Clerical celibacy in the Latin rite is always a thorny subject that provokes impassioned discussion. One difficulty in addressing this issue is that few are fully cognizant of the actual history behind it. Progressives tend to argue that clerical celibacy was only imposed on the West during the Gregorian Reform, in the high Middle Ages. On the other hand, traditional Catholics have been known extrapolate today’s discipline back into the past, imagining that the clergy were always unmarried. The Orthodox, meanwhile, insist on strict celibacy for bishops but allow a married and sexually active priesthood, accusing Catholics of perverting the apostolic tradition.
None of these positions are incorrect. Clerical continence goes back to the earliest days of Christianity; it is arguably found in the New Testament itself (cf. Matt. 19:12; 1 Cor. 7:20, 27). But neither is it true, however, that the priesthood has always been unmarried, since married priests are well-attested in the first several centuries of the Church’s history, even as late as the early Middle Ages. But how can the Church have had a priesthood that was at once continent yet admitted married men? Are these two ideas not contradictory?
The problem is that people often assume married means sexually active, but this is not the case. The Church’s discipline was that married men were admitted to the priesthood, but they were expected to be sexually continent once ordained; in other words, the issue was not so much about married priests as sexually active priests. A priest might be married, but he was never permitted to be sexually active. A married man who was ordained to the priesthood was expected to remains sexually continent in perpetuity after his ordination. For the documentation on this custom, please read our previous essays in this series, “The Truth About Priestly Celibacy in the Early Church” and “The Council of Ancyra and Celibacy,” which are themselves summaries of the encylopedic works of Fr. Christian Cochini, S.J. and Cardinal Alfons Stickler, two 20th century clerical historians who wrote the definitive works on the subject. These essays provide a necessary background for the subject of our current article: explaining how Justinian’s promulgation of the Corpus Iuris Civilis laid the groundwork for the abandonment of the apostolic custom throughout Byzantium and the adoption of the current discipline among the Orthodox, whereby priests (but not bishops) may be both married and sexually active.
The Corpus Iuris Civilis
Byzantine society in the 6th century was undergoing a kind of legislative renaissance, as the collapse of imperial power in the West left the emperors at Constantinople as the sole arbiters of law in the Roman world. Emperor Justinian undertook to synthesize all previous Roman law codes into a single body of law, which history calls the Corpus Iuris Civilis, sometimes referred to as the Justinian Code. The question of how the Byzantine East came to embrace a married and sexually active priesthood is closely connected to the statutes of the Corpus Iuris Civilis.
Before we get to the question of clerical continence, however, we must understand the content and scope of Justinian’s legal masterpiece.
1. Content
Justinian’s code was a compilation of earlier Roman law codes, which themselves were compilations of earlier imperial decrees. The Corpus Iuris Civilis principally incorporates the Gregorian (291), Hermogenian (295), and Theodosian (438) law codes in particular. (1) Justinian’s code would go through two iterations, the first published in 529, followed by an expanded second edition that went into effect in 534, the latter of which became the code known to history. The Corpus Iuris Civilis was augmented throughout Justinian’s reigns with the emperor’s own decrees, and the code was later divided into sections called “Digests,” “Institutes,” and “Novellae,” all reflecting various promulgations of Justinian. The result was a systematic compilation of Roman imperial law as interpreted through the lens of Justinian.
2. Scope
While the Corpus Iuris Civilis was the most comprehensive legislative text of the Christian West in the first millennium, it would be incorrect to view it as pertaining merely to civil law. The Byzantine’s emperor’s tendencies to meddle in ecclesiastical affairs are well attested, a trend generally referred to as Caesaropapism. From the late 5th century onward, Byzantine emperors increasingly took an active role in the management of the Church, not only in pushing their pet doctrines or promoting their favored theologians, but in lending legal force to ecclesiastical canons. Justinian in particular threw himself into the regulation of Church discipline with the enthusiasm of a bureaucrat, collecting rules meant for bishops, clerics, and monks and incorporating them into his code. Conversely, Eastern councils held after Justinian focus primarily on doctrinal issues or resolving particular crises, but shy away from promulgating general canonical legislation. Likely, Justinian’s Caesaropapist pretensions in canonical matters co-opted the councils and took away any possibility of canonical initiative from the bishops. (2)
This is not a mere historical interpretation, but a motive spelled out plainly by Justinian himself. Consider the following passage from the first book of the Codex Justinianus, the first section of the Code, wherein Justinian plainly declares that he wishes to incorporate canon law into civil law:
Our own imperial laws are made for the express purpose of enforcing the holy canons just as strictly as the imperial laws themselves. We therefore order that whatever is decided by the holy canons has the force of law as far as the interested parties are concerned, just as if those decisions had been written into the civil law itself. (3)
The result, then, was that the emperor effectively subsumed canon law under civil law by incorporating the Church’s ecclesiastical canons into the Corpus Iuris Civilis. This not only transformed the Church’s disciplines into civil statutes backed up by the power of the state, but it gave Justinian and his successors precedent for promulgating their own canonical legislation. The emperor became the guarantor and arbiter of canon law. The distinction between civil and canon law was substantially blurred, if not entirely negated.
