(On Pope Francis I and Same-sex Civil Unions)
While the recent endorsement by Pope Francis I of civil unions for same sex couples is welcome, it is not what it seems. It is not exactly breaking news. While it is his first public commendation of political protection for lesbian and gay couples and families as pope, as Cardinal Jorge Bergoglio, Archbishop of Buenos Aires, he had previously gone on record supporting civil unions. In this sense, while Francis’s pronouncement was newsworthy, it was not without precedent.
Here’s the quote: in a documentary film about Pope Francis, he contends that
“Homosexual people have the right to be in a family. They are children of God and have a right to a family. Nobody should be thrown out or be made miserable over it. What we have to have is a civil union law — that way they are legally covered. I supported that.”
No doubt this claim will cause incessant pearl-clutching and cries of j’accuse by the Catholic Right. While few Catholic conservatives go as far as integralists like Adrian Vermeule of Harvard Law, who explicitly (and sincerely) argues that the laws and precepts of the State and Civil Society should be subordinated to church authority, they do at least lean in the general direction of Constantinianism, the idea that Church and State work together and support each other. This tempts them into thinking that the civic order should, at least to some significant degree, reflect that of Christian doctrine as they understand it. Hence the relatively commonplace idea among them that Catholics have no choice but to vote for Donald Trump given his explicit, if not necessarily sincere, opposition to abortion and LGBT rights, particularly those granted by Obergefell v. Hodges. Never mind that Trump, who as one commentator said is the human embodiment of “what would Jesus not do?”, aligns himself with a nationalism, civil violence, and plutocracy that are vehemently rejected by the traditions of Catholic Social Theory, and are at odds with the socio-political and economic views of pretty much every recent pope, including Benedict XVI and John Paul II, the conservative ones.
Francis I is not as liberal as Catholic conservatives take him to be, although he is far too liberal for their taste. But he is not as liberal as Catholic liberals take him to be either. He has made it clear, during his tenure as Archbishop of Buenos Aires, that his endorsement of civil unions for lesbian and gay couples needs to be understood in the context of his opposition to lesbian and gay civil marriage, and does not signify any dissent from Catholic teaching about the moral unacceptability of homosexuality. In the Jesuit magazine America, the correspondent Michael O’Laughlin elaborated on this:
Before he was elected pope, Francis served as archbishop of Buenos Aires, and in that role, he advocated for same-sex civil unions in order to block a same-sex marriage law. Argentina legalized same-sex marriage in 2010, which then-Cardinal Jorge Bergoglio called a “destructive attack on God’s plan.” But in meetings with other Argentine bishops, Cardinal Bergoglio urged them to support civil unions to keep marriage distinctly heterosexual. Bishops rejected the idea, but an L.G.B.T. activist in Argentina said the cardinal called him to say he personally supported the idea of civil unions.
As with the other Argentinian bishops, I don’t expect conservative Catholics, especially in the United States of America, to be impressed with Francis’s splitting the difference between the legal protection of lesbian and gay couples and his opposition to legal same-sex marriage, let alone any change in magisterial views on the sacramental blessing of same-sex unions. But I shall argue that they shouldn’t be surprised at this. Francis’s argument is thoroughly consistent with long traditions of Catholic social and political thought, especially as expressed by the key exponent of that thought, St. Thomas Aquinas. If what Francis is saying about gay civil unions is despite appearances not particularly controversial, then the ensuing fresh hell starting to be expressed on Christian Twitter will be little more than a tempest in a teapot. But, as I shall claim in my conclusion, Francis’s position evades the more important issues of whether the Catholic position on gay civil marriage, and the moral legitimacy of lesbian and gay relationships as such, is sound as it stands. It is not. The tea in that pot is still too bitter to drink.
Catholic Social and Political Theory has a long, varied, and contentious history. It runs the gamut from the relatively conservative distributism of G.K. Chesterton and Hilaire Belloc, through the Liberal Social Democracy of John Ryan and John Courtney Murray, to the radicalism of “the worker priest” M.-D. Chenu and the Catholic Worker’s Dorothy Day. The Ur-texts that link these disparate views together — the Summa Theologiae, Commentary on Aristotle’s Politics, and On Kingship — come from the pen of St. Thomas Aquinas.
Thomas’s politics flow from the first part of the second part (Prima Secundae, or I-II) of the Summa Theologiae, where he outlines his general theory of law. For Thomas, there are four basic variants of Law:
1. Eternal Law, which is the structures in creation that God as providentially ordained to govern it. This includes both the laws that govern physical changes and movements and the ends to which god has oriented natural, created beings.
