"However, although we can judge that an act is in itself a grave offense, we must entrust judgment of persons to the justice and mercy of God." (CCC 1861)Cardinal Müller argues that it is therefore neither possible nor appropriate for the confessor and the penitent to "discern" that the penitent is not in a state of mortal sin because (1) this is impossible for anyone except God to know and (2) it amounts to self-justification. Accordingly, a divorced person living in a new civil union cannot be absolved in confession if they have the intention of continuing to have sex with their partner in the union. Even if there are mitigating circumstances that suggest to the confessor and the penitent that the penitent has reduced culpability, neither has the authority to make that determination. Only God knows the state of a person's soul. Therefore, a priest cannot absolve a person who intends to have non-marital sex on the mere basis that they are likely committing only a venial sin. A commitment to continence is necessary, as Pope Saint John Paul II affirmed in Familiaris Consortio.
By what authority?
The first question that needs to be addressed is whether Pope Francis is bound by Cardinal Müller's reasoning. Cardinal Müller certainly makes a good argument for his position, but the question is whether there is any binding authority that prohibits Pope Francis from allowing confessors and penitents to discern whether the penitent is in a state of mortal sin. Pope Francis can only be bound by a prior dogmatic definition of a Church council or Pope, and the only such authority that Cardinal Müller cites is the Fourteenth Session of the Council of Trent, which states:
"Whence it is gathered that all the mortal sins, of which, after a diligent examination of themselves, they are conscious, must needs be by penitents enumerated in confession."The Council of Trent defined mortal sin as "sin whose object is grave matter and which is also committed with full knowledge and deliberate consent." (Reconciliatio et paenitentia) Thus, the Council of Trent took the subjective elements of full knowledge and deliberate consent into account in its definition of mortal sin and in its requirement for the sins that need to be confessed in the sacrament of Penance. Moreover, nothing in the Council of Trent or any other authority cited by Cardinal Müller prohibits confessors and penitents from discerning whether there are "limitations that mitigate liability and guilt" with respect to an objectively grave sin.
Canon 916 requires confession of all "grave sins", but the Pope is the author of canon law and is free to change both the canon itself and how it is applied. Pope Francis has done exactly that in AL 300:
Moreover, discernment has always been required for Christians approaching the Sacrament of the Eucharist. Saint Paul tells us, "For he that eateth and drinketh unworthily, eateth and drinketh judgment unto himself, not discerning the body of the Lord." (1 Corinthians 11:29) Saint Thomas Aquinas tell us that a person may know that he is in a state of grace conjecturally "when he is conscious of delighting in God, and of despising worldly things, and inasmuch as a man is not conscious of any mortal sin." (ST II-I Q. 112 Art. 5) The Council of Trent requires an "examination of conscience" prior to confession as well as a description of the circumstances which change the species of sin, and Saint Thomas Aquinas notes that circumstances can destroy the species of mortal sin, making it venial. (ST II-I Q. 88 Art. 6). Finally, Pope Saint John Paul II observed, "The judgment of one's state of grace obviously belongs only to the person involved, since it is a question of examining one's conscience." (Ecclesia de Eucharistia 37)If we consider the immense variety of concrete situations such as those I have mentioned, it is understandable that neither the Synod nor this Exhortation could be expected to provide a new set of general rules, canonical in nature and applicable to all cases. What is possible is simply a renewed encouragement to undertake a responsible personal and pastoral discernment of particular cases, one which would recognize that, since “the degree of responsibility is not equal in all cases”, the consequences or effects of a rule need not necessarily always be the same.
It would seem then that Pope Francis is not prohibited by any previous magisterial decision from permitting a confessor and penitent to discern whether the penitent is in a state of mortal sin, and it also seems that the discernment proposed by Pope Francis is in accordance with perennial Catholic tradition.
The Sacrament of Penance has multiple invisible elements
It must also be noted that neither Pope Francis nor any of the bishops who have issued implementing guidelines have said anything to the effect that a divorced person in a new civil union can simply discern that sex with his or her partner in the union is a mere venial sin and on that basis alone receive Holy Communion without prior sacramental confession. The guidelines for Buenos Aires, Malta, Rome and Braga all refer to access to the sacraments of both Penance and the Eucharist. In other words, Amoris Laetitia proposes a path of discernment for divorced persons in civil unions that may allow them to have the same access to the sacraments of Penance and the Eucharist that every other Catholic has. This is a change from prior sacramental discipline that imposed special restrictions on divorced persons in civil unions on the basis of their objective outward state and the confusion and scandal this could cause to the community.
