Family, Marriage and "De Facto" Unions

II - The Family based on marriage and de facto unions

Family, life and de facto unions

(9) It is useful to understand the substantial differences between marriage and de facto unions. This is the root of the difference between the family originating in marriage, and the community that originates in a de facto union. The family community comes from the covenant of the spouses' union. The marriage that comes from this covenant of conjugal love is not created by any public authority: it is a natural and original institution that is prior to it. In de facto unions, on the other hand, reciprocal affection is put in common but, at the same time, the marriage bond, with its original public dimension that gives the foundation to the family, is absent. The family and life form a real unit which must be protected by society because this is the living nucleus of the succession (procreation and education) of human generations.

In today's open and democratic societies, the State and the public authorities must not institutionalize de facto unions, thereby giving them a status similar to marriage and the family, nor much less make them equivalent to the family based on marriage. This would be an arbitrary use of power which does not contribute to the common good because the original nature of marriage and the family proceeds and exceeds, in an absolute and radical way, the sovereign power of the State. A serenely impartial perspective free from any arbitrary or demagogical positions invites us to reflect very seriously in the different political communities on the essential differences between the vital and necessary contribution to the common good of the family based on marriage, and the other reality that exists in merely emotional forms of cohabitation. It does not seem reasonable to hold that the vital functions of family communities, whose nucleus is the stable and monogamous institution of marriage, can be carried out in a large-scale, stable and permanent way by merely emotional forms of cohabitation. The family based on marriage must be carefully protected and promoted as an essential factor in social existence, stability and peace, in a broad future vision of the society's common interest.

(10) Equality before the law must respect the principle of justice which means treating equals equally, and what is different differently: i.e., to give each one his due in justice. This principle of justice would be violated if de facto unions were given a juridical treatment similar or equivalent to the family based on marriage. If the family based on marriage and de facto unions are neither similar nor equivalent in their duties, functions and services in society, then they cannot be similar or equivalent in their juridical status.

The pretext used for exerting pressure to recognize de facto unions (i.e., their "non-discrimination") implies a real discrimination against the family based on marriage because it would be considered on a level similar to any other form of cohabitation, regardless of whether there is a commitment to reciprocal fidelity and the begetting and up-bringing of children or not. The orientation of some political communities today of discriminating against marriage by attributing an institutional status to de facto unions that is similar, or even equivalent to marriage and the family, is a serious sign of the contemporary breakdown in the social moral conscience, of "weak thought" with regard to the common good, when it is not a real and properideological imposition exerted by influential pressure groups.

(11) Along the same line of principles, it is good to keep in mind the distinction between public interest and private interest. Regarding the former, society and the public authorities must protect and encourage it; as to the latter, the State must only guarantee freedom. Whenever a matter is of public interest, public law intervenes, and what , on the contrary, corresponds to private interests must be referred to the private sphere. Marriage and the family are of public interest; they are the fundamental nucleus of society and the State and should be recognized and protected as such. Two or more persons may decide to live together, with or without a sexual dimension but this cohabitation is not for that reason of public interest. The public authorities can not get involved in this private choice. De facto unions are the result of private behavior and should remain on the private level. Their public recognition or equivalency to marriage, and the resulting elevation of a private interest to a public interest, damages the family based on marriage. In marriage a man and a woman constitute a community of the wholeof life which is ordered by its very nature to the good of the spouses and the generation and up-bringing of offspring. In marriage, different from de facto unions, commitments and responsibilities are taken on publicly and formally that are relevant for society and exigibile in the juridical context.

De facto unions and the conjugal covenant

(12) The evaluation of de facto unions also includes a subjective dimension: they are formed by concrete persons with their own vision of life, their own intentions, in brief, their "history". We should consider the existential reality of individual freedom of choice and the dignity of persons which may be in error. However, in a de facto union, the presumption to have public recognition does not only affect the individual area of freedom, and so it is necessary to take up this problem from the viewpoint of social ethics: the human individual is a person and therefore social; a human being is no less social than rational.[9]

