Both Terry Weldon (and here) at his Queering the Church site and Colleen Baker at her Enlightened Catholicism site have posted valuable commentary about the statement that the Committee for Family and Society of the French Catholic bishops' conference recently published. The document is online at the website of the conference.
In his first posting about the document, Terry alluded to the fact that this text isn't immediately accessible to English speakers. This made me realize that I could offer to anyone interested in this document the gift of an English translation--and that contribution follows.
I won't offer any commentary on the document as I publish this translation (for my subsequent commentary, please see here and here). My hope is that it will be useful to English speakers who want to read the document published by the French bishops' Committee for Family and Society. My translation of the full document follows (and it goes without saying that I have no connection at all to the French Catholic bishops' conference and this is in no sense at all an official translation):
Conference of the Bishops of France
Committee for Family and Society
September 2012
Extend marriage to persons of the same sex? Let’s open the debate!
The extension of civil marriage to persons of the same sex and the possibility for these persons to adopt are weighty questions. Such a decision would have important consequences for children, the well-being of families, and social cohesion.
It would be reductionistic to ground the modification of law governing marriage and family on the single aspect of non-discrimination and on the principle of equality.
The Committee for Family and Society wants to take into account, with the aid of experts, the complexity of the question and to provide reflection points surveying the stakes of the decision being proposed.
This reflection is addressed to Catholics, but it reflects a point of view that is not solely religious. The reflection will potentially be of interest to anyone inquiring about the measures announced by the government.
This initiative, which seeks to proceed with respect for persons, is written in the context of the Church’s desire to participate in public debate. It accomplishes its task as it relies on Christian tradition with the intent to serve the common good.
The Committee for Family and Society
Mgr. Jean-Luc Brunin, Bishop of Havre, president
Mgr. Yves Boivineau, Bishop of Annecy
Mgr. Gérard Coliche, Auxiliary Bishop of Lille
Mgr. François Jacolin, Bishop of Mende
Mgr. Christian Kratz, Auxiliary Bishop of Strasbourg
M. Jacques Arènes, Psychologist and Psychoanalyst
Mme. Monique Baujard, Director, National Family and Society Service
Mme. Françoise Dekeuwer-Défossez, Professor of Law
Père Gildas Kerhuel, General Secretary, French Bishops' Conference
Sr. Geneviève Médevielle, Professor of Moral Theology
M. Jérôme Vignon, President of Semaine Sociales
Opening a true debate
Society finds itself facing a novel situation, one that is unprecedented. Homosexuality has always existed, but until recently, there had not ever been a demand on the part of homosexual persons to be permitted to give a juridical framework to relationships destined for public recognition, nor to see themselves invested with parental authority. It belongs to the political realm to listen to this demand and to provide for it the most adequate response possible. But this response envisages a political choice. The opening of marriage to persons of the same sex is imposed neither by European law nor by any international convention of any sort. It is a political option among other political options and a true democratic debate is required to assure the emergence of the best response in the interest of all.
The different positions
A variety of positions for or against marriage of persons of the same sex is hardly lacking, but discussions of these issues, which are frequently ideological, often occur at cross-purposes. Three positions prevail at present.
One school of discourse presented as dominant defends opening marriage and adoption of children to partners of the same sex by virtue of the principle of non-discrimination. This discourse situates itself within the logic of the defense of individual rights. From this point of view, marriage would seem not to have a fixed nature or a predetermined finality; its meaning would appear not to be firmly established except insofar as the individual, in his or her autonomy, confers meaning on the institution. This school of discourse grounds itself in the political worldview of modernity with its notions of the value of liberty and equality.
A second school of discourse, much more radical and militant, wants to abolish traditional marriage and replace it with a universal contract open to two or several persons of the same or different sexes. For those who adhere to this position, the question of sexual identity would not count and the difference between man and woman would only be the manifestation of a dominant heterosexual culture of which society would be well quit.
Finally, the third school of discourse maintains that marriage is oriented to the establishing of the family and that it can thus concern only heterosexual couples, only those capable of procreating naturally. From this vantage point, marriage has a fixed nature and a predetermined finality, which civil law protects; the meaning of marriage therefore surpasses the wishes and desires of individuals. This school of discourse, which sees itself as reflecting the experience of millennia, places limits on individual liberty, and this tendency appears today as unacceptable and retrogressive in the eyes of certain citizens.
