Historical, Legal, and Cultural Contexts

The Vatican's Blunt Instrument
by Stephen Pope

(from The Tablet, 9 August, 2003. Reprinted with Permission)

Last week the Congregation for the Doctrine of the Faith issued a harshly worded document describing the state recognition of same-sex unions as the "legalisation of evil". A Boston theologian reads between its lines.

Last week's Vatican document calling on every citizen to do whatever is morally permissible to block, or at least limit, the legal recognition of "homosexual unions", has some notable strengths, not least of which is a remarkable clarity. But it also suffers from ambiguities which undermine the effectiveness of its arguments.

First, the document's strengths. The Congregation for the Doctrine of Faith (CDF) repeats the Church's teaching that gays and lesbians are worthy of respect, compassion and justice, and should in no way be the objects of unjust discrimination. Because it is based on natural law, "Considerations" can be examined in terms of reason, evidence, and soundness of judgement. And because it appeals to the common human experience, it is at least in principle open to further input.

The document also recognises the pedagogical purpose of law. It does not shy away from recognising that civil law functions at times as a moral teacher, so countering the unbalanced appeal to autonomy that often controls discussions of sexual ethics. Lastly, it acknowledges the public and deeply human significance of sexual activity, which is a helpful antidote to the privatisation and manipulative trivialisation of sex that pervades popular culture. The document properly challenges the prevailing dichotomy of sex either as an exclusively private domain ruled by personal preferences or as a matter of power exercised by various constituencies in the political arena.

But the document's ambiguities are evident in the way it treats complex issues of sexual identity, including that of gays and lesbians (not to mention bisexuals and trans-gendered individuals) under the very broad rubric of "homosexuality", an oversimplification which gives an air of excessive abstractness to the document. Moral norms crafted in light of such generalities in it would be less than fully persuasive to those who do not find themselves adequately depicted in it.

Many readers might not, for example, be entirely at ease with the Church's use of the threefold distinction between homosexual act, orientation and person. The CDF wants to affirm the worth of the "homosexual person" but describes as "disordered" any same-sex orientation. Yet the fact is that describing a human being as "intrinsically disordered" is inherently stigmatising and at least tacitly, if not overtly, supportive of the unjust discrimination that the Church has repeatedly condemned. (Who wants to live next door to, or work with, someone who is "gravely disordered"?) The document argues not only that gay and lesbian sex is self-indulgent – a description that could equally be applied to heterosexual sex – but also to imply that homosexuals are internally directed to a form of sexual love that will always be effectively sterile and to relationships that are irredeemably dysfunctional. The abstract affirmation of the imago Dei is undercut by this way of regarding the core of the person's sexuality – if not by logic, then by psychological experience.

Third, the document does not distinguish, at least carefully enough, between same-sex marriage and same-sex civil unions. The term "marriage" has both a civil and religious sense, but the focus here is on its civil purpose. Laws concerning civil unions involve justice when they protect fairness in taxes, employment-related benefits for gay couples such as dental and health insurance, shared home mortgages, and visitation rights to see a hospitalised partner. A man whose partner of 20 years becomes incapacitated for medical reasons ought to be able to make important medical and financial decisions the same way that married heterosexuals are empowered to do so by current law. A woman who wants to visit her dying partner in the last moments of her life ought to be able to do so. The document insists that the "best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case"; but if so, critics will argue, surely Catholic politicians ought to support laws that promote the rights of children of same-sex parents, no matter how much it condemns the "homosexual union" itself? Since there are now many children being reared by same-sex adults, these rights are no small matter. They involve obtaining a child's medical care, dental care, inheritance rights, education, and hospital visitation rights. The Church's insistence that the State should not support these rights is unedifying.

Fourth, the CDF sends an ambiguous message regarding what in the United States are called "anti-sodomy laws". The document notes that in some circumstances toleration of "lesser evil" is appropriately applied to de facto "homosexual unions". This presumably pertains to countries where anti-sodomy legislation would be detrimental to the common good, for example, where it would be unenforceable. At the same time, the document's extreme alarm about the dangers of "homosexual unions" to the common good, taken in tandem with the responsibility of the State to protect public morality, together point to the need for an outright legal ban on these unions. This sounds much like the old pre-conciliar "thesis-hypothesis" theory of religious freedom: the proper "thesis" is the Catholic confessional state, but one can, under less than ideal circumstances, tolerate the "hypothesis" of the religiously neutral state as a "lesser evil" in cases where the ideal is not attainable. Regarding "homosexual unions", the CDF seems to imply, the "thesis" is an entirely heterosexual society with zero legal and social tolerance for gay and lesbian unions, but the "hypothesis" can grant moral legitimacy to toleration as a "lesser evil" when the costs of repression are unacceptably high.

This chilling implication points to the document's greatest difficulty from the point of view of Christian ethics: it communicates no sense of love for those involved in "homosexual unions", and indeed none for gays and lesbians generally. This impression is reinforced by the fact that its arguments have not been crafted after a process of serious consultation and conversation with gay and lesbian people. Though the Church has engaged in extensive official dialogues with Protestants, Jews and Muslims, it has yet to do so with gay and lesbian Catholics. The magisterium speaks about them but not to them. This leaves the impression of suspicion, disdain and fear, not respect and love of one's neighbour. Questions can also be raised about each of the four considerations it raises regarding the legal question. Critics will ask to see the evidence, for example, that same-sex unions have a deleterious effect on the common good, including the institution of marriage and the moral formation of young people.

