THE CANONICAL CONCEPT OF MARRIAGE VIS-A-VIS THE PRESENT DAY CHALLENGES TO THE MARRIAGE INSTITUTION

THE CANONICAL CONCEPT OF MARRIAGE VIS-À-VIS THE PRESENT DAY CHALLENGES TO THE MARRIAGE INSTITUTION

by Rev. Fr. Dr. Titus Ik. Nnabugwu

Introduction

Marriage as an institution has been for centuries the image of unity despite differences in culture, religion and civilization, and to some extent, has reflected the belief that neither man nor woman is perfect or complete without the other. The institution of marriage is today under serious attack from many quarters such that any keen observer can discern in the secular mentality of the contemporary world, an effort to undermine its natural and religious meaning. The identity of the family as a natural institution based on the valid marriage of a legally qualified man and woman, for the attainment of the universally recognised noble marital ends is today being distorted. The Church has from the onset of her divine mission and mandate maintained and taught that God is the author of marriage, and that he created man and woman in his own image and likeness. God founded the first human family on the marriage of the first heterosexual partners, Adam and Eve. They were meant to complement each other and to “increase and multiply and fill the earth” (Gen. 1.27).

The socio-juridical problems affecting marriage institution today in view of the nascent, spurious family policies in some cultures prompt the need for sober reflections in order to re-establish the distorted image of the family, which is an institution of nature rooted in marriage. In this lecture, we shall examine marriage as a natural institution, the canonical concept of marriage, the civil law concept of marriage and then look at the specific challenges facing marriage today, the implication of redefining marriage to include two persons of the same gender, and then an evaluation and a conclusion.

Marriage as a Natural Institution

Marriage is a natural reality, a universal phenomenon that is common to all human societies and cultures. Marriage, as a fact of nature and an expression of a social reality, is endowed with its own proper, innate and permanent characteristics. It has always around it a complex of norms which govern its establishment and the rupture of the bonds thus created between partners of different sexes, and which are characterized by economic cohabitation. These norms usually determine the rights and duties of the spouses, and that of their relatives and dependants^[1]. Marriage is recognized, accepted and respected as that institution by which the family is established. It is the family that produces, nurtures, and socializes children. It is the family that cares for the frail and the elderly members, provides the labours needed for the economy, and meets the emotional needs of its members. In other words, marriage as a natural institution has God as its author, and has natural law as its fundamental principle. To that effect, the basic and general principles of natural law cannot be eradicated from human nature. It is from this point of view that the very core of this natural reality is the union of a man and a woman.^[2]

The Canonical Concept of Marriage

The canonical concept of marriage has its foundation on marriage as a natural institution. This is why Vatican II Council described marriage as an intimate partnership of life and love, established by God himself and endowed with its own proper laws, and which is rooted in the covenant and in the irrevocable consent of its partners^[3]. Inspired by this teaching of the Vatican II Council^[4], Canon 1055 § 1 defined marriage as a covenant by which a man and a woman establish between themselves a partnership of their whole life, and which of its very nature is ordered to the wellbeing of the spouses and to the procreation and upbringing of children. This matrimonial contract when concluded between two baptized persons of the opposite sex was raised by Christ to the dignity of a sacrament.

We find in this definition both the nature of marriage as established by the creator and its specific sacramental dignity when it is celebrated between the baptized. This nature of marriage and its sacramental dignity is brought out more clearly in Can. 776, the equivalent canon in the Code of the Canons of the Eastern Churches. It states: “The matrimonial covenant, established by the creator and ordered by His laws, by which a man and a woman by an irrevocable personal consent establish between themselves a partnership of the whole life, is by its nature ordered toward the good of the spouses and the generation and education of children. From the institution of Christ, a valid marriage between baptized persons is by that very fact a sacrament, by which the spouses, in the image of an indefectible union of Christ with the Church, are united by God, and as it were, consecrated and strengthened by sacramental grace”.

From this definition and for the purpose of this lecture, we can make a distinction between what we can call the “subject of matrimonial consent”, a man and a woman, and then the “object of matrimonial consent”, which can. 1057 §2 specified as the reciprocal gift of self. Canonical marriage is thus brought about through an irrevocable act of the will of the parties, who must be male and female, and who mutually give and accept each other (sese tradere et acceptare). In other words, what the parties consent to, is the permanent and exclusive exchange of personal and conjugal complementary sexuality^[5]. This implies that what matrimonial consent primarily involves is the human nature of man and a woman taken not absolutely but in relativeness of their sexuality. By marriage, a man and a woman mutually complement each other and establish a consortium totius vitae et amoris coniugalis, that is, a companionship of conjugal life and love, which lasts throughout their whole life.

Marriage is thus essentially from the ecclesiastical legal view point a covenant, a special contract, an alliance, between a man and a woman to bind themselves in a perpetual and indissoluble union of life and love. It is necessarily characterized by a sexual commitment, which must correspond to the procreative or co-active character of sexual complementarity, from which derives the capacity of sexual intercourse to express the uniqueness of the conjugal relationship and donation^[6].