Previous sacramental discipline did take into account the subjective intent of a divorced person in a civil union: whether they have a "commitment to continence." It is clear from the Buenos Airs guidelines that Pope Francis has softened this requirement based on whether or not it is feasible and whether there are mitigating circumstances that reduce culpability. This ties back into another subjective, invisible element of the sacrament of Penance (in addition to the examination of conscience): contrition. Contrition requires sorrow for sins, a purpose of not sinning in the future, and a purpose of avoiding near occasions of sin.
Cardinal Müller writes:
The words “I absolve you from your sins” do not ratify the penitent’s lack of accountability before God. Rather, they express and bring about his or her reconciliation with God, his or her reincorporation into the visible body Christ, which is the Church. Thus, for these words to be meaningful, the penitent has to make the firm resolution to live according to the way of life that Christ has taught us and that the Church witnesses to the world. To do otherwise would be to “subjectivize” the Church’s sacramental economy, making it a function of our invisible relationship with God. It would mean to disincarnate the sacraments from the visible flesh of Christ and from his body, which is the Church.The issue with this statement is that the "firm resolution" of the penitent is itself subjective and invisible. It is a matter of the penitent's thoughts and feelings, as is the penitent's examination of conscience and discernment of mortal sins. Amoris Laetitia seems to be tying all of these invisible elements together and asking confessors to give penitents in complex situations the benefit of the doubt, which is already standard practice in the confessional for Catholics who are not living in second unions.
To be clear, Amoris Laetitia does impose requirements on penitents. AL 300 requires "humility, discretion and love for the Church and her teaching, in a sincere search for God’s will and a desire to make a more perfect response to it." Is this a "firm purpose of amendment"? One might quarrel at the use of the word "desire" rather than "purpose", but it is exactly the same word the Pontifical Council for the Family used to address similar situations in Vademecum in 1997:
Contrition vs AttritionSacramental absolution is not to be denied to those who, repentant after having gravely sinned against conjugal chastity, demonstrate the desire to strive to abstain from sinning again, notwithstanding relapses. In accordance with the approved doctrine and practice followed by the holy Doctors and confessors with regard to habitual penitents, the confessor is to avoid demonstrating lack of trust either in the grace of God or in the dispositions of the penitent, by exacting humanly impossible absolute guarantees of an irreproachable future conduct.
A "firm purpose of amendment" is a requirement of contrition, but it is not a requirement of attrition according to the Council of Trent:
And as to that imperfect contrition, which is called attrition, because that it is commonly conceived either from the consideration of the turpitude of sin, or from the fear of hell and of punishment, it declares that if, with the hope of pardon, it exclude the wish to sin, it not only does not make a man a hypocrite, and a greater sinner, but that it is even a gift of God, and an impulse of the Holy Ghost,—who does not indeed as yet dwell in the penitent, but only moves him,—whereby the penitent being assisted prepares a way for himself unto justice. And although this [attrition] can not of itself, without the sacrament of Penance, conduct the sinner to justification, yet does it dispose him to obtain the grace of God in the sacrament of Penance.Professor Robert L. Fastiggi explains the history of attrition in The Sacrament of Reconciliation: An Anthropological and Scriptural Understanding (starting at location 924 in the Kindle edition). He writes, "Alan of Lille (d. 1202) used the term attrition (attritio) 'to express a certain displeasure for sin, but one not deep enough to prompt the sinner to a firm purpose of amendment.' " After some debate, scholastic theologians such as Saint Bonaventure and Thomas Aquinas held that attrition was a sufficient disposition on the part of the penitent to be absolved in the sacrament of Penance, and this teaching was confirmed by the Council of Trent.
What does it mean that attrition "exclude the will to sin"? Does it mean that the penitent have no desire or inclination to sin whatsoever? This cannot be the case. In Reconciliatio et Paenitentia, Pope Saint John Paul II tells us:
[E]ven after absolution there remains in the Christian a dark area due to the wound of sin, to the imperfection of love in repentance, to the weakening of the spiritual faculties. It is an area in which there still operates an infectious source of sin which must always be fought with mortification and penance.Fastiggi chronicles a 17th century quarrel between Laxists and Jansenists as to just how firm a penitent's purpose of amendment needs to be (starting at location 1127 in the Kindle edition). Pope Innocent XI condemned the Laxist proposition that absolution should not be denied in penitents who manifest no hope of amendment, while the Holy Office under Pope Alexander VIII condemned the Jansenist proposition that one ought not to approach Holy Communion without "a most pure love of God free from any admixture".
