What France's ‘Posthumous Marriage’ Law Can Teach Us About the U.S.

Every culture has its blind spots: Moral failings we are not only unwilling to see, but that we are virtually unable to see.

(photo: Register Files)

Can you marry a corpse?

For many of us, the idea of "posthumous marriage" sounds like necrophilia. Thus the news that the French police officer slain (killed! dead!) by a terrorist this spring has now been legally married to his gay lover (not dead) sounds like a case of the courts getting out of control in the you-can-marry-anything-you-want department.

A closer look at the legal context of the incident reveals a little bit about French marriage law, and an awful lot about the power of culture to color our ideals. We'll begin with the French, then turn our gaze at our own sordid biases.

Granting same-sex unions the legal status of marriage is a trend that has swept its way across Europe and North America in the past decade. Register readers are no doubt informed about the cultural forces behind that upheaval.

But a dead man?

In France the practice can be traced at least as far back as World War I, when the practice of proxy-marriages was adapted for the benefit of would-have-been-widows-and-orphans of soldiers who had died at the front. Article 171 of the French Code Civil later made posthumous marriage its own distinct legal category. These posthumous marriages do not confer rights to inheritance or the creation of marital property. As the retroactive marriage is dated back to the day before the deceased spouse died, the surviving half of the couple isn't so much newly-married as newly-widowed.

Why allow such a practice? One reason, primary in the recent case of the slain police officer, is sentimental. Anyone who has grieved the death of a fiancé can appreciate that motivation.

Another reason is the way that French culture has handled the questions of sex, marriage, and paternity. Posthumous marriage legitimizes the child conceived out of wedlock; even today, France has a strong legal and cultural bias in favor of ignoring fornication and infidelity, but favoring the safeguarding of family harmony where the unit of husband, wife, and ostensible children of their union are concerned.

Americans, in contrast, might recognize the value of sentimental or social bonds, but we don't go so far as to create legal conventions such as "posthumous marriage" to undergird those bonds; we have a different hierarchy of priorities.

This is one of the chief effects of culture: It affects the way we prioritize our values.

Think for a moment about cultural differences on less weighty topics. Candor, discretion, sensitivity, enthusiasm, affection, modesty, and harmony are all worthy values. One culture orders those values to produce the rambunctious, loud-mouthed neighbor family, alternately arguing and embracing in a show put on for the whole block to enjoy. The same values, ordered differently, gives us the mousy little creature who will never quite come out and say what he means. Or did we mean that one is refreshingly open and the other admirably humble and self-controlled? Perspective makes all the difference.

We naturally tend to think our own native culture has its priorities in the proper order — other cultures are loveable in their way, but with a few trouble spots.

The wrong-headed habits of people from other cultures might grate on the nerves, but the bulk of those differences are matters of preference, not morals. The difficulty is that when a whole culture does get its morals wrong in some area, it is difficult for those born and bred within that culture to see the problem clearly.

Moral thinking depends on an accurate sense of priorities and the ability to identify objectively evil actions.

We err in our moral thinking, whether individually or as a society, when our priorities get askew. The desire to alleviate suffering, for example, is an important priority. It is not, however, more important than Thou shall not kill; hence euthanasia and assisted suicide are grave evils committed in the pursuit of a good, but fatally misprioritized, goal.

The desire for intimacy, familial bonds, and societal respect is entirely reasonable; when those desires are over-prioritized, we end up with couples attempting to marry who are not, in fact, free to marry one another.

As faithful Catholics we can see well enough that abortion and adultery are wrong, not only because our Catholic subculture fights against such travesties, but because we have allies among our secular fellow citizens. These crimes are self-evident, for those willing to see.

Our challenge, rather, is with the crimes that aren't self-evident. Every culture has its blind spots: Moral failings we are not only unwilling to see, but that we are virtually unable to see.

Thus we read the plain meaning of the Bible or The Catechism, and then put on our thinking caps to work out a way that those words might mean approval for what it condemns, because what we want approved seems perfectly normal and natural to us. Only an outsider can see how strangely deceived we really are.

A quick search around did not find any authoritative comments on Church teaching concerning France’s posthumous marriage law one way or another; I'm reluctant to use my Junior Moral Theologian's DIY Kit where I can see a variety of possible complexities. African bishops have condemned posthumous marriage, but in an entirely different legal and social context that does not appear to apply to France's situation. You can find here a brief comment on that topic among the assortment of links concerning French culture in regard to marriage, family life, and sexuality which I came across while preparing this post. FYI —Google translate does a passable job of getting you quite close to the meaning of the French-language texts, but don’t count on it for legal advice.