The Dispatch: More from CWR...

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

Pope Francis blesses the marriage certificate of a U.S. couple during his general audience in Paul VI hall at the Vatican Dec. 14, 2016. (CNS photo/Paul Haring)

… 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 Condensing some ideas from that unpublished essay and expanding others, I argue thus: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 motived 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 domake 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, isnot 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.

+ + +

{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. Origins22/10 (6 aug 1992) 173, 175-177.

(This post originally appeared on the “In the Light of the Law” site and is posted here by kind permission of Dr. Peters.)

About Edward N. Peters 86 Articles

Edward N. Peters, JD, JCD has doctoral degrees in canon and common law. Since 2005 he has held the Edmund Cardinal Szoka Chair at Sacred Heart Major Seminary in Detroit. His personal blog on canon law issues in the news may be accessed at the “In the Light of the Law” site.

14 Comments

  1. For what it is worth:

    The ancients probably only burned incense to sacred things. To gods, perhaps to the ancestors, depending on the cult etc. To burn incense to the emperor probably put the emperor on a plane with the gods, so I question whether a Christian could have done such a thing. As I understand it, burning incense to normal everyday things was not done, and one certainly did not burn incense to Roman senators, etc.

    I agree that it depends on the particular law that would allow some benefits to homosexuals – a law that merely allows a homosexual to appoint some other person as the person who had legal control of their property, etc would not be a problem. But the fact of the matter is that all of that was available, at a pretty nominal fee, via private agreement. So there never was any real problem with visiting in the hospital, etc. All of that was a set of lies (we repeatedly see them lying all the time) designed to make a false argument for civil unions. But on the whole, the Civil union laws were simply the run up to the gay marriage laws. And civil union laws tended to give them the rights of married couples, but simply did not give them the name. If memory serves, this was the case in Obergefell.

    I suspect the CDF used the generic term “unions” so as to cover all the variations of civil unions. What they probably wanted to avoid is states claiming they were in compliance merely by not calling them “marriages”. And in fact, many civil union laws did give them all the benefits of marriage,except the name.

    Add to this the fact that the CDF directive had to cover every conceivable legal formulation of marriage in the world, and the varying legal forms that those countries might cast “civil unions” as, and they faced a great challenge. How about if an Igbo tribesman decides to take on another man as his fifth wife, yet not give him the full rights of marriage, etc etc. You get my point, even if the example is not right on.

    I agree that there might be a lesser species of legislation that gives legal rights that homosexuals can take advantage of to arrange their property etc rights. But those things were not coming up for votes in 2003, Clear civil union laws were, and those laws gave almost full recognition as if they were married, so I doubt that we can fault the CDF much.

  2. Always appreciate Edward Peters’ precision. The technical distinctions he makes here need to be part of every Catholic’s apologetic material on the subject of same-sex liaisons.

    Still, the CDF, in my view, wasn’t wrong. While every human can and does enter into many types of “unions” from familial to investment/business, we do not understand belonging to those unions as a sexual affiliation. No one thinks that the Women’s Christian Temperance a Union is a group of Christian lesbians. In the context noted by CDF and the popular culture, everyone fully understands what the content of that Same-Sex Union is–sexual activity. Making a distinction between “marriage” and “union” where Union clearly intends sexual activity, appears to the average person as nothing more than a fig leaf. And, it risks being viewed as a Catholic escape clause for homosexual liaisons, much as annulments are perceived (erroneously) as the Catholic divorce.

    It seems to me that such distinctions, while technical (though, wink, wink– everybody knows what’s really happening) also denigrates the seriousness with which society should treat marriage. Don’t we invite a charge of hypocrisy to pretend, based on a technicality (Union VS. Marriage), that any other sexual union is the civil equivent of marriage? The distinction outlined above implies that the CDF, the Church, can approve of “unions” for civil purposes, as a “work-around” for a culture gone rogue. How can The Church tacitly accept sexual unions between homosexual persons as a codified civil good? As Christians we should still have to oppose such relationships. To make a clumsy comparison, yes, Christians could *honor* Augustus as Emperor without worshipping a false God, but Christians cannot honor homosexual activity with legal protections because it is intrinsically sinful.

    To propose a category such as “domestic partnership” comes closer to a civil /legal recognition of certain goals, such as shared ownership with right to inherit, shared medical responsibilities, insurance, and so forth. This “domestic partnership” applies to two widowed sisters sharing a domicile, an uncle and the nephew who cares for his elderly relative, or two friends. In short, a domestic partnership” is a legal ( not sexual) arrangement between any two persons for reasons outlined above. It does not imply a sexual relationship, because it confines the partnership to shared property and responsibilities irrespective of being heterosexual or homosexual. If homosexual persons agree to share property and responsibilities, sexual activity, if any, within that partnership is not the jurisdiction of the law or the Church. But it also isn’t a civil (or ecclesiastical !) approval of an immoral act. And it certainly isn’t understood as a aberrant relationship that mimics marriage.

