In October 2003, Conor Gearty—Professor of Human Rights Law at the London School of Economics—gave the Second Alan Bray Memorial Lecture on ‘Reclaiming Our Tradition: Rights, Diversity and Catholic Social Thought’.[1] In his lecture, Professor Gearty offered a balanced and very generous appraisal of the Catholic Church’s commitment to human rights, and urged people not to judge as hypocritical the Church’s refusal to acknowledge full rights for homosexuals.[2] Along the way he also drew attention to the difference between the responses of Rome (The Sacred Congregation for the Doctrine of the Faith) and the Bishops of England and Wales, to the introduction of civil partnerships for same-sex couples: the first a shout of fear from somewhere seemingly very far from the modern world; [3] the second altogether more moderate and thoughtful in tone.[4] Setting aside the various calumnies that the Church makes against gay people—that they are ordered toward an ‘intrinsic evil’ and threaten social order through their love-making—Gearty concluded irenically that the Church has yet to see that sexual identity is as much a part of what it is to be human as any other aspect, and that this identity varies throughout the population. The Church has to expand its vision and see that gay men and lesbian women, as well as bisexual and transgendered people, are as fully human as anyone else, constituent members of the imago dei that is humanity. In due time the Church’s refusal of full rights for homosexuals may well give way to the acceptance, if not the championing, of gay and lesbian rights, as the Church comes to recognize the full complexity of the human person. And the time may be closer than we think.
I fully agree with this assessment of the problem and hope and pray that Gearty is right in his expectation, but I also think that the Church’s attitude toward human rights is more ambivalent than he suggests, and that in this ambivalence the Church is both further away and closer to the full vision of humanity that Gearty seeks.[5]
It has often been pointed out that the Church champions human rights in the world but denies them in the Church. Thus, to take a pertinent example, the Catholic Bishops’ Conference of England and Wales, in its submission to the British Government’s consultation on proposed civil partnerships for same-sex couples, welcomed changes to employment law that ‘tackle discrimination on grounds of sexual orientation’.[6] But a footnote reminds us that the Bishops are worried that such legislation might be applied to religious organizations like the Church, jeopardizing their right to ‘safeguard their ethos’, i.e. their right to discriminate on grounds of sexual orientation. In the secular world it would be wrong to dismiss someone for being homosexual, but it would be right to do so in the world of the Church. To many this seems like a hypocritical double-standard, affirming what is at the same time denied. But the Church has always advocated multiple standards, which are presented as a ladder of perfection, which we climb by embracing ever more rigorous forms of life. In this way we ascend ever closer to God. Thus St Paul, while he urged those who burned with lust to put out the fire of passion through marriage, was in no doubt that celibacy was the finer option, and his view became and largely remains the view of the Church.[7] Marriage is fine, but celibacy is finer.[8] Thus we should not be surprised if the Church advocates different standards of behaviour for those outside and within the Church, since within different standards also prevail. Homosexuals and ‘homosexual practices’—whatever they are—can be tolerated outside the Church, but not within, which is where life is lived more perfectly.
Admittedly, the Church’s double standard for those within and without is a little more ambiguous than I have suggested. For while the English Bishops’ Conference insists on defending the ‘fundamental human rights of every person, irrespective of sexual orientation or behaviour,’[9] they also deny that same-sex partnerships are ‘equally deserving of public protection and respect’ alongside other-sex marriages.[10] Nevertheless, it is clear that, apart from opposing civil same-sex partnerships, which it yet sees as marriages in all but name, the Bishops’ Conference promotes rights for homosexuals in the wider society that it would deny them in the Church. For the Conference welcomes the Sexual Offences Bill 2003 which should ‘remove lingering prejudice and discrimination against homosexual people in the workplace,’ while at the same time seeking to maintain such discrimination in the ‘workplaces’ of the Church.[11]
What is shocking about the Catholic Church’s double standard regarding homosexual rights is not so much that it is double, but that the internal standard should be considered the more perfect. For what could be more perfect than the standard of human rights, which defines the dignity of the human person as such? And if the Church does indeed have a higher standard it must surely enhance rather than abrogate what is affirmed at the lower level? If the Church recognizes the full humanity of homosexuals outside the Church it can do no less when they are within the Church, and yet this is what the Church appears to do.
