Same Sex Marriage:
A Theological Exploration
By
Rev. William Messenger

A few years ago it would have been difficult to imagine an issue inflaming the passions of American society as much as the debate over abortion. Yet we seem to have landed squarely on an even more contentious and divisive issue, namely same sex unions. This debate gains steam on a seemingly daily basis, fueled in no small part by 1) court judgments in the States of Vermont and Massachusetts 2) the decision by the City of San Francisco and others to issue same sex marriage licenses and 3) ballot measures that continue to surface in each election. Unfortunately, passion over this issue has reached such a level of hysteria that opposing ideas have become inflexible and meaningful discussion rendered nearly impossible. We simply cannot resign ourselves to that reality. We are a pluralistic society that must rise above our current tendencies toward judgment and condemnation. We must seek mutual understanding if we are to resolve this issue.

Two fundamental questions ground the discussion: should the state legitimize same sex unions and can the state do so? At the outset, I would like to suggest that whether or not the civil authorities should acknowledge same sex unions, i.e. whether or not it is the right thing to do, is a decision that society must arrive at together. All the differing viewpoints must be heard and discussed so that the decision benefits society as a whole. In order to arrive at that decision, however, we must first examine whether or not civil authority can recognize same sex unions. Although the United States is not a theocracy, our society was founded on religious principles and religion plays a significant role in how most Americans see their society.

It should come as no surprise, therefore, that at least for most Christians, it appears that the first objection to same sex unions, and the one most often appealed to, comes from the Bible. Both the Old and New Testaments appear to present prohibitions against homosexual behavior. A comprehensive and compelling study of the relevant passages has already been done by Daniel A. Helminiak, in the book What the Bible Really Says About Homosexuality, published by Alamo Square Press. Rather than repeat the excellent work done in this book, I strongly urge readers to examine it for themselves.
One presupposition at work in this exploration is that there are and will continue to be active homosexual persons among the general populace and that many of them will continue to seek a legal validation of their relationships. Some discussion of homosexual activity is included, but it is also presumed. Therefore, at least from a purely legal perspective, the real issue is the codification of a homosexual union that approaches the status of marriage.

Whether or not same sex unions can appropriate the civil guarantees, rights and privileges of marriage can only be determined after examining whether or not same sex unions can be justified in their own right. As a Catholic priest I am disappointed in my Church’s reactionary response to this issue. Therefore, I present this exploration from a Catholic perspective. Toward that end, it seems that we need to begin with a discussion of the natural law and Scripture, subsequently moving into the areas of jurisdiction, sacramentality, and cannon law.

Natural Law and Scripture

Although the Christian understanding of natural law is rooted in the concept of God, it is not relegated solely to the experience and acceptance of revelation. Both the Old and New Testaments (Wisdom 13:1-9 and Romans 1:19-21), assert that God can be known through nature. Beyond that it is generally accepted that it is possible naturally to attain knowledge of moral principles. As Richard P. McBrien writes in Catholicism “…human reason, reflecting on human nature and human experience, can also arrive at a true moral wisdom and knowledge that holds not only for Christians but for all people.” It is this knowability that forms the initial, albeit tentative, foundation for natural law. Clearly, for the Christian, natural law is furthered through Revelation, both in content and meaning (interpretation). Since natural law pre-exists formal Revelation, at least insofar as it is part of all human experience, it is necessary to examine first what natural law suggests regarding same sex unions.

In examining natural law, it is imperative to place it within the context of human experience. Johannes Gründel provides a very thoughtful discussion on the historicity of natural law in Encyclopedia of Theology, The Concise Sacramentum Mundi. He points out that even Scripture, both Old and New Testaments, rejects a static view of nature: “All its moral directives are orientated to men (sic) in the concrete and have the character of a “situated” ethics.” He concludes “…one may renounce Scripture as a proof for the unchangeability of the natural law.” It is not just changing circumstances that might occasion a change in the interpretation of natural law. The deepening knowledge of what it means to be human also plays a role. As knowledge of human nature through human experience grows and develops, so does the understanding of the moral wisdom accessible through natural law. The Scriptures themselves, particularly the creation narratives, reflect the limitations of any one age in coming to terms with natural law. Like all other reflections on the human experience, they identify goals of our existence. However, they are not exhaustive.

