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The Legal Ban on Catholic Marriage Print E-mail
By Francis J. Beckwith   
Friday, 19 July 2013
 

After the Supreme Court issued its opinions in the marriage cases last month, virtually all media outlets referred to the subject of Hollingsworth v. Perry, California’s Proposition 8, as a constitutional amendment that “bans same-sex ‘marriage.’” This, of course, is technically not true, since Prop 8 is exclusively concerned with the sorts of unions that the state of California may legally recognize: “Only marriage between a man and a woman is valid or recognized in California.”

Under such a government policy, no same-sex couple is banned from drawing up a private contract and participating in a ceremony officiated by a clergyman who has the ecclesial power to declare the couple “married.” If their commitment is sincere, and if they and the members of their community and family believe in the ceremony’s authority, it would seem that the absence of the government’s imprimatur should not diminish its authenticity for all the parties involved.

Nevertheless, there will be those who think this distinction I am making, between legal recognition and legal prohibition, is a little too cute by half. These critics will argue that denial of legal recognition of same-sex unions sends a clear message to the wider public that these bonds are not respected by the community and thus shows that the state, in the words of Justice Anthony Kennedy, is motivated by “animus,” and that it intends to “injure,” “demean,” and “impose inequality” and “stigma” on same-sex couples.

Consequently, these critics will conclude that it is perfectly correct to say that the thirty-seven states that define marriage as a union between one man and one woman do in fact “ban same-sex marriage.’” But under such an understanding of what constitutes a legal prohibition, other alleged matrimonial arrangements – not so obvious at first glance – must be described as “illegal” as well. 

For example, in all fifty states and the District of Columbia – including, of course, the fourteen jurisdictions that now legally recognize same-sex “marriage” – no Catholic couple can obtain a legally recognized Catholic marriage.

According to the Catechism, a Catholic marriage consists of five elements: consent, conjugality, indissolubility, exclusivity, and openness to children. There is no jurisdiction that confers legal recognition to a marriage in which these five elements are necessary conditions. (Louisiana does have a provision that allows couples to enter a “covenant marriage,” but it is still not quite Catholic marriage).

As is well-known, under “no fault divorce,” which is the law in all U.S. jurisdictions, civil marriages are not only “dissoluble,” as they were when specific grounds for dissolution were required, but may be legally ended without requiring any reason whatever. The Catholic Church, of course, allows, under certain conditions, a marriage to be dissolved or declared invalid or null. (Hence, the term “annulment.”).

One of the grounds for dissolution is non-consummation, which means that the conjugality condition, that the parties engage in sexual intercourse, has not been fulfilled.  Although a justification for annulment under common law, most states no longer demand this condition for a couple’s marriage to be legally recognized.

This is why in the United Kingdom, where the common law first arose and over generations developed in its courts, non-consummation is not grounds for the annulment  of a same-sex “marriage,” though it remains so for married couples of complementary sexes.

Not only is the Church’s “openness to children” condition not recognized by any jurisdiction in the United States, the Church’s belief that the practices that violate this condition, artificial contraception and abortion, are gravely immoral has been actively opposed by President Obama’s Department of Health and Human Services and intentionally mischaracterized as a “war on women” by his reelection campaign.

Thus, a more equitably empathetic Justice Kennedy would no doubt conclude that such a posture on the part of our president and his administration shows “animus” against Catholicism, and that they intend to “injure,” “demean,” and “impose inequality” and “stigma” on American Catholics and their business enterprises that cannot in good conscience materially cooperate with what they believe are gravely immoral practices.

Although two American Catholics may be legally married by a Catholic priest, no state will legally recognize the contours and conditions of Catholic marriage as understood by the Church. Thus, there are no provisions in any state law that require family court judges to defer to the authority of ecclesial courts and canon law when confronted with a case involving two parties in a Catholic marriage.

