The Conflict of Interpretations Over What Pope Francis Said About Civil Unions

The Catholic News Agency (CNA) recently reported that in the new documentary film, Francesco, Pope Francis said the following to documentary filmmaker Evgeny Afineevsky:

Homosexuals have a right to be a part of the family. They’re children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it. What we have to create is a civil union law. That way they are legally covered. I stood up for that.

This article sparked enormous controversy, lighting up the internet and social media with uproar about how Pope Francis has, once again, made a mess in the streets and is nowhere in sight to clean it up.  

However, the video clips used in Francesco were, apparently, not previously released by the Vatican (who maintained control of the original footage) to the original interviewer, Valentina Alazraki, a Mexican journalist—not Afineevsky. The remark concerning the “right to a family” for same-sex couples has been shown to be a mishmash of clips and excerpts from the same 2019 Alazraki interview. It is curious that these comments were ripped from their immediate context and spliced together, seeing as they are open to such widely different interpretations.

Following the initial news report, CNA issued an explainer clarifying the apparent meaning of Francis’s words by reference to his previous statements on the topic:

Some have suggested that when Pope Francis spoke about a “right to a family,” the pope was offering a kind of tacit endorsement of adoption by same-sex couples. But the pope has previously spoken against such adoptions, saying that through them children are “deprived of their human development given by a father and a mother and willed by God,” and saying that “every person needs a male father and a female mother that can help them shape their identity.”

In response to the question, “Some people have said what the pope taught is heresy. Is that true?,” the article asserted that: “No. The pope’s remarks did not deny or call into question any doctrinal truth that Catholics must hold or believe. In fact, the pope has frequently affirmed the Church’s doctrinal teaching regarding marriage.”

This remains a point of very sharp contention for many, for it does not seem clear how Pope Francis’s statement about civil unions could be squared with the teaching found in the Congregation for the Doctrine of the Faith’s 2003 document “Consideration Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons,” which says that “all Catholics are obliged to oppose the legal recognition of homosexual unions.” Two main questions, then, ought to be addressed. Are Pope Francis’s remarks, as reported, incongruent with prior magisterial teaching? And, what is Pope Francis getting at with such a proposal anyway?

I. Francesco and the CDF

Again, Pope Francis appears to have said two things of note: 

1. homosexual persons have a right to be a part of a family and should not be unjustly discriminated against, and
2. governments should create a “civil union law” (a conviviencia civil) that would provide legal coverage or protections.

While some might interpret the “right to be a part of a family” and the “right to a family” as Francis’s approval of same-sex couples to acquire children, his comments immediately following these statements offer important clarification as to what he meant: “Nobody should be thrown out,” says Pope Francis, “or be made miserable because of it.” This clearly shows that he is referring to an already existing family of which such persons are already members as sons and daughters, brothers and sisters and cousins, uncles and aunts.

From the actual transcript of the original 2019 interview, which can be accessed (in Spanish) here, it is clear that Francis is calling for acceptance of persons, not their actions. Christian love calls for nothing less, and Francis has repeatedly opted for inclusion rather than exclusion.

With respect to Francis’s remarks concerning the creation of a “civil union law,” when considered in light of his previous teaching, it is clear that he is not saying that same-sex unions should be protected because they are same-sex unions, but because they involve a sharing of individual lives, and would also include the legal unions of unmarried siblings or even friends.

The benefits of such legal unions could include tax benefits, health insurance coverage, inheritance dynamics, and more. This in no way implies equivalence to actual marriages, but would merely make accessible certain contingent benefits of civilly recognized marriages that are not themselves unique to the nature of marriage itself. To quote the Archbishop of San Francisco, Salvatore Cordileone:

During our ad limina visit . . . the topic of civil unions came up in conversation. The Holy Father clearly differentiated between a civil arrangement which accords mutual benefits to two people, and marriage. The former, he said, can in no way be equated to marriage, which remains unique.

A government’s recognition and instantiation of such civil union laws could cover and include relationships such as same-sex unions, but it would not legally recognize such unions as same-sex unions. This is an important distinction, although it seems to be lost on many. While Francis’s remarks imply no divergence from the Church’s doctrine on the nature of marriage and sexual morality as articulated in the previously CDF document, is his support for civil union legislation a doctrinal error or a simple change in strategy?

The CDF document, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, can be summarized as follows: homosexual unions, because they are not actual marriages, should not be granted legal standing or promoted by legislation that would legitimize or favor their social recognition. In light of the distinction between laws insuring certain benefits to civil unions as civil unions, which extends beyond same-sex unions but, theoretically and practically, would also include them, and laws that would normalize same-sex civil unions as same-sex unions, such legislation would not contradict the norms outlined by the CDF, unless one considers such civil union legislation to be a law “in favor of homosexual unions,” which the CDF rejects.[1] However, such civil union protections would benefit the members of such a union as a couple that would fall under its provisions, not as a same-sex couple in particular.

