Human Life International submission

MEMORANDUM:

To: The Justice Portfolio Committee
From: Human Life International

16 September 2006

CALL FOR CONSTITUTIONAL AMENDMENT TO DEFEND MARRIAGE

We believe that redefining marriage was not the intention of the framers of the constitution and therefore, in order to safeguard the constitution, it is necessary to amend it, by the addition of an interpretive clause which will define marriage as a union between a man and woman only.

Human Life International calls for an amendment to the constitution of the Republic of South Africa by adding to section 39 (Interpretation) the clause:

"The Constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman only."

We oppose the proposed “Civil Unions Bill” which is the legalisation of same sex marriage under a different name. We also oppose the legalisation of ‘domestic partnerships’, which will further undermine marriage and family.

Because of the sensitive nature of this issue and the large amount of public interest, we also call on Parliament to request an extension of time from the Constitutional Court in order to properly process the information gathered through wide public consultation.

We reiterate the statement made by the South African Catholic Bishops Conference on 5 December 2005 which states:

“It is true that the Constitution is the supreme law of the land, but in order to be binding on the consciences of its citizens it must conform to the Law of God. And in this case it clearly does not.

Indeed if the S.A. Constitution is being made to supersede the revealed will of God then South Africa is morally doomed. For no one can go against God's Will and come away unscathed. The fact that same sex marriages are approved by the Constitutional Court, does not make them morally right.

The Church has the prophetic duty to point out where the Constitution runs counter to the Commandments of God, our Maker's Instructions which determine how human beings are to live good and moral lives.”

Furthermore we bring to attention the Vatican statement ‘Considerations Regarding Proposals to give Legal recognition to Unions between Homosexual Persons’ (Congregation For the Doctrine of the Faith, 2003) which proclaims:

“The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.”




HUMAN LIFE INTERNATIONAL
P.O.Box 404 MILNERTON 7435
Tel.: 021 552-3850 / Fax.: 021 551-6748 / E-mail: humanlife.int@iafrica.com
www.hli.co.za




By Mail:
The Chairperson,
Home Affairs Portfolio Committee,
National Assembly,
P O Box 15,
Cape Town,
8000,

By Fax
021 403 2808 (Mr Mankge) and 021 403 2854 (Ms Martin)

By Email:
dmartin@parliament.gov.za and mmankge@parliament.gov.za

03 October 2006

SUBMISSION ON CIVIL UNIONS BILL B 26 - 2006.


We object to the proposed Civil Unions Bill, which will provide for the solemnisation of same-sex ‘civil unions’, as indistinguishable from marriage. We oppose the legal recognition of homosexual unions as well as ‘domestic partnerships’. We argue that for the common good of society, marriage, as a union between a man and a woman only, should be defended and promoted by the State, as the basis for a healthy society.

Why we oppose same Sex “Marriage” and the legal recognition of homosexual unions.

Hard Cases make Bad Laws
We recognise the right of every human person to be treated with respect and dignity, including those with a homosexual orientation. Whilst we accept them with respect, compassion and sensitivity and avoid every sign of unjust discrimination in their regard, we can in no way approve of homosexual acts, or the legal recognition of homosexual unions.

Whilst we sympathise with the difficulties that homosexual persons face in their everyday lives, we do not agree that redefining marriage and the family is the answer to these problems. Marriage, as a union between a man and a woman only, is an institution that has served humanity well. It is the ideal environment for procreating and raising children.

We believe that legislation should promote and defend what is best for society, for the common good.

The impact of redefining marriage will have far reaching effects on our society. It will undermine the institution of marriage, which already suffers offences against it’s dignity such as divorce, adultery, incest and cohabitation.

Individual circumstances must be balanced against the duty of the state to do what is in the best interests of society.

The rights of Children
The rights of homosexual persons to marry and to have children, to form a ‘family’, must be balanced against the rights of children.

In general, studies have shown that homosexual relationships do not benefit society like natural marriage does. They are unable to procreate children in a natural way; hence children resulting from the relationship, either through adoption, or through artificial means, are denied the basic right of a mother and a father. Children become the victims of an untested social experiment. To have children is not an absolute right. Children exist for their own good, and their rights should not be overlooked.

Additionally, once ‘same-sex marriage’ is normalised, children will be taught that homosexual relationships are equal and comparable with marriage between a man and a woman. Sex Education will now have to contain information about unnatural homosexual practices. This is a violation of many parents religious convictions and hence a violation of the child’s rights.

