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Jesuit Father Michael Kelly is a media professional with 40 years of experience in writing and reporting, editing and publishing, TV and broadcast radio production in Asia and Australia. For 10 years he led Asia’s leading Church media organization - UCA News. Currently, he is the English language publisher of the respected Jesuit periodical La Civilta Cattolica.
Jesuit Father Michael Kelly

World

Civil law has nothing to do with Catholic sacraments

The issue of how a secular state defines marriage has nothing to do with bishops or what is their area responsibility

Published: December 06, 2016 08:47 AM GMT

Updated: December 06, 2016 09:03 AM GMT

Civil law has nothing to do with Catholic sacraments

It continues to amaze me that Catholic bishops the world over get trapped in the same-sex marriage cul de sac time after time.

It has happened again in Taiwan and is likely to happen elsewhere in Asia. 

Whenever gay marriage or same-sex civil unions become a public topic, the bishops immediately become hostile. In some if not most instances. They contribute to the success of the very thing they oppose. In so many instances the world over, the opposition of bishops has been part of why same sex marriage has become law — in Latin America, the United States and Europe.

Civil unions — which, in many countries are virtually existent if not legally declared — actually morph in to "marriage." And Catholic opposition to formalizing what actually exists contributes to seeing that civil unions become "marriage!"

Why am I amazed if it happens so often? My answer is simple: the issue of how a secular state defines marriage has nothing to do with bishops or what is their area of focus and responsibility — the sacrament of marriage. The sacrament is a mystery that is regulated by the church's internal system — the Code of Canon Law. 

But it is something to which a man and a woman have access if they are Catholics or one is marrying a Catholic and the non-Catholic is happy to be married according to Catholic rites. And it may or may not have civil significance — depending on whether the state recognizes a Catholic marriage as legally binding.

In today's world marriage is a civil contract — a legally recognized bond between two people. In most parts of the world that means people of different genders. Yet that contract has only the most approximate relationship to what Catholics believe the sacrament is.

Organizing campaigns against gay unions makes about as much sense as organizing campaigns to repeal divorce laws. Who on earth could see the virtue in such a campaign? Divorce may well be frowned upon by church leaders and in at least one country in Asia — the Philippines — Catholic opposition has prevented the development of divorce laws.

Catholics need to be very careful about agitating to have our morality legislated for all to abide by. In some instances advocating that Catholic morality become the law of the land would be deeply unjust. For example, agitating to have Catholic morality on divorce and remarriage become law applying across society, to Catholics and non-Catholics — would rightly seen as a violation of the human rights of the wider population.

As far as the state is concerned in most contexts, the separation of powers means Catholics have no right to legislate Catholic morality — in this case, an opposition to divorce — and impose it on a wider, non-Catholic population. To impose our morality on others is a misunderstanding of the proper jurisdiction of the church and the proper jurisdiction of the state. 

What is the lesson for the future in a matter of social policy that will spread across Asia, beginning from Taiwan? These campaigns are wrong headed for one simple reason: civil law has nothing to do with Catholic sacraments.

Lifelong monogamous marriage is a Christian concept long ago adopted and then modified by secular states. It is now revocable by divorce in most jurisdictions. And it is by an accident of history in some jurisdictions that Catholic marriages and other religious marriages are also recognized civilly.

That happens in those countries influenced by British or U.S. law and its certifying Catholic priests — along with other Christian ministers, Muslim Imams and Jewish rabbis as well — as civil celebrants for the sake of simplicity.

But in many countries including where I live in Thailand and other Southeast Asian nations and, and in European countries with a history of anticlericalism, like France and even, perhaps most remarkably, Catholic Italy, no such ecclesiastical overlap with civil law exists.

In such jurisdictions, a couple seeking a Catholic sacramental celebration of their union must also get the civil marriage recognized by the state. And even in the U.K., Ireland and Australia, it is only since the 1860s that the laws recognizing marriages by Anglican clergy were extended to Catholic clergy.

Until that time, most marriages among Catholics in the British Empire were Common Law marriages (i.e. not civilly sanctioned but "de-facto" and recognized under civil law as an effective contract).

Today, we would say people in Common Law marriages were "living in sin!" And it was that way for centuries in Ireland where Catholics were repressed with particular effect until Catholic Emancipation arrived in 1829. 

With such a mixed history and so much contemporary variation, why do bishops the world over make the mistake of assuming they are the keepers of the treasures of marriage? Why do they get very upset when some things proposed that will apply to the majority of people in their societies and who in Asia mostly aren't Catholics? Redefining marriage in no way limits or restricts Catholics from acting according to Catholic teaching on marriage? What is the basis of episcopal displeasure?

The simple answer must be they seem to think we still live in Christendom where church morality should be law. That social and political paradigm ended for secular, pluralist democracies with the French Revolution over two centuries ago. And it never happened in countries in Asia.

Where to from here? Intelligent Catholics see that this is a civil rather religious matter. In some parts of the world, some bishops sought to have civil unions recognized as "the lesser of two evils" — the other being gay marriage. But in almost every instance, successful opposition to civil unions among same sex couples led to the more highly developed gay marriage provisions applying in many jurisdictions.

The present pope has been reported as saying that his efforts among the bishops of Argentina to have civil unions recognized in law was one of the few failures he had as president of their bishops' conference. He could see gay marriage coming and saw it as something that flew too close to the marriage sacrament for his liking, and believed that civil unions was a workable compromise. Not so the majority of the bishops in Argentina; the result: fully developed gay marriage became law. 

Bishops around the world should be very careful what they wish for.

Father Michael Kelly SJ is executive director of ucanews.com and based in Thailand.

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