Legal Recognition of Homosexual Unions
LEGAL RECOGNITION OF HOMOSEXUAL UNIONS
Mons. Angel Rodríguez Luño
Pontifical University of the Holy Cross
AN ETHICAL-POLITICAL PROFILE
The moral and pastoral questions raised by homosexuality have been treated in various documents of the Magisterium of the Church in the past 20 years. With the publication of the recent Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons, the Congregation for the Doctrine of the Faith does not intend to backtrack on these issues, but to reiterate the ethical-political problem that homosexual unions pose to legislators and politicians in various parts of the world.
Here it is a question of the request for legal recognition for cohabiting homosexual partners of all or some of the civil effects which the law recognizes for spouses, not excluding the right to adopt children. It is sometimes practical or financial reasons that prompt this request; at other times, it is suggested by ideological motives, expressed with varying degrees of radicalism. Extremists are demanding that the State take a first step towards a new and selfish, social model, freed from a juridical institution such as marriage, which to their mind is repressive and obsolete.
An examination of the ‘discrimination’ argument
Disregarding this and other equally extremist positions, some citizens, legislators and government authorities are wondering whether, independent of their personal convictions in the matter, it might not be reasonable or even obligatory for the law to register certain social phenomena, so as to prevent any citizen from being unjustly discriminated against for his or her personal sexual orientation or free assumption of a form of life that does not appear to be damaging to others. The query does not directly concern the reasonableness of homosexual practices or unions in themselves, but the ethical-political reasonableness of regulations, laws or other measures of civil law concerning them, although, of course, the two problems are connected.
Peaceful and just social coexistence not only demands recognition of the rights of every individual to which he or she is entitled as a person and citizen, but also recognition of the juridical importance of the actual relations which all individuals freely establish or into which each one is naturally integrated. Being a parent or child, being the owner or tenant of real estate have a specific legal profile which entails precise duties and rights.
There are other relations such as friendship which, although it is of paramount existential importance, does not have an analogous juridical profile. "Friendship cannot be regulated by law, not because the relationship that binds two friends emotionally does not correspond to a communicative logic, but because it is a strictly private matter, consequently impossible to syndicalize or institutionalize" (F. D'Agostino, Matrimonio traOmosessuali?, in Aa.Vv., Antropologia Cristiana eOmosessualità [Quaderni de"L'Osservatore Romano", 38], new and fuller edition, Vatican City 2000, p. 88).
The universally recognized role of marriage and the family
All major world cultures have specifically recognized marriage and the family as an institution. The public importance of marriage is not based on the fact it is an institutionalized form of friendship or human communication. It is based on its condition as a stable life state which by its very structure, properties and purpose, freely accepted but not established by the spouses, plays a multifaceted role essential to the common good: the succession of generations, the survival of society, the education and socialization of children, etc.
Homosexual unions are far from playing anything like this social role of public and juridical importance; it is impossible to understand how they could be considered fundamental cells of human society. The attempt to equate homosexual unions with marriage or to put them on the same footing is manifestly unsound. "The denial of the social and legal status of marriage to forms of cohabitation that are not and cannot be marital is not opposed to justice; on the contrary, justice requires it" (Considerations Regarding Proposals to Give Legal Recognition to Unions between HomosexualPersons, n. 8).
Yet it can be observed, as Aristotle said, that in addition to things which are just by nature, there are things which are just by legal convention. Given that homosexual unions are not suited to playing the social role which in the nature of things is played by the marital union between a man and a woman, one might wonder whether the State still has the leeway legitimately to create one or more forms of legal recognition of homosexual unions. Ultimately, many forms of the State juridical order are just in accordance with convention, and it is not unthinkable that such forms could suffer change without losing their substantial reasonableness.
The role of the State on the issue of homosexual unions
The State generally has the legitimate faculty to create new forms of legislation or to modify those already in existence. However, this faculty has many limits. The State can establish that car-drivers who have kept to the right-hand side of a two-way street until now should henceforth drive on the left. But as long as matter preserves its well known impenetrability, for obvious reasons the State cannot let each driver choose, at any moment or whenever he likes, to drive on the right or the left.