A possible reason for this disparity is the Church’s ambivalence towards human rights. They were enthusiastically embraced by the second Vatican Council, which declared, in Gaudium et Spes, that ‘by virtue of the gospel committed to her, the Church proclaims the rights of man,’ and greatly esteems ‘the dynamic movements of today by which these rights are everywhere fostered.’ But in the very next sentence we are reminded that such dynamic movements ‘must be penetrated by the spirit of the gospel and protected against any kind of false autonomy. For we are tempted to think that our personal rights are fully ensured only when we are exempt from every requirement of divine law.’[12] And the Council Fathers were not wrong to fear such a temptation.
It is possible to locate the discourse of human rights in a tradition stemming from St Thomas Aquinas, as indeed Gearty does. But Thomas himself knew nothing of human rights as such, and spoke only of natural law, and then not very much. In the Summa Theologiæ he devotes only one question to natural law (Ia-IIae Q.94), which he places between questions on eternal and human law. The Church’s later advocacy of natural rights owes as much to Enlightenment modes of thought as it does to Thomistic ones. Thus, for example, Pope Leo XII’s Rerum novarum (1891) asserts the right to private property, a right that has more to do with John Locke than Thomas Aquinas, and one that Thomas would have found very strange indeed.[13] A consideration of why Thomas would have found it strange will lead us to see why modern human rights must seem odd, even dangerous, from a theological point of view.
In the Summa Thomas addresses questions of property when considering theft and robbery. Thomas’ problem is to understand how people might own something when it is only God who properly owns anything since God alone makes everything to be. The things of the world are most proper to God and not to any particular thing or things in the world. Thomas argues that we can own things only insofar as God has given them for our use, and he offers an entirely pragmatic argument for why we may possess property, which is that we have more concern for those things we think our own than for those held in common (IIa-IIae Q.66, 2nd article, on the contrary). Nevertheless, things are given for use, and so are common goods. Therefore we should be ready to give what we own to those in need. In all this Thomas is guided by the thought that ‘God has sovereign dominion over all things’ (IIa-IIae Q.66, 1st article, reply to objection 1).
It is axiomatic for Thomas that everything that is, is because it comes from God. Everything that exists, exists because caused by God. There are human beings because there is first God’s being, who gives existence to the beings of the world. Thus we are the creatures of the Creator, receiving ourselves in the very life that we receive from God. Gift and reception are the fundamental notes of our creaturely life. It is not just that we always come from another, who gives us birth, and are dependent on others, who tend our vulnerability and nurture our striving, but that the very being of these relationships is itself given from that source from which all being flows. From this fundamental insight of Christian faith it follows that we have nothing from ourselves. There is nothing that we have which we have not first received. We are never self-made, and so never have anything as of right. Each breath is a gift, a sign of the Spirit in whose breathing we breathe.
In Thomas’ vision we have no rights, not even a right to life. Yet equally, it also follows that we have no right to take the life of another. Life is given and given for life, for its flourishing and well-being, and it is from this understanding that we can begin to think of what makes for the fullness of human life. Christian faith finds this fullness in learning how to imitate God’s giving in giving back to God what we have first received, and which return can only be made by giving our lives to others. Thus it is through participating in God’s charity that we attain to fullness of life, and it is through contemplating what makes for charitable life that Thomas is able to think of the law which makes for human flourishing, a law that is both natural and divine. It is natural because the given or inherent dynamism of created being, and divine because this dynamism is always moving toward that supreme life from which all life comes and to which it returns, and from which it has never really departed insofar as it is alive at all.
We can thus trace a path from Thomas’ natural law to modern human rights, when we understand the latter as the expression of what makes for human flourishing, for an ever more abundant life. Thus rights to life, to shelter and sustenance, to education and freedom of expression, to freely form intimate relationships, and to bear and rear children, can all be understood as expressions of what makes for human well-being. However, something else has happened along the path from Thomas to this modern way of expressing human beatitude, something that can make this expression deeply worrisome.
