Why doesn't Ecclesia supplet in the case baptized Catholics "marry" in front of a justice of the peace, then?
Sorry I wasn't clear.
According to canon 209, the Church supplies the lacking jurisdiction in a few different cases, the one which would normally concern us regarding marriage by a Novus Ordo priest would be "common error" which is when the community is in error about the existence of jurisdiction. The typical illustrative example given is of a priest visiting a parish for some reason or another where he does not have jurisdiction to hear confession. For some reason or another, he puts on a stole and heads to the confessional at a time when the parish has confessions. The faithful would approach him assuming he has jurisdiction to hear their confession, but he doesn't. Because there is common error regarding the existence of jurisdiction, and the law exists for the common good, the Church supplies this priest the lacking jurisdiction.
In similar fashion, a couple wishes to be married in the Catholic Church, so what do they do? They approach the diocese and the local "Catholic Church" and the local "Catholic priest" and they undergo marriage instruction under the "Catholic" laws and customs and have a "Catholic wedding" overseen and witnessed by a "Catholic priest." Not only the couple, but the entire community (marriage is public in nature) is in common error regarding the jurisdiction of the priest, who is most likely not even a priest and who likewise almost certainly does not enjoy jurisdiction.
The priest merely exists as the Church's witness to the marriage. The validity of the marriage is not an issue, since the couple are the ministers of the sacrament. The real question is one of lawfulness, and that is sated by the supplication of jurisdiction due to common error regarding the priest (or, "priest" if you prefer) officiating the marriage.
No one will experience common error regarding a justice of the peace. Catholics who go to such a minister for marriage are quite obviously avoiding marrying in the Church (something which cannot be said for couples who go to the Novus Ordo) and no one else confuses a justice of the peace with a Catholic priest, either.
Does that make sense?
Yes, I understand supplied jurisdiction, but wouldn't you have to say it's common error for Catholics to marry in front of a justice of the peace, thinking that confers a valid marriage?
I'll admit that it's a pretty thorny situation. There are a lot of things to consider. What mainly governs this question is canon law, which makes it more difficult since none of us are canonists and the canonists we might consult can help, but certainly never answered or anticipated the difficulties and nuances faced in this current situation.
First: Those baptized in the Catholic Church are obliged to observe the Church's laws regarding marriage. This includes proper form, which is marrying with the assistance of their local pastor.
However, in today's situation, local pastors aren't exactly plenteous. It would have to be a very old priest, made a pastor a very long time ago, having remained in the same area and appointed by a real bishop. Chances of finding one are very small.
First and a half: Traditional clergy do not have jurisdiction, so it's not like their marriages meet the requirements of the law, either. They are valid, certainly, but only because of the incredible situation we find ourselves in. The jurisdiction is supplied for some reason or another.
Second: The Church does provide for instances where the couple can marry validly without the pastor, either in danger of death or if it can be prudently and morally estimated that the pastor or a priest will not be available within a month (it is a month, I checked up on it). This tells us that the Church does not regard marriages taken place without the assistance of a pastor as always invalid, rather in a case where this is morally impossible the marriage can still occur. This seems to suggest to me that the couple's
intent to follow the Church's laws does factor into determining the lawfulness and even validity of the marriage in our times, although I have not read a canonist who has said so in those words, I think the conclusion is inescapable. The Church does not intend to unreasonably bind us to that which cannot easily be achieved. So those who simply refuse to follow the Church's laws who are obliged to do so (those baptized in the Catholic Church*) and marry outside of her** marry invalidly, but those who intend to follow her laws and are simply unable to through no fault of their own may still validly contract marriage. This is the underlining principle at work, I believe.
Third: I believe that there is also some consideration due to what exactly is meant by marrying "in the Novus Ordo." Is this with the Novus Ordo nuptial rite? Now, in the case where the Novus Ordo nuptial rite is used, one may try to argue that the form of the
nuptial rite is not approved. I'm not sure if this would be the case or not, but even if it were, from my reading it seems that the form
of the nuptial rite (distinct from the form
of marriage, which requires Catholics to marry with the assistance of the pastor or a delegate) does not contribute to the validity or invalidity of the marriage, so long as the marriage vows are exchanged-- even if everything surrounding the vows is garbage, the vows are the essential form as it were. So even in the case of a "pure" Novus Ordo Wedding, I'm not so sure that the fact that the rite is the Novus Ordo rite poses any intrinsic difficulty to validity. When considering the nuptial
rite itself, the validity does not seem to depend on the form
of the rite (except inasmuch as the exchange of vows is concerned) but rather when the "form of marriage" is spoken of, it is meant that the marriage occurs with the assistance of the local pastor or a delegate. Also, see my ** footnote for a little more on this.
Fourth: (Most importantly!!!)
Marriage enjoys the presumption of law. That means that when a marriage is attempted and consummated, it is presumed valid unless proven otherwise. There is no principle by which a marriage should be treated as invalid unless it is proven to be invalid. This is actually pretty incredible, since with most sacraments a doubt obliges us to treat it as a non-sacrament, but with marriage there must be proof of invalidity. So, except in cases where it is obviously invalid (so, for example, a Catholic getting married to a Buddhist after a long weekend in Vegas) there really is nothing to worry about. And IMO, I don't think that those who married in the Novus Ordo should have any serious doubts to the validity of their marriage on that fact alone.
If you'd like citations for anything I've said, I'll be happy to provide them.
A footnote more to highlight all of the nuances and thorny patches the canonists will have to wade through after the restoration (God willing). This isn't really essential to the issue at hand, but I find it interesting and Church law (esp. on marriage) is one of my favorite topics.
* "Those baptized in the Catholic Church" are those who are baptized with the intention of being incorporated into the Catholic Church. For infants, this desire or intention is manifested by the parents who bring the child to the local Catholic Church to have the local Catholic priest baptize the baby according to Catholic ceremonies. I think that as a general rule, this applies to those in the Novus Ordo but cases where it doesn't are easily conceivable. When a Novus Ordo couple has the first of the two children they plan on having and brings the baby to the local liberal Church for a water initiation with no intention of actually entering the Church again or teaching the child the faith (even the Novus Ordo faith) where there is no mention of original sin and the person performing the baptism (who might not be a priest or a deacon) doesn't really think he's doing anything other than incorporating the child into the Christian community, is that child, without respect to whether or not the baptism is valid, "baptized in the Catholic Church?" I think a convincing argument could be made that such a person is NOT "baptized in the Catholic Church" and as such would not be subject to the laws of the Church. On the flip side, if a good willed couple has a child and brings it to the local Novus Ordo Church to be baptized into the Catholic Church by a man whose probably not a priest but is devout anyways and according to a watered-down baptismal rite, is such a child "baptized in the Catholic Church?" I think the answer would be yes.
** Incidentally, I checked Woywood and he actually says that in an instance where no priest can be had, a couple could marry in front of a justice of the peace or any other non-Catholic minister, provided that they did not let him perform a religious ceremony. He did not comment as to whether or not a religious ceremony would affect the validity of such a marriage-- I think that it wouldn't, unless the religious ceremony was actually requested with the intention of marrying outside of the Church. In the case of marrying before a Novus Ordo priest with the Novus Ordo nuptial rite and a Novus Ordo mass, the couple believe they are requesting a Catholic rite. Concurrently, I do not see this as affecting validity.
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