Who Are the Legalists? What Comes First -- the Faith or the Law?

First things first! 

What is more important -- canon law or the salvation of souls? You don't have to wonder because the very last law in the Code of Canon Law, Canon 1752 in the chapter on procedures for transferring pastors, spells it out clearly. It calls for "having before one's eyes the salvation of souls, which is always the supreme law of the Church."

Here's the definition of "supreme" from Merriam Webster: "highest in rank or authority, highest in degree or quality, ultimate, final." In other words, the FIRST and most important principle of canon law is the salvation of souls. It is, in fact, the first reason and principle of the Church herself, to go forth and baptize all nations in the name of the Father, and of the Son, and of the Holy Spirit. And why baptize them? FOR THEIR SALVATION!
The purpose of Canon Law is to serve and safeguard the faith and to further "the supreme law of the Church," and that is "the salvation of souls!" The faith does not serve the law; the law serves the faith. Those who put the law above the purpose of the law have the cart before the horse. They are the legalists and rigorists who undermine the faith by demanding a pound of flesh according to the law.

Think of Jesus' conversations with the teachers of the law:

Woe to you lawyers also, because you load men with burdens which they cannot bear, and you yourselves touch not the packs with one of your fingers. (Luke 11:46)

Woe to you scribes and Pharisees, hypocrites; because you tithe mint, and anise, and cummin, and have left the weightier things of the law; judgment, and mercy, and faith. These things you ought to have done, and not to leave those undone. (Matt 23:23) 

Blind guides, who strain out a gnat, and swallow a camel. (Matt 23:24)

God's laws in the commandments and the beatitudes outlining our duties to God and our neighbor cannot be abrogated. But the supreme law is the salvation of souls and canon law must serve that purpose above all others.

Jesus healed on the Sabbath which was against the law.

So let's discuss the laws on marriage. 

Because of the unfortunate situation in the Diocese of Arlington, catechism on Sunday at the chapel in Linden was on the SSPX and the validity of the marriages their priests witness. To protect and relieve those couples who may be disturbed by the claim that their marriages by the SSPX are invalid, Fr. Alexander Wiseman gave a clear explanation of the teaching on marriage and validity and its relation to the SSPX priests witnessing marriages.

In order to get things right about any matter, he said, it's essential to put the fundamental issue as the first thing. It's a rule of philosophy and the reason for so much disagreement among philosophers. They disagree because they do not agree about what comes first. Getting the first things right doesn't just apply to philosophy, but also relates to issues of faith and morality. 

Archbishop Lefebvre stressed that his primary obligation was to hand on what he had received, the faith in all its integrity, the unchanging Catholic faith passed on by Jesus and the apostles, because without faith no one can be saved. So it's the faith as taught through Scripture and Sacred Tradition that comes first.

Now let's turn to the SSPX and marriage.

First of all, the engaged couple are the ministers of the sacrament to each other -- not the priest, not the witnesses. Before the Council of Trent in the 16th century, couples often engaged in "clandestine marriages" where the couple married each other without witnesses. Those marriages were valid. Because of the confusion that arose, however, the Council of Trent revised the laws on marriage and required for a validly contracted marriage that there be three witnesses to the couple's vows, one of whom was to be the "pastor" or his delegate. (Twenty-forth session 1563) 

There are exceptions in canon law to the requirement to have the pastor or his delegate present as witnesses:

If one who, in accordance with the law, is competent to assist, cannot be present or be approached without grave inconvenience, those who intend to enter a true marriage can validly and lawfully contract in the presence of witnesses only:

Canon 1116.1.1 in danger of death;

Canon 1116.1.2 apart from danger of death, provided it is prudently foreseen that this state of affairs will continue for a month.

Canon 1116.2 In either case, if another priest or deacon is at hand who can be present, he must be called upon and, together with the witnesses, be present at the celebration of the marriage, without prejudice to the validity of the marriage in the presence of only the witnesses.

Note that in none of the above cases is delegation from the local ordinary required. Fr. Wiseman stated clearly that there is no "supplied jurisdiction" for the SSPX priests to witness marriages. He emphasized rather that the moral and spiritual position of the couple prior to 2017 determined whether the SSPX could intervene. If a couple sincerely believed they could not receive suitable marriage instruction and wished to make their vows according to the traditional form rather than the new rite of marriage promulgated after 1969 they formally asked for an exception for their moral and spiritual good and that of their future family. [N.B. The new form of marriage is radically different from the traditional sacrament as shown in Dan Graham's chapter on the Sacrament of Marriage in Lex Orandi (LO).]

The SSPX then required the couple to sign a paper recognizing that the SSPX were not delegated, but asking them to witness as an extraordinary situation due to the grave moral and spiritual inconvenience. [N.B. LO describes the traditional form of marriage as "more theocentric" and the new form as "relatively anthropocentric." Like the NO Mass which emphasizes the congregation more than the worship of Almighty God, the new form of marriage emphasizes the mutual consent of the couple instead of the vows made before God. The word vow, in fact, does not even appear in the new form.] 

What's the significance of 2017? And how did things change with the SSPX approach to witnessing marriages after that year?

In 2017 the Ecclesia Dei Commission released a letter signed by Cardinal Gerhard Mueller asking the bishops to be generous in delegating faculties to SSPX priests to witness marriages and celebrate TLM nuptial Masses for them. [Text of the document]  A portion of it reads:

Recently, the Holy Father decided....to grant all priests of said Society the faculty to validly administer the Sacrament of Penance to the faithful (Letter Misericordia et misera, n.12) ...  Following the same pastoral outlook which seeks to reassure the conscience of the faithful, despite the objective persistence of the canonical irregularity in which for the time being the Society of St. Pius X finds itself, the Holy Father, following a proposal by the Congregation for the Doctrine of the Faith and the Pontifical Commission Ecclesia Dei, has decided to authorize Local Ordinaries the possibility to grant faculties for the celebration of marriages of faithful who follow the pastoral activity of the Society, according to the following provisions [which are then listed].... Certain that in this way any uneasiness of conscience on the part of the faithful who adhere to the Society of St. Pius X as well as any uncertainty regarding the validity of the sacrament of marriage may be alleviated, and at the same time that the process towards full institutional regularization may be facilitated.

Canon law specifically identifies the physical impossibilities that provide exceptions to the canons on marriage, but discussion of "grave impossibility" has always also in the Church included moral impossibilities. Fr. Z disagrees, but according to Fr. Wiseman, canon law has always included moral and spiritual considerations.

Since 2017, most bishops gave delegation to SSPX priests to witness marriages and offer the nuptial Mass. Since Traditionis Custodes was released, the situation has become confusing and chaotic to say the least. I know one couple who was jumping through hoops with the diocese before they gave up and asked to make their vows and have a traditional nuptial Mass at the chapel. I'm not sure whether the SSPX has returned to the pre-2017 policy. I suspect they have in order to protect the couples who come to them.

Let me make one last point. The Vatican has made no pronouncement that the marriages witnessed by the SSPX prior to the 2017 letter were invalid. I presume they were sending the marriage documents to the diocesan curia even prior to 2017. Watch the comments section. I will ask Father on Sunday what the practice is. 

In the meantime let us all remember legalism is not a virtue when it undermines charity. Jesus cured on the Sabbath and told the man he healed to pick up his mat and go home on the Sabbath. The law is made for the flock. The flock was not made for the law!