Same sex marriage is not a human right - UPDATED

According to the BBC News reporting:

The US Supreme Court has ruled that same-sex marriage is a legal right across the United States.

But it is interesting to note that the European Court has ruled that the European Convention on Human Rights does not impose on countries adhering to the Convention an obligation to legalise same sex marriage - see here, paragraphs 60-64. And by a strong implication, since the European Convention is in some respect derivative from it, this suggests that the UN Universal Declaration of Human Rights likewise does not articulate any right of same sex couples to marry as being a human right.

Article 16 (1) of the UN Declaration, therefore, should be seen as articulating only a right of a man and a woman to marry:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

As with all the human rights expressed in the UN Declaration this is a right that is universal (it applies equally to all men and women), and it is inalienable (that is, in the context of this post, it is neither conveyed by the positive law of a country and nor can it be taken away by that law).

According to the preamble to the  UN Declaration:

.... human rights should be protected by the rule of law ....

In other words, it is not the proper task of the law to convey human rights that do not in fact exist. It is rather the task of the law to protect and allow the exercise of rights that arise from the very nature of the human person, that is, rights that are universal and inalienable. A system of law that attempts to create a human right has overstepped its competence.

So, as we read the news of the US Supreme Court decision, I think we should be careful to recognise, first of all, what the decision has and has not done. And then we should also resist the suggestion that the decision is one that makes the United States a more equal or fairer place - in so far as the decision does not protect a recognised human right it can only be seen as being neutral in this regard.

UPDATE 1: Neil Addison analyses the dissenting judgements of the US Supreme Court here - and, interestingly, the dissenting judges appear to be raising a question about the Court's action from the point of view of the nature of law, but in a rather different way than I suggest above. There is a further post by Neil Addison here.

UPDATE 2: The President of the Conference of Catholic Bishops in the United States has issued a statement, the full text of which can be found here. The opening paragraph of the statement reads:

Regardless of what a narrow majority of the Supreme Court may declare at this moment in history, the nature of the human person and marriage remains unchanged and unchangeable. Just as Roe v. Wade did not settle the question of abortion over forty years ago, Obergefell v. Hodges does not settle the question of marriage today. Neither decision is rooted in the truth, and as a result, both will eventually fail. Today the Court is wrong again. It is profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a marriage

First Glance at Laudato si

I have just had my first very quick read of some parts of Pope Francis' Encyclical Letter Laudato si.

I haven't by any means read it all, but have read enough to recognise that to characterise the Encyclical as being "about climate change" is simply not to do it justice. It contains a very wide ranging account of mankind's relation to the rest of the created world, and of the relation of that created world to its Creator. This theme in particular tempted me to reflect that, if one follows Pope Francis teaching, one would avoid the danger of an ecological concern that becomes an ideology because it is divorced from a relation to a Person. There is no possibility of coming away from a reading of Pope Francis' encyclical without recognising a teaching about the specific place and dignity of the human person among God's creatures.

Three quick thoughts.

1. I was very interested in Pope Francis' attribution to St Francis of Assisi of what he terms an "integral ecology". The account of St Francis' attitude to the created world in nn.10-12 of the Laudato si appears to me rich in its implications for how we understand St Francis life and his thought.

2. Am I right to recognise in the following passages something of the thought familiar to the FAITH Movement? See here,  here and here.

In this universe, shaped by open and intercommunicating systems, we can discern countless forms of relationship and participation. This leads us to think of the whole as open to God’s transcendence, within which it develops. Faith allows us to interpret the meaning and the mysterious beauty of what is unfolding.... [n.79]

Human beings, even if we postulate a process of evolution, also possess a uniqueness which cannot be fully explained by the evolution of other open systems. Each of us has his or her own personal identity and is capable of entering into dialogue with others and with God himself. Our capacity to reason, to develop arguments, to be inventive, to interpret reality and to create art, along with other not yet discovered capacities, are signs of a uniqueness which transcends the spheres of physics and biology. The sheer novelty involved in the emergence of a personal being within a material universe presupposes a direct action of God and a particular call to life and to relationship on the part of a “Thou” who addresses himself to another “thou”. The biblical accounts of creation invite us to see each human being as a subject who can never be reduced to the status of an object. [n.81]

The ultimate destiny of the universe is in the fullness of God, which has already been attained by the risen Christ, the measure of the maturity of all things. Here we can add yet another argument for rejecting every tyrannical and irresponsible domination of human beings over other creatures. The ultimate purpose of other creatures is not to be found in us. Rather, all creatures are moving forward with us and through us towards a common point of arrival, which is God, in that transcendent fullness where the risen Christ embraces and illumines all things. Human beings, endowed with intelligence and love, and drawn by the fullness of Christ, are called to lead all creatures back to their Creator. [n.83]

3. In the account of "Technology: Creativity and Power" [n.102 ff], Pope Francis refers six times to the thought of Romano Guardini. The particular work referred to has, in English translation, the title The End of the Modern World, though I suspect the original German title, Das Ende der Neuzeit, contains a subtlety lost in the English. My own familiarity with Guardini's thought on the theme of technology, nature and the human person comes from another book, Letters from Lake Como. Two visits to Lake Como in the space of the last year have given me a deeper appreciation of Guardini's book. I was delighted - and not surprised - to see Pope Francis obvious familiarity with Romano Guardini and his willingness to cite him in Laudato si.

See here for an account of the influence of Romano Guardini on Pope Francis and in Laudato si.

