Abstract
This essay examines civil union and same-sex marriage in relation to the Catholic doctrine of heterosexual marriage. It concludes of civil union that it is a civil reality, the concern of civil, not ecclesiastical, authority. It finds in Catholic marriage three bonds between believing spouses, of love, of law, and of Sacrament (upper case), and argues that in same-sex marriage there are three bonds, of love, of law, and of sacrament (lower case). The spouses themselves control the bond of love, a legal authority controls the bond of law, and the belief of the spouses that their marriage is a symbol of the presence of God in the world controls the bond of Sacrament/sacrament. A conclusion of the essay is that the argument of the Church against same-sex marriage is judged to be non-probative by a majority of its members, especially of its younger members, and a change could be possible.
Civil Unions
Civil unions are in the news these days following the release of Evgeny Afineevsky’s documentary ‘Francesco,’ documenting the Pope’s impact on people throughout the world as a result of his many travels. 1 The moment in the documentary that placed it in world news was the statement the Pope made about civil unions for homosexual couples. 2 The statement reportedly came in response to a letter the Pope had received from an Italian gay couple asking him how they should live as a committed couple and raise their children in a church that judges their union and their sexual acts ‘intrinsically disordered and can in no case be approved of.’ 3 Homosexuals, the Pope responded, soundly based on Catholic teaching, ‘are children of God and have a right to a family.’ In the context in which Francis was speaking, the phrase ‘have a right to a family’ is to be understood in the sense that LGBTQ children should not be rejected by their parents, but it can also be interpreted to mean that they themselves have a right to have children, necessarily by fostering or adoption. No Catholic who understands the Church’s social teaching about the God-created equal human dignity of every woman and man could doubt the truth of the statement of the human dignity of lesbian and gay persons. The United States Conference of Catholic Bishops parses this social teaching as ‘all people [including lesbian and gay people] are created in the image and likeness of God and thus possess an innate human dignity that must be acknowledged and respected.’ 4
One obvious fact lurking unacknowledged here is that civil unions are just that, civil unions and the concern, therefore, not of the Catholic Church but of duly elected civil governments. Francis has consistently defended sexuality and marriage as the church teaches, but how civil law should handle non-marital civil unions in a pluralistic society is not for him or any other ecclesiastical authority to say. His affirmation of civil unions for LGBTQ couples is not about their place in the church, it is about their place in civil society. It is about whether or not their God-created human dignity has an equal right to civil affirmation and protection with other social unions. As Matthew Sitman legitimately asks, ‘Are the lives and loves of LGBTQ people worthy of state protection?’ 5 No Pope, no bishop, no Catholic in the 21st-century church could answer that question other than in the affirmative; a negative answer would be a betrayal of the Catholic social teaching on the innate dignity of all human persons, including LGBTQ persons.
The Catholic neuralgic point, of course, is not that gays and lesbians have a God-created innate human dignity and have a right to a family; that is not in debate. The neuralgic point is whether they also have a right to be married, either civilly or in the Catholic church. The definition of marriage that controls Catholic discussion of marriage is clear in the Code of Canon Law: ‘the matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a Sacrament’ (Can. 1055). 6 Gays and lesbians, therefore, are not and cannot be suitable persons for marriage because they cannot sexually propagate together the human race, a claim that ignores the now-common experience 7 of the adoption and fostering of children by loving gay and lesbian couples. The CDF decrees against adoption by homosexual parents, arguing that ‘as experience has shown, the absence of sexual complementarity in these [homosexual] unions creates obstacles in the normal development of children who would be placed in the care of such persons.’ It goes on to assert that adoption by homosexual couples would be doing violence to the child. 8
Eight years before the publication of this CDF document, in a conspectus of the evidence then available, psychologist Charlotte Patterson showed that ‘not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect [including sexual development] relative to children of heterosexual parents.’ 9 In her earlier 1993 conspectus of the evidence, psychologist Joan Laird concluded that the scientific data then available actually showed that homosexual parents are somewhat more nurturing and tolerant than heterosexual parents and that their children are more tolerant and empathetic. 10 In 1982, following his Synod on the Family, Pope John Paul II taught that ‘the church values sociological and statistical research when it proves helpful in understanding the historical context in which pastoral action has to be developed and when it leads to a better understanding of the truth.’ 11 To its credit the American Psychological Association followed this sage advice in 2004, publishing a resolution declaring that since ‘research has shown that the adjustment, development, and well-being of children is unrelated to parental sexual orientation and that children of lesbian and gay parents are as likely as children of heterosexual parents to flourish,’ the Association opposes any discrimination based on sexual orientation. 12 The CDF ignored John Paul’s advice and disseminated information it ought to have known was false and, therefore, morally unjust. The publication ‘Children in Same-Sex Households’ offers acute theological analyses and lesbian and gay parental testimonies that show just how uninformed and false is the CDF’s judgment of children in same-sex households. 13
Pope Francis is not bothered by civil unions. ‘What we have to create,’ he declared, ‘is a civil union law. That way they are protected. I stood up for that.’ A civil union is a legally recognized social arrangement similar to marriage created primarily to provide legal recognition and protection to couples wishing to live together and to be recognized as a couple. Though civil unions can apply legally to both same-sex and heterosexual couples, in many countries they are applied only to same-sex couples. They grant most of the rights of marriage, including health, taxation, adoptive and fostering parenthood, and inheritance rights, but not the title ‘marriage.’ Countries around the world began developing civil union laws for same-sex couples in the 1990s and most of those who enacted such laws have now gone on to enact same-sex marriage laws. The legislation of civil unions has proved to be a first step in many countries toward the legislation of same-sex marriage, and that is how campaigners for LGBTQ rights look upon them. That is also why many conservative Catholics are in such a frenzy about Francis’s endorsement of them, thinking of them as a first step that will eventually lead to same-sex marriage and the subversion of Catholic doctrine on marriage.