2. Natural Law, which is a capacity of human reason to discern what the eternal law ordains for human beings, and to make explicit what it requires. Humans, unlike planets, ants, and bonobos, can contravene the natural law through acts of free choice: knowing the Natural Law through synderesis, the ability to discern providential reason and thus the path to human flourishing, we have the ability to freely choose our own good (or not). The ability to link the Natural Law to particular circumstances rests on another form of human knowledge, that of conscientia, which is the kind of sound moral judgment that applies general principles to these circumstances. Natural law guides our natural inclinations toward the human telos, the human end or good. “The natural law is nothing else than the rational creature’s participation of the eternal law” (ST, I-II, 91.2)
3. Divine Law, or revealed law, which is that detailed in scripture to aid fallen human nature in correctly understanding the eternal law and how it manifests itself in natural law.
4. Human Law, or positive law, which consists in those rules, promulgated and enforced by legitimate authority, to provide for the common good necessary for human beings to recognize their human end and pursue the human good together. Human law is not the same as natural law, nor are its precepts co-extensive with it. While human law gains its legitimacy from the natural law, it need not cover every facet of it — only those which pertain to offenses against the good of others, or those which are necessary to enable to the joint pursuit of shared goods.
Natural law, for Thomas, reflects eternal law, which designates what the telos or end of a being is, and what capacities need to be exercised to attain it. But it is not identical with eternal law: we can only know our created end by the means proper to a finite, created, yet rational creature. We need to investigate and form rational conclusions. But human rationality is itself an achievement rather than a given. One needs to perfect one’s sound reasoning through acquiring those dispositions of intellect and character, habits that enable one to discern what helps one attain or thwart our efforts to flourish, in tune with our divinely ordained telos. Hence our knowledge of natural law is mediated and enabled by the acquisition of human excellences or virtues — prudence or practical judgment, temperance, courage, and justice, as well as the infused theological virtues of faith, hope, and charity.
By themselves, natural law principles understood through synderesis are abstract, and need to be concretized through empirical inquiry and conscientia. The first principle of the Natural Law is “Do Good and Avoid Evil.” True enough, but very abstract, and not very helpful for acting in a particular situation. To do that, one needs to descend from law-like generalizations and observe, take stock of our natural inclinations, think, and then apply one’s conscientia. And here, as in most of his ruminations on both law and the virtues, Thomas closely follows Aristotle.
For example: humans are naturally inclined to eat — we observe that we all need to eat for health and survival. Thus, eating is a good, but just one good in a hierarchy of goods all recognized by sound reasoning (recta ratio) from these empirical truths. Furthermore, we can understand that withholding food from someone in need of it is contrary to the natural law as well — it is contrary to the virtue of justice to do so: one is not entitled to keep surplus goods like food from another when they are in dire need of it. Likewise, we are inclined to live in families: stable family units are important for human flourishing because they supply physical and affective stability in a precarious world. Moreover, they facilitate the reproduction of the human species. Families are natural because, and to the extent, that they support human flourishing in this way. Thus natural law thus rests on empirical inquiry into what human beings are and what they need for a full life, which in turn needs the virtues to enable us to discern these needs and figure out a way to meet them.
No valid human law can contradict natural law for Thomas. Unjust laws need not, and in some contacts must not be obeyed, a point that was noted and applied by Martin Luther King in formulating his policy of nonviolent civil disobedience. But the range of human law is decidedly more narrow than natural law: it pertains to securing the basics of the common good in a political community. As Frederic Copleston put it,
The function of legislation is to promote the common good, the criterion of goodness and badness in legislation is its relation, as discerned by reason, to that end. It does not follow that every precept and prohibition of the natural moral law should be embodied in legislation; for there may be cases in which this would not conduce to the public good. It might do more harm than good.
Human law thus is justified because we are polis animals, as Aristotle maintained: the political community needs laws to coordinate activities toward a common good, and to thwart those actions that hinder or undermine such pursuit. Thus, human law is necessarily a limited means toward a limited end. It is not there to police the natural law all the way down, first because that is impossible, and second the kind of panopticon-ridden surveillance-state it would imply — Foucault’s nightmare and Bentham’s dream — would work at cross purposes to the common good. Viewed thus, civil unions for lesbian and gay couples have a clear rationale, entirely compatible with the socio-political thought of Thomas and subsequent Catholic thinkers. And this would be true even if, for argument’s sake, one were to reject same-sex marriage and the legitimacy of homosexual conduct and identity. How so?
By promoting a key feature of the common good. The good of civil unions is to promote stable households by granting their members the same rights and protections enjoyed by married couples, which in turn sustains political society. To deny lesbian and gay couples valid legal claim to making medical decisions for one’s partner, or survivors benefits, or inheritance rights, or the right to fair housing or employment, would be to undermine the common good by excluding them from the goods of the community to which they contribute. It would be to arbitrarily isolate entire groups of people from the community that provides for their needs, needs shared by all human beings. These differ from the goods secured by the sacramental institution of marriage, but from the standpoint of the common good, this is beside the point. Securing basic human needs is the ground floor of any workable system of human law. And this, I think, is what Francis was arguing for.
