Civil Same-Sex Marriage: A Catholic Affirmation
by Lisa Fullam
Professor of Moral Theology, Jesuit School of Theology
Should same-sex couples be allowed to marry civilly? This question has provoked an emphatic response from the Roman Catholic hierarchy in the US and elsewhere. The United States Conference of Catholic Bishops (USCCB) declared in 2009 that recognizing same-sex marriage threatens the human dignity of us all. They wrote:
“The legal recognition of same-sex unions poses a multifaceted threat to the very fabric of society, striking at the source from which society and culture come and which they are meant to serve. Such recognition affects all people, married and non-married: not only at the fundamental levels of the good of the spouses, the good of children, the intrinsic dignity of every human person, and the common good, but also at the levels of education, cultural imagination and influence, and religious freedom.” (USCCB, p. 8) 
These are strong words. However, I believe that many Catholic contributions to the public debate on this topic so far are both too broad and too narrow. First, too broad: civil same-sex marriage is too often described as parallel to same-sex marriage in the Church. Here I am not talking about decisions of Catholic authorities regarding sacramental marriage in the Church, but in the civil sphere only. In Catholic tradition, we see civil law as distinct from the natural law, and not amenable to the same range of criteria as Church law, where natural law, revealed truth, and tradition all play a role. Our participation in public policy advocacy should reflect Catholic norms for civil law. As I will explain, Catholic tradition since Thomas Aquinas holds that civil law cannot contradict the natural law, (both of which participate in the Eternal law, the truth as it exists in the mind of God.) At the same time, the civil law does not reflect the whole of the natural law, but encodes those aspects of the natural law that uphold the common good.
Second, too narrow: much of the Catholic contribution to the public discussion on same-sex marriage has centered directly or indirectly on the reproductive capacity of same-sex couples. Our tradition is broader than this, and celebrates the deeper human meaning of marriage as a loving partnership of life and love whether or not there are children. The goods of marriage beyond reproduction are important in considering civil marriage as well as marriage within the Church. Our public voice should represent the richness of Catholic tradition on marriage, not only our deep appreciation for procreation.
I will proceed in three steps: first, I will briefly explore the distinction between natural and civil law. Second, I will examine the grounds on which the USCCB opposed civil recognition of same-sex marriage, in light of recent magisterial teaching. Finally I will present a case in favor of legal recognition of such relationships. Why might Catholics not merely tolerate but advocate civil recognition of same-sex marriage? 
1. Understanding Natural Law and Civil Law
In its moral teaching, the Church offers its insights on the whole of human life, including economics, the life of faith, war and peace, etc. Distinctively, Catholic moral teaching aims to align itself with the natural law. Natural law is best understood as the use of human reason in line with first principles, aimed at the common good. Those basic principles are innate; for instance, we know naturally that we should “Do good and avoid evil,” though we do not always follow that law written on our hearts. Other principles, such as never killing the innocent, follow directly or indirectly from pondering how this first principle translates into daily life.
How do we decide how to observe those basic principles in a particular situation? By pondering human nature: the capacities and potential excellences of the human creature, seen in the light of the best knowledge available to us—biological, psychological, sociological, philosophical (including theological,) spiritual, artistic, historic (including personal experience), etc. Natural law is sometimes confused with the biological functions of human bodies, but this misunderstanding fails to consider human nature in this fuller sense, that we are rational and creative discerners of meaning, seeking to grow in virtue, aided by the grace of God. To see how the natural law guides us in a given situation is to think deeply about how the question before us is best resolved for the flourishing of ourselves and our societies.
As with any process of human reason, when we engage natural law thinking, we can make mistakes. But the first principles of natural law are written on all human hearts, and we share a common capacity for reason. If we are dedicated to the pursuit of human flourishing, all people of good will together should be able to discuss and refine our grasp of the natural law. Because natural law guides morality in Roman Catholic tradition, we believe that our moral teachings will make rational sense even to those who do not share our faith.
Civil law is a narrower category. Civil law cannot contradict the natural law—to legislate what hurts us would be irrational, and would violate “do good and avoid evil.” But civil law does not prohibit all vices or prescribe all acts of virtue. The end or goal of civil law is to uphold the common good, either directly or indirectly. Thomas Aquinas made this point forcefully:
“[H]uman laws do not forbid all vices…but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.” (Summa Theologiae I IIae, 96.2)
“[H]uman law does not prescribe concerning all the acts of every virtue: but only in regard to those that are ordainable to the common good—either immediately, as when certain things are done directly for the common good—or mediately, as when a lawgiver prescribes certain things pertaining to good order, whereby the citizens are directed in the upholding of the common good of justice and peace.” (Summa Theologiae I IIae, 96.3)
John XXIII’s encyclical Pacem in Terris, echoed in Paul VI’s Dignitatis Humanae, taught that the in contemporary societies, the common good consists chiefly in safeguarding the rights and promoting the duties of all. Rights and duties describe a baseline concept of the common good in which people who disagree on important matters (like religion) may all flourish together in freedom and peace.