Francis’s claim, ‘I stood up for that,’ reveals something crucial: not ‘I stand up for that,’ parsed as this is the first time I supported civil unions, but ‘I stood up for that,’ parsed as this is not the first time I have supported civil unions, I have done so already in my past life. Jorge Bergoglio first stood up for civil unions in 2002 when Archbishop of Buenos Aires. The local city government passed a civil union law that granted certain family rights to any couple, heterosexual or homosexual, cohabiting for more than two years. Bergoglio perceived the law as a simple matter of justice, not in any way threatening the Catholic doctrine of marriage, and did not oppose it. He did oppose the national Argentine government when it later introduced a same-sex marriage law which he did see as threatening the Catholic understanding of marriage. Seeking to protect the legal privileges of heterosexual marriage, the Archbishop, who at the time was President of the Argentine Bishops’ Conference, urged his fellow bishops to support a law legalizing civil unions between same-sex couples. He failed on both efforts. His fellow bishops would not support civil unions and in 2010 Argentina became the eighth country in the world to enact a law allowing same-sex marriage. Bergoglio is on record as describing that law as ‘a destructive attack on God’s plan,’ presumably for heterosexual marriage. As Pope Francis, he spoke again in support of civil unions, in both a 2014 interview in the Italian newspaper Corriere della Sera and in a 2017 interview with the French sociologist Dominique Wotton. The present headlines, therefore, are simply false. October 2020 is not the first time that Pope Francis has urged the legalization of civil unions for the legal protection of both heterosexual marriage and homosexual couples. His support for both the exclusivity of heterosexual marriage and the legal protection of homosexual couples in civil unions has been long-standing.
The Pope’s public urging of legally protecting civil unions for gay and lesbian couples is a huge step for the Catholic Church. It changes nothing in terms of Catholic moral doctrine, but it also changes everything. It does not establish any official church moral doctrine, but the public suggestion that the God-given human dignity of gay and lesbian loving couples is in need of legal protection is a momentous enhancement of their support. One year after the enacting of a civil union law by the city government of Buenos Aires and Archbishop Bergoglio’s non-opposition to that law, the CDF issued a document ‘Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons’ that declared that there are ‘absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family. . .. Under no circumstances can they be approved.’ 14 That judgment reflects the judgment, too, of Pope Francis who repeated it in his post-synodal Apostolic Exhortation, Amoris laetitia 52 (hereafter AL). The CDF’s document is full of rules and prohibitions embedded in the Catholic doctrine of marriage with no concern for the needs of homosexual couples or of what God might be asking of them and of the CDF in the contemporary world. While making it clear that homosexual unions were in no way analogous to marriage, the Pope’s document is filled with pastoral discernment and compassion.
‘It can no longer simply be said,’ Francis teaches, ‘that all those in any “irregular” situation are living in a state of mortal sin and are deprived of sanctifying grace’ (AL 301). That teaching seriously challenges the prevalent Catholic teaching that those living in ‘irregular’ situations, like cohabitation and same-sex marriage, and engaging in sexual intercourse are living in a state of mortal sin. The Pope goes on to cite the judgment of the Synod Fathers that ‘factors may exist which limit the ability to make a decision.’ 15 That judgment is a firm Catholic judgment and the Catechism lists such factors: ‘Imputability and responsibility for an action can be diminished or even nullified by ignorance, inadvertence, duress, fear, habit, inordinate attachments, and other psychological or social factors’ (AL 302). 16 He also cites the teaching of Thomas Aquinas that is well-known to Catholic theological ethicists and invites all to incorporate it into their pastoral discernment. ‘Although there is necessity in the general principles, the more we descend to matters of detail the more frequently we encounter defects. . .. In matters of action, truth or practical rectitude is not the same for all as to matters of detail but only as to the general principles. . .. The principle will be found to fail according as we descend into detail’ (AL 304). 17 This argument is popularly stated as the devil is in the details. It is critical and instructive to discern both what Francis is saying and not saying here. He is clearly saying what he has always believed, namely, that homosexual unions are not to be thought of as in any way analogous to heterosexual marriages. He is just as clearly not saying, as the CDF said in 1975, that ‘homosexual acts are intrinsically disordered and cannot be approved of.’ 18 As an empathetic and compassionate pastor, he argues, speaking of the CDF without naming it, that we ‘cannot feel that it is enough to apply moral laws to those living in “irregular” situations as if they were stones to throw at people’s lives. This would bespeak the closed heart of one used to hiding behind the church’s teachings, sitting on the chair of Moses and judging at times with superiority and superficiality difficult cases and wounded families’ (AL 305). Francis’s approach is not to judge with superiority and superficiality but to ask the hard questions about the details and circumstances of the lives of wounded families in ‘irregular’ situations.