A distinctive feature of this union is equally the inseparability of its sacramental and contractual dimensions: “For that reason a matrimonial contract cannot validly exist between baptized persons unless it is also a sacrament by that fact”^[7]. In other words, the marriage of a baptized man and a baptized woman when validly celebrated possesses the dignity of a sacrament; their conjugal contract becomes a sacramental reality. This sacramental dimension is grounded in the belief that the marital relationship reflects the totally faithful and unending relationship of Christ to His Church.

Canonical marriage is not only characteristically contractual and sacramental; it is also essentially monogamous, for it consists in the consensual union of one man and one woman, to the exclusion of others. The implication of this is that throughout the duration and subsistence of the marriage, there can be only one man and one woman as parties thereto. In other words, neither of the parties has the legal capacity to contract another marriage with a third party while the marriage is still in existence. In effect, the essential properties of marriage are unity and indissolubility, which then in a Christian marriage obtain a special firmness in virtue of the sacrament^[8]. Canonical Marriage has two fundamental ends or purposes towards which it is oriented, namely, the good of the spouses and the procreation of children. Consequently, the Church teaches that marriage is both unitive and procreative, and that it is inseparably both.

This is marriage that is challenged today. This is the marriage that many countries in Europe and America are playing “constitutional politics” with, as there is a disturbing trend to view and treat marriage as a mostly private affair, an individualistic project not related to the common good but oriented mostly to achieving personal satisfaction; a trend that reduces marriage primarily to emotional bonds or legal privileges, regardless of gender. A trend whose primary focus is the belief that marriage is a creation of the State or mere product of the human will, such that the State has the liberty to mold its structure according to society’s tastes and needs, thereby overlooking the ontological nature of marriage.^[9] Articulating this trend, Monte Neil Stewart, calls it the marriage issue: “The marriage issue of our time is whether constitutional norms, particularly of equality and liberty, require the redefinition of marriage from the union of a man and a woman to the union of two persons”^[10].

The Civil Law Definition of Marriage

Marriage from the civil law perspective is generally defined as the legal union of a couple as husband and wife, which has the following essential characteristics for validity: 1) parties legally capable of contracting to marry, 2) mutual consent or agreement, and 3) an actual contracting in the form prescribed by law ^[11]. Sir James Wilde, who is better known to posterity as Lord Penzance, in a judgment he delivered on March 26, 1886 defined marriage as a voluntary union for life of one man and one woman to the exclusion of all others^[12]. He was defining monogamous marriage as different from polygamy. The Nigerian Interpretation Act apparently echoing Lord Penzance defines a monogamous marriage as one which is recognized by the law of the place where it is contracted, as a voluntary union of one man and one woman to the exclusion of all others, during the continuance of the marriage^[13].

Today, what has served as the accepted definition of marriage for centuries is being criticized by those who oppose the “traditional” concept of marriage. They claim that the definition of marriage by Lord Penzance, which the courts have applied, has a Christian flavor and was unduly influenced by Christian Theology. Following from this, a lot of effort has been made from several quarters, especially gay activists, to re-engineer the concept of marriage and by so doing have undermined marriage as an institution; and this equally has led to very profound changes in family life in recent times.

In view of all these changes, the question that is agitating the mind of many family law experts is whether the definition of marriage offered by Lord Penzance, in practice still represents the meaning of marriage at the global level in this 21^st century or has it become a mere window dressing. Some of these experts even express the view that in defending traditional marriage, it would appear that one is probably defending something that no longer exists^[14]. For instance, with the introduction of no-fault principle of divorce, and with the ease and frequency of obtaining divorce, the impression now created is that a statutory marriage or marriage from the civil law perspective is no more for life, and has actually ceased to be so for many people. Further, the fundamental principle of marriage as a union between one man and one woman has been beclouded by the problems created by the existence of hermaphrodites, pseudo-hermaphrodites, and transexualism^[15].

The current problem facing marriage and family today, especially as being championed by Europe and America, has become much more fundamental and profound than that created earlier on by sex-re-assignment or by those who wanted to change their gender through surgery and hormonal treatments. Gay activists claim that they are victims of discrimination and bigotry, and that they are being denied their civil and constitutional rights. They try to invoke the liberal principles of justice such as equal treatment, equal opportunity and neutrality. It has resulted to some countries, including South Africa, advocating for a total change of the meaning of “marriage” as defined by Lord Penzance, and as was accepted and applied by secular States in their legal statutes and matrimonial laws.

