Many Catholic institutions use marriage to define some of the benefits they make available to their employees. Now that civil marriage is legally available to same-sex couples in most states, and perhaps soon in all, these Catholic institutions all face the question: may we, or indeed should we, extend marriage benefits to same-sex couples who contract such a civil marriage?
The University of Notre Dame and many other Catholic institutions have given their answer, loud and clear: we may, we should, and we are doing so right now.
It is a morally indefensible answer. And the bad consequences of persisting in it will surely be far-reaching and very damaging. The whole Church, and everyone concerned for the future of our country and the children who are or will be growing up in it, has an important interest in the answer that Catholic institutions are giving.
This is the first time in our civilization that the civil power is endorsing and promoting—not just tolerating or accepting and regulating—an immoral, anti-marital kind of sexual choice. John Paul II and Joseph Ratzinger signaled the significance of this huge shift in 2003, before it had begun to be adopted or imposed widely. They identified the right response without ambiguity. The Synod in October 2014 quoted from that 2003 response, calling it “Church teaching: ‘There 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.’”
The 2003 document goes on to answer the practical question what to do about this. We have boldfaced the part that speaks to the present, acute phase of the crisis:
Where the government’s policy is de facto tolerance and there is no explicit legal recognition of homosexual unions, it is necessary to distinguish carefully the various aspects of the problem. Moral conscience requires that, in every occasion, Christians give witness to the whole moral truth, which is contradicted both by approval of homosexual acts and unjust discrimination against homosexual persons. Therefore, discreet and prudent actions can be effective; these might involve: asking the way in which such tolerance might be exploited or used in the service of ideology; stating clearly the immoral nature of these unions; reminding the government of the need to contain the phenomenon within certain limits so as to safeguard public morality and, above all, to avoid exposing young people to erroneous ideas about sexuality and marriage that would deprive them of their necessary defenses and contribute to the spread of the phenomenon. Those who would move from tolerance to the legitimization of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalization of evil is something far different from the toleration of evil.
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. In this area, everyone can exercise the right to conscientious objection.
What are the implications of “legitimization of specific rights for cohabiting homosexual persons,” such as the provision to them of benefits available to married employees if they declare to the employer that they are legally married? Our reflections on that question will throughout assume the present state of the law in most if not all states: that there is no legal compulsion or obligation which would force Catholic institutions to extend the benefits, or none that binds any employer that can point to a religious or other conscience-based exemption or accommodation.
1. Declaring to one’s employer that one is legally married to someone not of the opposite sex is an affirmation that the two same-sex persons named have made a public commitment to be available to the other for sexual intimacies amounting or comparable to the conjugal act or usus matrimonii that canon law, Scripture, universal popular understanding, and civil-law rules all identify as intrinsic to marriage. So extension of marriage benefits to such employees directly incentivizes the making of and persistence in a public commitment to be sexually available to another person of the same sex—that is, to be available for intrinsically immoral sex acts. The extension is made conditional on this public commitment (whether or not such immoral sex actually occurs between the two persons, or occurs more frequently than it would in the absence of the public commitment). On the annulling or dissolution of the public commitment, the benefits will be withdrawn. And these benefits are not to be available to couples, same-sex or otherwise, unless they make and declare the public commitment, a commitment which for same-sex couples is intrinsically immoral.
Thus, the benefits extension undeniably has the direct effect of encouraging same-sex couples to make or persist in an immoral commitment. It constitutes an endorsement of this commitment, promotes it with direct benefits, and cooperates in it in a way that, on widely used theological conceptions, constitutes formal cooperation with wrongdoing. Therefore, it is intrinsically wrongful and must never be done. On even the narrowest conception of formal cooperation, the extension of benefits is certainly an instance of such intrinsically wrongful cooperation if granted on the premise that the couples involved should be encouraged to make a “marital” kind of commitment (say, because that is judged better than promiscuity or domestic instability), or deserve to be benefited (say, because of “discrimination” that they or other same-sex couples have experienced), or on the premise that such unions should be celebrated (say, as part of the rich tapestry of a loving and up-to-date society and Church) or at least welcomed or met with some approval. 1
2. Some Catholic institutions have sued the national government over the HHS “contraception” mandate. The University of Notre Dame is one such institution, and in its court filings it has maintained that facilitating its employees’ access to contraceptives and abortifacients is incompatible with Catholic faith and morals. But whether or not abortion and/or contraception are in themselves morally weightier matters, the extension of marriage benefits to same-sex couples gives a more substantial, direct, and active form of scandal than the present form of HHS involvement does. Extending benefits to civilly married same-sex couples inevitably gives scandal—a morally corrupting example, needlessly given—to people deliberating about whether to enter into, or persist in, a same-sex “marital” commitment, for it directly and actively encourages them to do so. And if the employer makes the extension public, grave scandal is also given to many others whose deliberations about sex and marriage may be affected. In incorporating this extension of benefits into the institution’s standing policies, the employer builds into the bricks a norm that leads members of the community directly away from a life lived in friendship with Christ. To put it in the language of the Church, the employer thereby creates or promotes a growing and entrenched structure of sin.
For when a university’s administration, knowing that “same-sex marriages” are in a Catholic understanding not truly marriages at all, nonetheless gives without legal coercion many signs and solid tokens of approving such commitments to non-marital sex acts, everyone can readily infer that the university actually does not regard any kind of sex acts between adults as grave matter, provided that these acts are consensual and, perhaps, linked to some notion of commitment. This inference and its logic apply to the vast majority of its students whose inclinations are heterosexual, and whose temptations—enhanced by the perceived indifference of the university—are rather to fornication (and pornography and self-abuse) than to sodomy.
