Infant Baptisms in Mixed Marriages

Ryan asked of my Friday post about the Reyes case,

How was he able have the child baptized if his wife/ex-wife/estranged wife would not agree to the baptism. I thought the Church would not baptize the children of mixed marriages without the permission of the non-Catholic party.

No. Canon law is actually incredibly clear on this point, since it comes up all too frequently:

Can. 868 §1. For an infant to be baptized licitly:
1/ the parents or at least one of them or the person who legitimately takes their place must consent;
2/ there must be a founded hope that the infant will be brought up in the Catholic religion; if such hope is altogether lacking, the baptism is to be delayed according to the prescripts of particular law after the parents have been advised about the reason.
§2. An infant of Catholic parents or even of non-Catholic parents is baptized licitly in danger of death even against the will of the parents.

So under Canon 868 §1, Mr. Reyes’ consent alone was sufficient, provided that there’s at least some “founded hope” that the kid will be brought up Catholic. There almost certainly would be some hope given that the father had contact with his daughter. But even if there weren’t, this would render the Baptism illicit, not invalid (see my earlier post for this distinction). In other words, it’s still a valid Baptism, it just shouldn’t have taken place. (As an aside, Canon 868 §2 directly addresses the other subject of Friday’s post, the emergency baptism of Edgardo Mortara).

But I’m interested in a related issue, which is whether this fiasco could have been entirely avoided by simply following canon law and the Catechism when it comes to getting married. Technically, the Church distinguishes between “mixed marriages” between Baptized Christians (a Catholic marrying an Orthodox or Protestant) and “disparity in cult,” in which the non-Catholic spouse isn’t even a Baptized Christian. In this case, since Mrs. Reyes is Jewish, it’s a disparity in cult. So yeah, I cheated a bit on this blog’s title. “Infant Baptisms in Disparities of Cult” sounded too eggheaded. The Cathechism explains the requirements for these sorts of marriages pretty clearly in CCC 1635:

In case of disparity of cult an express dispensation from this impediment is required for the validity of the marriage. This permission or dispensation presupposes that both parties know and do not exclude the essential ends and properties of marriage; and furthermore that the Catholic party confirms the obligations, which have been made known to the non-Catholic party, of preserving his or her own faith and ensuring the baptism and education of the children in the Catholic Church.

So for there to have even been a valid marriage in the first place, (1) Mr. Reyes, as the Catholic, would have had to have promised to maintain his own faith, baptize his children, and raise them in the Catholic Church; (2) Mrs. Reyes must have been made aware of these promises; and (3) the Bishop must expressly dispense the two from the normal bar to yoking a believer with a non-believer. Canon law spells out these requirements at greater length:

Canon 1086 §1. A marriage is invalid when one of the two persons was baptised in the Catholic Church or received into it and has not by a formal act defected from it, and the other was not baptised.
Canon 1086 §2. This impediment is not to be dispensed unless the conditions
mentioned in canon 1125 and 1126 have been fulfilled.

Canon 1125. The local ordinary (bishop) 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 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.
3. Both parties are to be instructed about the purposes and essential properties of
marriage, which are not to be excluded by either contractant.

Canon 1126. 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.

So:

• If the Reyes were validly married, Mrs. Reyes was made aware of Mr. Reyes’ intention to baptize and raise their children Catholic from before the marriage ever took place. If that’s the case, it’s an easy question under both US and canon law: baptize the baby and raise it Catholic. Mrs. Reyes is free to introduce the child to Judaism as well, if she wishes, but Mr. Reyes has an obligation before God and His Church which he promised (and she consented to, in writing). What’s more, Canon 1128 and 1129 makes it clear that bishops and pastors have a real interest (and duty) to watch over children from these sorts of marriages to ensure that they’re getting solid Catholic formation, which obviously includes Baptism. That’s why I think that this whole fiasco could have been easily avoided by simply obeying the Church.
• On the other hand, if Canon 1125’s conditions weren’t all met, the Reyes were never married in the eyes of God – canon 1086 calls the marriage “invalid,” not just “illicit,” and canon 1126 makes it clear that bishops can’t simply dispense with canon 1125. So if that’s the case, the marriage is ripe for annulment. That said, Mr. Reyes is still the father of his baby, and can still have her baptized: indeed, he has a moral obligation under Can. 867 §1 to see to her Baptism “in the first few weeks,” but as always, this is true only if there is “a founded hope that the infant will be brought up in the Catholic religion” (Can. 868 §1(2). Since Mr. Reyes is the non-custodial parent, and has a pretty flaky religious track record (converting to Judaism upon the birth of his daughter), there’s some founded hope, perhaps, but not much, that she’ll be raised Catholic.

One final note: Mr. Reyes has an ongoing obligation to ensure that his daughter is raised as a Catholic. This is a specific obligation spelled out under Canon Law, and also found in the Catechism. Yet a judge is now barring this same daughter from being exposed to any non-Jewish religion. Which means that the judge has specifically enjoined the free exercise of Mr. Reyes’ religion, since that religion includes raising children Catholic, as well. The judge’s injunction is indefensible with any respect for the First Amendment. He’s both prohibiting the Free Exercise of Mr. Reye’s Catholic religion and potentially treading close to “establishing” Mrs. Reyes’ Jewish religion. On the other hand, permitting Mr. Reyes to expose his daughter to Catholicism doesn’t “establish” it, it simply allows it to be practiced by adherents. It’s an easy case under the First Amendment, and (as I mentioned), easier still if canon law was followed.