Divorce & Remarriage: Ecclesiastical Discernment and Pastoral Care
by
Ben Mayes
CPH, 2026
Dr. Mayes has been speaking widely of his new book. It seems to take a hard stand on marriage and divorce, and in some ways it does. However, it innovates in ways that are not historically Lutheran. Worse yet, he misrepresents the Lutheran tradition to fit his aims, especially noticeable in his portrayal of C.F.W. Walther’s position. This review seeks to show a truly Lutheran position, which will not mean the making of new laws or church structures but a correct proclamation of God’s Word.
Mayes starts with the abuses that abound in our context—the rampant divorce and sexual immorality. His motives are commendable, since God “hates divorce” (NKJV), but his solution turns the church into a legislator that competes with the civil government and tries to redefine marriage in an unbiblical manner. This reviewer does not wish to give increased license for divorce—in fact, Mayes offers at least one novel way to allow for it—but rather seeks the true nature of marriage according to the Scriptures, which are rightly interpreted by Luther and the Confessions, which the Lutheran dogmaticians carefully followed.
The first clue that the reasoning of this book is at odds with Lutheranism is the almost complete dismissal of Martin Luther on the matter of marriage:
The Lutheran Church’s teaching is not always that of Luther, even though he is the foremost teacher of the churches that subscribe to the Augsburg Confession (FC SD VII 41). Particularly on marriage, Luther wrote at the very start of the Reformation, when things were still being figured out, and he wrote not always in an orderly way. (xvi)
The “order” of Luther’s presentation is a vastly different matter than his use of Scripture and the doctrine he actually taught. But Luther is the person who set the stage for the Lutheran position and wrote perhaps the most consequential words on this topic. The fact that Mayes does not engage him doctrinally is concerning and a serious omission. Mayes does not indicate why he does not find Luther helpful for his purposes, but that oversight will be unpacked later in this rebuttal.
What is Mayes’ position? He starts with the immorality of our present context and an overly broad historical review in rough brushstrokes, not a careful definition of what marriage actually is. A footnote relates: “A significant difference is that the Lutheran tradition says that wrongful marriages must cease, while Evangelicals warn against wrongful marriages but do not require that they cease” (xxiii). Proof is not advanced for this claim.
“Wrongful marriage” is a strange term, which Mayes redefines for his purposes. Traditionally, it would be applied to secretive bigamists and those not physically qualified for marriage so that civil annulment would be in order, but Mayes uses it in a new way: to apply to people who have been divorced and remarried. He considers a second marriage, where the first divorce was not scripturally warranted, a “wrongful marriage”—which is not a real marriage, according to him. Mayes co-ops the term but uses it in a completely different manner from the Lutheran dogmaticians. In fact, a “wrongful remarriage” is not a marriage at all: “Likewise, ‘marriages’ of woman to woman or of man to man are not in accord with God’s will in Gn 2:24; thus such marriages are not really marriages at all” (27). This claim reorganizes all society and makes regular, legal male-female marriages across all societies and governments illegitimate. But marriage is a natural order, not a strictly Christian estate. Mayes, though, sets up a new ecclesiastical standard that supposedly nullifies many civil marriages before God.
Mayes presents adultery as an “exception,” rather than a breaking of the marriage bond, by which the Lord makes male and female ‘one flesh’: “But other kinds of divorces followed by marriage to a different spouse are not accepted by God and therefore should cease” (25). These remarriages are said to not be true marriages but a sinful, impenitent state to be ended; it is contended: “If it was a ‘marriage’ that conflicted with God’s word, that marriage should be annulled, that is, a public declaration should be made, stating clearly that in God’s eyes it never was a marriage” (27). In fact, they are equivalent to civil homosexual unions in his thought. This book holds:
Annulment is not a case in which man separates what God has joined. Rather, with annulment the church shows that such a marriage, conflicting with the norm for marriage given by God, is not legitimate (27).
Annulment, as a religious doctrine, has no scriptural basis and reaches back to Rome and their attempt to position its temporal authority above the civil authorities. Again, the implications of annulment are great, but the most startling conclusion is confined to a footnote in chapter 1: “If such marriages have been sanctioned by the state, then they would also need to be dissolved through a civil divorce” (76). This action would not be a civil annulment but a religious mandate to obtain a regular divorce, contrary to the existing civil laws. Though the Roman church has annulment—assuming divorce is imaginary and nonexistent—the Scriptures have no comprehension of pretending a civil marriage that is legally and correctly contracted can be made null and void. The ‘proof’ deduced for a pattern of annulment is that of “incest” or accidentally marrying the wrong person (as with Jacob and Leah, though this marriage was not actually annulled) (27, 28). Annulment for the reason of prior sin would be divorce in all practical respects—annulment being a false religious category of Rome.