In the context of this discussion, there is any number of reasons why some ancient cultures and previous generations may have considered homosexuality to be contrary to the natural law. Not the least of these was the need to procreate in order to provide a future for the human race. That legitimate need to procreate was further impacted by high infant mortality rates in earlier societies. Additionally, both marriage, and subsequently procreation, advanced the social agendas of families and societies. Witness the arranged marriages that continued in Europe into the 20th century and continue still today in various parts of the world. For generations, the very survival of the human race depended on how it understood sexual activity. In religious thought, this suggested to some that sexual activity was primarily for the sake of procreation, with pleasure being but a secondary aspect at best. Others even considered sex to be sinful and only acceptable, though not quite redeemed, because it was a necessary tool of procreation. But in the second story of creation in the Book of Genesis, it is the man’s aloneness that God contemplates. And it is that aloneness that moves God to create a partner. After first presenting the various animals as possible partners, and finding them inadequate for the task of full companionship, God creates another being like the man. The important point is that God created another human being, since none of the beasts was a suitable partner. The fact that the story says it was a woman reflects the cultural conditioning of the ancient Israelites concerning the role of sex in marriage and procreation. This is not to suggest that the cultural conditioning was wrong, simply that it was limited. Setting aside the historical conditions that might have posed such a narrow perspective on sexuality, reflection on the natural law, and even on the Scriptures, enables us to see in sex one element of the fulfillment of the human person and personality.

As I have just mentioned, God created a partner, an equal, so that the man would not be alone. One person is to find fulfillment in another person. Indeed, from the perspective of the development of the human personality, only another human being can fulfill that role. This is not immediately a sexual role, as is evidenced by those who choose to live non-sexually active and even celibate lives. The creation story suggests that God is solving a social dilemma for the man—he needs companionship. Whatever sexual element grows out of God’s solution, the sex itself is but one expression of the solution to social isolation. In the context of ancient Israel, as with most of the ancient world, that sexual expression generally entailed a relationship between a man and a woman. For Israel there was the added problem that many of the cultic practices of pagan religions involved alternative and even homo-sexual acts. Therefore a religious dimension and question of faithfulness to the God of Israel came into play. As McBrien writes: “In a world where worship permeated every aspect of life, anything suggestive of pagan cultic practice—e.g., the fertility rites of the Canaanites—would be for the Israelite tantamount to infidelity to Yahweh” (Catholicism). Helminiak presents a detailed explanation of this concern in Chapter 4 of his book. Beyond these cultic practices, it is hardly imaginable that ancient societies, concerned as they were with their survival, could have conceived of an ongoing same sex relationship, let alone a same sex union that was similar to marriage. The point here is that sex is first and foremost a result of God’s solution to the first man’s isolation. At its foundation sex is rooted in companionship, fulfillment and even a pleasure that is directed toward an “other.” That would be the case whether the “other” was of the same or the opposite sex. The dimension of sex for procreation does not even enter the equation, since in this story of creation God says nothing about multiplying. Rather, it is companionship that is inherent in human nature and experience.

It should be noted that this story of creation, while occurring in the second chapter of Genesis, is actually the more ancient of the two. And it inescapably leads to the conclusion that in the original Biblical understanding of creation, same sex unions are not, in and of themselves, contrary to the natural law. Whether or not they can appropriate marriage necessitates a further reflection on marriage.

An examination of human experience demonstrates the role of marriage in securing legitimate social agendas, including the future of the race. Further, we discover that marriage and sex are each elements of God’s solution to the man’s aloneness. Yet they are not identical. A critical examination of natural law and the second creation story of Genesis, demonstrates that they can validly exist apart from each other. In the ongoing reflection on human experience, sex and marriage diverge in another crucial area. In the modern age, an argument can be sustained that above all, marriage is a question of love.

Rooted in love, marriage takes its direction from God. Perhaps the most concise statement about God is contained in the First Letter of John when the author says, “God is love” (1 John 4:8-16). Certainly no Christian would disagree with that statement. But what does it imply? If God is love, then wherever we find love, we are in the presence of God. Defining love can be tricky. Clearly love cannot be confused with lust or with a warm feeling. Nor can it simply be synonymous with sex. There are three Greek words for love: eros, filia, and agape. In the context of John’s letter, love is oriented toward another individual and is characterized by sacrifice. For this reason he chooses the word “agape” in talking about love. Surely, though, agape can also be found in the erotic form of love. Do we not suggest that an erotic relationship that also includes “agape” is a more perfect, a more fulfilling love? Nonetheless, a sexual relationship can exist that does not include agapic love. From the perspective of the development of the human person and the moral directives gleaned from natural law, the primary issue in same sex unions, as in marriage, is whether or not one person genuinely and sacrificially loves another.

