Introduction
That the Catholic Church has spoken emphatically and consistently against same-sex relations is taken for granted by most commentators, by most church figures, and by most observers. I do not mean to challenge that proposition in this article. But I do propose that the rationale for condemning same-sex relations has changed substantially over the last two centuries of church history and that it has evolved in a direction that at least makes possible the acceptance of same-sex relations at some future—and not too distant—date.
I explore this proposal over this article's four major sections. I begin with what is known as the church's manualist tradition, which flourished in the period between the early nineteenth century and World War II and which restated the body of rules and norms meant to regulate the sexual activity of Catholics. The manualist writers produced what amounted to teaching documents directed at seminarians and Catholic priests. Their authors tended to be well-placed ecclesiastics—some of them bishops, others leading professors of canon law or moral theology. These works were conservative and traditional where same-sex relations were concerned. Their authors were largely content with reiterating well-worn norms and offered little in the way of fresh insight.
In the next section I look closely at the judicial decisions of the Holy Roman Rota and the writings of academic canon lawyers. The Rota is essentially one of the Catholic Church's two supreme tribunals and has special jurisdiction over allegations concerning the invalidity of marriage. Over the course of the twentieth—and now the twenty-first—centuries, the Rota has been called upon frequently to scrutinize the validity of putatively heterosexual marriages in which one party was actually homosexual. The Rota—and canonistic scholarship more broadly—it will be shown, once engaged the scientific literature on the topic of homosexuality and at least took it seriously, but in recent decades has responded in highly conservative, even reactionary ways to larger movements in the world of science and sexuality.
In the third section, I look at recent developments on the question of same-sex relations over the last twenty to thirty years, but I especially focus on developments since the election of Pope Francis. I consider both the cautious openings the pope has made on the subject of same-sex relationships and the statements and actions of other leading members of the hierarchy that suggest at least the possibility of evolutionary change on this topic.
It should become clear from this review that the church's views on homosexuality have been far from static. Indeed, one can detect a substantial shift from a simple condemnation of particular acts, grounded in a narrow reading of scripture or natural law, and towards a greater willingness to view homosexuality as a more or less enduring and regularly occurring feature of the human condition. Not a condition that is approved of, or even considered as morally neutral, but a condition that is nevertheless acknowledged as describing a certain subset of the Catholic population.
In the article's final section, I point to other areas of ecclesial life that have witnessed rapid and fundamental change. These areas include the practice of penance, anti-Semitism, and the teaching on usury. I conclude by making it clear that doctrine in the Catholic Church does develop. Church teaching has changed—sometimes dramatically and fundamentally—to take account of altered realities. Tradition is not frozenness in time. It is not the blind repetition of the past. It is, to be sure, fidelity to timeless principles, but the principles in question are always dynamic and capable of growth and adaptation, as our consciousness of what it means to be human and to follow God's will expands from generation to generation.
The Anti-Sodomy Norms: The Manualist Tradition
The Nineteenth Century
Background
The moral theology and canon law of the nineteenth and early twentieth centuries has been described as “manualist.”Footnote 1 The moral theologians and canon lawyers of the day avoided much in the way of originality. Rather, they saw their task as the production of handbooks—manuals—that sought to summarize and synthesize older materials.Footnote 2 These writers looked back fondly to Thomas Aquinas, Alphonsus de Liguori, and the canon lawyers of the medieval and early modern periods to reduce to usable format the wisdom of the past. Their works did not always distinguish clearly between moral theology and law.Footnote 3 And they were inclined to omit the sophistication and sensitivity of their sources.Footnote 4
The intent was not to create works of great originality, or to be responsive to individual needs and contingencies, or even to dispense pastoral guidance for times of personal crisis. These were not works meant to address the personal needs of conscience. Rather, their purpose was the production of rules of broad generality and applicability.Footnote 5 These writers had their audience, which was the seminaries and the clergy of Catholic Europe.Footnote 6 And this audience, at this particular moment in history, craved clear answers, authoritative solutions, and uniform results.Footnote 7
Catholic Europe for much of the nineteenth century, after all, was caught up in the conservatism of the day. While deep currents of unrest were detectible throughout Europe in this great age of economic and social disruption, on the surface all seemed calm. Stability, deference to authority, acceptance of an established hierarchy were the visible characteristics of the age, even though social ferment brewed just beneath the surface.
The Catholic Church was very much a part of the monarchical pageant of the age. After all, 1870 witnessed the First Vatican Council pronounce the doctrine of papal infallibility, which conferred a special absolutism on the pope in the same year the papal states were finally lost to the armies of Giuseppe Garibaldi.Footnote 8 In many corners of Europe, ultra-montanism, that heartfelt and uncritical yearning for an imagined medieval high papal grandeur, was in full flower.Footnote 9 And throughout the Catholic parts of the Continent, popular piety and practice was running at riptide.Footnote 10
Simultaneously, intellectual life, at least as manifested in the manualist tradition, had grown calcified. Aquinas and Liguori, after all, had produced intellectually vital works, subtle, supple, and sophisticated responses to the acutest problems of their day. The same could not be said for nineteenth-century writers who abstracted from and digested these earlier sources to produce a sterile, act-centered codification of seemingly unalterable moral rules.Footnote 11 It is nevertheless valuable to commence our inquiry with these writers so as to gain an appreciation of what the leading figures in the Catholic Church of this period thought of same-sex relations. Thus we might establish a baseline from which to chart how significantly that teaching has evolved in the succeeding 180 or 200 years.
The Nineteenth-Century Manualists
I begin with the Austrian Josef Ambrose Stapf (1785–1844), who counts among the earliest figures of the manualist tradition. Stapf was an Austrian seminary professor whose Theologia Moralis has been described as having a “strictly orthodox presentation” and a “practical usefulness.”Footnote 12 By the 1830s, this work had become required reading “for all the seminaries in Austria.”Footnote 13 Stapf was not entirely derivative in his work. Indeed, he revealed creativity and real sympathy in dealing with the rights of labor in the context of the Industrial Revolution.Footnote 14
But on sexual matters, Stapf reiterated the ancient norms. Stapf treated sodomy—there was as yet no real scientific understanding of homosexuality as a persistent attraction or orientation—as the worst of all the sexual crimes.Footnote 15 Incest was wicked, rape was a crime of violence, and sex in sacred shrines or precincts was worse still for its blasphemous qualities.Footnote 16 All were mortal sins. But sodomy, which was the worst crime against nature, surpassed all of these other offenses in its shamefulness (“ima maxima pudenda vitia”).Footnote 17
Stapf followed a long line of predecessors in distinguishing between perfect and imperfect sodomy (perfect sodomy involved sexual relations between members of the same gender, while imperfect sodomy usually involved nonvaginal intercourse between a man and a woman).Footnote 18 Stapf also said little new in describing sodomy as a deliberate defiance of nature.Footnote 19 He noted that Paul in his Letter to the Romans, Cicero in his Tusculan Disputations, and Aristotle in his ethical works, all denounced sodomy.Footnote 20 And God in his sulfuric destruction of the biblical Sodom revealed the sort of punishment reserved for offenders.Footnote 21
Thomas Gousset (1792–1866) achieved the pinnacle of success in two careers—first as a professor of theology and then as the archbishop and cardinal of the ancient see of Reims. His biographer described him as “a moralist of sure judgment and remarkable tact.”Footnote 22
Gousset borrowed from and synthesized the main ideas of his moral writings from Alphonsus Liguori and the papal magisterium.Footnote 23 Like Stapf, Gousset added little that was new on the subject of sodomy. He treated sodomy as an offense against the Ten Commandments.Footnote 24 The essence of the offense, as he understood it, was male-on-male or female-on-female sexual activity.Footnote 25 It did not matter who was the active or who was the passive partner. It all violated the natural law, and hence the gravity of the offense remained the same regardless of the degree of participation.Footnote 26
Francis Kenrick was likely the greatest of the American manualists. He was archbishop first of Philadelphia and then of Baltimore, and his moral writings enjoyed an international reputation.Footnote 27 His audience was American seminary students, but he wrote for them in the Latin tongue and published on a Belgian imprint. In some respects, he was a reactionary. He thus continued to defend the morality of slavery even as America entered the Civil War.Footnote 28 Where marriage was concerned, however, he revealed himself creative and sympathetic. He was among the first to stress the significance of passionate, erotic “love as one of the rational purposes of marital intercourse.”Footnote 29