The Specific Challenges to Marriage and Family Today

The human reality of marriage in Western culture today differs in some important aspects from marriage in previous ages and even in some contemporary cultures. Some of these differences touch the very heart of what marriage is understood to mean. Consequently, many countries of the world today have either fully legalized same-sex marriage or have conceded certain civil rights to them. Marriage as an institution is attacked and challenged by a myriad of forces. Highlighting the barrage of attacks on marriage and family today, Janice Shaw Crouse observed as follows: “Indeed, the institution of marriage has been the bedrock of civilization for thousands of years; yet today, marriage and family, as we have known it, is under attack around the world... Marriage is under attack from 3 major areas: (1) the rise of cohabitation as a substitute for marriage, (2) the normalization of promiscuity, casual or “free-sex” and (3) the promotion by activists of their so called, ‘same-sex marriage’ agenda”^[16]. In other words, there is a rising tendency for many people, a man and a man, a woman and a woman, a man and a woman, to prefer to just live together modo uxorio without going to the Registrar or the Church for any formal commitment, and the society no longer very much frowns at this. Rights and privileges have even been formally accorded to this new trend of “man-man” and “woman-woman” relationships in some societies.

 Confirming the fact that marriage is currently under attack, the Witherspoon Institute likewise identified four threats to Marriage, which they described as especially troubling: divorce, illegitimacy, cohabitation and same-sex marriage[17]. Illegitimacy (non-marital child-bearing) is consistently on the increase, such that in the United States of America from 1960 to 2003, the percentage of children born out of wedlock is said to have risen from 5 to 35 percent. This is the bane of single parenthood, which typically denies children the opportunity to have two parents who are committed daily to their emotional and material welfare. Cohabitation, which is the fact or state of living together as partners in life with the suggestion of sexual relations, is equally on the increase, such that many adults in Europe and America simply prefer to cohabit. It can thus be said that changing sexual mores have made illegitimacy and cohabitation a central feature of the social landscape of the West, and a very big threat to marriage as an institution.

Because of the devastating effects of divorce today and inroad being made by same sex unions in many countries which is a major affront to the marriage institution, we shall dwell mainly on them.  

Divorce as a Challenge to Marriage

Marital divorce constitutes a big challenge to the institution of marriage and the family today even here in Nigeria. A cursory look at section 15(1) of the Nigerian Matrimonial Causes Act, reveals that, the only ground for divorce in Nigeria, is irretrievable breakdown of marriage. The Section provides:

A petition under the decree by a party to a marriage for a decree of dissolution of the marriage may be presented to the court, by either party to the marriage upon the ground that the marriage has broken down irretrievably.

Based on this legislation, some legal experts and the Nigerian courts hold the view that the Matrimonial Causes Act introduced a no-fault oriented divorce system, as it shifted from fault to the actual state of the marriage. Fault divorce is a divorce granted to one spouse on the basis of some proven wrongful act by the other spouse and traditionally, the common grounds for a fault divorce were adultery, abandonment, imprisonment, and physical or mental cruelty while the defenses to alleged fault in a petition for divorce were condonation, connivance, collusion, recrimination and insanity . On the other hand, no-fault divorce is a divorce in which the parties are not required to prove fault or grounds beyond a showing of the irretrievable breakdown of the marriage or irreconcilable differences.[18]

As a result of this shift to the no-fault principle[19], the court in Oni v Oni, held that: “A decree of dissolution is now based upon irretrievable breakdown of the marriage, and it is of little importance in the court, reaching conclusion as to who actually broke up the marriage”.[20] In other words, in deciding whether or not to grant a decree, the judge lays emphasis on the actual state of the marriage, especially as it relates to the continuation of a marriage that has gone beyond any hope of being salvaged.

The adoption of the unilateral or no-fault principle of divorce by most countries in the Western world has made it such that marriage can be easily and effectively terminated at the will of either party, and this widespread divorce poisons the larger culture of marriage, and sows distrust, insecurity and low commitment mentality among married and unmarried adults. This principle of no-fault is said to have demoted marriage from a binding relation into something best described as co-habitation with insurance benefits, it lowered the status of marriage and liberalized divorce, thereby increasing the rate of divorce.[21] Divorce is nothing but an ill wind that blows no one any good. This is evident from the fact that those who grew up with divorced parents have little practical knowledge of marriage, and are two or three times more likely to divorce, than their generational pears, who grew up in marital parental households.[22] In effect, divorce threatens marriage, hurts children and has dire consequences for society as a whole.

The no-fault principle of divorce laws currently in force in many jurisdictions of the world such as Canada, England, America, Australia and even Nigeria, has therefore contributed to an upsurge in marital breakdowns today and an increase in the divorce rate. For instance, according to research conducted in Canada^[23], of all marriages conducted in Canada, 50% of them ended in divorce, with even more recorded in the year 2000.

The Canadians themselves maintained that the increase in their divorce rate is attributable to their divorce laws, which prior to 1968 had adultery as the only ground for divorce. It was in 1968 that the Divorce Act was amended to include other reasons such as physical and mental cruelty, and separation for at least 3 years. In 1986, the divorce law was further amended to allow and permit divorce after one year of separation, with no requirement to prove fault by either spouse, and this no doubt led to an astronomical increase in divorce rate in Canada^[24].

