Homosexuality -10

Should the law recognize homosexual unions?

Francesco D'Agostino
Professor of the Philosophy of Law,
University of Rome, Tor Vergoto

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.

3.1 On the one hand we find a tendency we could call liberationist (following the suggestion of Andrew Sullivan in his exemplary study Virtually Normal). According to this tendency, the struggle for the recognition of homosexual unions is part of an absolutely broader perspective of political planning. It is clear that the recognition of marriage between homosexuals would immediately have an inevitable social effect, i.e., the weakening of the family in general and in particular of a legal institution such as lawful marriage, considered by the "liberationists" to be obsolete and repressive (this alone makes such recognition desirable for its advocates). In fact, in order to include homosexual unions, legal marriage should be "depublicized", that is, made more like a mere contract of private law, in which, by definition, the concrete terms are left to the complete disposal of the contracting parties. In recognizing homosexual unions, the legal system would thus find itself objectively forced to make an initial, but decisive step backwards; the first of many, further steps backward that would lead, if not to the extinction of family law, at least to its minimization. And here we begin to see a further effect, to become obvious in the medium term, of the desired juridical recognition of homosexual unions: an effect that has even more significance than that mentioned because it would not be limited to the radical altering of a section of private law such as that of family law, but would substantially coincide with a sociopolitical struggle of a libertarian and anti-juridical nature. The recognition of homosexual marriage would thus be the first step in a process - whose time-frame, for its supporters is not at the moment clearly foreseeable - that would in any case lead to the establishment of an absolutely new model of society, radically individualistic, freed, in short, from the burden of that extrinsic and suffocating constraint which is the law.

3.2 At times allied to the liberationist movement, but profoundly different in its ideological premises and in its goals, is the movement that (again following Sullivan) we can call liberal and that considers the juridical recognition of homosexual unions its authentic and specific objective, without using it as a means to further ends. This is obviously a liberalism secundum quid, because it turns all its attention from the theory and practice of the forms of government (proper to classical liberalism) to the personal experience of citizens, to the extent that this experience is meant to have juridical-institutional importance. In fact this movement can be defined only as liberal, because it really takes seriously the deepest inspiration of liberalism (which is also its most problematic inspiration): that pluralistic inspiration which is inevitably tinged with ethical individualism and relativism and which led 19th-century liberals (or at least the most consistent of them) to a very sharp conflict with the Church (a conflict moderated only to the extent that the reference of some liberals to an articulated system giving positive form to human rights, as inviolable rights, eventually and fortunately allowed for fruitful understanding and co-operation between Catholics and the supporters of laicism). Unlike the previous model, the liberal movement does not envisage any social reconstruction, nor is it influenced by anti-juridical utopias. For liberals, the time has simply come to recognize the definitive decline of the ideal (or the illusion) of an ethic (and especially of a sexual ethic) that is universally shared and therefore worthy of institutional protection. This means that the idea (considered an illusion by liberals) that private forms of life - including sexual forms - can all be reduced to univocal models, which can be univocally determined at the level of law (as is indeed the case with marriage that requires contracting parties of different sexes) has become obsolete. There are - liberals hold - various ways of living one's sexuality, as there are various ways of living one's religious faith, engaging in politics or seeking one's own happiness. The law's responsibility - again in the opinion of liberals - is not to give preference to some but to recognize them all, without any kind of undue discrimination. Legally regulating homosexual unions would not mean rejecting the law, but merely asking the law to put itself at the service of the new ethical polytheism that dominates our time. To do so, the law must be able to renew itself and its traditional forms; it must find new answers to the new and deep needs emerging in civil society. In the short term, this can involve the adoption of legal strategies that are not very different from those sought by the liberationists; but in the long term, the liberal project reveals its own distinct identity: it sees law not as something repressive, but as a system for defending the one human right that for liberals is truly fundamental, that each individual's unquestionable personal choices of life be recognized, protected and institutionally strengthened.

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.

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Taken from:
L'Osservatore Romano
Weekly Edition in English
21 May 1997, p.9


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