Challenges to the Catholic Notion of Family and the Responses of the Catholic Church in Italy

In: Journal of Law, Religion and State

This article aims to examine the tensions between religion and the rule of law, focusing on the defense of the Catholic notion of the family in Italy, under Ruini’s and Bagnasco’s chairmanships of the Episcopal Conference of Italy (ECI). The first part offers some remarks on the institution of the conference of bishops and the development of its role in Italy, as well as on the Catholic notion of family and the challenges it has faced in the course of the Italian process of secularization. The second part examines the responses of the ECI to three state measures: Law no. 40/2004 on medically assisted reproduction; the legislation proposed in 2007 and never enacted on the rights and duties of cohabiting couples; and Law no. 76/2016 on civil unions between homosexual persons and on the legal recognition of cohabitation.


This article aims to examine the tensions between religion and the rule of law, focusing on the defense of the Catholic notion of the family in Italy, under Ruini’s and Bagnasco’s chairmanships of the Episcopal Conference of Italy (ECI). The first part offers some remarks on the institution of the conference of bishops and the development of its role in Italy, as well as on the Catholic notion of family and the challenges it has faced in the course of the Italian process of secularization. The second part examines the responses of the ECI to three state measures: Law no. 40/2004 on medically assisted reproduction; the legislation proposed in 2007 and never enacted on the rights and duties of cohabiting couples; and Law no. 76/2016 on civil unions between homosexual persons and on the legal recognition of cohabitation.

1 Introduction

This essay aims to examine the encounter of religion with the rule of law from the perspective of the questions whether religion accepts the rule of state law and, if so, what the boundaries of such acceptance are. These questions are addressed by focusing on the responses of the Catholic Church in Italy to the challenges posed to the Catholic notion of family.

In a growing number of countries, the notion of family, an institution of divine law founded on marriage, which is authoritative in the universal Catholic Church, is nowadays being challenged by deeper and faster changes than ever in state regulation of this matter. Theology is one important element determining the response of the Catholic Church to such challenges and differentiating it not only from that of other religions, but also from that of other Churches and religious denominations within Christianity. Theological differences between the Catholic, Protestant, and Orthodox Churches may partly explain their different degree of acceptance of secularizing laws enacted by the state. For example, unlike the Churches originating in the Reformation(s), the Catholic Church has fiercely opposed state laws on divorce. Within the family of Evangelical Lutheran Churches, some have not only refrained from opposing secularizing laws on marriage and family, but have also approved reforms consistent with the changes introduced by the state. Both Sweden and Denmark have made civil marriage gender-neutral, and in Sweden (but not in Denmark) a homosexual couple may enter in a religious marriage celebrated in the Evangelical Lutheran Church.

But the different extent to which the Catholic Church accepts the rule of state law may be further explained by differences in the national or local political, social, cultural, and legal conditions. Indeed, the reaction of institutional Catholicism is not invariably the same. Because different countries pose different challenges, particular or local Catholic Churches develop different pastoral strategies. As the Italian example illustrates, these different pastoral strategies may evolve within the same country and help redefine the boundaries of acceptance of the state rule of law.

In the present article, I examine the tensions between religion and the rule of law, focusing on the defense of the Catholic notion of family in Italy under Camillo Ruini’s and Angelo Bagnasco’s chairmanships of the Italian Conference of Bishops (ECI).1 Although the Catholic Church exhibits specific characteristics in each country, in Italy it has a special feature that has always framed the relations and tensions between state and church. This is the presence, in the Italian peninsula, of the organs of government of the universal Catholic Church, which until recently played an overwhelming role in the definition of the position of institutional Catholicism in Italy. In the past few decades, however, this role has been increasingly assumed by the ECI. Historical and political evolution has changed the way in which the Catholic Church in Italy draws the boundaries of the acceptance of state law and identifies the pastoral response to defend its principles. Hence the choice, in this essay, to focus on the response of the ECI to the challenges posed by state laws and by legislative initiatives to the Catholic notion of family.

For the purpose of this analysis, I begin by introducing the institution of the conference of bishops and describe the development of its role in Italy. Next, I discuss the Catholic notion of family and the challenges it has been facing in its encounter with the Italian process of secularization. I continue with an examination of the responses of the ECI to three state measures: Law no. 40/2004 on medically assisted reproduction; the legislation proposed in 2007 but never enacted regarding the rights and duties of cohabiting couples; and Law no. 76/2016 on the civil unions between homosexual persons and on the legal recognition of cohabitation. In describing the response of the ECI to these challenges, I take into account the evolution of pastoral strategies from Ruini’s chairmanship (1991–2007) to Bagnasco’s (2007–2017). To do so, I rely mainly on the official ECI documents created on the occasion of the meetings of the Permanent Council of Bishops (PCB) and of the Plenary Assemblies (PA).2

2 The Conference of Bishops, the Notion of Family, and the Process of Secularization

2.1 The Universal Church and the Conference of Bishops

The Catholic Church defines itself as universal, one, and one only: “though there are many nations, there is but one people of God.”3 Consequently, the Church, too, must be one. Nevertheless, the unity of the universal Church does not radically deny pluralism: the Chair of Peter, whose primacy is not opposed and in which “the permanent and visible source and foundation of unity of faith and communion was instituted,”4 “protects legitimate differences, while at the same time assuring that such differences do not hinder unity but rather contribute toward it.”5 Thus, within the Catholic Church, one and universal, particular churches hold a rightful place and retain their own traditions.

Unity and variety are characteristics of Canon law, as well. Its basics structures and fundamental principles are immutable, but at the same time it is able to adjust itself to different circumstances and needs. Particular law, which includes the legal provisions issued by the conferences of bishops, details, integrates, and adjusts universal law, ensuring its effective implementation.6

Bishops’ conferences reflect the two characteristics of unity and pluralism: unity, because since their origins they have been an effective instrument for maintaining unity within the universal Church and strengthening the communion between each bishop and the bishop of Rome (the pontiff); pluralism, because of the bishops’ desire for legitimate autonomy.7

Bishops’ conferences originated from the changes that took place in the 19th century in various countries, not only in Europe. Liberal states and the secularization of society posed problems going well beyond the boundaries of each diocese, but without affecting the entire Catholic world to the same extent. Finding a solution to these problems required regular consultation between bishops in the same country, to coordinate common actions in facing new challenges. The bishops of the same state thus started to meet regularly, at the beginning spontaneously, later with the support of the Holy See.8 The Second Vatican Ecumenical Council (henceforth, Vatican II)9 recognized the usefulness of these meetings:

In these days especially bishops frequently are unable to fulfill their office effectively and fruitfully unless they develop a common effort involving constant growth in harmony and closeness of ties with other bishops. Episcopal conferences already established in many nations have furnished outstanding proofs of a more fruitful apostolate. Therefore, this sacred synod considers it to be supremely fitting that everywhere bishops belonging to the same nation or region form an association which would meet at fixed times. Thus, when the insights of prudence and experience have been shared and views exchanged, there will emerge a holy union of energies in the service of the common good of the churches.10

The institution of the conference of bishops is regulated by the new Code of Canon Law, which took effect in 1983. Can. 447 defines it as:

a group of bishops of some nation or certain territory who jointly exercise certain pastoral functions for the Christian faithful of their territory in order to promote the greater good which the Church offers to humanity, especially through forms and programs of the apostolate fittingly adapted to the circumstances of time and place, according to the norm of law.11

This institution is permanent, not only because meetings are held regularly, but also because of such stable structures as the Office of Chairman, the General Secretariat, the PCB, and the PA.12 Each conference of bishops prepares its own statute, which must be reviewed by the Holy See (Can. 451).

2.2 The ECI and the Evolution of its Role

In Italy, the institutionalization of the bishops’ meetings dates back to 1952,13 thus much later than in other countries. This was because the organs of government of the universal Church are located in the city of Rome, which has been the capital of Italy since 1871. At the beginning, pontiffs refused to recognize the legitimacy of unified Italy, which had put an end to the Papal States and thus to the pope’s temporal power. Later, after the so-called Conciliation,14 they sought to keep a strict and direct control over the life of the Church in Italy, without any mediation.15

The special relationship between the Catholic Church and Italy also explains why the ECI Chairman, unlike that of all other conferences of bishops, is appointed by the pope, as the Primate of Italy. This provision has been confirmed by all the statutes that the ECI has approved in the course of time. On 9 September 2014, a reform was approved based on the compromise between the tradition of the direct appointment by the pontiff and the position of those who wished to have the Chairman elected directly by the ECI. According to the revised Article 26 para. 1, in consideration of the particular links between the episcopacy of Italy and the pope, bishop of Rome, the appointment of the ECI Chairman is reserved to the pontiff, based on a recommendation of the PA, which elects by absolute majority a list of three candidates (diocesan bishops).16

Since the 1990s, the ECI has experienced a remarkable expansion of its role, becoming a protagonist of Italian ecclesiastical policy. Whereas Vatican II and the new Code of Canon Law have promoted the role of the bishops’ conferences in the entire Catholic world, in the case of Italy, this development has also been a direct consequence of the implementation of the new Concordat between Italy and the Catholic Church, signed in 1984, which entered into force in 1985. In the past, the relationships between the state and the Catholic Church in Italy had been an exclusive competence of the Holy See. Under the new Concordat, the ECI plays a leading role in this relationship. For example, it was the ECI and not the Holy See that signed several bilateral agreements with the state on certain matters, such as the teaching of Catholic religion in public schools, religious assistance, and cultural heritage. The ECI has also been vested with important powers regarding the implementation of the new system of public funding of the Catholic Church in Italy.17

