Does Luther Condone Premarital Relations for Engaged Couples?

Here's a Luther-related post from a discussion board:

I found this oddity from Luther in my reading...

Secret intercourse of those betrothed to each other can certainly not be considered fornication; for it takes place in the name and with the intention of marriage, a desire, intention, or name which fornication does not have. Thus there is a great difference indeed between fornication and secret intercourse after the promise of marriage.—Martin Luther (W 30 III, 226f—E 23, 123—SL 10, 781)​

What possible Scriptural justification can there be for such a position?

Yes, this quote is an oddity, in that it surprisingly doesn't get a lot of attention. Why would Martin Luther be advocating sex outside of marriage? Is it because he had lax morals? Was it because he was "a fallen-away monk with unbridled lust"? Neither. Luther was not condoning pre-marital sex in the modern sense, nor was advocating a sort of sowing wild oats previous to marriage.  I've covered this quote previously and extensively (2009), but let's take a fresh look.

Documentation
While references to primary collections of Luther'w writings are provided (W 30 III, 226f—E 23, 123—SL 10, 781), the actual English rendering is that done by Ewald Plass in his anthology, What Luther Says. The comment comes in the section on "Marriage" (Plass systematizes Luther thoughts on this topic). After providing a comment from Luther on "Possible Reasons for Voiding an Engagement," Plass then states, "TO AVOID OFFENSE, the betrothed should not live as married people. But any premature sexual intimacy between them, although reprehensible, should not be called fornication." Then Plass provides the quote in question.

An English rendering of the quote can also be found from the treatise in which it originated, Luther's Concerning Matrimonial Matters, 1530 (LW 46:293). As the Reformation progressed is some areas, some of the specifics of canon law were no longer regulating marriage. Luther was looked to for insight into developing Biblical and practical rules on marriage. The editors of LW 46 explain he develops five points which he supported with arguments drawn from "Scripture, law, and common sense" (LW 46:262).

Much of the treatise deals with the problem of secret engagements and public engagements, secret marriages and public marriages. Situations were arising in which a couple made a secret engagement, but then one person would break this secret engagement by entering into a public engagement with someone else. Similarly, there were secret marriages in which one of the parties would leave and begin a public marriage with a different person. Did the secret engagement or marriage overrule a public engagement or marriage? These were complicated societal issues.


Context
The pertinent section of text begins on page 289 of LW 46 in a discussion of  "what if someone becomes publicly engaged to a person and meanwhile keeps silent about the fact that he has previously been secretly engaged to another, and has even lain with her and made her pregnant?" (LW 46:289). Luther responds:

In such a case I would render this decision: If the secret engagement and lying together are known or proven, then in such a case the scoundrel shall first be punished for so deceiving and humiliating the maid and her parents or the widow and her relatives with a public betrothal; and after he has been punished, the second betrothal, which has not yet been consummated, shall yield to the secret one, which has been consummated, as we have said above (LW 46:290).

He continues:

But if anyone were to pretend that injustice and damage are done to the publicly betrothed bride if she is separated because the man has previously lain with the first woman, the answer should be this: She nonetheless retains her highest treasure, her honor; and her innocence too is to be highly regarded and praised, because she is deceived and must suffer this separation without deserving it. She should take into consideration what she would do if her betrothed sweetheart had previously become engaged to another woman or had become publicly engaged to someone elsewhere—then she would still have to be separated and suffer all this. If in addition her deceiver is punished, her innocence becomes all the more worthy of respect, and this deception turns out to her best advantage.

But that other poor girl now is left with nothing, and the punishment does not restore her honor, and a woman who has lost her honor is quite worthless because we do not regard the fruit of the womb as highly as the Jews. Yet this lying together in secret in anticipation of betrothal cannot be reckoned as whoredom, for it takes place in the name and with the intention of marriage, which spirit, intention, or name whoredom does not have. Therefore there is a great difference between whoredom and lying together in secret with the intention of betrothed marriage. Indeed, no Christian or honest man would do otherwise if he had gone so far that he would make the mistake of lying secretly with a girl on the promise of betrothal, if he thought that he would have to keep her and disavow all public betrothals subsequently entered upon.

However, I have written this article as a warning which anyone may regard as he pleases, for I have learned from experience what a coarse rabble there is in the world. Loose fellows are wandering around and running through the land from one place to the other, and wherever one of them sees a wench that takes his fancy he starts getting hot and right away he tries to see how he can get her, goes ahead and gets engaged again, and thus wants to forget and abandon the first engagement that he entered into elsewhere with another woman. And what is worse, they go ahead and have their wedding—some even get married in several places and so carry on a great and shameful scandal in the name and under the appearance of marriage.

This is where the pastors should be careful to warn their people and point out this danger, namely, that no citizen or peasant should give his child in marriage to a strange fellow or man, and that the authorities, too, should not permit such a marriage. The pastor should not publish the bans, marry, or bestow his blessing upon any of these people, but if they are strangers, men or women, they should be required to furnish adequate testimonials of their character, both written and oral, so that one may be certain what kind of people they are, whether they are single or married, honest or dishonest, as do some craftsmen who demand letters of recommendation from their fellow craftsmen, and as the monks used to do who would not accept anyone unless they knew that he was free and not obligated to anyone by betrothal, debt, or servitude. How much more should one demand such recommendations from strange men or women who wish to enter into matrimony! It is certainly a matter of importance for every person to see what kind of spouse he is getting and to whom he is giving his child or relative. It is also up to the council and the community to see what kind of male or female citizen and member they are getting in their community.