We have argued elsewhere 19 that Pope Francis’s ‘new pastoral methods,’ which require that ‘different communities will have to devise more practical and effective initiatives that respect both the Church’s teaching and local problems and needs’ (AL 199), have opened the door for the organic development of Catholic doctrine. In one sense, his support for the legalization of same-sex civil unions puts him at odds with the official sexual doctrine of the Catholic Church, which teaches that ‘homosexual acts are intrinsically disordered’ and ‘under no circumstances can they be approved.’ 20 In another sense, it puts him firmly in the context of the social doctrine of the Catholic Church that promotes human dignity, opposes all discrimination, and teaches that homosexual people ‘must be accepted with respect, compassion, and sensitivity.’ 21 Pope Francis neither accepts nor promotes the marriage of same-sex couples in the Church, and his defense of civil unions is aimed at protecting heterosexual marriage and its privileges as well as the dignity and rights of LGBTQ couples. He does, however, recognize and promote legal protections for human dignity in both civil and church law. His pastoral statements defending LGBTQ civil unions should be read as an attempt to balance those two realities in a way that promotes human dignity, welcomes members of the LGBTQ community into the Church family, and treats them with ‘respect, compassion, and sensitivity.’ 22
Pope Francis’s recent statement has brought joy and hope to LGBTQ individuals and couples, to their families, and to their friends, but it has also brought condemnation and renewed vitriol from those opposed to him and his new pastoral methods. For them the rules and prohibitions of Catholic sexual teaching understood as absolute take precedence over any of the norms of Catholic social teaching promoting human dignity and the common good. Among these latter are some bishops who persistently lobby for ‘non-discrimination’ legislation which will allow them to discriminate legally against homosexual persons. To all these opponents of Pope Francis we point out the historically obvious: the Catholic Church has changed often in its long history and it can, and surely will, change again in the future. 23 Pope Francis has sought to guide that change by introducing empathy, compassion, and respect for the human dignity of LGBTQ individuals and couples into the 21st-century church he pastors. While Francis was not speaking of doctrine and certainly not speaking of changing any Catholic doctrine about marriage and sexuality, he is prioritizing Catholic social teaching over Catholic sexual teaching when he seeks to protect the legal rights and human dignity of LGBTQ individuals and couples. His affirming of civil unions should encourage Catholics of all stripes to be more respectful and welcoming of LGBTQ individuals and couples and their human rights.
Conscience
There is a long-standing Catholic doctrine intimately involved in any discussion of LGBTQ issues. That doctrine is the Catholic teaching on the authority and inviolability of an informed conscience. Already in the 13th century, Thomas Aquinas established the authority and inviolability of conscience. ‘Anyone upon whom the ecclesiastical authorities, in ignorance of the true facts, imposes a demand that offends against his clear conscience, should perish in excommunication rather than violate his conscience.’ 24 For any Catholic in search of moral action, including any homosexual Catholic, no clearer statement on the authority and inviolability of individual conscience could be found. Even though Catholic Church authority insists otherwise, Catholic homosexuals, unjustly prohibited by that ecclesiastical authority from entering into a civil union, and remembering that ‘imputability and responsibility for an action can be diminished or even nullified by . . . psychological or social factors’ (AL 302), may make a free and ethical personal decision of conscience to enter into a civil union. Seven hundred years after Aquinas, the last hundred of which saw the rights of personal conscience much ignored and even suppressed by Catholic ecclesiastical authority, Gaudium et Spes reissued a clarion cry in its defense. ‘Conscience is the most secret core and sanctuary of a man,’ it taught. ‘There he is alone with God whose voice echoes in his depths. In a wonderful manner conscience reveals that law which is fulfilled by love of God and neighbor’ (GS 16). Dignitatis humanae went further to assert the inviolability of conscience. ‘In all his activity a man is bound to follow his conscience faithfully, in order that he may come to God for whom he was created. It follows that he is not to be forced to act contrary to his conscience. Nor, on the other hand, is he to be restrained from acting in accordance with his conscience, especially in matters religious.’ 25
The decision to become a homosexual couple and to affirm and seal that free decision in law in a state-approved civil union is also, for Catholics, a religious issue. According to the ecclesiastical authority of the Second Vatican Council, no couple is to be restrained from making that decision and acting in accord with it. The Council’s teaching on the freedom and inviolability of conscience and the ecclesiastical authority it undoubtedly enjoys, free gay and lesbian couples wishing to enter into civil unions to do so after gathering and discerning all the information and advice they need to make a right judgment of conscience. Part of that information and free decision must be the serious consideration of the church’s teaching that homosexual acts are sinful, a teaching that has been questioned by Francis’s assertion that ‘it can no longer simply be said that all those in any “irregular” situation are living in a state of mortal sin and are deprived of sanctifying grace’ (AL 301). The church itself is obliged to accept the seriously considered and free decision of any of its LGBTQ employees to enter into a civil union. Any action taken against them as a result of their free, conscientious decision, such as dismissal from their employment, is an obvious case of unjust discrimination condemned by the church’s own social doctrine. 26
Heterosexual Marriage
Every human being has the same needs: for acceptance, trust, safety, love and, in the case of preferential and reciprocal loves, friendship. I commit myself to respond to the needs of selected others and they commit to respond to mine. We are, we say, friends, without whom, Aristotle wrote, ‘no one would choose to live, even if he had all other goods.’ 27 Friends journey through life together, revealing themselves to one another, sustaining one another, provoking one another to be the best we can be. Friends will the good of one another; in an ancient word, they love one another. 28 Aristotle distinguished three kinds of friendship: the friendship of pleasure, the friendship of usefulness, and the friendship of good in which another is loved as pleasurable or useful to me or as good in herself/himself. Aquinas distinguished love that is desire (amor concupiscentiae) and love that is friendship (amor amicitiae). In the former, I desire something as good for me; in the latter, I desire someone who is good in herself/himself. 29 It is Aristotle’s friendship of the good and Aquinas’s love of friendship we ought to intend when we say to another human being: ‘I love you.’
