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2.         Along with the ground of lack of due discretion, this case was heard before the Chicago Tribunal also on that of "Consent Defective in its Formal Object on the part of the Petitioner (can. 1055 §2; 1057 §2)". While a negative decision was given on this ground, the legal part of the sentence considers it at some length (189-191), enunciating certain principles that do not seem juridically sound.

            The ground so formulated has not found its way into approved jurisprudence. The Sentence describes it in terms that make it even less acceptable: "a total or partial simulation, which is virtually present but by habitual negation. It is the failure to give consent to the proper ends of matrimony, so that, even unwittingly, an improper formal object has been substituted for the proper one" (189).

3.         When consent is given according to a formula that covers the natural and essential attributes of marriage (exclusivity, procreativity, indissolubility), people are presumed to have consented sincerely, i.e. according to their own avowed profession (cf. c. 1101, § 1). In other words, they are presumed to mean what they say: that is, to have undertaken the commitment of marriage in the terms which they themselves have freely chosen to utter. Furthermore, the clear questions asked of the parties, and the clear affirmative answers required of them in the exchange of consent, are aimed precisely at ensuring that people do consent to marriage in its natural, God-given integrity.

            It can no doubt happen that a person internally denies what he or she externally professes. This, if done with a positive act of the will, is what is termed simulation; and of course invalidates marriage (cf. c. 1101, § 2). But, given the clarity of the words of matrimonial consent regarding the fundamental commitment to which the person uttering them expressly pledges himself or herself, it seems quite inconceivable that someone who substitutes another "improper" formal object, incompatible with the "proper" one, should do so "unwittingly" or unconsciously. Unless he is of such substandard intelligence that his consent is null under c. 1095, nos. 1 or 2, he necessarily realizes the contradiction between what he externally affirms and what he internally intends, and so he consciously simulates.

4.         An argument of "unconscious simulation", as we pointed out when judging another case from the same Tribunal (Sent. Dec. 12, 1991), is contrary to logic and has never been accepted in rotal jurisprudence. "Nor does one find in a person of healthy mind any unconscious discrepancy between his internal will and its external manifestation" (c. Mundy, Jan. 24, 1970: in vol. 67, p. 117). "The person who simulates or excludes, is conscious that he has not given himself [to the other] or received the gift of the other, as is required for marriage" (c. Serrano, May 21, 1976: vol. 68, p. 310). "A positive act of the will... is not such, nor has it any power to nullify matrimony, unless it is consciously and deliberately elicited" (c. Ferraro, Nov. 11, 1980: vol. 72, p. 718). "No one can elicit a positive act of the will... without realizing it" (c. De Jorio, March 21, 1970: vol. 62, p. 300). "The person who claims in judgment to have simulated consent, must necessarily have been conscious of his falsehood in contracting" (c. Wynen, Feb. 6, 1936: vol. 28, p. 102).

5.         re: conjugal interpersonality. While marriage is certainly an interpersonal relationship, to describe it as such and no more, is evidently inadequate. Interpersonal relationships are multiple and can be of many types: friendly or hostile, moral or immoral, commercial or disinterested, homosexual or heterosexual, etc. The interpersonal relationship of marriage is essentially conjugal; i.e. it is characterized by a mutual exchange between a man and a woman of exclusive and permanent rights over reciprocal and complemementary sexuality.

            Canon 1095 clearly presents consensual incapacity as a matter whose measure and object is the institution of marriage itself, not the particular partner that a person marries. The institution moreover is to be considered in the light of its essential rights/obligations, for it is to these that the canon textually relates the discretion required or the necessary ability to assume. The juridical parameter for judging this capacity is "person to institution", not "person to person". As is well known, the overwhelming mass of rotal jurisprudence has shown a consistent rejection of the thesis of "relative incapacity"*.

            It warps the meaning and intent of c. 1095 to invoke it as grounds for a declaration of nullity simply because the Judges, as in the present case, feel that "the facts of the case, as they apply to the dynamics of these two individuals seem to indicate that there never was any type of interpersonal relationship that could sustain a marital bond" (192). Such reasoning appears totally irrelevant to 1095, 2, the grounds under which the present case was heard. We might add that, even if the case were being heard under 1095, 3, it would also appear irrelevant, since the mere evidence (if it is there, which we would question in this case) that an "adequate" or "minimum" interpersonal relationship was never established btn two persons, is not proof that there was an incapacity (and not a mere difficulty) for establishing it - for assuming its essential obligations - at the moment of consent, in one or other party.

            A certain lack of juridic and judicial sense would also seem to characterize the words immediately following in the Sentence: "It [the interpersonal relationship] was not there at the beginning of the marriage, and it did not enter into the marriage at any later date. In other words, neither person matured or grew to the point that they had a grasp of how they related to each other as spouses" (192-193). Here the Judges are speaking not about the lack of capacity (which is the subject of c. 1095), but about the absence of growth in a relationship. If the parties at the moment of consent were aware, with a minimum of critical-estimative knowledge, that the bond being established between them was permanent, exclusive and open to life, then they certainly had a grasp of the essential rghts/obligations (which derive in the first place from the three "bona") of the conjugal interpersonal relationship they were entering. It is irrelevant (even if it squared with the facts of the actual case) to hold that they afterwards failed to "mature" in how they should relate to one another. Canon 1095 2º and 3º are about a grave anomaly present at the moment of consent: a pathological defect of awareness of the essential rghts/obligations of marriage considered in its objective conjugal nature, or an incapacity (always absolute of its nature) to assume them.

6.         re: young age. The Sentence before us holds that "the two parties were simply too young to establish a life long commitment" (195). The parties were certainly young; yet the Chh allows marriage at the age they had reached, at which it presumes capacity. To sustain a plea of incapacity, the existence must be shown of a defect of maturity so extraordinary - so far below the limits of what is normal or average at the age in question - that it must be considered seriously pathological.

7.         Simulation and scty. In proposing the theory of "unwitting simulation", the Presiding Judge suggests that non-practice of faith offers proof of simulation (by the exclusion, if we have understood him correctly, of scty): "there is also a vast group of Catholics in name only who submit to a church service only to please the partner. They neither practice their faith nor have any intention to do so. In Canon Law, of course, such a marriage is still considered a sacrament (can. 1055, § 2), but, in actual fact, the attitude of the party is good proof of the type of simulation being described here. If it can be shown that the marriage service has been a 'mere formality' for one or both of them, then there is a solid basis for this allegation against the validity of their marriage. For it is either a sacramental marriage or it is no marriage at all. Catholic tradition has always upheld this view and continues to do so, despite the remonstrances of many moral theologians and canon lawyers." (190).

            The sequence of statements here is not only confusing but highly misleading. Catholic tradition, while indeed always upholding the view that a true marriage between two baptized persons is necessarily a sacrament, has never accepted that absence of faith (and much less still mere "non-practice") in a baptized person is good or sufficient proof of simulation regarding scty. Simulation, also where the possible exclusion of scty is concerned, always calls for a positive act of the will (cfr. G. Versaldi: "Exclusio sacramentalitatis matrimonii ex parte baptizatorum non credentium: error vel potius simulatio?" Periodica 79 (1990), pp. 434ss; C. Burke: "La sacramentalità del matrimonio: riflessioni canoniche", in AA.VV. Sacramentalità e Validità del Matrimonio, Lib. Ed. Vaticana, 1995, pp. 148-151; cfr. Monitor Ecclesiasticus 119 (1994), pp. 556-559).