Such a university thus greatly impairs its own stated mission to help form all of its students as whole persons, and imperils the souls and the earthly fulfillment of those whom it has undertaken to support in a Christian life that is faithful in this and all other respects. The structure of serious sin thus installed or reinforced on campus is far-reaching.
3. The baneful effects of this structure of sin will be difficult to contain. It will be reinforced, for instance, if and when such a university accepts that an open commitment to an unchristian kind of sexual relationship is little or no impediment to being appointed to holding high office and high academic posts in it.
In the case of extending benefits to divorced and “remarried” persons, the potential scandal is virtually always veiled by some public ambiguity about the facts, but there can be no such veil in the case of same-sex “marriage.” And even if a university were to try to draw the line at only extending benefits (which Notre Dame has not suggested it will), its hand would probably be forced by equality laws—unless it could plead a religious or conscientious exemption or accommodation, to which its benefits extension will be a fatal impediment in a court of law.
In common sense, extension of marriage benefits to same-sex civilly married couples plainly portends—if it does not already imply—the full integration of these couples into the university’s life on the terms pertaining to married couples. Doing so not only violates the institution’s duty of love for same-sex couples, who will inevitably be confirmed and encouraged to continue in their wrongful commitment; it also violates the university’s duty of love for everyone in the campus community, many of whom will be misled about the meaning of marriage and the truth about sexual morality, as well as about how a Christian community rightly responds in love to persons living out a public commitment to an immoral relationship.
4. The gravely bad effects are not limited to the campus or other institutional context. They extend widely and reverberate throughout society, beginning in the same-sex households that the institution has decided to benefit. Marriage, in both the Christian conception and the wider culture, is essentially concerned not only with sexual relations but also with the raising of children. Therefore, by extending marriage benefits to same-sex couples, a university would directly cooperate in, encourage, and promote the grave injustices committed by those of its employees who, deeming themselves (and being legally deemed) married, will—usually in circumstances utterly remote from emergency rescue of orphans—adopt children. Even worse, some couples may use third-party reproduction to create children with the intent to bring them up motherless (if the couple is male) or fatherless (if the couple is female) and in a domestic educational context of active approval of intrinsically immoral sex. No Christian institution should ever cooperate with such gratuitous wronging of children.
Laws and administrative practices that hijack the historic and Christian language of marriage are gravely unjust; they threaten to destroy the ability to communicate the simple truth on which so much in personal and social life depends: in brief, sex is for marriage. Obscuring this demanding but straightforward truth leads directly to the injustices against children inherent in willed “single parenting,” and to uncountable miseries of broken relationships, childlessness, and much else.
5. Finally, institutions that assimilate civil same-sex “marriage” into the category of true marriage will lose their credibility in the fight to defend religious freedom against the federal judiciary, powerful currents of influence, and coercive laws. To stress the point again, Catholic institutions are not now compelled by the law to act contrary to the Church’s teachings on marriage. A day may soon come, however, when legal and cultural forces will demand the practical elimination of Christian teaching on sex and marriage from public life, schools, universities, commercial enterprises, indeed everywhere—in the name of equality and a spurious esteem or freedom from offense and “animus”—and the replacement of that sound and beneficial teaching by the very damaging falsehoods of “gender autonomy” and ideology.
Under our law, courts are not meant to investigate the doctrines of a religious body that claims First Amendment rights. But the Catholic Church lives its faith in public, and makes its teachings fully available to everyone who can use the internet. Federal judges will scarcely overlook the plain and easily discoverable fact that Catholic institutions that extend marriage benefits to same-sex couples are setting at naught the teachings and directives of the 2003 letter of the Congregation for the Doctrine of the Faith, a letter treated as authoritative by the 2014 Synod of Bishops. This fact will profoundly weaken these institutions’ claims to faith-based exemption from, or accommodation in relation to, legislation that demands parity of esteem and recognition for persons and groups that oppose, defy and even vilify Catholic teaching on marriage, family, and sexuality. In this event, it will be clear that the Catholic institutions that have adopted unfaithful benefits policies have surrendered their religious freedom.
6. If Catholic institutions extend benefits to same-sex couples, then our era will not only be historic because of the civil power’s endorsement of immoral sex. It will also turn out to be a historic moment in the extensive de-Catholicization of many institutions. It is worth stressing again: structural sin is difficult to contain. This would be a destructive loss made possible by these institutions’ own choice—their unforced, unnecessary, unjustified, and irresponsible choice—to treat same-sex couplings as marital simply because the civil power and the couples in question declared them so.
Gerard V. Bradley is Professor of Law at Notre Dame Law School. John Finnis is Professor of Law and Legal Philosophy Emeritus in the University of Oxford and the Biolchini Family Professor of Law at the University of Notre Dame. Daniel Philpott is Professor of Political Science and Peace Studies and Director of the Center for Civil and Human Rights at the University of Notre Dame. Professor Philpott's views are his own and are not meant to reflect those of the Center for Civil and Human Rights.
- Thus Notre Dame’s president, explaining (to the student newspaper on October 16, 2014) the University’s decision to extend marriage benefits, said “[W]e recognize an urgent call to welcome, support and cherish gay and lesbian brothers and sisters, who have been too often marginalized and even ostracized, and many of whom bear the scars of such treatment. At Notre Dame we have undertaken initiatives to provide support and welcome [to] gay and lesbian members of our community. These efforts must not and will not flag.” ↩