The language of rights, then, is how Catholics take our religiously grounded understanding of the common good out into public discourse. With the humility appropriate to fallible human beings, we seek input from all people of good will as we do so. We don’t seek to legislate the whole moral law, but only those rights and duties by which the flourishing of all people is made possible. Our deep commitment to human dignity and the equality of all human persons is the bedrock on which Catholic teaching grounds its social message.
2.Why Same-sex Marriage is Disallowed in Catholic Teaching
The USCCB’s “Marriage, Life and Love in the Divine Plan” lays out the magisterial case against same-sex marriage in terms of the natural law. The bishops say that 1) such unions do not reflect the natural complementarity of male and female partners in marriage, and 2) they do not result in biological offspring of both partners. The text states: “Male-female complementarity is intrinsic to marriage. It is naturally ordered toward authentic union and the generation of new life. “(USCCB, 22) The bishops seem to regard these two statements as equivalent, that is, same-sex couples do not achieve authentic union because they are not biologically reproductive. This reflects a shift in Catholic teaching. Let’s trace this development.
Vatican II and the Theology of the Body.
The Vatican II document Gaudium et Spes identified two ends of marriage: the procreation and education of children, and the intimate union of husband and wife through which “they experience the meaning of their oneness and attain to it with growing perfection day by day.” (GS 48) Gaudium et Spes eliminated the long-held idea that procreation was seen as the primary end of marriage while the union of the partners was deemed secondary or instrumental to that primary end. The Council insisted that “[m]arriage to be sure is not instituted solely for procreation” (GS 50). Instead, it “maintains its value and indissolubility, even when despite the often intense desire of the couple, offspring are lacking” (GS 50). Departing from most previous teaching in which the procreative end of marriage was elevated over the unitive end, the Council refused to prioritize either. However, the Council insisted that childless marriages are still truly marriages, not some lesser partnership, while no such contrary affirmation is made—loveless but procreative unions are not affirmed (or rejected) as true marriage by the Council.
The US bishops, however, seem to merge the two ends of marriage in Gaudium et Spes into a single end. They state that the rightness of male-female marriage is demonstrated in the possibility of reproduction. Further, since male-female couples can reproduce, there are “personal and spiritual dimensions” revealed by that possibility:
“While human persons are more than biological organisms, the roots of marriage can be seen in the biological fact that a man and a woman can come together as male and female in a union that has the potential for bringing forth another human person. This kind of union fills the need for the continuation of the human race. Since human beings exist at more than a biological level, however, this union has further personal and spiritual dimensions. Marriage does not exist solely for the reproduction of another member of the species, but for the creation of a communion of persons.” (USCCB, 10)
According to the bishops, the “communion of persons” of Gaudium et Spes is revealed in the procreative capacity of couples: while the Council taught that non-procreative marriages are still marriages, the USCCB roots the unitive end of marriage in the procreative possibility of heterosexual marriage.
This version of male/female complementarity is rooted in the “Theology of the Body” of John Paul II, which he unfolded in a series of 129 lectures in the context of his weekly public audiences from 1979-1984. Basing his assessment of male and female human nature in the Genesis creation narrative, the late pope posited deeper personal, social and affective aspects of masculinity and femininity that are seen in males and females, respectively. Men and women are ontologically equal, and each person is complete in himself or herself, but in seeking a mate, one seeks the complementary “fit” of those social and affective traits which track with male and female bodies. So, according to Pope John Paul II, while complementarity is not merely a matter of having different genitalia, unless the genitalia are different, the partners cannot be complementary in the way marital partners should be.
The truth of this understanding of sexuality is manifest in the capacity of procreation, which is the end or purpose of sexuality:
“Genesis 2:24 speaks of the finality of man’s [sic] masculinity and femininity, in the life of the spouses-parents. Uniting with each other so closely as to become ‘one flesh,’ they will subject, in a way, their humanity to the blessing of fertility, namely, ‘procreation,’ of which the first narrative speaks. (Gen. 1:28) Man comes ‘into being’ with consciousness of this finality of his own masculinity-femininity, that is, of his own sexuality.” (John Paul II, “The Nuptial Meaning of the Body” General Audience, January 9. 1980)
Human sexuality calls us to a personal union, not a merely bodily union, but the echo of animals’ procreative instinct in human sex demonstrates this truth:
“[B]oth texts of Genesis, the first and the second narrative of the creation of man, connected sufficiently the perspective of procreation with the fundamental characteristic of human existence in the personal sense. Consequently, the analogy of the human body and of sex in relation to the world of animals—which we can call analogy ‘of nature’—is also raised, in a way, in both narratives (though in a different way in each), to the level of ‘image of God’ and to the level of the person and communion between persons.” (Ibid.)