The conditions of the debate
Between these three schools of discourse, there is in French society at present no political debate. In order for this debate to get underway, it is important in the first place to recognize the conflict that exists between the understanding of the definition of marriage as heterosexual and the contemporary homosexual experience. When these stakes, with the divisions and differences they represent, are not taken into account, a sound political undertaking is not possible. (1)
It is also necessary to respect all the participants in this debate and to allow each to reflect more profoundly and to express freely his or her convictions. If all reticence or questions about this reform of family law are characterized a priori as “homophobia,” it is not possible to engage in this debate in any probing way. The same must be said insofar as the requests of homosexual persons are ruled out of bounds a priori. Respect for all the participants in this debate implies a shared willingness to listen, an openness to understand the arguments set forth, and careful consideration of the terms used.
This careful consideration of the terms used presupposes on the part of Catholics an attempt to communicate arguments drawn from revelation in a language accessible to all open minds. By the same token, in a debate concerning the understanding of civil marriage, there is no place for the discussion of religious marriage, nor, initially, of the connections between civil and religious marriage. It is not necessary for Catholics to impose their religious point of view but to bring their contributions to this debate as citizens basing their arguments on anthropological and juridical principles. For this task, it is helpful to keep in mind the reasons that the Church is committed to a definition of marriage as the union of one man with one woman.
Understanding the position of the Catholic Church
A love that gives life
Christians believe in a God who is Love and who gives life. This life is characterized by sexual complementarity: “Male and female he creates them” (Genesis 1:27), which is among the blessings of creation (Genesis 1:31) and which grounds the transmission of life. In human experience, only the loving union of a man and a woman can give birth to a new life. The man and his wife become in some respect co-creators. For this reason, the marital union comprises a unique character and the Catholic Church recognizes this special status. It is a relationship of love lived in liberty that expresses itself in mutual self-giving, a relationship whose beauty Christ fully revealed. Out of respect for this love and to assist couples, the Church invites the man and the woman in the name of Christ to enter freely into an indissoluble marriage, a sacrament in which God Himself engages through the spouses and their union. In consequence, this framework constitutes not so much a constraint as a support to enable the couple to live their love. It also constitutes the simplest and most efficacious means to raise children.
Social fecundity
That the Church accords a special status to this relationship of love between a man and a woman does not mean that it does not recognize the worth of other relationships of love or of friendship. But these give rise to another type of fecundity, a social fecundity. This is not less important in the eyes of the Church. Christ teaches us that our relationships of love are not intended to close us off egoistically in a tête-à-tête, but should rightly open themselves to others. But only in the case of the love of a man and a woman does this opening to the other express itself through the birth of a new life. This is a difference of degree that is obscured in current considerations.
The importance of civil marriage
Through civil marriage society recognizes and protects as well the specificity of the commitment of a man and a woman with its intent to be firm, faithful, and open to life. Some 250,000 civil marriages are celebrated each year in France and these remain events important to those who choose this option. The extension of marriage to persons of the same sex would entail a fundamental modification of the law of marriage and parenthood for all, including heterosexual couples.
Repudiating homophobia
A fundamental reform of the law of marriage and parenthood concerns all citizens and should therefore be subject to widespread debate. This recognition, however, runs up against the accusation of homophobia in today’s society, and this charge threatens to block all probing questions.
Respect for persons
There are a number of reasons for this development. For a long time, homosexual persons have been condemned and rejected. They have been made the object of all sorts of discrimination and vilification. Today, this is no longer tolerated, laws proscribe all discrimination and inciting of hate, notably due to sexual orientation, and this is a praiseworthy development.
On the part of the Catholic Church, the Congregation for the Doctrine of the Faith has invited Catholics since 1976 to an attitude of respect, of listening, and of welcome of homosexual persons in the heart of our societies. Ten years later, the same Congregation underscored that harmful expressions or violent acts towards homosexual persons merit condemnation. These reactions “display a lack of respect for others that threaten the basic principles on which a just civil society is founded. The dignity due each person should always be respected in words, acts, and laws.” (2)
The slow evolution of social attitudes
Although such respect for each person is in this way clearly affirmed, it must indeed be admitted that homophobia has hardly disappeared from our society. For homosexual persons, the discovery and acceptance of their sexual orientation often entails a complex process. It is not always easy to affirm one’s homosexuality in one’s professional life or family circle. Prejudices perdure and social attitudes change only slowly, including in our communities and our Catholic families. Both are, however, called to welcome each and every person, regardless of his or her circumstances, as a child of God. Since, for Christians, what grounds our identities and the equality of all persons is the fact that we are all sons and daughters of God . . . . The unconditional welcome of all persons does not necessarily entail approval of all their acts; to the contrary, it recognizes that a human being is greater than his or her acts.