With sodomy, on the other hand, Kenrick reverted to his reactionary side. Sodomy, he wrote, was the most immense and outrageous of all the sins (“immanissimum … peccatum”) and was frequently punished by God with avenging fire.Footnote 30 Sodomites, Kenrick flamboyantly wrote, were for that reason subject to execution by burning at civil law (“iure civili puniebantur flammis”).Footnote 31
While other early manualists failed to match Kenrick's rather heated recommendation, one sees in their work obsessive attempts to outdo one another in their condemnations of sodomy. A text by Giovanni Devoti, the bishop of Anagni, declared that sodomy and bestiality were not so much crimes as monstrosities and “freaks of nature” (“prodigia”).Footnote 32 Those guilty of such offenses should not only be banished from the church's “doorway” but denied entirely its protective shelter.Footnote 33
A treatise by Antonio Ballerini and Domenico Palmieri treated sodomy under the larger category of luxuria—a noun that in context might be translated as decadence.Footnote 34 Sodomy was an “unspeakable crime,” they wrote, because it recalled the divine punishment of Sodom and Gomorrah.Footnote 35 It offended against nature because it was a misuse of the generative processes.Footnote 36 A compendium of moral teachings edited by Gabriele de Varceno denounced sodomy as a “lustful act” and the “very worst of crimes” (“crimen pessimum”).Footnote 37
The Twentieth Century
Background
As the nineteenth century ended and the twentieth began, the church was experiencing fundamental, even revolutionary change. The loss of the papal states in 1870 shook the church's self-identity.Footnote 38 The church had thought, with reason, ever since at least the Carolingian period, that ecclesiastical independence required temporal sovereignty. No longer, however, did the church govern a significant temporal territory, no longer could it call upon its subjects for self-defense, no longer could it hope to participate, as it had just a few years before, as a player in European politics.Footnote 39 A great fear swept ecclesiastical circles that the church now stood exposed to its enemies.Footnote 40
Pope Leo XIII (reigned 1878–1903) responded brilliantly to this crisis by redefining the very character of the papacy.Footnote 41 Although he still plainly longed for the world that was lost,Footnote 42 Leo would remake the papacy into what it has become today—at its best, a voice of morality and conscience to the world.Footnote 43 This reconceptualization of the papacy was especially noticeable on the subject of what came to be known as the “social question.” In his encyclical Rerum Novarum (1891), Leo gave content to the ideal of social justice and applied it concretely to the labor crisis of the Industrial Revolution.Footnote 44 Criticizing both unfettered capitalism and Marxist-inspired socialist revolution, Leo proposed charting a middle course economically, advocating for living wages and the right of all workers to organize.Footnote 45
A quarter century later, thanks to the joint efforts of popes Pius X and Benedict XV, and the canonist-cardinal Pietro Gasparri, a code of canon law was promulgated for the church (1917).Footnote 46 The code, modeled on the European codification reforms of the nineteenth century, distilled centuries of juristic reasoning into a compact body of statutes and principles.Footnote 47
These were decisive events in the life of the church and represented sharp departures from settled ways of doing business. In spite of these dramatic occurrences, however, the manualist tradition remained largely undisturbed. Even while efforts were made to accommodate the new code of canon law,Footnote 48 the underlying substance of the manualist commentary still employed the same vocabulary and principles when speaking of homosexual acts.
The Twentieth-Century Manualists
Thus the fifteenth edition of the Gury/Sabetti Compendium Theologiae Moralis, published in 1916, described sodomy, both perfect and imperfect, as a “horrendous crime” and as acts that arouse “horror among all persons.”Footnote 49 Arthur Vermeersch condemned sodomy as a violation of nature so grave that its commission was roughly the same as bestiality.Footnote 50 The Welsh Jesuit Thomas Slater declared that sodomy was the “gravest sin against nature.”Footnote 51
Augustine Lehmkuhl sought to isolate the particular feature that made sodomy so reprehensible and he located it in “an unnatural affection for one's own sex” or the use of “an unnatural receptacle” for the purpose of sexual intercourse.Footnote 52 In a note, Lehmkuhl revealed himself as among the first Catholic writers to recognize that for some individuals at least this “perverse inclination” towards one's own sex seemed to be “inborn” (insitam) rather than freely chosen and willed.Footnote 53
Giovanni Ferreres's Compendium Theologiae Moralis ad Normam Codicis Canonici (1925) might have taken as its starting point the new code of canon law, but its analysis of sodomy was largely unaltered from the generations of texts that had preceded it. Sodomy, for Ferreres, was a very grave crime.Footnote 54 Ferreres also added further distinctions to the types of sodomy he believed existed. In addition to the standard distinction between perfect and imperfect, he recognized a third category, paederastia, in which an adult male seduces a boy.Footnote 55
In a taxonomy of sins, Dominic Prümmer classified sodomy as among those offenses that cry out to heaven—the others being murder, the maltreatment of widows and orphans, and the diversion of charity meant for the poor.Footnote 56 Blunter than other writers, Prümmer graphically described sodomy as the insertion of one's penis into the posterum of another person.Footnote 57 It was, he said, among the foulest of all acts (alii actus foedissimi), and performed out of a lustful love for the other person.Footnote 58 In his treatise on canon law, Prümmer further declared that anyone guilty of sodomy was to be barred from all ecclesiastical functions until he or she made appropriate reparations.Footnote 59
Ludovicus Wouters addressed more particularly the problem of sodomy in a marital context. Such an act, done especially with a third party, provided the innocent spouse with grounds for perpetual separation, but not the right to remarry.Footnote 60 In a chapter on mental illness, Wouters defined homosexuality (“homosexualitas”) as a sexual preference (“inclinatio sexualis”) for one's own gender.Footnote 61 He added that among women, this preference was called “lesbian love” (“amor lesbiacus”), and he echoed Ferreres in declaring that sexual relations between older men and boys was its own category of offense called pederasty (“paederastia”).Footnote 62
The manualist tradition might be said to close with the English Jesuit Henry Davis, described variously as “one of the foremost moral manualists of recent times”Footnote 63 and as “one of the best practitioners of the old art of the Catholic moral manual.”Footnote 64 Davis's treatment of sodomy, however, written in 1943, represented nothing new or fresh. It reads rather as an expert summation of the nineteenth- and early twentieth-century acts-based analysis of sodomy. It was the gravest of sins, and a crime under canon law.Footnote 65 It was in every case, no exceptions, the greatest offense against nature (“maxime contra naturam”).Footnote 66 Its essence consisted in the affection one shows for one's own sex (“essentia sodomiae consistit in affectu ad eundem sexum”).Footnote 67 It was condemned by God himself at Sodom and by Saint Paul in his Letter to Romans, when Paul denounced men and women who “exchanged natural relations for unnatural.”Footnote 68
The work of the manualists spanned a little more than a century. There was detectible intellectual growth over that period, but it was modest. Some writers—Lehmkuhl, Wouters—acknowledged that same-sex attraction at least for some persons was a matter of more or less fixed inclinatio. A few writers distinguished between same-sex relations among adults and relations between men and boys, which was condemned under the separate label of pederasty. None of these insights, however, was ever particularly well developed.
Same-Sex Attraction and the Holy Roman Rota
Background
The Roman Rota is one of two supreme appellate tribunals located at the Vatican and it is especially charged with reviewing petitions for the nullity of marriage. If the manualist tradition was mostly sterile and static, the Roman Rota took a decidedly different, more activist approach.
From time to time, petitioners brought—and still bring—cases before the Rota alleging as a basis for nullity their partner's same-sex attraction. The Rota is thus forced to determine whether the partner's alleged homosexuality invalidated a marriage. And in answering that question, the Rota is required to answer a host of ancillary questions. What is the nature of homosexuality? Was it amenable to correction? If it is, perhaps the parties should remain together. On the other hand, if it is an inherent and inalterable part of the human personality, then what? Shall the parties be separated and the marriage annulled? As the Rota developed its jurisprudence on these issues, it moved away from the acts-centered focus of the manualists and had steady recourse to scholarship in psychiatry and psychology.
Looking back on these decisions, one cannot describe them as enlightened. They often borrowed the worst stereotypes and trafficked in the worst lessons of the scientific literature of the day. Still, the adoption of a “scientific” explanation for same-sex attraction, no matter how crude or ill formed, represented a shift in premises. While the Rota to this day has refused to reconsider its negative judgments concerning the nature of homosexuality, its use of psychological findings at least opened the door to dialogue—and to criticism—on the basis of a widely shared set of foundational ideas.
