Can a Christian marry his deceased brother's wife?

When looking back at King Henry VIII, we see a problem that had been purely contrived.

This is remarkable considering the fact that more than 30 (probably mainly catholic) experts had been consulted and principally came to the same conclusion (see Foxe's Book of Martyrs). Theology in those days must have been abysmal, but we cannot blame those who were not part of the Catholic Church, because they had just gotten their Bibles and were fed on spiritual crumps.

Thankfully we have now fully realized and widely accepted that death indeed terminates any marriage, and that it definitely allows remarriage. The Levirate Law might be descriptive for Gentiles, but it is certainly not the contrary of being prescriptive as claimed by many.

The 600+ Old Covenant Laws still function as principles, especially when it comes to topics such as 'incest', a matter we would certainly also not reverse from the negative command into a positive command just because Jesus abolished the condemnation of the Old Covenant Law.

In the same manner, we cannot reverse a positive command (Marry the -former- wife of your deceased brother! - Levirate Law) into a negative command (Do not marry her!). This would be a prime example of legalism - adding stuff to the Bible that is based on tradition of man.

In short, if God commanded to marry the -former- wife of a deseased brother, we have at least the freedom to do the same, although probably not anymore the obligation to do so.

Lev 18:18 And you shall not take a woman as a rival wife to her sister, uncovering her nakedness -WHILE- her sister is still alive.

Differing views have been held about this. It has, at times, been the subject of a great deal of controversy, perhaps most prominently concerning the marital arrangements of Henry VIII in the 16th century. It was debated almost every year in the UK Parliament for much of the 19th century.

It was not allowed in the Church of England, or in the UK generally, until 1921. There was a prohibition against it in the Roman Catholic Church until the 1983 Code of Canon Law came out, although a dispensation could be obtained. At one time a dispensation could come only from the pope, but later from the local bishop.

An equivalent way of expressing this is that it was not, in fact, prohibited in the Roman Catholic Church at all: it simply required a different level of authorisation.

The question of whether a man may marry his brother's widow is dealt with in the Old Testament, both in Leviticus and Deuteronomy. There is an apparent contradiction.

In Leviticus chapter 18 verse 6 forbids sexual relations with close relatives. The following verses list various relatives such as mother, daughter, sister, aunt and, in verse 16, brother's wife.

So, according to Leviticus, a man may not marry his brother's widow.

One objection to this conclusion is to wonder whether it applies only while the brother is still living. However, as adultery is already forbidden, there would be no need to specify a list of relatives unless this applied after the marriage was ended (i.e. in this case the brother had died). The verse has been widely thought to apply to one's brother's widow. A man may not marry his brother's widow; just as he must not have sex with his mother. He must not marry his mother even after his father's death. He must not marry his sister-in-law even after his brother's death. His sister-in-law and his mother are perfectly free to re-marry after the deaths of their husbands, but just not to him.

Against this however, there is "Levirate" marriage. This is in Deuteronomy 25:5.

If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger: her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of an husband's brother unto her. And it shall be, that the firstborn which she beareth shall succeed in the name of his brother which is dead, that his name be not put out of Israel.

This, then, appears to contradict Leviticus and say expressly that a man ought, in certain circumstances, to marry his brother's widow.

How can these be reconciled?

Perhaps the most common way was to take Deuteronomy as expressing a general rule, and Leviticus an exception. Others, including Calvin, interpreted the word "brother" in Leviticus as meaning a kinsman but not actually a brother. In this way a widow may not marry her husband's brother, but some other kinsman. This is supported from Ruth who, before marrying Boas, had to allow a nearer kinsman "first refusal". This, however, could be said to reflect Jewish custom rather than divine law.

Catherine of Aragon, daughter of the King of Spain, was first married to Prince Arthur, elder son of King Henry VII. Arthur died. Some, including Catherine herself, said the marriage was never consumated. Arthur was not well, it is said, or not mature.

From a political perspective, it was diplomatically advantageous that the king of Spain's daughter become Queen of England, and if not as wife of king Arthur (as he would become) then as wife of his younger brother Prince Henry. When Henry VII died then Prince Henry became king as Henry VIII. Shortly afterwards he married his brother's widow.

This was recognised as problematical. It was against church law but the Pope granted a dispensation. Henry was allowed to marry Catherine, despite the rules in Leviticus and the canon law of the Church.

The Deuteronomy rule applied only to "brothers" living together, and Arthur and Henry had mostly been brought up apart. They were certainly not living together during the time of Prince Arthur and Catherine's marriage. As Prince and Princess of Wales they resided in Ludlow Castle. Anyway, it was not argued to permit Henry and Catherine to wed. They relied instead on a papal dispensation.

Some twenty years later, Catherine had had seven children but all died very young or were stillborn. Only one, a girl survived infancy. Before Henry VII came to the throne in 1485 there had been civil wars known as the Wars of the Roses. Henry VIII needed a male heir. The country needed a male heir, it was widely felt, otherwise civil war threatened again. Henry may or may not have been infatuated with Anne Boleyn, but the need for a male heir and Catherine's inability to provide one, were matters of the utmost importancand Henry was not alone in recognising something needed to be done.

Henry and his ministers gathered theological opinions from all over Europe as @ThomasLorenz points out. The main thrust of attack was whether Henry's marriage to Catherine had been unlawful, and therefore Henry was free to marry Ann Boleyn.

