Divorce and Remarriage-After-Divorce in Jesus and Paul:
A Response to David Instone-Brewer
Robert A. J. Gagnon,
Ph.D.
Pittsburgh Theological Seminary, Pittsburgh, PA
15206-2596
gagnon@pts.edu
June 2009 [put online 9/26/12]
For printing
or pagination for citation use the pdf version
here.
[N.B.: An abridged version of the following was
originally written for my chapter on “Sexuality” (pp. 449-64) in
The Oxford Handbook of Evangelical Theology (New York: Oxford
University Press, 2010) but could not be included owing to space
limitations. Readers should regard this as an extension to the
“Sexuality” chapter.]
Evangelicals have been
softening their stance on divorce-and-remarriage for decades but a
recent, well-researched book by evangelical scholar David Instone-Brewer,
Divorce and Remarriage in the Bible, may be speeding up
the process.
Instone-Brewer argues that Jesus did not oppose all divorce but only the
“any matter” or no-fault divorce promulgated for men by the Hillelite
(not Shammaite) branch of the Pharisees. Jesus and Paul assumed the
universally accepted grounds for divorce in early Judaism reflected in
the marriage contracts of the day: not only adultery but also failure to
comply with the three marital obligations specified in Exod 21:10-1l
(food, clothing, and conjugal rights).
The latter three were grouped in rabbinic sources as material neglect
(withholding food and clothing) and emotional neglect (withholding
sexual relations, perhaps widened already in the first-century to acts
of cruelty and public humiliation). According to Instone-Brewer, Jesus
and Paul held that both a person who divorces on valid grounds and a
person who is divorced on invalid grounds are free to remarry.
In my opinion, Instone-Brewer has made
the best scriptural case, not only to date but also for the foreseeable
future, for broadening the grounds for divorce and
remarriage-after-divorce beyond the grounds of adultery, extreme
physical abuse, and desertion that are normally accepted in evangelical
churches. Many evangelicals have rushed to accept this interpretation of
New Testament divorce texts—no doubt, partly on humane grounds, partly
out of self-interest, and partly as a way of accommodating to the high
divorce rate among evangelicals.
What is at stake here? The practical
implications of Instone-Brewer’s argument could be far-reaching. The
broad classification of “material or emotional neglect” could be misused
to permit divorce for almost anything. Indeed, Instone-Brewer himself
recommends that pastors not investigate the circumstances of a person’s
divorce as a precondition to officiating at a remarriage. So long as the
divorced person expresses repentance for breaking marriage vows the
pastor can remarry the divorced person, whatever the circumstances of
the divorce. While acknowledging that Jesus rejected the “any matter”
divorce of the Pharisaic followers of Hillel, Instone-Brewer appears for
all practical purposes to end up with “any matter” divorce for
Christians or something very much like it.
As fraught with difficulty as these
practical implications may be, my primary concern here is with the
question of whether Instone-Brewer correctly understands the positions
of Jesus and Paul on divorce and remarriage. I will focus here on three
major problems with Instone-Brewer’s reading (there are others).
I. Jesus on Divorce and
Remarriage-After-Divorce
First, Instone-Brewer’s thesis runs up
against the specifics of Jesus’ treatment of the hardest case for a
prohibition of remarriage after divorce: the future of a woman invalidly
divorced. According to the “Q” tradition in Matt 5:32b par. Luke 16:18b
Jesus stated that a man who “marries a released woman [i.e. a woman
divorced by her husband] commits adultery.”
The wording indicates that Jesus had in view a woman whose husband had
divorced her for insufficient cause. For if she were divorced on valid
grounds, how could a man who subsequently married her be committing
adultery? Adultery is only possible on the assumption that her original
marriage is still intact. Therefore, she must have been divorced on
invalid grounds, whether because all divorce is invalid or because
(as Instone-Brewer believes) she was divorced for some other cause than
adultery or (perhaps) serious material or emotional neglect. She was not
at primary fault for the divorce: she neither initiated the divorce nor
engaged in behavior that would justify her husband divorcing her. Yet
any remarriage that she might want to contract remains inhibited by the
characterization of any man who marries her as an adulterer.