Persons can meet and refer to shared values and needs regarding the common good in dialogue. The universal reference point, the criterion in this area, can be none other than the truth about the human good which is objective, transcendent and equal for all. To attain this truth and remain in it is a condition for freedom and personal maturity, and the real objective of an orderly and fruitful social coexistence. Exclusive attention to the subject, to the individual, his intentions and choices, without referring to the social and objective dimension, oriented to the common good, is the result of an arbitrary and unacceptable individualism that is blind to objective values, against the dignity of the person, and harmful to the social order.  "Therefore, it is necessary to promote a reflection that will help not only believers but all men of good will to rediscover the value of marriage and the family. In the Catechism of the Catholic Church, we can read: 'The family is the original cell of social life. It is the natural society in which husband and wife are called to give themselves in love and in the gift of life. Authority, stability and a life of relationships within the family constitute the foundations for freedom, security and fraternity within society.[10] If reason listens to the moral law written in the human heart, it can arrive at the rediscovery of the family. As a community based on and enlivened by love,[11] the family derives its strength from the definitive covenant of love whereby a man and a woman give themselves to one another mutually and together become God's cooperators in the gift of life".[12]

The Second Vatican Council points out that so-called free love ("amore sic dicto libero")[13] constitutes a factor that breaks down and destroys marriage because it lacks the constitutive element of conjugal love which is based on the personal and irrevocable consent whereby the spouses give and receive one another mutually, giving rise to a juridical bond and a unit sealed by a public dimension of justice. What the Council calls "free" love, which opposes true conjugal love, was then and is now the seed that produces de facto unions. Later, with the speed of today's socio-cultural changes, it has also given rise to the current projects to confer public status on de facto unions.

(13) Like every other human problem, the problem of de facto unions must also be taken up from a rational perspective, more precisely, from "right reason".[14] With this term from classical ethics, it is stressed that the interpretation of reality and the judgment of reason must be objective, and free from conditioning, such as disorderly affectivity or weakness in considering sorrowful situations that inclines toward a superficial kind of compassion, eventual ideological prejudices, social or cultural pressures, conditioning by lobbies or political parties. Of course, Christians have a vision of marriage and the family whose anthropological and theological foundation is rooted harmoniously in the truth that comes from the Word of God, Tradition, and the Magisterium of the Church.[15] But the light of the faith itself teaches that the reality of the sacrament of marriage is not something subsequent or extrinsic, or just an external "sacramental" addition to the spouses' love; it is the natural reality of conjugal love that has been assumed by Christ as a sign and means of salvation in the order of the New Law. Consequently, the problem of de facto unions can and must be faced from the viewpoint of right reason. It is not a question primarily of Christian faith but of rationality. The tendency to oppose denominational "Catholic thought" on this matter to "lay thought" is erroneous.[16]

III - De facto unions in the whole of society

Social and political dimension of the problem of equivalency

(14) Some radical cultural influences (such as the ideology of "gender", which we mentioned earlier) result in damage to the family institution. "Still more distressing is the direct attack on the family institution that is developing both on the cultural as well as on the political, legislative and administrative levels...The tendency is clear to make the family equivalent to other very different forms of cohabitation, apart from fundamental considerations of an ethicaland anthropological order".[17] For this reason, the definition of the family's identity is a priority. The value of and the need for stability in the marriage relationship between a man and a woman are pertinent to this identity, and this stability is expressed and confirmed in a perspective of procreation and up-bringing of children which benefits the entire social fabric. Such marital and family stability does not only depend on the good will of concrete persons; it takes on an institutional character of public recognition by the State of the choice of conjugal life. The recognition, protection and promotion of this stability contributes to the general interest, especially of the weakest, i.e., the children.

(15) Another risk in the social consideration of the problem that concerns us is its trivialization. Some affirm that recognition and equivalency of de facto unions should not cause excessive concern because the number of these cases is relatively small. If this were the case, however, the opposite should be concluded because a quantitative consideration of the problem ought to lead to doubting the advisability of raising the problem of de facto unions to one of primary importance, especially where adequate attention is barely given to the grave problem (both present and future) of protecting marriage and the family through adequate family policies that really affect social life. The undifferentiated exaltation of individuals' freedom of choice, with no reference to a socially relevant value order, obeys a completely individualistic and private approach to marriage and the family that is blind to its objective social dimension. It must be kept in mind that procreation is the "genetic" principle of society, and that the children's upbringing is the first place for the transmission and cultivation of the social fabric as well as the essential nucleus of its structural configuration.