The arguments were complex. Were the provisions in Leviticus divine law, or did they apply only to the Jews? If they were divine law, did the Pope have authority to issue the dispensation that allowed Henry and Catherine to marry in the first place. Most said no. If they were merely ecclesiastical laws, even though framed on Leviticus, then many said yes.

It is also the case that Henry spent a lot of money to secure favourable opinions on his case from prominent theologians. Were these bribes? Or were they more akin to lawyers fees? Henry was asking people to do a lot of investigation into all aspects of the question and present the matter in the most favourable light. This is what governments ask lawyers to do today.

The opinions of the theologians were not "votes" but arguments in favour of various aspects of Henry's case. Ultimately the Pope was not persuaded and refused to annul Henry and Catherine's marriage. However, the Holy Roman Emperor Charles V, Catherine's nephew, was occupying Rome and th ePope was not in a strong position to support Henry even if he had been persuaded of the merits of the case.

Luther favoured Henry taking another wife, bigamously, as the lesser evil. Ultimately Henry took from Luther a different approach. He rejected Papal authority anyway and Archbishop Cranmer annulled the marriage between Henry and Catherine.

A further complication was whether Arthur ever consumated his marriage. If he did not, and Catherine said he did not, then no impediment ever existed to henry and Catherine marrying.

Bishop Fisher of Rochester believed there were arguments for and against the annullment. He was appointed to represent Catherine's interests at one time. Once the Pope had spoken definitively, Fisher felt that must be respected. There were arguments in Henry's favour and against him. It was, according to Fisher, the Pope's duty and responsibility to rule on all such matters.

Perhaps nobody imagined it would start a split that, almost half a millenium later, shows little sign of healing.

Marriage vows say 'til/until death do us part' - so it seems that once a marriage partner is dead, the other in that partnership is no longer married. Ergo sum it appears as though Henry's 'problem' regarding his 'first' wife was contrived rather than a legal reality.

1. Jesus was quoting Jewish (not necessarily Christian) Law and Practice

Jesus was referencing a Jewish custom called levirite marriage. In the Torah, at Deuteronomy 25:5-6, God specifically commands the Israelites to practice this custom, with the explicit purpose that the brother who shall have died should not "have his name blotted out." Put another way, he wanted to provide for the surviving widow and the family legacy.

Indeed, the story of Judah and Tamar even highlighted the crime that Judah committed against Tamar, leaving her destitute and childless when he withheld his third son from Tamar, after both Onan and Er died.

As both custom and Jewish law then, one can clearly establish it was Jewish, but then it raises the question To what extent does the Law of Moses apply?. There are cases to be made that the Torah (also called "the Covenant") does not apply because it was a specific contract between God and the Jews at a specific point in history. (This is called dispensationalism and is very common amongst many Christians.) There is also a counter case, but that is a rabbit trail, because there is a much greater issue with the question.

2. It is bad exegesis to assume every statement is prescriptive.

Even without the context, one would clearly have to misread the text in order to even ask the question.

Jesus was arguing with the Saducees (who deny the resurrection). The Saducees were the ones making an argument even they thought to be absurd here. For example, Pastafarians might well ask a Christian, "How do we know that God isn't a Flying Spaghetti Monster?" Let's pretend for a moment that a biblical writer observed Jesus responding to such a silly question. Would then legitimate the notion in the process? Of course not! Just because Jesus listened to someone who was wrong, it doesn't make what the person who was wrong somehow right!

The Sermon on the Mount records Jesus saying:

• “You have heard that it was said to those of old, ‘You shall not murder; and whoever murders will be liable to judgment.’ 22 But I say to you that everyone who is angry with his brother[c] will be liable to judgment;

• 27 “You have heard that it was said, ‘You shall not commit adultery.’ 28 But I say to you that everyone who looks at a woman with lustful intent has already committed adultery with her in his heart.

  In both of those cases, if one stops at the hypothetical, one misses precisely what Jesus was trying to say!

  In general, there is a tendency amongst many new or non-believers to turn the Bible into a magic talisman. There is an old joke about someone opening the bible, looking for guidance, and reading: "Judas went out and hung himself." Then, the person decides, well, maybe that isn't directly applicable. So he tries again: "Go and do thou likewise!"

  I can take any work, misread obvious intent, ignore the genre, and then find it strange.

• When I read the Song of Solomon, I see a woman and a man about to go have sex in a garden. Am I supposed to find a random woman and go have sex with her there?

• Psalm 137:9 says "Happy are they who dash their infants' heads against a rock!" Does that mean I should go kill babies?

• Matthew 19:12 says that it is better for me to cut off a part of my body than for the whole thing to be cast into hell. If I struggle with sexual thoughts, does that mean I must castrate myself?

  Obviously these are silly - no responsible Theologian, be she Christian or Atheist would assume that is responsible. There is a context, and to read without context does violence to the intent of the work.

3. The context is clear

The context is clear - Jesus' opponents bring out an obscure custom in an attempt to make Jesus look foolish. (Oh how times have changed, right?)

Jesus takes the question, listens to it, and corrects the assumption. If Jesus didn't listen, he wouldn't be kind. But how does that legitimize anything?

The Sadducees thought Jesus foolish for believing in a resurrection because woman "obviously" couldn't be married to seven men, even though that is what the Torah (which they did believe) could set up a situation where that would have been the logical result.

Jesus says - If you actually knew what heaven was like, you'd realize the absurdity of your own question.