So in a book that purposes to counter the rise of divorce in wider culture, Mayes advocates for the breaking of valid and legal civil marriages by means of a superior ecclesiastical definition of marriage. Much like for the Roman church, this would create either two kinds of marriage or else a theocratic situation where the church autocratically defines marriage against and above the law of civil government.
Mayes betrays his thinking in some very odd, but revealing, words in a section entitled “The Exception of Death”:
Now it must be recognized that even this principle, that death ends a marriage, means that the Lord’s statements in the Gospels on divorce and remarriage cannot be read absolutely, but must be read with an exception (39).
Death is not merely a loophole or legal exception; it physically ends the marriage since one cannot be one flesh with a person not living physically in this world with a body. Scripture is clear, and death is not a mere technicality but undermines the very basis and possibility of an earthly union:
Or do you not know, brothers—for I am speaking to those who know the law—that the law is binding on a person only as long as he lives? For a married woman is bound by law to her husband while he lives, but if her husband dies she is released from the law of marriage. Accordingly, she will be called an adulteress if she lives with another man while her husband is alive. But if her husband dies, she is free from that law, and if she marries another man she is not an adulteress (Rom 7:1-3).
Mayes’ definition of marriage is not scriptural, since marriage is for him an unbreakable, almost eternal (since God is the author) covenant with some (minor) exceptions allowed, including adultery and death. But marriage is only for earth: “In fact, in the resurrection people neither marry nor are given in marriage. Instead they are like the angels of God in heaven” (Matt. 22:30).
What does God actually say? “What therefore God has joined together, let not man separate” (Matt. 19:6; Mark 10:9). Man can break a marriage, but we should not. God did not say, “What I have joined, don’t pretend (invalidly) to separate, since that is an impossibility.” Adultery is not merely a get-out-of-marriage ticket—it actually conflicts with the one-flesh union God creates.
Hollaz (1648-1713), the Lutheran dogmatician, wrote that marriage “is in itself indissoluble,” but argues from the one-flesh bond itself—not technical exceptions to an unbreakable divine legal fixture:
From the nature of marriage, adultery of itself … directly conflicts with the unity of the [marital] flesh, and therefore, also with the substance of marriage, through which two become one flesh, Gen. 2:24. “For he which is joined to a harlot is one body with the harlot,” 1 Cor. 6:16, and is therefore no longer one flesh with his wife (Schmid, 622).
Baier later wrote:
Meanwhile, in two cases, divorce, or the dissolution of legitimate and valid marriage as to the conjugal bond itself, may occur. Without doubt, in the case of adultery, where, by the law itself, marriage can be and is dissolved, and the innocent party is permitted to enter into another marriage (Matt. 19:9; 5:32; and in a case of malicious desertion (1 Cor. 7:15), where the deserter himself actually and rashly sunders the conjugal bond, and where to the deserted party, when a competent judge makes the declaration, the power belongs to enter a new marriage. (Schmid, 621-22).
A wrong definition of marriage means all casuistic arguments based off of those assumptions are invalid.
What is Marriage?
Luther freed marriage from church control because he recognized it as a natural order of God’s creation extending to all people, not only among those of the Christian faith. Marriage “existed from the beginning of the world and is still found among unbelievers” (AE 36:92). He did not call it merely a civil contract but a divine ordinance and estate that is implied in our creation as male and female. He freed marriage itself, which is public and a matter of natural law, from “Roman despots who both dissolved and compel marriages as they please” (AE 36:96). Marriage is not defined by civil law but is “superior to any [human] laws” (AE 36:99). By calling marriage a sacrament, Rome wrested control of it from the civil realm and enslaved consciences by means of arbitrary human church laws. Luther countered by teaching that “Marriage and the married estate are civil matters” (Lenski, 271).
Luther, in summary,
calls the marriage ceremony a secular matter, and marriage itself a secular state, although one instituted by God and divine, which we may, therefore, also solemnize in a much more glorious way (than by mere secular authority). And in his discussions of matrimonial laws, he never makes the validity of marriage dependent upon an ecclesiastical sanction … (Kostlin, 2:480).
It is always injustice to legislate where Christ has not spoken in his Word.
Francis Pieper, in his classic dogmatics, does not have a section nor talk much at all about marriage, and for good reason. Neither do the confessions. Christ and the Scriptures do not set up rules or a legal framework for dealing with all the problems sinners cause around marriage. “Marriage is an outward bodily thing” (AE 45:25). The reality of our procreative purpose means that marriage is not an ideal to aspire to, but following Paul in 1 Cor. 7, it is a basic necessity for most lest they fall into sexual immorality and deny Christ bodily.