So opting for civil unions for LGBTQ members of a community does not of itself contradict even the most conservative forms of Catholic Social Theory. Like any social-political theory, there is much to criticize in Catholic Social Theory, but also much to applaud — especially in economic matters, where it takes a decidedly anti-capital and pro-labor cast. Conservative Catholics are thus wrong to tag the Pope’s pronouncements as heterodox, even when one works using the political vocabulary they claim to support. Championing civil unions for gays and lesbians is thus not the camel’s nose, which once inside the tent means the rest of the beast shall follow. I doubt that “radical traditionalist” Catholics will be persuaded by the case I have made. But they remain opposed to it at the price of their own consistency.
It would be tempting to leave it at that. But the temptation should be resisted. Pope Francis presents a very likeable profile to the non-Catholic and non-Christian world, and he seems open to dialogue among those with whom he disagrees. All these are admirable traits. In addition, he has a gregarious, friendly, and empathetic style all too often absent from Catholic hierarchs. (His smile and laugh are genuine, and that is not a trivial thing.) But I think that to stop there would be to cut present-day Catholic thought on LGBTQ issues far, far too much slack. The flap over Francis’s comment may be a tempest in a teapot, but the boiling tea therein is still far too bitter for my taste.
St. Thomas Aquinas’s Theory of Law might seem, at first glance, to be deductive and a priori. It clearly has a priori element: natural law is derived from eternal law and is nothing other than a rational being’s participation in the latter. But to advise these beings to “do good and avoid evil”, or to admonish them not to steal or lie or covet, is to supply it with formal imperatives that lack determinate content, which needs to be supplied by excellences of character and judgment — the moral and intellectual virtues. It’s no accident that while Thomas devotes only eight questions to the section on Law in Summa Theologiae (I-II.90–97), he devotes the bulk of the second part of the second part (i.e., the secunda secundae, II-II.1–170) to a detailed account of the particular theological and cardinal virtues. Natural Law plays a key part in Thomas’s ethics and politics, but one decidedly subordinate to that of the cultivation of the virtues, which is an unavoidable empirical, a posteriori effort. To know what to do, both morally and politically, one needs to take stock of what one is, and discern through study, observation, and self-examination what human beings are and what they need to flourish, to be happy or eudaimon.
Thomas, as an Aristotelian, was not a historicist about human nature: he thought that while individuals change, all species are fixed. It is tempting to wonder what Thomas might have made of Darwin, for whom biological species evolve, or Hegel and Marx, for whom human nature or “species being” (Marx’s Gattungswesen) also evolves because “shapes of Spirit” or “material conditions” change dialectically throughout history. This is not a line of thought I shall pursue here, although I suspect that Thomas’s empiricist side would lead him to align more with Hegel and Marx than their critics. What matters, in my argument, is that our understanding of what it means to be human, our Gattungswesen, and what the conditions for our flourishing are, are matters of more-or-less thorough empirical investigation. We need to discern what these conditions are by and through experience, and we need to correct or modify or drop our theories about the human if they come up short. The hard work of ethical and political reflection is done a posteriori.
This hard work, unfortunately, is either not being done by official Catholicism, or is being done shoddily.
Consider the Pope’s distinction between civil unions and marriage: the former is legitimate, in fact needs to be made available for lesbian and gay couples to enable their flourishing as individuals, and as a conduit for securing the common political good. But marriage is taken to be off limits to all but heterosexual couples since its purpose is procreative and thus it alone can be sacramental.
But the distinction starts to come apart when one pulls at the strands that should, but do not, have adequate support in an empirical observation of social institutions. Is civil marriage, a state you enter when you sign a legal certificate at the county courthouse or borough hall, the same institution as religious marriage? If it is, then why does the church recognize the legal validity of civil marriages that are not sanctioned by the Church? If it isn’t, then why deny gay and lesbian couples that civil status?
The appeal to “civil unions” is a kind of linguistic dodge: a way of preserving a religious color to the connotation of civil marriage that it doesn’t and shouldn’t have. Why go through all the effort to exclude an entire category of people from enjoying the protections afforded by marriage when they get the same rights and protections from being granted a civil union?
I would guess the reason is that those who endorse the official Catholic position on marriage fear that advocating gay/lesbian civil marriage is a “slippery slope” or “camel’s nose” situation for the church, where if one budges on that issue one would be logically compelled to endorse gay/lesbian church marriage as well. But, to reiterate, from the standpoint of the common good of a political community, this is beside the point. “Marriage” as a civil institution has always meant something different from “marriage” as an ecclesial institution. So unless one wants to dip one’s toes in the acidic waters of integralism, where human law is a simple reiteration of natural law as interpreted by the church magisterium, there is no necessary relation between the civil and ecclesial institutions of marriage.