Furthermore, as a matter of prudential judgment, the CDF has also given guidance that allows even the support of a civil union law that expressly mentions homosexual unions. While this document is clear that one cannot formally cooperate in the promotion of governmental recognition of same-sex unions, the CDF is equally clear that the Catholic politician may, under certain circumstances, materially cooperate in the instantiation of laws that would technically favor homosexual unions but seek to reduce their impact:

If it is not possible to repeal such a law completely, the Catholic politician, recalling the indications contained in the Encyclical Letter Evangelium vitae, “could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality,” on condition that his “absolute personal opposition” to such laws was clear and well known and that the danger of scandal was avoided. This does not mean that a more restrictive law in this area could be considered just or even acceptable; rather, it is a question of the legitimate and dutiful attempt to obtain at least the partial repeal of an unjust law when its total abrogation is not possible at the moment.[2]

When it comes to the support of laws “in favour of same-sex unions,” then, it is not a simple matter of absolute rejection of all laws that admit of any semblance of support for same-sex unions and an acceptance of nothing except unconditional surrender. Rather, the CDF recognizes that the Catholic must deal with the concrete circumstances of the society in which he or she lives and then respond in such a way that the greatest good is achieved and the greatest evil prevented. Of course, an important difference between what the CDF is stating here and what Pope Francis seems to have said is that Francis appears to be proposing the preemptive creation of civil union legislation (although the missing context could clarify that such is not the case) whereas the CDF states that such legislation could only be justified once a worse variation of legislation has already been passed. To understand this requires considering some examples from history, both theological and practical.

II. Prudential Judgments and the Life of the Church

The question surrounding the possible support for civil union legislation resembles St. Thomas Aquinas’s consideration in Summa Theologiae II-II 10.11 of the possible legalization of prostitution, an inherent moral evil, by the governing authority under certain conditions. As Thomas states:

I answer that, Human government is derived from the Divine government, and should imitate it. Now although God is all-powerful and supremely good, nevertheless He allows certain evils to take place in the universe, which He might prevent, lest, without them, greater goods might be forfeited, or greater evils ensue. Accordingly in human government also, those who are in authority, rightly tolerate certain evils, lest certain goods be lost, or certain greater evils be incurred: thus Augustine says (De Ordine ii, 4): “If you do away with harlots, the world will be convulsed with lust.”

For Thomas, the Church is not required to seek the illegality of all immorality, nor should governments attempt to legislate immorality into non-existence. Rather, certain evils, though not desired, might rightly be tolerated either for the sake of other greater goods or so as to avoid greater evils. Furthermore, the Church has a long history of contending with the less-than-ideal circumstances of societal and family life and advancing positions that might rightly be considered prudentially determined accommodations that seek to make the best of a given situation for the sake of other, greater goods.

Consider, for example, the reality of polygamy in some African countries where this phenomenon has been historically and culturally accepted. While the Church rightly rejects polygamy as contrary to the true nature of marriage, she recognizes that Christian husbands and fathers who terminate their marital relationships with second, third, and fourth wives do in fact have “a grave duty in justice to honor the obligations contracted in regard to his former wives and his children” (CCC §2387).

This is certainly not ideal, for it deprives one’s actual wife and the children that are born from that union from such things as time, attention, care, legitimacy, property, and resources, but it is a matter of navigating the faithful through a difficult and complex situation involving an intrinsic evil (polygamous unions) and making certain accommodations that otherwise would have no bearing on the husband of a wife and father of a family.

The greater goods that are achieved through the husband’s honoring of the obligations that he has to his former consorts and their children is that the latter are better cared for and protected from being set adrift in society without a relatively stable family structure. One should note that this corresponds to the main evil of fornication for St. Thomas, which is a sin “committed directly against human life . . . Now simple fornication implies an inordinateness that tends to injure the life of the offspring to be born of this union.”

Likewise, while the presence of same-sex couples (not homosexual persons) is less than ideal, these individuals nonetheless maintain their dignity as persons and the attendant rights that they have as individuals who have de facto joined themselves to another person in the fashion of a union (and such unions do not necessarily imply sexual activity). How the Church navigates this issue is not as straightforward as her theology of marriage and sexual activity; it requires the discernment of how such people are best respected as individuals who form a life-long partnership as a couple while at the same time recognizing the wide-ranging effects that this has on not only the individuals themselves but also society at large.

