The French National Assembly dealt a blow to the state of marriage in the West when it approved legislation Oct. 13 creating “civil solidarity pacts” (le pacte civil de solidarité, “PACS”). PACS institutionalizes a legal alternative to marriage, recognizing homosexual and unmarried heterosexual couples as bona fide social units. Although PACS exists alongside marriage in the French Civil Code, it is essentially a distinction without a difference. With few exceptions, a PACS is a modern “marriage” (i.e., inherently unrelated to procreation and terminable at will).
Under the French legislation, any two unrelated adults can make a PACS. Sexual difference is irrelevant: A PACS is basically a homosexual “marriage” (although heterosexuals unwilling to tie the knot can also avail themselves of it). A PACS is a contract, recorded with the local civil registrar, by which two people “arrange their common life.” PACS “partners” acquire various legal benefits in France, such as tax benefits and the takeover of leases after a deceased partner. Also, a PACS partnership will suffice as proof of connection to France for foreigners who wish to acquire the right of residence there.
The PACS law speaks of “mutual and material” obligations by the partners, but, except for the social benefits automatically assigned to the partners by law, there is no specific content regarding the partners’ duties toward each other. They do not even have to live under the same roof. All duties are negotiable and set forth in the contract.
Partnerships last until one party dies, marries (one of the few things that still makes marriage distinct: a marriage is not yet dissolved by a partnership), by joint agreement, or upon three months’ notice by one side to the other.
The new French PACS finds its counterpart in “registered partnership” laws found elsewhere in Europe. Denmark, Norway, Sweden and Holland all have had partnership laws for several years and, in the Nordic area, partnership countries have given the institution international recognition by treating a pact in any one of them as valid in the others.
European PACS and partnership laws represent the triumph of two particularly baneful aspects of modern thought: the denaturalization of marriage and the aggrandizement of state power over it. Both are very much part of the current culture wars.
No Longer Natural
By “denaturalization” of marriage I mean that marriage ceases to have any inherent content deriving from natural law. Marriage is no longer a natural institution between a man and a woman; it is anything the state says it is, and not necessarily a sexually differentiated union. Keeping the external form of marriage might be useful, but this shell is divested of any of the characteristics usually understood as part of marriage.
In this view, marriage does not necessarily have anything to do with permanence, procreation, or even sexual difference. It is an agreement whose contents the partners themselves prescribe. The presence or absence of a man and woman vs. two men or two women is no more significant than an order for fruit being made of bananas and cherries or just bananas. (That this trend has been abetted by a widespread Catholic rejection of the values of indissolubility and fruitfulness in marriage is obvious).
Denying that marriage necessarily presupposes a man and a woman is, of course, possible when marriage is treated as a purely human invention, a creature of the state. France's long track record of interfering with marriage as a natural and religious institution dates all the way back to the Gallican heresy of the 17th and 18th centuries, when Regalist theologians posited a false dichotomy between the “sacrament” and “contract” of marriage, asserting exclusive state power over the latter while relegating the former to the sacristy.
The atheists of the French Revolution maintained the distinction, treating the religious nature of marriage as so much superstition. Napoleon completed the process by incorporating obligatory “civil marriage” into the law such that no Church marriage had any civil effect. With the dissemination of the Napoleonic Code as the basis for most non-Anglo-Saxon legal systems, it's easy to see why, even in various Catholic countries, citizens must submit to two weddings — and why only the ceremony before the civil registrar has public validity.
As a legal maneuver, PACS may cut like a two-edged sword. On the one hand, it attests to the fact that European legislators still do not have the temerity to introduce homosexual “marriage” by name. On the other hand, creating a practical institutional equivalence between PACS and marriage denigrates the latter by denying its qualitative uniqueness.
Catholics in the United States can take some comfort from the fact that the likelihood of any state legislatures conferring a social imprimatur on fornication and sodomy is almost nil. America's threat lies in an activist judiciary which conceivably could invent a constitutional right to “homosexual marriage” (as is threatened in Hawaii and Vermont). The American danger is far more remote from its elected representatives, but unaccountable judges could force an even more radical change in social policy. Those who doubt that should consider Roe v. Wade's perdurance.
One practical area where America's Catholics might take back marriage's lost ground is by demanding an end to the progressive erosion of the privileges and benefits hitherto reserved to the married. The French PACS legislation, for example, assures partners of tax and immigrant benefits and requires employers to take partners’ wishes into account when granting vacation and sick leave.
In America, various businesses and local jurisdictions deem it “chic” and “progressive” to award health insurance benefits to homosexual partners as if they were spouses. Others guarantee continuation as a “surviving spouse” in rent-controlled apartments. Benefits once intended to provide a “family wage” are now extended to unions inherently incapable of procreation. And much of this mischief has been wrought in the name of banning “discrimination” based on “sexual orientation,” statutes initially hawked as protecting “gays” against attack (as if the criminal law was insufficient) but in fact used as battering rams to advance a homosexual agenda.
The degree to which, on the threshold of the third millennium, Europe has lost its Judaeo-Christian roots is attested by the new state of affairs in that “elder daughter of the Church,” France. It is an important benchmark of how far in the new millennium Christianity needs to go to reclaim those cultures in the name of basic human dignity.
John M. Grondelski, a moral theologian, currently lives in London.
What Makes a Marriage, Anyway?
What is marriage and why is it here? Here's part of what the Catechism of the Catholic Church, drawing from the natural order and God's revelation to mankind through history, has to say on the matter:
Each of the two sexes is an image of the power and tenderness of God, with equal dignity though in a different way. The union of man and woman in marriage is a way of imitating in the flesh the Creator's generosity and fecundity: “'Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh’ (Genesis 2:24). All human generations proceed from this union” (No. 2335).
“By its very nature the institution of marriage and married love is ordered to the procreation and education of the offspring and it is in them that it finds its crowning glory. … [T]rue married love and the whole structure of family life which results from it … are directed to disposing the spouses to cooperate valiently with the love of the Creator and Savior, who through them will increase and enrich his family from day to day” (No. 1652).