The Legal Fictions of Objective Right Reason and Universal, Normative Heterosexuality
Before turning to an analysis of the rotal judgments themselves, it is useful to begin by examining the two largely unspoken assumptions that were shared by both the manualist texts and the canon lawyers. For the most part, both theologians and lawyers took it for granted that all human beings possessed sexual impulses that were essentially heterosexual in kind and quality and subject to an objectively knowable right reason.Footnote 69 The Catholic moral writer Michael Buckley unironically put these assumptions into words: “[e]xcept for the fact that homosexuals exist … there is nothing whatever to suggest that the natural and divinely ordained human condition is other than uniquely heterosexual” (emphasis in original).Footnote 70
Both the moralists and the lawyers surely believed unconditionally in these twin assumptions. A long and deep textual tradition traceable to medieval roots offered them ample confirmation in their views.Footnote 71 These commentators thus could have found all the support they needed to sustain their prejudices in the work of Peter Damian who in the mid-eleventh century proposed in his polemical work Liber Gomorrhianus a whole catalogue of the types of same-sex relations parties might have had.Footnote 72
Moralists and lawyers similarly could—and did—fall back on an entrenched medieval vocabulary that featured words such as mollities (softness) or molles (soft) or variants of the adjective effeminatus (effeminate) to describe—and condemn—those who might have had persistent same-sex attraction.Footnote 73 Their attitudes might have been further hardened had they consulted medieval medical texts, like Pseudo-Aristotle's Problemata. This text was a composite that reached its final form sometime in the late antique Roman Empire,Footnote 74 but was regarded by many medieval writers as an authentic part of the Aristotelian corpus.Footnote 75 It speculated wildly on such topics as why some men preferred anal sex, suggesting both anatomical and (depraved) moral reasons for doing so.Footnote 76 And there were certainly medieval medical writers who took the Problemata seriously and authoritatively.Footnote 77
In other words, moral writers and lawyers alike could have found support for their condemnations of same-sex relations embedded deeply not only in the church's tradition but in the everyday language they used to describe homosexuality.
They were reinforced in their prejudices by their views of human sexuality. Sex, as the manualists and canonists understood their tradition, was an important human urge, and a particularly unruly one.Footnote 78 Social institutions were established for the purpose of regulating and even subduing altogether the sexual passions.Footnote 79 Virginity, chastity, marriage, and celibacy were all ways of life given legal definition and social support the better to control and subdue these passions.Footnote 80
But where one failed and committed a sexual transgression, then one was plunged into a hierarchically arranged set of wrongdoings. Fornication was wrong and sinful, but it was not as bad as adultery.Footnote 81 Masturbation and the use of contraceptives were worse still because they were opposed to the natural consequences of the sex act—that is, the (at least theoretical) possibility of conception.Footnote 82 And sodomy and bestiality were the very worst because they not only rejected the procreative dimension of sexual relations but defied the natural order and purpose of creation.Footnote 83
One can see in this hierarchy of wrongs the working out of the commitment to the two legal fictions of right reason and normative heterosexuality. Sodomites could be condemned as uniquely wicked because their reason was presumed to be the same as everyone else's. Their sexual inclinations could be condemned as inherently irrational and their defiance of natural law deemed that much worse for transgressing the heterosexual norm that they were assumed to know and were capable of following but for their stubbornness of will.Footnote 84
This pair of assumptions came to be challenged by discoveries in the larger secular world at the end of the nineteenth and in the twentieth centuries. That challenge arose primarily in the areas of psychology and medical science. The magisterium was eventually forced to respond, and it did so by shifting its analysis away from a focus on individual acts, which were assessed in isolation and seen as little more than expressions of willful uncontrolled passion or lust, and towards a perspective that at least acknowledged developments in the fields of science, psychology, and medicine.
The story of the Catholic Church and same-sex attraction in the twentieth century can be told at least in part in terms of the church's reaction to these larger intellectual currents. But before examining the church's use of this body of learning, I begin with a brief sketch of what was happening in science, psychology, and medicine.
The Idea of Same-Sex Attraction in the Scientific Literature, 1900–2000
Homosexualität, the German equivalent for the noun homosexuality, seems to have been coined around 1869 by the Hungarian-German journalist and activist Karl Maria Kertbeny.Footnote 85 Kertbeny was himself homosexual, and he sought a neutral vocabulary to describe what he believed to be a fixed and natural sexual identity on the part of many men.Footnote 86 The German noun, transliterated into other European languages, quickly “took on a life of its own” and by the end of the nineteenth century its usage had become familiar “to the general public.”Footnote 87
The English writer Havelock Ellis further developed these insights in his book Sexual Inversion (1897). Of Ellis, it has been said that he “stands in the same relation to modern sexual theory as Max Weber to modern sociology.”Footnote 88 Ellis was married to a woman who was a known lesbianFootnote 89 and himself had unconventional sexual desires.Footnote 90 He “presented homosexuality as a biological anomaly, akin to colour blindness.”Footnote 91 He was analytical, precise, concerned with scientific observation and description, and “non-judgmental” in the conclusions that he reached.Footnote 92
Sigmund Freud, for his part, sought to fit homosexuality within his larger account of the origins of the human sex drive. For Freud, it all began with libido. He borrowed this noun from classical philosophy—Freudian analysis has deep roots in its founder's immersion in classical learningFootnote 93—and charged it with sexual significance.Footnote 94
The objects of one's libido, for Freud, began to take shape during infancy. Just after birth, Freud thought, very young infants had “no particular sexual orientation be it homosexual or heterosexual.”Footnote 95 The “sex drive” was “undifferentiated,” and sexual preference was “developmental.”Footnote 96 For the male, sexual orientation was conferred by the resolution of the oedipal conflict—the instinctive sexual attraction every young male felt towards his mother.Footnote 97 Homosexuality, for Freud, was caused ultimately “by a traumatic oedipal period” which might lead to “castration anxiety”Footnote 98 or to “the identification of the child with the mother.”Footnote 99
Freud made clear late in life that he did not consider homosexuality to be a “sickness.”Footnote 100 Freud's views, in fact, were “relatively tolerant.”Footnote 101 Homosexuality posed risks of neurosis, but all forms of sexual choice and repression presented similar dangers.Footnote 102 Freud's work, however, would provide the basis for subsequent efforts to turn homosexuality into a disease that was at once dreaded and thought to be “curable.”Footnote 103
Indeed, within a year of Freud's death, the psychoanalytic writer Sandor Rado proposed that “homosexuality is inherently pathological.”Footnote 104 It resulted, Rado believed, from “unconscious fears of women and heterosexuality.”Footnote 105 Rado's followers expanded and elaborated upon the idea that most forms of homosexuality were caused by “unrealistic fears” generated by intense early childhood experiences.Footnote 106 And if homosexuality was the product of deeply rooted fears, then it should on this theory, be amenable to psychiatric treatment aimed at eradicating the irrational fear.Footnote 107
This understanding of homosexuality as pathology led logically if tragically to the ostracism and marginalization of homosexuals under the proclaimed mandate of science. In 1945, Otto Fenichel described homosexuality as a “perversion.”Footnote 108 Homosexuality came to be denounced as deviancy that sapped the social order,Footnote 109 undermined national stability and security,Footnote 110 and promised political subversion.Footnote 111 In 1956, Edmund Bergler published his extremely influential Homosexuality: Disease or Way of Life? Footnote 112 The book passed through numerous editions.Footnote 113 In it, Bergler “portrayed the homosexual as a totally sick personality” (emphasis in original).Footnote 114
In the United States, succeeding editions of the Diagnostic and Statistical Manual (or DSM), the principal diagnostic manual of the American Psychiatric Association, referred to homosexuality as a disorder, as did the World Health Organization.Footnote 115 It was widely believed that even if the prospects were not especially bright, it was the duty of therapists to seek to cure sufferers of their homosexual inclinations for their own good and for the benefits of larger society.Footnote 116 These treatments were often aggressive and destructive of the patient they sought to treat. Drugs, castration, neurosurgery, fear-aversion techniques, and electroshock therapies were among the instruments therapists employed.Footnote 117
By the late 1960s and early 1970s, however, the tide had begun to turn. Empirical studies revealed that prevailing views of same-sex attraction as inherently sociopathic could not be sustained.Footnote 118 In 1972, the American Psychiatric Association commenced the process that led to homosexuality being dropped as a disorder within the following year.Footnote 119
Ensuing decades witnessed a gradual acknowledgment that homosexuality was a naturally occurring divergent form of sexual orientation and expression that carried no diagnostic or pathological significance.Footnote 120 Indeed, the psychological literature now focuses on the ideal of acceptance and the means by which gay individuals achieve healthy self-esteem and personal integration.Footnote 121 The suggestion that being gay is the result of infantile trauma or pathological fear that can be remedied through treatment has fallen into deep and deserved disrepute.Footnote 122
The Jurisprudence of the Canon Lawyers
Rotal Decisions, 1920s to 1960s