In other words, human beings, unlike animals, experience our sexual instinct in a holistic way that calls us to true personal union with a sexual partner. But the basic meaning of sexuality itself is procreative, by its analogy to animal sex.  Procreation is the blessing that shows that we have sought the right kind of partner in our yearning to connect with another, and reveals the true meaning of masculinity and femininity.
Human sex is more than a mere meeting of gametes. Because the pope posits an essential masculine or feminine character in men and women, we meet our partners not just in the complementarity of biological procreation, but in their affective, emotional and spiritual complementarity. Crucial here is what drives the pope’s argument: regardless of how one might specify exactly what those masculine and feminine traits are, our integrity as body/soul composites means that a sexual partner MUST be reproductively complementary, or we misunderstand the meaning of sexuality itself. Because of this, there can be no truly human union except in heterosexual pairs. In effect, the unitive end of marriage and sex is subsumed into the procreative end: unless a sexual relationship is potentially procreative (at least by being heterosexual,) the question of union is moot.
John Paul II’s meditation on the meaning of human sexuality forms the philosophical underpinning both for the USCCB declaration on marriage, and an earlier Congregation for the Doctrine of the Faith (CDF) consideration of our topic here, civil same-sex union. I now turn to this earlier document.
The Congregation for the Doctrine of the Faith on Civil Same-Sex Marriage
The Congregation for the Doctrine of the Faith took up the question of civil same-sex unions in 2003 in a document entitled “Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons.” This document follows John Paul’s schema, conflating the two criteria of reproductive capacity and complementarity into reproductive capacity, asserting that “genuine” complementarity is impossible for same-sex couples:
“Homosexual acts ‘close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.’” (CDF, 2003, 4, citing the Catechism.)
The CDF document then turns to the question of civil law. Marriage, the CDF says, is “an institution essential to the common good.” (CDF, 2003, 6.) The argument from the common good proceeds in four steps, all centered on reproductive capacity. The first step: reproduction is essential to marriage. Same-sex unions “are not able to contribute in a proper way to the procreation and survival of the human race.” (CDF, 2003, 7.) Second, gay unions are also “totally lacking in the conjugal dimension.” (CDF, 2003, 7.) Here again, a concept of intrinsic masculine and feminine traits found solely in men and women, respectively, informs the teaching—same-sex pairs cannot have the “conjugal dimension” because they do not “express and promote the mutual assistance of the sexes in marriage and are [not] open to the transmission of new life.”(CDF, 2003, 7) This mutual assistance is not defined, and it is not explained why this assistance requires heterosexual partnership. Among other people, members of single-sex religious communities might be surprised that their life together does not feature “mutual assistance”!
Third, same-sex marriage is unacceptable because it would not be heterosexual, especially in that same-sex couples neither produce nor rear children: “The inevitable consequence of legal recognition of homosexual unions would be the redefinition of marriage, which would become, in its legal status, an institution devoid of essential reference to factors linked to heterosexuality; for example, procreation and raising children.” (CDF, 2003, 8.)
Finally, it is precisely the reproductive capacity of heterosexual marriage that justifies its legal support. “Because married couples ensure the succession of generations and are therefore eminently within the public interest, civil law grants them institutional recognition. Homosexual unions, on the other hand, do not need specific attention from the legal standpoint since they do not exercise this function for the common good.” (CDF, 2003, 9.)
Catholic tradition since Vatican II has recognized two ends of marriage, the procreative and the unitive. John Paul II posited an anthropology in which the unitive is defined as manifested only in male-female pairs, the rightness of which is demonstrated by the biological fact of reproduction. The CDF and the new USCCB document base their opposition to same-sex unions in civil law on the question of procreation, asserting both that society’s interest in marriage is due to its procreative potential, and that there is an innate masculinity and femininity possessed only by men and women respectively, which is demonstrated by the possibility of procreation. In short, only heterosexual couples reproduce, so only heterosexual couples can achieve the affective union required in marriage. The unitive dimension of marriage, the life-partnership of spouses, has been subsumed into procreative capacity.
3. What is marriage for? Same-sex marriage in light of the common good
Even a cursory glance at the history of marriage reveals that the institution has a broad range of social purposes and effects. Marriage is concerned with matters such as the orderly inheritance of property, the establishment of stable and legally-recognized partnerships for raising children, the merging of clans, the forging of dynasties, and St. Paul’s acknowledgment that “it is better to marry than to burn” with sexual desire. Marriage is a matter of public health—the married enjoy longer life expectancy and better physical and mental health than the unmarried. The married are better off financially, too, and marriage entails a legally-recognized merger of responsibility and resources that stabilizes the family, especially when dependent children enter the picture.  In our day, marriage is also seen as a path to mutual fulfillment, a partnership of life and love, publicly witnessed in order to invite the community to support the couple in its journey together. Marriage is a normal marker of adult intimacy, responsibility and commitment, and its social recognition marks that transition in a way that cohabitation does not.
