Friday 14 August 2015

Reflecting on Same-Sex Marriage


This week the Coalition, after a marathon Party Room discussion, has unanimously decided there will be no ‘conscience vote’ for them on legislating for same-sex marriage in this parliamentary term.  There may be a referendum or plebiscite to determine public opinion on the matter following the next election.  This current debate was heightened some months ago when Ireland, that traditionally most Catholic of countries, voted overwhelmingly for same-sex marriage in a national referendum.

Recently the Australian Bishops’ Conference has released a Pastoral Letter on the same-sex marriage debate, entitled Don’t Mess With Marriage.

This is a time when we are being invited to read and reflect, to prayerfully consider the Church’s official position, and to authentically discern where we stand on this issue.  The considerations may see us discussing the matter with family or fellow-travellers, or contacting parliamentary representatives, or in time casting a vote this way or that.

The Bishops’ document begins well with the themes of human dignity and respect for those with same-sex attraction.  Many of those latter persons are still labouring under the hurt of earlier magisterial pronouncements by the then Cardinal Ratzinger (later Pope Benedict), heading the Congregation for the Doctrine of the Faith.  There he described their inclination as a “strong tendency toward intrinsic moral evil”  (ie, unable ever to be morally justified) and “an objective moral disorder”.  Such language is not helpful to a person whose same-sex orientation is a givenness, not a choice.  The letter referred to homosexual behaviour using the term “totally compulsive”, which is loaded with overtones of a psychological obsession.  In that same document, whilst deploring violence against homosexual persons, the Cardinal went on to claim that if homosexual activity “is condoned, or legislation is introduced to protect homosexual behaviour to which no one has any conceivable right”, we should not be surprised if “irrational or violent reactions increase”.  Such a claim is tantamount to a philosophical rationalisation of violence.

It was quite a change of tone when the present Pope Francis, being questioned about priests with a homosexual orientation, replied to reporters, “If someone is gay and he searches for the Lord and has good will, who am I to judge?”  The Pope spoke in Italian, for the first time using the colloquial English word “gay.”  A new sensitivity.

Currently, a number of States/Territories recognise different degrees of civil unions.  This legislation ensures same-sex partners are accorded benefits to do with taxation, health insurance, social security, aged care and child support, and so on.  They can even appear before the Family Court.  Such civil unions were opposed by Pope Benedict, but when Pope Francis was Archbishop of Buenos Aires, he told gay rights activists that “homosexuals need to have recognised rights” and that he “supported civil unions, but not same sex marriage”.

The arguments against moving from such civil unions to recognition of same-sex marriage are many.   The central one, as claimed in our Bishops’ Pastoral Letter, is that it is a false appeal to equality and non-discrimination.  Marriage is, by definition and timelessly, God’s plan, the union between a man and a woman for the generation of children.  (Though, as far as the latter requirement is concerned, a couple post child-bearing age, with no more likelihood of conceiving children than a same-sex couple, may still be married in the Catholic Church.)

There are further concerns raised about such same-sex couples being able to beget children by new technologies, or adopt them, thereby denying the child the right to both a father and a mother.  Going further still, the right of a child to know its biological mother and father also needs considering.  The rights of children can be sometimes overlooked in these debates.  But as for adoption, that horse has already bolted.  Single persons and same-sex couples already enjoy that right, that freedom.  Indeed, children of these couples are already being educated in Jesuit schools in Australia and abroad.

Old Ignatian and Minister for Agriculture, Barnaby Joyce, argued that adopting same-sex marriage in Australia would offend our Asian neighbours and render us culturally out-of-step with them.  But such an argument has not held us back so far from holding different positions than our Asian brethren on, say, capital punishment and other human rights issues.

Still others have proposed ‘the thin edge of the wedge’ argument: that tampering with the definition of marriage will lead to even more novel and undesirable definitions.  Senator Cory Bernardi has suggested it may lead to legitimating unions between humans and animals.  (That particular observation resulted in the Senator losing his post as the Prime Minister’s parliamentary secretary.)  The possibility of multiple marriage partners (polygyny or polyandry) has also been suggested.  Australia has already had experience of the latter (though not in law) with both traditional Chinese and Islamic cultures.  The US knows of this with one branch of Mormonism.  If further redefinitions of marriage are proposed at a later time, they will need to be faced.  However, the ‘inevitability’ which such slippery slope arguments point to needs to be treated with caution.