Early rotal decisions used harsh language when speaking of homosexuality. A 1929 decision echoed the manualists in ranking homosexuality as “worse than fornication and adultery.”Footnote 123 A court decision of 1935 declared homosexuality to be “a depraved inborn quality opposed to nature.”Footnote 124 In 1956, one finds similar language in a decision of Dino Cardinal Staffa, who was among the most respected if conservative canonists of the age.Footnote 125 He described homosexuality as the “sodomiticum vitium” (sodomitical vice) even as he explained that the young man in the case before the Rota was motivated to marry to prove to his father that he was not suffering from that “de pessimo vitio” (worst of all the vices).Footnote 126
Still, even though the early rotal decisions retained the harshly moralizing language of the manualist writers, one also began to see these judges pose probing questions about the nature of homosexuality. Their judicial role required as much. After all, they were being asked to determine whether marriages between a homosexual and a heterosexual partner qualified as valid under canon law. Since a finding of invalidity often hinged on a party's mental state at the time of the wedding, the judges sought a complete and up-to-date understanding of the scientific literature. If a party willfully strayed from the marital commitment, in other words, an annulment was unlikely to be granted. If, on the other hand, the homosexual partner could be shown never to have had the capacity to make a marital commitment, then the heterosexual partner might receive an annulment and the consequent freedom to marry again in the church. Petitioners thus had an incentive to prove that homosexuality was an innate and inalterable characteristic of at least some persons, and it is no surprise therefore that we find in a 1943 decision the following language: “It is keenly debated whether [homosexuality] is acquired or, perhaps more likely, inborn, or whether it is a vice or a disease.”Footnote 127
A significant number of decisions from the 1940s to the 1960s, following the psychological literature of the day, demonstrated a conviction that homosexuality constituted a mental disorder. In 1940, the Rota reviewed the case of a petitioner who had been married to her husband for only a few months when she discovered that he was homosexual.Footnote 128 She alleged that her marriage was invalid on the basis of his impotence to maintain a sexual relationship with her. In essence, her claim sought to fit an allegation of same-sex attraction within a very old and traditional category of marriage nullity—the perpetual impotence of the male partner.Footnote 129
The Rota, however, rejected this theory of the case. Still, it looked deeply into the psychological causes of homosexuality, as they were understood at the time, and so investigated such factors as the husband's childhood relationship with his parents.Footnote 130 It described homosexuality as a “disease or a pathological condition either congenital or acquired.”Footnote 131 In the final analysis, the Rota decided that homosexuality was presumptively a transient and not a permanent condition and since there was a possibility of a cure, the parties were required to remain together.Footnote 132
The case of coram Lamas, of March 15, 1956, was similarly brought by a wife shocked at her husband's homosexuality.Footnote 133 The wife discovered that her husband kept hordes of homosexual pornography. The husband drank heavily, abandoned the family home, and was charged with the unspeakable vice of sexual inversion (“nefandi vitii inversionis sexualis”).Footnote 134
In seeking to explain the husband's conduct, the Rota performed a lengthy analysis of the state of knowledge on the subject of homosexuality. There were, the court noted, two prevailing theories about its cause. The first held that its origins were biological—some men were born with an excess of feminine chromosomes and these men might be described as “congenital homosexuals, from birth” (“sunt homosexuales congeniti nati”).Footnote 135
The Rota, however, was convinced that most instances of homosexuality were caused by infantile trauma (“experientiis homosexualibus infantiae”).Footnote 136 Repeating the commonplaces of neo-Freudian psychology, as it had been distorted by the work of Rado and others, the Rota distinguished between two types of infantile trauma: fear of castration and inordinate fixation on the mother.Footnote 137 And as it had sixteen years before, the Rota concluded that this sort of homosexuality was treatable—even as it conceded that cures were difficult to come by.Footnote 138 Viewing homosexuality as amenable to psychiatric intervention, the Rota rejected the wife's petition, holding that the husband, by his marital consent, truly intended to contract a valid Christian marriage, that he was capable of fulfilling its terms, and that the parties should therefore be required to remain together as husband and wife.Footnote 139
Coram Bonet, decided in 1959, arose when the wife grew disgusted at her husband's preference for teenaged boys (ephebos, in the language of the Rota). She left the household and petitioned for nullity on the basis of her husband's impotence.Footnote 140 In the course of rendering judgment, the Rota defined homosexuality as “a disordered psychological preference for persons of one's own sex, constituting a sexual disorder that quite frequently diminishes and sometimes removes completely sexual desire for members of the opposite sex.”Footnote 141 This case stands out for the completeness of the Rota's reliance on psychological language in its definition of homosexuality.
Less often, the Rota considered allegations of lesbianism. Coram Sabbatani, December 20, 1963, was one such case.Footnote 142 Again, the Rota relied heavily on the current psychological understandings of homosexuality to frame what it took to be the essence of lesbianism. Such homosexuality, the Rota reasoned, can invalidate a marriage when it is found to result in “an absolute and invincible physical or psychological rejection of the other sex so that the homosexual finds it impossible to tolerate intimacy with a person of a different sex.”Footnote 143 The Rota thought that proof of lesbianism was more difficult than proof of male homosexuality since the woman was presumed—an old presumption, dating to the medieval scholastics—to be the passive partner,Footnote 144 but in the circumstances of the case the Rota concluded both that the woman's lesbianism was easily proven and that it fatally flawed the marriage's validity.Footnote 145
To summarize: what stands out about these cases is not the liberalism of their results. Most of these cases continued to articulate old and powerful negative stereotypes. The judges looked to science, it seems, to justify ideas they already held about homosexuality. They wanted confirmation. Theirs was a results-oriented jurisprudence.
All that said, these cases are significant precisely for the way they shift the premises of the discussion about homosexuality away from the old acts-based morality of the manualists and in the direction of science. Implicitly, they pose the question of what happens when the science changes. What happens when the psychological and psychiatric communities conclude that homosexuality is not a pathological disorder but a naturally occurring phenomenon? What happens when those communities of experts conclude that gay relationships should be as accepted by society at large as heterosexual ones? As I discuss in the latter sections of this article, this is precisely the question the church struggles with today.
Mid-century Canonistic Scholarship
Before I discuss the church's contemporary struggles on same-sex relations, it is necessary to examine the evolution of the academic canon lawyers on homosexuality. By the end of the 1960s a consensus had emerged among rotal judges and learned canon lawyers alike that same-sex relations were pathological. As soon as the scientific consensus shifted, this consensus was thrown into confusion from which it has yet to recover.
The 1960s’ canonists, however, were confident that the scientific evidence confirmed all of their old and hostile suspicions about same-sex attraction. The decade began with Vincent Coburn, a Newark, New Jersey, canon lawyer, proposing to synthesize this body of judicial learning with the latest scientific findings. Coburn argued that homosexuality could be traced to one of two causes: organic anomalies or “psychogenic” factors.Footnote 146 Coburn rejected categorizations of homosexuality as a disease. Rather, he preferred to describe homosexuals as those who “were invincibly drawn to acts against nature.”Footnote 147 What did he mean? The word invincibly suggests the absence of choice and demanded a better explanation than Coburn subsequently provided. He largely sidestepped the issue even while admitting that homosexuality should be thought of as a “disturbance … of the intellect or of the will.”Footnote 148 On the other hand, in recommending that canon law remain attuned to developments in the field of psychiatry, Charles Ritty stated that the law “is a living science” and that it continuously refreshes itself from external currents of thought.Footnote 149
Two book-length dissertations published in the year 1964 also endorsed a continuing alliance between the Rota and psychiatry. John Keating's greatly influential treatise The Bearing of Mental Impairment on the Validity of Marriage contained a section “Constitutional Homosexuality.”Footnote 150 Keating employed the older psychiatric category of “fear” to describe homosexual orientation. Homosexuals suffered variously from a horror copulae or a horror feminae that prevented them from forming heterosexual unions.Footnote 151 For that reason, Keating proposed that homosexuals were “objectively incapable” of marital commitment.Footnote 152
William Tobin, in his work Homosexuality and Marriage, rejected the idea that homosexuality should be analyzed principally as a voluntary chosen “vice,” for otherwise it would be a commonplace occurrence among “the sophisticated, satiated, and blasé.”Footnote 153 Like Keating, he preferred to look to psychiatric sources that “favor a psychogenetic etiology,”Footnote 154 though he believed that individual cases might be subject to therapeutic intervention.Footnote 155
In the early 1970s, Professor John Rogg Schmidt of the Catholic University of America published a series of articles on homosexuality and canon law which had as their shared premise a commitment to the psychological analyses that have been reviewed. Schmidt's larger ambition was to reform canon law to make homosexuality a distinct impediment to marriage.Footnote 156
Thus by the early 1970s, it had become evident that the magisterium of the Catholic Church, when it came to evaluating the impact homosexuality had on the capacity of parties to contract marriage, strongly relied on the developing of psychological literature of the day. Still, there was a tendency in the cases and the commentaries, to select scientific opinions that supported underlying prejudices. Thus the Rota and the commentators tended to prefer the neo-Freudian view of homosexuality as the result of infantile trauma and so theoretically amenable to “treatment.” This position allowed them both to sustain most marriages as valid—the “afflicted” spouse should seek to be “cured”—while reinforcing all the old stigmas and stereotypes.