The Concordat does not deal with some of the issues that the Catholic Church regards as important and urgent, like the promotion of life and the protection of family. But the growing complexity of state legislation in Italy has given greater and greater room to the ECI,18 which intervenes in government matters, publicly or privately, to express needs, report issues, and suggest the adoption of measures that may be relevant to the entire civil community.19 The ECI Statute of 1984 acknowledged this role for the first time, confirmed by the currently binding Statute.20 According to Article 5, the ECI establishes the relevant relationships with cultural, social, and political players in Italy, by pursuing a fruitful collaboration with them for individual and common good (para. 1). The ECI deals with public authorities in matters of national relevance concerning the relationships between the state and the Church in Italy (para. 3).21 Today there are two distinct, legitimate actors to represent, in different ways, the interests of the Catholic Church before the Italian state: the Holy See and the ECI.22

But promotion of the role of the ECI has not been a consequence of the aforementioned legal changes only. Political reasons also explain why, over the course of 20 years, the ECI has become the leading, although not the exclusive, actor in the relationships of the Catholic Church with the Italian state, whereas the role of the Holy See has appeared to be less prominent. Paul VI, pontiff from 1963 to 1978, had numerous and deep personal relationships with Italian politicians. After his death, and the brief pontificate of John Paul I, in 1978, for the first time since the 16th century, a foreign pope was elected. John Paul II was not acquainted with the dynamics of Italian Catholicism. At the same time, the Roman Curia started becoming more and more international, thanks to the appointment of non-Italians to offices that had been previously monopolized by Italians, and foreign members of the Curia did not have a special interest in Italian events.23 Thus, during the pontificate of John Paul II, attention to Italian politics was, so to speak, delegated to the ECI.24 This trend continued under Benedict XVI, and it seems confirmed for the time being, despite some inconsistencies, under Francis, too.25

The transformation of the Italian political system in the first half of the 1990s, described as a passage from the First to the Second Republic, was an equally important factor. This change affected political parties, not the Constitution. In just a few years, the most important parties since the establishment of the Italian Republic disappeared from the political scene, soon replaced by new actors, like Forza Italia and Lega Nord. Democrazia Cristiana (Christian Democracy), which almost until its end was supported by the Catholic Church,26 disappeared in the midst of a huge scandal known as “Bribesville.” Its demise spelled the end of a political class that, for decades, had played an undisputed role as the representative of the interests of Italian Catholics.27 The lack of a political party to be relied on by the Catholic Church has led the ECI to fill the empty space.

The dissolution of the Communist Party in the aftermath of the fall of the Berlin Wall and the collapse of communist regimes, and of the Socialist Party, because of Bribesville, led to the end of the ideological opposition to the Catholic Church, championed by political parties. Both the center-right and center-left coalitions that appeared in the political arena included Catholic politicians. In other words, the ideological obstacle, which for obvious reasons had prevented the former left parties to seek the support of the Catholic Church, was removed.28 A new political situation arose, with a political class whose leaders did not, and still do not officially represent the interests of Italian Catholicism. This class of politicians did not hesitate to provide the Catholic Church with the guarantees necessary to persuade the ecclesiastical hierarchy to side with either coalition.29 As stated by Ruini, Italian bishops would not side with a specific coalition or party, but they would pay attention to the receptiveness of each political actor to the values regarded by the Church as essential for the good of the individual, family, and society.30

In the new political season, no large party directly opposed the Catholic Church. Only a few segments of the left and of the radical wing maintained an anticlerical position. The center-right coalition adopted a position in clear favor of the Catholic Church: Law no. 40/2004 on medically assisted reproduction was approved under the Berlusconi II cabinet. The center-left coalition also showed respect for the Catholic Church and tended to show caution toward legislative measures liable to compromise the relationship with it: the proposed legislation on the rights and duties of cohabiting couples, initiated by the government (the Prodi II cabinet), caused a great stir in the political majority itself.31

As a result of all this, the ECI started playing not only a more important role than did the Holy See in the representation of the Catholic interests in Italy, but also became a prominent actor in the implementation of a new ecclesiastical policy. Camillo Ruini, the undisputed protagonist of that phase,32 was appointed to the ECI Office of Chairman in 1991 by John Paul II, and held this office for three mandates, until 2007. That year, Angelo Bagnasco was appointed new Chairman, and in 2012, he was reconfirmed for a second mandate, which saw important changes. In 2013 Card. Bergoglio was elected pontiff and started what is being often described by the media as a revolution. In the same year, the political elections in Italy saw the rise of a new political element, the Five-Star Movement, uninterested in competing for the support of the Church. In 2014, the Renzi cabinet was formed, leading to the approval of Law no. 76/2016 on civil unions between homosexual persons and on the legal recognition of cohabitation.

2.3 The Catholic Notion of Family and the Challenges Posed by Secularization

According to the doctrine of the Catholic Church, family is founded on marriage, which is an institution of divine law. Can. 1056 of the Code of Canon Law stipulates that its essential properties are “unity and indissolubility, which in Christian marriage obtain a special firmness by reason of the sacrament.”33

Unity does not only exclude polygamy, which in any case is inconsistent with European notion of public order, but also techniques of heterologous artificial insemination and fertilization, which “infringe the child’s right to be born of a father and mother known to him and bound to each other by marriage.”34 Homologous techniques, involving only the married couple, “are perhaps less reprehensible, yet remain morally unacceptable,” because they “dissociate the sexual act from the procreative act.”35 A child is “the supreme gift of marriage,” but it is a gift, not “something owed to one.” The child has “the right to be the fruit of the specific act of the conjugal love of his parents,”36 that is, the sexual act through which a husband and his wife “shall be one flesh.”37 Abortion is prohibited, because “the fifth commandment forbids direct and intentional killing as gravely sinful”38 and “human life must be respected and protected absolutely from the moment of conception.”39

Indissolubility means perpetuity of marriage. After it has been contracted and consummated, the marriage may not be dissolved by virtue of an act of will by the spouses or by any authority, other than the Church.40 Marriage is not only a contract entered into by a man and a woman, but it is also a sacrament, that is, one of the perceptible signs instituted by Christ to communicate his grace.41 The Code of Canon Law envisages a limited number of grounds for nullifying marriage, and an even smaller number of grounds for dissolving it. Ecclesiastical (and not civil) courts are competent to nullify or dissolve marriage. The institution of divorce is not recognized, and the new civil marriage celebrated after divorce is not regarded as legally valid by Canon law.

State acceptance of this doctrine has varied in the course of time. In the Kingdom of Italy, no attempt to introduce divorce succeeded, whereas under the civil code of 1865, civil marriage was the only recognized marriage. Only in 1929, with the signing and entry into force of the Lateran Concordat,42 the civil effects of marriages celebrated in the Catholic Church were recognized. According to Article 34:

[t]he Italian State recognizes the civil effects of the sacrament of marriage, as regulated by Canon Law, with the aim to restore the dignity of the institution of marriage, on which family is founded, consistently with the Catholic traditions of its people.43

This traditional notion of family has been severely challenged by the process of secularization, which experienced an acceleration in the 1970s. Law no. 898/1970 has introduced the institution of divorce, not merely regulating the dissolution of civil marriages, but also recognizing the competence of the civil court to declare the cessation of the civil effects of canonical marriages.44 Law no. 194/1978 decriminalized the voluntary interruption of pregnancy. Both laws were subject to abrogative referendums, envisaged by Article 75 of the 1948 Constitution, but a law regulating such referendums was enacted only in 1970, precisely to counterbalance the proposed legislation on divorce, which was being discussed. The first of the 76 abrogative referendums in Republican history thus concerned the law on divorce. It was held on 12–13 May, 1974, and the turnout was 87.72%, a percentage that no other abrogative referendum has ever reached again. Abrogation was rejected by 59.26% against, to 40.74% for.45 On 14 May, the ECI Office of Chairman issued the following statement:

[W]hile considering with the due respect the will expressed by the majority of the voters, it could not abstain from manifesting its deep regret about the demise, in the civil legislation, of the natural, Christian, and humanly valid model of indissoluble marriage and stable family.46

In 1981, other referendums were held, concerning the law on abortion as well as other legal provisions on public order, life sentence, and firearm licenses. With respect to abortion, voters were called upon to answer two questions of partial abrogation: one to make access to abortion easier, and the other one to reduce the grounds for legal abortion. Percentages differed, but the outcome was the same, with the victory for the “No” vote.