Luther admits it would be better if the adulterer were put “to death,” yet it is still allowable for him to “remarry if he is unable to remain continent” (AE 45:32). Marriage is not a luxury for sinners—all those without the direct gift of chastity will sin apart from marriage—“For it is better to marry than to burn with passion” (1 Cor. 7:9). The church addresses the conscience with God’s Word. She does not compel unbelievers, nor can she prevent them from sinning against God in marriage. “These realms are regulated by natural law, which is applied through the use of human reason … one should not pummel unbelievers ‘with texts whose authority they do not accept’ ” (Schulz, 230).
The Church does not regulate marriage; it simply tells Christians how they are to live within that divine institution. She simply teaches God’s Word and how Christian love is to be exercised for those in that estate. Those who leave a marriage, without biblical cause, are called “unbelievers” by St. Paul (1 Cor. 7:15). How does the church compel unbelievers? It should not—nor is punishment for past sins under the her purview, lest the church be changed into a disciplining, temporal authority rather than a dispensary for the forgiveness of sins. Luther got the church out of the marriage business. “Marriage, by common consent, is part of the natural order, and as such belongs, not to the church as a church, not to religion as religion, not to state as state, but to the life of the whole world” (Lenski, 70).
Marriage is why all people exist as either male or female. The Lord joins as one flesh in marriage. 1 Cor. 6:16 figures prominently for Lutherans in defining marriage but is conspicuously missing in Mayes’ doctrinal understanding: “Or do you not know that he who is joined to a prostitute becomes one body with her? For, as it is written, ‘The two will become one flesh’.” The very same words used for marriage in Gen. 2:24 are applied to fornication with a prostitute. There is a marriage bond created—something happens in the joining bodily of intercourse—God also effects a marriage bond in fornication or adultery. That is different than saying they are married, which is a public matter that implies consent and a lifelong promise of fidelity. But something marriage-like happens. 1 Cor. 6:16 is often cited by Lutheran theologians as a proof-text for understanding marriage.
Walther does not see adultery as an ‘exception’ to an irresistible marriage bond God that enforces as unbreakable law; rather, he argues that what conflicts with the institution of marriage actually puts asunder what God originally created. Walther cites the Lutheran theologian Deyling (1677–1755):
Although malicious desertion dissolves the band of marriage just like adultery, it is nevertheless not recognized as a true desertion which has the dissolution of the band of marriage as a consequence if the divorce has not been carried out and decreed … (Walther, Pastoral, 283).
The marriage band or bond (in Latin vinculum matri) is God’s own work that the Christian will by no means seek to break. But it can be broken, and the so-called ‘innocent party,’ if there is one, does not have the final say in maintaining the bond alone. This is why legal remarriage, when the bond is unbroken, perpetrates adultery upon the ‘innocent spouse’—the marriage bond is ripped apart, so they are no longer one flesh: “But I say to you that everyone who divorces his wife, except on the ground of sexual immorality, makes her commit adultery, and whoever marries a divorced woman commits adultery” (Matt. 5:32).
The Marriage Bond
The reality of the one-flesh bond, as God’s work not to be broken, underlies the historic Lutheran understanding of marriage. Mayes writes in covenantal terms, as if marriage is a divine pact that cannot be broken, though exceptions are allowed in Scripture. He seems to repudiate all talk of the marriage bond, speaking only in terms of divine law:
According to Mal 2:14–15, marriage is a covenant divinely established and ratified for the purposes of companionship, offspring, and raising children to be godly. Marriage is a covenant or way of living. As a covenant or bond, it is in effect, or in force, or valid. One is in a marriage relationship or bound by the covenant of marriage. People are married or not married. Therefore it is probably best to avoid saying that a marriage “exists” or is “created,” since this kind of language could reify it and lead people to imagine that the marriage itself is a substance that is created, subsisting, or existing somewhere. (25)
But the Lutheran tradition speaks very differently. It is summarized: “Adultery is therefore not a breach of contract, not personal harm inflicted upon the partner, not a formal violation of the law, but destruction of the divinely fashioned” one-flesh reality. (Elert, 90). Marriage is not merely a heavenly legal living arrangement, as Mayes contends; God actively makes what he joins together: “So they are no longer two but one flesh” (Matt. 19:6). In the language of the early Lutherans, though marriage is indissoluble in itself, it can be dissolved or broken by the explicit sins of adultery and desertion.
From Luther (1546) and Melanchthon (1560) we turn to the Lutheran dogmaticians, who extend in unbroken line from Chemnitz (1522-86) to Hollazius (1648-1713). With little or no deviation these standard teachers follow in the footsteps of their illustrious predecessors in the matter of divorce and the marriage of innocent divorced persons. They know of only two generic causes for dissolving the bond of marriage “so that husband and wife may be separated not as by man but by God himself.” (Chemnitz) [Richard, Church, 458-459.]