Still, the most interesting feature of this experiment in legal thought was the degree to which canon lawyers trusted in scientific findings. For sure, they were partial, selective, and biased. They craved scientific legitimation for their world view. They were consequently unprepared for the seismic shift that occurred in the scientific literature on same-sex attraction that commenced in earnest in the 1970s.
Rotal Decisions, 1980s–1990s
Anton Stankiewicz
Anton Stankiewicz was among the most learned of the Rotal judges of the 1980s and a canonical scholar with a substantial record of publication.Footnote 157 In a November 1983 decision, Stankiewicz considered whether homosexuality should be classified as a mental disorder and concluded that it likely should not be. Quoting Italian psychiatric literature, he noted that homosexuals only rarely self-report “the characteristics of a disease” and prefer to see their condition as having “social [or] ethical implications.”Footnote 158 He cited the revised Diagnostic and Statistical Manual as further evidence of evolving thought on the nature of homosexuality.Footnote 159
Stankiewicz, however, was unprepared to accept the conclusion that homosexuality should be seen as benign. Rather, he turned to antiquated or discredited sources to claim that while homosexuality might not be a mental disorder, many individual homosexuals suffered from related psychological afflictions.Footnote 160 He viewed homosexuality, finally, as a more or less fixed orientation that causes gay persons to avoid heterosexual relations in favor of same-sex couplings.Footnote 161 Limiting his analysis to the question before the Rota—the impact same-sex orientation would have on a marriage with a heterosexual partner—Stankiewicz believed it to be disastrous for the mutuality and conjugality that must accompany married life.Footnote 162
Cormac Burke
Cormac Burke is an Irish priest and a member of Opus Dei.Footnote 163 He is conservative and traditional in his faith. He well understood that the intellectual landscape had shifted substantially from the 1960s and he wished to return it to its old and familiar form. He used the vehicle of a rotal decision to state this case.Footnote 164
“Today,” he wrote, “it is often asserted and popularly believed that the traditional opinion that homosexuality is an anomalous condition has been proven false in the light of scientific progress.”Footnote 165 “Ecclesiastical jurisprudence,” he continued, “cannot remain indifferent to these momentous changes. Rather, it is necessary to ponder the theoretical and practical effects produced in the canonical understanding of homosexuality especially with respect to the offering of valid matrimonial consent.”Footnote 166
He traced the analysis given to homosexuality in successive revisions of the Diagnostic and Statistical Manual, noting that the idea of “dystonic” sexual identity—sexual identity that causes one emotional or psychological distress—remained a diagnosable disorder into the 1980s, but that even that had finally disappeared.Footnote 167 Burke found this development personally upsetting, particularly because tribunal judges relied on the DSM in judging “cases of possible contractual incapacity for marriage.”Footnote 168 The DSM, furthermore, while an American publication, had gained worldwide use.Footnote 169 Burke thus found it necessary to attack the DSM itself as an ideological instrument lacking in scientific merit.
He declared that there had been “notable professional dissent” in the psychiatric community when homosexuality was dropped as a disorder.Footnote 170 He used a speech by Dr. Melvin Sabshin indicating that the DSM revisions were the product of “forces outside the field” and “activists” to condemn the entire project.Footnote 171 He cited as well a speech by George Vaillant that viewed the DSM modifications as based on “guess, taste, prejudice, and hope.”Footnote 172
Burke's barrage against the DSM continued for pages. He found particularly helpful a disclaimer that the DSM made regarding its use in forensic settings: “In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a ‘mental disorder,’ ‘mental disability,’ ‘mental disease,’ or ‘mental defect’”(emphasis added by Burke).Footnote 173 Four pages later, Burke quoted a paper published by Alan Stone, professor of law and psychiatry at Harvard University: “Psychiatry does not stand outside history or morality, but how do we decide which history and which morality to accept?”Footnote 174
Burke now had the conceptual tools he needed to step outside of the constraints posed by acceptance of the Diagnostic and Statistical Manual. The DSM was not meant to cover juridic problems like marriage annulments and the DSM, furthermore, was a cultural artifact, not a scientific document, and it embodied the political views of the ambient culture. Having laid down these premises, Burke turned to a speech delivered by Pope John Paul II to the Roman Rota in February 1987.Footnote 175
In that speech, John Paul II praised the many great accomplishments of modern psychiatry but was principally concerned with asserting that some aspects of the modern science of the mind could not be “reconciled with the essential elements of Christian anthropology.” in particular the transcendence of the human person and the person's orientation to God's love.Footnote 176 John Paul II, however, was not criticizing modern psychiatry for its stance on homosexuality but for something else—the perceived scientific diminishment of the capacity of the human person to make a lifelong marital commitment.
Burke, however, saw embedded in the speech a principle capable of expansion. Finding in John Paul II's call to scrutinize modern scientific explanations of the human person, Burke felt empowered to dismiss much contemporary scientific evidence as “simple ideological preference.”Footnote 177 This allowed him to turn to other sources for insight: the Catholic catechism, recent pronouncements of the Congregation for the Doctrine of the Faith, and long-standing Catholic tradition.Footnote 178
In 2015, writing in his private capacity as a retired rotal official, Burke expounded further on the topic of same-sex marriage. It “makes no sense” to him.Footnote 179 Marriage involves “complementarity,” and complementarity for Burke meant that marriage be between a man and a woman.Footnote 180 Complementarity further demanded that all sexual acts be open to the possibility of procreation. Both contraception and same-sex relations contradicted this, for Burke, natural ideal. “Homosexual acts,” Burke wrote, “can appease physical desire but they can never even remotely signify the self-giving of two persons. Nor can they effect their union; the two are simply not made ‘one flesh.’ Homosexual acts are an exercise in emptiness, satisfying individual passion but leaving the persons as separate as before; nothing in the act unites them.”Footnote 181
How does Burke possibly know any of this? Did he ask anyone in a same-sex union? Separateness and emptiness are emotional qualities that are experienced differently by different people and can be measured and studied by psychologists and sociologists. Has Burke taken a survey? Does he know anyone who has?
Burke's struggle to justify his opposition to same-sex relations points to a larger problem in the canonistic/moralistic synthesis. With the breakdown of the old scientific consensus, with the emergence of a psychiatric science increasingly open to and accepting of gay sexuality, the old justifications have fallen into intellectual disarray. In the following section, we shall examine that disarray and the efforts—preliminary and tentative to be sure—on the part of the Holy See and at least a few bishops—to demonstrate a greater receptiveness to gay, lesbian, and transgender persons.
The Hierarchy, the Faithful, and Same-Sex Relations, 1980s to Present
Retrenchment, Reaction, and Incoherence
Background
The 1970s saw the adoption by the Catholic Church of teaching documents that recommended gay persons be shown pastoral concern and understanding. Thus a decree, known as “Persona Humana,” published by the Congregation for the Doctrine of the Faith in 1975 instructed that gay persons who could not change their condition “must certainly be treated with understanding. … Their culpability will be judged with prudence.”Footnote 182 In 1976, the National Conference of Catholic Bishops wrote, “[s]ome persons find themselves through no fault of their own to have a homosexual orientation. Homosexuals, like everyone else, should not suffer from prejudice against their basic human rights. They have a right to respect, friendship, and justice. They should have an active role in the Christian community… . [T]he Christian community should provide them a special degree of pastoral understanding and care.”Footnote 183
Hedging, hesitation, qualification, these documents were certainly guilty on those counts. As a matter of formal doctrine, not much was altered. Still, these texts represented a cautious, timid step in the right direction. The 1978 election of Karol Wojtyla as Pope John Paul II would, however, usher in a long period of retrenchment and, frankly, incoherence.
The Congregation for the Doctrine of the Faith under Joseph Ratzinger and John Paul II
The Congregation for the Doctrine of the Faith was established in 1542 as a response to the challenge of the Protestant Reformation and as a means of ensuring that the faith was being maintained whole and entire in the far-flung corners of Christendom. Known historically by various names—the Inquisition, the Holy Office—it was renamed the Congregation for the Doctrine of the Faith in 1965. From 1981 to 2005, when he was elected pope, Joseph Ratzinger presided over this body as its prefect. Over the course of that quarter century, the Congregation for the Doctrine of the Faith issued three documents of relevance.