Ruini explained the different opinions of the Holy See and of the Italian Church hierarchy about these developments. In the first years of his pontificate, John Paul II reportedly believed that the Italian episcopacy broadly subscribed to the idea that the process of secularization was irreversible, although it was not often expressed openly. According to this view, the only pastoral, political, and cultural strategy likely to achieve positive results was not opposing this process, but rather accompanying and evangelizing it, to prevent it from degenerating into a type of secularism hostile to the Christian faith. Consequently, the pastoral strategies of the Catholic Church should be revised, avoiding forms typical of the past and characterized by adversarial confrontation and excessively defensive apologetics. This vision, prevalent in the Italian Church hierarchy, was different from John Paul II’s. His personal, historical, and ecclesial experience, and the way in which he lived and understood faith, led him to believe that the process of secularization had peaked, and that the mission of the Church was evangelization in its strong and full meaning, to be achieved through resolute presence and visibility in society. As Ruini noted, both the Italian episcopacy and the pope recalled Paul VI’s teaching: but the former tended to interpret his pontificate as a dialogue, whereas the latter underlined his insistence on strong evangelization.48 John Paul II thus deemed it necessary to intervene in the dynamics of the Italian Church, to substantially “reorient”49 it.

Ruini carried out relentlessly the reorientation strategy, aimed at facing effectively the challenges posed by secularization. The increasingly important role played by the ECI since the 1990s, as noted above, offered him even greater room for action.

3 The Defense of the Catholic Notion of Family under Ruini’s Chairmanship

3.1 The Need for a Law on Medically Assisted Reproduction

Law no. 40/2004 on medically assisted reproduction has had a long and troubled gestation. The need for clear legal rules on what should be permitted and what should be prohibited was expressed by all interested parties, including the ECI. Italian bishops expressed a wish for legislation regulating this issue, in a way consistent with essential anthropological and ethical values, to be approved as soon as possible, to fill the dangerous normative lacuna.50 Ruini, in particular, reiterated that legislation on this matter was much needed, a need made even more urgent by the Raelians’ claim that they had cloned human beings.51 He noted that no evidence had been produced: nonetheless, there was a real risk of cloning a human being in the near future. Cloning had to be prohibited “because of the way it aimed to generate embryos, that is, human beings in the first phase of their development, and its aim to use them as biological material, and kill them to treat other people.”52

In Ruini’s speeches, the praise for a law filling a normative void was accompanied by two recurrent arguments, which are especially relevant to this essay: the idea that the merits of the law, which would put an end to “the most unacceptable abuses,” overrode its “undeniable ethical shortcomings,”53 and the rebutting of criticism that the proposed legislation was Catholic-oriented.54 As progress toward approval of the bill was being made,55 the debate around its Catholic orientation became increasingly more heated.

According to the ECI, the legislation could not be defined as Catholic because it was not consistent with the ethical teaching of the Church in several important aspects. Nevertheless, it filled a normative lacuna and ensured the protection of fundamental values. Even the most criticized provisions, like the prohibition of heterologous artificial procreation, were aimed at guaranteeing everybody’s human rights regardless of one’s secular or religious beliefs.56 Ruini stressed further that such provisions were also contained in legislation of other countries, where the majority of the population was not Catholic. Thus, the bitter criticism the bill had raised, and the allegation that the Catholic Church sought to impose its religious point of view on everybody through state law, appeared to him disproportionate.57 He reiterated his wish that the debate become more balanced and consistent with a mature interpretation of freedom, which did not mean “the mere possibility to do or not do what one wishes.”58

3.2 The Abrogative Referendum on the Law on Medically Assisted Reproduction

Opponents of the law on medically assisted reproduction quickly collected the signatures needed to qualify for an abrogative referendum, an initiative that the ECI criticized. Ruini stated that he was stricken by the inability or unwillingness to appreciate the real issues at stake, that is, the dignity of human beings.59 The PCB also criticized the general atmosphere surrounding the polemics and the misrepresentation of objective scientific data and of basic ethical values.60

On 13 January, 2005, the Constitutional Court declared the referendum question concerning total abrogation inadmissible, but it admitted four questions concerning the partial abrogation of specific provisions envisaging prohibitions and limitations. Ruini took note of the judges’ decision, but he reiterated his assessment of the law. He stressed that the Church was not deliberately trying to act in an adversarial way: rather, it would contribute to making the referendum-related campaign as respectful as possible. Ruini expressed his hope that all interested parties would have appropriate media coverage. The Church did not want the referendum, but it would use this opportunity to make the Italian people more aware of the real problems and values at stake, that is, of the challenge of life, defined by the pope as the first of the great challenges facing humanity. Ruini noted that Catholics were not alone: many other people, including non-believers, men of science and culture, as well as the media, agreed with them. Lastly, regarding the forms appropriate to express opposition to making the law worse, he stated that he deemed it right to make use of all the possibilities envisaged by the lawmaker, and that he was well aware of the difficulties and criticism that the Church would encounter.61

This last remark appeared to outline the strategy of abstention from voting,62 which the Italian Church hierarchy would adopt, and which was made explicit at the press conference held after the end of the PCB Meeting of 17–20 January, 2005.63 Ruini specified that abstention was a “conscious” choice,64 not intended as disengagement, but as a strong and effective opposition expressing a double “no:” “no” to the referendum, which would make the law worse, and “no” to the use of referendums to decide such complex and sensitive issues. He called for Catholics’ to unite in being consistent with the position of the universal Church, and stressed that abstention was the only efficient way of opposing a change of the law for the worse; by contrast, participation, even when voting “no,” would favor the chances of success of the referendum.65

In answer to the recurrent argument against the Catholic Church in Italy for unduly interfering in the legislative and political processes, the PCB maintained that the Church had the right and duty to speak out on legislative measures concerning ethical choices, human dignity, justice in social relationships, and the future of humanity.66 Likewise, Ruini reiterated that Italian bishops were not expressing their own interests, but were concerned about all people, as proved also by the increasing number of voices from different cultural backgrounds sharing their position. Furthermore, the Church was not against scientific progress, but argued that science should promote the common good, as in the case of research based on stem cells obtained without destroying embryos, which produced substantial medical results.67

On 12 June, 2005, the referendum took place. Despite the majority of “yes” votes, the referendum was invalid because of low turnout.


It has been noted that “[a]s far as actual numbers were concerned, the abstentions recorded during this consultation did not differ much from those of most referenda during the past decade” (with the exception of the 1999 referendum concerning the election of the Chamber of Deputies, which had a turnout of 49.58%).69 Nevertheless, both the Catholic Church and the supporters of the referendum understood this outcome as “the profound influence of the Catholic Church (and the Catholic media) on Italians, not only active Catholics but also those Catholics who do not attend mass on Sundays.”70

According to Ruini, this achievement confirmed that the recommendation to abstain from voting, followed to an extent larger than expected, was not only effective, but also consistent with the feelings of the greatest majority of the people. This positive result was made possible not only by Catholic unity, but also by the Italian people’s wisdom and attention to fundamental values, as well as the collaboration with persons of a secular background, in particular men of science, proving that science can develop in concert with basic ethical and anthropological criteria.71 The PCB further stated, quoting Benedict XVI, that the relationships between the Italian state and the Catholic Church should be shaped by a “healthy secularism:” secular entities should be governed according to their own rules, but without excluding ethical values grounded in religion.72

3.3 The Issue of the Legal Recognition of Cohabiting Couples

As soon as the issue of the referendum was closed, the ECI began addressing another one: the legal recognition of cohabiting couples. In view of the legislation proposed in some regions seeking to grant cohabiting couples the same rights as “legitimate families,” and the introduction of a similar proposal to Parliament,73 Ruini called for opposition to the “attempts to give an inappropriate and unneeded legal protection to those unions, which were radically different from family, obfuscated its social role, and destabilized it.”74 He stressed that family played a far more important social role in Italy than in other near countries, but it received far less public support. Furthermore, the country was experiencing a dramatic natality crisis, liable to threaten its future. Therefore, the lawmaker’s first concern was support for “legitimate families” and the removal of all the legal, fiscal, and practical obstacles for young couples to getting married and having children, and not the “marginal” situation such as that of cohabiting couples.75

The PCB addressed this issue, stating that Italian bishops raised their voices unanimously and resolutely with regard to the legal recognition of cohabiting couples, and expressed unanimous approval of Ruini’s words.76 It reiterated that “the preoccupation with a very marginal phenomenon” seemed “the product of a paradoxical and ideological approach,” and it appeared even more so when looking at the serious absence of policies in support of families, the consequences of which were reflected in the negative birth rate in Italy.77

Ruini further maintained that the number of cohabiting couples in Italy was rising, although it was not yet as high as in other countries. In his view, cohabitation was due, at least in part, to objective difficulties that could be overcome through appropriate public policies; in other cases, cohabiting couples did not seek legal recognition. This was true also for homosexual couples, far less numerous than heterosexual ones, as confirmed by the extremely low number of civil registrations in municipalities that introduced the institution of registered partnerships. Indeed, legal protection was required only in a small number of cases because the law and case law in Italy already offered several rights to heterosexual cohabiting couples. Additional aspects regarding which legal protection may be necessary could be addressed by adopting measures that did not seek to create an institution similar to marriage, where equal rights would not correspond to equal duties. Finally, the requests of the few homosexual cohabiting couples for legal recognition were not consistent with fundamental anthropological principles, in particular with the good of procreation, which was the reason for the social recognition of marriage.78

Note the use of the word “anthropological.” Although in this essay, for the purposes of exposition, I have used the expression “Catholic notion of family,” this term is not found in the examined ECI documents. The Catholic Church refers to the anthropological vision of the family, and the difference is not merely formal. Whereas the Catholic model of the family applies specifically to Catholics, a vision defined as anthropological appears to apply to all human beings, regardless to their religion or lack thereof. This difference has substantial consequences. Regarding the encounter of religion with the state rule of law, the defence of the anthropological vision of family, that is, the promotion of human rather than merely Catholic values, provides the Catholic Church and the ECI with the ideological argument to rebut criticism about their undue interference.

