Can civil unions be equated with marriage?
by Fr. Edward Xuereb
The answer is yes if by law we just mean what traces the goodness and value of its force from the simple fact of being ordered. This is legal positivism (ius quia iussum): the theory that justifies the juridical character of laws that go against the real dignity of the human person. If however, law is based on justice and right reason (ius quia iustum), the story is totally different. Certain modern laws enacted by current parliaments, if seen from such a genuinely anthropological perspective, are nothing more than a step backward. So will be the recently proposed Act to regulate civil unions and to provide for matters connected therewith or ancillary thereto.
It was, after all, not so long ago, when Pope Francis as an archbishop called Argentina’s 2010 legalization of gay marriage a Satanic “anthropological regression”. While Argentina was voting on its own gay marriage bill, he stepped in to offer his thoughts: “Today the country, in this particular situation, needs the special assistance of the Holy Spirit to bring the light of truth on to the darkness of error, it need this advocate to defend us from being enchanted by many fallacies that are tried at all costs to justify this bill and to confuse and deceive the people of good will.”
1. The Catholic Church’s teaching about the matter is indeed very positive. First of all, it should be clear that the Church says “yes” to the human person and to the family. Regarding the individual human person, the Church says “yes”:
• To the respect for every person, whatever one’s sexual condition and orientation. This respect is owed to man insofar as one is a person, who, being created as an image and likeness of God, precedes and transcends one’s own sexuality;
• To useful juridical guarantees and protection for the person who cohabits, which are to be put into action in the sphere of one’s individual rights, within the norms of civil law, but without fabricating a new juridical figure;
• To the positive assistance to persons who cohabit, through concrete pastoral initiatives, carried out by prepared and competent personnel.
2. As to the family, the Church says “yes”:
• To the family based on marriage between a man and a woman. The family has three distinct and unfailing characteristics: sexual difference, stable fidelity between the spouses and openness to life. All this stems from nature, from ever and everywhere (“Historically, all nations permitted only heterosexual marriage until 2002”, L.D. Wardle-L.C. Nolan, Fundamental Principles of Family Law, Buffalo 22006, 71), not from culture, customs, ethnicities or mode. The family is not the result of social dynamics or a historical product but a reality that comes before and exceeds, in an absolute and radical way, the sovereign power of the State: the family is the original cell of social life, the first and essential level of social articulation, the primary fountainhead and resource of the same society. Marriage is an intrinsic need of the pact of conjugal love that stems from the profundity of the human person;
• To an indispensable and preferential politics in favour of the family: of the youth, of young wed couples, of a residence with a preferred price, of poor family, of protecting natality-fecundity-maternity, of children already born and of those waiting to be born, of the elderly in the family, of mothers who work at home and outside, etc.;
• To a more incisive and complete pastoral action toward the family;
• To a positive and joyful testimony of married couples in church, so as to offer an example, an attractive model for young engaged couples and for the same de facto couples.
3. This proactive “yes” to these fundamental realities is inevitably a “no” to the equalization of de facto unions with marriage, which is unacceptable in principle, unnecessary in practice, perilous on a social and educational level and so will have damaging consequences for the common good. Such legislation:
• Breaches the necessary conformity of civil law to moral law. In this sense, furthermore: (a) it has a negative influence on the mentality and on social customs. History teaches that every law creates mentality and custom, because every law is of itself an educator that induces the citizens to think that what is legal is also moral; (b) it will serve as an invitation and an incentive for youth not to assume responsibility. “When new forms of legislation are created which relativise marriage, the renouncement of the definitive bond obtains, as it were, also a juridical seal” (Benedict XVI, 22.12.2006).
• Ascribes to unmarried persons rights that are exclusive of married persons, thus introducing a dangerous alternative to the family. Marriage – whose essence is the union of the persons in their natures, that is in their sexual condition, i.e., masculinity and femininity, through the mutual gift of themselves – is an ‘original’ reality, from whose nature stem concrete exigencies of justice: it has an intrinsically juridical dimension, which must in turn be efficaciously acknowledged and protected by the Church and the State. Where this ‘original’ reality lacks, it is contradictory to attribute the rights that go with it to some different sort of union.