The discourse of human rights insinuates the idea that certain things belong to us because of what we are as human beings, and so we are tempted to think ourselves the supreme source of value without reference to the source from which we truly come. While Thomas Jefferson’s Declaration of Independence (1776) ascribed the ‘self-evident’ and ‘inalienable rights’ of all men to ‘their creator,’ the United Nations’ Universal Declaration of Human Rights (1948) dispenses with any such source and simply assumes the existence of such rights. In the twentieth century rights become utterly and only human. From the theological point of view I have been outlining, the Universal Declaration is in some ways less mistaken than Jefferson’s, because it does not think that our creaturely status gives us rights, but it is still misleading because its rhetoric conceals the fact that human rights exist only insofar as they are recognised. They cease to exist when people fail to notice them. This is why the Catholic moral philosopher Alasdair MacIntyre considers rights to be fictions, and that belief in them ‘is one with belief in witches and in unicorns.’[14]
Furthermore, we have rights as individuals over against other individuals. Rights are claimed against those who refuse or fail to acknowledge such rights. Such adversarial rhetoric expresses and constitutes the individualism of modern rights discourse, and thereby hides from us the fact that human flourishing can only ever be social because we are social animals, constituted through webs of dependent relationships and ordered toward the life of the divine Trinity. In a way this is half recognized in human rights discourse, since such rights exist only insofar as there are institutions that recognise and maintain the rule of law by which such rights can take effect in our lives—the institutions of democratic government, judiciary and law enforcement of which Gearty speaks in his lecture. Rights whither and disappear with the withering of such institutions or with the withering of their resolve to recognise such rights; as the prisoners at Guantanamo Bay will be all too aware. But the dependency of rights on the social rules and institutions by which they are constituted is itself obscured by the rhetoric of human rights which supposes that such rights are self-evident and inalienable, when in fact they are alienable and often far from self-evident. Jefferson may have thought that ‘all men were created equal’, but he did not think that women and slaves were included among such ‘men’.
God has been forgotten on the way from Thomas to the modern discourse of human rights, and because God has been forgotten so also the human person. What I mean by this is that human rights discourse is at best an expression of what makes for human flourishing, but human rights discourse does not itself provide an account of what it is to be fully human, but must assume this, to which it then gives expression in terms of those rights that make for human life. Thus the Church can use human rights discourse in order to express its understanding of human life as the creation of the loving God. But when no such prior understanding exists, when human rights talk becomes the basic and only moral discourse, then such discourse must become increasingly contingent, trading on unacknowledged values that it has taken from elsewhere but can never interrogate. This then leads to what Alasdair MacIntyre has identified as the logically interminable debates of modern times concerning, for example, the rights of mothers over against those of the unborn. These debates can never be settled within a human rights framework because the framework itself does not give us an idea of what it is to be human, while at the same time obscuring the fact that as a society we either have no such idea or hold a variety of competing ones.
Thus the discourse of human rights can never make much sense within the Church, for the Church is that community in which people learn that they receive their life from God and hold nothing as of right, since without God they are nothing; they would not be. And the Church is that community where human flourishing is known and celebrated as a social good: the corporate life of the Body of Christ. The Church looks for and seeks to show the harmony of the heavenly Jerusalem, a social order in which no one has to tolerate others, because no others are seen as threatening, but all are celebrated in their difference. For then, as St. Augustine taught, ‘God will be the end of all our desires. He will be seen without end, loved without stint, praised without weariness. And this duty, this affection, this employment, will, like eternal life itself, be common to all.’[15]
Just as it makes no sense to demand rights of Christ, so it makes no sense to demand of the Church, say, women’s right to ordination, since priesthood is not anyone’s right, but always a gift to the Church. This does not mean, of course, that the Church is right to bar women from priestly ordination, but this failure should be understood not as an infringement of human rights, but as a curtailment of the Church’s symbolic action, the means by which it witnesses to the fulfilment of humanity in the life of Christ. For it is hard to see that both men and women are incorporated into the life of Christ when Christ at the altar is only allowed (by men) to appear in the bodies of men. One might almost say that the refusal to ordain women is a refusal of the Kingdom: the Christic community in which eternal life is common to all.
