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Anthropological and Ethical Thoughts on Whether Domestic Partnerships Should Have Same Legal Status as the Family

by Catherine Frakas 06 Aug 2003

Anthropological and Ethical Thoughts on Whether Domestic Partnerships Should Have Same Legal Status as the Family Cardinal Dionigi TettamanziArchbishop of Genoa, Italy September 30, 1998 In Italy, a lively discussion has lately arisen about domestic partnerships. The reason is that several city councils have decided to institute a register of civil unions. In addition to the discussion of the problem, various kinds of reactions should also be noted. Most people have been rather indifferent, it seems, others have preferred silence, others still have shown a sort of annoyance about an issue that threatens to heighten tensions and conflicts which already weigh heavily on today's social and political climate. In truth, the first legitimate and proper reaction for everyone is to raise questions about this problem and, therefore, to address it as people who cannot abdicate their powers of reason and their sense of responsibility, i.e., in a spirit of great wisdom and true freedom. With this in mind, I have organized a few thoughts which I offer for reflection. 1. A subjective and objective problem A consideration of the subjective aspect of the domestic partnership phenomenon cannot be avoided: we are dealing with individuals, their view of life, their intentions, in a word, their story. In this regard we can, indeed we must, recognize and respect their individual freedom of choice. But with domestic partnerships that seek public recognition, the issue is not only personal freedom (everyone is free to act in private as he more or less likes), but also and specifically the public recognition of this personal choice. Thus a properly social approach to the problem is necessary: the individual is, in fact, a person because he is a relational being who lives in relationship with others. This requires that there be a common ground where people can come together, face one another and dialogue on the basis of and with reference to something shared, i.e., values and needs accepted by all. This common ground is tantamount to an objective criterion, to a truth which stands above everyone and, at the same time, exists for the good of all. Accepting this criterion, this truth, is a condition for the individual's authentic freedom and maturity and for developing an ordered and productive society. Exclusive concern for the subject, his intentions and preferences, without sufficient attention to the social dimension and thus to objective reality, is the result of an arbitrary and unacceptable individualism that is counterproductive for the dignity of the individual and the right order of society. 2. A secular, not a religious, problem The debate about domestic partnerships has once again shown how strong is the tendency to ideologize. even confessionalize every problem, that is, to maintain that the answers must be different and antithetical, depending on the belief one professes, whether Catholic or secular. Certainly the Christian has a vision of marriage and the family that is based on the word of God and the Church's teaching, and leads him to recognize marriage between the baptized as a sacrament, a sign and locus of the salvation brought by Jesus Christ. But in the light of God's word and the Church's teaching, the Christian also knows that the sacrament is not a later, extrinsic addition to this natural reality, but that it is this natural reality itself which is elevated to a sign and means of salvation. The believer speaks of this natural, and hence profoundly human, reality with the light and power of his reason. The problem of domestic partnerships, then, can and must be addressed rationally: it is not a question of Christian faith but of reason. This widespread, deep-seated and almost instinctive tendency to set Catholics against secularists is unacceptable! What the Encyclical Evangelium vitae says about the problem of abortion can likewise be said of our problem: The Gospel of life is not for believers alone: it is for everyone. The issue of life and its defence and promotion is not a concern of Christians alone (n. 101). Will it be up to the Church to defend the validity of reason and the humanity of man in this area, as she has done and still does in other areas? 3. A very serious problem Another common and widespread risk must be pointed out: that of trivializing the importance of the issue at stake. It is said that we should not be too concerned, given the relatively low number of domestic partnerships in relation to the Italian people as a whole, most of whom favour the family based on marriage. In reality, the problem is not so much quantitative as qualitative: it concerns truth and justice, i.e., the values and requirements that are involved in the issue. On the contrary, it is the low numbers which should raise some doubts about the advisability of working for changes in administrative law regarding domestic partnerships, while it often seems that insufficient efforts are being made to promote legitimate family policies. An even more disturbing and harmful way of trivializing the problem lies in exalting (apparently and falsely) the individual's freedom of choice. But it is precisely this totally individualistic approach to marriage and the family that must be taken with the utmost seriousness. We are not dealing with just any kind of living relationship between individuals, but with a relationship that has a unique social dimension compared to all others: by its nature as the basic social unit, the family has a unique aspect, inasmuch as through procreation it becomes the seminarium civitatis (as the genetic principle of society) and through education it serves as the primary place for transmitting and fostering values, and thus, as the origin of culture. For the reasons just given, we must conclude that the model of marriage and the family is something in no way secondary or marginal to the structural configuration of society, but something that determines and qualifies society itself: as the family is, so is society! 