Catholic moral tradition affirms that sex is more than a mere meeting of the genitals but reflects a deeper human union in love. Marriage fulfills a profound need for “mutual help and service to each other through an intimate union of their persons and of their actions,” (GS 48). Pope Pius XI emphasized this dimension of marriage in his encyclical Casti Connubii when he wrote:
“This mutual molding of [spouses,] this determined effort to perfect each other, can in a very real sense, as the Roman Catechism teaches, be said to be the chief reason and purpose of matrimony, provided matrimony be looked at not in the restricted sense as instituted for the proper conception and education of the child, but more widely as the blending of life as a whole and the mutual interchange and sharing thereof.” (Casti Connubii 24)
These multiple personal and public-health benefits, including goods of character such as commitment and responsibility, are matters of the common good, conducive to the flourishing of all in society. Given those goods, let’s look again the criteria on the basis of which same-sex marriage is rejected by magisterial leaders: the reproductive capacity and heterogenital complementarity of straight couples.
Reproductive capacity: a good or a necessary good?
In the Church, we recognize that procreation is a great good; great good; it is a basic human drive and an act of partnership with God in the continuation of humankind. Even so, we do not require that all marriages be potentially reproductive. For example, post-menopausal women may marry in the Church—often there are warm smiles throughout the assembly when two septuagenarians promise that they will “accept children from God lovingly.” Biologically, it is no more likely that a post-menopausal woman will become pregnant in a heterosexual relationship than in a lesbian partnership. Further, magisterial teaching consoles the infertile, reminding them that there are many ways in which a marriage can be fruitful without children. Here is John Paul II:
“[E]ven when procreation is not possible, conjugal life does not for this reason lose its value. Physical sterility in fact can be for spouses the occasion for other important services to the life of the human person, for example, adoption, various forms of educational work, and assistance to other families and to poor or handicapped children.” (Familiaris Consortio 14).
In the Church, marriage is a personal, sacramental bond that does not require reproductive capacity, and is not nullified in the absence of children, even if one spouse might reproduce if freed from a sterile partner.
But our question here is civil law, not Church law. Civil marriage is available to the fertile, the infertile, the post-fertile, the sexually uninterested, and the impotent alike. Civil marriage does not require that partners seek parenthood. Surely, non-reproductive civil marriages can embody the wide array of social and personal goods of marriage for partners, children and society beyond reproduction, just as the non-reproductive marriages we recognize in the Church do. Why would Catholics deny to same-sex couples the goods of marriage we recognize in infertile marriages within our own flock? Likewise, there has been no magisterial opposition to heterosexual civil marriages that do not meet Catholic standards for Church marriages. Why would we deny to same-sex couples the advantages we implicitly affirm by tolerating heterosexual civil marriages that would not pass magisterial muster inside the Church?
What about the children?
Many same-sex couples raise children, their biological offspring and/or adopted kids. While the earlier tradition spoke of “procreation and education of children” as a single process, human experience indicates that the two are not continuous. Some people procreate but fail to parent their kids, meaning that others must step up and care for them. Those who raise children not biologically their own are reaching beyond a reproductive imperative to a spiritually-resonant act of profound devotion. They make a great contribution to the common good. To base the social value of marriage on the potential for biological procreation would be to ignore the generosity of adoptive parents, and to render their families somehow unnatural or second-class. This would be a fundamental injustice to those families, and an odd reversal of Christian tradition that emphasizes caring for those in need.
Some have worried that raising children in households headed by same-sex partners would harm them. In fact, an increasing body of data shows that not only that there is no discernible harm to children raised in these households, but some studies show benefits. Ellen C. Perrin, MD, professor of pediatrics at Tufts University School of Medicine in Boston said in an interview with internet health site WebMD:
“The vast consensus of all the studies shows that children of same-sex parents do as well as children whose parents are heterosexual in every way. In some ways children of same-sex parents actually may have advantages over other family structures.)” 
Some have made the suggestion that children of same-sex couples are deprived of the experience of having a mother or a father in the home. But if this is so, have single-sex religious communities running orphanages throughout much of Christian history been committing an injustice to the children they care for? Should the children of people who are widowed or abandoned by their spouses be removed from the care of their remaining parent for placement in two-sex foster homes? I hear no one making that repugnant suggestion.
As the US bishops say, household stability is important in raising children:
“The findings of the social sciences confirm that the best environment for raising children is a stable home provided by the marriage of their parents. Just as families render an invaluable service to society, society has a reciprocal obligation to protect and support families. The Second Vatican Council affirms that the well-being of society is closely tied to healthy marriages and families.” (USCCB 27-8.)
I would add the legal stabilization of households in which children are raised to the benefits noted by the bishops. Denying legal status to same-sex marriages will not prevent same-sex couples from raising their children—it will only make the children raised by them vulnerable to potential instability. In situations ranging from signing of field-trip permission slips to medical emergencies, and in situations in which one partner dies before the other has been able to adopt the children, kids are put at unnecessary risk if their parents’ relationships are not recognized in civil law.