Though feelings are frequently associated with it, feelings are not of the essence of this love of friendship. Loving, like knowing, is essentially doing something. It is essentially affirming the well-being of some other; it is willing the good of the other. Aquinas’s distinction between knowing and loving is illuminating. ‘Knowledge is of things as they exist in the knower; the will [or love] is related to things as they exist in themselves.’ 30 To know another is to receive him/her into myself; to love another is to go out of myself into the other; love is essentially ecstatic. My going out of myself to another, however, is not yet love in its fullest sense. Both Aristotle and Aquinas insist, and we agree, that love exists in its fullness only in mutuality. 31 The mutual love between equal persons creates between them the communion, the mutual bond that is the distinguishing characteristic of lovers. It is not that love leads to communion; true love is communion. Love itself, as mutual ecstatic friend-affirmation, is already communion.
As a freely willed act, love is a species of commitment, the pledging of myself to do something. The commitment of love is to give that pledge for the whole of life; we commit to make our love permanent and indissoluble. In reality, of course, though we can intend our love to be permanent and indissoluble, we cannot make it indissoluble at any given moment of our life, for our love stretches out with our life into an unknown future. What we can do, in Margaret Farley’s wise words, is ‘initiate in the present a new form of relationship that will endure in the form of fidelity or betrayal.’ Commitment, she says, ‘is love’s way of being whole while it still grows into wholeness.’ 32 This mutual commitment of love creates a relationship, a bond, which is morally binding in itself. In every marriage, it is further bound by law; in Catholic marriage, it is bound by both law and Sacrament. From a Catholic marriage, then, arise an interpersonal, a legal, and a religious bond. All of this happens, really and ontologically, in human reality, in the interpersonal sphere of human persons.
One moment of the wedding ceremony makes the marriage valid, the moment of exchanging consent. As the Canon Law of the Catholic Church decrees, ‘a marriage is brought into being by the lawfully manifested consent’ (Can. 1057,1). All present at a wedding ceremony hang on these solemn words. ‘I, Sean, take you, Siobhan, to be my wife. I promise to be true to you in good times and in bad, in sickness and in health. I will love and honor you all the days of my life.’ 33 When Siobhan has declared her consent in similar words, they are declared ‘husband and wife,’ married. If that moment of free consent is seriously flawed, there is no valid marriage and no bond arising from the wedding. A canonical annulment, a declaration from either state or church that in this case there never was a valid marriage, could be given at any time after a flawed consent.
This marital commitment adds to the already-existing bond of love between Sean and Siobhan a bond of law. They are no longer bound together by only the bond deriving from their mutual love. They have further bound themselves by declaring their love publicly before their family, friends, church, and society, and by consenting to set it within the framework of marriage according to the laws prescribed for it by their society and church. They have bound themselves by legal ritual in a new law from which derives a new bond. Their mutual love relates them to one another by an interpersonal bond which they alone can dissolve. Their marriage relates them to one another by a legal bond, which not they but only a legal authority beyond them can dissolve. They have strengthened themselves in their love and commitment to one another ‘for all the days of their life’ (Can. 1134) by proclaiming it in a public ritual. When this publicly ratified marriage is consummated by sexual intercourse, the Catholic Church teaches, it becomes indissoluble. The spouses, that is, cannot dissolve it themselves, as they could, for instance, in ancient Rome simply by withdrawing their consent.
By committing themselves publicly to marriage, spouses give a legal form to the communion which already exists between them from the moment their love became mutual and fully real. When such a marriage is between two baptized and believing Catholics, 34 it is also a religious Sacrament. By committing themselves to Sacrament, spouses give a religious dimension to their marriage; they locate it as a human reality signifying and effecting the presence and grace of God. Catholics who commit themselves and their mutual love to Sacrament in marriage are strengthened by this Sacrament ‘and, as it were, consecrated for the duties and the dignity of their state’ (Can. 1134). There are, then, three bonds between the spouses in a marriage between two believing Catholics. Their mutual love binds them together in a bond of love. Their marriage binds them together in a bond of law. Their Sacrament binds them together in a bond of grace. These three bonds will be important when we consider same-sex marriage.
When two Catholics who love one another, therefore, commit to one another in a marriage which they intend to be a Sacrament in the world of the presence of God, they bind themselves together in an intimate communion of the whole of life by a triple bond, of love, of law, and of Sacrament. Each succeeding bond strengthens the spouses in the preceding bond, and the Church is correct in asserting that ‘in Catholic marriage the spouses are by a special Sacrament strengthened’ (Can. 1134). At this point we consider its further teaching that the spouses can dissolve the bond arising from love, that ‘a non-consummated marriage between baptized persons . . . can be dissolved by the Roman Pontiff for a just reason’ (Canon 1142), and that ‘a marriage which is ratified and consummated cannot be dissolved by any human power or by any cause other than death’ (Can. 1141).
Divorce statistics make clear that love between spouses sometimes ends. The Catholic Church claims no control over the bond of love. It decrees that when one of the spouses is guilty of adultery or any other act that ends mutual love, the other spouse has the canonical right to terminate conjugal life and ‘to bring a case for separation to the competent ecclesiastical authority’ (Can. 1152). In practice, however, this rarely happens. In the 21st century, Church authority has wisdom enough to recognize that the decision to live together in conjugal union is best left to free, personal decision. The other two bonds, of law and of Sacrament, are both regularly dissolved by the Catholic Church, ‘in favor of the faith’ (Can. 1143,1) or ‘for a just cause’ (Can. 1142). Canon 1143 legislates the practice of the so-called Pauline Privilege, derived from Paul’s ruling in his First Letter to the Corinthians (7:12–15) and is applicable only to the case of the marriage of two non-baptized persons. When it is applicable, it dissolves both a marriage judged in law to be valid and any bond of law arising from the marriage. The former spouses are then free to remarry.