Letter on the Pastoral Care of Homosexual Persons (1986)
The document opens by seeking to correct what it considered a mistaken reading of “Persona Humana” that saw the homosexual condition as “neutral, or even good.”Footnote 184 Scripture and tradition stood firmly opposed to such an interpretation.Footnote 185 Homosexuality was a “moral disorder” and the Congregation for the Doctrine of Faith denounced “pressure groups,” especially of Catholics, who sought to challenge this view.Footnote 186 The document minimized the possibility that persons might have a fixed homosexual orientation and recommended instead that they experience a “conversion from evil,” even if that required “a profound collaboration with God's liberating grace.”Footnote 187 The document called on bishops to resist secular political pressure that favored tolerance or acceptance and to provide appropriate pastoral care to homosexuals.
Retrograde, regressive, and destructive. “Pastoral Care of Homosexual Persons,” produced by Joseph Ratzinger's Congregation for the Doctrine of the Faith, largely rejected even the distinctions of the old rotal cases between voluntary homosexuality and fixed and innate orientations. Prayer and pastoral intervention might summon forth a “liberating grace.” The text broadly hinted at the revival of old and discredited forms of conversion therapy.
“Some Considerations Concerning the Response to Legislative Proposals on Non-Discrimination” (1992)
A much briefer document, this text responded to legislative efforts to extend civil-rights protections to gay and lesbian persons. “‘Sexual orientation’”—the Congregation for the Doctrine of the Faith put the term in quotation marks—“does not constitute a quality comparable to race, ethnic background, etc., in respect to non-discrimination.”Footnote 188 While declaring that homosexuals should be defended in their human rights, the document simultaneously endorsed action by civil governments to restrict their exercise: “these rights are not absolute. They can be legitimately restricted for objectively disordered external conduct. This is sometimes not only licit but obligatory.”Footnote 189 The instruction warned against enacting legislation that might “protect homosexual acts, public or private.”Footnote 190
In other words, by its terms the Congregation for the Doctrine of the Faith stood against the decriminalization of sodomy. One wonders what this body would have thought of as an appropriate civil penalty. The promise to secure gay and lesbian persons in their human rights impresses the reader as entirely empty.
“Considerations Regarding Legal Recognition of Unions between Homosexual Persons” (2003)
The last of this trilogy of texts, this document stated the case against same-sex marriage. “Homosexual unions,” the Congregation for the Doctrine of the Faith announced, “are … totally lacking in the conjugal dimension, which represents the human and ordered form of sexuality. Sexual relations are human when and insofar as they express and promote the mutual assistance of the sexes in marriage and are open to the transmission of new life.”Footnote 191 The text commanded that “all Catholics are obliged to oppose the legal recognition of homosexual unions,” and that “Catholic politicians are obliged to do so in a particular way.”Footnote 192
Read in the light of the intervening years, this final document seems suffused with hysteria. Its author must have realized that the tide was turning.
The Theology of the Body
If Joseph Ratzinger at the Congregation for the Doctrine of the Faith directed the moral, legislative, and political campaign against same-sex relations, John Paul II provided its theoretical foundation with what has come to be known as his theology of the body. This was an elaborate, biblically grounded defense of marriage the pope commenced from the earliest days of his pontificate.
In his biblical exegesis, John Paul II juxtaposed two images. At the beginning, he stressed, there was a great solitude. Man stood alone. Adam spoke with God, he named the animals, but yet he experienced nothing but aching loneliness.Footnote 193 God sensed man's solitude and acknowledged that “[i]t is not good that the man should be alone.”Footnote 194 Hence, woman was created.
The pope recognized that there was a tension in the biblical text between Genesis 2, which taught man was created first, and then woman, and Genesis 1:27, which held that God created them simultaneously, “male and female he created them.”Footnote 195 His preference, however, was for the timing of Genesis 2's account and the perceived male/female duality of Genesis 1:27. This reading, after all, confirmed the exegesis he sought to promote.Footnote 196
On this foundation, John Paul built a theology of the complementarity of male and female and the concept of marriage as a communion of persons, male and female. Male-female coitus was central to this theology. As Eduardo Echeverria, an interpreter of John Paul II put it, “[d]oesn't the denial of this literal biological, and thus personal unit, imply either a resurrection of ancient Gnosticism, in its common denial of the created order, or the reduction of that biological matrix to a difference between male and female that is merely biological and not really personal, a reduction that fails to grasp the specifically human meaning of the body?”Footnote 197
Echeverria's rhetorical question aside, it was John Paul II who was guilty of biological reductionism. While he purported to put the “personal” at the heart of his thought, John Paul II's theology left no room to account for same-sex attraction or the emotional and psychological needs of gay and lesbian persons who needed human companionship as much as their heterosexual counterparts. Many examples of deeply committed same sex unions come to mind.Footnote 198
Indeed, John Paul II's theology has been criticized precisely for its neglect of human experience. Among its most important critics is Luke Timothy Johnson. For Johnson, the starting point for analyzing the acceptability of same-sex relations within the church is human experience.Footnote 199
There were several aspects to his case. First, the church must remain continuously open to new possibilities, as it was early in its history when it decided to admit gentiles as members, even though they had not undergone circumcision.Footnote 200 Second, experience must not become a form of “cheap grace.”Footnote 201 And so Johnson stressed, “[i]f porneia among heterosexuals includes promiscuity, violence, and exploitation, then the church must condemn similar forms of homosexual behavior.”Footnote 202 Finally, Johnson recommended that natural law must be rethought, to accommodate new understandings of “the body and sexuality.”Footnote 203 Michael Perry has made similar arguments, stating the case that gay, lesbian, and heterosexual people are all equally capable of leading lives of the self-giving love that is the essence of the marriage relationship.Footnote 204
The Catholic Catechism of 1992
In 1992, John Paul II promulgated a new edition of the catechism for the Catholic Church. It contained tensions, and might even be described as incoherent. Section 2357 described homosexual acts as “intrinsically disordered” and “as acts of grave depravity.”Footnote 205 Such acts were “contrary to the natural law” and cannot “proceed from a genuine affective and sexual complementarity.”Footnote 206 On the other hand, section 2358 counseled that men and women who experience same-sex attraction “must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided.”Footnote 207
The inconsistencies are evident. What is meant by respect or compassion if the experience of gay persons are denied (how else can one read the denial of “genuine affective and sexual complementarity”)? Similarly, what is meant by “unjust discrimination,” given that the catechism was published at around the same time the Congregation for the Doctrine of the Faith was hinting at the need to retain the old anti-sodomy laws?
This was largely the state of play in February 2013. Following thirty-five years of steady retrenchment and reaction, the landscape looked bleak. The magisterium seemingly abandoned its cautious opening to science. In its place there was erected a theology of the body that was both biologically reductionist and assumed that which it sought to prove. In the place of the old acts-based moralism of the manualists there stood an internally consistent logic that simply did not correspond with the lived human experiences of those whom it sought to instruct.
And then doors began to open, cautiously, tentatively. In February 2013 Benedict XVI resigned the papal office, and the following month Jorge Bergoglio, an Argentinian cardinal, was elected to fill the vacancy and assumed the name Francis.
The Era of Pope Francis
“Who Am I to Judge?”
Within months of his election, Pope Francis began to set a different tone on the question of the Catholic Church and sexual orientation. In the summer of 2013, on board the papal aircraft while returning from a visit to Brazil, Pope Francis said, regarding gay persons, “Who am I to judge?” “Who am I to judge if they're seeking the Lord in good faith?”Footnote 208 The question was narrowly focused on gay priests. The answer was expansive and open-ended. As he continued to answer his own question, Francis paraphrased the Catechism, but omitted section 2357, with its references to grave depravity and intrinsic disorder.Footnote 209
Indeed, Pope Francis has consistently avoided reference to that portion of the catechism. In fact, it has become clear that the pope does not wish to think or express himself in those categories. One may thus consider the way in which he elaborated on his airplane press conference in an interview he granted to the Jesuit editor of La Civiltà Cattolica, Father Anthony Spadaro. “A person once asked me,” the pope informed his interlocutor, “if I approved of homosexuality. I replied with another question: ‘Tell me: when God looks at a gay person, does he endorse the existence of this person with love, or reject or condemn this person?’”Footnote 210
Later in the same interview, Father Spadaro asked the pope about Christian anthropology and the evolution of doctrine: “Human self-understanding changes with time,” the pope responded, “and so also human consciousness deepens.”Footnote 211 Pope Francis also reminded Father Spadaro that the church once endorsed slavery and had no objections to the death penalty, but now rejects both practices. “So we grow in our understanding of the truth.”Footnote 212
Since the granting of this interview, Pope Francis has taken further steps to signal, at least, a willingness to rethink long-held positions on same-sex relations. During his visit to the United States in late September 2015, Pope Francis sent a message of inclusiveness when it was made public that he privately received at the papal embassy in Washington, DC, a former high school student of his and his gay partner.Footnote 213
And once again, in the summer of 2016, in the context of another airplane interview, this time on a flight back to Rome from Armenia, the pope took up the question of apologies to the gay community. “The Church,” he said, “must say it's sorry for not having comported itself well many times, many times.”Footnote 214 And among these apologies, the pope insisted, Christian must express their sincere regrets to gay persons for the historically horrific ways they have been treated.Footnote 215
Finally, in May 2018, a gay man who was the victim of clerical sexual abuse in Chile had a chance to meet with Pope Francis and reported news regarding the pope's openness gay persons. The pope was said to have told Juan Carlos Cruz, the Chilean, that “you are gay does not matter. God made you like this and loves you like this and I don't care. The Pope loves you like this. You have to be happy with who you are.”Footnote 216 The pope neither confirmed nor denied the conversation, but Catholic thinkers were nevertheless quick to herald its significance.Footnote 217 James Martin thus noted that the pope's statement was “a big deal. I cannot remember the pope making a comment about gay people being born that way.”Footnote 218
The Synod of Bishops (2014)
Synods of bishops are a fairly routine occurrence in the life of the Catholic Church, and during the pontificates at least of John Paul II and Benedict XVI, they took on the appearance of little more than ratifying conventions. A pre-scripted agenda would be prepared, the bishops and pope would play their assigned roles, and reports and documents would issue some months (or years) later, summarizing the proceedings.