Recognition and equivalence of de facto unions discriminates against marriage

(16) Through public recognition of de facto unions, an asymmetrical juridical framework is established. Whereas society would take on obligations towards the partners in a de facto union, they in turn would not take on the essential obligations to society that are proper to marriage. Making them equivalent aggravates this situation because it privileges de facto unions with respect to marriages by exempting the former from fulfilling essential duties for society. In this way, a paradoxical disassociation is accepted that is ultimately detrimental to the institution of the family. With regard to the recent legislative attempts to make the family and de facto unions equivalent, including homosexual unions (it is good to keep in mind that their juridical recognition is the first step toward their equivalency), members of parliament should be reminded about their grave responsibility to oppose them, for "lawmakers, and in particular Catholic members of parliaments, should not favor this type of legislation with their vote because it is contrary to the common good and the truth about man and thus truly unjust".[18] These legal initiatives present all the characteristics of non-conformity to the natural law which makes them incompatible with the dignity of the law. As Saint Augustine says, "Non videtur esse lex, quae iusta non fuerit".[19] An ultimate foundation of the juridical system must be recognized.[20] This does not mean presuming to impose a given behavior "model" on the whole of society, but rather the social need for recognition, by the legal system, of the indispensable contribution of the family based on marriage to the common good. Wherever the family is in crisis, the society falters.

(17) The family has a right to be protected and promoted by society, as many Constitutions in force in States around the whole world recognize.[21] This is a recognition in justice of the essential function which the family based on marriage represents for society. A duty of society,which is not only moral but civil too, corresponds to this original right of the family. The right of the family based on marriage to be protected and promoted by society and the State must be recognized by laws. This is a question that affects the common good. With clear argumentation, Saint Thomas Aquinas rejects the idea that moral law and civil law can be in opposition: they are different but not in opposition; both are distinguished from one another, but they are not disassociated from one another; between them there is neither unanimity nor contradiction.[22] As John Paul II stated: "It is important that all who are called to guide the destiny of nations recognize and strengthen the institution of marriage; in fact, marriage has a particular juridical status that recognizes the rights and duties of the spouses to one another and to their children, and families play an essential role in society, whose permanence they guarantee. The family fosters the socialization of the young and helps curb the phenomena of violence by transmitting values and the experience of brotherhood and solidarity which it allows to become a reality each day. In the search for justified solutions in modern society, the family cannot be put on the same level as mere associations or unions, and the latter cannot enjoy the particular rights exclusively connected with the protection of the conjugal commitment and the family based on marriage, a stable community of life and love, the result of the total and faithful gift of the spouses, open to life".[23]

(18) Those who are involved in politics ought to be aware of the seriousness of this problem. In the West, current political activity often tends to privilege pragmatic aspects in general and the so-called "policy of balances" on very concrete matters, without entering into a discussion of principles that may endanger difficult and precarious compromises between parties, alliances and coalitions. But shouldn't these balances be based on clear principles, fidelity to essential values, and clarity in the fundamental postulates? " If there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values turns easily into open or thinly disguised totalitarianism".[24] The legislative function corresponds to political responsibility; in this sense, it is up to politicians to be vigilant (not only on the level of principles but also of applications) to avoid a breakdown, with serious present and future consequences, of the relationship between moral and civil law, and the defense of the educational and cultural value of the juridical system.[25] The most effective way to watch over the public interest does not consist in demagogic concessions to pressure groups that promote de facto unions, but rather the energetic and systematic promotion of organic family policies, which consider the family based on marriage as the center and motor of social policy, and which cover the extensive area of the rights of the family.[26] The Holy See has dedicated its attention to this aspect in the Charter of the Rights of the Family,[27] going beyond a merely welfare conception of the State.

Anthropological foundations of the difference between marriage and "de facto" unions

(19) Marriage is based on some well-defined anthropological foundations which distinguish it from other kinds of union and which beyond the realm of concrete action and what is "factual" root it in the very essence of the person of the woman or the man.

These presuppositions include: equality between men and women, for both are persons equally[28] (although in different ways); the complementary character of the sexes[29] from which comes their natural inclination toward the generation of children; the possibility to love one another precisely because they are sexually different and complementary in such a way that "this love is expressed and perfected uniquely through the acts proper to marriage";[30] the possibility- of freedom- to set up a stable and definitive relationship, i.e., one that is due in justice;[31] and, lastly, the social dimension of the conjugal and family condition which constitutes the first context of education and openness to society through family relations (which contribute to shaping the identity of the human person).[32]

(20) If the possibility is accepted of a specific love between a man and a woman, it is obvious that this love is inclined (in itself) toward intimacy, a certain exclusivity, the generation of offspring, and a joint life project. When this is what is wanted and in such a way that the other is given the ability to be entitled to this, then real self-giving and acceptance between the man and woman comes about which constitutes the conjugal communion. "Amor coniugalis, therefore, is not only or primarily a feeling, but essentially a commitment to the other person, a commitment made through a precise act of the will. It is this commitment which gives amor the quality of coniugalis. Once a commitment has been made and accepted through consent, love becomes conjugal and never loses this character".[33] This, in the Western Christian historical tradition, is called marriage.

