Instead of getting all tied in knots about same-sex marriage, the church should separate itself from the state when it comes to officiating civil marriages.
By Bryan Cones, a writer living in Chicago.
Sounding Boards are one person's take on a many-sided subject and do not necessarily reflect the opinions of U.S. Catholic, its editors, or the Claretians.
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The June 2013 Supreme Court rulings that struck down portions of the federal Defense of Marriage Act and overturned California’s Proposition 8 marked a major turning point in the debate over whether same-sex couples should have access to the civil institution of marriage. That debate, which began slowly with a Massachusetts State Supreme Court ruling; similar rulings in Iowa, California, and Vermont; and successive state legislatures legal recognition of same-sex marriage or parallel civil union, is fast heading toward a conclusion. The Internal Revenue Service’s August decision to grant married filing status to married same-sex couples even if they live in a state that does not recognize their union is further indication that, at least on the national level, the question of whether same-sex couples can marry has largely been determined in their favor.
These developments, however, continue to expose wide divides in society about the definition and meaning of marriage, no less in the Catholic Church. The Catholic bishops of this country have been nearly univocal in denouncing any attempt to redefine civil marriage. Individual bishops have devoted large amounts of financial and other diocesan resources in political activity to oppose changes to the civil law.
Rank-and-file Catholics meanwhile seem to be leaning the other way on the issue. Poll after poll shows Catholics in general favoring legal recognition of same-sex couples—either in marriage or civil unions—by large margins. A March 2011 poll saw 43 percent of Catholic respondents support full civil marriage rights, with another 31 percent in favor of civil unions; a poll two years later found 54 percent support for full civil marriage rights with 38 percent opposed, a complete reversal of the findings as recently as 2008.
Given the shift in marriage’s civil legal definition to include same-sex couples, it is time that Catholic conversations about the issue recognize that we are talking about two different realities when we use the word “marriage”—a legal contract on the civil side, and a sacramental covenant between two baptized people on the other—and adjust our practice accordingly. Doing so would allow Catholics to have a fruitful intramural conversation about our theological understanding of the sacrament of marriage without at the same time being entangled in the question of whether families and couples that don’t fit that vision should have access to the legal benefits and duties that go with its civil parallel. It would also acknowledge what should be obvious to everyone: Even if civil and religious marriage were once a single entity, the ties uniting those two dimensions have now almost completely unraveled.
One doesn’t have to look far into Christian history to find differences between a general societal view of marriage and what became the Christian vision. Jesus’ condemnation of divorce (Mark 10:2-12; Matthew 19:3-9) questioned the practices of some rabbis in his own Jewish community who permitted marriages to be easily dissolved. Paul’s insistence that women had rights within marriage, to sex for example (1 Corinthians 7:1-10), were revolutionary in a Greco-Roman culture in which married women were treated as property and divorce was common for the sake of cementing family alliances. His repetition of Jesus’ teaching against divorce (with some exception) made clear that marriage was practiced differently in the household of God than in civil society.
Despite the New Testament witnesses, ancient Christian practice around marriage does not become clear until about the fourth century, as the settlement joining the church to the Roman Empire was becoming firm. Once bishops and priests became civil authorities, the civil and religious dimensions of marriage also became inextricably joined—a situation that endured until the modern period.
Many liberal democracies in Europe and Latin America have long required first a civil marriage to then be followed by a separate religious ceremony, or convalidation, if the couple so desires. But the effects of the “marriage” between church and state in this country are still evident every time a priest signs a civil marriage license, perhaps the only time a religious leader still acts as a civil servant in the United States—a practice that is against the law in countries such as Mexico.
Indeed, the fear of bishops and many Catholics who oppose same-sex marriage is that priests, since they act as civil authorities in performing marriage ceremonies, will be “forced” to solemnize the marriage of same-sex couples, thus contravening the church’s teaching. The easiest way to solve that problem is simply for priests to stop signing any couple’s civil marriage license, a duty that can surely be left to the county clerk, and only officiate sacramental weddings. Forcing couples to essentially be “married” twice—once civilly, once sacramentally—may have the unfortunate side effect of some couples skipping the religious marriage altogether, but even that may open up a further opportunity for Catholics to tease out the difference between a civil marriage and a sacramental one.
Beyond the relationship between church and state on the matter of marriage, however, there’s simply no denying that marriage in any form isn’t the institution it used to be. The work of sociologists and historians, notably Stephanie Coontz, has documented the shift from previous models of marriage focused on economic productivity and procreation to our contemporary “companionate model,” with its focus on the relationship and well-being of the partners. That shift has no doubt fuelled society’s acceptance of civil partnerships between persons of the same gender.