I have sketched the Church as an ideal community, in the belief that the Church is called to be such a community. It is called to bear witness to the Body of Christ by being Christ’s Body in the world. But being in the world, it constantly fails in this endeavour, and constantly tries again; returning to Christ as Christ always returns to his Church. The Church is thus always symbolic of a yet fuller life, which exceeds the symbol in which it yet appears. On this account, the failure of the Church to acknowledge the full humanity of homosexual persons is not a matter of human rights, but of the Church’s symbolic life. This is why I think that in its ambivalence to human rights the Church is both further away and closer to the full vision of humanity that it is called to show.
The Church is closer to that vision through setting human rights outside itself since the life of the Church should be more cohesive and harmonious than a society of competing rights, and it should show what such a society can never admit: that all we are and have comes from another, that our life is utterly gratuitous. Yet at the same time the Church is further from such a vision because it fails to see itself, it fails to see the Body into which it has been formed by Christ. This is my theological gloss on Gearty’s lecture, his complaint that the Church has yet to fully—honestly—recognise the diversity of human life, of human loving. It is not just that the Church fails to see the full complexities of being human, but that it fails to see the full complexity of Christ. In short, it fails to see whom Christ has been calling to the altar.
When St Paul identified as idolaters those whom we would now most likely identify as ‘homosexuals,’[16] he did not know that one day such people would be, like him, followers of Christ, baptised in Christ’s name and even ordained to represent Christ at the altar, indeed called to be among the successors to the apostles, the bishops who have care of the Church.[17]
No doubt Paul would have been amazed that such a thing could happen, that he could have so misunderstood the possibilities of life in Christ. But he would have understood that it was no more impossible for such people, whom he considered to be acting in excess of nature (para phusin)[18]
, to be united with Christ, as it was for Gentiles to be grafted, in excess of nature (para phusin), into the true vine of Israel.[19] Paul was used to the unexpected, and we must be prepared for it as well, for the time when the Church will see with a similar clarity to that with which St Paul was so often blessed.
The discourse of human rights can only ever be second best, but the ‘second best’ is the best that we can achieve this side of paradise. If the Church is correct to be wary of human rights, for what they tempt us to forget, the Church may yet learn from human rights how to see the Body of Christ more clearly. For Christ always comes from the direction we least expect, from the place we think less perfect than our own, from outside our present securities. If the Church can see that it is wrong to discriminate against homosexuals in the secular world it may come to see that it is also wrong to do so in the world of the Church. It will come to see that gay men and lesbian women are already gathered at the altar, and gathered there by Christ, who loves them in their loving of one another. In hope and prayer we may look for the arrival of this joyful vision.
[1] This is a slightly revised version of my ‘theological response’ to Professor Conor Gearty’s paper on ‘Reclaiming Our Tradition: Rights, Diversity and Catholic Social Thought’, which was given as the Second Alan Bray Memorial Lecture at St Anne’s Church Soho, on 18th October 2003. I would like to thank Martin Pendergast for organising the event, and all who contributed to the discussion on that occasion, but above all to Conor Gearty for his fine and thought provoking lecture.
[2]The lecture is posted on the London School of Economics’ Centre for the Study of Human Rights’ website (http://www.lse.ac.uk/Depts/human-rights/ Documents/)
[3]I say ‘seemingly’ because, while I understand why Gearty likens Cardinal Ratzinger to someone shouting in a medieval library, I think that the pronouncements signed by the Cardinal are often informed by deeply modern ways of thinking, and especially when it comes to their crudely biologistic and functionalist approaches to human sexuality. For more on this see Gerard Loughlin, Sex After Natural Law, Studies in Christian Ethics, 16/1 (2003): 14-28. Nevertheless, Gearty is right to suggest that the Cardinal’s pronouncements on homosexuality come from a very dark place.
[4]See respectively, the Congregation for the Doctrine of the Faith’s Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons (July 2003) and the Submission by Bishop John Hine, Bishop for Marriage and Family Life on Behalf of the Catholic Bishops’ Conference of England and Wales to the Government Consultation on Civil Partnership: A Framework for the Legal Recognition of Same-Sex Couples (September 2003).
