« Catholic inter-religious Marriage in a Moslem Country »
by: Al. Andang L. Binawan
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A. Preliminary Notes
The 1983 Code of Canon Law can be understood as an opus magnum of the Catholic Church in the last century. Seen from an overall perspective, there are many areas of improvements. One of them is that the 1983 Code is more like a guidance rather than ‘border-lines’. It s allows greater freedom and gives relative autonomy to live and express faith in the local situations. Such progress is a consequence of the spirit of the Vatican Council II, especially its ecclesiology, which is ‘translated’ into canonical language.
But then, how far is the Conciliar spirit successfully translated in the canons of the 1983 Code? To answer this question we will examine some canons on inter-religious marriage (disparitas cultus), especially with Moslems. The examination will be based on the experiences in Indonesia, which is well-known as a country with the largest number of Moslems in the world. It is assumed that the canons concerning inter-religious marriage should reflect the Conciliar spirit, especially those of Nostra Aetate and Dignitatis Humanae.
In Indonesia, the Catholic community is just a tiny minority with about 2,8 percent of the population, while Islam is about 87 percent. The other recognized religions are Protestantism (about 6 percent), Buddhism (0,8 percent), Hinduism (1,7 percent), Confucianism (0,5 percent), and others (1,2 percent). However, it is only in the eastern part of Indonesia where the Christians (both Catholics and Protestants) are concentrated. In the western part of Indonesia the percentage of Christian is less than one percent, except in Jakarta, southern part of Java, North Sumatra and West Kalimantan.
Within such a demographic and sociological context, inter-religious marriage is unavoidable. Since about twenty years, the number of inter-religious marriages is steadily increasing. Now, about 57 per cent of Catholic marriages are inter-religious ones. Of this one fifth are marriages with Moslems. These figures do not include inter-religious marriage contracted outside the Catholic Church. With the Islamic revival and its increasing socio-political impact, and with the emergence of Christian evangelical movements more inter-religious marriages seem to take place outside the Catholic Church.
 See Badan Pusat Statistik (Center of Statistics), Indonesian Population: The Result of Indonesian Census 2010, p. 50.
 It is just the average percentage of inter-religious marriages in the seven dioceses in Java.
For a good description about Islam and politics in Indonesia, see Robert Pringle, Understanding Islam in Indonesia: Politics and Diversity, University of Hawaii Press, 2010.
 For a description about Christianity in Indonesia, see Jan Sihar Aritonang and Karel Steenbrink (Eds.), A History of Christianity in Indonesia, Brill Academic Publishers, 2008.
 In the case of Indonesia, many inter-religious marriages were held abroad, given the sensitivity of the issue.
Such a situation raises some intricate questions, both at the practical level and at the theological level. We will start with some highlights on the socio-legal context of Indonesia and present some salient aspects of the Islamic views on marriage. After considering these points, we will describe some questions that arise from the application of some canons, which mostly are ecclesiastical laws, not divine laws. This will be followed by some theological reflections.
B. Socio-legal Context of Indonesia
Besides the above referred short demographical data on Indonesia, some more facts need to be added. First of all, it is obligatory for every citizen to choose one of the six state-recognized religions. His or her choice will be registered by the state and will be indicated in the national identity card. Any civil marriage requires a valid religious marriage according to each religion. Special for Moslems, they have their own registration office, so called KUA (Kantor Urusan Agama, the Office of Religious Affair). The problem arises when the state, as is usually the case, interprets such a rule strictly allowing in effect no space for an inter-religious marriage between a Moslem and a non-Moslem involving two different legal systems of marriage. Moreover, the socio-political influence of Islam in Indonesia is getting stronger, so that an inter-religious-marriage is getting increasingly difficult outside the Islamic law.
 Law no. 23/2006 on Demographic Administration. Such a law is based on the first of the five national principles (Pancasila) of Indonesia which mention that Indonesia is based on the belief in “the One and Only God.”
