More on The Catholic Church and Same Sex Marriage

Cardinal Spellman presides at the Marriage of
Edward (Ted) Kennedy and Joan Bennett
November 29, 1958

In our last post we spoke of the issue of Gay Marriage because New York State, despite the protests of the State’s Catholic Conference and the Catholic Bishops in New York, passed the recognition of Same Sex Marriage into Law.  Governor Andrew Cuomo is not exactly the paragon of Catholic Laity for a number of reasons in his personal life; nevertheless there was pressure on him as a Catholic to veto the Bill.  He did not, of course—he was one of the strongest supporters of legitimizing Same Sex Marriage.  There are those in the Church who think that Catholics should oppose the recognition of Gay Marriage in civil law because such a “marriage” is not a marriage at all.  Perhaps what needs to be considered is the difference between the legal recognition of a marriage in the civil law and the theological recognition of Matrimony according to the norms of Christ and his Church.  This is not an artificial distinction in any sense.  Two people come to the parish office and wish to marry in the Church but not civilly.  There could be a sound reason for this.  Perhaps one or both parties are in the United States illegally and they do not want to draw attention to that fact by applying for a civil license.  Perhaps by entering into a legal marriage, one or both parties might lose certain pension or Social Security benefits which they need to survive.  There can be other reasons as well, but as long as no ecclesiastical impediment exists, a priest or deacon is free—in the eyes of the Church—to witness and bless their entering into the Sacrament of Matrimony.  Legally there is no marriage; in the eyes of God and the Church, there is.

Let us consider another situation.  A couple, one of both of whom are Catholics, marries in front of a Justice of the Peace or a Protestant minister.  Perhaps one or both have a previous marriage which is not annulled.  Perhaps they have been cohabiting and the priest has refused to marry them until they separate.  Perhaps the bride is pregnant and the priest has declined to marry them, unsure that the marriage is being entered into freely and with mature discernment.  Perhaps a non-Catholic partner has insisted in marrying in his or her Church.  Perhaps they simply wanted a “garden wedding” rather than the required Church service.  There are all sorts of reasons that people marry outside the Church.  The Catholic Church does not recognize that marriage as a sacramental bond but, at least in practice, it does recognize it as a reality in civil law. 

Divorce is a tricky issue.  Until the sixteenth century marriage and divorce were subject to religious authority, and only in a secondary sense to civil law.  In medieval Catholic Europe there was no such thing, strictly speaking, as divorce for the Christian majority. Traditional rabbinic law permitting divorce governed the Jewish minority.  While we say that there was no divorce for Christians, we must be careful how we nuance “divorce” for ecclesiastical annulments, especially those granted by the Holy See, often functioned as divorce in as that they permitted one spouse to leave another and remarry.  An example of this would be the dissolution of the Marriage of Louis VII and Eleanor of Aquitaine.  The marriage was “annulled” on a pretext of kinship—and all royal marriage had sufficient kinship to use this claim—but in fact the marriage simply had gone sour and each was anxious to marry someone else.  Louis married Constance of Castile; Eleanor Henry of Anjou who became Henry II of England.  Popes, or sometimes (as in the case of Eleanor and Louis) synods of bishops regularly dissolved marriages for causes real, alleged, or totally fictitious but always political.  Royalty was seldom denied their “annulments” and when we eventually look a the case of Henry VIII we will see that the only reason he didn’t get his annulment from Katherine of Aragon is that it interfered with Medici politics.  But that is a later story. 

Most common people in the Middle Ages did not bother with a religious wedding.  Peasants in particular simply came to some sort of agreement—financial and personal—and took up life together.  From the thirteenth century on more and more townspeople went through a church blessing because it was fashionable, a copying of a ritual more common among the “bluebloods.”  And when such marriages failed, the husband (and sometimes the wife) would just “take up” with a new partner without any formal to do.  It may surprise you to know that marriage in the presence of a priest was not required until the 1917 Code of Canon Law.   

With Luther and the other Reformers marriage did not make it into the category of a Sacrament and in fact came to be regarded primarily as a civil contract.  In Protestant societies this permitted marriage to slide from ecclesiastical jurisdiction to the authority of the Civil powers.  In seventeenth century England and its colonies, divorce became an established legal procedure.  It was not easy to obtain—adultery was the most common cause for it to be granted—but it was neither impossible nor uncommon.  It was simply an established legal reality in the American Colonies (and later States) and the Catholic Church never had to resist its legalization, except perhaps in Louisiana. That was not true everywhere.  In Catholic Italy, Divorce was prohibited by the Lateran Concordat of 1927 between the Kingdom of Italy and the Holy See.  It was approved by a referendum in 1974 despite the opposition of the Catholic Church.   Ireland had a similar story.  At the insistence of the Irish hierarchy, the 1937 Constitution prohibited it; in 1995 a referendum overturned that Constitutional provision.  Malta—again against the opposition of the hierarchy (though not vast numbers of ordinary parish priests) just approved civil divorce in May of this year.  Today only the Vatican itself and the Philippines are Catholic countries that make no provision for civil divorce. My point here is that the Church has gradually lost control, even in Catholic Countries, of marriage.  Marriage is a civil relationship, defined and governed by civil law.  Matrimony is a distinct reality with theological meaning and defined by the very Tradition of the Church.  Once united, they are now distinct and subject to different authorities. 

It is strange that the Catholic Church does not object to marriages that are not matrimonial except in the circumstances of same-sex unions.  If two non-Catholics, one or both of whom have been previously married, wish to get married, the Catholic Church has no objection whatsoever even though, by Church teaching, that relationship is nothing more than an adulterous union. One or the other of such a couple be an employee of the Catholic Church there is no objection to paying spousal benefits even though the Catholic Church sees that relationship is inherently sinful.  In fact, there are many Catholics who are in invalid marriages and who work for the Catholic Church as secretaries, maintenance and facilities personnel, health professionals, business managers, program administrators, social workers, and countless other positions and the Church pays spousal benefits.  Let both partners be of the same sex, however, and it is a very different story.   No person who knows our Catholic Tradition will say that the Church is wrong not to recognize same-sex marriages from a religious perspective, but there is an inconsistency when the Church recognizes the civil legal character of “sinful” unions between a man and a woman but not the civil legal character of a union of two members of the same sex.   The Church has every right to define Matrimony as the union of one man and one woman; but marriage is a contract in Civil Law and Catholics, like everyone else,  can have their opinions and vote their prejudice—that is the prerogative of all citizens in a democracy—but civil marriage is determined by Civil Law and not religious doctrine.

What we probably need to do in this age where “Traditional Marriage”  is collapsing among Catholics at the same rate that it is collapsing among the general population, is to undertake a genuine “Defense of Marriage” not by excluding same-sex couples but by developing means to assist traditional Catholic families to grow more deeply in their commitment to God, to his Church, to one another, and to their children.  Let society deal with those whom it recognizes as married; let us as Catholics and Chrisitans try to minister more effectively to those members of our Church who need guidance and help in making their relationships true Sacraments, true outward signs of the Love of God for his people and the Love of Christ for his Church.