Laws to Prevent the Alienation of Church Property
Having assumed responsibility for the discipline of the Church, Justinian was particularly concerned about the alienation of ecclesiastical property. The statutes of the Corpus Iuris Civilis dealing with clerical continence all address the matter from a practical perspective, seeing continence as a means to eliminate a cleric’s potential heirs from inheriting property that Justinian believed belonged exclusively to the Church.
Since bishops were the managers of ecclesiastical property, Justinian’s legislation targets bishops specifically. The laws pertaining to this subject are numerous and the individual texts are wordy; we shall, nevertheless, cite them in toto to help understand how these decrees shaped the practice of clerical continence in the East.
To Atrabius, Prefect of the Praetorium (March 1, 528) (4)
Let us begin with a letter to the prefect of the praetorium, found in Book I of the Code. In this first excerpt, we see Justinian mandating a procedure for proposing candidates for the episcopacy, along with qualifications any acceptable candidate must meet:
Always responsible for all the concerns of the very holy churches, for the honor and glory of the holy, immaculate, and consubstantial Trinity—through whom we believe we will be saved, we and the community of our subjects—and also following the teaching of the holy apostles concerning the ordination of priests, who must be irreproachable, having received above all the mission to gain in the interest of public affairs the favor of God who loves men, we ordain by the present law: Anytime there will be a vacant apostolic See in a town, a decree will be put forth by the inhabitants of that town with regard to three [candidates] whose rectitude of faith, honesty in life, and other qualities will have been attested so that the most suitable among them will be proposed for the episcopate…
This is why it is fitting to elect and ordain as bishops men who have neither children nor grandchildren, considering that it is not possible for a man subjected to the concerns of daily life, especially those that children bring to their parents, to apply all his zeal and spirit to divine liturgy and ecclesiastical matters. Because some people, through the effect of their hope in God and for the salvation of their souls, rush to the very holy churches, bringing their goods and giving them up to be spent for the unfortunate and poor and for other pious uses, it is quite unfitting for bishops to take [these goods] for their own personal profit or spend it for their own children or families. Because the bishop must not be hindered by natural inclination toward the children of his own flesh and must be the spiritual father of all the faithful, we now forbid ordaining as bishop anyone who has children or grandchildren. (5)
We can see that Justinian requires this procedure out of concern for the good of the “very holy churches” and the inalienability of ecclesiastical property. Candidates must be of good repute, detached from desire for material gain, and lack any direct heirs. This last point is actually stricter than what the Western synods prescribed—whereas Western practice allowed a married man to ascend to higher orders so long as he pledged himself to conjugal continence, Justinian forbids any man from ascending to the episcopate if he has heirs, regardless of his marital status or whether he is observing conjugal continence. Fr. Cochini comments on this passage:
In other words, there are only three categories of people who fulfill such conditions: single men, widowers or married men without children, and widowers and married men whose children and possibly grandchildren are no longer alive. The decree does not specify whether a still-married bishop can keep his wife by his side, but the prohibition against sons implies, of course, conjugal continence. (6)
The bishop is to give himself for the good of the Church, not the private gain of his family. Furthermore, he sees the wealth of the Church as being dedicated exclusively to “pious uses,” which would preclude it from being spent on the sustenance of biological dependents. To prevent such temptations, Justinian preferred to suppress its causes altogether. His insistence on this point is practical, in order to maintain the integrity of ecclesiastical property and eliminate possibly conflicts of interest in the management of the Church’s goods.
To Julian, Prefect of the Praetorium (October 18, 530)
The following ordinance concerns the punishment for clerics in major orders who enter into marriage after the imposition of hands, as well as the legal status of children born from clerical unions:
Though the holy canons do not allow priests who are much loved by God or the very religious deacons and subdeacons to marry after such an imposition of hands and grant such a right only to the very religious cantors and lectors, we see that some of them despise the holy canons and beget children from the wives with whom, according to the priestly rule, they are not permitted to have relations. The only punishment for such an offense has always been dismissal from the priesthood…let such men be deposed from the priesthood and from the sacred ministry, and likewise let them be deprived of the dignity that they have enjoyed heretofore. Clearly, if such actions are forbidden by the holy canons, in the same way the crime must be stamped out according to our civil laws; besides the aforementioned penalty of deposition, we order that not even children previously considered legitimate be accounted as legitimate any longer, for children who are born into, or whose birth contributes to the willful corruption of both spouses partake of the shame of those who have brought them into the world…(7)
First, note that Justinian here admits that “according to the priestly rule” clerics in major orders “are not permitted to have relations,” and that the punishment “has always been dismissal from the priesthood.” The emperor here admits the Church’s tradition has been one of conjugal celibacy for married men in major orders.
