By Michelle Martin
STAFF WRITER

Perhaps the pope is smiling on Michael and Juanita Jordan’s divorce attorneys.

It was just days after Pope John Paul II made a speech urging lawyers to respect the permanence of marriage that the Jordans announced plans to reconcile rather than follow through with divorce proceedings.

But when Chicago-area attorneys first read news reports about the pope’s Jan. 28 address to the Roman Rota, many were stunned by the intimation appearing in the media that Catholic lawyers shouldn’t be involved in divorce cases at all.

“Pope John Paul II said today that civil lawyers who are Roman Catholic must refuse to take divorce cases, and should instead try to help separated couples reconcile,” proclaimed the lead paragraph of the story in the New York Times.

“I was distressed by what the pope had to say,” based on the news reports, said Deacon George Brooks, who ran a successful law practice specializing in divorce before being ordained in 1991. “There’s a legitimate role for the Catholic lawyer to play, in trying to reduce antagonism and bitterness, and avoid having the children suffer.”

Canon lawyers who reviewed the speech—an annual address to those who work at the Rota, the Vatican tribunal that handles annulment
appeals—agreed with Brooks’ sense that Catholic lawyers should stay
involved.

Original reports sensationalized and misrepresented the pope’s comments by taking them out of context, they said.

“It’s not so much that they quoted the pope incorrectly as incompletely,” said Father Daniel Smilanic, the adjutant judicial vicar in the Archdiocese of Chicago’s Marriage Tribunal.

The speech gives the broader message that the permanence of marriage should not be taken lightly, a clear danger in a culture that has seen the recent release of a book on “The Starter Marriage and the Future of Matrimony.”

John Paul II reminded the Rota, which has been characterized as the church’s Supreme Court principally for annulments, that the dissolution of marriages causes social harm as well as private tragedy, that marriage as a permanent state is ordained in natural law as well as church law and that Catholics cannot give in to a “divorce mentality” that sees marriage bonds as temporary or breakable.

“Marriage is indissoluble,” the pope said. “This properly expresses a dimension of its objective being, it is not mere subjective fact. Consequently, the good of indissolubility is the good of marriage itself.”

“The pope and the church generally have been concerned that the people would take the permanence of marriage lightly,” said Father Robert Kealy, judicial vicar for the Court of Appeals for the Chicago Province and pastor of Ss. Faith, Hope and Charity Parish in Winnetka. “I think that was something he was trying to address. There’s a principle in the code of canon law that marriage presumes the favor of law.”

That presumption holds even in annulment cases, where the parties are asking the church to determine that the marriage was null from the start, Kealy said.

The pope’s paragraph about lawyers came at the end of the second-to-last section of the four-page address. It follows a paragraph that acknowledges judges can’t refuse to hear divorce cases but urges them to encourage reconciliation.

According to a translation of the original Italian released by the Holy See Feb. 6, the sentences that caused the stir say: “Lawyers, as independent professionals, should always decline the use of their profession for an end that is contrary to justice, as is divorce. They can only cooperate in this kind of activity when, in the intention of the client, it is not directed to the break-up of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process in the established legal order (cf. Catechism of the Catholic Church, n. 2383). In this way, with their work of assisting and reconciling persons who are going through a marital crises, lawyers truly serve the rights of the person and avoid becoming mere technicians at the service of any interest whatever.”

“I would say that rather than discouraging responsible Catholics from going into the practice of family law, it encourages more of them to do so,” Smilanic said. “This is where you need principled professionals who are skilled enough as attorneys and principled enough as Catholics to determine when they are acting justly or unjustly.”

Brooks agreed, saying, “Rather than prohibiting or discouraging Catholic lawyers from being involved in divorce cases, I feel the pope has made a subtle call to Catholic lawyers to be involved in divorce cases, but when it comes to our faith ‘don’t leave home or go to work without it.’”

Gemma Allen, a Chicago divorce attorney and a Catholic, said that once she got beyond the headlines of the news reports, she found signs that the pope was not saying that Catholic lawyers should never take divorce cases.

“The take away I had on it was that Catholic lawyers should not be divorce advocates” pushing their clients to end marriages that might be in crisis, Allen said. “No good lawyer should be advocating divorce.”

Allen is one of the founders of a think tank on marriage and divorce that has pushed for legislation for the state to mandate premarital education in hopes of curbing the divorce rate. Many members are psychiatrists, psychologists and other therapists—professionals to whom Allen refers clients that are willing to consider reconciliation.

“A good lawyer does not advocate divorce, a good lawyer does not advocate the “War of the Roses,’” she said, referring to the 1989 movie about a husband and wife who literally destroy each other as each tries to get the upper hand in their divorce proceedings. “A good lawyer works as a counselor-at-law, as well.”

But without advocating divorce, lawyers must be ready to represent the legitimate interests of their clients, according to Allen and Brooks.

“It’s a personal moral obligation to first explore reconciliation,” Brooks said. “But there are two parties. The other spouse may have totally made up their mind about this. The other spouse may have a girlfriend. There may be abuse or abuse of children involved.”

Smilanic noted that according to the Catechism, if divorce “remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.” However, a civil divorce does not break the sacramental marriage bond, so divorced spouses are not free to marry again without an annulment.

The pope’s audience of church lawyers would have understood all that, and understood the distinctions the pope was making.

“This is a very technical document, addressed to a very learned group of canon lawyers,” Smilanic said. “This was not a homily at St. Peter’s.”

Adding to the furor was the Italian media’s emotional reaction, fearing that the church was trying to intervene in the affairs of the state. In the United States, Smilanic said, the pope’s comments were more likely to be seen as addressed to individual lawyers, not the legal system as a whole.

“An American lawyer would hear this in terms of his personal conscience: Am I doing right or wrong?” Smilanic said. He is, he said, convinced that most lawyers already ask themselves that question.