Lisa Fullam, Th.D. (Harvard Divinity School), has been Associate Professor of Moral Theology at the Jesuit School of Theology in Berkeley since August 2003.
Last April she wrote an academic treatise entitled "Civil Same-Sex Marriage: A Catholic Affirmation." It was published approvingly in Bondings 2.0, the blog of New Ways Ministry, whose mission is "Building Bridges Between the LGBT Community and the Catholic Church."
Professor Fullam's analysis is significant because it argues -- in my view, successfully -- that the Catholic moral tradition on civil law should prompt Catholics and church leaders to affirm civil same-sex marriage, even though what is normative for marriage within the Catholic church may not change.
Given that "there has been considerable development in authoritative sexual teaching over the centuries," Professor Fullam at one point questions if "sexual teaching as we have it now has reached perfection." And she is particularly adept at documenting how official teaching on the ends of marriage changed dramatically from what the bishops gathered at Vatican II said in Gaudium et Spes (1965) to what Pope John Paul II said in a series of weekly lectures from 1979 to 1984. Her analysis shows that John Paul II's position was a step backward in the development of church teaching on human sexuality and on marriage. Yet it has dominated all official teaching since.
But her primary interest is to show that the Catholic church has never insisted that civil law incorporate every position of official Catholic moral theology -- and that forcing civil law to reflect official Catholic teaching on same-sex marriage does real violence to human beings and to the common good which civil law exists to promote.
When I first read this strategy, I had reservations. My personal preference is to attack deficient theology head on and try to show how it can be corrected. But the genius of Fullam's approach is that it uses very traditional Catholic positions on civil law to show why it is counter-productive -- and destructive -- to insist on enshrining the official Catholic teaching on same-sex marriage there. Outlawing same-sex marriage within Catholicism has one set of consequences. But trying to outlaw it in civil society as a whole escalates those consequences in a manner that imperils individuals and the common good.
It would not surprise me if Professor Fullam was influenced to adopt this strategy by her contacts with Rev. Charles E. Curran, with whom she co-edited the two most recent books in the Paulist Press "Readings in Moral Theology" series (volume #s 16 and 17). It is, at any rate, the practical kind of tactic Curran would pursue when he saw an opening: we may not be able to change what is being taught within the church, but when those teachings have negative impacts on human welfare and human society, we are responsible for reversing those impacts.
Fullam begins with the traditional Catholic concept of the natural law, "best understood as the use of human reason in line with first principles, aimed at the common good... To see how the natural law guides us in a given situation is to think deeply about how the question before us is best resolved for the flourishing of ourselves and our societies."
Civil law, she says, is a narrower category. It cannot contradict the natural law, but "civil law does not prohibit all vices or prescribe all acts of virtue. The end of civil law is to uphold the common good, either directly or indirectly. She quotes Thomas Aquinas in the Summa Theologiae:
"[H]uman laws do not forbid all vices...but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like."
Pausing her analysis of civil law, Fullam then addresses why same-sex marriage is disallowed in official Catholic teaching. She traces the current specific prohibition first to the Theology of the Body articulated by Pope John Paul II in the early 1980s and and second to its application to same-sex marriage 19 years later by the Congregation for the Doctrine of the Faith.
Fullam argues that the prohibition would not have been so absolute had official teaching stuck with the ends of marriage as described in 1965 by the Vatican II document Gaudium et Spes. That document "eliminated the long-held idea that procreation was seen as the primary end of marriage while the union of the partners was deemed secondary or instrumental to that primary end." Significantly, the council refused to make either end of marriage primary.
It is important to note that the bishops had prior official teaching on which to base their stance. In his encyclical Casti Cannubii in 1930, Pope Pius XI had written: "This mutual molding of [spouses,] this determined effort to perfect each other, can in a very real sense, as the Roman Catechism teaches, be said to be the chief reason and purpose of matrimony, provided matrimony be looked at not in the restricted sense as instituted for the proper conception and education of the child, but more widely as the blending of life as a whole and the mutual interchange and sharing thereof."
Had Casti Cannubii and Gaudium et Spes not been amended by later official pronouncements, clearly there was an opening to argue that the unitive end of marriage could be open even to partners of the same sex.
But Pope John Paul II took a gigantic step backward and essentially obliterated the unitive end of marriage.
In his Theology of the Body lectures (1979-1984), the pope subsumed the unitive end of marriage into the procreative end, by insisting (as Fullam summarizes his thought) that "a sexual partner MUST be reproductively complementary, or we misunderstand the meaning of sexuality itself. Because of this, there can be no truly human union except in heterosexual pairs." Thus for John Paul II, it is decreed biologically and ontologically that only heterosexuals are capable of participating in the unitive end of marriage (so re-defined).
In 2003, as demands for same-sex marriage became more widespread in Europe and the Americas, the Congregation for the Doctrine of the Faith weighed in with "Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons."
