Luther: Adulterous Women are Saved

The following is from the web page Luther, Exposing the Myth, under the heading "Marriage and Women":

“Suppose I should counsel the wife of an impotent man, with his consent, to giver herself to another, say her husband’s brother, but to keep this marriage secret and to ascribe the children to the so-called putative father. The question is: Is such a women in a saved state? I answer, certainly" [On Marriage].

Luther Exposing the Myth says their stated purpose is to show that "from Luther’s own words we shall see him for what he really was, that is a rebellious apostate, who abandoned the faith and led many into apostasy from God under the guise of “reformation” in order to follow his perverse inclinations." With this quote, they attempt to show Christ taught against adultery, while Luther blatantly sanctioned it.

Documentation
Luther, Exposing the Myth merely cites "On Marriage" without any location reference (version, volume, page number etc.). This quote was probably plagiarized from this secondary source. Notice the similarities:

Luther did write a treatise on marriage entitled The Estate of Marriage, 1522 (LW 45; Uom Eelichen Leben, WA 10{II}, 275–304). This quote though isn't from that treatise. It's from an entirely different treatise, De Captivitate Babylonica Ecclesiae, 1520 (WA 6:497-573). The quote can be found at WA 6:558,

This treatise has been translated a number of times into English: The Babylonian Captivity of the Church. It is found in LW 36. The quote under scrutiny can be found at LW 36:103.

Historical Context
Marriage in the sixteenth century was regulated by a confusing papal jurisdiction, influenced by such writings like The Summa de Casibus Conscientiae. That work listed eighteen impediments to marriage. The New Schaff-Herzog Encyclopedia of Religious Knowledge likewise outlines many of the complicated rules of marriage (see vol. VII: 200-203). As the Reformation took away the influence of the Roman church, the rules surrounding marriage needed to be addressed.

Luther had earlier discussed man-made rules surrounding marriage in The Babylonian Captivity of the Church [LW 36:97]. The prevailing marriage rules lead to a number of abuses (for instance, secret marriages, and confusing legal entanglements). What was Luther's solution to the papal mess of marriage rules? Evaluate them, toss out a number of them and try to come up with a simpler and better system regulated in most part by the state. In The Estate of Marriage Luther begins by stating,

How I dread preaching on the estate of marriage! I am reluctant to do it because I am afraid if I once get really involved in the subject it will make a lot of work for me and for others. The shameful confusion wrought by the accursed papal law has occasioned so much distress, and the lax authority of both the spiritual and the temporal swords has given rise to so many dreadful abuses and false situations, that I would much prefer neither to look into the matter nor to hear of it. [LW 45:17].

Luther begins The Estate of Marriage by making three points. First, God made men and women, and each should honor the other as creation of God. Second, he discusses the blessing of "be fruitful and multiply" and how God has built this desire into mankind. He then notes three classes of people that cannot "be fruitful and multiply." "...in Matthew 19[:12], 'There are eunuchs who have been so from birth, and there are eunuchs who have been made eunuchs by men, and there are eunuchs who have made themselves eunuchs for the sake of the kingdom of heaven.' Apart from these three groups, let no man presume to be without a spouse" [LW 45:18]. In regard to the first classification, these Luther describes as impotent, and exempt from "be fruitful and multiply."

Context
In The Babylonian Captivity of the Church, Luther had earlier expounded on a special situation regarding impotent people:

Consider the following case: A woman, wed to an impotent man, is unable to prove her husband’s impotence in court, or perhaps she is unwilling to do so with the mass of evidence and all the notoriety which the law demands; yet she is desirous of having children or is unable to remain continent. Now suppose I had counseled her to procure a divorce from her husband in order to marry another, satisfied that her own and her husband’s conscience and their experience were ample testimony of his impotence; but the husband refused his consent to this. Then I would further counsel her, with the consent of the man (who is not really her husband, but only a dweller under the same roof with her), to have intercourse with another, say her husband’s brother, but to keep this marriage secret and to ascribe the children to the so-called putative father. The question is: Is such a woman saved and in a saved state? I answer: Certainly, because in this case an error, ignorance of the man’s impotence, impedes the marriage; and the tyranny of the laws permits no divorce. But the woman is free through the divine law, and cannot be compelled to remain continent. Therefore the man ought to concede her right, and give up to somebody else the wife who is his only in outward appearance [LW 36:103].