Similarly, according to Matt 5:32a
(which may represent the original Q tradition), Jesus stated: “everyone
who releases [i.e. divorces] his wife … makes [or: causes] her to commit
adultery.”
The ellipse above is filled in by Matthew’s famous “exception clause”:
“other than [or: except] for a matter of sexual immorality (porneia).”
This addition by Matthew makes clear that he understands the case in
question as a man’s divorce of his wife on invalid grounds. A
woman divorced on grounds of sexual immorality has already made
herself an adulteress before she remarries; the divorcing husband cannot
make her into an adulteress. So Matthew was addressing a case where the
woman had not committed adultery and thus, presumably, had done nothing
to justify being divorced. This is confirmed by the fact that she could
only commit adultery when remarrying if her original marriage was
presumed to be still intact.
In Instone-Brewer’s view, an invalidly
divorced woman is free to remarry since divorcing one’s wife against her
will and without substantial grounds is tantamount to extreme material
and emotional neglect—in short, abandonment (and adultery if her husband
remarries). Yet Jesus here states that a woman who remarries after being
divorced without just cause commits adultery, adding that men who marry
such women commit adultery (thereby essentially directing men not to
marry the female victims of divorce). If Jesus were saying that the
moral guilt for remarriage lies solely with the husband who
unjustly divorced his wife and that the victimized divorceé should not
be penalized, then he expressed himself very badly indeed—even by loose
sermonic standards.
II. Jesus on Creation and the Law of Moses
A second major problem with Instone-Brewer’s
thesis lies with the premise that Jesus’ stance on the grounds for
divorce must comply with the law of Moses (specifically, the allowance
for divorce in Exod 21:10 as regards cases of material and conjugal
neglect). The problem here is that both Mark and Matthew present Jesus
in a different light in his controversy with the Pharisees (Mark 10:2-12
par. Matt 19:3-9). There Jesus overrides Mosaic law with an
appeal to a higher standard set by God at creation (Matt 10:2-12 par.
Matt 19:3-9).
Jesus could have said that he preferred
a strict interpretation of the phrase ‘ervath davar in Deut 24:1
(“a nakedness of a thing,” “an indecency of some sort” understood as
adultery—the Shammaite interpretation) over a loose interpretation
(understood as anything that the husband might find objectionable about
his wife—the Hillelite interpretation). In other words, he could have
kept the debate within the law of Moses. But he didn’t. Instead, even in
Matthew’s version (which Instone-Brewer favors over Mark’s), Jesus
contrasted what Moses permitted with what God implicitly disallowed
in Gen 1:27 and 2:24: “Moses, with a view to your hardness of heart,
permitted you to release [i.e. divorce] your wives; but from the
beginning it has not happened in this way [or: it was not so]” (Matt
19:8).
“So they [i.e., the man and woman joined in marriage in Gen 2:24] are no
longer two but one flesh. What then God yoked together a human must not
separate. . . . Whoever releases [i.e. divorces] his wife—not for sexual
immorality [adds Matthew]—and marries another commits adultery” (Matt
19:6, 9; cf. Mark 10:8b-9, 11). For Jesus, God’s will in creation
trumped subsequent relaxations of that will, including deviations in
Scripture found in the law of Moses.
Although Matthew’s use of an exception
clause, “not for sexual immorality,” establishes for Instone-Brewer that
Jesus is merely adopting the stricter (Shammaite) reading of ‘ervath
davar in Deut 24:1, Matthew does not present Jesus as saying: “Moses
permitted you to divorce your wives but only on the grounds of sexual
immorality.” For Matthew, it was not a question of the Pharisees
misinterpreting Moses but rather of God now revoking the concession
granted by Moses to male “hardness of heart.” This is consistent with
Matt 5:32 where Jesus’ teaching about divorce is contrasted (“but I say
to you”) with the permission to divorce in Deut 24:1.
Instone-Brewer responds that Jesus
could not be abolishing the moral law of Moses. I think a better term
than “abolish” here would be “fulfilling by going beyond.” Moses does
not command divorce; he only permits it. It is thus not a direct
violation of the law to revoke one of its permissions; no boundary is
crossed. Jesus is rather closing loopholes in the law in order to make
it more internally consistent with God’s pre-Fall will for humanity.