• Renders useless civil marriages: if a man and woman want the civil law to recognise their union – with no prejudice to the canonical form if at least one of the parties is a Catholic – the instrument already exists, namely, civil marriage.
• Gives rise to certain fundamental questions: which values and principles define the concept of man, woman, family, society, the future? On what criteria should decisions be taken in a democratic society? Only on the criterion of the numerical majority or political correctness?
• Paves the way for the legalisation of homosexual couples and even for gay marriages.
• Opens the door to fraud, abuse, theft by who wants to attain benefices and rights without any corresponding duties. Thus, how can one check if the sexual relation of the cohabitants is real or only declared to acquire those rights that derive from its legalisation?
• Contradicts the same nature of actual cohabitation that relies only on the will of the parties to keep or to end the relationship, thus entailing the rejection of a public bond. Beneath de facto cohabitation there is a mindset of individualism and total subjectivism, as one only upholds the free choice and power to manage the relationship as a mere factual datum without recognizing it as a public relationship. In de facto unions “there is the purely factual character of the relationship. … They are characterized by their strong assertion to not take on any ties. The constant instability that comes from the possibility of terminating the cohabitation is consequently a characteristic of de facto unions” (Pontifical Council for the Family, Family, Marriage and ‘de Facto” Unions, 26.7.2000, n. 4)
• Encloses a radical equivoque, namely that it is forbidden to forbid: everybody is free to do what one thinks, without any right of determining in any way the behaviour of the other.
4. The Church says “no” to the legalisation of homosexual relations because apart from the already mentioned reasons in the case of de facto heterosexual couples, there are further aggravating motives in this field. The Church says “no” to the homosexual union and even more to their marriage because:
• It ignores the specific sexual difference, the objective and respective originality of each sex (man and woman); leaves to everybody’s whim to define the difference and the complimentarity between man and woman, thus contradicting the acknowledgment of these two factors; does not accomplish sexual complimentarity. The putting together of a man and a woman will be equated to that of two persons of the same sex, whereas in the corporeity of man and woman there is inscribed a natural and structural difference and also a complimentarity in view of the same affective and sexual life of the spouses;
• It cannot give life to offspring and so, among other things, kills society. It is in the interest of society and of the state that the family be solid and grows up in the most possible equilibrated way;
• “the proper reaction to crimes committed against homosexual persons should not be to claim that the homosexual condition is not disordered. When such a claim is made and when homosexual activity is consequently condoned, or when civil legislation is introduced to protect behaviour to which no one has any conceivable right, neither the Church nor society at large should be surprised when other distorted notions and practices gain ground, and irrational and violent reactions increase” (Card. J. Ratzinger, Letter on the Pastoral Care of Homosexual Persons, 1.10.1986, n. 10).
5. The legalisation of cohabitation brings about a grave discrimination because it treats equally situations that are very diverse. In fact, there is a difference:
• Between marriage and cohabitation because marriage is a partnership between a man and a woman, of their whole life, and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children, while cohabitation, more inclined towards rights rather than towards duties, may practically breach all the mentioned essential elements of marriage;
• Between cohabitation and other affective-solidarity relations, such as the forms of reciprocal assistance among old people or among the religious who live together and help each other or between grandparents and nephews who live together, etc.). Why should cohabitants be privileged? Perhaps because of their relations have a sexual union at their basis? But, if only that counts, then perhaps we should incentivise polygamy, incest, etc. And then, why only the relations between two persons, not also among three, four or more persons?
6. On the other hand, to recognise to married persons a different status from that of cohabitants involves no discrimination because their relation is different.
• Marriage is a juridical reality and where there is no commitment, there is no marriage. The definitive commitment and the responsibility for each other in marriage cannot be compared to the mere ‘free’ union, even when conducted with an implicit intent to get married. Since married spouses have given themselves to each other, each has assumed the responsibility of answering for the other, which authorises them, for example, to authorise a medical operation on their wives and husbands.