Since a marriage between baptized and believing Catholics is held by the Catholic Church to be a Sacrament (Can. 1055,2), at the moment of free consent there comes into being both a valid marriage and a valid Sacrament. Canon 1142, which decrees that ‘A non-consummated marriage between baptized persons . . . can be dissolved by the Roman Pontiff for a just reason,’ gives the force of law to the long-established practice of the Catholic Church that both these bonds and obligations can be dissolved by the Roman Pontiff when a marriage has not been consummated by sexual intercourse. That the Pontiff is said to proceed to such a dissolution ‘for a just cause’ reflects the theological and canonical assumption that, in dispensing from the non-consummated bonds, he does so in virtue of his vicarious power, in the name of the God who is the ground of both a legal and a Sacramental marriage. ‘He is dispensing from God’s law not his own,’ Ladislas Orsy explains, ‘therefore he is not entitled to act without a justifying cause.’ 35
The Catholic Church believes and acts on its belief that there is power in the Church to dissolve both a valid marriage which is not a Sacrament and a valid marriage which is a Sacrament but which has not been sexually consummated. What, we now ask, does consummation add to sacrament that makes the valid and consummated marriage absolutely indissoluble? The answer, Pope Pius XI suggested, lies in the fact that a consummated marriage ‘refers to that most perfect union which exists between Christ and the church.’ 36 The ultimate reason for the indissolubility of consummated Catholic marriage lies in the fact that it is the Sacrament in the world, the symbol, the witness of the indissoluble union between Christ and his Church.
The probative value of this argument is not so easy to see in the changed theological, interpersonal climate in which the Second Vatican Council rooted its doctrine on marriage. 37 The Council made a crucial change in Catholic teaching about marriage, which was later incorporated into the revised Code of Canon Law. That change is central to any modern theological discussion of marriage and its consummation. Prior to the Council, the traditional teaching on the ends of marriage was Aquinas’s primary end–secondary end hierarchy, articulated in Canon 1013 of the 1917 Code of Canon Law, the primary end being procreation and the secondary end being the good of the spouses. Despite insistent demands from a small Roman minority to reaffirm this hierarchical terminology in the ends of marriage, the Council refused to do so. It taught explicitly that procreation ‘does not make the other ends of marriage of less account,’ and that marriage ‘is not instituted solely for procreation.’ 38 This theological judgment was later enacted into law in the 1983 revision of the Code of Canon Law which declared that marriage ‘is by its nature ordered toward the good of the spouses and the procreation and education of offspring’ (Can. 1055), neither end being specified as primary or secondary. This change of root perspective, we suggest, raises questions about the continued suitability of the Council of Trent’s claim that marriage ‘was instituted from the beginning [exclusively] for the propagation of the human race.’ If the procreation of human life, the mutual love of the spouses, and their communion are now recognized as, at least, equal ends of marriage, why should their inability to carry out the sexual act of procreation alone be offered as an argument against any civil union of homosexual persons? Why should their mutual love and communion not be considered as, at least, an equally important factor?
Same-Sex Marriage
Before we consider same-sex marriage, we must first say a word about what in our day precedes both same-sex and heterosexual marriage, namely, cohabitation, a heterosexual or homosexual couple who are not husband and wife living together and enjoying intimate sexual relations. Cohabitation is nothing new in history, though its contemporary, increasing occurrence is a fundamental social change worldwide. We first introduce an important distinction: not all cohabitors are alike. There are cohabitors who intend to marry one another, who might even be already engaged to be married, and cohabitors who have no present intention to marry one another. The former we have elsewhere named nuptial cohabiters, the latter non-nuptial cohabiters. 39 Pope Francis embraces this typology, distinguishing between ‘cohabitation which totally excludes any intention to marry’ (AL 53), our non-nuptial cohabitation, and cohabitation dictated by ‘cultural and contingent situation’ (AL 294) that can lead to marriage when circumstances permit it, our nuptial cohabitation.
Two social scientific facts about cohabitation are well-known and frequently mentioned by Catholic authorities. The first is that cohabitation increased dramatically in the western world in the last quarter of the 20th century. That increase did not leave the social climate in which cohabitation flourished untouched. Rather, as cohabitation became more and more common, it became more and more socially accepted and accounted for a significant decrease in marriages. The second fact often mentioned by commentators is that cohabitation is associated with a heightened risk of future marital divorce, 40 a fact on which there was consensus from early researchers, samples, and methodologies. This second fact has become beloved of Catholic authorities on cohabitation and its implications for subsequent marriage, 41 which leaves both them and their pastoral responses at risk of being uninformed and outdated. More recent studies on more recent cohorts report more nuanced data about the relationship of prior cohabitation and future marital instability.