 Law no. 1/1974 on Marriage, article2 par. 1 that states: “A marriage is valid if it is done according to the law of their own religion and belief.”
 For such an issue, see Adriaan Bedner & Stijn van Huis,Plurality of Marriage Law and Marriage Registration for Muslims in Indonesia: A Plea for Pragmatism, in Utrecht Law Review, Volume 6, Issue 2 (June) 2010, pp. 175-191.
With a resurgent Islam at work, the differences between Islamic and other religions get highlighted. The view on marriage is one of them. There are at least six differences on the view on marriage among the Muslims, compared to Catholics. First, a Moslem (either man or woman) can only marry another Moslem, there is no inter-religious marriage at all. Second, for an unmarried woman, it is her father who will take her place in the wedding ceremony. There is no direct ‘person to person’ marriage. Third, after marriage, a husband is the imam of the family, and a wife should always surrender to her husband. There is almost no gender equality. Fourth, there is a possibility of divorce, and it is relatively easy. Fifth, there is a possibility for a husband to have other wives, and in Indonesia siri (illegal but legitimate) marriage is relatively easy. Sixth, it is an obligation of a Moslem to raise their children as Moslems.
 Though according to Qur’an a Moslem man could marry a Christian ora Jew, based on Law no. 1/1974 article 2 mentioned above, the Office of Religious Affair recognizes only a marriage between two Moslems.
 See A. B. Loebis, S.H. Hukum Perkawinan Islam (Muslim Marriage Law), Dept. P dan K, 1979. See also Kitab Al-Nikah (Book of Marriage), downloaded on June 24, 2016 at 21.40.
C. Cases on Inter-religious Marriage
Though de iure inter-religious marriage, especially with a Moslem is very difficult, de facto inter-religious marriage is still practiced. However, within the sociological context of Indonesia, some questions are arising concerning some canons that are supposed to reflect the Church’s views on religious freedom (as stated in Dignitatis Humanae) and on other religions, especially Islam (as stated in Nostra Aetate).
It is stated in canon 1125 that:
 Though de iure there is almost no space for inter-religious marriage according to Indonesian civil law, there is a small lacuna legis in it, which gives the possibility for some inter-religious couples to do inter-religious marriage. See also Kelly Buchanan, Indonesia: Inter-religious Marriage, The Law Library of Congress, 2010.
The local Ordinary can grant this permission if there is a just and reasonable cause. He is not to grant it unless the following conditions are fulfilled:
1° the catholic party is to declare that he or she is prepared to remove dangers of defecting from the faith, and is to make a sincere promise to do all in his or her power in order that all the children be baptised and brought up in the Catholic Church;
2° the other party is to be informed in good time of these promises to be made by the Catholic party, so that it is certain that he or she is truly aware of the promise and of the obligation of the catholic party.
The above canonical requirements for the Catholic party (to educate and even to baptize the children) are considered unfair, especially for the Moslems. According to Islamic teachings, it is obligatory as well for a Moslem, especially if Moslem party is a man, to raise children as Moslems. Many of the Moslem party sign the ‘promise-document’ of the Catholic party merely for formality. However, if the Moslem party is strongly unwilling to do so, and if the priest who is doing the canonical examination refuses to allow them to marry, they will cancel their plan to marry in the Catholic Church. In many cases they choose to marry according to Islamic law, instead.
 It is commonly practiced in the Catholic Church in Indonesia that the Church provides a form of promise that should be signed by both parties.
In the light of the above, the question is not about the promise of the Catholic party ‘to do all in his or her power’ to educate and to baptize the children in the Catholic Church. Rather it is about the requirement on the part of the Moslem party to know and understand the promise of the Catholic party concerning this issue. Actually, the requirement as stated in the canon 1125 no. 2 is very light. It does not require the Moslem party to agree with the Catholic party. It is only stated that he or she ‘should be informed.’ However, canon 1126 states that:
 See John P. Beal, Marriage (cc. 1055-1165), in John P. Beal, James A. Coriden, Thomas J. Green (eds.), New Commentary of the Code of Canon Law, Paulist Press, 2000, pp. 1345-1347. See also, Rt Rev. Mgr Gerard Sheehy, JCD et al. (eds.), The Canon Law Letter & Spirit, A Practical Guide to the Code of Canon Law, Liturgical Press, 1995, pp. 634-635.