Adultery breaks “the ontological union of husband and wife as ‘one flesh’ ” (Shaner, 103). The orthodox Lutheran Quenstedt wrote, “By adultery the bond of marriage is dissolved so that it is allowed to the innocent party to enter a second marriage” (Richard, Church, 460). Marriage is not a mere law that we are released from upon death. Christ, as creator, actually does what He actually says in joining male and female, so they are no longer two individuals but a single flesh. They are truly one by God’s immediate creative action. It is not our obedience but His divine joining into one that is the basis of marriage.
Mayes interprets Gerhard wrongly, assuming he is speaking euphemistically of the conjugal act, rather than of God’s gracious creative work: “Gerhard speaks of sexual intercourse chastely as the ‘joining into one flesh’ ” (31). The following quote from Mayes’ book directly contradicts Holy Scripture. “Sexually being ‘one flesh’ is reserved by God for married people” (31). A man can be one flesh with a prostitute, though it is a heinous sin against one’s own body. Yet a marital bond is established by the Lord in the act itself: “Or do you not know that he who is joined to a prostitute becomes one body with her? For, as it is written, ‘The two will become one flesh’ ” (1 Cor. 6:16). Adultery is a highly destructive sin that breaks the marriage bond because it creates a new, though illegitimate, one-flesh relationship. This truth is why the Spirit inspired the following words of explanation: “Flee from sexual immorality. Every other sin a person commits is outside the body, but the sexually immoral person sins against his own body. Or do you not know that your body is a temple of the Holy Spirit within you, whom you have from God? (1 Cor. 6:18-19). Adultery is more than a technical infraction—it destroys what God has made. Marriage, like grace, is not irresistible.
“The indissolubility of [the marital] bond is thus not an outward demand of the law but a necessary result of dependence on the divine creative will” (Maurer, 163). The civil regulation of marriage Luther promoted was a theological consequence of recognizing the universal and natural character of marriage. Walther comments on a quote from Luther: “one should certainly take care not to come into conflict with the civil authorities” (Walther, Pastoral, 286). The church cannot have its own special or Christian sort of marriage. The one-flesh reality does not conflict with the external reality of marriage in the civil realm.
… the Lutheran doctrine proceeds on the principle that adultery destroys the oneness of the flesh enunciated in the original institution of marriage “And they shall be one flesh” (Gen 2:24). He that is joined with a harlot has become one flesh with the harlot (1 Cor 6:16). He cannot therefore be one flesh with his wife for the union is of twain not of three. Thus adultery does eo ipso disrupt the vinculum matri monii. In regard to 1 Cor 7:15, the “not subject to bondage in such cases” is held to be absolute. Final desertion vacates marriage in every one of its features (Richard, Church, 462).
Marriage is obvious and public. It implies physical duties and responsibilities—especially for the believer who heeds Christ, who creates every marriage bond. Yet, in spiritualizing marriage, it becomes hidden and private, removing it from the natural sphere. But marriage is about bodily deeds and therefore the natural law and civil realm. Therefore, a church that seeks to regulate marriage over and above state laws must do so through legal means and civil discipline. Mayes, while ignoring the latter part of 1 Cor. 6, which speaks of fornicators being made one flesh by God, advocates for church jurisdiction over marriage: “Considering Paul’s words in 1 Cor. 6:1–5, there is no reason why a church could not establish courts for marital matters, to investigate cases with due process” (151). This is what Rome has done and still attempts. But it cannot be the Lutheran position.
Rome declared at the Council of Trent: “Canon VII of Session XXIV anathematizes those who deny the teaching of Church that the adultery of one spouse does not dissolve the vinculum matri [marriage bond] (Bryce, 33).
Not only does the Roman position usurp civil authority and disregard Christ’s clear Word, it can only lead to burdened consciences, as men enact laws and rules that are not God’s Word but mere ecclesiastical legislation. The subtitle of this book, “Ecclesiastical Discernment and Pastoral Care,” is misleading. It rather seeks to set up a popish ecclesiastical judiciary and enforce by church rule human opinions, rather than advise consciences pastorally with God’s Word.
Gerhard writes, “not only that the deserted person is freed from rendering the offices of marriage to the husband or wife, but also that such a person is freed from the matrimonial bond, if the malicious deserter will not live with her” (Richard, Divorce, 49). The reference to the matrimonial bond shows it can be separated. Baier also declares, “In the case of adultery, without doubt, where ipso jure marriage can be dissovled, and is dissolved, and the innocent party is permitted to enter into a new marriage” (Richard, Divorce, 54).