For a more recent example, consider the Church’s position on the right to religious freedom. In an ideal world, all people of every nation would freely and joyfully assent in firm faith to the one true faith of the Catholic Church, but we do not live in such a world. The fallen world in which we live is much more complicated. The particular articulation of the Church’s position on religious freedom emerged at Vatican II through the promulgation of Dignitatis Humanae. Prior to this conciliar decree, it was commonly held that “Error has no rights” and, so, the right to religious liberty was viewed as a right grounded on a misunderstanding. Pope Gregory XVI, in his 1832 encyclical Mirari Vos rejected the right to such freedom, quoting St. Augustine, “The death of the soul is worse than freedom of error”:

When all restraints are removed by which men are kept on the narrow path of truth, their nature, which is already inclined to evil, propels them to ruin. Then truly “the bottomless pit” is open from which John saw smoke ascending which obscured the sun, and out of which locusts flew forth to devastate the earth. Thence comes transformation of minds, corruption of youths, contempt of sacred things and holy laws — in other words, a pestilence more deadly to the state than any other.

Despite Gregory’s strong language, Dignitatis Humanae takes precisely the opposite approach:

This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.

While it might in fact be true that certain goods might be better realized under a Catholic political regime that prohibits the exercise of religious freedom, other goods, which are in fact more important, can be better realized through legal recognition of this right, such as the free choice of individuals to choose to believe and live the Catholic faith unencumbered by political force, as well as the protection of the very freedom of the Church to operate in non-Catholic countries!

Finally, consider the phenomenon of civil divorce. In an ideal world, no one would ever have recourse to such a thing. As CCC §2384 states: “Divorce is a grave offense against the natural law. It claims to break the contract, to which the spouses freely consented, to live with each other till death. Divorce does injury to the covenant of salvation, of which sacramental marriage is the sign.” But, at the same time, the Church also recognizes and teaches in CCC §2383 that:

The separation of spouses while maintaining the marriage bond can be legitimate in certain cases provided for by canon law. If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.

Notice here that the Church is clearly teaching that a moral evil, such as civil divorce, can be tolerated given the particular circumstances of a family’s life, while at the same time not legitimizing such a thing as a moral good. To have recourse to such an action requires both the prudential judgment of the Church’s teaching office and the discernment of the spouse in light of the concrete situation of his or her relationship. This would be allowed so as to realize certain particular goods, such as the “ensuring certain legal rights, the care of the children, or the protection of inheritance,” and the avoidance of greater evils, such as the loss of these things and potential (and serious) harm done to spouses.

To return to the initial topic of the possible legal recognition of civil unions that could include same-sex couples, such a thing—like the realities of polygamy, civil divorce, religious freedom—requires the prudential judgment of the Church that takes into consideration the concrete circumstances of the society in which she lives, her doctrinal heritage, the various goods that might be realized, and the various evils that might be avoided.

Given the current situation of some parts of the world today, filled as it is with the widespread presence of same-sex couples and the widely perceived licitness of same-sex unions, might not the Church judge that, for the sake of the proclamation of the Gospel to a world that is widely suspicious of her teachings and motives, it is better to allow for certain civil union protections that would also be accessible to same-sex unions?

In so doing, the Church would have greater freedom and ability to seek the conversion of hearts and minds through an encounter with Christ than what is currently available because of the de facto cultural perceptions of the Church as hateful toward homosexual couples. Furthermore, such legislation would also, at the same time, realize the goods of creating a more orderly and just society for the individuals in civil union arrangements because it would provide important benefits to non-married couples that share their lives together while neither necessitating nor implying an intrinsically sexual or romantic element. As one commentator argues, this was the intention of Cardinal Jorge Bergoglio as Archbishop of Buenos Aires when considering similar issues.

Furthermore, such legislation could also prevent the greater evils of governments passing legislation that would grant marital status to homosexual unions (thereby further distorting the true nature and meaning of marriage) and of contributing to the formation of a world that has become even more antagonistic or, worse, indifferent to the message of the Church. The United States is past this point, but other nations are not.

This is a judgment that the Church would have to make in light of the concrete circumstances of society today, but it is—according to the principles outlined by St. Thomas—a prudential judgment that takes into consideration both the concrete conditions of society and the hierarchy of goods and truths. Precisely because it is a matter of prudential judgment and discernment, Pope Francis could potentially “bless” such a strategy without at the same time rendering the previous strategy as erroneous or false. Likewise, because it would be a matter of prudential judgment, Catholics are free to have sincere disagreements with such a position because the exercise of prudence is more of an art than a science. But, if it were to be authoritatively set forth, then we would be under the same obligation to submit our intellect and will to this approach as to the approach previously set forth.

III. Social Media and Some Theologians

In summary, Pope Francis seems to be operating within the scope of prudential judgment practiced by previous popes. Of course, every Catholic is free to disagree with him in this regard, especially because the nature of this papal statement lacks magisterial, authoritative weight. However, the same CDF that provided guidance on same-sex unions has also provided definitive guidance on how Catholic theologians ought to engage in such disagreement. With regard to this and many other situations involving Pope Francis, there is much about which to be alarmed—disobedience to previous CDF statements belongs not to Francis, but to his detractors.