The Synod of Bishops’ Extraordinary General Assembly on the family in the fall of 2014, however, took on a decidedly different character when Pope Francis indicated that it would be opened to debate and all the differences in opinion that were thereby entailed.Footnote 219 The working document—an instrumentum laborum, to borrow the canonical term of art—signaled that the question of same-sex relations was actually open to debate.
Thus while the text rejected the possibility of same-sex marriage, it also stated that it was the experience of bishops’ conferences, in nations that allow for same-sex marriage or civil unions that “many of the faithful express themselves in favour of a respectful and non-judgmental attitude towards these people and a ministry which seeks to accept them”Footnote 220 The working text went to cite that “[m]any responses and observations [of bishops and other consultants] call for theological study in dialogue with the human sciences to develop a multi-faceted look at the phenomenon of homosexuality.”Footnote 221
Absent from this text were the fulminations that characterized the Congregation for the Doctrine of the Faith under Ratzinger's rule. There was no call for wholesale Catholic political action against gay and lesbian rights. Absent as well was the rigorous—and rigorously exclusionary—logic of John Paul II. In its place was dialogue, openness, a spirit of compromise, with room even being made for the “human sciences,” which in context could mean everything from anthropology to neurology.
The synod stretched over most of two weeks in October 2014 and featured exceptionally lively debate. The first week witnessed a series of proposals by bishops to expand the working document in the direction of greater inclusivity. To speak of “living in sin,” to refer to homosexuality as “intrinsically disordered,” to denounce a “contraceptive mentality” were all seen as outdated labels worthy of rejection.Footnote 222 Father Thomas Rosica, a communications consultant to the Vatican, even declared that “[t]here was a great desire that our language has to change in order to meet the very difficult situations.”Footnote 223
A large number of suggestions were advanced along more substantive lines. Catholics were encouraged to be “accepting and valuing” of homosexual orientation though not at the expense of Catholic doctrine.Footnote 224 Bishops spurred their fellow prelates to find the “constructive elements” in gay relationships and recognize that “homosexuals have gifts and qualities to offer Christians.”Footnote 225 Gay and lesbian people look to the church, it was declared, and wish to find there “a welcoming home.”Footnote 226
A draft containing these proposals succeeded in winning the support of the majority of the bishops and fell just short of the two-thirds required to make the language a part of the official report.Footnote 227 A number of Catholic commentators were nonetheless very pleased with the results. Austen Ivereigh, Paul Vallely, and Michael Walsh all viewed the progress as gaining an almost irreversible momentum.Footnote 228
The progressive secular writer Jonathan Capehart shared the enthusiasm of the moment: “by talking about the humanity of gay and lesbian Catholics and worrying about their place in the church, Pope Francis is openly recognizing them as children of God. After centuries of demonization, that's a revolutionary act that can't be undone.”Footnote 229 It was left to Andrew Brown, the curmudgeonly British critic of religious belief, to issue a warning: conservatives comprise “a small minority” within the church but they were well organized, strategic in their thinking, and were preparing to mount a resistance that could even lead to schism.Footnote 230
Statements and Actions by Leading Prelates
The Synod served as an invitation to leading ecclesiastical figures to drive the analysis forward. Vincent Cardinal Nichols of Westminster wished the final document had been stronger. “I didn't think it went far enough,” Nichols stated to the press.Footnote 231 Other leading prelates staked out similarly strong positions. Josef de Kesel, elevated to the rank of cardinal in 2016, thus spoke of his respect for gay persons, including “their way of living their sexuality.”Footnote 232
Bishop Johan Bonny of Antwerp has called upon the church to recognize “the kind of interpersonal relationship that is also present in many gay couples. … The Christian ethic is based on lasting relationships where exclusivity, loyalty, and care are central to each other.”Footnote 233 In a pastoral document he circulated within his diocese, Bishop Bonny described the church as the “traveling companion” to persons in committed relationships, including gay couples: “such situations deserve more respect and a more nuanced evaluation than the language of certain Church documents.”Footnote 234
Cardinal Reinhard Marx of Munich-Freising—the episcopal see where Joseph Ratzinger served as archbishop from 1977 to 1982—stated, “You cannot say that a long-term relationship between a man and a man, who are faithful, is nothing. That it has no worth.”Footnote 235 Two years later, in early 2018, Cardinal Marx added that he would consider whether to bless same-sex unions on a case-by-case “individualized” basis.Footnote 236
Some senior American ecclesiastics have endorsed a similar openness. Blase Cupich, the cardinal-archbishop of Chicago, has made it a point to welcome gay and lesbian persons to the church.Footnote 237 This includes the reception of Holy Communion by gay couples.Footnote 238 Joseph Cardinal Tobin of Newark took the historic step of welcoming a pilgrimage of gay and lesbian Catholics to his cathedral church.Footnote 239 Bishop Robert McElroy has criticized some conservative Catholics for their “corrosive and repugnant” attitudes on questions of gay rights.Footnote 240
To be sure, there are also bishops who are resisting these trends. The operatic bishop of Springfield, Illinois, Thomas Paprocki, staged a public exorcism on the occasion of Illinois’ approval of same-sex marriage legislation.Footnote 241 The divisive and extreme bishop of Madison, Wisconsin, Robert Morlino,Footnote 242 has determined that he will not permit the burial in Catholic cemeteries of spouses in same-sex marriages.Footnote 243 Andrew Brown was not wrong in 2014 to warn of rising reactionary elements in some corners of the church.
The Sensus Fidelium
It is at best a pious legal fiction, at worst a self-deceiving illusion, to believe that doctrine in the church is handed down from an all-knowing hierarchy to a submissive and obedient flock and that this transmission takes place without regard to larger events in society and world. Whether one speaks of the church's rejection of its former approval of slavery,Footnote 244 or the acceptance, after centuries of denunciation, of the principle of religious liberty,Footnote 245 or the many other fundamental shifts in the church's teaching, it does violence to history to suggest that these developments took place in a vacuum.
On the contrary, these changes in church teaching were the result of larger shifts in public consciousness brought about by fundamental changes external to ecclesiastical authority or even the church. And on the subject of same-sex relations, we have witnessed over the last decade a sea change in Catholic attitudes on a global scale. To catch a glimpse of the comprehensiveness of these shifts, one might consider political developments in three traditionally Catholic countries, Spain, Argentina, and Ireland.