While many defenders of “traditional” marriage may insist that marriage is and has always been by definition between a man and a woman, that now holds true only when talking about the sacrament. When it comes to civil marriage, both state legislatures and the courts have already changed the legal definition, just as they did in the matter of no-fault divorce laws, thus undermining the “lifelong” portion of the marital definition. History makes clear that, at least when it comes to civil marriage, the definition is a moving target.
Catholic teaching in the past 100 years has itself undergone a similar shift. While Pius XI’s 1930 Casti Connubii continued to characterize marriage primarily as a contract with little specifically theological significance, Vatican II’s 1965 Gaudium et Spes and Pope Paul VI’s 1968 Humanae Vitae shifted to the biblical language of marriage as a “covenant” between the spouses. Pope John Paul II’s “theology of the body” elevated church language about the good of marriage, and sex within it, to a further dignity that would likely make Pius XI blush.
The so-called “unitive principle” of marriage that appears in contemporary Catholic teaching—what Gaudium et Spes calls the couple’s “mutual help and service to each other through an intimate union of their persons and of their actions”—reflects the broader societal shift toward the companionate model of marriage. Where Catholic teaching goes beyond this model is in its emphasis on procreation as a critical dimension of marriage. While a strictly civil marriage need not include both dimensions—any more than it must include a lifelong commitment—they cannot be absent from the sacramental union of two baptized persons (at least when both partners are still physically capable of having children).
Separating religious marriage from its civil counterpart will of course not overcome every social, political, and theological challenge related to same-sex relationships. Lesbian and gay Catholics will likely continue to make known their views on marriage and to ask bishops and Catholics in general to reconsider the church’s teaching on the matter, as is their right under the Code of Canon Law as baptized people (canon 212).
We may, however, hope for some new beginnings. Catholics who wish to can celebrate with gay and lesbian neighbors, friends, and family members the new and important steps our society has taken toward granting civil rights to same-sex couples with less need to explain how one can be “a good Catholic” and still support the civil rights of same-gender couples. Those concerned with the religious definition of marriage will be free to pursue its theological dimensions, and all sides will hopefully benefit from a more charitable debate on the matter.
Priests, freed from their civil obligations, will have no concern over being required to violate their beliefs. And bishops, relieved of the need to bankroll ever more expensive political initiatives, can devote time and resources to strengthening the sacramental dimensions of Catholic marriage and family life.
Perhaps together we will come up with a creative new beginning to Catholic reflection on human sexuality and marriage, one that still critiques and challenges the world around us, as the gospel always does, while also offering the encouragement and hope that is the hallmark of the good news.
Marriage Compared to Civil Unions
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What Is Marriage?
Marriage is a legal status that is given to a couple by a state government. Regardless of where the marriage is issued, and subject to a few exceptions, it should be recognized by every state and nation around the world. Marriage is desirable because it has several unique rights, protections, and obligations at both the state and federal level for both spouses. Marriage for same-sex couples became legal in 2015, meaning that it is now an option for most couples.
What Is a Civil Union?
A civil union is a legal status that provides many of the same protections as marriage does to couples. However, these protections are only available at the state level. Federal protections, such as tax breaks and social security benefits, are unavailable to the civilly united. Civil unions are currently only available in Illinois, New Jersey, Hawaii, and Colorado. They are also recognized in Vermont.
What Is Domestic Partnership?
A domestic partnership is another legal status that gives some of the rights of marriage. Many states have made domestic partnerships available to certain groups of people. Usually, domestic partnerships allow couples to enjoy a list of rights and responsibilities that are limited compared to those granted to couples in a marriage.
What Are the Differences between Marriage, Civil Unions, and Domestic Partnerships?
There are significant differences between the benefits and responsibilities of marriage and civil unions or domestic partnerships. People who are married usually enjoy more benefits than those in alternative arrangements, including:
- Legal recognition of the relationship in other states
- The ability to divorce in their state of residence, regardless of where married
- Tax benefits available to married couples only
- Immigration benefits when petitioning for a non-citizen spouse
- Federal benefits, such as social security, medical, and life insurance
What Are Other Ways to Gain Some of Benefits of Marriage?
There are several options for increasing the number of benefits that are available to couples who cannot (or do not wish) to marry, enter into a civil union, or become domestic partners. These include:
- Second parent adoption of your children
- Creating durable or medical power of attorney in your partner
- Crafting a durable and specific will
- Planning your estate carefully
Do I Need an Attorney?
If you are choosing between marriage and another alternative available in your state, like domestic partnership or a civil union, you may wish to consult a family law lawyer. An attorney can explain all your options and help you understand what types of legal strategies are right for you and your family.
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Last Modified: 02-28-2018 03:31 AM PSTLaw Library Disclaimer