For we learn from experience, as has been said, that rascals and wenches run here and there, taking wives and husbands merely to perpetrate their skulduggery, and afterward steal all they can and run off. They treat marriage as the Tartars and gypsies do, who continually celebrate weddings and baptisms wherever they go, so that a girl may well be a bride ten times and a child be baptized ten times. I know a village not far from here—I will not mention the name of the region (I do not want to mention it for the sake of its reputation)—where, when our gospel came, we found thirty-two couples living together out of wedlock, where either the husband or the wife was a fugitive. I did not think that there were many more than thirty-two houses or inhabitants in the place. The good bishops, officials, and authorities had so managed and looked after things that in this hiding place there were gathered together all those who had been driven out of or had run away from other places. But now, praise God, the gospel has swept away this scandal so cleanly that no open adultery, whoredom, or illicit cohabitation is any longer tolerated anywhere. And yet the poor gospel must be called a heresy from which no good comes! (LW 46:293-294).

Conclusion
While Plass was not wrong in his prefatory comment, the context shows the extracted quote comes from a complicated text. The context is about secret marriages. Basically: if a man has a secret engagement to a woman, promises her the moon and the stars, has his way with her, but then has a public engagement to another woman, that previous woman should not be considered a harlot. Luther says of the secret couple, their "lying together in secret in anticipation of betrothal cannot be reckoned as whoredom" because "it takes place in the name and with the intention of marriage." That is, to punish her as a societal whore is totally unjustified. She was not selling sex, she was enticed by a man with a promise of marriage. Luther then hypothetically argues a man would never sleep with a woman and promise her marriage if he knew that his private engagement would nullify his public engagement. That is, only a scoundrel would do such a thing, and he should be forced to marry the woman to retain her honor.

To complicate this further, the introductory comments to Concerning Matrimonial Matters provide another interesting explanation that relates to this quote:

Over the centuries the old Roman law and practice expanded to accommodate other national customs, particularly those of the Germans. According to German custom, an agreement to marry in the future (i.e., engagement) followed by intercourse constituted a marriage. This accommodation gave rise to a fine distinction between the sponsalia de futuro and sponsalia de praesenti (a consent to marry in the future and a consent to marry in the present). Gradually, however, this distinction became theoretical rather than functional (LW 46:261-262). 

On this point, LW 46 provides a reference: Paul Hansen, Engagement and Marriage, a Sociological Historical and Theological Investigation of Engagement and Marriage (St. Louis: Concordia Publishing House, 1959), p. 65. This text states,

It must be remembered that in the early Middle Ages the church was strongly influenced by the German idea that betrothal was an inchoate marriage, and according to The New International Encyclopedia, the church in the twelfth century went back to the Roman view that an agreement de futuro was a thing wholly distinct from marriage. Nevertheless, some concessions were still made to German ideas, namely, that an agreement to marry in the future, plus subsequent concubitus, constituted marriage. On the whole the canonical marriage was the consensual marriage of the Roman law made indissoluble.

This book cites "Marriage," The New International Encyclopedia, eds. Gilman, Colt, Kirby (New York: Dodd, Mead and Co., 1903), XI, 903.  To put it nicely, it appears that there was some liberal borrowing done from this encyclopedia. While I did not locate a 1903 edition, I did locate a 1905 edition.  This text states,

It should be noted, however, that the Church's view of betrothal changed in the twelfth century. In the early Middle Ages the Church was strongly influenced by the German idea that betrothal was an inchoate marriage. In the twelfth century it went back to the Roman view that an agreement de futuro was a thing wholly distinct from marriage. Nevertheless some concessions were still made to German ideas. It was admitted that an agreement to marry in future and subsequent concubitus constituted marriage. Moreover, marriages not consummated were treated somewhat differently from those which had been consummated: they were annulled with more freedom. On the whole, the canonical marriage was the consensual marriage of the Roman law, made indissoluble.

It appears that Luther functioned under this societal paradigm that an engagement to marry was as binding as a marriage itself. In the same treatise,  Luther goes on to discuss what happens to a secretly betrothed man that has sex with another woman after a public engagement has been announced. Is it adultery? Yes, and it cannot be used to break the previous engagement.  Luther says:

Since we have heard above that a girl who has been publicly betrothed is considered a wedded wife, and this public betrothal, if it is pure and free from any lying together with other girls beforehand, forms a true, honest marriage, then the man also is certainly a true husband. And because it is not proper among us to have more than a single wife, who is one’s only wedded wife, the man is no longer master of his body and cannot touch another woman without committing adultery. Likewise there is also a great difference between lying together before public betrothal and lying together after public betrothal. For prior to the public betrothal the man is still single and free, and does not commit adultery by lying with the woman to whom he is secretly betrothed, but after the public betrothal he is no longer single; he is a bridegroom and a husband. (LW 46:298).