[5] Throughout this essay I use the word ‘Church’ in at least three senses. Sometimes I mean the Church as ‘Rome’ – the teaching office or magisterium associated with the Sacred Congregation for the Doctrine of the Faith and in particular Cardinal Joseph Ratzinger; sometimes I mean the Church as the pilgrim ‘people of God’; and sometimes I mean the Church as she is called to be, the joyful presence of Christ’s risen Body in the world. I hope that in any particular case the meaning of the word will be evident from the context. Sometimes the word may carry more than one meaning, for while the Church as the Roman magisterium is an historical aberration, the Church as Christ’s Body interpenetrates and enlivens the people of God through the power of the Spirit, who is always (re)gathering Christ’s Body in her arms.
[6] Submission, paragraph 13 and note 9. The Submission does not represent the unanimous view of the working party that was set up by the Bishop’s Conference to draft the submission. Terry Prendergast, CEO of Catholic Marriage Care, and a member of the working party, publicly expressed his disagreement with the Submission, not least over its central and most ludicrous arguments: that gay partnerships will undermine the very institution of marriage in which they will partake (in all but name), and that children reared in such marriages will be more likely to be damaged than not. See ‘How Bishop Hine Came Down Against “Gay Partnerships”’, The Tablet (11 October 2003): 30-1. The Employment Equality (Sexual Orientation) Regulations 2003 were approved by Parliament in June 2003 with effect from the 1st December 2003, and bring British employment regulations (excluding Northern Ireland) into conformity with the 1998 Human Rights Act. They make discrimination on grounds of sexual orientation unlawful, except, that is, for religious organizations, which may so discriminate.
[7] I Corinthians 7.1-7. For more on this strange text see Gerard Loughlin, Alien Sex: The Body and Desire in Cinema and Theology (Oxford: Blackwell, 2004), ch.6.
[8] See John Paul II, Familiaris Consortio (London Catholic Truth Society, 1981), section 16, (p.30). The Church ‘has always defended the superiority of this charism [celibacy] to that of marriage, by reason of the wholly singular link which it has with the Kingdom of God.’ For more on the ‘singular link’ see further Loughlin, Alien Sex, chs 7 (especially pp.218-20) & 9.
[9] Submission, paragraph 3; emphasis added.
[10] Submission, paragraph 9.
[11] Submission, paragraph 13. This mild ‘schizophrenia’ is no doubt dependent on the more alarming tension that is to be found in the pronouncements of the Roman Congregation for the Doctrine of the Faith; between, on the one hand, the insistence that homosexuals be treated with ‘respect’ and defended from ‘unjust discrimination’ (‘Considerations’, Part I, section 4), and, on the other hand, the description of the ‘cohabitating’ of homosexuals as an ‘evil’ (‘Considerations’, Part II, section 5), ‘harmful to the proper development of human society’ (‘Considerations’, Part III, section 8).
[12] Pastoral Constitution on the Church in the Modern World in The Documents of Vatican II, edited by W. M. Abbott (London: Geoffrey Chapman, 1967), 191-308, section 41 (p.241).
[13]Julie Clague, “A Dubious Idiom and Rhetoric”: How Problematic is the Language of Human Rights in Catholic Social Teaching in Catholic Social Thought: Twilight or Renaissance? edited by J. S. Boswell, F. P. McHugh and J. Verstraeten (Leuven: Peeters, 2000), 125-40 (p.129).
[14]Alasdair MacIntyre, After Virtue: A Study in Moral Theory, second edition (London: Duckworth, [1981] 1985), p.69.
[15]Augustine, City of God Against the Pagans, edited and translated by R. W. Dyson (Cambridge: Cambridge University Press, 1998), bk XXII, ch.30 (p.1179).
[16]Romans 1.26-7.
[17]Canon Gene Robinson was consecrated Bishop of New Hampshire, USA, on the 3 November 2003. Canon Jeffrey John was called to be Bishop of Reading, UK, in 2003, but withdrew his acceptance following discussion with Rowan Williams, the Archbishop of Canterbury. See ‘Jeffrey John steps aside but Anglican War goes on’, The Tablet (12 July 2003): 31-2. It is to be hoped that Jeffrey John’s ‘sacrifice’ – and of those who wished for his service – will bear fruit in the gift of a more fully united Church which will, in due time, recognize what it lost in denying itself Jeffrey John’s episcopacy. The Church will then have learned how to more fully rejoice in God’s love that arrives in the loving of all its members.
[18]Romans 1.26.
[19]19. Romans 11.24.