Theological foundations support same-sex marriage and societal progress, Part 2

By William P. Messenger

<<Part 1: Natural Law & Scripture

Part 2: Jurisdiction

Marriage is the historical model in jurisdiction and it is the paradigm on which same-sex unions are based, even if they are not to be called marriages themselves. As such the concept of marriage is useful while searching for a foundation in law that might apply to same-sex unions. Although religion rightfully claims a stake in marriage, the union is first and foremost a matter of civil law. The existence of marriage as a relationship, even the concept of marriage as an institution, predates religious commitment, structures and laws. It is, primarily, a question of the fabric of civil life. It was this awareness that occasioned Pope Paul VI to alter the canonical form for marriage in the Catholic Church.

Even today, the state stakes first claim on marriage. In the United States, for example, the state allows a religious ceremony to satisfy the requirements of civil law, but only after the state has issued a license to marry. In some other countries, the religious ceremony has no such recognition, requiring a couple first to marry civilly and only after to celebrate in some meaningful religious way.The state claims jurisdiction to provide order and stability by enacting a whole slew of laws to safeguard and protect marriage, including the sometime necessity of divorce.

Although some concept of marriage is a universal social experience, it is also culturally influenced. For example in some cultures polygamy is acceptable, while in other cultures the state restricts marriage to a monogamous relationship. In some cases it provides for a common law marriage, and in extreme situations, the state limits the number of children a married couple can bring into the world.

Whether or not the Church agrees with or approves any particular law of the state regarding marriage is to some extent irrelevant. It is within the power and authority of the state to enact such laws. The church may choose internally to enact stricter limitations on marriage, and may also seek to engage the state in a discussion of the merits of civil law, but in terms of the larger society, it is the state that has jurisdiction on what does and does not constitute a valid marriage.

Perhaps the greatest concern of the state stems from the concept of the fabric of civil life. It is not possible to overstate the significance of a stable union on the larger society. One need only look at the emotional and psychological costs of divorce, not to mention the economic tally. In this regard, an argument can be sustained that society also benefits when same-sex unions are stable and permanent. The break up of same-sex unions often mirrors the emotional, psychological and economic costs of marital divorce.

Same sex relationships of some length will continue to exist in society. If that society benefits from the stability of same-sex unions, then it stands to reason that the state has a vested interest in supporting those relationships at least in so far as extending to them the same rights and privileges attendant to the married state.

Bishop Daniel Reilly of Massachusetts referred to these as “distributive justice” in his testimony before Massachusetts State Legislators in October of 2003. Additionally, if the state decides to grant the rights and privileges of married couples to same-sex couples, i.e. to distribute justice evenly, it follows that the interest of the state demands a designation for same-sex couples that reflects the meaningful life commitment of these unions. Such a designation, whether marriage or civil unions or any other term, secures those rights not just in law, but in fact, thereby safeguarding those same rights from the mood swings of society.

In the current debate, many argue that granting same sex unions the same rights as marriage, would further strain an already fragile economic system. However, such argument ignores the greater benefit to society when any relationship is stable and permanent, thereby contributing to the fabric of civil life.

The timing of such a decision is critical. Just as changing circumstances occasion a change in the interpretation of natural law and Scripture, so also they occasion a change in civil law. It may be that something which always held intrinsic value, namely the love between individuals, specifically homosexual individuals, could not have been codified by the state before now. Today’s generations have seen the changing circumstances that alter social structures. However, change is gradual. Even when it is universal in scope, it does not take root in all people at the same time. In this particular case the language of the law is critical.

I understand that crafting a distinct term for same-sex unions, or permitting homosexual couples to marry, will not satisfy those in our society who venomously condemn homosexuality. Still, it is in the province of the state to make such a determination, and there is ample support both in natural law and in jurisdiction to support this conclusion. When one considers that a primary responsibility of the state is to promote the common good, then the state must be particularly sensitive to the minorities among us.

Most everyone will agree that homosexuals constitute a minority and that is not likely to change. But the state’s obligation is not to promote the good (or the biases) of the majority. Rather, it is the common good that must be promoted. By definition, “common” includes all people in a society, the majority and the minority. After all, everyone in our society values at least the following: life, dignity, personhood and love, even if those values find a variety of expressions. Promoting and securing those elements in all individuals cannot help but promote the common good.

Although Church history can never be reduced to a simple phrase, it is fair to say that until the middle ages the Catholic Church seemed content with the state claiming and exercising jurisdiction over marriage. It was not until the Council of Trent in 1563 that the Church required Catholic marriages to take place before a priest. This was a change in practice that proved contentious for the Protestant Reformers who rejected the idea that the Church should exercise authority over marriage. Whatever religious importance the Church desires to place on marriage, (and much of it has great spiritual value), jurisdiction over marriage lies first and foremost with the state.

Perhaps a refinement of the pre-Trent arrangement would better serve both Church and state, allowing the state to regulate legal unions and the Church to focus on the sacramental character of marriage. This was the argument put forward by Erwin Chemerinsky when he was Constitutional Law Professor at the University of Southern California. In an article on same-sex unions for the Los Angeles Times, he argued that the state should drop the term “marriage” and issue licenses for civil unions, period. Then the Church, Synagogue, Mosque, Temple, etc. would be free to designate which unions constitute marriage, thereby relegating “marriage” to the realm of faith. At least from a civil perspective, this would eliminate the contentious terminology of calling same-sex unions marriages. Whether or not it would resolve the deeper legal concern of equal treatment under the law is a separate issue, and one that requires a more thorough social dialogue.

Theological foundations support same-sex marriage and societal progress, Part 3 & 4 >>

(Rev. William P. Messenger is a Catholic priest in the Archdiocese of Los Angeles. He is also a novelist and a blogger for political and social justice issues. www.billmessenger.com)