POPE FRANCIS AND CIVIL UNIONS.

• Author: Mikochik, Stephen L.

In the 2020 documentary "Francesco," Pope Francis is heard saying:

Homosexual people have a right to be in the family. They are children of God. They have a right to a family. Nobody should be thrown out of the family or made miserable over this. What we have to make is a law of civil coexistence, for they have the right to be legally covered. I stood up for that. (1) The Pontiff made these remarks in a 2019 interview, which were excluded by the Vatican in the final version but were spliced into the documentary. In that interview, the Pope had added a sentence omitted from the documentary: "That does not mean approving of homosexual acts, not in the least." (2)

In these statements, Pope Francis is not rejecting the Church's traditional characterization of homosexual practices as "sins gravely contrary to chastity." (3) Furthermore, the Pontiff is not questioning the Church's position that "[t]here are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family." (4) And though some ambiguity exists about whether he meant that homosexual persons have a right to have rather than be in a family, it is difficult to conclude that the Pope was endorsing adoption by same-sex couples given the Church's concern that "[a]llowing children to be adopted by persons living in such unions would mean doing violence to these children." (5)

It is fair, however, to read Pope Francis as agreeing that same-sex couples have a right to some form of legal recognition for their unions and such recognition does not necessarily imply approval of their sexual activity. That reading places his remarks at odds with a 2003 statement from the Congregation for the Doctrine of the Faith ("CDF"), which concluded "that all Catholics are obliged to oppose the legal recognition of homosexual unions." (6)

The CDF offered several reasons for this conclusion. First, such laws would amount to formal cooperation in sin:

In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. (7) Second, the CDF reasoned that such laws would violate the State's obligation to protect the common good: "[T]he State could not grant legal standing to such unions without failing in its duty to promote and defend marriage as an institution essential to the common good." (8) As the CDF explained:

he 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. If, from the legal standpoint, marriage between a man and a woman were to be considered just one possible form of marriage, the concept of marriage would undergo a radical transformation, with grave detriment to the common good. By putting homosexual unions on a legal plane analogous to that of marriage and the family, the State acts arbitrarily and in contradiction with its duties. (9) Further, the CDF reasoned that withholding legal recognition to homosexual unions was not unjust discrimination:

Not even in a remote analogous sense do homosexual unions fulfil the purpose for which marriage and family deserve specific categorical recognition. On the contrary, there are good reasons for holding that such unions are harmful to the proper development of human society, especially if their impact on society were to increase. (10) Notably, the "radical transformation" of marriage that the CDF predicted began, at least in the United States, not with the legalization of civil unions but rather with the broad recognition of contraceptive rights. Beginning with the narrow holding that married couples had a privacy right to freedom from governmental regulation of their marital intimacy, (11) the Supreme Court quickly moved to a right of use beyond that relationship:

[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the...