Is complementarity only for heterosexuals?
Male-female complementarity underlies recent magisterial teaching on same-sex marriage. While homosexual inclinations  are still regarded in Church teaching as “objectively disordered,” this Thomistic description refers to the capacity for reproduction. Thomas Aquinas called gay sex acts unnatural because he thought sex was primarily for reproduction. To have an objective disorder is to have the object of one’s sexual attraction be a non-reproductive partner. Likewise, homosexual acts are called “intrinsically evil” because they cannot be reproductive.
The current teaching relies on John Paul II’s concept of sexual complementarity, in which the man brings a masculine and the woman a feminine component to a sexual relationship which would otherwise be missing. According to this idea, anatomy reveals a truth about the person that calls for heterosexual union.
Theologians Todd A. Salzman and Michael G. Lawler have offered a deft assessment and critique of John Paul’s link of complementarity exclusively to heterosexual pairs.  In keeping with longstanding Catholic tradition, they strongly affirm the underlying theme that marital partners seek a deep personal union with one another. Marriage is a union of persons, not merely of bodies, a union that can be expressed in language of complementarity. However, the idea that ontological complementarity is revealed only in heterogenital relationships seems to argue from gender stereotypes (e.g., women nurture, men protect, or, women are receptive, men are active and dominative) and does not reflect much of what we observe and experience about human relationships. As Salzman and Lawler point out:
“Granted that there is an important sense in which affective complementarity integrates the biological and personal elements in a truly human sexual act, we believe that the magisterium’s account relies primarily on heterogenital complementarity, entails an incomplete, if not distorted, vision of gender, and neglects an adequate consideration of the experiential and relational dimensions of human sexuality.” (Salzman and Lawler, p. 640.)
The Theology of the Body, with its vision of a mystical masculinity and femininity revealed inerrantly in one’s genitalia, may be offered as normative for marriage in the Church, just as the Church denies marriage to those with un-anulled previous marriages, and as some Christian sects continue to prohibit interracial marriage. It enters Catholic tradition as John Paul II’s reflections on the nature of human sexuality before the Fall, based on his understanding of Biblical, not scientific premises.
Not just tolerance, but advocacy for legal recognition, grounded in the common good.
It could still be said that denying civil marriage to gay and lesbian people would do no serious harm to the common good since relatively few people would be affected. The good of tying marriage to reproduction, it could be said, justifies the pain inflicted on those excluded from the institution. But in Catholic tradition, we do not casually tolerate practices that harm minorities. The same encyclical in which Pope Paul VI said that civil law is fittingly expressed in a doctrine of rights and duties forbids discrimination before the law on religious grounds: “government is to see to it that equality of citizens before the law, which is itself an element of the common good, is never violated, whether openly or covertly, for religious reasons.” (DP 6) John Paul’s Theology of the Body is a fundamentally religious doctrine, and so to impose its reading of human nature on others in society would seem to violate Paul VI’s insistence on equal treatment of all before the law.
But while religiously framed doctrines cannot be imposed on others, it does not necessarily follow that the values such doctrines reflect are not germane to public policy. However, when taking arguments to a broader public, Catholic tradition calls us to reframe them in terms of natural law arguments that fall within the more limited scope of what is appropriate to civil law. In other words, the Church would need to make an argument compelling to the consciences of those who may not read Genesis as John Paul II did. We would need to make a natural law argument that denying civil marriage to same-sex couples is a matter of sustaining the rights of all in society, and not a moral stance that exceeds the requisites of good order and equality before the law. The fact that an increasing number of churches and other groups and individuals of good will, (including large numbers of Catholics,) do not find John Paul’s view of masculine and feminine human nature compelling indicates at least that the arguments currently proposed by Church teaching do not command broad assent. But there’s more to be said.
Natural law is not a mere matter of majority opinion—it is an argument about human flourishing. Since it reflects on common human nature, this kind of argument should apply wherever it is relevant. In other words, if we want to restrict civil marriage to heterosexuals because they are potentially reproductive, it would follow that we should restrict civil marriage generally to those who are potentially reproductive, whether they are gay or straight. Unless we are willing to redefine civil marriage in reproductive terms–perhaps automatically divorcing couples who do not reproduce in a reasonable amount of time, for instance, or denying marriage to women of a certain age or those who are sterile by choice or by happenstance–in denying civil marriage to same-sex couples, we discriminate against them precisely because they are homosexual, a form of unjustifiable discrimination that is contrary to Catholic social teaching.
This argument from consistency is not the whole picture. The human goods available in marriage, even where biological reproduction is impossible, are a matter of the common good and equal rights for all before the law. Next, I’ll offer three points in favor of advocacy for civil marriage for same-sex couples based on Catholic social tradition: a) an argument from human dignity; b) a word about the witness of same-sex couples to the value of marriage, and c) an observation about homophobia.
a. Respect for human dignity as it is manifested in the context of sexual orientation.