He also reaffirms that canon law has the force of civil law, for “if such actions are forbidden by the holy canons, in the same way the crime must be stamped out according to our civil laws.” The secular arm is here lending its power to enforcing ecclesiastical justice. Justinian is insistent that children born of illicit clerical unions should be delegitimized, even if they had once been considered legitimate. This is harsh indeed, but the purpose is presumably the same as we saw in the previous ordinance: by delegitimizing clerical heirs, Justinian deprives them of their ability to alienate ecclesiastical property through inheritance.
Finally, note that the ordinance admits that lectors and cantors may marry, which aligns with the apostolic tradition that the prohibition of marriage after ordination applied only to those in major orders. Here Justinian is probably recalling Canon 14 of Chalcedon, which says, “in certain provinces it is permitted to the lectors and cantors to marry.” (8) Although this ordinance does not specifically say whether already-married men must maintain conjugal continence after ascending to major orders (as it pertains to men who marry after receiving major orders), we may assume the answer is negative since the wives with whom “they are not permitted to have relations…according to the priestly rule” seems to be a universal statement; i.e., since men in major orders are prohibited from having conjugal relations, married men who are ordained must observe continence and bachelors who get ordained must not marry at all.
To John, Prefect of the Praetorium (July 29, 531)
In the following, we see Justinian’s edict of 528 reaffirmed with the added proviso that no bishop may have a wife, whether he has heirs or not:
We order that no one be proposed for the episcopate unless he is, among other things, virtuous and good; that he is not living with a wife and not be a family man, but that instead of a wife he be attached faithfully to the most holy Church, and that instead of children, he possess all the Christian and orthodox people. Let him know that from the start that such has been our design regarding the succession of the bishops much beloved of God; and it is in this line of thought that we have promulgated the law (let it be also known), they who act or have acted against these regulation are absolutely unworthy of the episcopate. Therefore, those who, after this disposition that we have taken, will have the audacity to confer the episcopate upon anyone or become bishops will not be [counted] in the episcopate and will not remain among the bishops; but chased away from their places, they will leave them to others for an ordination in conformity with the norm and pleasing to God in every respect. (9)
We see here Justinian reaffirming his decree to Atrabius from several years earlier and strengthening it; whereas the 528 decree to Atrabius allowed room for married men with no children, this decree of 531 categorically excludes any man “living with a wife,” whether he has children or not. Again, Justinian’s concern here seems to be to keep any direct heirs from the bishop’s inheritance, and the best way to do so would be to ensure their non-existence. Justinian has adopted a position of guarantorship over the goods of the Church; or, as Fr. Cochini puts it, “he was nationalizing the Church’s property” by creating civil infractions of increasing severity for those who would ordain a married bishop or a married man who would seek ordination to the episcopate. (10) One will note here that Justinian also cites what we might call a mystical rationale—that the bishop is married to the Church, and the Christian people are his offspring. This was, in fact, the traditional reason why clerics of higher orders were required to be celibate, which Justinian here invokes for the good of the state.
Novella 5: To Epiphanius, Archbishop of Constantinople (March 30, 535)
Epiphanius was Archbishop of Constantinople from 520 to 535, spanning the reign of Justin I and the early years of Justinian. He was a cleric of unquestioned orthodoxy who was tasked with implementing the agreements that ended the Acacian Schism (484-519). He was spoken well of by contemporaries and proved especially compliant to Justinian’s program of subsuming canon law into civil law. In 535, Justinian dictated a novella to Epiphanius on the matter of whether monks who subsequently become priests may marry:
Chap. 8. If anyone of those who profess monastic life deserves priestly ordination, let him persevere in fidelity to a pure life. Should he, once ordained a cleric, abuse the trust [given him] and have the audacity to get married—[we are speaking] of course, of a man who is not included in the clergy at a rank allowing him to take a wife; i.e., at the level of lectors or cantors; at all other levels, we absolutely forbid marriage, in conformity with the holy rules, or life with concubines, or a life of license—let him be, by all means, excluded from the clergy, as having covered with shame his previous way of life and solitary life itself.
This novella deals exclusively with the monastic life. We may note it reaffirms the ancient discipline that only clerics in the minor orders or lector and cantor were allowed to marry after ordination (and as affirmed by Canon 14 of Chalcedon). A monk who becomes a priest is expected to remain faithful to the nature of his previous life as a solitary by not taking a wife, which would be to “abuse the trust” placed in him and see him “covered in shame.” He will consequently be deposed.