It is medically proven that homosexual activity exposes one to greater risk of contracting HIV/AIDS and other sexually transmitted diseases. In the best interests of society, this type of behaviour should not be encouraged, especially to children.

What is best for society?
It is not true that all personal domestic relationships have equal social value and that the law should not favour one over another. Marriage is not just merely a religious, sentimental or emotional relationship; it provides society with social benefits. Studies have proved that marriage contributes to a healthier, wealthier, happier society.

Laws should encourage behaviours that are beneficial to society, and people who engage in those behaviours should be rewarded. The government gives incentives for example to first time homeowners, whilst levying high taxes on tobacco and alcohol. The government is not ‘discriminating’ against smokers, but society benefits when smoking is kept to a minimum.

Marriage benefits society like no other relationship. That is why, historically, it has been promoted by all societies over all other domestic relationships.

Therefore it is ultimately for the benefit of society that marriage, between a man and a woman only, should be extended benefits that are withheld from other couples, whose relationships do not benefit society as marriage does

Marriage does not discriminate
We do not condone discrimination against persons with homosexual inclinations, however, we do not believe that the current marriage act does discriminate. There are numerous persons who are ‘discriminated’ against in the current Marriage Act. One is for instance prohibited from marrying one’s sibling or parent. There are practical, fair reasons for this ‘discriminatory’ prohibition, as there are for prohibiting marriage between two people of the same sex. This constitutes ‘fair’ rather than ‘unfair’ discrimination.

Marriage does not discriminate – it is open to everyone – as long as they fulfil the criteria necessary. One non-negotiable criteria for marriage is that those who enter into it must be male and female

Hate Speech?
We also record our concern that condemnation or criticism of homosexual behaviour, by religious or traditional groups may be classified as ‘hate speech’. We fear that those who in future voice their opposition to homosexual behaviour and the legal recognition thereof may be victimised as purveyors of so-called ‘religious hatred’. We call on government to provide legal protection to those who exercise their right to free speech, in verbalising their opposition to this moral evil.

Comments on Chapter 3 of the Civil Unions Bill – Domestic Partnerships
We strenuously oppose the inclusion of legislation dealing with the legal recognition of Domestic Partnerships within this bill. We feel that it is unacceptable, in a bill which is already attracting so much public interest, and which is being passed within a very short time frame, to include this chapter, which is in itself controversial, but is being overlooked because of the contentious nature of Chapter 1 and 2 of this bill.

Regularising Domestic Partnerships was not part of the requirements of the constitutional Court decision and we therefore strenuously call for this section to be totally removed.

This issue deserves to be properly and openly discussed, within appropriate time frames, within a separate bill. It is unacceptable to include this controversial piece of legislation in a bill with an even more controversial piece of legislation. It violates democratic principles and smacks of legislating by stealth tactics.

Call to Amend the Constitution
We believe that it was not the intention of the framers of the constitution to redefine marriage. We believe that giving legal recognition to homosexual unions is not the will of the people of South Africa.

Parliament should not be a rubber stamp for the decisions of the judiciary. Whilst we respect the constitution, we stress that it is a document that can be interpreted in different ways.

We call therefore for the addition of an interpretive clause to section 39 of the constitution, to read:

"The Constitution shall be interpreted to mean that a marriage is the voluntary union between a man and a woman only."

This will clarify the intention of the framers of the constitution and protect marriage, for the common good.

We request permission to present this submission orally before your committee in parliament.

Sincerely,


Sally E. Hall
Human Life International


Addendum:
CONGREGATION FOR THE DOCTRINE OF THE FAITH

CONSIDERATIONS REGARDING PROPOSALS TO GIVE LEGAL RECOGNITION TO
UNIONS BETWEEN HOMOSEXUAL PERSONS


INTRODUCTION

1. In recent years, various questions relating to homosexuality have been addressed with some frequency by Pope John Paul II and by the relevant Dicasteries of the Holy See.(1) Homosexuality is a troubling moral and social phenomenon, even in those countries where it does not present significant legal issues. It gives rise to greater concern in those countries that have granted or intend to grant – legal recognition to homosexual unions, which may include the possibility of adopting children. The present Considerations do not contain new doctrinal elements; they seek rather to reiterate the essential points on this question and provide arguments drawn from reason which could be used by Bishops in preparing more specific interventions, appropriate to the different situations throughout the world, aimed at protecting and promoting the dignity of marriage, the foundation of the family, and the stability of society, of which this institution is a constitutive element. The present Considerations are also intended to give direction to Catholic politicians by indicating the approaches to proposed legislation in this area which would be consistent with Christian conscience.(2) Since this question relates to the natural moral law, the arguments that follow are addressed not only to those who believe in Christ, but to all persons committed to promoting and defending the common good of society.

