Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, November 22, 2009

The principal magisterial argument against same-sex unions

As we at MOJ well know, the pope and the bishops of the Catholic Church are among the leading opponents of extending the benefit of law to same-sex unions:  They “[strongly oppose] any legislative and judicial attempts, both at state and federal levels, to grant same-sex unions the equivalent status and rights of marriage – by naming them marriage, civil unions or by other means.”   (USCCB Administrative Committee, “Statement on Marriage and Homosexual Unions,” 33 Origins 257, 259 (2003).)  And as we at MOJ also know, when the pope or the bishops enter the public square (so to speak) to weigh in on political controversies, they rely on nonreligious arguments: arguments that presuppose the authority neither of Christianity (much less of Catholicism) nor, indeed, of any religious belief.  The principal secular argument on the basis of which the Church opposes the legal recognition of same-sex unions holds that it is immoral for anyone to engage, voluntarily and intentionally, in any species of sex (genital) act that of its nature (“inherently”) is not procreative – masturbation, for example; or oral copulation; or male–female sexual intercourse, even in marriage, in which the man uses a condom. According to the Administrative Committee of the U.S. Conference of Catholic Bishops, “[w]hat are called ‘homosexual unions,’ . . . because they are inherently nonprocreative, cannot be given the status of marriage.”  (Ibid (emphasis added).  See also Congregation for the Doctrine of the Faith, “Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons,” http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20030731_homosexual-unions_en.htmlCf. Margaret Farley, Just Love:  A Framework for Christian Sexual Ethics 279 (2008): “[I]n official Roman Catholic negative assessments of homosexual activity[,] the procreative norm is relativized for heterosexual relationships (following the acceptance of some forms on contraception such as ‘natural family planning’), but it is absolutized once again when homosexual relationships are at issue.”

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