Take, as one example, an exemplary social post of one Catholic author: “Holy Father, respectfully and humbly, I beg to differ . . . if that is indeed what you said. In any case, please clarify and rectify your statement, especially in view of the official teaching of our Lord through the magisterium of His Church.” The post, which was “liked” over 9,100 times and garnered 1,500 “shares,” tags the CDF’s “Letter on the Pastoral Care of Homosexual Persons.”

As a knee-jerk reaction that fails to give a charitable interpretation and reasonable assessment of the Holy Father’s remarks in light of the wider scope of Catholic tradition and history of prudential judgments, this post (and others like it) add fuel to the papal-bashing fire by what should be a trusted theological authority.

Furthermore, if the Church were to move from not commending civil union laws that could include same-sex couples to commending such laws, then this would not necessarily entail any change in what the Church believes about marriage and homosexual activity but only how the Church navigates the current societal circumstances, which is always done with the primary mission of proclaiming the Gospel in mind.

That the Church issues a particular teaching at one time, only to reverse or alter her position later, is not new. Consider, for instance, the early twentieth century responsa of the Pontifical Biblical Commission, which asserts with binding force that Moses is the sole author of the Pentateuch. That this position is not binding today was stated by none other than then-Prefect of the CDF, Cardinal Joseph Ratzinger, who categorizes this and the other responsa as prudential interventions that were timely but conditioned by the circumstances:

As warning calls against rash and superficial accommodations, they remain perfectly legitimate: no less a personage than J. B. Metz, for example, has remarked that the anti-Modernist decisions of the Church performed the great service of saving her from foundering in the bourgeois-liberal world. Nevertheless, with respect to particular aspects of their content, they were superseded after having fulfilled their pastoral function in the situation of the time [italics ours].[3]

Ratzinger made these remarks in a conference that was introducing a CDF document entitled Donum Veritatis, “On the Ecclesial Vocation of the Theologian.” It would behoove Catholic intellectuals to heed its teaching and guidance on how theologians should conduct themselves in public fora:

If, despite a loyal effort on the theologian's part, the difficulties persist, the theologian has the duty to make known to the Magisterial authorities the problems raised by the teaching in itself, in the arguments proposed to justify it, or even in the manner in which it is presented . . .

. . . In cases like these, the theologian should avoid turning to the “mass media,” but have recourse to the responsible authority, for it is not by seeking to exert the pressure of public opinion that one contributes to the clarification of doctrinal issues and renders service to the truth.[4]

It is surprising that many do not consider their service to the truth to require the careful, circumspect, and charitable approach enjoined by Donum Veritatis. As we hope has become clear, scandal taken is not necessarily scandal given, especially when it comes to the intersection of the politics of a fallen world and the attempt of the universal teacher and pastor of the faithful to create a space for protecting the dignity and temporal welfare of all people, to achieve the greatest possible good within complicated circumstances, and to optimize the possibility for the Gospel to be heard and believed. While one might (understandably) think that the presentation of the supreme pontiff’s remarks was not ideal, particularly with respect to the comments concerning civil union laws, that the position of the Church might be further nuanced or altered is not a cause of concern.

The same goes for Catholic journalists who have chided Pope Francis for remaining silent, not correcting the misunderstanding and ending confusion. His silence is much like his silence in the face of the public accusations of Archbishop Carlo Maria Viganò, who accused him of covering up sexual abuse allegations against Theodore McCarrick. Francis told reporters to “read that [Vigano’s] statement attentively and make your own judgment,” and that his refusal to comment further was “an act of faith” in the readers of  Viganò’s document. A refusal to respond to accusation is a counsel of our first pope, whose advice Francis seems to be heeding,

For to this you have been called, because Christ also suffered for you, leaving you an example that you should follow in his footsteps. “He committed no sin, and no deceit was found in his mouth.” When he was insulted, he returned no insult; when he suffered, he did not threaten; instead, he handed himself over to the one who judges justly (1 Pet 2:21-23).

A wise counsel indeed, mirroring Christ’s own silence before his accusers, to whose accusations “he made no answer” (Matt 27:12). When it comes to Francis’s stance on same-sex activity and the nature of marriage, his record speaks for itself. By maintaining silence, those who would be the enemies of Francis and the Church reveal their hand, bringing that which was in darkness into the light where it can be more readily dealt with at the right time and in the right way.

It would be helpful, as we navigate the rest of this papacy and beyond, to remember the words offered by a young priest to a large group of bishops on the night before the opening of the Second Vatican Council, a young priest who later as pope would be pilloried himself for opining about AIDS and the use of condoms among those who engage in illicit sex for hire: “One should never forget that the battle for which Christ assembles his forces is not a fight between those and against those who gather, but that they fight together against the powers of darkness.”[5]