As Fullam summarizes it: "This document follows John Paul's schema, conflating the two criteria of reproductive capacity and complementarity into reproductive capacity, asserting that 'genuine' complementarity is impossible for same-sex couples."
Then -- and this is what gives Fullam the opening to pursue her strategy -- the CDF applied this teaching to civil law. The argument: (1) reproduction is essential to marriage, same-sex unions cannot contribute to procreation "in a proper way;" (2) same-sex pairs lack the intrinsic masculine and feminine traits that characterize a real marriage; (3) same-sex couples cannot produce or rear children as nature intends, in a union with masculine and feminine traits; (4) homosexual unions merit no institutional recognition because they cannot exercise reproductive capacity for the common good.
But is it productive, or even valid, to impose John Paul's schema on civil law?
Fullam counters with a discussion of same-sex marriage "in light of the common good... Even a cursory glance at the history of marriage reveals that the institution has a broad range of social purposes and effects." Among them she notes "the orderly inheritance of property, the establishment of stable and legally-recognized partnerships for raising children, the merging of clans, the forging of dynasties, and St. Paul's acknowledgement that 'it is better to marry than to burn' with sexual desire."
Other purposes of marriage include public health, financial stability, a secure environment for dependent children, a partnership of life and love, and a societal marker of adult intimacy, responsibility and commitment.
She also distinguishes whether reproductive capacity is a good or a necessary good. For example, even the church does not require that "all marriages be potentially reproductive. For example, post-menopausal women may marry in the Church."
Moreover, "Civil marriage is available to the fertile, the infertile, the post-fertile, the sexually uninterested and the impotent alike."
And so Fullam asks, "Why would Catholics deny to same-sex couples the goods of marriage we recognize in infertile marriages within our own flock?" Or again, "Why would we deny to same-sex couples the advantage we implicitly affirm by tolerating heterosexual civil marriages that would not pass magisterial muster inside the Church?"
Consideration must also be given to the value of adoptive parents who have not been able to produce children of their own: "Those who raise children not biologically their own are reaching beyond a reproductive imperative to a spiritually-resonant act of profound devotion. They make a great contribution to the common good. To base the social value of marriage on the potential for biological procreation would be to ignore the generosity of adoptive parents and to render their families somehow unnatural or second-class."
Preventing same-sex couples from adopting children demeans the single-sex religious communities who have run orphanages throughout church history, as well as the children of people who are widowed or abandoned by their spouses.
Denying legal civil status to same-sex marriages makes the children raised by them "vulnerable to potential instability," putting the kids "at unnecessary risk."
Such outcomes suggest that "the idea that ontological complementarity is revealed only in heterogenital relationships seems to argue from gender stereotypes." In the words of theologians Todd A. Salzman and Michael G. Lawler, "the magisterium's account...entails an incomplete, if not distorted, vision of gender and neglects an adequate consideration of the experiential and relational dimensions of human sexuality."
Attempting to graft this understanding onto civil law also seems to violate an important principle upheld by Pope Paul VI in his encyclical Populorum Progressio: "government is to see to it that equality of citizens before the law, which is itself an element of the common good, is never violated, whether openly or covertly, for religious reasons."
Fullam argues: "John Paul's Theology of the Body is a fundamentally religious doctrine, and so to impose its reading of human nature on others in society would seem to violate Paul VI's insistence on equal treatment of all before the law."
She adds that Populorum Progressio speaks of marriage as an inalienable right, that, when violated, violates human dignity: "...denying marriage to people who cannot form deep affective, personal and sexual ties with people of the opposite sex would seem, according to Pope Paul VI, to violate their human dignity.
Doing this, she says, "denies their equal human dignity in life and love, making them outcast from the social institution that defines maturity and celebrates intimacy. It makes them second-class citizens, a situation that should be intolerable to any person of good will."
On the contrary, same-sex couples actually want to reaffirm the importance of marriage, in a world where nearly half of all heterosexual marriages fail. Faced with this widespread trivialization of marriage, the church needs all the allies it can find who treasure the institution.
And finally there is the matter of reducing violence directed against gay people simply because of who they are. "Advocating for the civil recognition of same-sex marriages, even if the Church rejects such couples at its own altars, reaffirms the Church's demand that all people in our society be treated with equal respect... But as it is, the denial of same-sex civil marriage gives the appearance of unreasonable bias, which is too often translated into personal abuse and toleration of systematic harassment, which the Church rejects."
Fullam's analysis gives church leaders a way out of the morass they create when they try to impose John Paul II's Theology of the Body on civil law. Would that the Synod of Bishops would realize that affirming same-sex civil marriage gives society a path forward on this vexing controversy -- a path that would free up civil law to serve the common good.
Yes, following this path could ultimately undermine the official teaching on human sexuality -- by enabling same-sex couples to show in practice that John Paul II's Theology of the Body only works within limits, and that his specific conclusions exceeded them. But if John Paul was right, church leaders have nothing to fear.
If, on the other hand, John Paul II was wrong, shouldn't his magisterial successors get on with the business of correcting him?