  3. If I understand this author correctly, he is arguing that it is not wrong for Catholics to support benefits for two people simply by reason of the fact that the “couple” is “united” in an activity that Western Civilization judged to be repugnant and illegal until the 1960s. Why should we vote any “legal protections” to people engaged in anti-social, destructive, immoral behavior? The “logic” in this article is simply bizarre. Is this more of the “Francis effect” ?

  4. I think the church should be upholding a higher standard than just looking for a way to live with or allow sinful life style to become normalized.

  5. I most often agree wholeheartedly with Dr. Peters but on this matter I most emphatically do not. When civil unions are discussed in the context of LGBT issues it is for the purpose of recognizing them, not as akin to other business or partner relationships, but as one which solemnizes and recognizes these relationships AS gay or lesbian. It is “marriage light” which will of its nature lead to agitation for rights of adoption of children in clear violation of church teaching, as well as other more benign matters such as survivorship benefits and the like. Such recognition is presented so as to regularize an inherently sinful relationship, one in which sexual relations presumably will occur, again in violation of church teaching.

    Legitimizing a gay/lesbian civil union is as morally problematic as legitimizing a bigamous or adulterous union. There is no sound reason for a faithful Catholic to do anything other than stand with Christ and His Church on the principles affirmed by the CDF in 2003, regardless of the inevitable hostile feedback from so many on the “progressive left” both inside and outside the Church.

  6. I think the 2003 CDF document is very clear to me. Marriage is always between a woman and a man for the Church, as should be for all Christians. Anything else such as civil unions between people of the same sex aren’t recognized by the Church as being any sort of marriage., thus the use of “civil unions” seems to me to be right even if secular laws may call otherwise. Here is the Conclusion of the aforementioned document by the CDF:

    CONCLUSION

    11. The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.

  7. Thanks for the comments, folks. It has long been my happy cross to write more clearly than most people read. Virtually all of the objections above arise from one’s not having read what I actually wrote or from (unawares?) altering the fact patterns under discussion into something that I, too, would not have agreed with. Best, edp.

    • Well, there is no cross quite as heavy as superiority, I guess. But you might wish to revisit the idea that your writing exhibits supreme clarity. If one of my students turned in a paper this convoluted, it would merit a C+ at best.

    • Dr Peters to take the argument a step further to my comment below, we assume because it is civil law union it is entirely differentiated from the moral law regarding marriage. Civil union in fact emulates marriage by assuming legal privilege common to marriage for two homosexuals living together. Whereas recognition of mutual consent of two adults is essentially different. There is no precedent, stare decisis in US history or in the Common Law of England for a legal description of same sex union provided privileges related to marriage. The State is in fact inventing a new legal description of union nowhere to be found in human history. Pope Francis when Archbishop of Buenos Aires sought to legitimatize civil union as a legal prerogative different from Church law. That in effect for a prelate is a form of approbation similar to his position as Pontiff. The CDF was correct in opposing same sex civil union precisely because the State by its recognition creates a new legal status with moral implication in an area outside its purview. A purview that belongs to the Church not the State. Consequently the result is now marriage as defined by the State between same sex couples. If that is entirely within the purview of the State then it appears Canon Law must recognize its legality.

  8. Technically according to civil law the author is correct when he differentiates between same sex union and marriage. Legally the State has the right to acknowledge the right of same sex union between two consenting persons. The Puritan prescripts against homosexual practice is an example of Theocracy that the more rights conscience Royal Charter imposed to end theocracy in New England. The author suggests the CDF was wrong when it asked Catholics to oppose same sex union as a civil right. His argument is consists of comparison of the consenting union to the CDF idea that union implies marriage. Aside from what the author presumes and what Pope Francis presumes–in the order of morality as distinguished from Legality [I too believe that legally the State must recognize the right between two consenting individuals regardless of moral impropriety as was the case with the King’s implementation of the Royal Charter] the Church has not only the right but the obligation to oppose an intrinsically evil behavior regardless of the proprieties of civil law. Both the author of this article and Pope Francis the latter for his own agenda are wrong.

  9. I think what Bishop Paprocki said in an interview I conducted with him is very informative:

    “In terms of the pressure being put on the Church as mentioned in that CDF document, I think is really what we are seeing happening very forcefully right now. Because the push for gay rights has always been incremental steps. It started for example with domestic partnerships. Even the terminology domestic partnerships and the argument: we just need that so I can visit my gay partner who is in the hospital, we need legal rights, domestic partnerships that was the first thing. Then it moved to civil unions and then it was ratcheted up to same-sex marriage. Well, they’ve achieved all that, in civil law, so the target for so long has been to get recognition in civil law, and now that’s been achieved. So in our country, civil law has recognized same-sex marriage. What they don’t have is moral approval. And the only place that can give them the approval is the Church. So I think that’s the next target here. In terms of putting pressure on the Church in order to give that kind of moral approval to say what you’re doing is morally acceptable.”

    In other words – allow “civil unions” and you will soon have “gay marriages” and then begins the effort to sacramentalize those unions.

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