St Charles Lwanga and Companions: an opportunity to comment on recent events

Today sees the celebration in the Catholic Church of the feast of St Charles Lwanga and Companions. The account of their martyrdom below is based on Butler's Lives of the Saints New Concise Edition:

In the interior of central Africa the first Catholic missions were established by the White Fathers in 1879.In Uganda some progress was made under the not unfriendly local ruler, Mtesa, with catechumens being prepared for baptism; but his successor, Mwanga, determined to root out Christianity from among his people.  

Mwanga was an active homosexual, and his hostility towards Christianity was made worse when Christian boys in his service refused to give in to his sexual advances. Joseph Mkasa, a Catholic, reproached Mwanga after the killing of a protestant missionary and his team. He also reproached Mwanga for his lifestyle. Mwanga beheaded Joseph Mkasa.  

The following May, Mwanga was infuriated when he learnt that a servant he had sent for had been receiving instruction from one of his fellow servants, Denis Sebuggwawo. Denis was sent for, and the king killed him by thrusting a spear through his throat. Charles Lwanga, who had succeeded Joseph Mkasa in charge of the servants, secretly baptised four of them who were catechumens, including Kizito, a boy of thirteen whom Lwanga had repeatedly saved from the designs of the king. The next day, the servants were drawn up before Mwanga and the Christians were ordered to separate themselves from the rest. Led by Mwanga and Kizito, the oldest and the youngest, they did so - fifteen young men, all under twenty five years of age. They were joined by two others already under arrest and by two soldiers.  

Mwanga asked them if they intended to remain Christians. " Till death” came the reply. “Then put them to death”, said the king. Three of the young people were killed on the road to the execution site. The others were burnt to death on a pyre on 3rd June 1886.  

The persecution continued, with both protestants and Catholics giving their lives rather than denying Christ. Charles Lwanga and 21 others, including 17 royal servants, were beatified in 1920 and canonised in 1964.

A more recent testimony on behalf of the Church's teaching with regard to same sex relations is that of Rocco Buttiglione, in 2004. What follows is an extract from a speech given by Rocco Buttiglione, Italian Minister of European Affairs, at the VI Congress on Catholics and Public Life, in Madrid, Spain, on November 20, 2004

As you know, I was recently a candidate to be a European Commissioner. And as you also know, I was rejected for the position for expressing my Catholic beliefs on sexuality and marriage at the hearing (before the appointment). One may think: If we cannot express our principles in public we will seem to be ashamed of them. ….  

I was not ashamed; but I was not provocative. I was prudent. I don't know if God would give me the courage to offer my head for my faith, like St. Thomas More... But a seat on the EU commission – yes, that I can offer. …  

They introduced the category of sin into the political discourse, and I said "No, in politics we may not speak of sin. We should speak of non-discrimination, and I am solidly opposed to discrimination against homosexuals, or any type of discrimination." I did not say that homosexuality is a sin, as many newspapers reported. I said, "I may think." It is possible that I think this, but I did not tell them whether I think it or not. What I think about this has no impact whatsoever on politics, because in politics the problem is the principle concerning discrimination and I accept that principle.  

That was not enough. They wanted me to say that I see nothing objectionable about homosexuality. This I cannot do because it is not what I think. In the Catechism of the Catholic Church it is written that, from a moral point of view, homosexuality is not a sin but rather an objectively disordered condition. Homosexuality can become a sin if one adds the subjective element, which is to say, full knowledge that this is wrong and also freedom of the will which accepts this wrong position. I was not allowed to say that and for this reason I was deemed not worthy to be a European commissioner.  

Catholics have the right to hold positions in the European Union. Is it conceivable that Catholics can be prohibited from exercising public office because of their Catholicism? Because they take the Church's position? Some say that the Catholic position on sexuality is aberrant, and this view should be grounds for discrimination at the EU, or in regard to holding public office. I do not want this to become accepted practice. They have established that a Catholic who says that perhaps it is possible that homosexuality would be a sin can be discriminated against. I found myself in a position in which I clearly had to decide with respect to whether I would keep my position, between my faith (or if not my faith at least the doctrine of my faith) or to accept being discriminated against. For my faith I was able to sacrifice a seat in the EU, which is not such an important thing. Ultimately, this is what happened.

At the present time, the question that Catholics face in this regard arises from the legalisation of marriage between people of the same sex. How do we go about maintaining a testimony in favour of the Church's teaching in the circumstances created by the recent referendum in the Republic of Ireland and the earlier legalisation of same sex marriage in the United Kingdom?

In France, the movement Manif pour tous, and the vigil movement that started on the edge of its protests against "la loi Taubirau", have used the term "resistance" to articulate a permanent stance in favour of their opposition to the law. It is of great interest to me that these movements are not explicitly Catholic - indeed, the vigil movement is expressly non-denominational/non-religious and the suggestion recently in the Catholic Herald that Manif pour tous had largely ecclesial backing from the Catholic Church is not one that I share. The statement from Senator Mullen after the referendum in the Republic of Ireland suggests the emergence of a similar movement, at least in sentiment, in that country. These movements call, not for the engagement of the Catholic Church as institution, but for the engagement of citizens, the lay faithful, translating into a lived experience "in the world" of  a stance rooted in their Catholic belief. It is their proper "office", irreplaceable by the action of clergy or religious in the Church.

I have not thought through the full implications, but I do think there is something to be said for Catholic priests/parishes no longer acting as the civil registrars of marriages conducted in their churches. It would provide one way of clearly saying that the term "marriage" in a Catholic Church is not the same as the term "marriage" in a register office. However, whilst this suggestion might provide a testimony on the part of the officiating Catholic priest, it still leaves the couple themselves with the compromise of their testimony when they have additionally to go through the civil form of marriage at the register office. And perhaps the compromise of testimony has been there in a different way for many years already, by way of legal provision for divorce.