This novella does not relate to episcopal property, but we include it here as evidence that the Byzantine East in the 6th century was still observing the traditional discipline for forbidding marriage for clergy in major orders.
Novella 6: To Epiphanius, Archbishop of Constantinople (March 16, 535)
Next we look at another novella to Epiphanius of Constantinople, which was also sent to the metropolitans of Antioch, Alexandria, and Jerusalem, as well as to the prefect of the Illyria. It was therefore meant to encompass the entire empire:
We believe that this [i.e., the prosperity of public affairs] will be possible if people continue to observe the holy rules that the apostles, rightly praised and venerated as commentators and ministers of the Word of God, passed on, and that the holy fathers kept and explained.
Chap. 1: Here is, therefore, what we order, in full conformity with the holy rules: when in the future someone will be led to episcopal ordination, the first step will be to examine his life according to [the recommendation of] the holy apostles, to see if it is honest and free of fault and irreproachable on all points. It is also [necessary] that people of good reputation witness on his behalf and that his life be worthy of a bishop…
The candidate must not be bound either to a wife, but must always have lived as a virgin; or, if he does have a wife, that the latter, when she came to him, was a virgin, not a widow, a woman separated from her husband, or a concubine. He must not have children or grandchildren, whether or not they are recognized by the law; otherwise, if anyone acts against these dispositions, he will be personally demoted from the priesthood; as to the one who ordained him, he will be rejected from the episcopate as having trespassed against the law…
No one can have access to the episcopate if he does not know the holy decrees. But he must have previously professed monastic law or have been included in the ranks of the clergy for at least six months, without, however, being bound to a wife or having children or grandchildren. We do seek this above all among the bishops much beloved of God, as it had already been decided by two holy constitutions that we have promulgated; in those we requested an inquiry [to know whether the candidates] were not bound to wives, neglecting all the rest and not permitting anyone in the future and in virtue of the law to impose hands on a man bound to a wife. Today we renew this law again; if by chance anything were done against these dispositions [the concerned party] would be dismissed from the priesthood and would, at the same time, cause the exclusion of the ordaining [bishop]. Let the one to be ordained therefore be chosen among the monks or clerics; and in this kind of life let him, in addition, have good testimonies, be honest, have good reputation, and bring to the episcopate this foundation of life. (11)
This law pertains to the requirements for being advanced to the episcopate and stresses that a viable candidate may not have a wife nor biological children. This is, essentially, a repetition of the decree to Atrabius from seven years earlier.
In the fifth chapter of the same novella, we see Justinian reaffirming the traditional teaching that clerics of major grades were bound to continence within marriage:
Indeed, nothing is more sought in the holy ordinations than men living in chastity or not living with wives, or whose wives, if they have been or are still married—and monogamous—chose chastity, made by the divine canons the first principle, the foundation and cornerstone of all other virtues. Should it happen later that a priest, deacon, or subdeacon take a wife or a concubine, either overtly or covertly, let him immediately be demoted from his holy rank and held from then on as a mere faithful…For if they are thus established [in chastity]—those who, oriented toward the clergy, received the imposition of hands—they will have an easy promotion to the episcopate; in a crowd of good men it will not be difficult to find [subjects] who are worthy of promotion to the priesthood. (12)
We should note, first, that in the context of these discussions, “monogamous” means a man has been married only once; i.e., his marriage is not a second marriage following the death of a prior spouse. Understood thus, the novella lays down the following conditions for elevation to major orders:
• Single and virginal or,
• If married, no longer living with one’s wife, or,
• If still married and living with one’s first and only wife, observing perpetual sexual abstinence
Clerical continence of the major orders had always been the tradition of the Church, in both East and West. But why does Justinian insist on it here as a matter of civil law? Recall that the purpose of this novella was to create a pool of worthy men from which to draw episcopal candidates, for he says, “For if they are thus established [in chastity]—those who, oriented toward the clergy, received the imposition of hands—they will have an easy promotion to the episcopate.” Since we know that Justinian’s code prohibited episcopal candidates from having direct heirs, we may see this mandatory continence of priests and deacons as a way to ensure there was always a suitable crop of childless candidates for the episcopacy.