4. For a truly rational evaluation Like every other human problem, the question of domestic partnerships must be examined in the light of reason, or more precisely, right reason. This classical terminological expression refers to the understanding and judgement of a reason that knows how to be objective, thus free from the most diverse influences, such as sentimentality or facile compassion for painful individual situations, possible ideological prejudices, social and cultural pressure, or the rigid coalitions of political groups and parties. In particular, right reason must be on guard against certain radical cultural forces whose more or less open objective is to destroy the family institution. The Holy Father was extremely clear on this matter in his address to the Forum of Catholic Family Associations of Italy: Even more troubling is the direct attack on the family institution which is increasing at the cultural level and in the political, legislative and administrative realms.... In fact, there is a clear tendency to regard other and quite different forms of cohabitation as equal to the family by setting aside fundamental ethical and anthropological considerations (27 June 1998, n. 2). These fundamental ethical and anthropological considerations are the specific object of a correct rational reflection. This reflection, following a logical process, proceeds to define the proper identity of the family based on marriage and the proper identity of the other forms of cohabitation, in order to compare the two identities and thus be able to conclude whether or not the family and domestic partnerships can be considered equal. The first objective, then, is to define the proper identity of the family in itself and in relation to society. This identity includes, in addition to what has already been said, the value and requirement of a stable marital relationship between a man and a woman: this stability finds expression and confirmation in the relationship of procreation and is put at the children's educational and cultural service. In this way it also becomes a factor for further, cohesive relations in the social fabric. In addition, we should make it clear that the stability of marriage and the family is not entrusted exclusively to the intentions and goodwill of the individuals involved, but acquires an institutional character on account of its being legitimized, i.e., the State's juridical recognition of the choice made of conjugal life. This sort of stability is really in everyone's interest, but it is particularly advantageous for the weakest ones, i.e., the children. In this regard, we are struck by the practical silence about the problem of the children born to unmarried couples which characterizes the current debate on whether domestic partnerships should be given the same status as the family. If we now turn our attention from the identity of the family to that of other forms of cohabitation, we must immediately point out the great variety of domestic partnerships: just think of the difference between heterosexual and homosexual unions. Such a diversity makes the comparison of the family with these forms of cohabitation more complex and varied. This comparison shows how and even where these latter differ from and end up radically altering the natural model of the family based on marriage. Here we are not considering, for reasons of space, the problem of homosexual couples, which obviously raises more disturbing questions, even though the refusal to equate them with the family is even more categorical. The attempt by society and the civil law to give equal status to families and domestic partnerships must be considered false and falsifying, because it goes against the true nature of things by eliminating substantial differences and introducing models of family that have nothing in common with each other and, in any case, result in an unjust discrediting of the only family which universal human history has always seen not as a generic relationship but as a reality arising from marriage, i.e., from a covenant, drawn up and expressed in various ways, between people of the opposite sex, entered into by a free, reciprocal decision and including, at least in intention, a procreative relationship. 5. The intervention of society and the civil law The intervention of society and the civil law in what concerns the family and domestic partnerships is legitimate and even necessary: the reason lies in the essential social dimension of marriage, which is expressed in the reciprocal relationship of marriage to society and of society to marriage. But how to intervene? With respect for truth and justice. This means that the Constitution of the Italian Republic, which is extremely clear in both letter and spirit, must be observed. The Constitution recognizes the rights of the family as a natural society based on marriage (Art. 29) and therefore–while it reserves and guarantees to this family alone a specific protection and preferential access to social and charitable interventions–it proposes this family as the only model suited to guaranteeing in the social fabric the certainty of law and the fulfilment of the tasks foreseen by the law. Now the certainty of law is compromised by domestic partnerships, which by definition shun any form of social regulation. The fulfilment of tasks is also left to the arbitrary decision of the cohabitants. Nevertheless, to institute a register of civil unions would mean granting the special legal status of the family to individuals who have freely rejected and continue to reject precisely this family status, with all its corresponding rights and duties; thus it is the public authority itself (the municipality) which falls into an obvious and intolerable contradiction. It should be added that the public authority is performing a one-way legal act: while it accept obligations towards the cohabitants, the latter assume no obligation. From this standpoint, it is paradoxical that the public