(21) Marriage is therefore a stable, joint project that comes from the free and total self-giving of fruitful conjugal love as something due in justice. Since an original social institution is founded (and which gives origin to society), the dimension of justice is inherent in conjugality itself. "They are free to celebrate marriage, after having chosen each other with equal freedom, but as soon as they perform this act, they establish a personal state in which love becomes something that is owed, entailing effects of a juridical nature as well".[34] Other ways of living sexuality can existúeven against natural tendencies-, other forms of living together, other friendly relationships -whether based or not on the sexual difference-, and other ways of bringing children into the world. But what is specific about the family based on marriage is that it is the only institution that incorporates and unites all the elements mentioned at the same time and in an original way.

(22) Consequently, it seems necessary to stress the gravity and the irreplaceable character of some anthropological principles regarding the man-woman relationship, which are fundamental for human cohabitation, and all the more so for safeguarding the dignity of all persons. The central nucleus and the essential element of these principles is the conjugal love between two persons who have equal dignity but are different and complementary in their sexuality. It is the essence of marriage, as a natural and human reality, which is at stake, and it is the good of all society that is up for discussion. "As everyone knows, not only are the properties and ends of marriage called into question today, but even the value and the very usefulness of the institution. While avoiding undue generalizations, we cannot ignore, in this regard, the growing phenomenon of mere de facto unions (cf. Familiaris Consortio, 81), and the unrelenting public opinion campaigns to gain the dignity of marriage even for unions between persons of the same sex".[35]

This is a basic principle: in order to be real and free conjugal love, love must be transformed into one that is due in justice through the free act of marital consent. The Pope concluded in this way: "In the light of these principles, we can identify and understand the essential difference between a mere de facto union - even though it claims to be based on love and marriage, in which love is expressed in a commitment that is not only moral but rigorously juridical. The bond reciprocally assumed has a reinforcing effect in turn on the love from which it is derived, fostering its permanence to the advantage of the partners, the children and society itself".[36]

Marriage, in fact, the foundation of the family, is not a "way of living sexuality as a couple". If it were only this, it would be just one of many possible ways.[37] Nor is it simply the expression of a sentimental love between two persons: this characteristic is usually present in every loving friendship. Marriage is more than that: it is a union between a man and a woman, precisely as such, and in the totality of their male and female essence. This union can only be established through an act of the partners' free will, but its specific content is determined by the structure of the human being, the woman and the man: mutual self-giving and the transmission of life. Such self-giving, in the whole complementary dimension of a woman and a man, together with the willingness to owe oneself in justice to the other, is called conjugality, and the partners in this way become spouses: "This conjugal communion sinks its roots in the natural complementarity that exists between man and woman, and is nurtured through the personal willingness of the spouses to share their entire life-project, what they have and what they are: for this reason such communion is the fruit and the sign of a profoundly human need".[38]

Making homosexual relations equivalent to marriage is much more grave

(23) The truth about conjugal love also makes it possible to understand the serious social consequences of the institutionalization of homosexual relations: "We can also see how incongruous is the demand to grant 'marital' status to unions between persons of the same sex. It is opposed, first of all, by the objective impossibility of making the partnership fruitful through the transmission of life according to the plan inscribed by God in the very structure of the human being. Another obstacle is the absence of the conditions for that interpersonal complementarity between male and female willed by the Creator at both the physical-biological and the eminently psychological levels".[39] Marriage cannot be reduced to a condition similar to that of a homosexual relationship: this is contrary to common sense.[40] In the case of homosexual relations, which demand to be considered de facto unions, the moral and juridical consequences take on special relevance.[41] "Lastly, 'de facto unions' between homosexuals are a deplorable distortion of what should be a communion of love and life between a man and a woman in a reciprocal gift open to life".[42] However, the presumption to make these unions equivalent to "legal marriage", as some recent initiatives attempt to do, is even more serious.[43] Furthermore, the attempts to legalize the adoption of children by homosexual couples adds an element of great danger to all the previous ones.[44] "The bond between two men or two women cannot constitute a real family and much less can the right be attributed to that union to adopt children without a family".[45] To recall the social transcendence of the truth about conjugal love and consequently the grave error of recognizing or even making homosexual relations equivalent to marriage does not presume to discriminate against these persons in any way. It is the common good of society which requires the laws to recognize, favor and protect the marital union as the basis of the family which would be damaged in this way.[46]