Novella 22: To John, Prefect of the Praetorium (March 18, 536)
Here we see yet another reaffirmation of previous legislation on the penalties for clerical marriage in the higher orders:
Chap. 42: If a man included with the very venerable clerics has contracted a marriage [referring to higher orders, not lectors and cantors], we decide and wish him to be, in virtue of our constitution, demoted from the priesthood. If a married lector, for his part, later comes to a second marriage on account of an unavoidable necessity, let him not be raised in any way to the higher clergy, but let him remain with his wife because he chose her love above a better promotion. If he is a layman who desired to reach ordination of the subdiaconate, the diaconate, or the priesthood, and later on it is discovered that he had married either a woman who was not a virgin [at the time of marriage] or a woman separated from her husband, or if [it is discovered that that woman] was never legitimately united to him from the start, or if he contracted a second marriage, he will not obtain the priesthood, and in the case he manages to do so by hiding [the truth], he will be resolutely demoted. (13)
Novella 123: To Peter, Prefect of the Praetorium (May 1, 546)
The following novella reiterates the prohibition on candidates for the episcopate having direct heirs, but expands on the precise procedure for how this is to be determined, making use of oaths sworn in the presence of the Holy Gospels:
Chap. 1: We therefore decide that each time it will be necessary to elect a bishop, the clerics and the main notables of the town where the ordination is to take place should quickly write decrees relative to three persons; [let them do it] in the presence of the most holy Gospels and at the risk of their souls, declaring in said decrees that it is not because of a donation or because of any promise, or out of friendship, or for any other reason, that they chose those men, but because they know them as having an orthodox and Catholic faith, leading honest lives and being knowledgeable in [Holy] Writ; [they must also declare] that to their knowledge, none of them has either wife or children out of wedlock; if one of them at one time had a wife, [he must also declare] that she was truly the only and the first, that she was not a widow, nor an already-married woman, nor a person guilty under the laws or the sacred canons. (14)
Additional chapters of the novella expand on how issues of marriage are dealt with relating to clerics of various orders. Chapter 12 discusses clergy admitted to Minor Orders, saying that such “if they have a legitimate wife,” that she must be “the only and first, and that she is not a woman separated from her husband nor a woman subject to the interdicts of the laws or the holy canons.” (15) Notice that the marriage of such clerics is not forbidden; the chapter merely regulates what sort of wife they must have if and when they take a wife. When the cleric is about to ascend to major orders, however, there are additional stipulations that marriage is categorically forbidden if the candidate is still single:
Chap. 14. But if a deacon about to receive the imposition of hands has no wife united to him as was stated above, let no one impose hands on him before the bishop questions him and he has promised to live worthily and without a legitimate wife after the imposition of hands; the ordaining [bishop] has no power, at the time of the imposition of hands, to permit the deacon to take a wife after the imposition of hands; should such a thing happen, the bishop who gave permission would be excluded from the episcopate; if, after the imposition of hands, a priest, deacon, or subdeacon contracts marriage, let him be rejected from the clergy and delivered, body and goods, to the council of the town where he was a cleric. (16)
Before a man can ascend to major orders, the bishop must question him to ensure he understands that contracting marriage after ordination is an impossibility. This chapter should be understood in the context of the tradition expressed in the tenth canon of the Council of Ancyra (c. 314-315), which dealt with the marital status of deacons (please see our essay “Council of Ancyra and Celibacy” for a study of Canon 10).
The novella later reaffirms the absolute prohibition on episcopal marriage. In Chapter 29, we read:
As to the bishop, in no way do we permit him to have a wife or live with her. If it is proven that he does not observe this regulation, let him be rejected from the episcopate; he himself shows that he is unworthy of the priesthood. (17)
We essentially have three classes of clerics: minor clergy who may or may not be married and may or may not contract marriage; subdeacons, deacons, and priests who may or may not be married but may not contract marriage; and bishops who may not be married and may not contract marriage. As Justinian’s primary concern is defending the inalienability of Church property, his novellas focus on the question of contracting marriage, that is, the legal act that would bring about direct heirs that would have bearing on inheritance. Justinian’s novellas do not deal with whether clerics permitted to have wives are to be sexually continent. We certainly may assume continence is implied, as we have seen Justinian wants to create a pool of childless candidates for the episcopate. We may also assume this based on the tradition of the East and West, which, as we thoroughly explored in our previous articles, affirmed sexual continence for clerics in higher orders. If we assume that Justinian’s code wished to augment the canonical tradition by tightening it down—which seems to be his intent—we may safely infer that sexual continence within the marriages of priests and deacons was assumed, even if not specified in these novella.
