|CHRISTIAN ANTHROPOLOGY AND HOMOSEXUALITY - 10
Should the law recognize homosexual unions?
1. However theoretically and historically untenable it is (and it has been effectively refuted for many years), the image is slow to die of the jurist as a technician in the service of the legislator's work, as someone who only begins to act after all the dies have been cast, that is, when the normative will of those who hold legislative power has finally crystallized in an absolutely formal text. It is not easy to identify the reason, so narrow and objectively so uninspiring is this image: unless one wants to think that in a time of crisis like ours, the "average" jurist yearns with all his might for precisely this, that is, 'to work under the umbrella of authority and, consequently, to build up a reassuring image of himself as one who in serving authority is in return effectively protected by it (and thereby derives certain, though hardly noble, advantages).
2. This premise is essential for understanding why in one of the most heated debates of our time, today's jurists are reluctant or indeed have no desire to take part in discussions on the legal recognition of new forms of family life and especially of marriage between homosexuals. It is as if they were respectfully awaiting the maturation of a decision which is not theirs to make but the exclusive competence of politicians, and that once it has matured, they would be quite ready to accept it with respect. Consequently it is not surprising if in turn politicians, deprived of the essential aid of jurists, act badly, hastily attending to any ideological demand, even the most incredible, that is formulated in civil society and submitting proposals which more often than not last but a moment and usually serve only to show how profound (and culpable) is their disregard for the structural ties that hold the legal system together (with its underlying systems, of which family relationships are the most important); ties which, once altered, cause a series of disturbances that are painfully destructive and very hard to reverse. The situation is truly discouraging. In such an extremely complicated debate as that on marriage and the family, a debate in which not only ethical issues are interwoven, but issues concerning virtually all the human sciences, it is essential that jurists once again make their voices heard. This applies not only to marriage and more generally to law; it concerns man especially.
Liberal proposals to change the law
3. What actually is being sought by those who hope for such a radical reform of family law, i.e., that it should include the formal recognition of homosexual couples? They are asking that the legal system should seriously consider the fact that homosexuality can no longer be understood as an illness; consequently, that the homosexual question cannot continue to be treated as it has been until now, that is, through a careful mixture of private tolerance and public disapproval. Precisely because they are not ill, homosexuals - but on this, mind you, all are in agreement - have the right not to be subjected to discrimination because of their identity. Homosexuality that takes a violent form can and should continue to be combated, but just as any other violent sexual action perpetrated by heterosexuals can and must be suppressed. But freely and consciously accepted homosexual activity must now - so it is maintained - have the same recognition as heterosexual activity. Since serious and respectable homosexual unions do exist, presupposing in the cohabitants a deep mutual commitment of affection and solidarity, we must proceed to give a real form of legal recognition to their unions, with juridical measures that are substantially analogous to those governing married couples.
At first sight, it seems therefore that all is reduced to a request that appears to have on its side a certain reasonableness: the reasonableness of those who insist on the need to acknowledge a fact that by now belongs to the contemporary situation. If however we try to go beyond this initial impression and put into focus the main point of the debate as it has been conducted in recent years, we realize that things cannot be reduced to such simple terms. In fact, the line of the "reformists" (to include under this one heading all those who believe that the time has come radically to reform the family) is not univocal: there are at least two different tendencies on their side, tendencies that are mutually opposed in principle and are only occasionally allied, in the name of demanding a "pluralistic" model of family, against the "traditional" juridical view, which speaks of family "in the singular", as based on a univocal concept of marriage understood as the stable union of two individuals of the opposite sex.
Law formalizes objective modes of interpersonal communication
4. I believe that the debate on the legal recognition of homosexual unions has become so complicated today because of the interweaving of these two basic viewpoints (which in turn are divided into different and complex sub-viewpoints that are also mutually opposed). Their occasional convergence in criticizing the traditional model of the family has created and creates intricate dialectical and ideological dynamics expanded beyond all proportion (and usually in a trivializing way) by the modern means of mass communication. A clear, rigorous evaluation becomes even more complicated, because the various basic theories are difficult to perceive.
Moreover, the interweaving of these two outlooks has a logic of its own, on which it is useful to reflect, if only to help us to understand more quickly what is the essential question to be answered. The two different perspectives are not interwoven we - have already said - because of their specific objectives: it is true that the supporters of the two positions fight for the legal recognition of homosexual marriage, but they do so on the basis of significantly different sociopolitical projects, They are interwoven instead because they start from an implicit, shared (and tragic) premise, which summarizes one of the typical features of modernity and has a fundamentally anthropological nature. Both the liberationists and the liberals have no trust in the possibility of engaging in an objective discussion about the human person, his expectations, his authentic and profound needs, his duties; they believe that the very category of personal identity cannot be a topic of discussion. Both see the person as fundamentally elusive, indescribable, evanescent, therefore as fundamentally unrelated, detached from every logic of communication and reducible to the basically unstable dynamics of individual and subjective desires. Consequently, the essential function of law, as a tool in the service of interpersonal communication (and aimed at defending the party who, in the dynamics of communication, appears the weakest) is no longer perceived (and is therefore denied). The law retains a (residual) legitimacy (but just for liberals) only insofar as it is recognized as being at the exclusive service of the individual and enables him to pursue and develop his (private and unquestionable) desires. The battle that the liberationists and liberals are waging against the "traditional" (i.e., the one heterosexual) model of marriage, is therefore a battle against the idea that there are objective, or - if you will - natural modes of interpersonal communication, modes that the law is called on to formalize, regulate and guarantee.