The AP maintained that Italian bishops did not breach state secularism, but rather contributed to protecting and promoting human dignity and common good.79 If the Church kept quiet and stopped talking about these issues, in order to protect its institutional interests, it would not do any credit to itself or to the country.80 Likewise, Ruini reminded his audience that the position of the Catholic Church did not breach the state rule of law, but was consistent both with Article 29 of the Constitution, which defined family as a natural unit of society founded on marriage, and with the case law of the Constitutional Court, which repeatedly maintained that cohabitation could not be equated with marriage.81 Referring to the ethical and anthropological questions, in particular to human life and family, raised by the bill concerning cohabiting couples, Ruini elaborated on the initiative of the government and on the repeated, bitter criticism toward the Church, reaffirming that the Church and the faithful contributed to the ongoing debate, abiding by the rules of democratic living together, on behalf of society as a whole and of values that any upright person may share. The refusal to recognize that the Christian community and its representatives had the right to express their opinions on moral issues affecting the conscience of all human beings was “not a sign of healthy secularism.” This was not undue interference because the Church defended and promoted the great values giving a meaning to people’s lives and safeguarding their dignity: these values were human in the first place and Christian only in the second place. In this matter, there was room for a fruitful collaboration between the state and the Church, based on the consideration that the core interest of the Church was the defense of human beings.82 This position was further confirmed by the PCB.83

Last but not least, the anthropological vision of family was strictly related to “non-negotiable principles,” which were mentioned by Benedict VI in his address to the members of the European People’s Party on 30 March, 2006. The AP expressed its appreciation of the pope’s strong and steady support of non-negotiable principles, concerning, among others, family founded on marriage and not on other types of unions.84 But it was Ruini who made non-negotiable principles a distinctive feature of the pastoral strategy of the ECI. He reiterated that he was well aware of the fact that the commitment of the Church was criticized and regarded as undue interference in people’s freedom of conscience and in the autonomous state law. Nonetheless, it was not possible to keep silent or soften one’s position, because the issues at stake regarded non-negotiable principles. These had an intrinsic ethical value, which should not be understood as something abstract and a priori; rather, it was linked to social good: children’s birth and education, and people’s genuine and lasting happiness.85

4 The Defense of the Catholic Notion of Family under Bagnasco’s Chairmanship

4.1 The Draft Law on the Rights and Duties of Cohabiting Couples

On 8 February, 2007, the Council of Ministers (the Prodi II cabinet) approved a draft law on the rights and duties of cohabiting couples, and introduced it to Parliament, where it ran aground. With the dissolution of Parliament, in May 2008, all incomplete business, including the government bill, was terminated. By that time, a change had occurred: on 7 March, 2007, Angelo Bagnasco succeeded to the ECI Office of Chairman.

Msgr. Bagnasco’s introductory speech to the PCB did not make any mention of the government bill, as he was taking his first steps in the new office.86 That the issue was a crucial one was nevertheless confirmed by the Note on the Family Founded on Marriage and Proposed Legislation on Cohabiting Couples, prepared by the PCB, and dated 28 March, 2007. The Note was issued in compliance with Article 23b) of the ECI statute, according to which the PCB shall approve declarations or documents concerning problems having a special relevance to the Church or society in Italy, which deserve an authoritative consideration and assessment so as to strengthen converging action on the part of the bishops. Indeed, several of them, as stated in the Note, already expressed themselves publicly, as “guardians of truth” “responsible for the enlightenment of the believers’ conscience.” The intervention of the Church was not only necessary but also legitimate: it had no political interests to protect, but it had the duty to contribute to the common good, and it was acting upon the request of many citizens. Italian bishops, similarly to many other people, including non-believers, believed in the value of the family for the improvement of people and the society as a whole. The Constitution protected the family—yet, only the family founded on marriage, for the good of procreation, could be regarded as the true cell of society, because it ensured continuity and care for generations. The legal recognition of cohabiting couples was inacceptable in principle, and dangerous from the social and educational point of view. But “even more serious would be the legal recognition of homosexual” couples, because “it would deny” the “inescapable sexual difference.” The Note stressed that this position was not meant to deny the recognition of every human being’s right to dignity, but it sought to point out that the law did not exist to give legal protection to whatever union, or to provide ideological recognition of such unions; on the contrary, law sought to ensure public responses to social needs going beyond the private dimension of the existence. Thus, Italian bishops addressed in particular Catholic politicians and reminded them of their social responsibility to support measures inspired by fundamental values, including that of the family founded on marriage between a man and a woman. Therefore, a Christian supporting the legal recognition of cohabiting couples would be inconsistent. The Note also mentioned the Doctrinal note on some questions regarding the participation of Catholics in political life, from 24 November, 2002, and Considerations regarding proposals to give legal recognition to unions between homosexual persons, from 3 June, 2003, of the Congregation for the Doctrine of the Faith. According to the former:

no Catholic can appeal to the principle of pluralism or to the autonomy of lay involvement in political life to support policies affecting the common good which compromise or undermine fundamental ethical requirements (no. 5).87

The latter states that:

when legislation in favor 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 (no. 10).88

Lastly, the Note invited anybody vested with legislative powers to consider carefully the consistency of their choices and the consequences of their decisions.

In introducing the Note, the PCB addressed the question of the presence of the Church in the public debate. Italian bishops stressed their role as pastors: the Church would fail its mission if it remained silent on fundamental values of individual and social existence. They also expressed their full support for lay people’s associations committed to defending the family, in particular those that promoted a national demonstration, to be held in Rome on 12 May, 2007,89 the first of a series of Family Days.

Bagnasco later referred to the demonstration as a “very important” and “comforting” act. Promoted by the main lay people’s associations, a sign of the maturity of lay people, it was highly successful, attended by over a million participants. The demonstration was characterized by civic sense, respect for others, and inclusion; it was a strong testimony in favor of family founded on marriage. Furthermore, it marked a synergy with Catholic media and an accord with qualified, secular segments, as well as with some representatives of Evangelical, Jewish, and Muslim communities. Thus, in Bagnasco’s view, the demonstration was “a strong signal of public opinion” and constituted a “not negligible call to politicians,” although the non-Catholic media did not readily acknowledge this achievement. Through this demonstration, civil society expressed itself unequivocally and expected an institutional response, adequate for the gravity of the reported problems.90

With the end of the legislative session in sight, and no prospect for the approval of the abovementioned draft law, the issue of the defense of the family against the challenges of secularization became more marginal in the ECI documents. With elections imminent, the PCB confirmed that the Church would not side with any coalition or party, but would not abstain from paying attention to political or legislative measures inconsistent with fundamental values, and ethical and anthropological principles rooted in human nature, in particular, the attempts to recognize legally other forms of unions, liable to “destabilize” the family and “obscure” its irreplaceable social role.91

4.2 Signs of Continuity

After the end of legislative session, ECI meetings focused on the family mainly in the context of the economic crisis. Mentions of the defense of the family against controversial legislative measures appeared more rarely and were briefer. When they did appear, however, they were no less significant, as confirmed by the reintroduction of the discourse on non-negotiable principles, which included the family founded on marriage.92

Between the end of 2012 and the beginning of 2013, this discourse gained greater prominence. According to Bagnasco, a grave and profound crisis was in progress. Nevertheless, the political debate was carried out on unrelated topics, like cohabiting couples, whose legal recognition would have been a mere symbolic measure. There was an impression that “this was not a response to real problems, which in any case could be addressed through the instrument of the civil code, but rather the proclamation of an ideological principle, aimed at the creation of a new legal institution that would endanger the family.” Bagnasco noted that, in the public opinion, this issue was represented as a contrast between the secular and a religious notions of marriage and family, with the Catholic Church being accused of imposing a religiously-oriented vision on the state. But, in reality, this was “a discussion between different ‘secular’ visions of rights. People spoke about freedom of choice with regard to cohabiting couples, but it was a paradox to demand a legal regulation of a relationship, where the parties tended to refrain from making use of the institutional form that the legal system already offered.” According to the ECI Chairman, the legal recognition of cohabiting couples sought to ensure the same rights as those of a family founded on marriage, but not the same duties. He also rebutted the argument that this would not amount to an imposition on anybody, but it would merely allow the use of a legal arrangement to those who wished to do so. In his view, this would severely affect everybody, insofar as it would modify the common idea and therefore the customs on the family. A change in the legal regulation would modify the proper meaning of marriage, and would be liable to lead “to the collapse” of society. Bagnasco maintained that if the family lay at the foundation of society and ensured its future, society in turn had the duty and the interest to defend the family by recognizing publicly its unique value and by adopting appropriate measures. This commitment originated in inalienable principles that could not be challenged. The fact that non-negotiable principles were inscribed in the Gospel did not “reduce the civil legitimacy and the substance of the secularism of those who recognized them.” The relentless defense by the Catholic Church of the natural family was not carried out for the sake of the Church, but for that of the civil community.93 The PCB also stressed that the commitment of the Church was “deeply secular,” because it benefitted the entire civil community.94