No American state court, for example, would ever issue an order requiring that the parties of a Catholic marriage (even if it includes a non-Catholic) agree to raise their children as Catholics, even though that is precisely what the Church teaches.

So, if one insists on saying that same-sex “marriage” is illegal or banned in thirty-seven states, it stands to reason that Catholic marriage is illegal or banned in all fifty states.

 
Francis J. Beckwith is Professor of Philosophy and Church-State Studies at Baylor University, where he also serves as Resident Scholar in Baylor’s Institute for Studies of Religion. His most recent book (with Robert P. George and Susan McWilliams) is A Second Look at First Things: A Case for Conservative Politics – The Hadley Arkes Festschrift (St. Augustine’s Press, 2013)
 
 
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Comments (14)Add Comment
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written by Athanasius, July 19, 2013
My baptism and confirmation have not been recognized legally by the state. Quite frankly, I don't care and don't seek such recognition. As long as they have been recognized as valid by the Church, that is all that concerns me.

However, if some tax or welfare benefit were to accrue to individuals who are baptized or confirmed, then you will see people coming out of the woodwork looking for legal recognition of these sacraments. Jews and Muslims, even atheists would insist on the right to these sacraments, but probably they would not want to really live what these sacraments mean.

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written by Manfred, July 19, 2013
This is a very well laid out article, Mr. Beckwith. I salute you for this research. Marriage was the trigger point of English Protestantism and it still impacts in modern times. Artie Shaw was married eight timnes, Henry Fonda was married five times and Cary Grant, after three(?) marriages, always returned to his true love Randolph Scott. All these were acceptable to America and to the American public.
We Americans have to learn that this Country exists merely to have people capable of working in order to buy/rent property in order to pay taxes. It is a fraud as the last thirteen years have demonstrated which cares NOTHING for God, Christ or for Catholics. Truth gets in the way and therefore we have to be marginalized, even if it requires NSA, PRISM, the FBI and the IRS to accomplish this. It is high time we grew up.
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written by Michael Paterson-Seymour, July 19, 2013
Scotland, which in this respect follows the Pre-Reformation Canon Law, does not recognize non-consummation as a ground of nullity; but it does give rise to a conclusive presumption of impotence, which is.
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written by QM Barque, July 19, 2013
Marriage has fallen, and with it, we see the near end of Christendom. Christians shouldn’t blame gay people for redefining marriage. The redefinition began long before the idea of “gay marriage” ever took hold. It didn’t happen just this week, or last month, or last year, or even a decade ago. It happened (inter alia): qmbarque.com/2013/06/29/regarding-the-scotus-decisions-on-gay-marriage/
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written by Ken Tremendous, July 19, 2013
It is admittedly very hard to come up with a fresh angle on gay marriage and this piece shows it.
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written by Romy1, July 19, 2013
I have to agree, Ken. I would add that the active forces against SS marriage over-reached. I would have encouraged states to broaden the civil union statutes so that anyone can enter into a legal bond with someone, be considered next of kin, receive health care and pension benefits at death, etc. At the start, this is what the gays wanted. It was only after having difficulty getting better statutes on this that they went after marriage is the preferred union.

Catholic marriage is not banned anywhere in the US. It's just not civilly anything at all. That's what freedom of religion is all about in the Bill of Rights. The state cannot dictate to the core beliefs and practices of a religion (barring violence, theft, etc.). Even if the Church suddenly taught that bigamy is acceptable, the state could not intervene. Who could know for sure how many wives someone has? All the state cares about is whom are you claiming on your tax return.