5. We have thus reached the essential point of the question, which for jurists can be formulated in very simple terms: homosexual communication cannot have juridical recognition because it is not communication; or better and more precisely, it is not communication in the sense, the only sense, that can have relevance for the law. It is obviously undeniable that there are thousands of ways for men to communicate with one another, ways that can even have immense existential importance, but which do not have, nor in principle can have, any juridical relevance: friendship is the primary example of this. Friendship cannot be governed by law, not because the relationship that affectively unites two friends does not respond to a communicative logic, but because it is a strictly private communicative logic and, as a result, it is unquestionable and cannot be institutionalized (friendship, in other words, does not change its nature, if it is hidden from the eyes of third parties). Marriage does not institutionalize an effective communication (that can only be private), but a choice, indeed a state of life, that cannot fail to have public significance (and only for this reason can it be challenged by a judge). The status that marriage establishes, that of husband and wife, can be assigned only after the demonstration of a formal and public intention to that end by the spouses; however, it is not precisely their desire that establishes the status, but rather the public recognition that this union has a human and social meaning that transcends the subjectivity itself of the spouses. The insight that marriage is the foundation of the family, that is, of the basic cell of society - to use an expression that for some might sound old-fashioned, but is absolutely unsurpassed - is based on the (let us say implicit) perception that marriage has its own structural purpose, that is, the regulation of sexual activity in order to guarantee the order of generations, and that this purpose is not culturally conditioned, nor did it emerge in the course of history only at a particular stage of humanity's economic development, but is a principle that essentially characterizes the human being. As sexed beings, men and women, no differently from animals, procreate; but precisely because they are human beings they become husbands and wives, fathers and mothers, sons and daughters: that is, they acquire their own identity, thanks to the assumption of family roles, made possible by that extraordinary anthropological structure which is marriage.
This is why every analogy between marriage and homosexual unions is fallacious. Being essentially (and not accidentally) sterile, the homosexual relationship cannot make an authentic mimetic claim to the heterosexual relationship (which can in fact be sterile, because of the couple's choice, because of their age or because of pathological factors, but is never sterile in principle). Beyond all doubt, this claim is therefore objectively groundless, whatever the subjective reasons (which may be worthy of profound respect) behind this claim: which is all the jurist needs to regard the communicative nature of a homosexual relationship as juridically irrelevant and therefore as incapable of formalization.No analogy between homosexual and heterosexual unions
6. The jurist who takes a stand on the positions just described will certainly find himself in a particularly uncomfortable situation. In a society, such as today's, which has freed itself from the heavy (and in most cases unfounded), centuries-old prejudices against homosexuality, to the paradoxical point of trivializing it; in a society that has marginalized ethics, that has rejected the idea that sins "against nature" exist and that tries to interpret sexuality as an innocent polymorphic instinct which is therefore prior and superior to every sexual distinction; in a society that has become hypersensitive and reacts to every form, however slight, of social criminalization which does not have an explicitly economic justification, it seems that the only no to homosexuality must be pronounced by the jurist. It is therefore no wonder. that many jurists refuse to take on this burden, which they really do not understand, and prefer the attitude of the prudent bystander, of which we spoke at the beginning of these considerations.
And yet this is the jurist's task today. Not because it is his responsibility to ethically, psychologically and sociologically evaluate homosexuality, nor even less so, because it is his task to consider what social policy should be adopted towards homosexuals (or even if there should be a specific social policy in their regard). The jurist's task is to show that the problem of homosexuality is not a problem of law, but one of fact; that it belongs to one of those dimensions of mere facticity that characterize human existence and that the law is powerless to regulate, because they have a pre-juridical character and value. The attempt to make law enter by force into these areas corresponds to an illusion that a more pervasive legalization of their existence can give homosexuals that interior balance from whose lack they so clearly suffer. A law that knows how to react against these illusions is not an insensitive or cruel law; it is simply a law that knows how to remain faithful to the truth of things, even and especially when the mere recognition of that truth implies considerable ethical and psychological effort.
L'Osservatore Romano is the newspaper of the Holy See.
The Cathedral Foundation
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