With political elections imminent in 2013, Bagnasco, consistent with Benedict XVI’s teaching, announced that the Church could not and should not participate in the political campaign but at the same time it could not and should not stand on the sidelines of the struggle for justice. During election time, it was necessary to verify the principles guiding society, which were not religious, as some insisted on saying, but merely rational, and which included families founded on marriage between a man and a woman. These principles were not negotiable, because they were grounded not only in reason, but also in the Constitution. The Court of Cassation, in a recent judgment concerning adoption by a homosexual couple, had stated that such adoptions appeared to have “an unreasonably wide applicability.” The Church had to defend such principles resolutely and relentlessly, and to develop a conviction in its constituency that would turn into political action. Bagnasco further referred to non-negotiable principles when he stated that Catholics knew that there was no compromise or mediation, because the issue at stake was “the root of humanity.” The family was going through a serious crisis, threatened by individualism, nihilism, and a low natality rate. But the problem faded quickly from public debate, one among many other topics. By contrast, the issue of homosexual marriages was constantly brought up. The ECI Chairman stressed that family was antecedent to the state and was an institution of natural law, being inscribed in the very physical code of a person: it was the sexual difference that made procreation possible. The right of the children, and not the right to have children should prevail over individual wishes. For this reason, family could not be placed at the same legal level as other unions, nor be “weakened by ideologies aimed at redefining families and marriage, changing the natural order, and creating alternative models that would increase educational confusion.”95 This speech, as reported by the media, became an object of a heated public debate because of its vibrant defense of non-negotiable principles, including the family founded on marriage between a man and a woman. This emphasis, however, did not mark the beginning of renewed promotion of non-negotiable principles, but rather their retirement.

4.3 A New Pastoral Strategy under the New Pope?

On 13 March, 2013, the election of Jorge Mario Bergoglio, who took the pontifical name of Francis, started what is often described as a revolution of the Catholic Church. For the purposes of this essay, two statements by Francis are relevant. One is a passage from an interview, a few months after his election, conducted by Father Antonio Spadaro, editor-in-chief of Civiltà cattolica (an Italian Jesuit journal, the only Catholic periodical whose proofs are reviewed and approved by the Holy See). The passage has been frequently quoted and interpreted differently:

We cannot insist only on issues related to abortion, gay marriage and the use of contraceptive methods. This is not possible. I have not spoken much about these things, and I was reprimanded for that. But when we speak about these issues, we have to talk about them in a context. The teaching of the Church, for that matter, is clear and I am a son of the Church, but it is not necessary to talk about these issues all the time.

The dogmatic and moral teachings of the Church are not all equivalent. The Church’s pastoral ministry cannot be obsessed with the transmission of a disjointed multitude of doctrines to be imposed insistently… We have to find a new balance; otherwise even the moral edifice of the Church is likely to fall like a house of cards, losing the freshness and fragrance of the Gospel…

I say this also thinking about the preaching and content of our preaching. A beautiful homily, a genuine sermon must begin with… the proclamation of salvation… Then you have to do catechesis. Then you can draw even a moral consequence. But the proclamation of the saving love of God comes before moral and religious imperatives. Today sometimes it seems that the opposite order is prevailing. The homily is the touchstone to measure the pastor’s proximity and ability to meet his people… The message of the Gospel, therefore, is not to be reduced to some aspects that, although relevant, on their own do not show the heart of the message of Jesus Christ.96

The second statement that gave rise to much speculation was made in an interview to the Italian newspaper Il Corriere della Sera, on 5 March, 2014. It was a sort of appraisal of the first year of the pontificate. Francis said:

I have never understood the expression non-negotiable values. Values are values, and that is it. I can’t say that, of the fingers of a hand, there is one less useful than the rest. Whereby I do not understand in what sense there may be negotiable values.97

Examining the ECI documents as a whole, since the beginning of the pontificate of Francis, it may be observed that no reference has been made to non-negotiable principles or values.98 The definition of the family has remained the traditional one (and it could not have been otherwise): a society founded on marriage between a man and a woman, “womb of life, cell creating relationships, elementary school of humanity” and “human capital generating welfare for the entire society.”99 But increasingly, mention of the anthropological question has tended to be replaced by references to broader family-related issues. Furthermore, the crisis of the family has often been treated within the general context of the problems affecting Italy: the economic crisis, youth unemployment, marginalization of older people.
Bagnasco’s speeches have been further characterized by numerous and lengthy quotes of Francis’s own words, whereas under Benedict XVI, both Ruini and Bagnasco tended to recall the substance of the pope’s declarations. For example, in his first speech to the PCB, after Francis’s interview to Civiltà Cattolica, the ECIs Chairman cited:

[t]he essence of the human being… tends toward the union between a man and a woman as reciprocal fulfillment, attention, and care, and as the natural path for procreation. This gives social relevance and public character to marriage. Marriage precedes the State, it is the basis of family, the cell of society, antecedent to any legislation and even to the Church itself… A marriage (made up of man and woman) is not the same as the union of two people of the same sex.100

This statement was not followed, as it happened in previous speeches, by the reiteration of the consideration that sexual diversity served procreation, which allowed the reproduction of society, but by recalling Francis’s teaching, with the remark that making a distinction did not mean discriminating. In an age that extols the richness of pluralism, and of social and cultural diversity, it would be inconsistent to minimize fundamental human differences. Crimes and violence, carried out for whatever reason against a person, cannot be justified; a civil society condemns such actions. Similarly, nobody should discriminate against or censure those who maintain that the family is founded exclusively on marriage.101

In a subsequent speech,102 addressing the proposed legislation on same-sex civil unions, Bagnasco quoted several statements by Francis: “[e]very threat to the family is a threat to society itself,”103 and “[t]here is neither real promotion of the common good nor real human development when there is ignorance of the fundamental pillars that govern a nation, its non-material goods: life, which is a gift of God, a value always to be protected and promoted; the family, the foundation of coexistence and a remedy against social fragmentation.”104

Bagnasco stressed that the pontiff encouraged bishops

to intensify your pastoral care of the family—certainly the most valued by our people—so that, in the face of a dehumanizing culture of death, it may become a promoter of the culture of respect for life in all its stages, from conception to natural death.105

Francis also warned against “ideological colonization,”106 “a lifestyle which weakens the development and stability of personal relationships and distorts family bonds,”107 as well as against “[m]arriage… viewed as a form of mere emotional satisfaction that can be constructed in any way or modified at will.”108 “The family is also threatened by growing efforts on the part of some to redefine the very institution of marriage, by relativism, by the culture of the ephemeral, by a lack of openness to life.”109
With regard to the situation in Italy, Bagnasco stated that proposed legislation envisaged same-sex civil unions as a sort of marriage; for the moment, it allowed the adoption of the partner’s child(ren), but it did not exclude allowing in future the adoption of any children, and access to surrogate motherhood, which exploited shamefully women’s poverty and reduced children to trade objects. The desire for parenthood could not be turned into a right. Children, as Francis maintained,

are not lab specimens! The horrors of the manipulation of education that we experienced in the great genocidal dictatorships of the 20th century have not disappeared; they have retained a current relevance under various guises and proposals and, with the pretence of modernity, push children and young people to walk on the dictatorial path of only one form of thought.110

As noted by the PA, these remarks were made within the broader context of the problems of the country, which also included the suffering of unemployment and the migrants’ tragedy.111

The PCB Final Statements of this period are also revealing. As far as the examined issues are concerned, their references have become more frequent and detailed, and unlike in earlier times, they no longer appear as a re-proposition of the Chairman’s arguments. In one instance, Italian bishops have expressed their concern for allegations unduly linking religion and homophobia.112 Amidst the elaboration of a legislative measure to legally recognize cohabiting couples, the PCB expressed particular concern for the possible recognition of homosexual couples’ right to marriage, from which Italian bishops resolutely distanced themselves. Following Bagnasco’s consultation of the Regional Conferences of Bishops about the opportunity for a statement by the PCB on this matter, they agreed unanimously and approved a message reaffirming that the family was a communion of life between a man and a woman, founded on marriage, and open to procreation. By contrast, they expressed different opinions about the opportunity of a public demonstration.113

On 20 June, 2015, another Family Day took place, but unlike that of 12 June, 2008, it was not mentioned in Bagnasco’s speech and in the PCB Final Statement of the Meeting of 30 September-2 October, 2015. A few days later, on 6 October, the bill on the civil unions between homosexual persons and on the legal recognition of cohabitation was introduced to Parliament. A section of Bagnasco’s speech to the PCB, delivered at the Meeting of 25–27 January, 2016, was devoted to the “wealth of family,” with no explicit mention of the legislative initiative. First, the Chairman reaffirmed the duty of the Church to call for the protection of the family through effective and consistent policies. The problem of low birth rate deserved better consideration. As Francis stressed, children “are not a question of reproductive biology,”114 and “a society with a paucity of generations, which does not love being surrounded by children, which considers them above all a worry, a weight, a risk, is a depressed society.”115

With regard to the ongoing, heated family-related debate, Bagnasco mentioned not only the Constitution but, once again quoted Francis, who said that “there can be no confusion between the family desired by God and any other kind of union.”116

The ECI Chairman reiterated that children had the right to grow up in a family with a father and a mother, and that the family was “an anthropological, not an ideological fact.” A last remark concerned Catholic lay people’s commitment, who were given the task to inscribe the divine law in the life of the earthly city, and to exercise responsibility consistently with the doctrine of the Church. No mention was made of another public demonstration (Family Day), to be held on 30 January, 2016, against the proposed legislation on civil unions.