An early Missouri Synod pastor is cited in 1905:
The Missourians have not taken any action on Divorce, but “the Missouri pastors, one and all, are governed by the rules laid down by Walther in his book on the subject. Consequently we solemnize marriage of the innocent party in case of malitiosa desertio if such desertio is fully proved and is a fact. In that case the former marriage tie, is actually broken, and no longer exists—cannot therefore bind the innocent party any longer.” So writes the Rev. H. H. Walker, a Missouri pastor (Richard, Divorce, 69).
But Mayes tries to paint a later, popular Missouri pastor as going beyond his caricature of Walther’s position, despite him simply continuing the standard Lutheran teaching:
In 1939 Walter A. Maier took mostly the same position as Walther and Laetsch, with one significant difference. For Walther and Laetsch, adultery presents grounds for divorce, but for Maier, adultery in and of itself constitutes a breakup of the marriage. That is, for him, after an adultery, the married couple are actually divorced, whether or not they have this divorce ratified (xviii).
But Mayes misrepresents Walther in giving the benefit of the doubt to his own novel assumptions. A thesis of Walther is reproduced elsewhere, contradicting his false portrayal:
70. Although, by its nature, marriage is indissoluble, since what God has joined together, man should not separate, in actuality it is dissolved through adultery and malicious desertion. (Melchior Nicolai) [Walther, Theological Axioms]
Mayes attributes (xviii) to Theodore Laetsch, another Missouri pastor, his own position, but Laetsch argues from the marriage bond, which Mayes does not: “The apostle regards the continuance of such a marriage on the part of the Christian spouse as so self-evident that he uses a word implying the willingness of the Christian to keep the marriage bond intact” (“Malicious Desertion,” 197). In fact, he further keeps the church in its proper place: “Ought not, however, the adulterer to be punished by prohibition of remarriage? The Church has no right to inflict temporal punishment upon him, least of all to forbid him to marry” (Laetsch, “Divorce and Malicious Desertion,” 131).
If, therefore, a person is declared to be no longer under bondage in a matter pertaining to the maintenance of the marriage relations, there can be no more law tying him to his spouse. Though the marriage has been broken in a manner utterly displeasing to God, though the departing unbeliever will be called to account by the Lord, yet the Supreme Legislator in these matters declares the deserted spouse to be no longer under bondage. (Laetsch, “Malicious Desertion.”199)
Mayes assumes “The conjugal bond lasts until death,” and that is a complete thesis of his in the book (142). It should last until death, but it often does not, which is not God’s will. Melanchthon wrote: “Therefore at the very beginning He sanctified marriage, so that it should not be dissolved, saying [Gen 2:24], ‘The shall be two in one flesh’ …” (490). Marriage is not a divine straitjacket but a gift in which male and female are actually joined together. “In the question of divorce, the divine Word frees the innocent person, since the other party, by his or her adultery, has dissolved the marriage by adulterating the marriage covenant” (Melanchthon, 492).
Walther disarms the position that adultery does not break a marriage in the strongest terms:
It is true that the Papists claim that marital unfaithfulness through adultery does not dissolve the band of matrimony [vinculum matrimonii], which is why the innocent party may not enter marriage with someone else before the death of the guilty party. However, this belongs to the antichristlike making up of sins against the clear letter of the divine Word …
Walther then cites Luther (AE 46:310-11) as proof: “it is certain that adultery also dissolves a marriage” (Walther, Pastoral, 282). Walther, unlike Mayes, quotes Luther extensively and does not desire to depart from his doctrine on marriage.
At the root, Mayes lays out a strictly legal version of marriage, going against the Lutheran teaching of the actual reality of the one flesh union, which can be broken, just as it can be established, even by fornication (1 Cor. 6:16). It is a divine order not an irresistible covenant that accepts and tolerates sexual infidelity.
If the order of marriage were a demand, a configuration of law, even a transgression of the rule could not erase it. But marriage is a configuration of existence, the fact of one flesh, and that is effectually annihilated by the adulterer. Adultery does not justify divorce—it is divorce (Elert, 94-95).
This aligns with Jesus’ equating of remarriage with adultery in the case of unjustified divorce: “And I say to you: whoever divorces his wife, except for sexual immorality, and marries another, commits adultery” (Matt. 19:9). Jesus is not a new, more intense law-giver here but speaking concretely to the reality of what sinners do in breaking His natural, creative work.
Sophistry
After Mayes avoids the clear teaching of Luther, he then later tries to explain away the position of the post-Reformation Lutheran dogmaticians:
Does the act of adultery in and of itself break the marriage and bring about divorce? The German word for “adultery” is Ehebruch, literally “breaking of marriage” or “breach of marriage.” Not coincidentally, German-speaking Lutheran theologians often speak of adultery as something that breaks a marriage, or that in and of itself causes divorce (58).
Yet the Ehebruch understanding of adultery does not fit well with Mt 5:32 and 19:9, where unchastity is a reason for which someone might divorce, not the divorce itself. Marriage is not automatically severed by an act of unchastity. The bond of marriage is established not by carnal intercourse but by mutual consent in accordance with God’s Word (59).