In examining the Thomistic approach to natural law, McBrien lists three basic inclinations of human nature that are knowable through natural law: “those we share with all substances (the preservation and conservation of our being); those which are common to human beings and to animals (procreation and education/training of offspring); those which are proper to rational beings (to know the truth about God and to live in human community).” It can be argued that knowing the truth about God (God is love), and living in human community (wherever we find love we are in the presence of God), is an essential definition of both marriage and same sex unions. Acknowledging that shared characteristic of love should lead one to conclude that the natural law does not of itself outlaw same sex unions. That being the case, where does one find the foundation for deciding on same sex unions?

Jurisdiction

Marriage is the historical model in jurisdiction and it is the paradigm on which same sex unions are based, even if they are not to be called marriages themselves. As such the concept of marriage is useful while searching for a foundation in law that might apply to same sex unions. Although religion rightfully claims a stake in marriage, the union is first and foremost a matter of civil law. The existence of marriage as a relationship, even the concept of marriage as an institution, predates religious commitment, structures and laws. It is, primarily, a question of the fabric of civil life. It was this awareness that occasioned Pope Paul VI to alter the canonical form for marriage in the Catholic Church. Even today, the state stakes first claim on marriage. In the United States, for example, the state allows a religious ceremony to satisfy the requirements of civil law, but only after the state has issued a license to marry. In some other countries, the religious ceremony has no such recognition, requiring a couple first to marry civilly and only after to celebrate in some meaningful religious way.

The state claims jurisdiction for reasons that we saw in the discussion of natural law. The need to procreate is as critical to the preservation of specific civil territories or particular societies, as it is to the Church. However, it is not just a need to procreate, but also to provide order and stability that causes the state to set limitations on marriage. Therefore, the state does not just issue a license. It enacts a whole slew of laws to safeguard and protect marriage, including the sometime necessity of divorce.

Although some concept of marriage is a universal social experience, it is also culturally influenced. For example in some cultures polygamy is acceptable, while in other cultures the state restricts marriage to a monogamous relationship. In some cases it provides for a common law marriage, and in extreme situations, the state limits the number of children a married couple can bring into the world. Whether or not the Church agrees with or approves any particular law of the state regarding marriage is to some extent irrelevant. It is within the power and authority of the state to enact such laws. The church may choose internally to enact stricter limitations on marriage, and may also seek to engage the state in a discussion of the merits of civil law, but in terms of the larger society, it is the state that has jurisdiction on what does and does not constitute a valid marriage.

Perhaps the greatest concern of the state stems from the concept of the fabric of civil life. It is not possible to overstate the significance of a stable union on the larger society. One need only look at the emotional and psychological costs of divorce, not to mention the economic tally. In this regard, an argument can be sustained that society also benefits when same sex unions are stable and permanent. The break up of same sex unions often mirrors the emotional, psychological and economic costs of marital divorce.

Same sex relationships of some length will continue to exist in society. If that society benefits from the stability of same sex unions, then it stands to reason that the state has a vested interest in supporting those relationships at least in so far as extending to them the same rights and privileges attendant to the married state. Among these are hospital visitation, decision-making authority in medical treatment, pension benefits and decisions regarding child custody and education. Bishop Daniel Reilly of Massachusetts referred to these as “distributive justice” in his testimony before Massachusetts State Legislators in October of 2003. Additionally, if the state decides to grant the rights and privileges of married couples to same sex couples, i.e. to distribute justice evenly, it follows that the interest of the state demands a designation for same sex couples that reflects the meaningful life commitment of these unions. Such a designation, whether marriage or civil unions or any other term, secures those rights not just in law, but in fact, thereby safeguarding those same rights from the mood swings of society. In the current debate, many argue that granting same sex unions the same rights as marriage, would further strain an already fragile economic system. However, such argument ignores the greater benefit to society when any relationship is stable and permanent, thereby contributing to the fabric of civil life.