IV - Justice and the Family as a Social Good

The family, a social good to be protected in justice

(24) Marriage and the family are a social good of the first order: "The family always expresses a new dimension of good for mankind, and it thus creates a new responsibility. We are speaking of the responsibility for that particular common good which includes the good of the person, of every member of the family community. While certainly a 'difficult' good ('bonum arduum'), it is also an attractive one".[47] It is certain that not all spouses nor all families really develop all the personal and social good possible.[48] As a result, society must do its part by making the means as accessible as possible that will facilitate the development of its values: "Every effort should be made so that the family will be recognized as the primordial and, in a certain sense 'sovereign' society! The 'sovereignty' of the family is essential for the good of society".[49]

Objective social values to be fostered

(25) In this sense, marriage and the family constitute a good for society because they protect a precious good for the spouses themselves, for "the family, a natural society, exists prior to the State or any other community, and possesses inherent rights which are inalienable".[50] On the one hand, the social dimension of being married persons postulates a principle of juridical security. Since becoming a wife or a husband pertains to the area of being and not just of acting, the dignity of this new sign of personal identity has a right to public recognition which society should give, as the good it constitutes deserves.[51] Obviously the right order of society is aided when marriage and the family are formed as they truly are: a stable reality.[52] Moreover, the complete self-giving as a man and a woman in their potential fatherhood and motherhood, with the resulting union- that is also exclusive and permanent between the parents and the children, expresses unconditional trust that is expressed in strength and enrichment for all.[53]

(26) On the one hand, the dignity of human persons requires their origin to be from parents joined in marriage, from the necessary intimate, integral, mutual and permanent union that comes from being spouses. This then is a good for the children. This is the only origin that adequately safeguards the principle of the children's identity not only from the genetic or biological viewpoint, but also from the biographical and historical perspective.[54] On the other hand, marriage itself constitutes the most human and humanizing context for welcoming children, the context which most readily provides emotional security and guarantees greater unity and continuity in the process of social integration and education. "The union between a mother and a conceived child and the irreplaceable function of the father require the child to be welcomed into a family which will guarantee it if possible the presence of both parents. The specific contribution offered by them to the family, and through it, to the society, is worthy of great consideration".[55] Furthermore, the continued sequence between conjugality, motherhood/fatherhood and kinship (filiation, fraternity, etc.) avoids many serious problems for society which come up precisely when the chain of the different elements is broken in such a way that each of them acts independently from the others.[56]

(27) Also for the other members of the family, the marriage union as a social reality, is a good. In fact, in the family that grows from the conjugal bond, not only are the new generations welcomed and taught to cooperate in what is proper to them, but also the previous generations (the grandparents) have the opportunity to contribute to the common enrichment: to contribute their own experiences, to feel valid once more in their service, to confirm their full dignity as persons who are valued and loved for themselves and accepted in an inter-generational dialogue that is often fruitful. In fact, "the family is the place where different generations come together and help one another to grow in human wisdom and to harmonize the rights of individuals with other demands of social life".[57] At the same time, elderly persons can look to the future with confidence and certainty knowing they are surrounded and taken care of by those whom they have taken care of for many years. Moreover, it is known that when the family really lives as such, the quality of the attention to the elderly cannot be substitutedat least for certain aspectsby the care provided by outside institutions, even though they are conscientious and have advanced technological means.[58]

(28) Other goods for the whole of society, which are derived from the conjugal communion as the essence of marriage and the origin of the family, can also be considered, such as: the principle of a citizen's identification; the principle of the unitary character of kinshipwhich constitutes the origin of relations in society as well as their stability; the principle of the transmission of cultural goods and values; the principle of subsidiarity, because the disappearance of the family would oblige the State to substitute it in tasks which are its own by nature; the principle of economy also in legal matters, because when the family breaks down, the State must increase its interventions in order to solve problems directly which ought to remain and be solved in the private sphere, with great traumatic effects and high economic costs as well. To summarize, in addition to what has been mentioned, it must be remembered that "the family constitutes, much more than a mere juridical, social and economic unit, a community of love and solidarity, which is uniquely suited to teach and transmit cultural, ethical, social, spiritual and religious values, essential for the development and well-being of its own members and of society".[59] Moreover, far from contributing to a greater sphere of freedom, the breakdown of the family would leave the individual more and more vulnerable and defenseless before the power of the State and impoverish him by requiring a progressive juridical complexity.

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