The repudiation of homophobia and the welcome of homosexual persons just as they are, are among the necessary preconditions for entering into a composed and non-superficial debate about the demands of homosexual persons.
Hearing the demands of homosexual persons
A diverse reality
In fact, statistical data about the number of homosexual persons, of those living in a stable relationship with a partner of the same sex or of the number of children raised by two adults of the same sex, are rare and not easy to interpret. This proviso having been noted, several studies show that homosexual practices have evolved and that today the desire to live in a stable loving relationship is more common than was the case 20 years ago. This finding is, however, not uniform: cohabitation under the same roof, sexual relations, or exclusivity of partners is not always a component of these stable relationships.
A demand for recognition
The diversity of homosexual practices should not prevent us from taking seriously the ambitions of those who wish to form stable unions. Respect for and recognition of each person now have overarching significance for our society. Discussions about multiculturalism, racism, feminism, and homophobia take place today against a backdrop of the demand for personal recognition expressed in egalitarian terms. The refusal to recognize the demands of various marginalized groups is often characterized as oppression or discrimination. Some push this egalitarian discourse very far. They conclude that all forms of difference and otherness presuppose power dynamics and, as a result, the risk of domination of one person by another: domination of women by men, domination of blacks by whites, domination of homosexuals by heterosexuals, etc. According to this school of thought, the only solution to combat oppression or discrimination would be, then, to abolish notions of difference and otherness or, insofar as possible, to refuse to give them any pertinence in the organization of social life.
A determination to abolish notions of difference and otherness
It is within this context that the movement to transform marriage to make it accessible to persons of the same sex is taking place. This movement demands that we recognize that love between two persons of the same sex has the same worth as love between a man and a woman. The difference between the two with respect to natural procreation is elided or judged insignificant for society. The valuable contribution represented by the difference between male and female is passed over in silence, both with regard to individual relationships and society at large. What seems to count above all for this movement is recognition of homosexual persons and the goal of ending the discrimination from which one suffers in a heteronormative society.
The value of stable and lasting loving relationships
Society along with the Church in the areas belonging to it hears this demand on the part of homosexual persons and wants to find a response. Even when affirming the importance of gender difference and the fact that homosexual partners are different from heterosexual couples in their inability to procreate naturally, we can appreciate the desire for a committed and faithful loving relationship and for a sincere attachment, of care for one another and a solidarity that surpasses the reduction of homosexual relationships to mere erotic engagements.
But this appreciation does not permit us to ignore the question of difference. The demand of homosexual persons is symptomatic of the difficulty now facing us as a society, to live with difference and otherness while maintaining equality. Rather than deny our differences and thereby produce dehumanization in the relationship between the sexes, our society should seek to guarantee the equality of all persons while respecting the structural differences that have significance for our personal and social lives.
Informing ourselves about the limitations of PACS
The Pacte Civil de Solidarité (PACS), created in 1999, has unexpectedly been used, in particular, by heterosexual couples who represent 95% of 174,523 PACS consolidated in 2009. (3) For these heterosexual couples, it constitutes an alternative to marriage, which confers a certain number of fiscal and societal rights, without carrying the symbolic weight of marriage and while maintaining total freedom for the couple to end the union.
Differences not well known
For heterosexual couples today, the differences between a PACS and marriage are important and not well known. A PACS is a contract, while marriage is an institution. From the standpoint of inheritance, it is in the area of the right to inheritance, of marriage settlements, and of the reversion of a pension to a surviving partner that the greatest differences are situated. But there are especially touches of a personal and symbolic nature that mark, more than anything else, the inferiority of a PACS as compared to a marriage. The PACS is not officially sealed at the town hall but at the tribunal or before a notary. It results in no effects at all with regard to names and entails no personal effects. Notably, the PACS imposes no obligation of fidelity, it creates no bond of commitment between a participant and the family of his or her partner, and it can be broken unilaterally through a simple letter of severance with acknowledgment of receipt. No legal protection for the former partner or any children born of the union is envisaged in this arrangement. Very often, heterosexual couples who enter PACS decide after a period of time to marry, to provide more solidity and solemnity to their union.
Symbolic research
Homosexual persons today are demanding as well a form of union more solemn, endowed with a genuine symbolic weight and incapable of being broken without formal means and with no penalties. This demand sets to the side the difference with regard to natural procreation as a negligible detail, treating marriage as a matter of the sincerity and authenticity of love of the spouses. This involves a very individualistic vision of marriage which is not that of French law.