But there is another “camel’s nose” issue in play here: namely the theological justifications for limiting sacramental marriage to heterosexual couples open to procreation, and for declaring homosexual relations “unnatural”. Thomas was quite clear in his insistence that any justifiable account of “the natural law” needs to be rooted in an empirical account of what human beings are and in an understanding of what reason demands of such beings if they are to attain their telos, if they are to flourish as humans. The empirical basis for understanding human nature, however, is always going to be the best account to have emerged thus far: it is not something that can be “read off” of an a priori definition of humanity as a rational creature. Investigation into human nature does not stand still: it banks upon processes of inquiry and investigation that can reveal new facts and construct new theories about what is “natural” and what is not, what makes for human flourishing and what does not.
When Pope Pius XII — no one’s idea of a theological liberal — declared that there were two valid ends for marriage, the “unitive and procreative”, equally valid, inseparable but neither being an end subordinate to the other, he let the “camel’s nose” into that tent. (Rightly so, I would contend.) Therefore the “rhythm method” of contraception was “natural” and acceptable, while other “artificial” methods are not. But in doing so the Pope inadvertently raised but did not answer the question about the inherent blurriness of the “natural/artificial” distinction. He thus opened up the possibilities for making a case that in matter of natural fact the “unitive and procreative” ends often are separable, that not all sexual activity needs to be procreative because not all sexual activity is naturally procreative, intentional or not. This complicates any deduction-from-first-principles natural law view of moral obligation.
For example: how is a gay or lesbian couple, pledged to mutual fidelity and living this covenant promise out in their lives, less “unitive” because not biologically “procreative”? How is this significantly different from an infertile heterosexual couple who, while not “procreative”, adopt children? (I speak from personal experience in this matter.) Is this arrangement “second rate”, less unitive because not procreative? Is a gay or lesbian couple who do the same thereby “third rate”? Often you hear the word “generative” applied as a less austere euphemism for “procreative”, but their meanings are different. If you want to see “generativity” at work, I can introduce you to quite a few gay and lesbian families who would put heterosexual families to shame.
And all this obstinacy about human sexuality and the natural law ignores the point that in the Summa, natural law plays an important but minor role in understanding the moral life. It is the virtues that concretize what is rational to do and to be, and especially the virtue of prudentia or phronēsis. A morality of law is parasitic on a morality of the virtues or excellences of intellect and character. That there are valid universal moral principles neither I nor Thomas nor for that matter Kant had any doubt: do not murder, do not steal, do not cheat or lie. But by themselves the principles do not tell you whether an action falls under the description “murder”, “theft”, or “lying”, nor do they tell you how to respond to a concrete situation where one must act. This, I take it, it the gist of Hegel’s critique of Kant’s categorical imperative as correct but inadequate, because too formal: no Moralität without Sittlichkeit. Thomas, however, played Hegel to his own Kant in the Summa: virtues without principles may be blind, but principles without virtues are empty.
When the Dominican theologian Marie-Dominique Chenu criticized pre-Vatican II neo-Thomists as Wolffian rationalists in disguise, he was, I think, drawing attention to their topsy-turvy views of the relationship between natural law and the virtues. He was not, as some revanchist Thomists think, denigrating philosophy as a discipline: far from it. But he was opting for a more historically sensitive view of philosophy, and of the Thomist tradition, that was far more authentically in the spirit of Thomas’s work. Few Catholic moral theologians would want to retreat to the pre-Conciliar “manualist” conception of moral obligation as a valid and sound system of deductions from the axioms of natural law. But to the extent that, even in the relatively open-minded views of Pope Francis, questionable theological axioms remain, it seems that old habits die hard.
It is gratifying to see Pope Francis endorsing same-sex civil unions, do not get me wrong. But his remarks are not so much a change in Roman Catholic policy as it is a re-packaging of something very consistent with what has been said by it for a long time: that is, that the political and the moral are not co-extensive. Yet the real issue lies the recalcitrance of official Catholicism to subject what it takes to be “the moral” to sustained, sincere rational critique. True, there has been a lot of sloppy theologizing about sex and gender among Catholic theologians for decades, and not just since Humane Vitae, and not just by theological liberals. But Catholicism’s problem with sex and gender run deeper than that. While the Pope’s openness to dialogue, his unwillingness to impute either “invincible ignorance” or malice to those with whom he disagrees, is commendable, it really isn’t enough. Catholic authority on these matters, much like the authority of Evangelical Protestants on politics, is shot, and not just by recent scandals but by a true unwillingness to address the roots of this collapse of authority in the quality of its thinking. The tea remains bitter — too bitter, for me at least, to drink.