The homosexual condition and constitutional law

Giorgio Berti
Professor of Constitutional Law
Catholic University of the Sacred Heart, Milan, Italy

In analyzing the phenomena of social and interpersonal life, the dimensions of law normally come last. It is as though law were retrospective and cultivated its own special but salutary conservative insight. It welcomes the data of experience, since they are necessary for its formulations and language. For this reason too law is a tool for preserving and utilizing the results of history, however great or minor that history may be, and incorporates these results, when they merit it, into the permanent norms and values. There are aspects and values of personal and collective life which are observed to be closely connected, as if by immediate contact, with the basic rules of human conduct towards oneself and others. Other aspects however are mediate and are sometimes obscured by the social miasma that seems to grow thicker and is therefore difficult to penetrate if one is to see clearly.

In undertaking some reflections on homosexual phenomena, we thus note several perplexing facts: confused by the rapid socialization of all the facts regarding persons and even their most intimate relations, we think that a sense of proportion is easily lost. From a social viewpoint, every individual phenomenon loses its character of intimacy and responsibility for life decisions. Paradoxically, it could be said that society absolves, even when it condemns. And this definitely changes the terms of the relationship of responsibility.

Today, proposing a juridical or constitutional framework for homosexual demands would lead to imagining the developmental stages of a kind of legal system that would seek legitimation within the majoritarian world of ordinary people. To vindicate one's "diversity", which cannot even be defined a priori in all its details and nuances, within a world of (sexual) equals (or those presumed to be such) means claiming that diversity itself provides a special justification for composing or integrating, with equal opportunity, the juridical universe.


A departure from the Church's ancient wisdom

Here we must really prescind in part from the ethical, moral, religious or canonical aspects of the problem and understand it in the light of the basic legal structure of civil society. However, we cannot overlook the teaching of the canonical tradition: homosexual attraction must be considered an abnormality affecting individuals and must therefore be evaluated as a particular instance of personal behaviour towards another individual (in particular, towards the spouse of the other sex): as if it were a question of a subject's physiopsychic condition which acquires juridical relevance only in the realm of or in comparison to so-called normal relations, often receiving disapproval in the form of a juridical sanction (e.g. the annulment of a marriage contracted by a homosexual).

The emphatic way in which homosexual topics are presented today seems far removed, however, from the ancient wisdom reflected in the Code [of Canon Law] and the Church's experience. It is a turn-about which seems at least in part artificial, the result not so much of the sexual freedom that has been won, as of justifications derived from a false solidarity, brought about in turn by easy communications, by the reciprocal consensus obtained from the simple possibility of knowing that others behave in a similar or identical way in one's own country or in distant lands. Thus we see the rise, in ever broader areas, of insincere convictions about the lawfulness or normality of one's behaviour (even when this is only the transgression of eternal or universal norms). Through these generalizations, that which for the individual can also be the result of physical alterations, classifiable among the abnormalities meant to be included, insofar as compatible, within the scheme of things, in the end suffers the consequences of misrepresentation, because it includes per se different phenomena (e.g., induced perversions), with the intention of concealing disorders also desired in a deceitful way.

In addition, we discover that the "communitarianism" of homosexuals, an opposite experience to the homosexuality sometimes caused by the same sex being forced to live together, is the outcome of a movement of alleged liberation from the weight of condemnation by "straights", who dominate society and its related social and political structures. Feeling different within a similar system of freedom and equality constitutes a discrimination which, from the homosexual's point of view, seems so serious as to threaten his own personality. The latter would thus be obscured precisely by the practice of a behaviour, which, apart from its causes or origins, seems spontaneous or, so to speak, natural to that personality. It is curious that discrimination occurs precisely within that sexual freedom which many regard as the direct consequence of the culture of equality. And yet that is precisely what happens. Actually, the discrimination takes place and is perpetuated as a loss of the homosexual's identity and of his ability to converse normally with others.

The first reaction, also from the legal standpoint, is thus the search by homosexuals for identity and the ability to converse by using communitarian forms. The phenomenon of homosexual communitarianism has gained ground in the United States and, with a different inspiration and evaluation, in France and other European countries (including Italy). However, it is debatable. whether communitarianism offers any sort of adequate achievement of those rights which homosexuals claim for themselves in exercising their freedom. In short, communitarianism is an initial, rudimentary response to persistent discrimination. It seems, moreover, to be the preferred response of its supporters, since they interpret the community as a sort of privileged place. Such a place, however, does not bring out the best in the individual; it does not increase his capacity and his participation, but isolates him more and more within himself, to which his world is ultimately reduced.