Novella 137: To Peter, Master of the Sacred Palace (March 26. 565)
Next we have two passages from Novella 137 relating to the procedures to follow for the election of bishops. Both are worth quoting at length, although only the latter portion of Chapter 2 is directly relevant to our discussion about clerical marriage:
Chap. 1: Because we take God’s judgment very seriously, we deem it proper to proceed immediately to the examination and the canonical reform of various subjects presented to us. Indeed, if the civil laws do not permit the offenses committed by lay people to be treated carelessly, without inquiry or punishment, how could we allow canonical regulations, enacted by the holy apostles and holy fathers for the salvation of all men, to be disregarded? Now, we are convinced that if many fell into sin, the main reason is that the consecrated bishops did not hold a synod as the holy apostles and holy fathers directed them to do. If indeed such a point had been observed, everyone would fear condemnation by the synod and would make serious effort to devote himself [wholly] to the divine liturgies and to live honestly in order to not fall under the sanction of the holy canons. And several people have found an excuse to sin that was not a minor one, because bishops, priests, deacons, or other clerics at various degrees had been ordained without a preliminary inquiry and without witnesses about the rectitude of their faith and the seriousness of their morals. Now, if those who received the responsibility of praying for the people are found to be unworthy of the ministry of God, how could they appease God for the sins of the people? That the appointment of the priests must be undertaken with great care, this is what we are also taught by Gregory the Theologian, held in honor of sanctity, following the holy apostles and the holy canons…[here follows quotations from Gregory Nazianzen]…Basil, also held in honor of sanctity, teaches us that the holy canons forbid access to the clergy to all those who remarried: those who contracted a second marriage, he says, are excluded formally, by the canon, from the ministry. Such is the opinion of Basil, held in the honor of sanctity. The holy fathers bore witness to such a great concern for the priesthood that the bishops gathered at Nicaea enacted a canon as follows: the great council absolutely forbid bishops, priests, and deacons, and in a word, all members of the clergy, to have a sister-companion with them unless she is a mother or an aunt or the only persons above suspicion.
Chap. 2: Conforming ourselves therefore to the regulations specified by the holy canons, we enact the present law, through which we order: each time it will be necessary to appoint a bishop, the clerics and the main notables of the town where the bishop is to be appointed will have to gather, and before the holy Gospels, write decrees about three persons: each one of them will have to take an oath on Holy Scripture and attest in writing that he did not choose [these candidates] on account of gifts [that had been made to them], or in virtue of a promise, or out of friendship, or for any interested motive, but because he knows that they have an orthodox and Catholic faith and lead honest lives; [he must also attest] that to the best of his knowledge none of them has a wife or children, and that he has not had and still does not have a concubine and children born out of wedlock; if one of them once had a wife [i.e., who is now deceased], that the latter was truly the one and only and that she was not a widow, or a woman separated from her husband, or a person under the interdicts of the holy canons and the laws. (18)
Again, we see Justinian stressing that any cleric who wishes to advance to the episcopate is absolutely forbidden from having offspring—either legitimate or bastards—and that if he had a wife, it is necessary that she be deceased.
Emperors Honorius and Theodosius to Palladius, Prefect of the Praetorium (May 8, 420) (19)
This constitution of Emperor Honorius is an older text from the era of the Theodosian dynasty adopted without change into the Corpus Iuris Civilis by Justinian. It has to do with the problem of clerics cohabitating with so-called “outsider women,” an issue whose legislative history dates all way back to the Council of Nicaea. (20)
It is not fitting that the one who practices an estimable rule [in the eyes of the world] be discredited by the company of women, to whom is given the name of “sisters.” As a consequence, all those who, at any level whatever, are covered with the splendor of the priesthood or who are affiliated to the dignity of the clergy, must know that common life with women who are outsiders of their homes is forbidden to them; we concede only the option of giving refuge in their houses to their mothers their daughters and their sisters; the ties of nature would not permit any evil suspicion about them. A chaste love still calls for not abandoning those who, before the priesthood of their husbands, had been worthy of union with them through a legitimate marriage: it is indeed not without reason that they are associated with clerics, those whose behavior made their husbands worthy of the priesthood.
The constitution forbids priests from sharing a living arrangement with any woman other than a close relative (mothers, daughters, sisters), who are above evil suspicion. The “evil suspicion,” in this context, obviously means suspicion of sexual relations.
But what of the wives of priests who had been married before their ordination? The constitution says, “A chaste love still calls for not abandoning those who, before the priesthood of their husbands, had been worthy of union with them through a legitimate marriage.” Two points are worth noting—First, a married priest cannot abandon the obligations he has to his wife, although the text maintains that this love must, from here on out, be “chaste.” Does this chastity refer to abstinence from sexual relations? It certainly seems so, as the following clause makes plain, for, “before the priesthood of their husbands [they] had been worthy of union with them through legitimate marriage.” The Latin here is quae ante sacerdotium maritorum legitimum meruere coniugium. Notice the past tense—they “had been” worthy of union with their husbands, but only “before” the priesthood. That they can no longer have this union after priesthood is why the love must now be “chaste,” i.e., non-sexual.
The text of the constitution does not specify whether the priest’s wife may continue to live with him or not; it is suggesting she is above “evil suspicion” along with the priest’s close relatives, or is she in a different category and therefore forbidden from his household? If we read this in context of other legislation within the late Roman world, we may presume that they were allowed to live in continence with their husbands, who at any rate remained obligated to support them one way or another. We have seen, however, that such men can never advance to the episcopate, which is reserved to men who have never been married and are childless.