In the Considerations commented on here a wealth of ethical, biological, anthropological, social and juridical reasons are given, which make it clear that in granting specific legal recognition to homosexual unions, the State would be exceeding the bounds of its legitimate activity.
Objectively, this type of legislation or norm, over and above subjective motivations, is anti-marriage and anti-family. The Considerations rightly note that an inevitable consequence of the legal recognition of homosexual unions "would be the redefinition of marriage, which would become, in its legal status, an institution devoid of essential reference to factors linked to heterosexuality; for example, procreation and raising children. If, from the legal standpoint, marriage between a man and a woman were to be considered just one possible form of marriage, the concept of marriage would undergo a radical transformation, with grave detriment to the common good" (n. 8).
The result would be a complete distortion of the formal reason why legalization grants public juridical importance to a form of human life or relationship. Marriage would no longer have an objectively structural role for social life and the common good, but would be an expression of personal desire or private autonomy, thus eliminating the obvious, indisputable difference with regard to social life that exists between marriage and homosexual unions.
Moreover, the principle of autonomy is not jeopardized; hence, there is no reason for invoking it. "It is one thing to maintain that individual citizens may freely engage in those activities that interest them and that this falls within the common civil right to freedom; it is something quite different to hold that activities which do not represent a significant or positive contribution to the development of the human person in society can receive specific and categorical legal recognition by the State.... On the contrary, there are good reasons for holding that such unions are harmful to the proper development of human society, especially if their impact on society were to increase" (n. 8).
‘Damage is undeniably caused to others and to society as a whole’
Secondly, we should bear in mind the great difference between negative personal behaviour and its legal recognition. "Civil laws are structuring principles of man's life in society, for good or for ill. They 'play a very important and sometimes decisive role in influencing patterns of thought and behaviour' (Evangelium Vitae, n. 90). Lifestyles and the underlying presuppositions these express not only externally shape the life of society, but also tend to modify the younger generation's perception and evaluation of forms of behaviour. Legal recognition of homosexual unions would obscure certain basic moral values and cause a devaluation of the institution of marriage" (Considerations, n. 6). In the de facto step to legal recognition, damage is undeniably caused to others and to society as a whole.
The harm to others will be even more serious if persons in homosexual unions are given the possibility of adoption. "As experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children.... Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children.... This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case" (Considerations, n. 7).
It cannot be said, moreover, that these and other forms of damage are justifiable because they are necessary in order to avoid situations in which cohabiting homosexuals might be deprived of rights that they, as persons and citizens, possess in common. "In reality, they can always make use of the provisions of law — like all citizens from the standpoint of their private autonomy — to protect their rights in matters of common interest. It would be gravely unjust to sacrifice the common good and just laws on the family in order to protect personal goods that can and must be guaranteed in ways that do not harm the body of society" (Considerations, n. 9).
Both legal recognition and unjust discrimination are unacceptable
The alternatives — both legal recognition and unjust discrimination — are entirely out of the question. If, somewhere in the world, there were a situation of unjust discrimination, it should be abolished without creating injustices or evils that are equally bad. One evil can never be eliminated by another.
One most important aspect concerns the ethics of the normative measures that might eventually recognize homosexual unions. Of course, the task of civil law is more restricted than that of moral law (cf. Evangelium Vitae, n. 71). In the face of certain phenomena, we can or must be either tolerant or silent; but in no case is it possible to legislate against the Creator, whose intention, with regard to our problem, is obvious and undeniable, based as it is on indisputable biological, anthropological and social data. Some, perhaps, may even feel inclined to deny these facts, but they cannot claim to use the State and the law for so controversial a purpose. Were the State to accept such exploitation, it would be contradicting itself.
The political community that legally recognizes homosexual unions is creating a seriously unjust political norm. It follows, in practice, that "where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection" (Considerations, n. 5).
Weekly Edition in English
10 September 2003, page 10
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