The PCB also focused on the family in a section of its Final Statement of the Meeting of 25–27 January, 2016. Italian bishops highlighted the great challenges met by the family and addressed the issue of the ongoing attempt to put civil unions on the same level as marriage and to envisage an alternative form of family. The issue was raised in the wider context of concern for the challenges facing Italy, like poverty, unemployment, the gap between the north and the south of the country, and the migrants.

On 25 February, 2016, the proposed legislation was approved by the Senate, with 173 votes in favor and 71 against. In his subsequent speech to the PCB, Bagnasco did not make any explicit mention of this vote, and referred more generally to the creation of legal situations defined as para-marriages. Once again, he quoted Francis:

[t]he family is based on marriage, an act of freely given and faithful love between a man and a woman… We regret that other forms of cohabitation have been placed on the same level as this union, while the concept, consecrated in the biblical tradition, of paternity and maternity as the distinct vocation of man and woman in marriage is being banished from the public conscience.117

Note the place of this quotation in the speech. In a section under the heading “the people’s voice,” Bagnasco stated that the country seemed to be responding to the economic crisis, although much work still laid ahead. Family proved to be, once more, the cornerstone of society, the place where resources where shared, and trust and courage to go forward were developed. Family was the greatest capital of enterprise and solidarity, “a wealth that should not be weakened and dissipated through undue homogenization and equal treatment of different realities.” On one hand, the right to cultural differences was acknowledged; on the other, cultural differences were negated by the creation of “para-marriage situations.” A great responsibility had to be assumed at this moment: everybody, and in particular young people aiming to have their own family, had the right to employment and to the social services of the state. Material goods were necessary to live a decent life, but there was also an invisible and priceless wealth, that is, trust and hope. As always, the Church was near the people, performing its mission “noiselessly,” and warning about a crisis that was deeper than the economic one: the “demographic winter.” Family, the womb of life, and employment were people’s daily worries, and the issues they would want to see politics concerned with day and night. The desire for children was “beautiful and legitimate,” but it was also a right of the children not to become anybody’s “object of right,” because they were not things to be produced. This was even more true when certain so-called rights were exercised only by the rich at the expense of the poor, in particular at the expense of women and their bodies. As last remarks, Bagnasco hoped that adoption procedures could be made easier and faster, reaffirmed the respect for life against euthanasia and assisted suicide, and expressed his concern about the deep discomfort, inner emptiness, and boredom with a life that was filled with the culture of excess, drugs, alcohol, gambling, to the point of total contempt for life.118

Although clearly confirming the doctrine of the Church on family founded on marriage between a man and a woman, this speech seems to express the idea that the crisis of the family was not only due to the challenges posed to the anthropological vision of the Church, which was a topic dealt with at length in previous speeches. This problem seemed to be the multiple threats to the family: low birth rate, lack or inadequacy of policies supporting families, unemployment, and last but not least, the economic and cultural crisis. This position was not aimed at redefining or ascribing less importance to the Catholic notion of the family, but it appeared to pursue a different pastoral strategy, which as Francis had said, should not be obsessed with the transmission of doctrines to be imposed relentlessly. The same orientation seems to characterize the PCB, whose Final Statement made no mention of the legal recognition of cohabiting couples.119

On 11 May, 2016, the bill on the civil unions between homosexual persons and on the legal recognition of cohabitation was approved by the Chamber of Deputies, with 372 votes in favor, 51 against, and 99 abstentions. The speech delivered to the 69th PA by Bagnasco, five days later, addressed the situation in the country in a section entitled “a moving country,” along the lines of what appears to be a different pastoral strategy, as outlined above. His first remarks concerned the economic crisis, the unemployment rate, and the percentage of the absolutely poor. Next, he mentioned the demographic winter and gambling. Finally, he turned to the recent approval of the law on civil unions. The fact that this was mentioned after other problems should not lead us to the mistaken conclusion that the Chairman was less interested or concerned about it. Rather the opposite: in his view, because the first problems mentioned above were real issues, and were the ones that people wanted to see Parliament address, it was difficult to understand why “so much energy and time were invested in a cause, which responded not so much to needs (in any case already provided for by the legal system) as to an ideological orientation.” The recently approved law stated that marriages and civil unions were different things, but in fact it placed them on the same level. Differences in terminology were formal, not substantial, and “prefigured the final blow,” surrogate motherhood, which exploited the bodies of women driven by poverty. Bagnasco also quoted several statements by Francis, some of which had been mentioned on previous occasions.120 As to the PA, in its Final Statement it did not mention at all the recent approval of the law in question: the topic of family was addressed from the perspective of the demographic crisis, sharpened by the lack of fair fiscal policies for families with children.121

On 5 June, 2016, the law on the civil unions between homosexual persons and on the legal recognition of cohabitation entered into force. In his subsequent speech, Bagnasco apologized for repeating some things, but as a pastor he had the duty to speak on behalf of the little people and of those to whom no one listened. He spoke about the problems affecting society: poverty, unemployment, migrants. Next, he said that “many wondered why so much energy was invested in pursuing aims, which were not urgent at all.” The implicit reference was to the law on civil unions, now legally binding. Bagnasco reiterated that family was the first form of society and could not be compared to any other type of union: “putting everything on the same level was a serious educational mistake.”122 The PCB Final Statement did not contain any reference to the new law, and mentioned family only to recall “how difficult it is for many people to maintain one’s own.”123

5 Conclusions

The Catholic notion of family is founded on the premises of divine law. But the challenges posed by state law to the immutable character of such premises do not lead to the development of identical dynamics in all places and times. The Italian example has shown that the redefinition of the boundaries of acceptance of the state rule of law by a religion must not necessarily be the result of an amendment of its theological tenets (as in the case of the celebration of homosexual marriages in the Evangelical Lutheran Church in Sweden). This redefinition may also be the product of the elaboration of new pastoral strategies.

In the Italian case, the most recent documents of the ECI seem to reflect the evolution of the pastoral strategy of the Italian Church hierarchy, from the resolute defense of non-negotiable principles, first of all the anthropological vision of the family, to a noiseless performance of the pastoral mission of the Church, where the defense of the family is placed in the wider context of the most urgent problems of society, which should be prioritized in the definition of public policies. The considered time span is too short, however, to allow drawing medium- and long-term conclusions.124 Bagnasco’s second mandate expired in 2017. The appointment of Card. Gualtiero Bassetti as the new ECI Chairman is likely to have an important influence on the overall ECI pastoral strategy. The extent to which Francis’s new pontifical style is influencing the pastoral strategies of the Italian Church hierarchy is also being debated; all interpretations seem to be still too closely linked to the particular vision of those putting them forth. For example, the non-Catholic media emphasized the appointment, on 25 March, 2014, of Msgr. Nunzio Galantino to the office of ECI Secretary General, interpreting this action as a correction introduced by Francis to temper the allegedly excessive visibility of the ECI, that is, the pastoral strategy inherited from Ruini and resolutely implemented by him.

When looking at the official ECI documents, the one certain fact is Bagnasco’s recurrent mention of Francis’s teaching. Another conclusion, which for the time being can be safely drawn, is that under Ruini’s chairmanship, most references to the challenges posed to the Catholic notion of the family were contained in the Chairman’s speeches; in the PCB Final Statements, such references tended to be less detailed, and summarized the Chairman’s position, often using his own words. By contrast, the PCB documents of the past few years address this topic much more frequently, with reference to aspects that are not mentioned in Bagnasco’s speeches. In one case, even a difference of view between Italian bishops has emerged, which contrasts with the general inclination to stress their unity and unanimity, as it happened under Ruini’s chairmanship.