Apart from divorce, same-sex or same gender “marriage” is another big challenge currently facing marriage as an institution, and so we shall now have an overview of the global legalization of same-sex marriage, which is actually a direct and frontal attack on marriage as an institution, aimed at giving it a new and different meaning.

Same-Sex Marriage as a Challenge to Marriage

The Netherlands

The issue of same-sex marriage first gained prominence in the Netherlands in year 1990. This year was the beginning of the assault on marriage as an Institution in the Netherlands through the courts. The first two cases brought before two Dutch courts challenged the prohibitions against marriages of same-gender couples. The issue involved in these cases was the statutory construction of the marriage statute, Article 30, Book 1 of the Dutch Civil Code. The Petitioners to the courts argued that there was no statutory requirement that marriage partners must be of opposite genders^[25]. The Petitioners further argued that the denial of a marriage license to them infringed on their individual rights and violated laws on equal treatment and non-discrimination. The courts disagreed with them on both arguments.

However, having failed in obtaining marriage licenses, they began to request that their relationship be registered in the “marriage register”, alluding to Denmark that in 1989 enacted a legislation creating the institution of “registered partnerships”. In furtherance of this objective, a partnership bill was submitted to the Parliament in 1994 but it was stalled. By 1996, members of the Dutch House of Representatives passed a resolution by a vote of eighty-one to sixty, demanding that civil marriage laws include same-gender couples. This eventually led to a Committee^[26] on Opening Up Civil Marriage to Same-Gender Partners being established. The Committee came out with a majority position that “… same-sex couples can only be afforded equal treatment if they are allowed to enter civil marriages. These members do not view the new type of marriage as a break with tradition; after all, marriage has always been a flexible institution which has kept pace with the changes in society”. By 1999, the Dutch government formally introduced a bill in Parliament to amend Article 30, Book 1 of the Netherlands Civil Code to read as follows :

 Article 30

1. A marriage can be contracted by two persons of different sex or of the same sex.
2. The law only considers marriage in its civil relations^[27].

 A look at this bill shows that it did not intend to create a parallel relationship with heterosexual marriage but was aimed at changing the definition of marriage to include same gender couples. The voice of those who questioned whether legislators are free to redefine marriage in a way that effectively removes one of its core elements - reproduction, was ignored. The bill was passed by the House of Representative on September 12, 2000 and by the Senate in 2001. With this legislation, Netherlands became the first country in the world to open civil marriage to same gender couples, and became equally a reference point for other nations. Belgium followed in fully legalizing same-sex marriage in 2003 and Spain in 2005.

United States and Canada

 In the United States, the national government and nearly all the states have their own constitutional equality provision. However, under American federalism, family law is under the province of the states and that includes the definition of marriage and the qualification of those entering into it.^[28] In other words, marriage is a matter for determination by the State legislatures and their courts.

Similar to what happened in the Netherlands, the attack on the traditional institution of marriage and family in the United States started with the Courts, for they were equally faced with the interpretation of the State constitutional guarantees of equality. In the state of Vermont, three same-sex couples applied for marriage licenses from the Registrar and were denied. They then headed to the court invoking the Vermont constitution’s equality provision, and the Common Benefit Clause.^[29] While the trial court dismissed their claims and held that man-woman marriage rationally furthered the State’s interest in promoting the link between procreation and childbearing, the appeal court upturned the judgment, by alluding to an argument which in my view is submitted to be suspect and biased. The appeal court argued that laws regulating marriage did not exclude opposite-sex couples who cannot or will not procreate, and that same-sex couples can equally adopt or beget children through the modern Assisted Reproductive Techniques (ART). They forgot that adoption is not a means by which children come into the world, and “that only one man and one woman together can be the biological parents of a child and can raise it with the complementarity of motherly and fatherly love”.[30]

However, by 2000, Vermont became the first state in United States to adopt civil unions for same-sex couples, giving homosexuals the same benefits as married couples, on matters such as life insurance, health care and child custody.^[31] The State of Massachusetts allowed same-sex marriage through a court ruling^[32] in 2003 and started issuing same-sex marriage licenses in 2004. The State of Connecticut’s first legal same-sex marriage occurred in 2008. By September 1, 2009 through a legislative action, the State of Vermont enacted a law allowing same sex couples to marry. Iowa began allowing same-sex couples to wed also in 2009. Other States later followed and currently, twelve States and the District of Columbia allow same-sex marriages.

There are some States, however, that still prohibited same-sex marriage by adopting “defense of marriage” language that defines marriage in their State constitution and/or State law in a way similar to the language in the federal Defense of Marriage Act (DOMA), maintaining that the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.

In effect, with regard to United States, apart from the twelve States that allowed same-sex marriage, several States have also expanded the legal rights available to spouses in same-sex relationships while also limiting marriage to opposite-sex couples with civil unions and domestic partnerships.[33] The fight to change the definition of marriage however continues in these States that are presently opposed to it.