Instone-Brewer himself acknowledges as much when he states that Jesus
cancelled Mosaic permission to men regarding polygyny (multiple wives).
Indeed, we find just such a cancellation among the Essenes in a context
where they insist on rigorous fidelity to the law of Moses.
It is a characteristic feature of Jesus’ teaching to demand more than
what the law explicitly demands.
III. Paul on Divorce and Remarriage-After
Divorce
A third major problem in Instone-Brewer’s
thesis is his interpretation of Paul’s remarks in 1 Cor 7. In vv. 10-11,
Paul delivers to the Corinthians a charge that he
derived from “the Lord,” namely, “for a wife not to be separated from a
husband … and for a husband not to send away [i.e., divorce] a wife.” In
between these two clauses Paul adds parenthetically, perhaps echoing
Jesus’ words against remarriage: “but even if she is separated, she
should remain unmarried or be reconciled to the husband.” This
parenthetical remark suggests a general principle: a divorced woman
should not remarry anyone other than her original husband.
However,
Instone-Brewer argues that Paul is referring to the specific case of
Greco-Roman divorce-by-separation where neither grounds for divorce (as
in Hillelite “any matter” divorce) nor even a divorce certificate was
needed. In Instone-Brewer’s thinking Paul would thus be rejecting
remarriage only for spouses who divorce without valid grounds (i.e.,
whose spouse had not committed adultery or been guilty of material or
emotional neglect). However, Paul nowhere indicates such a limitation to
the principle of “no remarriage.”
Indeed, there is every indication in 1 Cor 7 that Paul was responding to
a community predisposed to abstain from sexual relations in marriage
(7:1-7), break engagements (7:25-28, 36-38), and even dissolve existing
marriages (7:12-16). Paul had
to have known that an unqualified statement about divorced spouses
“remaining unmarried” would have been construed by the Corinthians as
just that: unqualified.
Instone-Brewer’s entire case for
remarriage of divorced persons, so far as New Testament texts are
concerned, ultimately rests on 1 Cor 7:15: “But if the unbeliever
separates, let that one separate. The brother or sister has not been
enslaved [i.e., is not bound] in such circumstances.” According to
Instone-Brewer, since the phrase “has not been enslaved” is similar to
the provision in Jewish divorce certificates and most Greco-Roman ones
about being “free to marry any man you wish,” Paul’s words would have
meant to the Corinthians that they were free to remarry if their spouse
was determined to divorce.
There are two chief problems with this
assumption.
First, given that Paul does use the
expression “free to be married to the one whom she wants” later in 7:39
when discussing the case of a widow, it is odd that Paul does not use
the expression in 7:15 if that is what he intended. Remember that the
Corinthian believers were not disposed toward marriage at all. They were
counseling others not to marry. They wouldn’t likely presume that
Paul intended to say that remarriage was possible unless Paul spelled it
out. It is certainly conceivable that Paul meant by “has not been
enslaved” no more than that believers were not bound to persist in
efforts at reconciliation with an unbelieving partner. Instone-Brewer
claims that such an interpretation would be “meaningless . . . because
there was nothing one could do about reversing the separation, other
than pestering one’s former partner to return.”
But this conclusion ignores the first line in 7:15 where Paul enjoins
the believing spouse: “But if the unbeliever separates, let that one
separate.” If it is meaningless for Paul to tell the believing
partner in such circumstances not to persist in efforts to stop the
separation, why is Paul issuing a command to that effect?
Second, even if Paul meant by “has not
been enslaved” the possibility of remarriage (I believe that there is an
even chance of this), it is not likely that Paul extended this
permission beyond marriage to an unbeliever. The Old Testament provides
precedents for the dissolution of marriages to pagans (e.g., Num 25;
Ezra 9-10). Paul insists in 7:39 that, if the widow remarries, she
marries “only in the Lord.” Paul explicitly switched topics in 7:12-16
to the specific circumstance of marriage to an unbeliever, as is clear
from the introductory phrase in 7:12, “Now to the remaining persons.”