Respect for the human dignity of all is basic in Catholic moral teaching. Sexuality is deeply rooted in our human nature. As the Catechism states: “Sexuality affects all aspects of the human person in the unity of …body and soul. It especially concerns affectivity, the capacity to love and to procreate, and in a more general way the aptitude for forming bonds of communion with others.” (CCC, No. 2332)
The best science available to us, and the experience of most human beings, indicates that sexual orientation is experienced as given, not chosen, and is essentially unchangeable.  People may act against their sexual orientation, but to act against one’s orientation does not change it. Sexual “reparative” therapy aimed at making gay people straight has an abysmal failure rate—if it were not propped up by a political agenda that insists that sexual orientation is a matter of choice, its failure rate alone would send it to the dustbin of psychological malpractice.  While a few people, mostly women, report that their sexual orientation changes at some point in their lives, one’s orientation is still experienced as given rather than chosen.
Why does this matter? Because while marriage is more than sex, marriage is an institution that recognizes the dignity of sexual relationships and the connection of those relationships to deeper ties of love and partnership in life and to the common good, a stance our tradition affirms. Those goods beyond reproduction that speak to the whole person and society—stable adult relationships, publicly recognized and supported partnerships of life and love, orderly inheritance, and the rest–are markers for the profound human goods that are connected to human flourishing.
In his encyclical Populorum Progressio, Pope Paul VI spoke of marriage as an “inalienable right,” that, when violated, violates human dignity. (PP 37) Since sexual orientation is an innate characteristic of human beings, denying marriage to people who cannot form deep affective, personal and sexual ties with people of the opposite sex would seem, according to Paul VI, to violate their human dignity.
To those who would object that gay and lesbian people may still marry, but heterosexually, it could be pointed out that according to John Paul II, Paul VI, Gaudium et Spes and a host of other magisterial teachings, marriage and sex are not merely about genitals but about persons. Respect for human dignity in its fullness requires that we look beyond genital acts to take sexual orientation into account in considering marriage. Trying to fit into a heterosexual match because a truly complementary partnership is off-limits legally is corrosive to the human spirit.  After all, as the Catechism affirms, gay and lesbian people “do not choose their homosexual condition.” (Catechism, 2358) To deny same-sex couples legal marriage means more than denying them a particular tax status—it denies their equal human dignity in life and love, making them outcast from the social institution that defines maturity and celebrates intimacy. It makes them second-class citizens, a situation which should be intolerable to any person of good will.
Recent magisterial teaching has consistently upheld the equal dignity of homosexual men and women, even as it has condemned same-sex relationships. The Catechism proclaims of gay men and lesbians that “[e]very sign of unjust discrimination in their regard should be avoided.” The 1986 CDF “Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons” was emphatic:
“It is deplorable that homosexual persons have been and are the object of violent malice in speech or in action. Such treatment deserves condemnation from the Church’s pastors wherever it occurs. It reveals a kind of disregard for others which endangers the most fundamental principles of a healthy society. The intrinsic dignity of each person must always be respected in word, in action and in law.” (CDF, 1986, 10)
While the magisterium has the authority to determine which unions will be recognized within the Church, our own tradition concerning the nature of civil law, the equal dignity of all persons, its particular defense of the human dignity of gay men and lesbians and the fundamental right to marriage in the civil sphere would seem to militate toward advocacy of same-sex unions by Catholics.
b. Same-sex couples reaffirm marriage’s importance
Crude reality television shows offering women and men essentially as prizes to “the bachelor” and “the bachelorette” are only one symptom of the challenges to marriage in our culture. A 2011 Pew Research Center study reported that new marriages declined fully 5% from 2009-2010. More worrisome is a 2010 Pew survey in which nearly 40% of Americans thought marriage is obsolete, even as 61% of never-married people expressed a desire to do so “someday.”  Nearly half of marriages fail, too often without a serious attempt to save them. A number of factors enter into the complex phenomenon of the decline in the rate and durability of marriages, ranging from economic pressures to, perhaps, exalted romanticism about marriage that can breed disillusion with the reality of conjugal life.
At the same time, many same-sex couples striving for legal marriage are voicing the importance of marriage in a prophetic and powerful way: Del Martin and Phyllis Lyon had been together for more than 50 years when they were the first same-sex couple to be legally married in the United States on February 12, 2004. Countless same-sex couples who have been striving for years, even decades, for legal recognition of their bonds bear witness to all of us that marriage is an institution to be treasured, not trivialized.
c. A stand for equal legal treatment in a homophobic culture.
While overall, American acceptance of same-sex couples is increasing rapidly, lesbians and gay men are still vulnerable to discrimination and even violent aggression because of their sexual orientation. Catholic teaching draws a distinction between homosexual attraction, which in itself is morally blameless, and homosexual behavior, which it condemns. The magisterium rejects any violence directed at people who are homosexual, but the subtlety of this distinction between attraction and action is often lost on those who would harm them, and becomes, in the words of the Catechism, a sign of unjust discrimination. One tragic example of this is the very high rate of bullying experienced by LGBT children in schools, too often tolerated by silent or indifferent administrators. The Gay, Lesbian and Straight Educational Network notes that nearly 85% of LGBT kids experience harassment at school.  Tragically, LGBT kids attempt suicide at up to 5 times the rate of their straight peers, often after enduring years of harassment. 
