The New Regime of Marriage Law: Its Significance for Catholic Life

During the last decade the marriage laws in many jurisdictions, including Canada where I live, have been changed so as to allow couples of the same sex to be deemed to be married, that is, given the opportunity to marry legally with the result that same sex couples have the legal status—comprised of the legal rights, liberties, and duties that together specify it—which was enjoyed previously only by heterosexual married couples. This trend in the marriage law in Western countries seems unlikely to be reversed in the near future, and, indeed, appears more likely to continue—and perhaps to accelerate—in the present political and jurisprudential climate that so favors equality. This new legal regime seems likely to become the new normal.

This change in the law is understood by both its proponents and opponents to be significant. Proponents highlight the greater equality created between same-sex and opposite-sex couples. Opponents highlight the radical implications of the new regime for the social forms within which people understand and carry out very basic relationships, including sexual and family relationships and child rearing. These relationships play a central role in personal and communal life, and, within the traditional monotheistic religions, including Catholicism, in understanding the relationship of human beings to God.

As a result, Catholics, along with others sharing their evaluation of what is at stake in marriage, have reason to take the measure of this change in the law of marriage, its implications, and the consequences of the new social reality caused by that change. Doing this will allow for the needed assessment of the steps that are to be taken to deal with this new reality, particularly as it affects their own understanding and practice of Christian marriage.

Such an assessment will rely on some of the considerations that figure in a strictly philosophical evaluation of the new regime of marriage law. But the evaluation I undertake here begins with a premise which secular reflection generally should avoid—namely, the normative dominance for Catholics of the Catholic teaching about and practice of marriage.

It might appear that the change in the civil law of marriage should be of little concern to Catholics, because the new regime of marriage does not pretend to alter the marriage practices of Catholics and other traditionally minded people; the change is in the law, and so only in the secular practice of marriage within modern pluralistic societies. This change leaves intact the marriage practices of the various faith communities by allowing them to continue to marry in accord with their own practices and to refuse to give religious sanction to publicly ratified same sex marriages.¹ The proposal, in short, is that the source for concern evaporates if one keeps separate the requirements of the practices of communities such as religions and those of a modern pluralistic political society.

But Catholics and others concerned about the implications of the new regime of marriage do not deny the secular purpose of the change. Rather, they are rightly concerned with this new legal reality as they reasonably are in respect to any social and legal developments in the larger society having potential profoundly to affect their interests and practices. In this paper, to elaborate this concern, I propose to state briefly the meaning of the practice of marriage as understood in the Catholic Church as well as the social reality of redefined marriage, and then put them together for careful inspection, and finally draw some practical conclusions.

I. Catholic Teaching on Sexual Morality and Marriage

Catholicism, like other traditional forms of Christianity, holds that within marriage—understood as an irrevocable commitment between a man and a woman to share life completely—marital intercourse can be humanly fulfilling and morally good. Moreover, it is only within that commitment to share a common life that sexual activity is good. So, contrary to much of contemporary opinion, Catholic teaching holds that the sexual acts of those who are not married are morally wrong, and that includes sexual acts between persons of the same sex.

Clearly, the ground for limiting sexual activity...