Taking into consideration French law
A reform of family law must start from existing law and examine in what respects the law is no longer adapted to a new situation and what will be the consequences of the reform envisaged by citizens. If the law is regarded as merely a human instrument that can evolve at any moment, it loses its anthropological function: this is to say something about our vision of what it means to be human.
The social function of marriage
The discourse in favor of opening marriage to persons of the same sex partakes of a truncated vision of the law. It chooses to accentuate in civil marriage nothing except the bond of love between partners and thus judges that the decision to refuse marriage to persons of the same sex is discriminatory since they, too, are capable of love. And so the refusal to open access to marriage for these couples appears to cast doubt on the sincerity and authenticity of their regard for each other, which is to say, their capacity to love. This, however, is not the case. Contrary to what is often maintained, marriage has never been a simple certificate recognizing loving regard. Marriage has always had the social function of providing a framework for the transmission of life as it articulates, in the personal domain and the domain of inheritance, the rights and duties of spouses to each other and in relation to any children to come. The individualistic conception of marriage, conveyed by pervasive current discourse, is not found in texts of law.
The symbolic value of the total gift of self
The accentuated symbolic value of marriage does not come, however, from the loving regard of spouses for each other, which is by definition ephemeral, but from the depth of the commitment of spouses who agree to enter into a total union of their lives. This commitment has implications for the life of those conjoined by marriage (respect, fidelity, mutual assistance, shared life, collaboration), for the life of families (ties that bind, financial commitments to one another, impediments to marriage), for the life of children (the presumption of paternity, education, joint parental authority), and for third parties (the commitment of spouses to share debts jointly). Because the importance of such commitments is fully taken into account, including what they imply with regard to third parties, they are regulated by law and their dissolution is not permitted simply at the good pleasure of the spouses themselves. Divorce can be granted only by a judge who will safeguard the weaker parties and assure the equitable division of assets.
What confers on marriage its accentuated symbolic value is, then, this commitment of one’s whole life, “for better and for worse,” this slightly mad wager that human love can surmount all the obstacles that life has in store for one. However, the welcome of children born of such a union of two lives constitutes an integral part of these commitments. Even when marriage has been subject to different understandings over the course of history, in French law marriage always comprises a presumption of paternity, something that Roman law already knew (pater is est quem nuptiae demonstrant). With its intent to bind juridically to her husband the children brought into the world by a mother, this presumption of paternity is the translation into juridical terms of the natural consequences of the promise of fidelity and shared life made by the spouses. Without failing to note that this juridical tradition has also enshrined prejudices and injustices towards women, it is necessary to recognize what wisdom it also contains and what importance it has for society.
Measuring the stakes for the future
Marriage, in its current form under French law, assures the link between conjugality and procreation and therefore the clear recognition of parenthood. It is here, in particular, that the law has an anthropological function.
Life is a gift
First of all, in assuring the link between conjugality and procreation, the law serves as a reminder to us that life is a gift and that each one of us receives it. No one chooses his or her mother and father; no one chooses the place or date of his or her birth. These are, rather, “gifts” that happen to distinguish each of us as a unique being in the world. These inescapable gifts of our parentage, which affect all of us, serve as a reminder to human beings that we are not almighty, that we alone do not make ourselves, but that we receive our lives from others, from a man and a woman (and, for believers, from Another).
The two sexes are equal and indispensable to life
And so, to link conjugality and procreation is important if we wish to recognize the equality of the sexes, which are both indispensable to life. The fact that we are born of a man and a woman marks all of our origins, our shared membership in the human race. The sexual duality of male and female is, indeed, a “heritage of all who are alive.”
The rights of children
Finally, the clear recognition of parenthood and the insertion of a child into a family history and a lineage are essential to the construction of identity. The U.N. Declaration of the Rights of the Child expressly stipulates that a child, to the extent possible, has the right to know his parents and to be raised by them. If the circumstances of life happen to prevent this, legislators must not mount initiatives to make it impossible for children to know and be raised by their parents. What will happen if we accede to the demands of homosexual persons to be parents, whether through adoption or medically assisted procreation?
Social utility
From the standpoint of its fundamental anthropological functions, marriage also has a social utility. Even if it is no longer the unique entryway to family life, it continues to favor conjugal and familial stability, which corresponds to a profound ambition of a very large majority of the population. This benefits not merely those who are married, but all of society, since it permits families better to assume their roles in the realm of education and social solidarity. Failing this, it is the whole of society that then must meet these needs.