authority itself should accept responsibility (or the rejection of the social dimension of family life and for the recognition of the most marked individualism, by giving equal status to families and domestic partnerships, the public authority accepts an unjust, harmful separation of rights from duties: it recognizes the rights of the cohabitants but requires no duties of them. Obviously, giving the same status as a family to domestic partnerships– through civil registration–is contrary to any coherent articulation of the relationship between rights and duties and, precisely for this reason, undermines social existence in addition to inflicting a real vulnus on the current Constitution. In this regard, we must ask how lawful these deliberations in the municipalities could be. since the latter do not enjoy true legislative authority (at least in this area), but are assigned merely administrative duties at most; for this reason one should at least question the legal significance of these municipal pronouncements. The distinction between moral and civil law is frequently invoked to support civil legislation recognizing domestic partnerships. Certainly there is a distinction between the two, but the distinction is not synonymous with separation, much less contradiction. The clear teaching of St Thomas in this regard is well known: Every human law made by men is law insofar as it derives from the natural law. However, if it does not conform to the natural law in any way, it will not be law but perversion of law (Summa Theologiae, 1-11, q. 95, a. 2). Since in the specific case of the legal recognition of domestic partnerships the question concerns a family model that contradicts the natural law and, even more, has severe, negative consequences for the social fabric, civil law cannot deviate from the natural law. Should it attempt to do so, it would lose its identity as law, as St Augustine writes: Non videtur esse lex, quae iusta non fuerit (De libero arbitrio, 1, 5, 11). Moreover, we must remember that one of the civil law's indispensable duties is education. Certainly, it is not the law's task to make saints of all the citizens, and in this regard it can and must take note of certain situations existing in society and even tolerate them in some ways: secus deteriora mala prorumperent, St Thomas would say. But it cannot go so far as to register the existing situations or enshrine them in law. It always has an educational and cultural role. It cannot be indifferent to cultural and ethical values and it should–certainly by resisting the strong tendencies seeking to eliminate that role–accomplish its educational task and exercise a role in promoting morality and culture. 6. A coherent family policy If responsibility for the family, given its distinctive social value, belongs to all members of society, this responsibility must be exercised in a primary way by those involved in political life. They should be the first to realize the seriousness of the question of making domestic partnerships equal to the family: to trivialize it would mean a failure to recognize the unique and decisive social importance that the model of the family based on marriage has for certain fundamental values of human society, such as life, education, stability of affective relationships, etc. If we also speak of the risk of politicians trivializing our question, it is not because we hold them in lower esteem, but because time and again political action tends to follow the line of pragmatism and so-called balance. Practical things matter, and it is important not to break up the harmonious alignment of political forces, or their already precarious alliances or coalitions, merely for reasons of principle. But don't the many evils in Italy's political life stem perhaps from a pragmatism not supported by vigorous, far-sighted planning (which by its nature requires considerable commitment to reflection on the great anthropological and ethical values which define a culture–a morality and a mentality, and thus a series of decisions, choices, actions and institutions–that truly respects and promotes the personal dignity of each and every individual)? Aren't these values the most practical things society needs? And shouldn't the balance of political forces–with the possibility of stable government–be created and maintained on the basis of clarity and fidelity to values? So many steps remain to be taken for political action that is not afraid to think and to think big, and thus for political action that is not afraid to reject indifference and relativism about truth and values, an indifference and relativism often taken as synonymous with freedom and democracy. But the contrary is true, as the Pope reminds us in the Encyclical Centesimus annus, repeating a warning that comes from history itself: If there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism (n. 46). Everyone knows that political responsibility includes lawmaking: in this regard, it is up to politicians to be attentive–not only at the level of principle but also of application–to the proper relationship between the moral and civil law, and to uphold the educational and cultural significance of the legal system. We also point out that the best and most effective way to resist the attempt to treat the family and domestic partnerships equally and to contain the spread of the latter is to promote energetically and systematically a coherent family policy, understood, moreover, as the centre and driving force of all other social policies. To some, this view may seem exaggerated. But it actually corresponds to the truth of the fundamental, primordial and irreplaceable relationship between the family and society. Its consistent application leads to very precise measures that cover the entire range of family rights as such and concern, among other things, the home, work, school, health and taxes. And it goes without saying that with these sorts of measures the policy reflects a basic sense of justice in acknowledging the fact that in Italy the family serves as the first, most extensive and most