The made-up theory does not dismiss the clear witness of many Lutheran theologians. It seems that Mayes pulls a sleight of hand because much of the evidence doesn’t fit into his proposed covenant scheme. Mayes claims it contradicts his interpretation of the Bible, but that does not diminish what they actually wrote and taught. Notice that Mayes cites no older Lutheran theologians for breaking what he calls “wrongful marriages.” It is dishonest to cast aside their doctrine on marriage due to a theory he seems to have concocted:
Chemnitz also is working with the German Ehebruch understanding of adultery, the idea that the deed of adultery per se breaks the marriage. To this, we would point out that Mt 5:32 and 19:9 speak of unchastity as grounds for divorce, not the breaking of the marriage in and of itself (97).
It is deceitful to ignore clear evidence that does not support one’s position by positing a theoretical linguistic influence, ignoring the stated theology. I think we can give the benefit of the doubt to Melanchthon, Chemnitz, Gerhard, and Hollaz as being consistent, or at least take their theological position seriously. Mayes does not, unfortunately,
… Lutherans, who have learned to think of adultery as Ehebruch, something that breaks a marriage. But this is false. Since marriage is a covenant or an estate established by God, it is not ended except in the way that He sets forth in His Word (107).
Contrary to this, Jesus did say, “And I say to you: whoever divorces his wife, except for sexual immorality, and marries another, commits adultery” (Matt. 19:9). In this case of events, divorce is equated and synonymous with adultery. And Paul grants complete freedom to the one deserted (1 Cor, 7:15). Mayes doctrinally ignores 1 Cor. 6:16 because it does not fit into his legalistic paradigm, yet for the Lutheran tradition this is a critical verse to understand the one flesh union, both in its creation and its breaking, since a person may not have more than one one flesh union at a time.
Marriage as an Order of Creation
Spiritualizing marriage and making it a uniquely Christian possession usurps a natural right and turns the church into a law-making regulatory authority. All mankind is made for marriage, by virtue of being male or female, while the Christian who can easily remain celibate has no need to consider it.
The Apology of the Augsburg Confession follows the basis of marriage as a natural order as set forth by Luther.
…because this creation or divine ordinance in man is a natural right, jurists have accordingly said wisely and correctly that the union of male and female belongs to natural right. But since natural right is immutable, the right to contract marriage must always remain. For where nature does not change, that ordinance also with which God has endowed nature does not change, and cannot be removed by human laws (XXIII:9).
The Lutheran position is that the church does not judge all humanity to whom marriage belongs. Marriage is a given in this world, though God’s Word tells us how to live in it as a Christian. It does not mention remarriage and condemns divorce (without cause) as adultery because that is precisely what it leads to—even in a valid second marriage. Mayes contends the Bible does not sanction remarriage in a bold argument from silence:
So as is clear from Mt 5:32 and 19:9, unchastity (or fornication) is an exception to the otherwise general prohibition of divorce. Here, however, we should not treat the exception as a good work or an act well pleasing to the Lord. God’s original will in creation was lifelong marriage. Also, it must be recognized that there are no narrative examples in the New Testament of an approved remarriage while the first spouse still lives. While I am confident that the exceptions to the general prohibition given by Christ and St. Paul are real exceptions that permit divorce and remarriage, the lack of narrative examples makes these exceptions somewhat more difficult to prove than, for example, God’s acceptance of Old Testament polygamy. (41)
Divorce, which implies adultery before or after, is not a good work; it is a real destruction of God’s own creative bond. But it is the reality—adultery is not harmless or a mere legal violation. Remarriage need not be approved by Jesus—marriage is an obvious and natural thing found in basically every society. Mayes seems to not like the exceptions given by “Christ and St. Paul” and does not acknowledge that the entire Lutheran tradition sees these sins as breaking what God has joined (death is God’s separation, not man’s). Jesus legitimizes divorce for adultery and malicious desertion as a general principle—why does Mayes demand narrative examples for what is explicitly allowed in principle? He accepts the fact of divorce for cause, but his framing of it makes it unseemly and also not truly interrupting the marriage bond itself, preferring the covenantal language of Calvinistic theology. As much as reconciliation is advisable for the innocent party, it cannot be demanded of one free of the bond of marriage.
Mayes dismisses Luther’s teaching on marriage without engaging his words. But Luther’s emphasis on marriage as a natural (and therefore divine) right and an order of creation sets the script for the Lutheran understanding:
It is amazing how concretely Luther was able to set these theological statements about the purpose of creation, the Word, and faith within the realities of marriage. Certainly, no one before him in Christianity has spoken so realistically of sexual matters (Maurer, 161).
