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 [1], California’s Proposition 8, as a constitutional amendment that “bans same-sex ‘marriage.’ [2]” 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 [3]. 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 [4], 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 [5], 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,” [6] 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 [7], a marriage to be dissolved or declared invalid or null. (Hence, the term “annulment [8].”).
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 [9], 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 [10] and intentionally mischaracterized as a “war on women [11]” 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 [5].
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.