Homosexuality - 11

Do homosexual couples have a right to marriage?

Piero Schlesinger
Professor of the Institutes of Private Law,
Catholic University of the Sacred Heart, Milan, Italy

In recent years the campaign to eliminate all discrimination detrimental to homosexuals has been intensified. While such efforts - in an increasingly uninhibited society - are multiplying, the organizations created to support gays' demands are more and, more aggressive.

This campaign has not achieved the same degree of success throughout the world. For example, in Romania sanctions and penalties for homosexuals were recently tightened. Generally speaking, however, the principle is actually gaining ground that public authorities must not take action against gays and that personal sexual preferences can be subject only to moral evaluation, not legal discrimination.

In general, one can only agree that it is appropriate to condemn every form of persecution, regardless of whether it is based on legal provisions or social disfavour; interpersonal relations can only be inspired by principles of charity and tolerance, just as any a priori condemnation of what is "different" should be rejected.

But the demands of homosexuals are not limited to seeking the abolition of all legal measures which treat them as criminals or, in any case, discriminate against them: they are also asking perhaps lately this is their primary concern - to have access even to marriage, accusing the traditional norms that limit the conjugal union to couples of the opposite sex of alleged "discrimination", to the detriment of couples of the same sex.

This request must be considered anything but unrealistic, given that in February 1994 it was supported by a famous resolution of the European Parliament; it also received legal approval in Denmark and Norway, respectively in 1989 and 1993, linking the typical effects of marriage with a form of registration for homosexual unions (but also barring such couples from the possibility of adopting children); lastly it achieved sensational success in Hawaii, even though this victory led in the United States to the passing of the hotly debated Defense of Marriage Act, which established that the other states of the Union are not required to recognize unions between persons of the same sex, even when one state has officially recognized their possibility, since - it sought to emphasize - marriage necessarily consists in the union of a man and a woman.

Is rejection of homosexual marriage unjust discrimination?

In Italy in 1980 two men presented a request to the municipality of Rome to have their marriage banns published. The registrar obviously refused, pointing out that one of the essential conditions for celebrating marriage was missing.. The refusal was contested in court, but the challenge was rejected by the Tribunal of Rome (the decision of 28 April 1980 was published in Foro ital., 1982, I, col. 170). The judges noted that the word "marriage" itself certainly means - as is clear from the root of the word (matris munium) - "the union of a man and a woman to form a family"; furthermore, this meaning is universally accepted (one need only consult a dictionary) and has a long history (think of Modestinus' celebrated definition: coniunctio maris et feminae). Lastly, art. 143 of the Civil Code expressly confirms, de iure condito, that "husband" and "wife" must be the parties to marriage. The sexual difference of those to be married, the sentence concluded, must be considered an indispensable requirement for contracting marriage.

Moreover the accusation of homosexual organizations is that this preclusion sanctions unjust discrimination: solely because of his sexual tendencies is the individual denied access to numerous benefits (inheritance rights, family subsidies, alimony rights in the case of separation, etc.) which the marriage relationship entails.

Marriage is based on relationship of man and woman

Somewhat similar demands are also made by unmarried heterosexual couples (so-called "de facto" families or common-law unions), for which bills have also been proposed to allow a more or less extensive "legalization" of their relationship. In this case, moreover, it is easy to point out a certain inconsistency between the preference given to a "free union" and the rejection of marriage (from which easy divorce always provides an escape for those who want it) and the desire at the same time to benefit, at least in part, from the laws governing married couples.

But for homosexuals this contradiction is not recognizable, and indeed for their part they maintain that their unions have all the features of a "normal" conjugal relationship: affectio maritalis, stable bond and the desire to make the union public and official. Only the existence of legal discrimination prevents those concerned from achieving their aspirations.

Actually art. 29 of the Constitution "recognizes" the rights of the family "as a natural society" only in so far as it is "based on marriage": and doubtless in this provision the term "marriage" refers exclusively to the relationship between man and woman, as is clear - as if there were any need - from the connection with the subsequent article, which deals with children. Thus consideration is given to the fundamental biological difference between the two sexes, which qualifies the heterosexual union alone as suitable for procreation.

That is why art. 29 defines as a "natural society" only the family based on "marriage", that is, on the relationship between a man and a woman. The reference to "nature" particularly disturbs homosexuals, who complain of the accusation that their relations are contrary to nature. We do not wish here to rekindle old controversies. Nor can we pretend to forget that the only relationship suited naturaliter to perpetuating the species is that based on the union between biologically different individuals, preordained respectively for fertilization and pregnancy!

Furthermore, the objection raised by homosexual organizations is that access to marriage for heterosexual couples is in no way conditional on proof that the relationship is specifically intended to produce children: thus, sterile couples, elderly couples, or even couples whose plans firmly exclude any idea of giving birth to new creatures validly marry at least as regards "civil" law and State regulations; but gays address their demands only to the State; they certainly do not presume to make such requests of Church law. Therefore, if none of the former group is prevented from marrying, they say, it is incredible that homosexual couples are forbidden to marry only because their unions are necessarily infertile.

Captious as it may be this point is certainly delicate and deserves further study, to prove that the refusal to allow homosexual couples to marry can in no way be attributed to discrimination based on an a priori censure of the partners', sexual inclinations. Further study is all the more necessary since it cannot be denied that throughout its history the institution of marriage has shown remarkable flexibility in being able gradually to include forms which are profoundly different if not actually opposed: e.g., polygamy or monogamy, indissolubility or the possibility of divorce, hierarchical or egalitarian organization. Thus it logical to ask whether the limitation of heterosexuality could eventually be overcome.

Concept of marriage cannot be extended to homosexual 'couple'

In this regard, moreover, we can only wonder what the proprium of the concept of "marriage" might be. As a matter of fact there is agreement that it cannot be confused with the mere material fact of "cohabitation". Although the sexual aspect is essential to the structure of this institution, it must necessarily be completed by a spiritual element which can in no way be reduced to exclusively "physical" aspects. But what does this "spiritual" element comprise? The desire to transcend the partners' individuality and to establish a union between them, the relationship of a "couple". But here again we cannot escape the difference of the sexes as a characteristic of the institution. Not only, and not primarily, with regard to the essential purpose of perpetuating the species - whose importance for humanity's survival could hardly be denied, even apart from any recognition of supernatural "designs" - but precisely for the basis of the concept of "couple".

Actually the difference of the sexes is not restricted to mere biological diversity but is expressed in a complex specialization of the respective personalities of man and woman, extending to the areas of spirituality, social relations, morality, etc., and inevitably conditioned by the subject's female or male characteristics. Thus a "couple" in the true sense cannot exist with an overlay or duplication of these, characteristics, but only with their "union" which can thus be authentically achieved only in the relationship of man and woman. .

Thus the refusal to describe as marriage the mere cohabitation of partners who are incapable of creating a relationship as a "couple" that truly represents a "fusion" of subjects meant to be one cannot be attributed to a purely terminological scruple. The homosexual couple, it must be granted, expresses itself in a different type of "union", to which the concept of marriage cannot be extended without the risk of total distortion.

Thus the simplistic appeal of homosexual couples: "What would we detract from you, if we were also granted the right to marry?", appears unacceptable. Actually, if the fundamentum rei publicae were to lose its defining characteristics, we would all become automatically poorer.

This does not, of course, imply that it is impossible to give favourable consideration to individual measures - of economic or social assistance - for this type of de facto community, in the presence of appropriate conditions: but, God forbid, let us not contaminate with inappropriate concessions the fundamental institutions of civil life, which are among the few that can give joy to mankind.

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


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