• Thus J. Carreras mentions the case in which “one of the components of the non-married couple has to undergo a medical operation, for the execution of which is necessary the consent of a responsible family member. Well then, the consent of the male or female companion, no matter how much united sentimentally, does not serve in any way to the surgeon. […] Conversely, the matter is very different if the consort is at stake. The doctor may suddenly proceed to the operation, because among married spouses each one assumes the responsibility of answering for the other; a responsibility that stems from the fact that both have given themselves to each other. […] It is the profound interpersonal relationship arisen from the marriage consent that legitimises the married spouses to perform an act of responsibility so grave as the authorisation to a surgical intervention. And it is also the absence of such an ‘oblative’ juridical dimension that connotes the de facto unions” (Le nozze. Festa, sessualità e diritto, Milano 2001, 106-107).
7. The legalisation of cohabitation brings about serious problems on the level of the law because:
• It introduces a new facti species, for the rights of cohabitants will be recognised precisely insofar as they are cohabitants, that is, inasmuch as cohabitation will be considered as juridically relevant for the society;
• It perverts the nature of law itself:
- Because not every wish or choice may and should be acknowledged by the law or even become a status, but it is its social value that should determine whether and to what extent it should be recognised and protected by law. Law protects a relationship inasmuch as this has a value for the entire society, not only because it is perceived as significant by the individual persons involved, especially when this counters the common good.
- Because the affective element evades the inspection of law: how can it be weighed? What criterion can be use to evaluate its importance?
- It is absurd and contradictory that the law recognize a status ‘of law’ to cohabitants who want to remain so only “de facto”;
- Because the stamp of legality, applied in various ways, does not convert something unjust into just.
8. In any case, opposition to the legalisation of stably cohabiting couples does not prejudice the recognition of the dignity of each person. So, other rights may be recognised to individuals insofar as they are individuals, but not inasmuch as they have the relationship of a couple. If there will arise the need of extending the juridical protection of persons who cohabit, legal guarantees and safeguards can be ensured in the context of individual rights, that is, within the scope of the rights and duties of the person, without theorising legal entities that are alternative to marriage.
Thus, “those persons who live together but who are not a family have every right that the State respect the individual rights they have as every other individual” (Bishop Mario Grech, Pastoral Letter about the Family, 18.5.2012).
9. What action should the Catholic politician take?
• “Catholic politicians and legislators, conscious of their grave responsibility before society, must feel particularly bound, on the basis of a properly formed conscience, to introduce and support laws inspired by values grounded in human nature” (Benedict XVI, Sacramentum caritatis, n. 83). So, the Christian who supports de facto unions is inconsistent.
• The Christian faithful should form one’s conscience in the light of the teaching of the Magisterium and so “no Catholic can appeal to the principle of pluralism or to the autonomy of lay involvement in political life to support policies affecting the common good which compromise or undermine fundamental ethical requirements” (Congregation for the Doctrine of the Faith, Doctrinal Note on Catholics in Political Life, 24.11.2002, 5).
• There is a precise indication by the Congregation for the Doctrine of the Faith, according to which, “When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral” (Considerations regarding Proposals to give Legal Recognition to Unions between Homosexual Persons, 3.6.2003, 10). Although it is proffered with the delicacy of pastoral language, the line taken leaves no room for doubt.
10. An endnote. Today “it seems ever more important that Europe be on guard against the pragmatic attitude, widespread today, which systematically justifies compromise on essential human values, as if it were the inevitable acceptance of a lesser evil” (Benedict XVI, 24.3.2007).
• This mentality is palpable even among us, as it is generally asked: how is it possible that IVF or de facto couples do not become legalised, as this is the situation in so many countries? So all we can do is to endeavour for a legislation that will contain the lesser evil. It is a pity indeed that instead of striving to introduce proactively morally good laws, we feel pressured to resign ourselves to strive for the lesser evil.
• Why don’t we show more faith in the divine ‘élan vital’, inherent in the Church, which is much stronger than those human laws which cannot hold forever, because by going against objective morality, they contain within themselves their own seeds of destruction?
