The Remarks of Pope Francis on the Legal Recognition of Homosexual Unions

In the documentary “Francesco,” which premiered on October 21, 2020, Pope Francis is recorded in an interview as arguing for the legal recognition of homosexual civil unions:

“Homosexuals have a right to be a part of the family. They’re children of God and have a right to a family. Nobody should be thrown out or be made miserable because of it.”

“What we have to create is a civil union law. That way they are legally covered. I stood up for that.”

The following day there were news reports that these remarks were originally made in an interview recorded on May 19, 2019, and then edited out by the Vatican. The director of the documentary denied that report and claimed that the comments were made directly to him. But the footage is clearly from 2019, and the remarks are taken out of context and pieced together in an artificial order for greater effect to suit a personal agenda.

In 2010, before being elected to the papal office, Cardinal Jorge Bergoglio did in fact propose a limited form of legal recognition of homosexual civil unions as an alternative to the political movement in Argentina to approve homosexual marriage and conduct, to which he firmly and publicly objected. Legal recognition of homosexual couples may be made in two essentially different forms. One form simply grants legal rights to any given couple, regardless of sex, to make a contract in which one party designates the other party as his or her “significant other,” allowing them to share their earnings, to file their taxes jointly, to have access to each other’s personal records, to be covered under each other’s insurance, to inherit a preferential portion of the other’s estate, and the like. The other form of recognition is more radical and specifically permits homosexual couples to make a contract which is legally equivalent to marriage and grants legal rights which are proper only to marriage, such as the right for couples to practice sexual intimacy legally as spouses, or the right to adopt children. The latter form of legal recognition treats homosexual civil unions as equivalent to marriage and is clearly immoral and harmful to society, and Cardinal Bergoglio always opposed it.

Cardinal Bergoglio in Argentina explicitly and publicly taught that homosexual practices are intrinsically evil, and that as a matter of moral necessity homosexual friendships and all other friendships outside of true heterosexual marriage must remain chaste. He recognized that the Catholic Church’s position that homosexual conduct is intrinsically evil is not revisable or changeable. Any proposal or endorsement of a limited legal recognition of homosexual civil unions can be controversial for Catholics because it appears to contradict the authentic teaching of the Church. The Church has consistently opposed all proposals of nations to grant legal recognition to homosexual civil unions, but without making any distinction between the two forms of legal recognition. The bishops of Argentina, invoking the authentic teaching of the Church and John Paul II, understandably rejected Cardinal Bergoglio’s suggestion in 2010 to endorse the more limited form of legal recognition in the attempt to avoid the legal approval of same-sex marriage.

In 2003 the Congregation for the Doctrine of the Faith (CDF) under Cardinal Joseph Ratzinger, and with the express approval of Pope St. John Paul II, had published the document “Considerations regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons.” The language used against all such proposals is very strong. The bishops of Argentina carefully considered the papal guidance given this document. It is important to be aware of what the document actually says, so we should take time to review some of its relevant guidelines:

“[A]ccording to the teaching of the Church, men and women with homosexual tendencies ‘must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided.’ They are called, like other Christians, to live the virtue of chastity. The homosexual inclination is, however, ‘objectively disordered,’ and homosexual practices are ‘sins gravely contrary to chastity’.” (4)

“[R]espect for homosexual persons cannot lead in any way to approval of homosexual behavior or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behavior, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.” (11)

“As experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children who would be placed in the care of such persons. They would be deprived of the experience of either fatherhood or motherhood. Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development. This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case.” (7)

“Not even in a remote analogous sense do homosexual unions fulfill the purpose for which marriage and family deserve specific categorical recognition. On the contrary, there are good reasons for holding that such unions are harmful to the proper development of human society, especially if their impact on society were to increase.” (4)

“When legislation in favor of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favor of a law so harmful to the common good is gravely immoral.” (10)

“When legislation in favor of the recognition of homosexual unions is already in force, the Catholic politician must oppose it in the ways that are possible for him and make his opposition known; it is his duty to witness to the truth. If it is not possible to repeal such a law completely, the Catholic politician, recalling the indications contained in the Encyclical Letter Evangelium vitae, ‘could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality,’ on condition that his ‘absolute personal opposition’ to such laws was clear and well known and that the danger of scandal was avoided. This does not mean that a more restrictive law in this area could be considered just or even acceptable; rather, it is a question of the legitimate and dutiful attempt to obtain at least the partial repeal of an unjust law when its total abrogation is not possible at the moment.” (10)

