Encyclopedia of Canon Law (Legislative Theology)

On the Impediments to Marriage (2)

Canonical Laws [8]
On the Impediments to Marriage (2)

“It is not lawful for you to have your brother’s wife.”
Some attempt to focus on side matters, such as saying that Herod took his brother Philip’s wife while Philip was still alive, considering that an act of violation. Others claim that Herodias divorced her first husband Philip and married Herod out of ambition for power and status. All these are secondary details that Saint John the Baptist did not focus on.
He focused instead on the phrase “your brother’s wife”, declaring that she was not lawful for him.
The emphasis here was not on the sin of adultery or violation, for if Herod had taken any living man’s wife and forced her to be with him, he would have been rebuked for adultery. For not only adultery with a brother’s wife is worthy of rebuke, but any adultery with any woman deserves condemnation from the prophet.
Why then the phrase “your brother’s wife” in particular? Because the Law said:
“If a man takes his brother’s wife, it is impurity” (Leviticus 20:21).
If his brother was dead, it was still not lawful for him to take his brother’s wife according to the Law; and if his brother was alive, he would have added to his impurity the sin of adultery and violation—by taking a woman already bound to a husband—making it a double sin.
This doubling of sin in no way cancels the fact that marriage to one’s brother’s wife is forbidden by divine law, whether the brother is alive or dead. I referred to Saint John Chrysostom’s explanation of this passage from the Gospel of Matthew and found that he pointed out an important detail:
Herod married his brother’s wife, and she already had a child by her former husband.
So Herod did not marry Herodias to raise offspring for his brother. And the astonishing thing is that this daughter, Salome, danced—bearing witness that any marriage between her mother and her mother’s brother-in-law was unlawful. If that would be illicit even were the brother dead, how much more if he were alive!

Finally, I would like to comment on what we have mentioned with two points:

1. What concern is it of Emperor Justinian or Theodosius, when we have before us the texts of Scripture themselves?!

2. Where a clear text of the Holy Scripture exists, we have no place for speculation, interpretation, or personal opinion. The text is clear and repeated for emphasis (Leviticus 18 and 20).

As for what the Church Canons say about the prohibition of marriage with a brother’s wife or a wife’s sister:
It is not lawful to marry the wife’s sister, nor for a woman to marry her husband’s brother.
If a woman marries her husband’s brother, it means that the man has married his brother’s wife—and we have already explained how such a marriage is forbidden by divine command in Leviticus. It is unreasonable that a marriage prohibited in the Old Testament should be permitted in the New Testament, in which the moral standard is higher and people are called to perfection.

1. Our good God, who forbade a man to marry his brother’s wife, did not consider any possible benefit in the brother raising the children of the deceased. Scripture explicitly called such a marriage “impurity” (Leviticus 20:21).

2. John the Baptist rebuked Herod for marrying his brother’s wife.
   If some think that the rebuke was because he took her by force while her husband was alive, then John should have said: “It is not lawful for you to have another man’s wife,” for in that case brother or not, the same sin applies. But John emphasized “your brother’s wife,” recalling the divine prohibition in Leviticus 18:16.
   This divine prohibition was given nearly twenty centuries before Emperor Justinian’s laws; so to claim that this ban came from civil rather than ecclesiastical law is unreasonable. The prohibition came from God Himself in the days of Moses, who lived in the fifteenth century before Christ.

3. Nevertheless, ecclesiastical law also forbade this marriage.
   Church canons clarify divine law for the faithful. Such prohibition appears in the second canon of the Council of Neocaesarea, held either in 214 or 315 A.D.—long before the reigns of Theodosius or Justinian. It states:
   “If a woman marries two brothers, she shall be cast out of communion until death.”
   That means she is excommunicated from the community of believers, with the only exception being her acceptance among penitents if she promises that, upon recovery, she will dissolve this unlawful union. Remaining in such a marriage makes repentance extremely difficult, for if one continues in a sinful marriage throughout the other’s lifetime without awakening conscience and breaking the bond, repentance becomes burdensome.

Marriage with a wife’s sister is also ecclesiastically forbidden.
4. This prohibition appears in the Canons of Saint Basil the Great, whose Liturgy we celebrate and from whose mouth we receive absolution in the Prayer of Reconciliation. In Canon 23, it says:
“A man may not marry his wife’s sister, nor may a woman marry her husband’s brother.”
It is an explicit and clear canonical law, found in his second canonical letter to Amphilochius, Bishop of Iconium. Saint Basil reaffirmed this prohibition in Canons 76 and 87, penalizing those who marry their brother’s wife or daughter-in-law, or who marry two sisters in succession.
This punishment includes dissolving the unlawful marriage, for he says in Canon 23:
“He who marries his brother’s wife shall not be received into communion until he dismisses her.”

5. Saint Basil repeats this prohibition in Canons 78 and 88 of his letter to Diodorus, Bishop of Tarsus, and a copy to Bishop Amphilochius of Iconium, declaring:
   “He who marries his wife’s sister has no legitimate marriage, and neither man nor woman shall be allowed to enter the church until their union is dissolved.”
   All these are ecclesiastical, not civil laws. They were issued long before the reigns of Theodosius or Justinian.

6. The same prohibition was upheld by Saint Timothy of Alexandria (the 22nd Pope).
   In his Canon 11, he was asked: “If a clergyman is invited to bless a marriage that he knows is invalid due to kinship—such as if the woman is the sister of the widower’s late wife—may he officiate?”
   He answered: “No. A clergyman must not cooperate with those who violate divine law.”

7. Because such marriages are forbidden, the Apostolic Canons also prohibited anyone who had previously entered such unions from becoming clergy. Canon 19 states:
   “Whoever marries two sisters, or a woman and her niece (either her brother’s or sister’s daughter), cannot be admitted to the clergy,” even if he repents and dissolves the marriage.

8. Such unions were also condemned by the Holy Synod held under Pope Cyril Ibn Laqlaq in the 13th century, one of the most significant Church councils of the Middle Ages. It called for reform and established its principles, attended by holy and learned Fathers such as Saint Anba Boulos El-Boushi. Among its canons was the prohibition of marriage with the wife’s sister and all close relations. It declared:
   “No one may marry his stepdaughter, or her descendants; nor his wife’s sister or her descendants; nor her aunts; nor the wife of his uncle; nor his wife’s aunt; nor the wife of his maternal uncle; nor his mother; nor his father’s wife; nor his grandmother or grandfather’s wife.”
   And also:
   “No one may marry his brother’s wife, her descendants, her mother, or her grandmother.”

9. Thus, not only the wife’s sister is forbidden, but also her close relatives within the degrees of kinship regarded as incestuous. The same principle applies to the brother’s wife.

One final observation:
In all that we have discussed, we refer to a divine command forbidding marriage to one’s brother’s wife, and ecclesiastical canons forbidding marriage to one’s brother’s wife and one’s wife’s sister. We have nothing to do with civil laws issued by emperors or kings, nor with their reasons or exceptions. Our concern is with Church canons.
If some imperial laws happen to agree with Church canons, the canons are still the original and authoritative source. The agreement of civil law merely reflects the emperors’ piety in aligning with ecclesiastical law. But if those civil laws contradict Church canons, then they cannot be considered Christian.

In either case, we concern ourselves only with the canonical aspect—the Church’s prohibition of marriage with a brother’s wife, a wife’s sister, a father’s wife’s sister, and all other forbidden degrees of kinship in marriage.

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