Methodologically, the CDF and its opponents speak past one another: the former argues a priori from a conception of the human good to the specific moral issue of homosexual unions, while the latter proceed from their experience of concrete human goods to the question of ethical principles. The former does not provide any non-doctrinal evidence to support its generalisations; the latter ask: is it really the case that same- sex unions, as the document asserts, make no "significant or positive contribution to the development of the human person in society"? On the basis of what evidence is such a sweeping generalisation made? More specifically, what kind of "attack" on marriage has been experienced, for example, in Vermont or British Columbia, where same-sex unions are now recognised by the State? Have heterosexual identity and the institution of marriage been threatened or subverted in these places? Future reflection and dialogue on the issue of same-sex unions will benefit from increased knowledge of the long-term impact of same-sex unions on marriage as an institution and on the moral formation of young people.

Second, critics will argue that marriage as a civil institution need not be justified in terms of procreation. The CDF argues that marriage as an institution lies within the public interest because it provides for the "succession of generations". But marriage can be justified on the ground that it promotes love, stability, commitment, and wider family ties. Childless marriages are neither invalid nor have they been shown to be detrimental to the common good.

Critics will also complain that the CDF nowhere acknowledges the constructive role that their monogamy plays in the lives of gay and lesbian people who are committed to life-long and exclusive partnerships. The real, existential choice facing many people is not between celibacy and sexual activity, but between monogamy and promiscuity. Some gay couples live in lifelong monogamous unions that not only allow their own love to deepen but also enhance their ability to love others. These unions empower their participants to contribute in important and constructive ways to their professions, Churches, schools, neighbourhoods, and wider communities. Blanket dismissal of this reality does not contribute to the document's credibility. It has been argued that legal recognition of their relationship can encourage gay men to give up sexual licence in favour of the stability and love of committed monogamy. If banning legal protection weakens the level of commitment, the CDF is unwittingly contributing to conditions that encourage promiscuity.

In the single most criticised claim in the document, the CDF holds that allowing children to be adopted by same-sex couples subjects them to "violence", at least in the sense that it would not be "conducive to their full human development". This distorted use of the term "violence" also implies that foster parents, single parents, and parents with serious physical or psychological handicaps, no matter how hard they try, are guilty of inflicting "violence" on their children since they, too, consent to raise their children under less than optimal conditions. This use of the term "violence" may even raise suspicions that the CDF is inciting hostility towards gays and lesbians by wider society; society detests no group more than those who use violence against children.

The document fails to give the slightest acknowledgement of the profound, long-lasting concrete good that is provided by some gay adoptive parents to their children. The concrete choice facing many children is not between a "depraved" homosexual couple and a healthy and holy heterosexual family, but between an emotionally sterile institutional setting, perhaps punctuated by episodes in foster care, and adoption by a same-sex couple committed to providing a stable, loving and respectful family environment for a child's upbringing. Ethics needs to acknowledge the concrete opportunities faced by real children. Critics also call into question whether all proposals for some kind of legal recognition of "homosexual unions" necessarily lead to a radical revision of our definition of marriage. A sharp distinction between gay "marriage" on the one hand and "civil unions" on the other should, some argue, enable the heterosexual character of marriage to be maintained. In this way of thinking, heterosexual marriage is the ideal, but same-sex civil unions are morally good for some people.

What of the document's claim that Catholic politicians have a strict moral duty to oppose the legal recognition of same-sex unions? The CDF avoids entirely the issue of the conscience of the Catholic politician's duty to follow the judgements of his or her conscience. The CDF encourages Catholic politicians to be prophetic witnesses to the truth. But this profession presupposes internal conviction rather than simple conformity to the magisterium. From this conviction politicians working in pluralistic and democratic societies proceed to work for a consensus based on convincing reasons supported by sound evidence.

Many non-Catholics sympathetic to "Considerations" may find intuitively appealing its morally elevated appeals to the value of marriage and family. But they will be divided over whether this positive value necessarily generates absolute negative moral norms and deems it a strict duty to oppose all efforts to give any kind of legal protection to same-sex unions. Catholic politicians will have to demonstrate the concrete negative effects of these unions on the common good if they are to make a persuasive public case against legalising "homosexual unions". If they are to do so in good conscience, they also have to be personally convinced by the evidence itself, as well as by proper deference to the Church, that these unions are indeed pernicious. What then is a Catholic politician, or indeed the Catholic citizen, to do if he or she is not so convinced? What if, after a thoughtful and conscientious process of deliberation and reflection, he or she becomes firmly convinced that the converse is the case? Since Catholic doctrine teaches that each person has a solemn moral obligation to adhere to the dictates of his or her conscience (even if that conscience is erroneous), then such a politician would in fact have a strict moral duty to promote the legalisation of same-sex unions and not to do so would be sinful. As Cardinal Ratzinger has written: "Only the absoluteness of conscience is the antithesis to tyranny."

This latest document from the CDF provides a set of arguments that can shape future discussions on this important matter. But its ambiguities undermine its persuasiveness. The tradition of natural law allows for, and indeed requires, continuing moral conversation in which multiple points of view are brought to bear on important moral issues. Rather than speak "about" gays and lesbians as incarnate social "problems", future discussions ought to include them as active interlocutors worthy of our respect and compassion.

C'est le ton qui fait la musique, say the French. While this document was written out of care for the Church and concern for the wellbeing of the social order, it lacks love.

About Stephen Pope

Stephen Pope is an associate professor in the theology department of Boston College. He received his Ph.D. in theological ethics from the University of Chicago in 1988. He has also taught at the University of Saint Thomas in St. Paul, Minnesota and was a Visiting Adjunct Associate Professor at the University of Notre Dame. At Boston College he teaches courses on social ethics, theological ethics, and moral philosophy. He has written The Evolution of Altruism and the Ordering of Love (Georgetown, 1994), edited Essays on the Ethics of St. Thomas Aquinas (Georgetown, 2001), and is currently working on a book entitled, Human Evolution and Christian Ethics.

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