I. THE NATURE OF MARRIAGE AND ITS INALIENABLE CHARACTERISTICS

2. The Church's teaching on marriage and on the complementarity of the sexes reiterates a truth that is evident to right reason and recognized as such by all the major cultures of the world. Marriage is not just any relationship between human beings. It was established by the Creator with its own nature, essential properties and purpose.(3) No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman, who by mutual personal gift, proper and exclusive to themselves, tend toward the communion of their persons. In this way, they mutually perfect each other, in order to cooperate with God in the procreation and upbringing of new human lives.
3. The natural truth about marriage was confirmed by the Revelation contained in the biblical accounts of creation, an expression also of the original human wisdom, in which the voice of nature itself is heard. There are three fundamental elements of the Creator's plan for marriage, as narrated in the Book of Genesis.
In the first place, man, the image of God, was created “male and female” (Gen 1:27). Men and women are equal as persons and complementary as male and female. Sexuality is something that pertains to the physical-biological realm and has also been raised to a new level – the personal level – where nature and spirit are united.
Marriage is instituted by the Creator as a form of life in which a communion of persons is realized involving the use of the sexual faculty. “That is why a man leaves his father and mother and clings to his wife and they become one flesh” (Gen 2:24).
Third, God has willed to give the union of man and woman a special participation in his work of creation. Thus, he blessed the man and the woman with the words “Be fruitful and multiply” (Gen 1:28). Therefore, in the Creator's plan, sexual complementarity and fruitfulness belong to the very nature of marriage.
Furthermore, the marital union of man and woman has been elevated by Christ to the dignity of a sacrament. The Church teaches that Christian marriage is an efficacious sign of the covenant between Christ and the Church (cf. Eph 5:32). This Christian meaning of marriage, far from diminishing the profoundly human value of the marital union between man and woman, confirms and strengthens it (cf. Mt 19:3-12; Mk 10:6-9).
4. There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family. Marriage is holy, while homosexual acts go against the natural moral law. Homosexual acts “close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved”.(4)
Sacred Scripture condemns homosexual acts “as a serious depravity... (cf. Rom 1:24-27; 1 Cor 6:10; 1 Tim 1:10). This judgment of Scripture does not of course permit us to conclude that all those who suffer from this anomaly are personally responsible for it, but it does attest to the fact that homosexual acts are intrinsically disordered”.(5) This same moral judgment is found in many Christian writers of the first centuries(6) and is unanimously accepted by Catholic Tradition.
Nonetheless, according to the teaching of the Church, men and women with homosexual tendencies “must be accepted with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided”.(7) They are called, like other Christians, to live the virtue of chastity.(8) The homosexual inclination is however “objectively disordered”(9) and homosexual practices are “sins gravely contrary to chastity”.(10)
II. POSITIONS ON THE PROBLEM OF HOMOSEXUAL UNIONS

5. Faced with the fact of homosexual unions, civil authorities adopt different positions. At times they simply tolerate the phenomenon; at other times they advocate legal recognition of such unions, under the pretext of avoiding, with regard to certain rights, discrimination against persons who live with someone of the same sex. In other cases, they favour giving homosexual unions legal equivalence to marriage properly so-called, along with the legal possibility of adopting children.
Where the government's policy is de facto tolerance and there is no explicit legal recognition of homosexual unions, it is necessary to distinguish carefully the various aspects of the problem. Moral conscience requires that, in every occasion, Christians give witness to the whole moral truth, which is contradicted both by approval of homosexual acts and unjust discrimination against homosexual persons. Therefore, discreet and prudent actions can be effective; these might involve: unmasking the way in which such tolerance might be exploited or used in the service of ideology; stating clearly the immoral nature of these unions; reminding the government of the need to contain the phenomenon within certain limits so as to safeguard public morality and, above all, to avoid exposing young people to erroneous ideas about sexuality and marriage that would deprive them of their necessary defences and contribute to the spread of the phenomenon. Those who would move from tolerance to the legitimisation of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalization of evil is something far different from the toleration of evil.
In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.
III. ARGUMENTS FROM REASON AGAINST LEGAL RECOGNITION OF HOMOSEXUAL UNIONS