Five times in 7:12-15 Paul makes specific mention of the “unbelieving” (apistos)
spouse. Paul’s remarks in 7:14 about both the unbelieving spouse being
“made holy through” the believing spouse and the holiness of the
offspring that result from such a bond are indicative both of Corinthian
assumptions that such marriages are not binding and of Paul’s effort at
integrating the special circumstance of a mixed marriage into his
overall principle in 7:10-11 that the married should stay married. The
question in 7:16 about saving one’s unbelieving spouse, however it is to
be interpreted, underscores the special problem of marriage to an
unbeliever: he or she is not part of the redeemed community. So the
content of 7:12-16 gives indication that the subtext is the question:
Does marriage to an unbeliever count as a real marriage? Do the
rules that apply to a marriage between believers also apply to such a
union?
Paul’s answer to the question is a
mixed one. On the one hand, he argues that the presence of a believer in
the union is enough to sanctify the union as a whole, that is, make it
serviceable for God’s use. On the other hand, Paul’s remark in 7:15
about the believing spouse not being “enslaved in such circumstances”
is probably conditioned in part by the particular circumstance of
marriage to an unbeliever.
I don’t think that Paul has developed here a “general principle .
. . that a man or woman who has been divorced against his or her will
should be free to marry.”
I think that, at most, Paul has developed a specific principle for the
circumstance when one is unequally yoked to an unbelieving pagan spouse
who insists on leaving.
Paul probably knew Jesus’ statement that even an invalidly divorced
woman commits adultery when she remarries. Indeed, he probably alludes
to it in 7:11 when he says: “But if also she is separated, let her
remain unmarried or be reconciled to her husband.”
Instone-Brewer believes that remarriage
is possible for believers who initiate a divorce on valid grounds
(adultery, material or emotional neglect), whether the spouse is a
believer or not. Yet even if the phrase “has not been enslaved” in 7:15
allowed for remarriage (by no means certain), and even if it were
applicable equally to marriage to a believer (very unlikely), the phrase
still would provide no support for a believer initiating divorce.
Paul is explicit here that a believer is not to leave a mixed marriage
if the unbelieving spouse is amenable to living in the same house
(7:12-13).
IV. Other Considerations
Instone-Brewer’s case for expanding
Christian options for believers to divorce and remarry after divorce is
not helped by the fact that, by his own admission, “the general
consensus” of the Church Fathers was that “marriage is indissoluble
except by death, though husband and wife can separate ‘from bed and
hearth’ if either commits adultery.”
Only “Ambrosiaster” is recorded as allowing remarriage for a divorced
person and even then only for a man who had divorced an adulterous wife.
Others, such as Epiphanius and Augustine, viewed the remarriage of
someone who divorced on the grounds of adultery as a lesser sin. On the
whole I think that the Church Fathers understood the witness of Jesus
and Paul.
Whether Jesus would have adopted an
exception for adultery as Matthew thought, I do not know. I doubt that
he would have permitted separation for anything less than adultery that
was both persistent and unrepentant, given his teaching on forgiveness
(Matt 6:14; 18:15-35) and the message of the six antitheses in Matt
5:21-48 (including the antitheses about not being angry, keeping one’s
vows, turning the other cheek, and loving one’s enemy). He did not
address the question of physical abuse but, consistent with the approach
of later rabbis, I suspect that he would have regarded this as a
criminal matter. One might reasonably guess that, as a safety
precaution, he would have allowed separation if staying in the same
domicile posed a substantial risk of serious physical harm. If he would
have allowed remarriage for anything, undoubtedly it would have been for
a divorce that occurred on the grounds of persistent and unrepentant
adultery and extreme physical endangerment, and perhaps too for
abandonment. Yet I think the evidence suggests that he would not have
permitted remarriage for anything less than the death of one’s spouse
(and it wouldn’t count if the spouse who did the divorcing was the
killer). For anything else separation might be necessary but the
remarriage remains intact. There can never be a real “divorce” apart
from death of one of the spouses.