A third party cannot be bought into God’s one-flesh union. The Lord does not make three or more into one flesh, despite whatever civil arrangements are allowed. Only the two are made one flesh. Our consent is not the main part of marriage, though it is necessary—God’s creation of the marital bond is primary for the Christian who heeds His Word.
Adultery is not a mere legal disqualification or an arbitrary exception; it is a divine offense against God’s work in making the marriage bond and incompatible with the one-flesh union He creates and intends to be lifelong. Mayes’ position does not acknowledge the seriousness of divorce: “therefore for dissolving the marriage bond an adulterous mind or adulterous eye does not suffice, but rather the external act of adultery, which gives grounds to dissolve the unity of the flesh” (45). Adultery is more than a possible legal justification to leave a marriage. It truly violates the one-flesh union God instituted. Sexual fidelity is more than an optional extra for those married; it is intrinsic to the marriage bond the Lord creates. By attempting to strengthen the marriage contract from God’s perspective and make it more pervasive, Mayes unfortunately undermines the seriousness of adultery and the real damage it causes. We dare not minimize the sin of adultery, no matter our goals.
Exegetical Argument
The argument presented in this book is that adultery is not properly an act that breaks the marriage bond, but in the case of remarriage, after an unsanctioned divorce, it is a continuing, unrepentant state of adultery.
Also, according to Mal. 2:14, marriage is a covenant witnessed by God. Therefore it cannot be left without the violation of the covenant before God. Again, there is a great difference between marriage and other contracts. Marriage is divinely instituted as indissolvable, a quality that other contracts lack. (32)
God’s gracious uniting of husband and wife into one flesh is described in purely legal terms. So the divine contract is made to lock people into bondage—even though the Holy Spirit’s words in Scripture allow divorce, so the prior marriage does not restrict the freedom of the believer injured by the separated unbeliever: “But if the unbelieving partner separates, let it be so. In such cases the brother or sister is not enslaved. God has called you to peace” (1 cor 7:15).
Mayes’ logic is presented:
This is clear since even a nonmarried person who marries a wrongfully divorced person is said to be committing adultery (Lk 16:18; Mt 5:32b). The first marriage is not really cancelled. God does not acknowledge the divorce. A subsequent marriage of a divorced person would involve adultery against the first spouse, and a marriage of even a previously unmarried person to a wrongly divorced spouse involves the commission of adultery. It should also be noted that in each of these cases, the verb “is committing adultery” is in the present tense, which often includes a continous [sic], ongoing aspect. If the Lord had used the aorist tense (“committed adultery”) or perfect tense (“has committed adultery”), it would be clear that the act of adultery was punctiliar, onetime, perhaps identified with the act of remarriage. Here, however, the present tense of “is committing adultery” suggests a continuous, ongoing practice of adultery for the people who have wrongly remarried (34).
I cannot find a single mention of “continuing adultery” in the Lutheran marriage literature. Even if the second marriage were not allowed by Scripture, what better case for desertion would there be than to enter into a marriage with someone else? The entering of that second marriage would be true adultery, and adultery breaks the initial marriage bond. Jesus expressly grants permission for divorce because of adultery.
“A continuous, ongoing practice of adultery” would surely involve at least one act of adultery and “sexual immorality,” but Mayes’ contention for a legal second marriage to be an “ongoing practice of adultery for the people who have wrongly remarried” is erected on the weakest of proofs. Divorce is allowed for sexual immorality. So the first marriage is broken and dissolved when the second marriage is consummated.
The linguistic argument presented as proof is not conclusive in the least: “the verb ‘is committing adultery’ is in the present tense, which often includes a continous [continuous?], ongoing aspect.” ‘Often’ is not always. By the scriptural logic, any act of adultery would destroy the one-flesh bond, so forcing joined persons to break their marriages to go back to one that does not exist is neither good nor commanded by our Lord in Scripture. This places an impossible, satanic burden on those wishing to heed God’s Word, even if they are truly repentant. Returning to a non-existing marriage is a farce, just as annulling a marriage with no civil defects is.
Sinners can and do break God’s word. Oddly, if the marriage bond is not harmed by adultery, adultery would be lightened and painted as a minor offense. But Jesus does not encourage divorce—even for those who previously sinned and broken a marriage against Christ’s will. A marriage is a marriage, and remarriage breaks apart any prior one flesh unity. Divorce is not good—but it will not help to call it a fiction or imaginary thing.