Advocating for the civil recognition of same-sex marriages, even if the Church rejects such couples at its own altars, reaffirms the Church’s demand that all people in our society be treated with equal respect. Conversely, when people are told that their intimate relationships of life and love are a “threat to the very fabric of society,” it contributes to a sense that gay people should be, at the very least, shunned as dangerous pariahs. If homosexual orientation were chosen or changeable, or if harm to one’s partners or children followed from homosexual sex, the question would change. But as it is, the denial of same-sex civil marriage gives the appearance of unreasonable bias, which is too often translated into personal abuse and toleration of systemic harassment, which the Church rejects.
In this essay, I have offered a case for a Catholic affirmation of civil same-sex marriage. Magisterial opposition to same-sex marriage centers on the question of gay couples’ capacity for reproduction, which is read through the lens of John Paul II’s Theology of the Body, according to which reproduction reveals a deeper truth about men and women. However, those insights lack scientific and experiential support, and are far from universally acknowledged. Reproductive capacity is not absolutely required even for marriage within the Church, nor has it been required of civil marriages by the Church.
The goods of marriage are many and varied, but, except for the category of possible reproduction with one’s spouse, same-sex couples are able to participate in them equally with straight couples. Moreover, given what we know about sexual orientation, a ban on marriage for gay and lesbian people would seem, according to Church teaching, to abridge a fundamental human right, and so constitute an attack on their human dignity. Beyond that, many gay and lesbian couples calling for the right to marry are recalling to our culture the social and cultural importance of marriage. Rather than living quietly in a legally unrecognized state, gay and lesbian couples asking for marriage affirm the dignity of the institution. Finally, to reject the most intimate relationships of LGBT people as dangerous to the civil polity stokes savage homophobia, which the Church opposes.
As Christians, we are called by Jesus to one fundamental task in life—to love God and others as well as we can. For most of us, the call to love is answered principally, though not exclusively, in the context of our most intimate relationships, those uniting spouses and those of parents and children. As Catholic Christians, we embrace a moral tradition that addresses social policy in light of the common good, a reasoned assessment of the rights and duties incumbent upon us in order that we may participate in the flourishing of society. Marriage is a key institution, with an array of social goods that include, but are not limited to, procreation. We can all share in those wider, socially critical benefits of marriage, gay and straight, parents and the childless alike. Why would Christians deny to any of our brothers and sisters, at least in the realm of our civil life together, the opportunity for the blending and sharing of life toward, we hope, the “mutual perfection” that Pius XI said was the wider purpose of marriage? Love requires no less than our support of love.
About the Author
Lisa Fullam D.V.M., Th.D. teaches moral theology at the Jesuit School of Theology at Berkeley. Her research interests include virtue ethics, medical and sexual ethics, the intersection of ethics and spirituality, and Ignatian spirituality.
Among her published essays are “Toward a Virtue Ethics of Marriage: Augustine and Aquinas on Friendship in Marriage,” “Teresa of Avila’s Liberative Humility,” “Sex in 3-D. A Telos for a Virtue Ethics of Sexuality,” “Ethics in Spiritual Guidance,” “Bioethics and Public Policy,” (with William R. O’Neill, S.J.), “Why Ordination Matters: A Reflection from Jamaica,” and “Juana, SJ: The History (and Future?) of Women in the Society of Jesus.”
With Charles E. Curran, she co-edited Readings in Moral Theology #16. Virtue Ethics published by Paulist Press in 2011, and Readings in Moral Theology #17, Ethics and Spirituality, due out in 2014. Her previous book, The Virtue of Humility: A Thomistic Apologetic was published by the Edwin Mellen Press in 2009. In 2008, she climbed Mt. Kilimanjaro. The view from the top is just glorious.
2. I use the term “civil marriage” rather than “civil union” here deliberately. If a “civil union” for same-sex couples grants the entirety of the civil rights and responsibilities that accompany civil marriage, then to label the unions of same-sex couples differently is both discriminatory and deceptive. It would be discriminatory in the same way that labeling the unions of different-race couples “unions” instead of “marriages” would be—such discrimination is exactly what I will argue against here. It would be deceptive in that the effect of granting same-sex couples all the rights and responsibilities of marriage under a different name obscures what is at stake here, viz., the equal treatment of citizens under civil law.
3. The late pope short-changes animal sex. While for most species, sex is narrowly procreative, in a number of intelligent species, including some of those apes most closely related to humans philogenetically, sex has social functions unrelated to procreation.