The timing of such a decision is critical. Just as changing circumstances occasion a change in the interpretation of natural law and Scripture, so also they occasion a change in civil law. It may be that something which always held intrinsic value, namely the love between individuals, specifically homosexual individuals, could not have been codified by the state before now. Today’s generations have seen the changing circumstances that alter social structures. However, change is gradual. Even when it is universal in scope, it does not take root in all peoples at the same time. In this particular case the language of the law is critical. I understand that crafting a distinct term for same sex unions, or permitting homosexual couples to marry, will not satisfy those in our society who venomously condemn homosexuality. Still, it is in the province of the state to make such a determination, and there is ample support both in natural law and in jurisdiction to support this conclusion. When one considers that a primary responsibility of the state is to promote the common good, then the state must be particularly sensitive to the minorities among us. Most everyone will agree that homosexuals constitute a minority and that is not likely to change. But the state’s obligation is not to promote the good (or the biases) of the majority. Rather, it is the common good that must be promoted. By definition, “common” includes all people in a society, the majority and the minority. After all, everyone in our society values at least the following: life, dignity, personhood and love, even if those values find a variety of expressions. Promoting and securing those elements in all individuals cannot help but promote the common good.

Although Church history can never be reduced to a simple phrase, it is fair to say that until the middle ages the Catholic Church seemed content with the state claiming and exercising jurisdiction over marriage. It was not until the Council of Trent in 1563 that the Church required Catholic marriages to take place before a priest. This was a change in practice that proved contentious for the Protestant Reformers who rejected the idea that the Church should exercise authority over marriage. One by-product of Trent has been the creation of a host of legislative and jurisdictional regulations surrounding Catholic marriage, not always in harmony with the rules of the state. Whatever religious importance the Church desires to place on marriage, (and much of it has great spiritual value), jurisdiction over marriage lies first and foremost with the state.

Perhaps a refinement of the pre-Trent arrangement would better serve both Church and state, allowing the state to regulate legal unions and the Church to focus on the sacramental character of marriage. This was the argument put forward by Erwin Chemerinsky when he was Constitutional Law Professor at the University of Southern California. In an article on same sex unions for the Los Angeles Times, he argued that the state should drop the term “marriage” and issue licenses for civil unions, period. Then the Church, Synagogue, Mosque, Temple, etc. would be free to designate which unions constitute marriage, thereby relegating “marriage” to the realm of faith. At least from a civil perspective, this would eliminate the contentious terminology of calling same sex unions marriages. Whether or not it would resolve the deeper legal concern of equal treatment under the law is a separate issue, and one that requires a more thorough social dialogue.

Sacramentality

Without question, the greatest gift the Church brings to any discussion of marriage is the sacramental aspect. It is language that is unique to faith and expresses the depth of the Church’s experience of the presence of Christ. In Catholic thought, sacraments emerge from the sacramental principle. That principle might be stated as follows: If something is true everywhere and all the time, it must be celebrated sometime, somewhere. Fr. Michael Himes, Professor of Theology at Boston College, develops this concept in his presentation “The Mystery of Faith, An Introduction to Catholicism”. An example by Fr. Himes regarding the building of churches serves the point. We believe and acknowledge that God is everywhere. Himes notes that God is no more present in the church building than in the parking lot or the supermarket or the bank. But the tendency is for us to take God’s presence for granted—to not think about it. Churches, however, heighten our awareness and focus our attention on the presence of God, enabling us to celebrate that presence in our lives.

At the most basic level, sacraments are experiences of God’s presence in human life. The Roman Catholic and Orthodox Churches celebrate seven formal sacraments. That is to say that there are seven sacramental experiences that are common to the whole community. Most Protestant Churches acknowledge only two, and the Anglican/Episcopal Communion distinguishes between two primary and 5 minor sacraments. In determining whether or not to call an experience a sacrament of the Church, the classic definition has suggested that the sacraments “are instituted by Christ.” That does not mean, however, that we can scour the New Testament for proof that the historical Jesus said or did some particular thing to prove our list. At the same time there is nothing in the Scriptures or the teaching of the Church to suggest that our list of seven is exhaustive. As Michael Himes suggests, there are as many sacraments as there are things in the universe that reflect God’s presence. The Church sets aside seven specific events as common experiences for all of its members and calls them the seven sacraments. Could there be more?

Richard McBrien notes in Catholicism that the number is not the issue. “It was and always is up to the Church to determine whether certain acts flowing from its nature as a sacrament of universal salvation are fundamentally and unconditionally a realization and expression of that nature”. Historically, marriage was not always considered a sacrament. It was formally declared so by Pope Innocent III in 1208, affirmed by the Second Council of Lyons in 1274, and finally defined by the Council of Trent in 1563. For the Catholic Church the concept of marriage as a sacrament is not problematic. Asking, “Was it instituted by Christ” is the wrong question. A better question is, “Is Jesus’ Spirit acting in his Church and is this a sign of that action”? Yes, in his historical life Jesus demonstrated an appreciation of marriage as sacred. But it is the reflection of the Church, guided by the Holy Spirit that determines marriage to be a Sacrament. This action of the Church is one product of Jesus’ promise to send the Spirit to guide us and teach us (cf. John 14:26).