He [Jesus] instead shows that nearly all divorces are wrongful, not permitted by God, and in these cases remarriage involves “adultery.” This is important, since (as will be argued) if there is a divorce that God permits, then remarriage after that divorce would not be adultery, since God has made known that the divorce is one He has permitted. (36)
A forced divorce, following an un-Christian divorce and remarriage, does not rectify the initial wrong, nor will it ensure marital harmony or civil order. Divorce is not the solution to already broken previous marriages! This legalism will entrap consciences. Church legislation and the advice to rip apart existing physical unions are not Christian works. No one enters marriage with perfect motives, but we can live in the calling we have been given with repentant hearts. If neither divorced party is separated or married, certainty reconciliation is to be encouraged pastorally, but not mandated. But no current one-flesh bonds, no matter the past sins, are to be broken for the sake of some ideal original marriage where the marriage vows were directly broken. Does Mayes really advocate for new Christians returning to a divorced partner of possibly several marriages ago? The result would not be godly order and fidelity but chaos.
Marriage is not a hidden Calvinistic decree that requires multiple pastors to determine which marriage in succession should be adhered to. Marriage is natural and public. Yes, there are difficulties and complexities for sinners, but a valid civil marriage is a real marriage. “In struggling against secret engagements Luther was fighting for the public nature of marriage” (Maurer, 172). Marriage is public, and its definition does not hinge on the tense of a single word but is a matter of natural law, which is, of course, Christ’s own law by virtue of His creative work.
A Weak Stance on Divorce?
While Mayes seems willing to break existing civil marriages to reinstitute a prior marital bond that doesn’t exist anymore, and perhaps no one even knows about, he seems to allow for divorce that is not adultery:
Porn: Just as we would encourage a spouse to reconcile with his or her repentant, adulterous spouse, so also I think we should encourage reconciliation and discourage divorce in this case (76).
Why does he merely “discourage divorce,” for what is not adultery or desertion? Shouldn’t divorce be completely forbidden to follow God’s will for marriage? God’s Word is not a matter of opinion. Practical casuistry is worthless when it is not based on the solid biblical principles and doctrine.
Conclusion
This is a confused and sloppy book. It tries to reinvent the Lutheran definition of marriage, while dismissing the entire tradition. Its logic does not hold up. Worse yet, it offers solace in the form of new ecclesiastical judges and casuistic rules that cannot be proven. It finds a solution in heaping unscriptural demands and new laws, seemingly trying to institute a new canon law system, though Luther wisely overthrew Rome’s canon law and regulatory power with God’s Word.
The solution is not to pretend to be civil authorities or redefine marriage by God’s hidden will, but actually to speak to Christians where they are currently and how the Lord would have them live, keeping the marriage bed pure (Heb. 13:4). The church’s true power is not civil authority or rule-making but the Gospel of forgiveness to renew hearts and consciences. —ed.
To embody these [marriage] principles in the legal codes of church and state and apply them in practice is only justified in so far as it gives legal succor to the innocent party. In reality secular legislation and the administration of the divorce laws have been far more lenient. … Stricter divorce laws would not cure the social confusion but only complicate the legal chaos further. However, the decision cannot be based upon purely utilitarian considerations. Marriage and family are not derivatives of the civil order but, by virtue of the divine order, are autonomous entities. They serve the orders of the people and the state but can truthfully do so only if their autonomy is respected and preserved. The tendency of the modern legislator to yield to these presumable irresistible social forces constitutes actually one of the main causes for social deterioration. To do something about it is not the ecclesiastical but the civic responsibility of every Christian. It goes without saying that the church must speak out on these matters and preach God’s law emphatically to its own members. The church, however, has not been entrusted with the social use but with the proper use of the law (Elert, 95).
And now for the clergy, having neglected the paramount duty, to resolve that they will not marry the divorced is about as wise and as philosophical as it would be to try to purify the waters of the Mississippi River by casting the healing branch into the Gulf of Mexico instead of into the fountains and tributaries of the mighty stream. The place for the clergy to operate is in the home, in the Sunday School, in the catechetical class, but preeminently in the pulpit. The hardness of the human heart must be broken by the word of the Gospel. The boys and young men must be taught that when they become husbands they “so ought to love their own wives as their own bodies” (Eph. 5:28), and not to kick and cuff, choke and beat them until they are black and blue (ask the law judge); and girls and young women should be taught that as wives, they are to be “chaste, workers at home, kind, being in subjection to their own husbands” (Tit. 2:5), and not to be insolent, fretful, nagging and wasteful. The divine economy of marriage must be expounded, and its ethical principles must be inculcated as the foundation of that personal communion of life and vocation to which holy wedlock invites man and woman, for it is notorious that the great majority of unhappy marriages and mesalliances [bad marriages] come from ignoring, or from violating the moral restraints and obligations that the divine Word and the law of nature and the principle of congruity, have laid on husbands and wives. One ounce of prevention is worth more than many pounds of cure. Hence Obsta Princittis [resist the beginnings] is the best motto for the clergy. And yet it is just here that the clergy have been most derelict (Richard, Divorce, 72).
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