1On the ECI, see infra note 2 and pp. 279–283. Camillo Ruini was born in Sassuolo in 1931. He studied at the Pontifical Gregorian University in Rome, and obtained a PhD in theology and a licenciate in philosophy. He was ordained priest in 1954 and bishop in 1983. He was the General Secretary of the ECI from 1986 to 1991. In 1991, he was appointed Chairman of the ECI, and was created Cardinal by John Paul II. Ruini remained ECI Chairman for three mandates, until 2007. He held several other offices and positions, including that of Vicar General of the Diocese of Rome, from 1991 to 2008.Angelo Bagnasco was born in Pontevico in 1943. He was ordained priest in 1966 and bishop in 1998, and was appointed military ordinary of Italy in 2003, and metropolitan archbishop of Genoa in 2006. In 2007, he was appointed Chairman of the ECI (an office he held until May 2017), and created Cardinal by Benedict XVI. On 8 October 2016, Bagnasco was elected President of the Council of the Bishops’ Conferences of Europe.
2The ECI is composed of the following bodies: the PA, the PCB, the Chairman’s Office, the General Secretary, the Council for Economic Affairs, the Board of Audits, and the Episcopal Commissions. PAs can be ordinary (held once a year) or extraordinary (held to discuss certain problems of particular importance). The members of the PCB are currently the ECI Chairman, Vice-Chairmen, and General Secretary, the Chairmen of the Regional Conferences of Bishops, and the Chairman of the Episcopal Commissions. The PCB meets at least three times a year; extraordinary sessions are held when the Chairman deems it necessary.The official ECI documents examined for the purpose of this article are the speeches delivered by the ECI Chairman as well as the Final Statements of the PA and PCB. The texts (in Italian) are available at
3Dogmatic Constitution of the Church Lumen Gentium, no. 13. Text available at
4 Ibid., no. 18.
5 Ibid., no. 13.
6Giorgio Feliciani, Le basi del diritto canonico (Bologna: il Mulino, 2002), 9–12.
7Giorgio Feliciani, Le conferenze episcopali (Bologna: il Mulino, 1974), 144–146.
8 Supra note 6, 94.
9Held between 1962 and 1965. The documents issued during Vatican II include the aforementioned Dogmatic Constitution of the Church Lumen Gentium (concerning the structure of the Church and illustrating the doctrine of the sacramental and collegial characters of the episcopacy), and the Decree Christus Dominus (concerning the pastoral office of bishops).
11Code of Canon Law. Text available at that the bishops’ conferences exercise not only pastoral functions, but also legislative power, albeit only in cases prescribed by universal law or established by a special mandate of the Holy See (Can 455 para. 1). For example, according to Can. 1083, “§1. A man before he has completed his sixteenth year of age and a woman before she has completed her fourteenth year of age cannot enter into a valid marriage. §2. The conference of bishops is free to establish a higher age for the licit celebration of marriage.” The ECI has established a higher age (18), also envisaged by Article 84 para. 1 of the Italian Civil Code, to ensure that marriages celebrated in the Catholic Church are recognized civil acts in the Italian legal system (deliberation no. 10 of 23 December 1983, text in Italian published in Notiziario della Conferenza Episcopale Italiana n. 7, 210,
12 Supra note 6, 95.
13Note, however, that the first meeting, which took place on 8–10 January 1952, stipulated the participation of the presidents of the regional conferences only, and not of all the diocesan bishops and others who are indicated as members of the bishops’ conference by Can. 450 para. 1 of the Code of Canon Law.
14The solution of the so-called Roman Question was reached with the signing of the Lateran Treaty on 11 February 1929. That same day, a Concordat was also signed, which was later modified by a new bilateral agreement.
15 Supra note 7, 226 and 319.
17Giorgio Feliciani, “La Conferenza episcopale come soggetto della politica ecclesiastica italiana”, 1 Quaderni di diritto e politica ecclesiastica (2004), 249–251.
18Romeo Astorri, “Politica ecclesiastica e Chiesa cattolica”, 2 Quaderni di diritto e politica ecclesiastica (2013), 332–336.
19Giorgio Feliciani, “Gli episcopati nuovi protagonisti delle relazioni tra la Chiesa e gli Stati”, in G. Feliciani (ed.), Le pietre, il ponte e l’arco. Scritti scelti (Milano: Vita e Pensiero, 2012), 373.
20See Romeo Astorri, “Stato e Chiesa in Italia: dalla revisione concordataria alla «seconda repubblica»”, 1 Quaderni di diritto e politica ecclesiastica (2004), 49.
21 Supra note 16.
22 Supra note 17, 252.
23 Supra note 20, 46–47.
24 Supra note 18, 337.
25Romeo Astorri, “È ancora possibile una politica ecclesiastica? Tra «caso italiano» e contesto europeo e internazionale”, 1 Quaderni di diritto e politica ecclesiastica (2014), 286.
26See Agostino Giovagnoli, Il partito italiano. La Democrazia cristiana dal 1942 al 1994 (­Roma-Bari, Laterza: 1996).
27 Supra note 20, 48.
28 Supra note 18, 338.
29 Supra note 20, 49.
30Ruini’s speech to the PCB, Meeting of 20–23 September 2000.
31Luciano Musselli, “Partiti politici e religione nell’Italia repubblicana: tra vecchi e nuovi confessionismi”, 1 Quaderni di diritto e politica ecclesiastica (2014), 41–45. See also Luca Ozzano, “Two forms of Catholicism in twenty-first-century Italian public debate: an analysis of positions on same-sex marriage and Muslim dress codes”, 21(3) Journal of Modern Italian Studies (2016), 464–484.
32Commonly referred to as ruinisimo. For a critical view, see Enrico Galavotti, “Il ruinismo. Visione e prassi politica del presidente della Conferenza episcopale italiana, 1991–2007”, in A. Melloni (ed.), Cristiani d’Italia. Chiese, società, Stato, 1861–2011 (Roma: Istituto della Enciclopedia Italiana Treccani, 2011), vol. II, 1219–1238; Alessandro Santagata, “Ruinismo: the Catholic Church in Italy from ‘mediation culture’ to the Cultural Project”, 19(4) Journal of Modern Italian Studies 2014, 438–452.
33 Supra note 11.
34 Catechism of the Catholic Church, no. 2376. Text available at
35 Ibid., no. 2377.
36 Ibid., no. 2378.
37 Genesis 2:24.
38 Supra note 34, no. 2268.
39 Ibid., no. 2270. See also Daniela Milani, “L’inizio della vita nel diritto canonico”, in D. Atighetchi, D. Milani, A.M. Rabello (eds.), Intorno alla vita che nasce. Diritto ebraico, canonico e islamico a confronto (Torino, Giappichelli: 2013), 105–192.
40Enrico Vitali, Salvatore Berlingò, Il matrimonio canonico (Milano, Giuffrè: 2003), 18.
41 Supra note 34, nos. 1084 and 1601.
42 Supra note 14.
43This provision also recognized the competence of the ecclesiastical authorities to nullify marriages and to dissolve non-consummated marriages. The related judgements and measures were recognized civil effects by the Court of Appeal of the Italian state. The text (in Italian) is available at: The translation into English is mine.
44Note that it is incorrect to say that the civil court declares the dissolution of the canonical marriage. Divorce does not affect the canonical status of the concerned person in the Church, which keeps regarding the canonical marriage as valid, at least until an ecclesiastical court or competent ecclesiastical authority has nullified or dissolved it.
45Recall that a “no-front” also emerged from within the Italian Catholic world. Catholics, such as Pietro Scoppola and Paolo Prodi, although believing in the indissolubility of marriage, maintained that this principle should not be prescribed by law, but adhered to of one’s free will. See Agostino Giovagnoli, La Repubblica degli italiani 1946–2016 (Roma-Bari, Laterza: 2016), 84.
46The text (in Italian) is available at: The translation into English is mine. See also Massimo Faggioli, “Tra referendum sul divorzio e revisione del ­Concordato. Enrico Bartoletti segretario della CEI (1972–1976)”, 2 Contemporanea (2001), 265.
48Camillo Ruini, “L’impatto di Giovanni Paolo II sull’Italia e sulla Chiesa italiana”, in M. Impagliazzo (ed.), Shock Wojtyla. L’inizio del pontificato (Milano, San Paolo: 2010), 449–451.
49 Ibid., 451. See also Alessandro Santagata, “La CEI e la svolta postconcordataria”, in A. Melloni (ed.), Cristiani d’Italia. Chiese, società, Stato, 1861–2011 (Roma: Istituto della Enciclopedia Italiana Treccani, 2011), vol. i, 345–355.
5049th PA, Final Statement, Meeting of 14–18 May 2001; Ruini’s speeches to the PCB, Meetings of 24–26 March and 22–25 September 2003.
51The Raelians, generally included in the category of so-called new religious movements, allege contact with extraterrestrials, who are believed to have created life on earth and to possess advanced technology. Some Raelian doctrines (such as human cloning and “geniocracy,” according to which only individuals with the highest level of intellect should exercise power, and a sexual theory alleged to advocate pedophilia and incest) have made the movement controversial, and in some cases subject to restrictive measures. See, among others, European Court of Human Rights, Mouvement Raelïen Suisse v. Switzerland, application no. 16354/06, judgment of 1 July 2012.
52Ruini’s speech to the PCB, Meeting of 20–22 January 2003. The translation into English is mine (this applies to all the quotations from ECI documents, unless a different source is mentioned). Later that year, Ruini stressed that the majority of the National Bioethics Committee was also against the use and destruction of embryos in research (speech to the 51st PA, Meeting of 19–23 May 2003).
53Ruini’s speech to the PCB, Meeting of 22–25 September 2003.
