this legislation was 8,417. And he sums up the situation with the words: "It all adds up to the increase of concubinage." In New York City during the months July-October, 1937, the number of marriage licenses issued was 28,381. During the corresponding months of 1938— just after the eugenic legislation became operative— the number was 17,616. Now, it is true, other causes may have tended to a decrease of marriages; and per- haps too, a number of New Yorkers are going to other states to be married. Furthermore, it is only fair to state that with the passing of the months there is a gradual increase in the proportion of this year's mar- riages to those of last year. Thus, in July the pro- portion was 31 per cent, in August 67 per cent, in Sep- tember 72 per cent and in October 79 per cent. Never- theless, it is an unquestionable fact that many persons have abstained from marriage because of the eugenic legislation; and whilst it would be unjustifiable to 36 Op. cit., II. 19. 5 2 6 MAY T H E STATE FOEBID M A E E I A G E ? make general accusations against the morals of these persons, it also is certainly true that many sins have been committed which would not have been committed had not the new law gone into effect. Another argument against the eugenic law is that its purpose can be frustrated by fraudulent practices. The medical fraternity as a group is honorable; yet it surely will not be too difficult for, one suffering from a venereal disease to find a doctor who will give him a clean bill of health for a sufficient remuneration, just as it was not very hard in the days of Prohibi- tion to find a doctor willing to give a prescription for alcoholic liquor. And thus, just as in the days of Prohibition, so now it is not the rich, but the poor, who will not be able to buy immunity from the law, that will feel its inconveniences. But for Catholics the chief argument against eu- genic legislation should always be the sacred char- acter of matrimony and the consequent exclusive power of the Church to legislate for the marriages of the baptized. In the United States we are so accus- tomed to civil legislation on matrimony that we are liable to forget this all-important Catholic doctrine. True, up to recent times the marriage laws of the States have not imposed any conditions that are very onerous or that infringe very f a r on the Church's rights; and we have accepted the civil statutes with- out complaining. But now we are being confronted with a tendency on the part of our civil legislators to bring within the competency of the State phases of marriage that involve important moral principles and fundamental individual rights. It is imperative there- fore that Catholics be alive to the situation and realize that the civil government is now arrogating to itself a sacred power that Christ wished to be exercised solely by His Church, and that in passing eugenic legislation binding on the baptized the State is going beyond its lawful sphere just as truly as if it legislated 527 M A Y T H E STATE FOEBID M A E E I A G E ? as to who should be admitted and who should not be admitted to Holy Communion. In some European countries today the Church is engaged in a bitter struggle with the civil govern- ment in an effort to retain even the most essential elements of ecclesiastical authority over marriage. And in our country, where the majority of the legis- lators are quite anxious not to infringe on the re- ligious convictions of Catholics, shall we—especially the clergy—be guilty of "bending over backward" by positively encouraging our lawmakers to assume the divinely granted rights of Christ's Church? Will this eugenic legislation lead to a campaign for even more stringent measures to secure a healthy race? There is little reason to doubt it, especially since materialistic philosophy is the basis of this re- cent legislation, and to a materialist it would seem quite logical to argue: "If the State may legislate against the marriage of a diseased person, why may it not take the more effective means to prevent his propagating defective offspring by sterilizing him?" Against this materialistic attitude toward marriage Catholics are warned to be on their guard by our present Holy Father in his glorious Encyclical Casti Connubii: "There are some who, over-solicitous for the cause of eugenics, not only give salutary counsel for more certainly procuring the strength and health of the future child—which indeed is not contrary to right reason—but put eugenics before aims of a higher order, and by public authority wish to prevent from marrying all those who, even though naturally fit for marriage, they consider, according to the norms and conjectures of their investigations, would through hereditary transmission bring forth defective off- spring. . . . Those who act in this way are at fault in losing sight of the fact that the family is more sacred than the State, and that men are begotten not for the earth and for time, but for heaven and eternity. MAY T H E STATE FORBID MARRIAGE ? 528 Although often those individuals are to be dissuaded from entering into matrimony, certainly it is wrong to brand men with the stigma of crime because they contract marriage, on the ground that, despite the fact that they are in every respect capable of matrimony, they will give birth only to defective children, even though they use all care and diligence." FOR PAMPHLET REFERENCE FILES Special Sets No. 5 — S P A I N Catholics Reply to " O p e n Let- f G e n e r a l Franco Rescues N e w t e r " o n S p a i n S p a i n The C h u r c h in Spain, Rich or * Joint Letter of the S p a n i s h P o o r ? Bishops C o m m u n i s m in S p a i n N o Democratic G o v e r n m e n t in ' Encyclical o n S p a i n S p a i n S p a i n in C h a i n s Complete Set, 45c—Includes Postage Single Title—100 for $4.00—Postage Extra No. 6 — T I M E L Y PAMPHLETS * Atheistic C o m m u n i s m C o m m u n i s m in S p a i n * C o m m u n i s m in U . S . 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