No subjective right to sexual freedom

Some see the source of this communitarianism in the struggle against discrimination; others in the homosexual's need to enhance his identity. Well, this same differentiation logically results in depriving every homosexual community of meaning. To create a new and different identity for oneself means to put oneself as a person and a group out

side the constitutional order to which everyone belongs by the same right and by virtue of only one citizenship. Communities that put themselves outside this order become irrelevant from every standpoint, since they do not confer on the individual anything he did not have already.

Communitarianism should be something associative and should represent a generalization of what, in this case, remains particular inasmuch as it is strictly personal. The natural differentiation between male and female homosexuality is enough to cancel immediately any possible new assimilation of the sexes precisely through the lumping together of individual homosexual conditions. They remain male and female even if they are homosexual.

Homosexuals speak the same language as others, use the same speech, even when they make the rights they claim appear as if they were theirs alone. They are protected by the same constitution. At most they can give special meanings to the rights they have on a par with others (but that applies to everyone). In short, they are interlocutors with everyone, like others, and are integrated into the republic insofar as they are men and citizens (I. F. Lyotard). They must operate within the pluralism of rights that we all enjoy.

Therefore the issue is not the recognition of a new right or set of rights or freedoms for the homosexual. Properly speaking, sexual freedom does not exist as a subjective right. There is rather the problem of substantially appreciable disparities precisely in sexual conduct, against the background of sex as a value to be objectively protected, but within a unified vision.

The principle of tolerance is connected with an idea of pluralism that concerns not only rights as such, but also the ways in which individuals exercise their overall freedom. It is in this intersection of juridical factors and perceptions, stemming from articles two and three of the Italian Constitution, which in the light of understanding, tolerance and, if you will, indifference to diversity, we must situate all the insecurities, uncertainties and expectations of protection pertaining to the various forms of homosexuality.

Indeed, these forms, precisely because they are diverse and experienced individually, prevent the formation of a homosexual minority suited to formulating new rights in its own regard. The overwhelming majority of heterosexuals, moreover, want their own rights to be maintained, although through a persistent practice compared to homosexual characteristics. On the other hand, nothing prevents homosexuals, insofar, as they themselves succeed in conceiving their own code or their own bill of rights, from making use of all that in dialogue with the majority. However, the compatibilities will have to be defined one at a time and not in virtue of a generalization or forced homogenization. What must really be avoided is breaking in some way the moral and juridical continuity of the system. In this case this case, it would not be a question of respecting differences but of unleashing antisocial attitudes and forces. In the name of demanding respect and understanding for themselves, exaggerating the difference would give rise to an increasingly uncontrollable disorder and, in short, to licence and abuse on the part of all.


Law expresses requirements of the natural order

There are values that bear on the dialogue between the majority and minorities as prohibitions or inviolable boundaries: for example, the family (art. 29 of the Italian Constitution), the status of children and minors (art. 30, 31), and the preservation of health (art. 32)areas which present different situations and are only apparently unrelated.

The family is an absolute value: in addition to religious morality, it represents the necessary cell of general socialization, and it utilizes the supports historically and continuously guaranteed by all the legal systems of civil countries. It cannot be subject to compromises that jeopardize its essential and universally valid elements.

It is not only a name or the definition of a realm which could be identified with just any experience of common life or pairing of individuals, regardless of their different sexuality. When the Constitution protects the family and children it makes unmodifiable, unalterable and definitive for everyone the formulation of marriage proper to the tradition of canonical and civil law, necessarily connected with the different role of the spouses in the experience of procreation.

Closely correlated with the protection of marriage and the family is the condemnation of every arbitrary use of the terms marriage or family for short-lived relationships which duplicate only their external features but not their substance. The Constitution therefore, though prizing liberty, does not loosen the rigorous bonds of substance and language that distinguish marriage and the family; respect for these institutions is indeed the condition for exercising the individual liberties which are otherwise guaranteed and protected. A certain culture, however, would like to reverse the order of these terms, imagining a sort of primordial freedom which would allow juridical manipulations even before biological ones.

It goes without saying that the protection of filiation is equally enshrined in the Constitution and makes unthinkable the exploitation of science and its aims for producing life outside the natural union. In short, the Constitution pervades the social fabric in such a way as to reinforce definitively and exclusively the natural ways and juridical institutions that have translated nature and morality into normative formulas (the canonical and civil Codes).

Health, for its part, should be preserved within personal and community experience as a right and value. It engages everyone in the same way and increases various obligations, demanding adjustments in personal behaviour consistent with the common good, Even the right to health entails obligations to society, which no true or alleged freedom would allow to be infringed.

Society stands on the order of human affairs designed at the beginning, and no one has authority to interfere with this order. The moral requirements inherent in that primordial system must govern the very conception and formulation of laws, which are then called positive only because they have been rewritten by men.

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Taken from:
L'Osservatore Romano
Weekly Edition in English
14 May 1997, p.10


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