Would Jesus have insisted on divorce of
persons already remarried at the time that they first heard his teaching
on divorce and remarriage or for followers who disobeyed his teaching
but subsequently repented? Probably in some cases but I doubt that he
would have applied it as a general principle. It is invalid to argue
that if Jesus insisted on a lesser action (forbidding remarriage to
those not yet remarried) he would also have insisted on a greater action
(dissolving existing remarriages). It is far more impractical to command
the dissolution of an already existing marital union than to prohibit
someone from entering into an invalid union. A prohibition of remarriage
after divorce for those not yet remarried does not disrupt an already
existing union with children. Furthermore, requiring the dissolution of
invalid remarriages renews the cycle of divorce that Jesus is trying to
end.
The teaching of Jesus on divorce and
remarriage after divorce raises a host of hermeneutical challenges, not
the least of which is implementing obedience to it. The reformation of
the church on this matter has to begin with a renewed sense of
accountability on the church’s part to obeying Jesus’ teaching on sexual
ethics. A large measure of responsibility for high divorce rates in the
evangelical community lies with pastors, particularly in the mainline
denominations, who out of fear of appearing “judgmental” ignore or
dilute Jesus’ teaching. Moreover, the church has largely failed to
communicate that Jesus regarded both remarriage after divorce and
marriage to a divorced person as more serious than even divorce itself
since the former two cases constitute virtual adultery. Needless to say,
there would be significantly fewer divorces in the church today if more
Christians recognized that the alternative to staying married was a life
bereft of any future sexual intimacy and companionship.
Some will object that such a message is
inherently unloving and unreasonable. But this objection leads to the
untenable conclusion that Jesus himself was unloving and unreasonable.
The exercise of forgiveness for penitent violators is, of course, an
essential part of recovery; but this forgiveness does not come at the
cost of changing the teaching of the church. Others will claim that
Jesus was not interested so much in sexual purity as in empowering wives
who could be victimized by their husband’s autocratic right to divorce.
Yet, if Jesus had been more interested in women’s rights than in sexual
purity, he could have advocated that the right to divorce be equally
available to women. He certainly would not have said, “Whoever marries a
divorced woman commits adultery.”
That the husband in this case is the initiator of the divorce is
evident, first, from the use of the passive feminine participle
apolelumenēn (“a released/divorced woman, a divorceé”) to
describe the woman; and, second, from the fact that Jewish law
gave the right of divorce only to the husband (though a woman
could petition a Jewish court to force her husband to divorce
her).
The parallel in Luke 16:18b reads instead: “everyone who
releases [i.e. divorces] his wife and marries another commits
adultery.” Despite the fact that the International Q Project
regards Luke’s version of the saying as the original Q text, it
is more likely (with the ICC Matthew commentary by Dale Allison
and W. D. Davies) that Matthew’s version reproduces Q, for two
reasons: (1) Luke’s version appears to be formulated from Mark
10:11 (“… and marries another commits adultery against her”)
which Luke otherwise (along with the rest of Mark 10:2-12) does
not reproduce. (2) Matthew shows no aversion to the formulation
in Mark 10:11a given that he reproduces it in whole in Matt
19:9. So if his Q version had read “… and marries another
commits adultery” there is no discernable reason for Matthew to
have altered it. Another option is to understand Matthew’s
version as the original Q text but to read the passive verb
moicheuthēnai as “to be committed-adultery-against,” i.e.,
“to be victimized by (the) adultery (of her ex-husband)”—a
reading that would have the advantage of making the same basic
point as Luke’s (and Mark’s) version. The problem, though, is
that, consistent with ancient Greek generally, extant Jewish
Greek texts always use the passive of moicheuō in an
active sense when a woman is the subject (Lev 20:10 [LXX]; Sir
23:23; Philo, Decal. 124; Josephus, Ant. 7.131;
cf. John 8:4; Aristophanes, Pax 980; Aristotle, Hist.
Animal. 586a.3; 619a.10; Chariton 1.4.6; Achilles Tatius
6.9.7). The passive voice here denotes the more passive sexual
role of the female in an adulterous relationship; in effect,
“becomes a woman with whom a man commits adultery.” So, all in
all, it seems likely that the original Q text stated that “every
man who divorces his wife causes her to commit adultery” when
she remarries as she would almost invariably do in first century
Judaism.