He picks up the same theme again The Estate of Marriage:

I once wrote down some advice concerning such persons for those who hear confession. It related to those cases where a husband or wife comes and wants to learn what he should do: his spouse is unable to fulfil the conjugal duty, yet he cannot get along without it because he finds that God’s ordinance to multiply is still in force within him. Here they have accused me of teaching that when a husband is unable to satisfy his wife’s sexual desire she should run to somebody else. Let the topsyturvy liars spread their lies. The words of Christ and his apostles were turned upside down; should they not also turn my words topsy-turvy? To whose detriment it will be they shall surely find out.

What I said was this: if a woman who is fit for marriage has a husband who is not, and she is unable openly to take unto hersell another—and unwilling, too, to do anything dishonorable—since the pope in such a case demands without cause abundant testimony and evidence, she should say to her husband, “Look, my dear husband, you are unable to fulfil your conjugal duty toward me; you have cheated me out of my maidenhood and even imperiled my honor and my soul's salvation; in the sight of God there is no real marriage between us. Grant me the privilege of contracting a secret marriage with your brother or closest relative, and you retain the title of husband so that your property will not fall to strangers. Consent to being betrayed voluntarily by me, as you have betrayed me without my consent.”

I stated further that the husband is obligated to consent to such an arrangement and thus to provide for her the conjugal duty and children, and that if he refuses to do so she should secretly flee from him to some other country and there contract a marriage. I gave this advice at a time when I was still timid. However, I should like now to give sounder advice in the matter, and take a firmer grip on the wool of a man who thus makes a fool of his wife. The same principle would apply if the circumstances were reversed, although this happens less frequently in the case of wives than of husbands. It will not do to lead one’s fellow-man around by the nose so wantonly in matters of such great import involving his body, goods, honor, and salvation. He has to be told to make it right.[LW 45:19-20]

Conclusion
What would provoke Luther's view? He explains that the popular rules surrounding marriage and impotence were fraught with trouble:

The fourteenth impediment is the one touched on already, when a husband or wife is unfit for marriage. Among these eighteen impediments this one is the only sound reason for dissolving a marriage. Yet it is hedged about by so many laws that it is difficult to accomplish with the ecclesiastical tyrants [LW 45:29].

Another motivating factor behind such comments like this from Luther is a deep disdain for divorce. Steven Ozment notes:

Luther personally preferred secret bigamy to divorce and remarriage, when a marriage had irretrievably broken down. He sanctioned such an arrangement for women with impotent husbands as early as 1521. If a woman in such a situation could not take her case to the divorce court out of fear of notoriety, he advised that she enter with her husband's consent a secret marriage with his brother or another male mutually agreed upon, and raise any children of this second union as if they were those of the impotent husband. Luther preferred such an arrangement to outright divorce because he believed it ensured continuing companionship and support for each spouse (in this case, psychological for the husband and financial for the wife), while at the same time it prevented whoring and adultery on the part of the healthy spouse (in this case, the wife), who gained from it a regular sexual outlet [Steven Ozment, Protestants, The Birth of a Revolution (New York: Image Books, 1991), p. 163]

But before the defenders of Rome pick up rocks to throw at Luther, the term annulment is used when Rome's authority determines a true marriage between the persons concerned is invalid. Would not the situation described by Luther probably fall under annulment? Consider the following from the Code of Canon Law:

Canon 1084 of the code of Canon Law; §1 Antecedent and perpetual impotence to have sexual intercourse, whether on the part of the man or on that of the woman, whether absolute or relative, by its very nature invalidates marriage.

If one applies a Roman paradigm to the situation described by Luther, a Roman court evaluating the same case could very well grant the annulment, allowing the non-impotent spouse to remarry. In which case, the non-impotent spouse remarries, and produces children. The effect being that in Luther's words, the spouse runs to another to have sexual desire fulfilled. The impotent ex-spouse, in the fabric of sixteenth century society,could face dire consequences. While Luther's solution is fraught with trouble, the Roman solution likewise suffers. It appears from Luther's comments, the Roman system handled such cases poorly, particularly if the innocent party was female.

Granted, Luther's solutions solve some problems but cause others. I don't condone Luther's view, at all. I do think though that Roman criticism is unjustified: it assumes sixteenth century Romanism had a better solution, which it did not.