Pope Francis on Same Sex Unions and the Case for Regulatory Reform

Pope Francis on Same Sex Unions and the Case for Regulatory Reform March 11, 2014

Peter Finds Tribute Coin in the Mouth of the Fish
Jacob Jordaens [Public domain or Public domain], via Wikimedia Commons
Rebbecca Hamiliton reports here on the recent CNA interview with Pope Francis, in which he comments on the prospect of same-sex civil unions.  Here’s the money quote, from the bottom of her post:

Many nations have regulated civil unions. Is it a path that the Church can understand? But up to what point?

Marriage is between a man and a woman. Secular states want to justify civil unions to regulate different situations of cohabitation, pushed by the demand to regulate economic aspects between persons, such as ensuring health care. It is about pacts of cohabitating of various natures, of which I wouldn’t know how to list the different ways. One needs to see the different cases and evaluate them in their variety.

I’ve been wanting to discuss this because of all the ways that one might approach the question of same-sex unions, the economic and regulatory question was the primary theme that kept recirculating in my combox last week when I wrote on similar topics.  To a limited extent, it is the one argument that resounds most with ordinary people, and it resounds for good reason: Our legal system is screwed up.

Here’s a scenario that was related to me several months ago, true story but as always I’ve paraphrased enough to protect everyone’s privacy:

Dan and Bill were a couple of really nice guys, and no matter how you sliced it, they epitomized genuine love and care for one another.  They’d been housemates for years.  Dan was estranged from most of his relatives, and Bill was the person he considered his family.  When Dan got sick, Bill took care of him.  But because Bill was not, legally, Dan’s next of kin, they ran into all kinds of complications.  Dan’s mother (a real tyrant, let’s say) kept trying to interfere.  The hospital put up barriers to Bill’s attempts to visit Dan, to direct medical decisions according to Dan’s wishes, and so forth, even though no one in their right mind would have doubted that Bill was the person who was both Dan’s choice for doing that, and the person most capable of it.  Because he’d never gotten around to writing a will before he fell ill at a relatively young age, when Dan died, Bill was left with nothing.  The legal next-of-kin swooped in and claimed Dan’s home and kicked Bill out on the street with no place to go.

My telling here is based on real events, and you probably know of a similar story.  Should Dan have gotten his will straightened out?  Sure.  But try it sometime: Writing a will seems easy, but being sure you’ve written one that will hold up in court is intimidating.  Add to that all the other paperwork required just to get some basic wishes concerning hospital visits, medical care, and so forth figured out . . . It can be a nightmare.  Exhausting.

If the folks in your community know you, and like you, and are on board with your choice of self-chosen next-of-kin, the hospital and medical thing doesn’t have to be a problem.  But one doubtful hospital administrator or psychotic-but-closely-related kinsman, and you’ve got a battle on your hands just when you’re least able to do battle.

And here is where I think the Holy Father may be thinking out loud, and where I most certainly am: When it comes to basic questions of social justice, it doesn’t matter what the relationship between Bill and Dan is.

Are they cousins?  Old college roommates?  Longtime colleagues?  Brothers?  Just a couple of very good friends?  There are any number of perfectly legitimate scenarios that would put someone in the same legal bind that same-sex couples face.  Even if Dan and Bill’s relationship is not chaste in the least, Dan still has a right to depose of his earthly goods, and direct the final decision-making in his medical care, and receive visits at the hospital, in the manner he chooses.

The reality is that every unmarried person, and a certain number of married persons for various unfortunate reasons, needs to be able to make certain legal decisions easily.  In much of the United States, doing so is a royal pain in the rear end.  We bumble along and hope things shake out well.  They don’t always.

The Limits of Broad-Minded Legal Reform

Of the various privileges and protections afforded to married people, some are strictly ordered towards child-rearing and the protection of the family as the foundational unit upon which society is built.  American regulatory law being the vast, complicated, and slightly-corrupt tangle that it is, we can also point to any number of laws that undermine the good of the family.  I will roll my eyes if you say to me, “Heterosexual couples have the right to designer babies imported from surrogates in India, so I should too!” because no one should have the right to commandeer a mail-order baby to gratify one’s personal sense of a “right” to a child.  Such unjust laws and loopholes need to be repealed and closed, not extended and expanded.

Pause for frankness: In considering the possibility of civil-union-type solutions to social justice problems, let me emphasize that I do not think same-sex unions should be recognized by the state as analogous to marriage, in accordance with all that Rebecca Hamilton cites in quoting John Paul II.   This colors my regulatory viewpoint, certainly.  My worthy opponents, desiring to enter into a serious and committed relationship, will I hope concede that romantic interest and not raw greed is their primary motivation in wishing for marital legal status.  If you just want to lower your taxes, there are better ways.

With all our respective biases on the table, let me nonetheless propose: I don’t think legal unions are the best way to solve our existing regulatory-justice problems.

Why do I say this?  Because I don’t think that basic rights like the ability leave your property to whom you will, or be visited at the hospital by whom you will, are the sole province of those in stable long term relationships. It is not “justice” to say, “We who form stable romantic attachments need health care benefits the rest of the unwashed just don’t.”

Of course not.

Where does that leave us?

As an argument for legal reform, concerns of same-sex couples about the complexity of our existing laws have sound basis.  The solution, however, is not to welcome a privileged few into the easy life of simplified legal partnership that can only be undone via yet more complex and expensive legal separation.  The solution is to simplify the processes for managing all the basic legal situations that ordinary people of all types must deal with sooner or later.

I assume that the Holy Father’s willingness to consider certain specific legal unions is oriented towards some imaginable scenario, somewhere in the world, where legal recognition of a ‘household’, say, might in fact for whatever reason to be the most prudent path.  But I’m not one those people he calls every month to chat with, so my perception is only conjecture.

As an argument for same-sex unions, we must look elsewhere. While certain noisemakers are arguing that simple jealousy is reason enough to admit all-comers into the ecstasy of a jointly-filed 1040, in my experience, those who take marriage seriously are proposing same-sex unions for other, more laudable reasons.  I disagree with their conclusions, but that’s a topic for a different day.

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