In Canada, in 2003, an Appeal Court declared Canada’s definition of marriage as a union of a man and a woman invalid, and changed it to a union between two people. By 2005, the bill authorizing same-sex marriage throughout Canada passed both the House of Commons and the Senate and became law after receiving Royal Assent. This effectively changed the common law definition of marriage which has been recognized in Canada for centuries to a civil marriage definition as a union of two persons.[34]

United Kingdom and Ireland

In 2004, the United Kingdom government enacted the Civil Partnership Act 2004, which created a legal union that was very similar but not fully identical to marriage. A civil partnership was available only to same-sex couples. Section 1 of the CPA 2004 defined civil partnership as a relationship between two people of the same sex (civil partners) which is formed when they register as civil partners of each other in England or Wales, Scotland, Northern Ireland, or outside the United Kingdom under an Order in Council. On 15 March 2012, the Government launched a consultation on equal civil marriage asking for views on proposals to enable same sex couples marry through a civil ceremony. By 11 December 2012, the Government published its response to the consultation and confirmed its intention to make civil marriage ceremonies available to same-sex couples. On 24 January 2013, the House of Commons was presented with the Marriage (Same Sex Couples) Bill aimed at introducing civil marriage for same-sex couples and enabling religious organizations to opt in to conduct same-sex marriages if they wish to do so.[35] The Bill received Royal Assent on 17 July 2013, and now England and Wales are among the countries where same-sex marriage is legalized.

On November 5, 2013, the Irish Cabinet agreed to hold a referendum on same sex marriage before the summer of 2015. At their meeting, Ministers accepted the recommendation of Minister for Justice Alan Shatter that they should follow the advice of the Constitutional Referendum and put the issue of same sex marriage to the people. The constitutional convention voted on April 2012 to recommend a change in the Constitution to allow for same-sex couples to have a full civil marriage and not just a civil partnership. In Ireland, more than 1,500 couples have secured civil partnerships since they were introduced in 2010.

Grainne Healy, chairman of Marriage Equality, has already expressed confidence that the people of Ireland will overwhelmingly support the extension of civil marriage rights to lesbian and gay people. According to him, “This referendum is unlike most other referenda, it’s not concerned with politics or economics, it’s about Ireland valuing its citizens equally. Introducing marriage equality to Ireland would strengthen our reputation as champions for human rights and equality.”[36]

It therefore becomes evident that this referendum, which has already become politicized and made a political issue, is aimed at starting a reform that will in the final analysis bring about a redefinition of marriage to accommodate same-sex unions in Ireland. With this happening in a country like Ireland considering their Christian background, there is every course to be genuinely concerned.

South Africa and Nigeria

In South Africa, the High Court in Bloemfontein in July 2002 ruled that to deny same-sex couples the right to marry is discriminatory and unconstitutional. The Appeal Court later declared that under the Constitution the common law definition of marriage as between a man and a woman must be revised to allow same-sex couples to marry. The constitutional court in Johannesburg, the nation’s highest Court, affirmed this decision in May 2005 and ordered the definition of marriage to be changed from “a union between a man and a woman” to a “union between two persons”. With this, the South African National Assembly approved a bill in November 2006, legalizing same-sex marriage.[37] It is the only country in Africa to have done so.

Most other African countries, however, still consider same-sex relationships as a social and regional taboo and even un-African[38]. In Nigeria for instance, the Federal Ministry of Justice in 2006 presented a Same Gender Marriage (Prohibition) Bill 2006, which criminalized same-sex marriage punishable with five years’ imprisonment for anyone who involves in it, aids or abets such marriage[39]. A change of government in 2007 truncated the realization of this Bill. On July 25, 2011, the Bill for an Act to Prohibit Marriage of Same Gender, Solemnization of Same and For Other Matters Related therewith (Same Gender Marriage (Prohibition) Bill, 2011), was re-introduced. Today Nigeria, refusing to bow to international pressure and politics, has formally passed into law this Bill thus effectively criminalizing all forms of same-sex relationships punishable with up to fourteen years imprisonment. In other words, the only valid marriage in Nigeria is one contracted between a man and a woman either under Islamic Law, Customary Law or Marriage Act. The question however is whether Nigeria would be able to sustain this position in the future.

The Implication of Redefining Marriage as a Union of Two Persons

There is no doubt that the weakening of marriage as an institution by redefining it would have serious negative consequences for society as a whole. The traditional institution of marriage protects children, men and woman, and the common good. It is based on the anthropological truth that men and woman are different and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children need both a mother and a father[40].