5. Asserting that sterile heterosexual couples somehow symbolize reproduction in a way that same-sex couples cannot is merely to reiterate John Paul II’s definition of heterosexual sex as revealing a personal union. It would seem that the late pope’s schema can be argued in two ways. First, this definition can be used to restrict right sexual relationships to heterosexual couples only, as he does. Second, however, if we see the sexual instinct not first as a drive to procreate but first as the hunger of persons for deep emotional and spiritual and bodily union, which is sometimes procreative—in other words, if we look first for the distinctively human aspects of sexuality rather than the aspects of sexuality we share with barnyard animals—we are led to the opposite conclusion, that it is deeply loving sexual unions that reflect God’s will for human sex. This seems a closer echo of Gaudium et Spes, in which marriages must be loving, and are called, but not required, to be procreative.
8. Salzman, Todd A and Michael G. Lawler, “Catholic Sexual Ethics: Complementarity and the Truly Human” in Theological Studies 67 (2006), p. 625-652. Salzman and Lawler’s longer work The Sexual Person: Toward a Renewed Catholic Anthropology. (Washington: Georgetown Univ. Press, 2008) has come under fire from the USCCB’s Committee on Doctrine: “The fact that the alternative moral theology of The Sexual Person leads to many positions in clear conflict with authoritative Church teaching is itself considerable evidence that the basic methodology of this moral theology is unsound and incompatible with the Catholic tradition.” This is not the place for a sustained response to the Committee, but generally the Committee’s concerns hinge on the magisterium’s role in definitively interpreting scripture and natural law down to the level of particular moral norms for the faithful. The document ends where it began: “The authors approve homosexual behavior, premarital sex, contraception, and artificial insemination. The Church’s Magisterium has taught clearly and consistently that these are morally wrong.” The Committee seems to understand magisterial teaching on sexuality as irreformable, while in fact there has been considerable development in authoritative sexual teaching over the centuries. To assert that sexual teaching as we have it now has reached perfection is unjustified in light of this history of development. Moreover, no aspect of magisterial sexual teaching has been infallibly defined. While it is true that the magisterium teaches the Catholic faithful with authority, this kind of critique seems to mistake the work of theological scholars with the task of catechesis. Historically, the development of doctrine is often driven by the diligent work of scholars such as Salzman and Lawler. The text of the critique may be found at http://www.usccb.org/_cs_upload/8085_1.pdf, accessed 10/10/11.
9. See, e.g. Crawford, Isaiah and Brian D. Zamboni. “Informing the Debate on Homosexuality: The Behavioral Sciences and the Church.” in Sexual Diversity and Catholicism. Toward the Development of Moral Theology. Eds. Patricia Beattie Jung and Joseph Andrew Coray. Collegeville, Minn.: Liturgical Press, 2001.
10. The American Psychological Association condemned therapies aimed at “conversion” of sexual orientation in 1997. (See http://psychology.ucdavis.edu/rainbow/html/resolution97_text.html, accessed 10/11/11) For analysis of failure rate, see Douglas C. Haldeman. “Sexual Orientation Conversion Therapy for Gay Men and Lesbians: A Scientific Examination.” in Homosexuality: Research Implications for Public Policy. John C. Gonsiorek and James D. Weinrich, eds. (Thousand Oaks, CA: Sage Publications, 1991) He concludes “Psychological ethics mandate that mental health professionals subscribe to methods that support human dignity and are effective in their stated purpose. Conversion therapy qualifies as neither” (p. 159). In 2012, California banned the use of “reparative” or “conversion” therapies by licensed therapists on minors, effective Jan. 1, 2013. After this time, adults will be required to sign a release to undergo these therapies.
11. Being the straight partner of a gay or lesbian person can raise difficulties and challenges of its own. See Katy Butler, “Many Couples Must Negotiate Terms of ‘Brokeback Marriages,’” New York Times, March 7, 2006, at http://www.nytimes.com/2006/03/07/health/07broke.html?pagewanted=all accessed October 13, 2012.
12. See D’Vera Cohn, Jeffrey Passel, Wendy Wang and Gretchen Livingston, “Barely Half of US Adults are Married—a Record Low,” in Pew Social and Demographic Trends, December 14, 2011,
http://www.pewsocialtrends.org/2011/12/14/barely-half-of-u-s-adults-are-married-a-record-low/, accessed October 13, 2012.
14. See, e.g., Hatzenbuehler, Mark L. “The Social Environment and Suicide Attempts in Lesbian, Gay, and Bisexual Youth,” in Pediatrics, Volume 127, No. 5. May 1, 2011, pp. 896-903 In 2010, sex and relationship columnist Dan Savage started the “It Gets Better” Project in response to a wave of suicides of LGBT teens, in which people post videos to encourage teens facing bullying and abuse. There are now thousands of videos from around the world, including videos from government leaders, sports figures, entertainment icons, Non-Catholic church authorities including former ELCA presiding bishop Mark Hanson, and lots and lots of ordinary people. See www.itgetsbetter.org.