“Those who would move from tolerance to the legitimization of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalization of evil is something far different from the toleration of evil. In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.” (5)¹

It is apparent from this document that St. John Paul II in his authentic papal Magisterium (his authority to teach and interpret the deposit of divine revelation as a successor of St Peter) taught that the legal recognition of homosexual unions is not morally justifiable as material cooperation in evil. And he reaffirmed that we have a moral duty to practice conscientious objection with regard to all unjust laws. Whenever a CDF document carries the express approval of the pope, as this one does, it participates in the ordinary Magisterium of the pope and is therefore authentic teaching.

It is also apparent from this document that St. John Paul II believed that whenever material cooperation in evil cannot be justified by the principle of double-effect and a reasonable estimation of the proportion of the good intended to the evil tolerated, the act of cooperation is morally wrong and must not be committed. Unjustified material cooperation in evil, like formal cooperation in evil, must always be opposed on the grounds that it is morally evil, not merely imprudent. A morally unjustified act of cooperation in evil is objectively evil in virtue of its circumstances, even though its species and motive may be good. This is a basic principle of natural moral law. We therefore ought not to excuse such cooperation as merely imprudent. If we deliberate carefully but make an honest mistake in thinking an act is permissible when it is actually evil, and we go ahead and do it, then subjectively we are not culpable since no evil was intended, but objectively we have nevertheless committed an evil act.

In the 2003 CDF document it appears that St John Paul II believed and intended to teach that no legal recognition of homosexual unions is ever morally justified, and therefore that no nation state is ever morally permitted to grant any legal recognition to homosexual unions whatsoever. Discerning the specific intention of St John Paul II in the document, however, is complicated by its puzzling terminology. It is clear that the practice of same-sex marriage is intrinsically evil. The legal rights proper to marriage (e.g. sexual intimacy, adoption of children) must be granted only to heterosexual couples. The principle of double-effect and the proportion of the intended good to the tolerated evil cannot morally justify the kind of legal recognition of same-sex marriage as material cooperation in evil. Such unjustified cooperation in evil is morally wrong.

But did St John Paul II intend to require conscientious objection not just to same-sex marriage but also to allowing same-sex couples to enter into non-marital contracts in which one citizen designates another citizen as his or her “significant other”? Canonists who are faithful to the Magisterium think not. Dr. Edward Peters, for example, has cogently argued that the terminology in the 2003 CDF document is problematic.² Indeed, if a state has civil laws which permit non-marital contracts to designate a “significant other,” then it would seem to be a form of unjust discrimination to prohibit same-sex couples from entering into such non-marital contracts. Every citizen has the moral right to form legal contracts with other people for various purposes other than sexual intimacy and the procreation and nurturing of children. There are moral grounds to restrict marital contracts to adult heterosexual couples, but it was not the intent of the 2003 CDF document to require conscientious objection to same-sex couples forming any contracts whatsoever. The intent was only to require conscientious objection to same-sex marriage, where the legal rights proper to marriage are extended to couples naturally incapable of being married, and thus legal approval is given to immoral conduct. The use of the term “homosexual unions” in an unqualified manner is confusing.

The teaching of the Church in general that the legal recognition of same-sex marriage is gravely immoral is authentic interpretation of natural law. So is the teaching of the Church that all people of good will have a moral duty to oppose unjust civil laws. The authentic (third-level) teaching of the Church, however, is somewhat reformable by the Magisterium itself. It is admittedly not infallible. Only first-and-second-level doctrines (the deposit of faith and morals and all Catholic truths which follow from that divinely revealed deposit by logical and historical necessity) have been infallibly taught. But even though authentic (third-level) interpretations of the deposit of faith and morals could contain errors, every legitimate exercise of the authentic papal Magisterium must be interpreted with a hermeneutic of continuity and a principle of charity. Even though it is possible for a legitimate exercise of the authentic papal Magisterium to be in error, it is nevertheless not probable for it to be in error unless the authentic papal Magisterium itself acknowledges that it made a mistake. The faithful owe every exercise of authentic Magisterium an internal assent of mind and heart, even though the teaching is not infallible. Many Catholics nowadays need to be informed or reminded of that obligation.