In other words, the institution of marriage has intrinsic characteristics which contribute not only to the building up of the unitive relationship between husband and wife but also the relationship they have with any children of their marriage, with their extended family, their local community and with the wider society in which they live.[41]

The implication of changing the definition of marriage to a union of two persons, and thereby attributing to it a significance alien to its natural and canonical meaning, is that the essential link between marriage, conception and biological parenthood would be eclipsed and lost. It would undercut the idea that procreation is intrinsically connected to marriage. It would reduce marriage merely to sentimentality and to sex, and with emotional or romantic connection becoming the sole criterion by which the State is to determine what constitutes marriage. Moreover, it would corrode marital norms of sexual fidelity since the advocates of same-sex marriage and same-sex couples themselves tend to downplay the importance of sexual fidelity in their definition of marriage. Taken to its logical conclusion, the redefinition of marriage as a union of two persons would also amount to legalizing polygamy and polyamory or group marriage, and produce a culture in which marriage loses its significance and standing, with disastrous results for children begotten and reared in a world of post-marital chaos.[42]

Redefining marriage as a union of two persons would equally amount to a direct and demonstrable threat to religious freedom. This concern was expressed in a letter by the Bishop of the Catholic Diocese of Parramata, Sydney to the members of Parliament of the Commonwealth of Australia (NSW Legislative Council) in a bid to discourage them from supporting the motion to amend the Commonwealth Act 1961 to provide for marriage equality: “If there is a change to the legal definition of marriage, pressure will be brought to bear on Catholic schools, agencies and other institutions to teach and to accept that this form of sexual union is equal in worth to the committed, monogamous and heterosexual union sealed in marriage… This is an unacceptable infringement of the freedom of association and religious liberty, including not only freedom of worship but also freedom of religious practice”.[43]

In the United States, this concern has already become a reality. Thomas Messner has documented multiple instances in which redefining marriage has already become a nightmare for religious liberty.[44] He pointed out that after the State of Massachusetts redefined marriage to include same-sex relationships, Catholic Charities of Boston was forced to discontinue its adoption services rather than place children with same-sex couples against its principles. Again, the “Religious Freedom Protection and Civil Union Act” has forced Catholic Charities out of foster care and adoption services in Illinois. This goes to show that the right to religious freedom in the final analysis would be breached by the State rather than protected by getting involved in the redefinition of marriage.

The US Conference of Catholic Bishops in their pastoral letter on marriage also said: “The legal recognition of same-sex unions poses a multifaceted threat to the fabric of society, striking at the source from which society and culture come and which they are meant to serve. Such a recognition affects all people, married and non-married: not only at the fundamental levels of the good of the spouses, the good of children, the intrinsic dignity of every human person, and the common good, but also at the levels of education, cultural imagination and influence, and religious freedom”.[45] This goes to show that once marriage is redefined and same-sex couples allowed to marry and adopt children as is currently done in many jurisdictions, the future of the human society can only be described as bleak.

Evaluation and Conclusion

Marriage understood as a union of a man and a woman remains the foundation of the family which is the bedrock of every society. The threat of civil partnerships, cohabitation, divorce, and same-sex marriage to the traditional and canonical concept of marriage is today very evident. What started in many countries as a child’s play has spread like wild fire engulfing and devastating many jurisdictions. The fact that in Africa, South Africa has broken the regional taboo by legalizing same-sex marriage should make Nigeria and Nigerians to be wary and alert. The gay activists and advocates of same-sex marriage are using it as a political pressure and tool to entangle many developed and developing nations. The present stand of the Federal Government of Nigeria at the United Nations Human Rights Council in Geneva that it will not bow to international pressures to allow same-sex marriage in the country is encouraging and must be sustained. The Government said: "Nigeria does not accept recommendation of some countries on same sex marriage, because it is against its national values. Recent polling data suggests that 92 percent of Nigerians support the Anti Same-Sex Marriage Bill passed by the Senate”.[46]

 The Church as a bastion of truth and an advocate of marriage as ordained by the creator must continue to speak out and confront these challenges. She must continue to defend the canonical marriage and its properties. The structure of marriage can only be fully understood and explained by its purpose. Without reference to the purpose of the institution, there would be no reason why just any set of promise should not count as marriage and no reason why polyamory, incest and bestiality should not in the final analysis be marriages.[47] There is no gainsaying the fact that the future of a nation depends on the future of families and of marriages, while the future of marriage depends on citizens understanding of what it is and why it matters, and demanding that government policies support, and not undermine the true marriage and its values as ordained and instituted by God and as understood and practiced from time immemorial.

The claim of same-sex activists that they are victims of discrimination and bigotry, and that they are being denied their civil and constitutional rights cannot but be far from the truth. The word ‘discrimination’ should not be taken as a synonym for ‘unfair treatment’ or ‘injustice’ but should be understood as a valid social concept, as discrimination simply means to distinguish or to differentiate, and there are prudent reasons why societies discriminate on the basis of good social policy. To deny driving licenses to the blind does not assume that they do not deserve equal respect and consideration as persons, but that they are different from other persons in respects relevant to driving.

Since positive differentiation is important, it is submitted that it is thus not unjust discrimination against homosexual couples to uphold marriage as being between a man and a woman. Marriage and same-sex unions are essentially different realities, and justice requires that this difference should be recognized and respected.

