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‘Same-sex marriage’ and ‘same-sex unions’ are not the same things…

September 13, 2017

… and I think Pope Francis was right to make that observation, which in turn means, yes, I think that the Congregation for the Doctrine of the Faith muffed the distinction between “unions” and “marriage” back in 2003 when it published its otherwise insightful “Considerations regarding proposals to give legal recognition to unions between homosexual persons”{1}. I argued that ‘same-sex marriage’ and ‘same-sex unions’ were distinguishable phenomena, and that CDF was wrong to require Catholics to oppose legal recognition of ‘same-sex unions’ with the same non-negotiable vigor as Catholics must reject legal recognition of ‘same-sex marriage’, in an essay penned more than two years ago but which, along with essays by many others, is still making its slow way through the world of printed book production. Grrr.

Anyway, in light of the pope’s too short but substantively sound observation—and even though political events since 2003, not to mention legal events such as Obergefell in 2015, might have mooted the question—it seems useful to set out why, in my view, CDF’s 2003 statement unintentionally blunted some arguments that Catholics could have, just maybe, used to deflect some of the social and cultural problems arising in the wake of “same-sex marriage”. Condensing some ideas from that unpublished essay and expanding others, I argue thus:

In the course of faithfully setting out Church teaching (indeed, infallible Church teaching, likely divinely revealed infallible Church teaching) that marriage can only exist between one man and one woman, CDF, probably to underscore rhetorically the utter impossibility of marriage existing between two persons of the same sex, never uses the term “same-sex marriage” (even in quotation marks, as is my convention) to describe such unions and instead refers exclusively to “homosexual unions”, or close paraphrases, as something to be resolutely opposed by Catholics. That’s precisely the problem for, while every marriage is a union, not every union is a marriage.

We need to make several points.

1. Human beings exist in or enter into an infinite variety of unions, some biologically determined such as parent-child or siblings, some casual such as friendship or tennis teammates, some legally-sanctioned such as co-owners of businesses or co-signers for loans, some legally-regulated such as physician-patient or teacher-student, and so on and so on, including, in this vast array of unions between people, one and only one union that is motivated by friendship, based on biology, and sanctioned-by and regulated-by law (customary, civil, and/or canonical), namely, that union called marriage. In other words, “union” means a million things but “marriage” means only one, and, in defending “marriage” in particular, it is dangerous to make certain assertions about unions in general.

Virtually every union entered into by human beings can be abused: a lawyer might take on a client not so as to advise the client toward legality but so as to hide his own crimes behind an immunity; a young woman might marry an elderly man not so as to aid him in his declining years but so as to grab a slice of his fortune away from his children; two homosexual men might form a business partnership not so as to serve the community with better car repairs but so as to market sex toys, but in none of these cases does abuse of the union result in a cry that attorney-client privilege should be abolished, or that weddings between gold-diggers and old fools should not be recognized, or that business contracts between homosexual men should be void at law. Moral theology has much to say about such activities, but law has much, much less to say about them.

2. If the state were considering whether, under a proposed “Significant Other” law, one citizen could designate another citizen as his or her “significant other”, allowing those two people to share their earnings, have access to each other’s personal records, be covered under each other’s insurance, inherit a preferential portion of the other’s estate, and so on, such a bill should be debated on the same grounds as would any other bill, mostly, on the degree to which it advances the common good. The disadvantages of such a bill might well outweigh the advantages, whereupon it would be amended or scrapped.

But for ecclesiastical authority to say that, because such legislation would indeed make possible, among other things, civil recognition and protection of same-sex couples in terms perhaps identical to the civil recognition and protection accorded married couples, such bills must be opposed by Catholics without exception, is to read “significant other” as a “spouse” and to assume civilly-contractually-related people are connubially-contractually-related people. Which they are not.

3. Everyone would agree, I trust, that what we label things sometimes makes no difference, but that other times what we call them makes a huge difference.

For example, whether we call the deliberate killing of pre-born baby a “saline acid feticide” or the “constitutionally protected termination of an unwanted pregnancy” does not change the reality that a pre-born human baby is being deliberately killed. The label does not change the reality. But sometimes changing the words associated with an action does make a difference, thusly:

Ancient Christians, offered the choice between burning incense to honor the divine Augustus or dying a slow painful death, had to choose the slow painful death if they wanted to remain faithful to the true God. But suppose, instead of burning incense to honor Caesar as a god, ancient Christians could have burned incense to honor him as an emperor. Christians could have burned incense in such cases, as casually as we set ablaze waxen wicks atop a frosted cake to honor a man’s birthday, without fear of scandalizing others. No one thinks the birthday boy is God, and only if some authority begins implying that so-and-so really is a god (think North Korea), and that burning candles in his honor is to acknowledge him as a god, does the matter take on additional meaning. Here, the labels attached to the action do make a huge difference.

Likewise, saying that two persons of the same sex are in a legally-recognized union, whatever else one says about that relationship, is not tantamount to saying that those two persons are married for the simple reason that not every union—even long-term, consensual, sexually-active, economically stable, unions—is a marriage civilly or canonically.

Bringing these points together.

The rejection of “same-sex unions” that CDF set out expressly and repeatedly in 2003 was phrased in the same absolute terms with which “same-sex marriage” should be, and must be (and I think, in CDF’s mind, was being), rejected by conscientious Catholics, implying that the opposition of faithful Catholics to the civil recognition of “same-sex unions” is categorically, and thus morally, indistinguishable from the opposition that they should offer to the civil recognition of “same-sex marriage“. I think this was a logical and a political mistake. One can imagine many civil proposals to accord legal protections to same-sex couples qua couples that, even without claiming for such couples the designation of “spouses”, a Catholic would be bound to oppose. But such opposition could be grounded only in factors made evident upon reading the specific proposal, and not simply because the proposal protected couples of the same sex. It is quite possible, logically and morally, that such a proposal could pass moral muster (but fail in prudence, and so need rejecting), or that it could pass moral muster and suffice as a prudential matter, and so warrant support by, or at least indifference from, Catholics. CDF should not have written otherwise and Francis is right, in my view, to make his point.

That said, to be clear, no proposal whatsoever whereby a Catholic is legally required to recognize as married two persons of the same sex can ever be acceptable, and an individual Catholic’s endorsement of “same-sex marriage” must be avoided as being, among other things, a violation of Church teaching (1983 CIC 750 § 2 and 1371 n. 1) and probably as a heresy strictly speaking (1983 CIC 750 § 1, 751, and 1364).

Again, I suspect that’s what CDF meant; but that’s not what CDF said. And that’s a problem.

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{1} Congregation for the Doctrine of the Faith, doc. “Diverse questioni” [Considerations regarding proposals to give legal recognition to unions between homosexual persons] (31 iul. 2003), Communicationes 35 (2003) 214-223, Eng. trans. Origins 33/11 (14 aug 2003) 177, 179-182. Additional background in this area is available in Congregation for the Doctrine of the Faith, doc. “Recentemente” [Some considerations concerning the response to legislative proposals on the non-discrimination of homosexual persons] (23 iul 1992), Enchiridion Vaticanum 13 (1995) 992-997, Eng. trans. Origins 22/10 (6 aug 1992) 173, 175-177.

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