It is for the Episcopal Conference to prescribe the manner in which these declarations and promises, which are always required, are to be made, and to determine how they are to be established in the external forum, and how the non-catholic party is to be informed of them.
In Indonesia, it means that both parties should sign a form mentioning their promises. Furthermore, many priests act as if such a document is a requirement for the validity of marriage.
It is assumed that the Moslem party is a very devout one, which meansob that he or she want to practice the Islamic teachings. In this case, there is yet another problem, namely the prohibition of double religious wedding ceremony. Canon 1127 §3 states that
It is forbidden to have, either before or after the canonical celebration in accordance with §1, another religious celebration of the same marriage for the purpose of giving or renewing matrimonial consent. Likewise, there is not to be a religious celebration in which the catholic assistant and a non-catholic minister, each performing his own rite, ask for the consent of the parties.
Actually the prohibition is only for ‘another religious celebration of the same marriage for the purpose of giving or renewing matrimonial consent.’ It means that another celebration without giving or renewing the consent would be possible! However, in practice it is difficult to distinguish which celebration is with or without giving consent, so that many priests take the easy option which is to prohibit another celebration. This is a real problem in inter-religious relationships.
For a Moslem, especially a devout one, having a religious wedding ceremony is an important need for ‘social and spiritual’ fulfillment. Moreover, if the Moslem party is the bride, the burden would be on her father who has religious obligation to put his daughter’s hand in marriage in an Islamic ceremony. In practice, if the Moslem party is relatively moderate, they will seek the help of an ulemma with the modern view that a Moslem could marry a-non Moslem without obligating the non-Moslem party to convert. However, if the Moslem party is very devout, or family pressure is quite strong, they will do the Islamic wedding ceremony according to state law which obliges the non-Moslem party to convert to Islam, at least formally. Another possible way is that they do the Islamic ceremony first, and then ask for simple convalidation from the Catholic Church.
 Those who follow this relatively new ‘school of thought’ of Islam believe that Qur’an is a culturally-related document, which needs to be interpreted in different contexts, which includes also the fact of plurality of faiths in society. See Charles Kurzman (Ed.), Liberal Islam: A Source Book, Oxford University Press, 1998.
 In Indonesian culture, most marriage are still considered as family matter, not merely personal one.
In inter-religious marriages, there is another set of problems relating to religious education of children, to re-conversion, and to polygamy. Concerning the religious education of children, it could become a problem when the Moslem party, though probably he or she knows the promise of the Catholic party, still tries to bring their children, or some of them, to Islam. As mentioned earlier, the Moslem party has an obligation as well to raise their children in Islam, especially if the Moslem party is the husband because he could claim that he is the imam, or the head of the family. There will be two choices. The first is to do as far as possible to bring all of his or her children to be a Catholic, following canon 1136 which states that,
Parents have the most grave obligation and the primary right to do all in their power to ensure their children’s physical, social, cultural, moral and religious upbringing.
In this case, his or her marriage could be in danger. On the other side, to safeguard the marriage, he or she could choose the second choice by letting the Moslem party to do his or her will. However, he or she could be punished by the Catholic Church, as mentioned in canon 1366 :
Parents, and those taking the place of parents, who hand over their children to be baptised or brought up in a non-catholic religion, are to be punished with a censure or other just penalty.
There are cases of reconversion, which means that before marriage the Moslem party was baptized in a Catholic church, but then re-converts to Islam. In this case, there is no direct canonical implication, but it will become a problem when he or she asks his or her rights as a Moslem in the family.