What the state does on marriage is of little concern to me. The state of marriage in our Church. though, is. It's like the big gorilla in the room that nobody notices. Perhaps, Mr. Beckwith, you might like to put a spotlight on that. The number of annulments in this country alone is depressing to anyone who cares. The number of inter-religious marriages continues to climb along with the dilution of the level of faith in the laity and their children. If anything, our own Church has cheapened what marriage is by making it so disposable. We cannot blame anyone for that except ourselves and the hierarchy that pats us on the head and rubber stamps the anullment.
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written by Jack,CT, July 19, 2013
Father thanks for the cold had truth!
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written by Tony, July 19, 2013
Excuse me, people, but the single most determinative feature of a culture is its customs regarding marriage and the raising of children. To say that it doesn't matter what the state does in this regard is to say that it doesn't matter what kind of culture we live in -- that it doesn't matter that we have to raise our children in a sewer, which is what it's become. I'd say instead that if a state has no business with regard to the union of man and woman and the perpetuation of the people, then it should pack it in; it is good for nothing. Why do we have to concede this? NOBODY ever conceded such a thing; you can't find a jurist or political thinker from Plato to Teddy Roosevelt who ever believed that public morals were not a public concern, and indeed THE principal public concern. If you have a vicious people, what matter if they are rich? They won't be rich for long unless they mend their ways; and while they are rich, they are for all that just the more poisonous.
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written by Chris in Maryland, July 20, 2013
Mr. Beckwith's article shows the (lamentably) laughable "jurisprudence" of the leftist high priests in SCOTUS, etc.

And on the counterfeit Katholicism front, I'm looking forward to the next act by the Kennedy girls, explaining it all to "c-K" clan.
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written by Chris in Maryland, July 20, 2013
Romy1,

You are mistaken to think that what the state does on marriage IS OF LITTLE CONCERN TO YOU. The "Dept of [Re]Education is "queering the schools." Catholics and other people of traditional faith ought to understand the implications, no?
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written by Romy1, July 20, 2013
What Plato or TR thought about public morals matters little if it is not practiced by the populace. This was the same issue in Christ's day. More and more recently I have been reflecting on how he dealt with an essentially licentious secular society under Roman domination in which he lived.

You would have been disappointed in him, Tony. Our Lord says so little about the "culture" around him that it appears he is not interested in it. On the contrary, he cares very deeply but his approach to it is to start with the heart - not legislation.

Our society has the Judeo-Christian faiths at its core but someone coming here for the first time would hardly guess that. A society is a reflection of its people; laws are a reflection of what the people see as being good for all. Now it seems like we are back to Roman Empire days when sexual morals were not an issue.

Lamentations and handwringing don't work in evangelizing Christ's Word. We need to be beacons of hope to those who are rootless and miserable, looking for meaning to their lives. We can do that only from the heart, from the inside out - not the outside in. When we bring our neighbor to knowing the Ten Commandments and listening to Christ, we can truly make a difference in the society at large.

We need to be patient and have trust that our efforts will be pleasing to The Lord - no matter what the society around us is doing.
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written by Chris in Maryland, July 20, 2013
Romy1:

You are right that we are back in the Roman Empire.

You are right we should be beacons of hope...but lamentation has its place...as one man (Neuhaus?) quipped..."While it is better to light a candle than to curse the darkness...it is good to curse the darkness from time to time...just so those who promote the darkness remember we don't accept it."

And the society around us is not likely to leave us alone, they are probably better understood as surrounding us, with malice intent.
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written by Titus, July 22, 2013
Dr. Beckwith makes a strikingly uncharacteristic error in this piece.

Non-consummation of a marriage is not grounds for annulment. This is clearly the case, since the failure of the spouses to consummate their marriage (after exchanging vows) is not a fact in existence at the time of the exchange of vows affecting their validity. (An unknown or concealed inability to consummate may be grounds for annulment, but only if the inability existed at the time of the marriage.)

Rather, failure to consummate is a condition for dissolution of a marriage that actually took place pursuant to Canon 1142. That is, in effect, a divorce, a dispensing from the marriage vows, made only by the Roman Pontiff. But it is not a decree of nullity.
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written by Francis Beckwith, July 30, 2013
Titus, thanks for catching that. I'll change it in the text. What had inverted in my mind was the common law's understanding of annulment, which is not precisely the same as the Church's.

Shortly, the text will be changed.

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