In Spain, after years of confrontation, the gay rights movement began to press in the early 2000s for equal status and recognition at law.Footnote 246 José Luis Rodríguez Zapatero, who had been an academic lawyer before entering politics as a Socialist, was ready to extend his support to this movement following his election as prime minister in 2004.Footnote 247 A bill was introduced in parliament in April 2005,Footnote 248 and that summer Spain became the world's third country to adopt full marriage equality.Footnote 249 Ten years later, in 2015, Zapatero boasted: “88 percent of Spanish people consider homosexuality to be socially acceptable, compared with 60 percent of Americans.”Footnote 250
Following the Spanish approval, the question of same-sex marriage was heavily debated across Latin America. In 2010, Argentina took up the issue,Footnote 251 under the influence of a developing body of international principles and law.Footnote 252 Although the legalization of gay marriage was famously opposed by the archbishop of Buenos Aires,Footnote 253 the future Pope Francis, it nevertheless was enacted into law in the summer of 2010.Footnote 254 Argentina thus became the first nation in Latin America to extend full marital rights to gay and lesbian couples.Footnote 255
The campaign for marriage equality, however, would reach a crescendo in Ireland. By 2011, considerable pressure had formed to accord full marital rights for same-sex relationships.Footnote 256 The Irish Constitution, however, had been judicially construed as permitting only heterosexual marriage.Footnote 257 Enda Kenny, elected taoiseach (prime minister) in 2011, after a period of vague equivocation,Footnote 258 announced plans in 2013 to put the question of amending the Constitution to a popular referendum.Footnote 259
The hierarchy actively engaged the issue. The conservatives were led by Cardinal Sean Brady, who had resigned from his position as archbishop of Armagh and primate of Ireland under pressure for his role in the sex abuse scandals rocking the Irish Catholic Church.Footnote 260 Brady simply proved unable to rally the forces of opposition.Footnote 261 At the grassroots, however, a powerful upwelling of Catholic support for same-sex unions was detected.Footnote 262 An influential priests’ group chose to remain neutral, which in context was read as a tacit endorsement of the referendum.Footnote 263
Diarmuid Martin, the archbishop of Dublin, was openly conciliatory. At the very beginning of the campaign, he cautioned church leaders against harsh and insensitive language, reminding them that Jesus's harshest words were reserved not for sinners but for religious hypocrites.Footnote 264 In an editorial in the Irish Times shortly before the vote, Martin conceded that “gay and lesbian people can be good parents, just as heterosexual people can be bad parents.”Footnote 265 “Marriage” he added, “is about love, marriage is about commitment, and marriage is about family.”Footnote 266 He defended the idea of male-female complementarity, but he stressed that he had “no wish to stuff my religious views down other peoples’ throats.”Footnote 267
When the referendum passed in a virtual landslide (1,201,607 in favor, 734,300 opposed),Footnote 268 Martin gracefully described the result as “a reality check.”Footnote 269
Writing in the aftermath of the Irish vote, Omar Encarnación reflected on “the apparent paradox of Catholic nations leading the world on gay rights.”Footnote 270 The trend, he noted, was unmistakable: “Overwhelmingly Catholic nations”—Spain, Argentina, Ireland—had become global trendsetters on same-sex unions. Encarnación, however, wished to see local controversies—Spanish and Latin American anti-clericalism, Irish anger over the pedophilia crisis—as playing a decisive role, rather than anything internal to Catholic thought.Footnote 271
I suggest a rather different explanation. Perhaps there is something larger occurring within Catholicism that is prompting and channeling this phenomenon. The last two generations of Catholics, at least, have been raised and catechized to value human relationships and to appreciate the centrality of human dignity in the ways others are treated.Footnote 272 No contemporary controversy has made the question of dignity more central to its outcome than the same-sex marriage debate. Human dignity demands that one's deepest needs for intimacy be respected. And the logical corollary is that all persons, regardless of sexual orientation, must be given the same opportunity to achieve public recognition and endorsement for their most important relationships.
Conclusion: Mercy, Scripture, Doctrinal Change
Catholic law and teaching is dynamic and evolutionary. This is the case even on the subject of same-sex relations, where we have seen substantial change at least in the rationales undergirding the prohibition. The manualists recommended a one-size-fits-all, static, acts-centered approach. The judges of the Roman Rota, on the other hand, made generous use of psychiatric evidence, at least so long as it remained supportive of the outcomes that they wished to achieve. And when science altered its view of same-sex relationships, we saw a retreat into a theology of the body that on its own terms was impermeable to external criticism. And, since 2013, we have seen a remarkable shift in the other direction, as priests, ecclesiastical officials, and most of all the Catholic laity have demonstrated support for same-sex unions.
That Catholic law and doctrine seem on the cusp of dramatic change is not an unusual occurrence in the life of the church. Indeed, the history of the church is an account of similar shifts from its earliest days, when the circle around James and Peter yielded to Paul's decision to admit gentiles to the new movement without requiring them first to undergo circumcision.Footnote 273
Consider just some of the other tectonic shifts in church doctrine and practice. There is, for instance, the history of penance and reconciliation. In the earliest church it seems that the accepted mode of forgiveness of sins was through baptism and its regeneration.Footnote 274 In the third and fourth centuries, however, Christian communities had to deal with an unanticipated problem: what to do about believers who had committed grave acts of wrongdoing after becoming Christian? Writers like Clement of Alexandria and Origen responded to this need by proposing a penitential process that could reconcile truly grave sinners to the church after a long period of trial and repentance.Footnote 275
In the early middle ages, this method of forgiving sins was replaced by a different system, imported to Europe from Irish monasticism. Penance was now repeatable—one might seek out confession as many times as one wished—and access was not limited to the gravest of sins, but could encompass any form of wrongdoing.Footnote 276 Two lessons stand out: First, in adopting this system, the church greatly expanded the reach of mercy to address people's emotional need for reassurance about salvation. And, second, the church made clear that doctrine was evolutionary and it moved in the direction of greater mercy.
If the church could alter its institutions to accommodate a felt need for mercy, the church radically revised its scriptural exegesis on a variety of questions, but perhaps none more so than on the topic of anti-Semitism. The New Testament contains numerous anti-Jewish passages. There is the exchange between Jesus and “the Jews” in John 8:31–45. Jesus is recorded as telling his listeners, “I know that you are descendants of Abraham yet you seek to kill me because my word finds no place in you.”Footnote 277 This colloquy concluded with Jesus saying to the Jews, “you are of your father the devil, and your will is to do your father's desires”Footnote 278 Elsewhere, we see “the Jews” “persecute” Jesus because he worked miracles on the Sabbath.Footnote 279 In Matthew's Passion, the Jewish crowds chanted to Pontius Pilate, “His blood be on us and on our children.”Footnote 280 The Book of Revelation spoke of “Jews” who form “a synagogue of Satan.”Footnote 281
These and other similar passages provided scriptural warrant for nearly two millennia of persecutions of Jews by Christians. Jews were forced to wear distinctive clothingFootnote 282 and required to live in restricted ghettos.Footnote 283 Medieval popes and preachers condemned the Talmud.Footnote 284
This sort of hostility persisted into the twentieth century. With the fall of the papal state, the final decades of the nineteenth century witnessed “the growth of a Catholic anti-Semitism that was much more aggressive than its medieval counterpart or even that of the Counter-Reformation.”Footnote 285 This Catholic anti-Semitism persisted into the twentieth century and was common both to Europe (such as the French clergy's involvement in the Dreyfus Affair),Footnote 286 and in America (such as the vulgar ranting of the radio priest Charles Coughlin).Footnote 287 Until the end of the 1950s, the Good Friday liturgy contained denunciations of the Jews and prayers for their conversion.Footnote 288
Such anti-Semitism, of course, became unthinkable following the unspeakable horror of the Holocaust. The experience of the Shoah revealed just how deadly all forms of anti-Semitism could be. And post–World War II Catholicism responded by radically revising its teaching.Footnote 289 John Paul even came to describe Jews as “elder brothers in the faith.”Footnote 290
And if scriptural exegesis can shift so fundamentally, so has the church's exposition of the natural law. One might consider usury. Jesus taught, “Lend freely, asking nothing in return.”Footnote 291 The passage was embedded in Jesus's admonition to love one's enemies,Footnote 292 but this did not stop medieval philosophers and lawyers from taking it literally. Thus a medieval pope like Urban III (1185–1187) could declare that “Lend freely, asking nothing in return” was manifestly the rule that should govern commercial credit transactions.Footnote 293 Judge John Noonan summarized the mind of the legislator that stood behind decrees like this: “Absolutely, unequivocally, without exception, all return on a loan was condemned.”Footnote 294 A seemingly impregnable natural-law case against usury was created.
Indeed, Dante made usury a greater crime than sodomy. In Cantos 14 through 16 of the Inferno, he encountered groups of sodomites, including his old teacher Brunetto Latini and other once upstanding citizens of Florence consigned to hell for their sexual misdeeds.Footnote 295 The usurers he met in Canto 17 had a much less pleasant existence.Footnote 296 In terms of the severity of penalties, for Dante, at least, usury was worse than sodomy.
And yet the church's teaching on usury dramatically changed in the early modern and modern periods, as the hierarchy came to reflect on the business needs and credit practices of Christian merchants and bankers. And if usury, a greater sin than sodomy in Dante's eyes, can be revisited and revised, one must ask whether the same revision will someday occur where same-sex relations are concerned.
Acknowledgments
I thank Michael Robak and his dedicated staff of law librarians. I also thank Curtis LeMay and the library staff of the Ireland Theological Library.