54Limiting our analysis to the original version of the law (several provisions are no longer legally binding, having been regarded as unconstitutional by the Constitutional Court), the most criticized provisions included: the prohibition against heterologous artificial procreation (Article 4 para. 3); the possibility to accede to homologous techniques of artificial procreation only in cases of certified sterility or infertility (Article 4 para. 1), and only for couples of heterosexual adults, married or cohabiting, of a potentially fertile age, and both still living (Article 5); the prohibition against creating more than three embryos and the obligation to use them in the same transfer (Article 14 para. 2); the related prohibition against pre-implantation genetic diagnosis for fertile couples at risk of passing on a genetic disease or condition; the provision that the interested couple should be presented with adoption and foster care as alternatives to artificial procreation (Article 6 para. 1); the guarantees to unborn babies (Arts. 1 paras. 1 and 8–9), such as the prohibition for fathers to deny paternity and for mothers to remain anonymous; the guarantees to embryos (Arts. 13–14), such as the prohibition against experimentation and suppression. On the debate of the extent to which the teaching of the Catholic Church has influenced the content of law on medically assisted reproduction, and the interventions of the judiciary, see, respectively, Daniela Milani, “‘Veluti si Deus daretur’: la legge n. 40 del 2004 sulla procreazione medicalmente assistita dal dibattito parlamentare all’articolato”, and Gabriele Fattori “Il rovesciamento giurisprudenziale delle norme in materia di procreazione medicalmente assistita. Interpretazione evolutiva e dilemma contro-maggioritario”, 1 Quaderni di diritto e politica ecclesiastica (2015), 117–142 and 143–171.
55The Senate approved the bill on 11 December 2003 by 196 votes in favor, 92 against, and 5 abstentions. The Chamber of Deputies approved it on 10 February 2004 by 277 votes in favor and 222 against.
56Ruini’s speech to the PCB, and PCB’s Final Statement, Meeting of 19–21 January 2004; Ruini’s speech to the 53rd PA, and 53rd PA’s Final Statement, Meeting of 17–21 May.
57Ruini’s speech to the PCB, Meeting of 19–21 January 2004; and speech to the 53rd PA, Meeting of 17–21 May.
58Ruini’s speech to the PCB, Meeting of 19–21 January 2004.
59Ruini’s speech to the PCB, Meeting of 20–23 September 2004.
60 PCB’s Final Statement, Meeting of 20–23 September 2004.
61Ruini’s speech to the PCB, and PCB’s Final Statement, Meeting of 17–20 January 2005.
62Abrogative referendums are valid only if there is a turnout of more than 50% of eligible voters.
63Tiziano Rimoldi, “Stato e confessioni religiose nellanno 2005: cronaca di un anno”, 2 Quaderni di diritto e politica ecclesiastica (2006), 292.
64Ruini’s speech to the 54th PA, 30–31 May 2005.
65 Ibid.; Ruini’s speech to the PCB, Meeting of 7–9 March 2005.
66 PCB Final Statement, Meeting of 7–9 March 2005.
67Ruini’s speech to the 54th PA, 30–31 May 2005.
69Alberto Melloni, “Church and state in the Italian crisis”, 14(1) Journal of Modern Italian Studies 2009, 59.
70Norman Doe, Javier Oliva, and Cristiana Cianitto, “Medically Assisted Procreation in Italy: the Referendum and the Roman Catholic Church”, in S. Holm, J. Gunning (eds.), Ethics, Law and Society (London: Ashgate, 2007), vol. 3, 271.
71Ruini’s speech to the PCB, Meeting of 19–22 September 2005.
72 PCB Final Statement, Meeting of 19–22 September 2005.
73Ruini’s speech to the PCB, Meeting of 20–22 March 2006.
74Ruini’s speech to the 56th AP, Meeting of 15–19 May 2006.
75Ruini’s speeches to the PCB, Meetings of 19–22 September 2005 and 22–25 January 2007.
76Likewise, the AP noted that Italian bishops expressed full agreement with Ruini. See 55th PA’s Final Statement, Meeting of 14–18 November 2005.
77 PCB Final Statement, Meeting of 19–22 September 2005.
78Ruini’s speeches to the PCB, Meetings of 19–22 September 2005 and 22–25 January 2007.
7956th PA Final Statement, Meeting of 15–19 May 2006.
8055th PA Final Statement, Meeting of 14–18 November 2005.
81Ruini’s speech to the PCB, Meeting of 19–22 September 2005.
82Ruini’s speech to the PCB, Meeting of 22–25 January 2007.
83 PCB Final Statement, Meeting of 22–25 January 2007.
8456th PA Final Statement, Meeting of 15–19 May 2006.
85Ruini’s speech to the 56th AP, Meeting of 15–19 May 2006.
86Bagnasco’s speech to the PCB, Meeting of 26–29 March 2007.
89 PCB’s Final Statement, Meeting of 26–29 March 2007.
90Bagnasco’s speech to the 57th AP, Meeting of 21–25 May 2007.
91 PCB’s Final Statement, Meeting of 10–13 March 2008.
92Bagnasco’s speech before the PCB and the PCB Final Statement, Meeting of 22–25 March 2010; 62nd PA’s Final Statement, Meeting of 8–11 November 2010.
93Bagnasco’s speech to the PCB, Meeting of 24–27 September 2012.
94 PCB’s Final Statement, Meeting of 24–27 September 2012.
95Bagnasco’s speech to the PCB, Meeting of 28–31 January 2013.
96 Civiltà Cattolica, no. 3918, 19 September 2013, 463–464. For the complete official English translation, see
98For a critical view of the interchangeability of the terms “principles” and “values” in the discourse of the Catholic Church, see Luciano Zannotti, “Sui principi non negoziabili della Chiesa”, Stato, Chiese e pluralism confessionale, 15 October 2012, at
99Bagnasco’s speech to the PCB, Meeting of 23–25 September 2013.
100Francis, Solo l’amore ci può salvare (Città del Vaticano: Libreria Editrice Vaticana, 2013) 127–128, quoted in Bagnasco’s speech to the PCB, Meeting of 23–25 September 2013.
101 Ibid.
102Bagnasco’s speech to the 68th PA, Meeting of 18–21 May 2015.
103Francis, Address in Manila during the Apostolic Journey to Sri Lanka and the Philippines. Meeting with Families, 16 January 2015. Text available at
104Francis, Address during the Apostolic Journey to Rio de Janeiro on the Occasion of XXVIII World Youth Day. Visit to the Community of Varginha (Manguinhos), 25 July 2013. Text available at
105Francis, Address to the Bishops of Episcopal Conference of Mexico on their Ad Limina Visit, 19 May 2014. Text available at
106Francis, In-Flight Press Conference from the Philippines to Rome after the Apostolic Journey to Sri Lanka and the Philippines, 19 January 2015. Text available at
107Francis, Apostolic Exhortation Evangelii Gaudium on the Proclamation of the Gospel in Today’s World, no. 67, 24 November 2013. Text available at
108 Ibid., no. 66.
109 Supra note 99.
110Francis, Address to Members of the International Catholic Child Bureau, 11 April 2014. Text available at
11168th PA’s Final Statement, Meeting of 18–21 May 2015.
112 PCB Final Statement, Meeting of 24–26 March 2014.
113 PCB Final Statement, Meeting of 22–24 September 2014.
115 Ibid.
116Francis, Address to the Officials of the Tribunal of the Roman Rota for the Inauguration of the Judicial Year, 22 January 2016. Text available at
117Joint Declaration of Pope Francis and Patriarch Kirill of Moscow and All Russia, Cuba, 12 February 2016. Text available at Patriarch Kirill’s position and declarations against ­gender-­neutral marriages are well known, but this statement should be placed in a wider context, marked by a long history of discord, divisions, and differences between the two Churches and the attempt to promote a dialogue between the Catholic and the Orthodox Churches (see José Milhazes, “An Encounter between Francisco I and Kirill I: A Small Step in an Approach Full of Uncertainties”, JANUS.NET, e-journal of International Relations 7(2016), 1, 96–105). As Francis noted, this meeting, arranged in “two years of secret negotiations,” had the purpose to “build bridges, not walls, because they aid the cause of peace” (quoted in Some commentators have focused on the historic moment of Francis and Kirill speaking with one voice not only on family, but also on unity in martyrdom and reconciliation between the Catholic and the Orthodox Churches (Markus Schmidt, “Reflections on the Joint Declaration of Francis and Kirill at Havana 2016”, 50 One in Christ (2016), 1, 87–99). Others, however, have noted that most complaints directed at the joint declaration were “objections to what the declaration did not say rather than to what it actually said,” like “a condemnation of the Russian invasion of Ukraine, the Russian bombings in Syria, and the persecution of Ukrainian Catholics during the Soviet era” (Thomas Reese, Misconceptions about the meeting of Pope Francis and Patriarch Kirill, 17 March 2016, at Some have placed the meeting between Francis and Kirill in a broader context, characterized by the pope’s ecumenism and meetings with Waldensian, Evangelical, and Pentecostal communities (Martin Bräuer, “Pope Francis and Ecumenism”, 69 The Ecumenical Review (2017), 1, 4–14); yet others have linked this event with Russia’s promotion of its own agenda in Latin America (Vladimir Rouvinski, Understanding Russian Priorities in Latin America, January 2017, at
118Bagnasco’s speech to the PCB, Meeting of 14–16 March 2016.
119 PCB Final Statement, Meeting of 14–16 March 2016.
120Bagnasco’s speech to the 69th PA, Meeting of 16–19 May 2016.
121 PA Final Statement, Meeting of 16–19 May 2016.
122Bagnasco’s speech to the PCB, Meeting of 26–28 September 2016.
123 PCB Final Statement, Meeting of 26–28 September 2016.
124In this regard, see, among others, Alessandro Santagata, “Dentro la crisi. La Conferenza episcopale italiana dagli anni del « ruinismo » alla stagione di papa Francesco”, 82 Religioni e società. Rivista di scienze sociali della religione (2015), 39–41.

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