It should be clear that a pope’s casual public remarks have no authority in Church teaching. Such remarks are often taken out of context and badly distorted in public media. The Church teaches authoritatively at various levels, but the remarks of Pope Francis or any other pope in an interview are not even Church teaching at all. Even if Pope Francis is again suggesting that a more limited legal recognition of homosexual civil unions is a social structure that is a justifiable material cooperation in evil, as he suggested previously in Argentina before accepting the papal office, he is not imposing this opinion on us as a matter of doctrine. The faithful do not owe any kind of assent to such non-magisterial remarks. Furthermore, the non-magisterial interpretations and comments of any pope or bishop on existing magisterial teaching, even his own, are often in error and are not a reliable guide to the authentic Magisterium of the Church. So we are free to disagree with the casual remarks and opinions of the Pope Francis, just as we are free to disagree with the exegetical opinions offered by Pope Benedict XVI (Joseph Ratzinger) in his Jesus of Nazareth books.

Clarifying the actual intent of the 2003 CDF document through a legitimate exercise of the authentic papal Magisterium could be very helpful, however, though many people might be inclined to misinterpret and condemn any such qualification, especially if it were made by Pope Francis, whose acts are frequently and unfairly interpreted as advancing a progressive agenda. It is true that the Catholic faithful have an obligation to assent to the approved teaching of St John Paul II in the 2003 CDF document on the legal recognition of homosexual unions, but Francis or another pope could decide to revise and clarify it. Any such revision would merely qualify and essentialize the teaching it by an authoritative interpretation. The Church’s position is not that any legal recognition of homosexual unions is intrinsically evil, but that the legal recognition of same-sex marriage would be a material cooperation in evil that cannot satisfy the principle of double-effect because the overall harm that it does is proportionately greater than the overall good that it does.

Those who do not understand the difference between intrinsically evil acts and acts which materially cooperate in intrinsically evil acts find this confusing. The confusion can only be eliminated by good moral catechesis and better education. And the more limited form of legal recognition, which simply grants legal rights to any given couple, regardless of sex, to make a contract in which one party designates the other party as his or her “significant other” for non-marital purposes, is a remote material cooperation in evil that is morally justifiable because it can in fact satisfy the principle of double-effect. The intent is not to approve of homosexual conduct but only to avoid unjust discrimination with regard to unmarried persons, including people who have a homosexual orientation and a same-sex “significant other.” As Pope Francis has emphasized on many occasions, the real world is morally messy, and the real world is getting messier everyday as the infallible moral teaching of Christ and his Church is rejected.

On various occasions, Pope Francis has in fact publicly practiced conscientious objection to legalizing same-sex marriage. It should be clear at the very least that he firmly upholds the infallible moral teaching of the Church. Nothing in his authentic papal Magisterium even comes close to suggesting that the legal recognition of same-sex marriage is morally justifiable. The principle of charity demands that we interpret the comments of Pope Francis with a hermeneutic of continuity. Pope Francis thus in fact believes that true marriage is inherently heterosexual and procreative, that sexual intimacy is moral only in the context of the proper marital act within a true marriage, that homosexual civil unions are not true marriages, that homosexual unions ought to be chaste friendships, that abortion and contraception are intrinsically evil, that we have a moral duty to oppose civil laws which are contrary to the common good, that every person needs a male father and a female mother to help them shape their identity, and the like. None of these moral doctrines is in question or changeable. Catholics who want these doctrines to change are either ignorant or living in denial. Dissenters ignore the inherent conservative dynamic of the Magisterium and unreasonably expect the Catholic Church to reverse its infallible moral doctrines. The Catholic Church will never make any such changes. That which is intrinsically evil will be always be regarded by the Catholic Church as intrinsically evil, even though the secular world will often disagree and attempt to rationalize immoral conduct.