These anthropological and social stakes as well as protection of the rights of the child are often ignored. The dominant discourse today, with its emphasis on egalitarianism, deliberately chooses to ignore the difference between homosexual and heterosexual persons with regard to procreation and wants to have us believe that the link between conjugality and procreation is not pertinent for social life. But a glance at the juridical consequences of the proposed reform of marriage law demonstrates the opposite.
Evaluating the juridical consequences of the proposed reform
The fate of the presumption of paternity
If marriage is opened to persons of the same sex, questions will arise about the fate of the presumption of paternity, which is presently governed by article 312 of the Civil Code.
The first solution possible is to decide that this presumption doesn’t apply to couples of the same sex. There would then be two types of marriage, and it would be important that citizens would be clearly informed about this distinction. This hypothesis, operative in the Low Countries and Belgium, does not rule on the question of the legal bond between the mother’s companion and her child. A second solution, a more radical one, would essentially eradicate the presumption of paternity for all. This would effect an official dissociation of conjugality from procreation, and would void marriage of its meaning. What meaning could a civil marriage have when, in refusing to provide legal guidelines for the natural transmission of life, it does not honor the spouses’ promise of fidelity? A third solution, more radical still, has been adopted in Canada. There, the presumption of paternity is transformed into a presumption of parenthood, and it applies equally to homosexual partners: the companion of a mother becomes the “co-mother” of a child. In this case, the clear recognition of parenthood, which is in the interest of the child, is sacrificed for the benefit of the goodwill of the adults and the law ends up lying about the origin of life!
The law must not lie about the origin of life
These matters become even more complicated when questions are raised about adoption and medically assisted procreation. For instance, how does one conceive of a full adoption that suppresses the original parentage of a child and says that the child is “born of” his or her adoptive parents? Would this have us imagine that a child is born of two men or two women? The juridical complications are numerous. Our entire juridical system is based on the distinction between the sexes, since the transmission of life demands the distinction between man and woman.
Conclusion
If it is the charge of the political realm to listen to the demand of a certain number of homosexual persons to enjoy the benefits of a solemn juridical framework granting public recognition to their loving relationships, it is in light of the common good, of which the government is the guardian, that it should seek to respond to this demand.
The Catholic Church calls the faithful to live chastely in all relationships, but the Church recognizes, with regard to the sexual aspect alone, the value of solidarity, of attention to and care for the other which can manifest themselves in a durable loving relationship. The Church seeks to be welcoming with regard to homosexual persons and will continue to offer its contribution to the battle against all forms of homophobia and discrimination.
The demand to extend civil marriage cannot be dealt with under the single rubric of non-discrimination, since this presupposes an individualistic conception of marriage, which is not that of French law, where marriage has a clear social vocation.
To pretend to deal with the problems of domination and of abuse of power that exist in society by ignoring the differences between persons seems to be an ideologically dangerous option. Differences do exist and this is a good thing. The difference between the sexes is good news.
The demand to extend marriage to persons of the same sex challenges society to find new forms for living with difference while maintaining equality. To achieve this, legislators will be required delicately to adjudicate conflicting individual interests. The charge of the political realm is certainly to defend not only the rights and freedoms of the individual, but also and especially the common good. The common good is not the sum of individual interests. The common good is the good of the community in its entirety. Only a concern for the common good can effectively adjudicate conflicts between the rights of individuals.
The real question is, then, to discover whether, in the interest of the common good, an institution regulated by law should continue to speak of the link between conjugality and procreation, the link between the faithful love of a man and a woman and the birth of an infant, as it reminds us all that
- life is a gift
- the two sexes are equal and both indispensable for life
- the clear recognition of parenthood is essential for the child.
Evolution of family law is always possible. But rather than yield to the pressure of various groups, France will do credit to itself by implementing a real society-wide debate and seeking an original solution which does justice to the demand to recognize homosexual persons without, however, undermining the anthropological foundations of society.
(1) According to Paul Ricoeur, “a society is democratic which recognizes that it is divided, which is to say, fraught with contradictions of interest, and which determines as its modality to establish equality for each citizen as these differences are expressed, analyzed, and deliberated on, with a goal of arriving at an adjudication of the differences” (Dictionnaire de la Lange française, “Democratie”).
(2) Documentation catholique 1976, n°1691, §8; Documentation catholique 1986, n°83, p. 1160-1164.
(3) Évolution du nombre de mariages et de paces conclus jusqu'en 2012
(2) Documentation catholique 1976, n°1691, §8; Documentation catholique 1986, n°83, p. 1160-1164.
(3) Évolution du nombre de mariages et de paces conclus jusqu'en 2012
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