6. To understand why it is necessary to oppose legal recognition of homosexual unions, ethical considerations of different orders need to be taken into consideration.
From the order of right reason
The scope of the civil law is certainly more limited than that of the moral law,(11) but civil law cannot contradict right reason without losing its binding force on conscience.(12) Every humanly-created law is legitimate insofar as it is consistent with the natural moral law, recognized by right reason, and insofar as it respects the inalienable rights of every person.(13) Laws in favour of homosexual unions are contrary to right reason because they confer legal guarantees, analogous to those granted to marriage, to unions between persons of the same sex. Given the values at stake in this question, the State could not grant legal standing to such unions without failing in its duty to promote and defend marriage as an institution essential to the common good.
It might be asked how a law can be contrary to the common good if it does not impose any particular kind of behaviour, but simply gives legal recognition to a de facto reality which does not seem to cause injustice to anyone. In this area, one needs first to reflect on the difference between homosexual behaviour as a private phenomenon and the same behaviour as a relationship in society, foreseen and approved by the law, to the point where it becomes one of the institutions in the legal structure. This second phenomenon is not only more serious, but also assumes a more wide-reaching and profound influence, and would result in changes to the entire organization of society, contrary to the common good. Civil laws are structuring principles of man's life in society, for good or for ill. They “play a very important and sometimes decisive role in influencing patterns of thought and behaviour”.(14) Lifestyles and the underlying presuppositions these express not only externally shape the life of society, but also tend to modify the younger generation's perception and evaluation of forms of behaviour. Legal recognition of homosexual unions would obscure certain basic moral values and cause a devaluation of the institution of marriage.
From the biological and anthropological order
7. Homosexual unions are totally lacking in the biological and anthropological elements of marriage and family which would be the basis, on the level of reason, for granting them legal recognition. Such unions are not able to contribute in a proper way to the procreation and survival of the human race. The possibility of using recently discovered methods of artificial reproduction, beyond involving a grave lack of respect for human dignity,(15) does nothing to alter this inadequacy.
Homosexual unions are also 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.
As experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children who would be placed in the care of such persons. They would be deprived of the experience of either fatherhood or motherhood. Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development. This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case.
From the social order
8. Society owes its continued survival to the family, founded on marriage. The inevitable consequence of legal recognition of homosexual unions would be the redefinition of marriage, which would become, in its legal status, an institution devoid of essential reference to factors linked to heterosexuality; for example, procreation and raising children. If, from the legal standpoint, marriage between a man and a woman were to be considered just one possible form of marriage, the concept of marriage would undergo a radical transformation, with grave detriment to the common good. By putting homosexual unions on a legal plane analogous to that of marriage and the family, the State acts arbitrarily and in contradiction with its duties.
The principles of respect and non-discrimination cannot be invoked to support legal recognition of homosexual unions. Differentiating between persons or refusing social recognition or benefits is unacceptable only when it is contrary to justice.(16) The denial of the social and legal status of marriage to forms of cohabitation that are not and cannot be marital is not opposed to justice; on the contrary, justice requires it.
Nor can the principle of the proper autonomy of the individual be reasonably invoked. It is one thing to maintain that individual citizens may freely engage in those activities that interest them and that this falls within the common civil right to freedom; it is something quite different to hold that activities which do not represent a significant or positive contribution to the development of the human person in society can receive specific and categorical legal recognition by the State. Not even in a remote analogous sense do homosexual unions fulfil the purpose for which marriage and family deserve specific categorical recognition. On the contrary, there are good reasons for holding that such unions are harmful to the proper development of human society, especially if their impact on society were to increase.
From the legal order
9. Because married couples ensure the succession of generations and are therefore eminently within the public interest, civil law grants them institutional recognition. Homosexual unions, on the other hand, do not need specific attention from the legal standpoint since they do not exercise this function for the common good.
Nor is the argument valid according to which legal recognition of homosexual unions is necessary to avoid situations in which cohabiting homosexual persons, simply because they live together, might be deprived of real recognition of their rights as persons and citizens. In reality, they can always make use of the provisions of law – like all citizens from the standpoint of their private autonomy – to protect their rights in matters of common interest. It would be gravely unjust to sacrifice the common good and just laws on the family in order to protect personal goods that can and must be guaranteed in ways that do not harm the body of society.(17)
IV. POSITIONS OF CATHOLIC POLITICIANS WITH REGARD TO LEGISLATION IN FAVOUR OF HOMOSEXUAL UNIONS