Pope Francis’ primary concern seems to be with material cooperation in evil, which he thinks is morally justifiable in certain legal, political, and pastoral contexts. The conditions under which material cooperation in evil is morally justifiable are sometimes difficult to judge, and Catholic bishops sometimes disagree on how to make particular applications. We might consider for example the recent disagreement over whether voting for political candidates who have a pro-abortion platform is morally justifiable. In my opinion, it is not morally justifiable. But with regard to the legal recognition of homosexual couples, we need to be careful not to become so concerned to avoid material cooperation in evil that we fall into an unjust form of discrimination.

Those who are conservative in their estimation of the respective proportion naturally regard any legal recognition of homosexual unions as imprudent and inexcusable. Those who are more liberal in their estimation of the respective proportion naturally regard the absolute refusal to grant any legal recognition of homosexual unions whatsoever as rigid and intolerant. If Pope Francis were to clarify the authentic teaching of St. John Paul II magisterially and grant that we can tolerate and materially cooperate with the legal recognition of homosexual non-marital civil unions but must resist and conscientiously object to the legal recognition of homosexual civil unions which pretend to be marriages and which unjustly demand legal rights which are proper to true marriage, then there would be a path of reconciliation open between the two opposing positions.

We must keep in mind that since 2003, most of the Western world has rejected Catholic moral teaching on the issue of homosexual unions and has in fact radically legalized them as if they were marriages, as it previously legalized abortion and other evils. Such legalizations are scandalous and morally corrupting of society. They are unjust civil laws which must be opposed and reversed if possible. The most pressing question now is how to help the faithful to function and maintain employment and raise families in societies which are increasingly secularized and immoral. We need more guidance on this issue, and the authentic teaching of the Church on the issue must continue to undergo legitimate development. Pope Francis and his successors must guide us in how to practice conscientious objection to evil, as well as in how to judge correctly the conditions under which material cooperation in evil is morally permissible. Both of these practical judgments are currently unavoidable, and we need pastoral guidance in both. Like it or not, additional pastoral guidance from Pope Francis is probably coming soon. The teaching of St John Paul II might be slightly revised. But the doctrine that homosexual behavior is intrinsically evil is not changeable. Neither is the doctrine that contraception is intrinsically evil. Those who compromise the doctrine against contraception within true marriage inevitably compromise the doctrine against same-sex marriage. Pope Francis, as a disciple of St Paul VI, understands that dynamic and will not compromise the Church’s moral teaching on human sexuality.

In authentic Church teaching there are clear limits on what is reformable. The point is not to undermine what St John Paul II taught about homosexual civil unions, but to adapt it to the present circumstances, bringing out what is essential in it. As a successor of St. Peter and St. John Paul II, Pope Francis has the authority and power to reform that teaching, but he has not yet done so. Perhaps he is indicating that he intends to do so; perhaps not. If he does decide to qualify the 2003 CDF document on the legal recognition of homosexual unions, he will need to give papal approval to some new CDF document or other teaching instrument which would clearly state the conditions under which legal recognition to non-marital civil unions could morally be given. Many ecclesiastical leaders hope that he will allow the 2003 CDF document to stand unqualified, while others regard this attitude as scrupulous. But the document does need clarification. The concern to avoid being too rigid and the concern to avoid being too lax are equally legitimate and fundamental to having a mature Catholic attitude about material cooperation in evil. Toleration of evil is often morally necessary, but approval of evil is never morally permitted.

In the face of public episcopal disagreement about what the pope should do with regard to legitimate development of Catholic doctrine, every Catholic should recognize and affirm that no infallibly taught moral doctrines can ever lose their doctrinal weight or be changed. We must trust the Holy Spirit and not be alarmed. The devil often uses fear in his attempt to undermine divine authority and encourage rebellion. We should reassure the faithful that the moral teaching of the Church is permanent and will not be compromised. At the same time, following the example of St Francis of Assisi, we should help the faithful to maintain due obedience and reverence to Pope Francis, who stands in continuity with Vatican II, St. John Paul II, and Benedict XVI. To abandon the hermeneutic of continuity is to move in the direction of schism. To understand the actions and intentions of Pope Francis correctly requires us to exercise charity and patience. There are many people nowadays who either intentionally or unintentionally misinterpret his actions and intentions to suit their own agenda either to the political right or to the political left. Pope Francis has a difficult job and must maintain a delicate balance. Let us pray for him.