As early as 1992, Robert Schoen showed that the relationship between cohabitation and subsequent marital stability was minimal for recent birth cohorts. 42 In 1997, Susan McRae demonstrated a negative association between premarital cohabitation and marital stability when she analyzed her British sample in toto. When, however, she analyzed her sample by age cohorts, her findings supported Schoen. 43 When they analyzed their data by age cohort, Lakeesha Woods and Robert Emery also reported that for recent age cohorts premarital cohabitation had no predictive effect on divorce. 44 Sheri Stritof reported the same data from Europe in 2017. 45
One of the world’s most respected marriage researchers, American psychologist Scott Stanley, endorses the thesis that not all cohabitors and all cohabiting relationships are equal. Stanley writes that ‘while not all couples are at greater risk for cohabiting prior to marriage, it’s surely a very great and unwise risk for those who are not sure they have found who they want to marry.’ 46 In our terminology, non-nuptial cohabitors are at greater risk for divorce from a subsequent marriage than nuptial cohabitors. For couples on their way to marriage, when what Pope Francis describes as ‘cultural or contingent situations,’ like poverty, that mandate cohabitation or civil marriage (AL 294) have been overcome, living together is a step on the path to marriage, not a different road altogether. Nuptial cohabiters have already committed to one another and to the process of gradually becoming married, following John Paul II’s and Francis’s ‘“law of gradualness” in the knowledge that the human being “knows, loves, and accomplishes moral good [like becoming married] by different stages of growth”.’ 47 We shall return to that law of gradualness. Lest we be mistakenly interpreted as recommending cohabitation, we note here an important advisory, namely, that children born within marriage have more stable family lives. In the United States and the United Kingdom ‘children were 57 and 69 percent (respectively) more likely to see their parents split before age 12 if their parents were cohabiting rather than married at the time of their birth.’ 48 We will have to ask later whether the marriage in question is heterosexual or same-sex marriage.
We consider now the commitment to marry, which we define as a freely chosen and faithful love. Marital commitment is twofold: commitment to the partner and commitment to the marriage. Commitment to the partner implies love, fidelity, loyalty, and fortitude amid the inevitable struggles of the relationship. Commitment to the marriage entails exclusivity, indissolubility, and the mutual personal, not necessarily biological, fertility of the marital relationship. Couples who share this double commitment manifest it in various ways. They give evidence of a strong sense of couple identity; they make their partner a high priority, and they protect their relationship from attraction to others. They take a long-term view, investing themselves in building a future together. Couples with such double commitment are satisfied with their relationship and have no need to think about possible alternatives to their partner. Happily married couples manifest such double commitment, and there is research data that shows that is as true for same-sex couples as for heterosexual couples. 49 It is precisely this commitment and the mutual love that undergirds it, Pope Francis teaches, that needs ‘to be welcomed and guided patiently and discreetly’ (AL 294). All same-sex married couples, as all heterosexual married couples, need to be accompanied by Church ministers, integrated into the Church community, and nurtured into the full reality of Christian marriage.
In his Apostolic Exhortation Amoris laetitia, Pope Francis does three eminently Catholic things. First, he makes a distinction in cohabitation; second, he invokes a long-established Catholic moral tradition that teaches that circumstances can extenuate and even nullify moral culpability; third, he invokes another long-established Catholic ethical tradition, namely, the authority and inviolability of individual conscience. We have already dealt with these issues above and we add here only what Pope Francis teaches, namely, that de facto unions like cohabitation and now widespread same-sex marriage require a constructive response from the church seeking to transform them into opportunities of grace. The church must ‘never desist from proposing the full ideal of marriage, God’s plan in all its grandeur,’ but neither must it ever desist from accompanying ‘with mercy and patience the eventual stages of personal growth as these progressively appear’ (AL 307).
Second, the Pope sprinkles his Exhortation with the Catholic teaching that ‘affective immaturity, force of acquired habit, conditions of anxiety or other psychological or social factors lessen or even extenuate moral culpability.’ 50 Taking his stand firmly in this long-established tradition, Francis specifically draws attention to the nullifying and extenuating circumstances of ‘dire poverty and great limitations,’ drug use, and family and societal violence (AL 50–51). He complains, justly, that ‘we put so many conditions on mercy that we empty it of its concrete meaning and real significance. That is the worst way of watering down the Gospel’ (AL 311). ‘It can no longer simply be said,’ he argues, ‘that all those in any irregular situation are living in a state of mortal sin and are deprived of sanctifying grace.’ A person may be ‘in a concrete situation which does not allow him or her to act differently and decide otherwise without further sin . . . factors may exist which limit the ability to make a decision’ (AL 301). These considered judgments apply to all moral issues, including same-sex marriages.
Third, Francis acknowledges and employs throughout Amoris laetitia the standard Catholic teaching on the authority and inviolability of an informed personal conscience that we considered above. He insists that ‘we have been called to form consciences not to replace them’ (AL 37) and that ‘individual conscience needs to be better incorporated into the church’s praxis in certain situations which do not objectively embody our understanding of marriage’ (AL 303). Same-sex marriage is one of those situations. The church must never desist from proposing the full grandeur of Christian marriage, but neither must it ever desist from granting the authority and inviolability of a properly informed personal conscience that is the long-traditional Catholic approach to making moral decisions underscored by the Second Vatican Council. ‘In all his activity,’ it decreed, ‘a man [every human being] is bound to follow his conscience faithfully, in order that he may come to God. . .. It follows that he is not to be forced to act contrary to his conscience. Nor, on the other hand, is he to be restrained from acting in accordance with his conscience, especially in matters religious.’ 51
It could not be clearer. What an individual Catholic needs to do to make a moral judgment is to fully inform herself/himself about the moral issue in question and then follow the judgment of her/his well-informed conscience, a practical judgment that she/he should do or not do this particular action, to cohabit or enter into a same-sex marriage, for instance, until marriage becomes personally and/or economically possible. Any such practical judgment of conscience can, of course, be in error. If the error cannot be ascribed to some moral fault, failure to engage in the necessary deliberation and discernment, for example, the practical judgment of conscience not only can but also must be followed. When couples have done all they can in their circumstances and within their limitations to gather information, to take appropriate counsel, to discern, in order to be moral they can and must follow the practical judgment of their consciences. Though he does not apply this teaching explicitly to the issue of same-sex marriage, Francis acknowledges and follows it throughout his Exhortation. It is a teaching that is doctrinally Catholic and applies to same-sex couples in all its fullness. No same-sex couple is to be forced to act contrary to her/his conscience; nor is she/he to be restrained from acting in accordance with her/his conscience, especially in matters religious and, we add, sexual.