A key concern is whether such legislation will lead to an expectation that churches or civil celebrants with religious views about same-sex unions will be forced by law to perform such marriages.  Or for Catholics, in particular, might it mean that there will be an expectation that such marriages will have to become sacramental?

Concerning the former, exemptions must be guaranteed.  Regarding the latter concern, it ought be noted that not every rite of passage we Catholics undergo, or commitment we make in life, is marked out sacramentally.  My vows in religious life, my life-long promises in joining the Jesuits, did not attract a sacrament.  And while a sacrament happens to mark out the ministry of priesthood, someone who commits their life to a ministry of nursing or teaching does not celebrate that in a sacrament.  There are already ‘haves’ and ‘have-nots’ in the sacramental arena.

The Bishops’ letter finishes by listing a number of incidents overseas where people have been threatened with litigation, fined or arrested for standing in principle against, or not participating in, same-sex marriages.  By way of reassurance here, our political parties have given religious groups assurances of protection.  To this point, though, I am unaware of the Catholic Church in Australia ever being sued for its current position of refusing to marry a divorced person.  I have never been threatened with litigation when I have said I could not marry two non-Catholics who asked me.  I was not threatened when I told a couple that I thought they were too young and not emotionally mature enough to be married.  I have not heard of the Church being sued because the couple was ruled too closely-related by blood to marry (while a civil celebrant would not be so restrictively bound by our Canon Law).  But what if we were to be so threatened to act against our belief?  The Church has a long history of standing up for its beliefs and not counting the cost.

Apart from whether marriage celebrants or wedding providers (venues, florists, cake-makers, etc) will suffer any consequences for refusing to engage in such marriages, there are many broader issues of concern to protect religious freedom should same-sex marriages be legislated for.  Could a Catholic nursing home, for example, refuse admission to an elderly same-sex couple, or a Catholic boarding school to a residential same-sex couple?  Could a Catholic adoption agency refuse to consider an application from a same-sex married couple?  These are significant questions to consider.

Frank Brennan SJ, Professor of Law at the Australian Catholic University, has previously argued for the legislation of same-sex marriage.  Motivated by a sense of justice and human dignity, he has earlier written.

It would be just and a service to the common good for the State to give some recognition and support to committed, faithful, long-term relationships between gay couples deserving dignity, being able to love and support each other in sickness and in health, until death they do part.

More recently he offered a threefold argument in favour of the legislation:

Given the increasing number of children being brought up by same sex couples, it is desirable that the state take away any social stigma against same sex parents.  Given the ageing population, the state has an interest in recognising and protecting long term relationships of same sex couples who care for each other.  Given the harmful effects of homophobia, it has an interest in encouraging broad community acceptance of those members who are homosexual. Laws and policies can help in this regard.

But then he goes on to outline some rights to be protected by such legislation.  He asks for four assurances for members of parliament before they vote for same-sex marriage.  He asks the assurance that:

    1. Religious groups could continue to order their religious and church affairs consistent with their teaching on marriage.
    2. Adoption authorities could always make decisions in the best interests of the child.
    3. State authorised/funded assisted reproduction services would not be expanded to allow the creation of a child without a known biological mother and a known biological father.
    4. Those who had religious objections to same sex marriage would not be required by law to violate their own consciences in the performance of professional or artistic services (as distinct from the simple sale of goods or provision of other services) when that performance is usually enhanced by the person believing in the relationship that is being celebrated or sustained.

In considering such significant legislation ahead, in forming one’s decision, and in advising others (like politicians), the teaching of the Church is to be considered seriously and prayerfully, and the ‘school of reason’ in natural law in our hearts is to be engaged.  Ultimately, though, we are to move into the realm of our formed consciences, which the Second Vatican Council described as “our most secret core and sanctuary where we are alone with God, whose voice echoes in our depths”.

Fr Ross Jones, SJ