One of the rights of a Moslem husband is having other wives. Though the requirements of the state (Indonesian civil law on marriage) on polygamy are relatively difficult, there are still many Moslem husbands who practice it. Some others practice it ‘secretly’ under the Islamic law, the so-called nikah siri, which means valid according Islamic law but not registered according to the state law.
D. Reflecting on the Problems
In this section, there will be two kinds of reflections: theological and canonical. The theological reflection will start, once again, with the first assumption that the 1983 Code is a canonical language of Second Vatican Council’s teachings. For the question on inter-religious marriage, particularly important are Dignitatis Humanae and Nostra Aetate. The former is a declaration on religious freedom, while the later is a declaration on the relation of the Church to non-Christian religions.
The strongest message among others of Dignitatis Humanae is that every human being has his or her own dignity based on his or her freedom, especially religious freedom. According to it, no outside agency should force him or her to make choice of religion against his or her conscience. Further, the Council, through Nostra Aetate, acknowledges non-Christian religions, their values, rich history and their spiritual tradition. Islam has a special place, since there are many things in common, except the belief in the divinity of Jesus. After appreciating Islam, the Council urges people to promote social harmony, which includes the family.
If we base ourselves on the above Conciliar documents, the conclusion follows that the Catholic Church should appreciate a Moslem in practicing his or her religion in every aspect of his or her life. How could then the Church restrain a Moslem, from practicing Islamic teachings according to his or her conscience, when it comes to inter-religious marriage?
We need to raise some critical questions on some canons which implicitly restrains a Moslem to practice his or her religion. The most clear one is the Church’s restraint on another religious celebration of the same marriage for the purpose of giving or renewing matrimonial consent as stated in canon 1127§3 and as mentioned earlier. Such a restraint cannot but be viewed as a failure to acknowledge the religious freedom of others. Furthermore, in the case of inter-religious marriage with a Moslem, this restraint means not appreciating Islam as well. Do not all this go against the spirit of Vatican II? Indirect restraint on the Moslem party to educate his or her children in Islamic teachings (canon 1125 no. 2) can be considered to be contrary to, or at least not in line with, the spirit of Dignitatis Humanae and of Nostra Aetate as well.
E. Final Notes
The ancient wisdom lex semper reformanda, including church law, reminds us that laws are instrumental in character. Canon law should help the faithful in practicing the Catholic teachings. To be a real help, it should consider sociological context seriously. Pope Francis, in his post-synodal exhortation Amoris Laetitia, gives us example how to apply laws wisely by considering the concrete context. In the light of the cases we considered, we could conclude that the 1983 Code should be revised in such a way as to become truly context-sensitive.
Law should not be too stringent; otherwise there will be no justice for individuals – summum ius summa iniuria. On the other hand, a law should be strong enough to guarantee common good. In this matter, in some cases the Church choosesthe latter option with a view to maintain the unity of the Church. But that can land the Church in impossible situations which brings no obligation – impossibilium nulla est obligatio. By following the teachings of the Council in full and by providing flexibility in relation to context, a hoped-for revised code will project a more human face of the Church andturn it into a true home to dwell in.
 Actually there are two more example of canons that manifest such shortcomings. Canon 868 § 2 mentions that it is licit to baptize an infant in danger of death even against the will of the parents,. This canon seems provocative in a country where Catholics are just small a minority.Another one is canon 930. It mentions implicitly that the Eucharist should not be celebrated while seated. Such prohibition is a bit strange for Eastern context where it is common for people to pray together in seated-position on floor.
Al. Andang L. Binawan holds a doctoral degree from the Catholic University of Leuven, Belgium, and has a JCL degree from the Catholic University of America, Washington DC. He is a lecturer of canon law, family morality, philosophy of environment and philosophy of human rights at the Driyarkara School of Philosophy, Jakarta, Indonesia. He is also a member of the tribunal of the Archdiocese of Jakarta, Indonesia.