The major stumbling block to granting moral legitimacy to any extra-marital sexual activity in the Catholic Church is the exclusive connection it has established between sexual intercourse and heterosexual marriage. Recall that its definition of marriage includes the doctrine that it is for the procreation and education of offspring, which it parses to mean that extra-marital genital activity and non-reproductive genital activity are always objectively sinful and are subjectively sinful when they are judged to be sinful and still engaged in. That doctrine certainly appears to be a major stumbling block to any claim of the moral legitimacy of same-sex marriage which church authorities continue to argue simply cannot be. Why is it, we ask, that sexual activity must always take place exclusively within marriage? We submit that one answer to that question is that sexual intercourse so radically involves all the potentials of a human person that it is best expressed and safeguarded in a stable, lasting relationship. That stable, lasting, and legally guaranteed relationship has traditionally been called marriage, understood as heterosexual marriage, but we submit that it could also be legally guaranteed in a same-sex marriage.
In the language of the received marital tradition, the heterosexual spouses’ consent to love mutually, to be permanently committed to one another, to be legally married to one another, initiates their marriage; their subsequent sexual intercourse consummates their marriage and makes it indissoluble. Same-sex couples have now demonstrated that they are equally capable of the same mutual love, the same commitment to one another and to a permanent union which, the Catholic claim of Pope Francis that ‘same-sex unions may not simply be equated with [heterosexual] marriage’ (AL 52) notwithstanding, have every civil and legal right to be called marriage. Their love of and commitment to one another and to their relationship, in fact, needs to be more than that of heterosexual couples because, even in the countries that now legally sanction same-sex marriage, they still encounter opposition to and discrimination against their marriage, including, perhaps especially, from Catholic authorities. There appears to be one genuine fact that could preclude same-sex unions from being designated as marriage, at least in its Catholic definition, namely, the inability of the spouses to propagate the human race. We have already discussed adoption and fostering by same-sex spouses as an alternative way to propagate the human race, but there is an obscure and little-known Catholic teaching that directly speaks to the inability to propagate.
After the publication of Pope Pius XI’s encyclical Casti connubii in December, 1930, a great debate raged in the Catholic Church over whether a married couple could morally intentionally avoid conception by practicing the periodic continence that came to be called Natural Family Planning. That debate was ended in 1951 when, in his influential speech to Italian midwives, Pope Pius XII declared that such periodic continence was moral as long as the spouses had ‘serious reasons’ of a ‘medical, eugenic, economic, or social kind.’ 52 He offered no specification of what such serious reasons might be other than to argue that the obligation to procreate rests not on any individual couple but on the entire human race. An individual married couple can be excused from the obligation to procreate, even for the lifetime of their marriage, if they have sufficient reason. This doctrine was solidified in 1965 when the Second Vatican Council taught that ‘marriage persists as a whole manner and communion of life, and maintains its value and indissolubility even when offspring are lacking.’ 53 The definitive, conciliar, Catholic position could not be clearer: marriage retains its dignity and value even when there are no children.
Procreation and the propagation of the human race is certainly a good of marriage in general but in the contemporary tradition of the Catholic Church it is not a necessary good of each and every individual marriage, neither heterosexual nor same-sex marriage. The argument that same-sex unions cannot be called marriage because they cannot propagate is, therefore, an argument with no probative power. The mutual love and commitment of the spouses to one another and to their permanent union has been proven to be a necessary good of all marriages, for the spouses, their children, and their marriage. In the case of infertile and post-menopausal couples, where procreation is a biological impossibility, this good is, in fact, the primary and sole good. Catholic teaching that a married couple must be ‘open to the transmission of life’ is both physiologically and morally meaningless in the case of such couples. It is no more plausible to claim that such couples can be open to the transmission of life than it is to claim that same-sex couples can be open to the transmission of life. In both cases, the mutual love and commitment of the spouses is the more than sufficient primary good of the marital relationship. Same-sex spouses have proved that both they and their unions possess this necessary good. Pope Francis’s claim that ‘same-sex unions may not simply be equated with marriage’ (AL 52) is a claim based more on Catholic ideology than on any experiential evidence.
A major change in the approach of Catholic theological ethicists to sexual sin parallels the change in this approach to marriage. The majority of Catholic ethicists are now agreed that decisions of morality or immorality in sexual ethics should be based on interpersonal relationship and circumstances, not on physical acts like masturbation, kissing, premarital, marital, and extra-marital sexual intercourse, both heterosexual and homosexual. 54 Lisa Sowle Cahill argues that ‘a truly humane interpretation of procreation, pleasure and intimacy will set their moral implications in the context of enduring personal relationships, not merely individual sexual acts. If human identity and virtue are established diachronically, then this will also be true of sexual flourishing.’ 55 Serious immorality or mortal sin is no longer decided on the basis of an individual sexual act against so-called ‘nature,’ that is, against the natural, biological, physical processes common to all farmyard animals. It is decided on the basis of human goods and human relationships built upon them. Cahill suggests such human goods as ‘equality, intimacy, and fulfillment as moral criteria’; 56 we would add the virtues of love and justice. Sexuality has three bodily meanings: intimacy of bodily contact, pleasure, and procreation. All these meanings are realized and developed diachronically in the social institutions recognized in a society, whether they be civil unions, heterosexual marriages, or same-sex marriages. Immoral sexual behavior is not defined exclusively by any isolated sexual act but rather by any less than loving, just, equal, and mutually fulfilling sexual act.