Consequently, the right to marry, though fundamental, does not contemplate the right to marry members of one’s own sex or to marry a domestic animal. Same-sex marriage is not about civil rights either. It is about seeking for validation and social respect. It is nothing but a radical attempt at civil engineering of marriage using the government muscle to strong-arm the people into accommodating a lifestyle many find deeply offensive, contrary to nature, socially destructive, and morally repugnant.

Homosexual acts must be seen for what they are, namely, acts of grave depravity, acts intrinsically disordered, acts contrary to natural law, for they do not proceed from a genuine affective and sexual complementarity.[48] Sexuality is ordered to the conjugal love of man and woman and concerns the innermost being of the human being. Consequently, it is realized in a truly human way only if it is an integral part of the love by which a man and a woman commit themselves totally and irrevocably to one another in an exclusive and permanent relationship. The so called same-sex union or “marriage” cannot in any way achieve this goal of conjugal or sexual complementarity.

Marriage cannot and should not be created by government or by judges, for it is not merely a legal construct. However, because marriage as a meaningful social institution is so intimately related to the generation and the protection of children, the government has always been seen to have a legitimate role in regulating its civil effects.

This is why the state or government must exercise special care through her laws not to undermine the traditional meaning of marriage by redefining it, for this would amount to “building a house in a hurricane” and inadvertently institutionalizing and perpetuating a harmful social change capable of imploding and destroying the fabric of the society. Human nature exists and sets limits on what law can accomplish by fiat alone, and so when it comes to marriage, law must respect the reality of the ways in which human biology, human nature and social relationships are intertwined.

To this effect, it is strongly advocated that Nigeria and other African countries that are strongly opposed to same-sex marriage should as a matter of urgency amend their Constitutions and clearly and unequivocally define marriage as a union between a man and a woman so that no “progressive” or “activist” judge would in the future have any course to give a contrary direction, as has happened in America and Europe.

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[1] Cf. W. Ernst, “Marriage as Institution and the Contemporary Challenge to it” in R. Malone, J.R. Connery, (eds), Contemporary Perspectives on Christian Marriage, (Illinois: University Press, 1984) p.44

[2] T. Nnabugwu, “Childless Marriage in Africa and Indissolubility: A Canonical Appraisal”, in H.C. Achunike (ed), Evangelization in the Third Millennium: A Contemporary Analysis (Onitsha: Africana-Fep Publishers Ltd, 2002) p.192.

[3] cf. Gaudium et Spes, no.48.

[4] Gaudium et Spes, n. 48; See J. McAreavey, The Canon Law of Marriage and the Family (Portland: Four Courts Press, 1997) pp.18-45; P. E.O. Okpaloka, Legal Protection of Marriage and the Family Institutions: A Comparative Study of Major Normative Systems with Special Focus on Nigeria-Africa (Onitsha: Trinitas Publications, 2002) pp.57-62.

[5] Cf. P.A. Bonnet, L`Essenza del Matrimonio Canonico, Cedam 1976, p.157

[6] C. Burke, “The Object of Matrimonial Consent” in Forum: A Review of Canon Law and Jurisprudence, No. 1. Vol. 9 (1998) p.71

[7] CIC 1983, can. 1055, §2; CCEO, can. 776, §1.

[8] Cf. CIC 1983, cann.1055-1056.

[9] M. Grech, “The Harmonization of the Religious and Civil Dimensions of Canonical Marriages in Malta” in Forum: A Review of Canon Law and Jurisprudence, vol.11 no. 1(2000) p.25.

[10] M.N. Stewart, “Marriage Facts“, http://protectmarriage.com/wp-content/uploads/2012/11/marriage -facts.pdf; (Accessed 30/7/13).

[11] B.A. Garner (ed), Black’s Law Dictionary (8^th edn, Minnesota: Thomson West, 2004) p.992.

[12] Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, 133.

[13] Interpretation Act Cap 123 (1964 No 1), s.18, Laws of the Federation 2004.

[14] S.C. Ifemeje, Contemporary Issues in Nigerian Family Law (Enugu: Nolix Educational Publications, 2008) p.11.

[15] C. Arinze-Umobi & A.D. Umobi, Crisis in Family Law (Onitsha: Folmech Printing and Publishing co. ltd, 2009) pp. 16-17. See also the cases of Corbett v Corbett (1970) 2WLR 308.

[16] J.S. Crouse, “Marriage and Society: The Role of Marriage in Preserving Human Rights”, http://www.ohchr.org/Documents/Issues/HRValues/ShawJanice.pdf; (Accessed 18/8/13).

[17] The Witherspoon Institute, “Marriage and the Public Good: Ten Principles” (2008), www.princetonprinciples.org; (Accessed (30/8/13).

[18] B.A. Garner (ed.), Op.cit., p.516

[19] Nigerian law on divorce prior to 1970 was based on the matrimonial offence theory, which had the English Matrimonial Causes Act of 1965 as its source. 