The Emergence of the Byzantine Discipline
Now that we have reviewed the pertinent texts relative to discipline in the East, we must tie them together to formulate a hypothesis of how the Byzantine discipline diverged from that of the West. The following is the theory presented by Fr. Cochini in his work The Apostolic Origins of Priestly Celibacy. It should be stressed that this is merely a theory, although it is a theory which nevertheless makes full sense of the legislative and historical factors at play in Byzantium in the century after Justinian.
It has already been established that the ancient discipline was that a married man elevated to the priesthood was expected to live in continence with his wife. This was the case in the East and the West and applied to all in major orders, including the subdiaconate.
When Justinian embarked upon his project of consolidating all Roman laws into his Corpus Iuris Civilis, he incorporated canon law into his legal system. We have seen that he decreed “whatever is decided by the holy canons has the force of law…just as if those decisions had been written into the civil law itself.” The effect of this was the merging of canon and civil law, such that ecclesiastical discipline became a matter of civil law.
We have seen that Justinian was deeply concerned with preventing the alienation of Church property, which he viewed as his responsibility to protect. Since bishops were the administrators of Church property, his law code contains multiple provisions mandating absolute celibacy for bishops, not only in the present, but in the past as well—it was not enough for them to be unmarried; thye must have never been married. To be qualified for the episcopate, a man must have no dependents who could make a claim on his property through inheritance. This was a marked departure from the custom of the first five centuries which permitted the ordination of married men to the episcopate so long as they lived in continence and had been monogamous (i.e., married only once; see 1 Tim. 3:2). The Justinian Code took the Church’s tradition, made it considerably stricter, and gave it the force of civil law.
Justinian’s legislation applied almost exclusively to bishops, however. In the case of priests, deacons, and subdeacons, we see that Justinian intended the preexisting canonical norms remain in force—i.e., married clergy were expected to be continent within marriage.
When we review Justinian’s novellae, however, we see that, while the absolute lifetime celibacy of the bishops is explicitly legislated, the continence of other clerics is merely assumed. Justinian is not changing the traditional discipline relating to subdeacons, deacons, and priests; his only novelty applies to bishops, so the lower clergy receives much less attention. The statutes pertaining to priests generally reaffirm older canonical legislation without amendment. It is always relating to the episcopacy that the most detail and vigor is employed, for it is here that Justinian is determined to change canonical tradition.
Now, were one reading the Corpus Iuris Civilis and the Church’s pre-Justinianic canonical legislation side-by-side, it would be clear how these two bodies of legislation complement each other: Justinian amends the traditional discipline in relation to bishops, as stipulated in the code; in matters that had not been amended, one is to consult the Church’s canonical tradition, which remains in force.
Remember, however, that Justinian had effectively folded the Church’s canonical tradition into the Corpus Iuris Civilis, which he intended to be the one, all-encompassing source of legislation for his empire. While actual consecration of bishops would always be an ecclesiastical prerogative, their qualification, vetting, and selection were now civil matters. In practice, this meant the Justinian Code would be the primary source of legislative norms for everything pertaining to advancement into the episcopate. Even if it presumed earlier canonical norms remained in force, Justinian’s code was the supreme law and was consulted first and foremost. The Corpus Iuris Civilis did not so much complement and amend canon law as eclipse it.
In this context, Justinian’s stress on absolute episcopal celibacy actually ended up undermining the continence expected of the priesthood. The law’s strict insistence on bishops being unmarried and childless was taken to imply that clerics below the order of bishop were therefore free to marry and beget children; i.e., be sexually active. As we have seen, Justinian’s code does not specifically say this; if anything, it commands that the pre-Justinianic legislation on continent priests be maintained. But the Justinian Code’s stress on a bishop’s celibacy specifically—and the code’s eventual displacement of canon law—drew a sharp distinction between bishops and the rest of the clergy, ensuring what was forbidden to bishops was presumed to be allowed for his subordinates. The result was that instances of married—and sexually active—priests gradually increased in the century after Justinian’s reign.
This tendency was compounded by the chaos occasioned by the Islamic Umayyad invasions of 7th and 8th centuries. Between the Arabic invasion of Syria in 634 and their abortive siege of Constantinople in 717, over half the Byzantine world fell to Islam. The rest of Byzantium was flooded with refugees. There was a drastic restructuring of the civil and military administration as the government scrambled to find resources to replace the levies of men and taxes lost to the Muslims. In this atmosphere of chaos, ecclesiastical discipline suffered. As civil and religious leaders attempted to adapt the law to the new situation, the churches of Byzantium increasingly tolerated a sexually active priesthood, which seemed to be the least of their worries. This was further facilitated by the devolution of the episcopate into a purely monastic enterprise as bishops were chosen exclusively from the ranks of the monks.