10. If it is true that all Catholics are obliged to oppose the legal recognition of homosexual unions, Catholic politicians are obliged to do so in a particular way, in keeping with their responsibility as politicians. Faced with legislative proposals in favour of homosexual unions, Catholic politicians are to take account of the following ethical indications.
When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral.
When legislation in favour of the recognition of homosexual unions is already in force, the Catholic politician must oppose it in the ways that are possible for him and make his opposition known; it is his duty to witness to the truth. 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.(18) 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.


CONCLUSION

11. The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.
The Sovereign Pontiff John Paul II, in the Audience of March 28, 2003, approved the present Considerations, adopted in the Ordinary Session of this Congregation, and ordered their publication.
Rome, from the Offices of the Congregation for the Doctrine of the Faith, June 3, 2003, Memorial of Saint Charles Lwanga and his Companions, Martyrs.
Joseph Card. Ratzinger
Prefect
Angelo Amato, S.D.B.
Titular Archbishop of Sila
Secretary

NOTES
(1) Cf. John Paul II, Angelus Messages of February 20, 1994, and of June 19, 1994; Address to the Plenary Meeting of the Pontifical Council for the Family (March 24, 1999); Catechism of the Catholic Church, Nos. 2357-2359, 2396; Congregation for the Doctrine of the Faith, Declaration Persona humana (December 29, 1975), 8; Letter on the pastoral care of homosexual persons (October 1, 1986); Some considerations concerning the response to legislative proposals on the non-discrimination of homosexual persons (July 24, 1992); Pontifical Council for the Family, Letter to the Presidents of the Bishops' Conferences of Europe on the resolution of the European Parliament regarding homosexual couples (March 25, 1994); Family, marriage and “de facto” unions (July 26, 2000), 23.
(2) Cf. Congregation for the Doctrine of the Faith, Doctrinal Note on some questions regarding the participation of Catholics in political life (November 24, 2002), 4.
(3) Cf. Second Vatican Council, Pastoral Constitution Gaudium et spes, 48.
(4) Catechism of the Catholic Church, No. 2357.
(5) Congregation for the Doctrine of the Faith, Declaration Persona humana (December 29, 1975), 8.
(6) Cf., for example, St. Polycarp, Letter to the Philippians, V, 3; St. Justin Martyr, First Apology, 27, 1-4; Athenagoras, Supplication for the Christians, 34.
(7) Catechism of the Catholic Church, No. 2358; cf. Congregation for the Doctrine of the Faith, Letter on the pastoral care of homosexual persons (October 1, 1986), 10.
(8) Cf. Catechism of the Catholic Church, No. 2359; cf. Congregation for the Doctrine of the Faith, Letter on the pastoral care of homosexual persons (October 1, 1986), 12.
(9) Catechism of the Catholic Church, No. 2358.
(10) Ibid., No. 2396.
(11) Cf. John Paul II, Encyclical Letter Evangelium vitae (March 25, 1995), 71.
(12) Cf. ibid., 72.
(13) Cf. St. Thomas Aquinas, Summa Theologiae, I-II, q. 95, a. 2.
(14) John Paul II, Encyclical Letter Evangelium vitae (March 25, 1995), 90.
(15) Cf. Congregation for the Doctrine of the Faith, Instruction Donum vitae (February 22, 1987), II. A. 1-3.
(16) Cf. St. Thomas Aquinas, Summa Theologiae, II-II, q. 63, a.1, c.
(17) It should not be forgotten that there is always “a danger that legislation which would make homosexuality a basis for entitlements could actually encourage a person with a homosexual orientation to declare his homosexuality or even to seek a partner in order to exploit the provisions of the law” (Congregation for the Doctrine of the Faith, Some considerations concerning the response to legislative proposals on the non-discrimination of homosexual persons [July 24, 1992], 14).
(18) John Paul II, Encyclical Letter Evangelium vitae (March 25, 1995), 73.