[20] CCHCJ/17176 at 1936

[21] S.C. Ifemeje, Contemporary Issues in Nigerian Family Law, p.92

[22] Ibid., p.94

[23] Ibid., pp.96-97. The details of divorce rate in Canada covering 1998 -2000 showed that Canada experienced not less than 69,0898 couples divorcing in 1998 alone.

[24] John Carvel, “7 Years High Divorce Rate“; http://www.statcan.ca/Daily/English, (Accessed 8/11/13).

[25] N.G. Maxwell, “Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison”, Electronic Journal of Comparative Law, vol. 4.3 November 2000, www.ejcl.org/43/abs43-1.html‎; (Accessed 15/10/13).

[26]Kortmann Committee, Unanimous when It Comes to Protecting Children, Divided over Legal Form for Couples, Oct. 28, 1997, http://www.minjust.nl:8080/c_actual/persber/pb0176.htm; (Accessed 17/10/13).

[27] Kees Waaldijk, Dutch Law Reform in Progress, January 1, 1999, http://www.coc.nl/index.html?file=marriage_01;  (Accessed 15/3/13).

[28] M.N. Stewart, ‘Judicial Redefinition of Marriage’ (2004) 3 Canadian Journal of Family Law, 28

[29] Baker v State, 170 Vt 194, 744 A2d 864 (1999) [Baker] at 235-43.

[30] R.M.T. Schmid, “Is marriage just discrimination” in Forum: A Review of Canon Law and Jurisprudence, vol.16, no.1 (2005) p.193

[31] S.C. Ifemeje, Contemporary Issues in Nigerian Family Law, p.28.

[32] Goodridge v Department of Public Health, 440 Mass 309, 798 NE2d 941 (2003) [Goodridge] at 312-44

[33] NCSL RESORCES, “Defining Marriage: Defence of Marriage Acts and Same-sex Marriage Laws”, http://www.ncsl.org/issues-research/human-services/same-sex-marriage-overview.aspx ; (Accessed 18/10/13).

[34] C.P.Kindregan, “The Marriage Debate in Historical Perspective: Changing Norms and the Evolution of Civil Marriage” (2006), http://lsr.nellco.org/suffolk_fp/32. (Accessed 12/10/13).

[35] HOUSE OF COMMONS LIBRARY (2013), Marriage (Same Sex Couples) Bill No 126 of 2012-13, http://www.parliament.uk/briefing-papers/RP13-8.pdf. (Accessed 15/10/13).

[36] Referendum on same-sex marriage to be held in 2015, Irish Times, November 5, 2013; http://www.irishtimes.com/news/politics/referendum-on-same-sex-marriage-to-be-held-in-2015-1.1584350; (Accessed 7/11/13).

[37] S.C. Ifemeje, Contemporary Issues in Nigerian Family Law, p. 30.

[38] Kenya & Zambia- Homosexual act or gay sex carries up to 14 years imprisonment; Uganda – Up to life imprisonment.

[39] Cf. C. Arinze-Umobi & A.D. Umobi, Crisis in Family Law, pp. 46-48.

[40] R.T. Anderson, “Marriage: What it is, Why it Matters and the Consequences of Redefining it”, http://www.heritage.org/research/reports/2013/03/marriage-what-it-is-why-it-matters-and-the-consequences-of-redefining-it; (Accessed 1/8/13).

[41] Catholic Bishops’ Conference of England and Wales, “Response from the Catholic Bishops’ Conference of England and Wales to Government Consultation on ‘Equal Civil Marriage’” (June 2012), www.catholic-ew.org.uk/.../CBCEW-response-equal-civil-marriage-cons. (Accessed 9/10/13).

[42] The Witherspoon Institute, “Marriage and the Public Good: Ten Principles” (2008), www.princetonprinciples.org. (Accessed on 30/8/13).

[43] Most Rev. Anthony Fisher, “Speaking the Truth in Love”, www.parra.catholic.org.au/; (Accessed 12/10/13).

[44] Thomas M. Messner, “Same-Sex Marriage and the Threat to Religious Liberty”(2008), http://www.heritage.org/research/reports/2008/10/same-sex-marriage-and-the-threat-to-religious-liberty; (Accessed 20/10/13).

[45] United States Conference of Catholic Bishops, “Marriage: Love and Life in the Divine Plan” (2009), www.usccb.org/issues-and-action/marriage/love-and-life/upload/pastoral-letter-marriage-love-and-life-in-the-divine-plan.pdf; (Accessed 20/8/10).

[46] I. Anaba, “Nigerians against same-sex marriage – FG”, Vanguard, October 23, 2013, p.8

[47] Cf. J. Finnis, “Law, Morality, and ‘Sexual Orientation’” in Notre Dame Law Review, 69(1994) 1049-1076.

[48] Catechism of the Catholic Church (CCC), n.2357; see also Familiaris consortio, n.11