Underlying the sacramental principle and the formal designation of “sacrament” is the reality that sacraments express what is already real. There is no magic in the sacraments. There are no special robes or incantations or wand waving that cause a higher or mystical power to make things happen. The sacrament of Baptism celebrates that faith already has been given. The sacrament of Reconciliation celebrates that God already has forgiven us. Even the sacrament of the Eucharist celebrates the fact that Jesus already is present. So it is with the other sacraments. For Catholics, Orthodox, and Anglicans, marriage is a sacrament that celebrates the reality of a love that is already present. We believe that this love is a gift of God. Moreover, as discussed above (Natural Law), we believe that when we are in the presence of love we in the presence of God.

As already suggested, the number seven is not exhaustive. Nor can all the things in the universe that reflect God’s presence be formalized as Sacraments. Although any individual can have a deep and profound sacramental experience, the Church’s task is to identify those experiences that have a common character, that can be experienced by the larger community, and canonize them as Sacraments.

It is possible from this discussion that the Church, independent from what the state does, could identify another sacrament for same sex unions, if it chooses not to call them marriages. I only state it is possible, because at this stage of our faith development it is unlikely. Traditional sexual mores are not easily expanded, even with the benefit of modern Scriptural scholarship. Setting aside, for the moment, the established ideas of sexual morality, the Church needs to address the fact that love does not always come in neatly defined packages. The bold fact is that there are many people who deeply love persons of the same sex, and that love finds expression in sexual activity. If God is love, and if wherever we find love we find God, then some acknowledgement of same sex unions is in order, and the designation of a sacrament is but one possibility.

Canon Law

Two things can be concluded from the current development in the United States, Canada and other countries. First, some recognition of same sex unions will become the norm in civil law. Second, it is unlikely that the Church will validate those unions, and even less likely that they will be given the status or designation of sacrament. Observing the tension and splintering of certain parts of the Anglican Communion over this same issue, one cannot expect the Catholic Church to jump into the fray just yet. Therefore, how do we resolve the emerging conflict between Church and state over same sex unions?

In the current state of heterosexual marriage a major conflict already exists between Church and state. Catholic teaching holds that marriage is indissoluble, whereas the state regularly grants decrees of divorce. For Catholic couples this poses a particular problem with their Church if they marry again without ecclesial approval. There is a long-standing solution that while far from perfect, enables the Church to maintain its sacramental theology on Marriage and Eucharist, and at the same time exercise pastoral compassion toward its members. The solution is popularly referred to as the brother-sister relationship. It is rooted in Canon 915 of the current Code, and referenced in John Paul II’s “Familiaris Consortio”, paragraph 84. In this situation, a couple who are married outside the Church can continue to live in the same house, officially as if brother and sister, and participate in the Eucharist and other sacramental life of the Church. Such a situation is far from ideal, but it enables couples to continue to benefit from the civil rights and privileges of marriage, while technically not living in a marital relationship.

It seems that this precedent can be applied to same sex unions. Let us assume that the state is going to grant some recognition to same sex couples and that that recognition will carry with it the rights and privileges of marriage. Let us also assume that the Church does not grant the same or similar recognition. A Catholic same sex couple under current Church law would find themselves “living in sin”, just as a heterosexual couple does in a relationship not sanctioned by the Church. What choices are available to this same sex couple if they want to remain active in the Church and be disposed to receive the sacraments? One choice would be to embrace the Church’s current teaching on sexuality. But if they procured a legal separation, they would also lose the rights and privileges afforded them by the state. In such a case, it seems that the Church can invoke the existing provisions in the law for heterosexual couples who remain in a civil union not sanctioned by the Church. We might refer to this as a brother/brother or sister/sister solution. The issue of morality remains, but it is a private matter of conscience. Some, perhaps many people would claim the entire solution is specious. But that is not for others to judge. Even in the current brother and sister solution, there is no guarantee that couples will live in “complete continence”. It is, in a very real sense, a matter of conscience and possibly material for the confessional, but it is not for those outside the relationship to judge.

Whether or when the Church should move in this direction is anybody’s guess. I have simply tried to present a foundation for continued discussion without the rancor that pollutes the current discourse. Hopefully some common ground can be reached and we can move forward for the betterment of society and the Church.

(Rev. William Messenger is a priest in the Archdiocese of Los Angeles)