Necessary Occasions of Sin
Catholic tradition teaches that repentance means "to amend one's conduct by taking the necessary means to avoid occasions of sin." (D-H 1676) However, Catholic Encyclopedia notes that the Church has never required penitents to remove necessary occasions of sin:
Theologians agree that one is not obliged to shun the proximate but necessary occasions. Nemo tenetur ad impossibile (no one is bound to do what is impossible). There is no question here of freely casting oneself into the danger of sin. The assumption is that stress of unavoidable circumstances has imposed this unhappy situation. All that can then be required is the employment of such means as will make the peril of sin remote.Popes Saint John Paul II and Benedict XVI acknowledged that there are cases where it is impossible for a divorced person in a new civil union to cease cohabitation with their partner in Familiaris Consortio and Sacramentum Caritatis. In other words, divorced Catholics in new unions live every day in the presence of a necessary occasion of sin - their partner in the the new union. What then can the Church ask of them beyond what Pope Saint John Paul II said is required of all penitents:
It should also be remembered that the existence of sincere repentance is one thing, the judgement of the intellect concerning the future is another: it is indeed possible that, despite the sincere intention of sinning no more, past experience and the awareness of human weakness makes one afraid of falling again; but this does not compromise the authenticity of the intention, when that fear is joined to the will, supported by prayer, of doing what is possible to avoid sin.Pope Francis
How then, has Pope Francis developed this doctrine? Has he approved the Laxist error of allowing absolution where the penitent manifests no hope of amendment? Far from it. Pope Francis has instead reminded the Church that all of us progress on the path to holiness gradually (AL 295) and, perhaps more importantly, that contrition and attrition are themselves graces of the Holy Spirit - they are gifts from God and not the product of human effort. Pope Francis has restored the centrality of Jesus Christ to the gospel of salvation. Do you desire a more perfect contrition and attrition? Come to Jesus Christ! Where do we encounter Jesus Christ? The sacraments!
We are living in a post-Christian world. The world has heard the message of Heaven, Hell and final judgment, and rejected it. Billions of people have embraced sin with every ounce of their being, and it is making them miserable. They need to know that Jesus Christ is welcoming them back with open arms, and He can only be found in the Church. Pope Francis does not want sinners to be met in the confessional by an "arbiter of grace" who treats the confessional like a "tollhouse" and puts "so many conditions on mercy" as to empty it of its concrete meaning and real significance. (AL 308-311). That is the worst way of watering down the gospel. (AL 311)
To make his point absolutely clear, Pope Francis states in Footnote 364:
Perhaps out of a certain scrupulosity, concealed beneath a zeal for fidelity to the truth, some priests demand of penitents a purpose of amendment so lacking in nuance that it causes mercy to be obscured by the pursuit of a supposedly pure justice. For this reason, it is helpful to recall the teaching of Saint John Paul II, who stated that the possibility of a new fall “should not prejudice the authenticity of the resolution”.Perhaps in response to critics of Amoris Laetitia who are placing unreasonable demands on Catholics before they can receive the grace of Jesus Christ in the sacraments of Penance and the Eucharist, the Congregation for the Doctrine of the Faith released Placuit Deo on February 22, 2018, the Feast of the Chair of Saint Peter. Placuit Deo reminds us, "The salvation that God offers us is not achieved with our own individual efforts alone, as neo-Pelagianism would contend. Rather, salvation is found in the relationships that are born from the incarnate Son of God and that form the communion of the Church." Placuit Deo insists that Jesus Christ Himself is our salvation:
In conclusion, to respond both to the individualist reductionism of Pelagian tendency, and to the neo-Gnostic promise of a merely interior salvation, we must remember the way in which Jesus is Savior. He did not limit himself to showing us the way to encounter God, a path we can walk on our own by being obedient to his words and by imitating his example. Rather, Christ opens for us the door of freedom, and becomes, himself, the way: “I am the way” (Jn 14:6). Furthermore, this path is not merely an interior journey at the margins of our relationships with others and with the created world. Rather, Jesus gave us a “new and living way that he inaugurated for us through his flesh” (Heb 10:20). Therefore, Christ is Savior in as much as he assumed the entirety of our humanity and lived a fully human life in communion with his Father and with others. Salvation, then, consists in incorporating ourselves into his life, receiving his Spirit (cf. 1 Jn 4:13). He became, “in a particular way, the origin of all grace according to his humanity.” He is at the same time Savior and Salvation.