We considered above the three bonds in a Catholic marriage, the bond of love, the bond of law, and the bond of Sacrament (note the upper case). Couples in same-sex unions who intend to marry when same-sex marriage is approved in their legal system, manifest a bond of love and couples who are already in a same-sex marriage where it has been civilly and legally enacted, as it was in Argentina by government decree in 2010 and as it was in Ireland in 2015 by popular vote, manifest a bond of law. The question remains can same-sex couples ever enjoy the Catholic bond of Sacrament? That is a theological question and, we suggest, it has a theological answer. Traditional Catholic doctrine teaches that there are seven Sacraments and employs two theological categories, opus operatum and opus operantis, to explain their efficacy as channels of divine grace. 57 Opus operatum, Karl Rahner insists and we agree, is none other than opus Dei, the work of God, in the sense that ‘God’s offer of his grace to us has an absolute unconditionality and certainty which is effected by the word of God itself.’ In Sacraments this divine opus operatum ‘encounters the still open word of an individual who responds with a “yes” or a “no,” and this is the opus operantis,’ 58 the faith, hope, and love of the believer who participates in the Sacrament. It is theologically unthinkable, however, to suggest that God’s universal grace and presence in the world is exclusively channeled through the seven Catholic Sacraments, for God is permanently incarnated throughout the human world and available to everyone who believes in God and follows God’s way, truth, and life as these are understood. The Second Vatican Council declares that other religions besides Catholicism ‘strive variously to answer the restless searchings of the human heart by proposing “ways” which consist of teachings, rules of life, and sacred ceremonies’ and ‘the Catholic Church rejects nothing which is true and holy in these religions.’ 59 As in the seven Sacraments, the grace, presence, and opus operatum of God are effectively received by all believers in their believing opus operantis. Every believing, loving, and hopeful human action of women and men, including the sexual intimacy of same-sex couples in permanent loving unions, is an opus operantis that makes effective for them the always-offered opus operatum of God. Their every such action is an efficacious sign, what Catholics call a sacrament (note lower case), of the effective presence and action of God in their lives.
We are not suggesting that their everyday actions constitute an eighth upper-case Sacrament, but we are suggesting that their believing actions are an everyday lower-case sacrament, an efficacious sign of the presence and action of God in their everyday lives. There are in heterosexual marriages, then, three bonds, of Love, of Law, and of Sacrament; and there are in same-sex legal marriages three similar bonds, of Love, of Law, and of sacrament growing into Sacrament. 60 We urge all Christian ministers to heed the words of Popes John Paul II, Benedict XVI, and Francis to accompany and support all heterosexual and same-sex spouses in their life-journey toward the fullness of marriage in Christ. 61
Conclusion
In this essay we analyzed civil union and same-sex marriage in relation to the Catholic doctrine of heterosexual marriage. We concluded that a civil union is a civil reality and, therefore, the concern of civil, not ecclesiastical, authority. We isolated three bonds between believing spouses in a Catholic heterosexual marriage, a bond of love, a bond of law, and a bond of Sacrament (upper case). In a Catholic same-sex marriage we found these same three bonds with a slight difference, a bond of love, a bond of law, and a bond of sacrament (lower case). The spouses themselves control the bond of love, a legal authority controls the bond of law, and the personal belief of the spouses that their marriage is a symbol of the presence of God in their world controls the bond of Sacrament/sacrament. The definition of marriage in the Catechism of the Catholic Church contains the phrase ‘was instituted from the beginning for the propagation of the human race,’ and that requirement for propagation was used to argue that same-sex couples could not be legitimately married. That teaching, however, was countered in 1951, we showed, by Pope Pius XII who taught that the avoidance of propagation was moral as long as the spouses had ‘serious reasons’ of a ‘medical, eugenic, economic, or social kind,’ 62 a teaching that was replicated by the Second Vatican Council in 1965. An individual married couple can be excused from the obligation to procreate, even for the lifetime of their marriage, if they have sufficient reason. If heterosexual couples can avoid procreation for the lifetime of their marriage and infertile or postmenopausal couples can do so given their biological conditions, so too can LGBTQ couples. A major conclusion of this analysis, therefore, is that the argument of the Catholic Church against same-sex marriage because same-sex couples cannot procreate is not a probative argument.
There is a telling disconnect between the Catholic Church’s condemnation of same-sex marriage and the acceptance of it by a majority of believing Catholics. Linda Woodhead reported from the United Kingdom in 2013 that 52% of Catholics support same-sex marriage and that 0% look to religious figures for moral guidance, preferring instead their own understanding and informed conscientious judgment. 63 A Pew study in 2019 reported that 61% of American Catholics supported same-sex marriage, the same percentage as the national figure. 64 Most telling is that younger generations demonstrate higher levels of support than older generations. These statistics prove nothing theologically, but they do show a large difference between what the Church teaches and what a majority of its members actually believe, historically a sign that doctrinal change is underway. 65 We close with words of Pope Francis that speak diverse theological meanings, including the meaning of same-sex marriage by a Catholic majority. ‘Different currents of thought in philosophy, theology, and pastoral practice, if open to being reconciled by the Spirit in respect and love, can enable the church to grow, since all of them help to express more clearly the immense riches of God’s word . . . such variety serves to bring out and develop different facets of the inexhaustible riches of the gospel.’ 66
Footnotes
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.