By the end of the 7th century they situation had partially stabilized, enough at least for the bishops of the East to begin discussing remedies for the abuses that had arisen over the past fifty years. Under Emperor Justinian II Rhinotmetus (“the Slit-Nosed”), the Eastern fathers convened the Quinisext Council, called the Council “In Trullo” (“under the dome,” because of the building in which it was held), held in 691-692. The Quinisext Council sought to reestablish some semblance of clerical discipline, but the problem was that a married, sexually active clergy had grown so much over the previous century and a half that there was little interest in returning to the prior discipline—if there was even a general knowledge of what the older discipline was.
The Quinisext Council would formally endorse a sexually active priesthood, seeing it as a path of moderation in contrast to the discipline of Rome, which it called “the way of exact perfection.” (21) The council insisted its declaration was in continuity with tradition by a tenuous appeal to the spurious Apostolic Constitutions and what appears to be a deliberate distortion of the early 5th century synods of Carthage. The details of the Quinisext Council’s manipulation of the Carthaginian canons is covered in great detail in another essay, “The Quinisext Council in Trullo and Priestly Celibacy,” which those interested in contuing this study should review.
Conclusion
The development of the Church’s discipline relating to clerical celibacy is complex, developing over many centuries until it took divergent paths in the East and West at the dawn of the Middle Ages. While we have endeavored to show that today’s custom among the Orthodox was not the ancient tradition, it should be pointed out that today’s Latin rite custom does not follow the ancient tradition either. Both East and West once allowed married clerics but expected perfect continence from them; the West retained continence while phasing out marriage, while the East retained marriage while phasing out continence. The West and East both drew a line in the clergy determing when marriage was forbidden—for the West, it was at major orders; the East drew that line at the episcopate. Neither of these reflect the ancient custom, which allowed clerics at every degree of orders to marry so long as they observed continence.
That being the case, it is a fruitless endeavor to argue which discipline is “correct”—if by correct we mean apostolic, since neither is. Still less should this give occasion to gripe at the Eastern Catholic churches, who maintain their own traditions distinct from the Latin West and which should be respected.
At least Latin rite Catholics can generally admit that the Church’s current custom is not perfectly aligned with antiquity; the Orthodox, however, tend to obstinately insist that theirs is, which is manifestly false. If we were to adjudicate which tradition is older, it is unquestionably the Latin, for the Latins retain the more ancient discipline of insisting on absolute continence from the priesthood, whereas Orthodox discipline developed to permit sexually active priests, something unknown for the first six centuries of Christianity. There is a tendency in contemporary ecumenical dialogue to simply assume ipso facto that the traditions emerging from Byzantium are more ancient than those of Rome. This series of articles should demonstrate that this is far from true.
(1) The Codex Gregorianus, promulgated around 291 during the reign of Diocletian, is a compilation of laws dating back to the time of Hadrian. The Codex Hermogenianus is a compilation of the Diocletianic jurist Aurelius Hermogenianus and contained the decrees of the Tetrarchs. The Codex Theodosianus, published in 438 by Theodosius II, was a compilation of laws promulgated by the Christian emperors, dating back to the year 312.
(2) Christian Cochini, Apostolic Origins of Priestly Celibacy (Ignatius Press: San Francisco, 1981), 352
(3) Codex Justinianus, I, 3, 44. CJC (J) 2, 30-31.
(4) A praetorian prefecture was the largest administrative division of the late Roman Empire, above the mid-level dioceses and the low-level provinces. The prefect was the highest civilian official in the prefecture. The prefecture system would be retained until the 7th century, when the theme system was adopted in the wake of the Muslim invasions.
(5) Codex Justinianus, I, 3, 41. CJC (J) 2, 25-26
(6) Fr. Christian Cochini, Apostolic Origins of Priestly Celibacy (Ignatius Press: San Francisco, 1981), 354
(7) Codex Justinianus, I, 33, 44. CJC (J) 2, 30-31.
(8) Council of Chalcedon, Canon 14
(9) Codex Justinianus, I, 3, 47. CJC (J) 2, 34
(10) Cochini, 354
(11) CJC (J) 3, 36-37
(12) Ibid., 42-43
(13) CJC (J), 3, 176
(14) CJC (J), 3, 594
(15) Ibid., 604
(16) Ibid., 605
(17) Ibid., 615-616
(18) CJC (J) 3, 695-97
(19) Codex Justinianus, I, 3, 19. CJC (J) 2, 20
(20) See Canon 3 of Nicaea
(21) Quinisext Council, Canon 3
Phillip Campbell, “The Justinian Code and the Emergence of Clerical Marriage in Byzantium,” Unam Sanctam Catholicam, Sept. 17, 2024. Available online at https://unamsanctamcatholicam.com/2024/09/the-justinian-code-and-the-emergence-of-clerical-marriage-in-byzantium