effective social shock absorber: it is families that try to compensate for the faults and failings of the State, which would like to be a social State, but too often is just a welfare State. In more energetically promoting a coherent family policy, it will also be necessary to respect an essential and indispensable prerequisite that consists in recognizing, protecting, appreciating and promoting the identity of the family as a natural society based on marriage, by drawing the sharpest line of demarcation between the family properly so-called and other forms of cohabitation, which by their nature deserve neither the name nor the status of the family. In doing so, Christians involved in politics, regardless of their party, must have the courageous ability to find–among themselves and with those of different beliefs who are seriously concerned about the common good–common and convergent lines of action and intervention. At the same time, they should not be afraid of tackling the problems concerning other forms of cohabitation, such as domestic partnerships. These problems must also be considered, especially since they are taking on real importance at the social level. But this should be done by referring to other criteria which ultimately concern the rights and duties of individuals and other particular social categories, but not the rights and duties of the family as such. 7. The pastoral activity of the Christian community The Christian community should also examine itself about the phenomenon of domestic partnerships and, in particular, about the attempts under way to give them the same legal status as the family: examine itself in the sense of carrying out its specific mission which derives from its nature as Mater et Magistra, and thus in relation to its task of evangelization and the witness of charity. Christians, not only by the light of reason but also by that splendour of truth which they are given by faith, are obliged to call things by their proper name: to call good, good and evil, evil. In a highly relativistic context, inclined to negate all differences–even substantial ones–between the family and domestic partnerships, clearer wisdom and more courageous freedom are necessary in order not to support either equivocation or compromise, in the conviction that the most dangerous crisis which can afflict man is the confusion between good and evil, which makes it impossible to build up and to preserve the moral order of individuals and communities (Veritatis splendor, n. 93). The Encyclical just quoted repeats the saying of the ancient prophet: Woe to those who call evil good and good evil, who put darkness for light and light for darkness, who put bitter for sweet and sweet for bitter! (Is 5:20). Understanding–and sometimes compassion for certain difficult and painful situations–for the individuals involved in a domestic partnership is legitimate and indeed necessary. But understanding is not the same as justification. It must be pointed out instead that truth is an essential good of the individual and of his authentic freedom, so it is not offensive but really helpful to tell people the truth. What Paul VI said on the matter is significant: It is an outstanding manifestation of charity towards souls to omit nothing from the saving doctrine of Christ (Humanae vitae, n. 29). The same Pope went on to highlight another essential aspect of the Church's pastoral activity: This must always be joined with tolerance and charity. Of this, the Lord himself in his conversation and dealings with men has left an example (ibid.). This means that Christians are called to try to understand the many personal, social and cultural reasons for the growing number of domestic partnerships. Even people living in these situations should receive the ordinary pastoral care of the Church community, a care which involves closeness, concern for problems and difficulties, patient dialogue and practical help, especially with regard to the children and to their ethico-social and property rights. Intelligent and discreet pastoral care can sometimes encourage the necessary legitimization of these unions. In this area too, the pastoral priority is prevention, which involves a thorough, systematic service to young people and to their preparation for marriage. In addition to prevention, it is also necessary to promote a regular, ongoing family ministry aimed at helping families to take responsibility for the human and Christian growth of families themselves. In this regard, the living witness that Christian families should give to the beauty of a stable, indeed, indissoluble union is certainly no less important. It is also the task of the Christian community to press for and, at the same time, to work for the implementation of a true family policy in the civil community. This will entail, among other things, that, from the standpoint of the cultural project in which the Church in Italy is involved, a profound, comprehensive cultural effort be made to foster a mentality and a morality in which people are convinced, for good reasons and by attractive examples, of the importance of the family based on marriage for society as a whole. At the same time, following the guidelines in the Direttorio di pastorate familiare (n. 113): a) in the great variety of formation programmes for Christian social and political involvement, the family should be presented as the primary reality to be fostered for achieving the common good: b) we should never tire of reminding all social and political workers of the urgent need for an adequate family policy: c) Christian families themselves should be urged and helped to responsibly reclaim their rightful place in society, to the point of engaging in more direct forms of social and political involvement, so that they can demand that protection and promotion which the Italian Constitution reserves only for the family based on marriage. © L'Osservatore Romano Editorial and Management Offices Via del Pellegrino 00120, Vatican City, Europe Telephone 39/6/698.99.390.

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