The Canons Are Gay, Too
In the immediate wake of the hullabaloo over Pope Benedict’s recent statement on condoms, made in his book-length interview with Peter Seewald, the typically arch-conservative patriarchate of Moscow, being atypically consistent with current trends in Orthodox ethical reflection, issued the following short but sensible statement:
“The Foundations of the Social Policy of the Russian Orthodox Church” distinguishes between abortive and non-abortive contraception. Priests can allow people to use the latter.
Now, this statement flatly contradicts a rigorist reading of Orthodox canon law. In some of the earliest penitential nomo-canons in Slavonic, contraception, abortion, and infanticide are all classified together as species of dušegub’e, “destruction of a soul,” and use of ordinary contraceptive methods could carry even stiffer penances than use of abortifacient potions.  What, then, has happened?
The short answer is that the Russian hierarchy have begun exercising an admirable pastoral “economy”—or dispensation—with regard to this area of sexual life. Contraception may now be used by the Russian Orthodox married faithful, with the concurrence of their father confessors, for such legitimate purposes as spacing children (a development which, if possible in the Russian church, is surely possible in the Roman church, also). And, if no similar softening towards the homosexual faithful seems to be on the horizon, we may remember that the current hard line in the Russian church has not always been held. Under the ancien régime, Russian priests and ecclesiastical courts followed not the stricter nomo-canons of S. Basil the Great, but the more lenient ones of S. John the Penitent; and the indiscretions of a bachelor still without a wife, and of men who engaged in mutual masturbation, were penalized less severely, or not at all, such that a seventeenth-century Englishman, Samuel Collins, could remark in surprise at how openly homosexuality was tolerated in Russia. 
The bigger point in the current news story and the seventeenth-century history is that “law,” and canon law more than other species of law, does not always need to conform to modern and Anglo-Saxon notions of consistent application and enforcement. Law, especially ancient law, is very often more elastic than the lawyers give it credit for.
Moreover, when Peter Damian brought forth his hysterical Liber Gomorrhianus in 1051—the treatise which more than any other initiated the persecution of homosexuals in the Latin West—he was able to invoke the authority of no council later than Ancyra, which met in 314 (and that erroneously). For not one of the seven ecumenical councils accepted in both East and West promulgated any legislation on the subject of homosexuality, and the first exclusively Western council to do so, Lateran III, did not sit until 1179. 
In light of what I have said above about the mutable aspect of the natural law, it may now be asked whether such canonical prohibitions as have existed on homosexuality, should not simply be permitted to subside into desuetude. As has the canonical legislation against Jewish money-lenders, just for example, and the legislation equating Christians’ sexual relations with Jews, with bestiality. As have the old inquisitors’ manuals for investigating “witchcraft.”
I do not want to give the impression that I am in any way opposed to or disrespectful of canon law. As a friend to queers in the Church, Luke Timothy Johnson, puts it, in defense of the on-going relevance of law to serious religion:
Kabbalism apart from Torah-observance is playacting; Sufism disconnected from Shari’ah is vague theosophy; and Christian mysticism that finds no center in the Eucharist or the Passion of Christ drifts into a form of self-grooming.
Grave canonical and liturgical abuses in Europe and America are indeed legion. I believe there are numerous Greek and Roman parishes where no one has ever heard of confession.
But we must try to understand what the law means. Eve Levin remarks, without any apparent complacency, that condemning non-procreative sexual activity, restricting the acceptable times in the liturgical year for sexual activity, and so on, may have made sense in a context where marriage really was about society’s direct social, economic, and even biological preservation: “Taken as a whole, the church’s regulations on marital intercourse doubtless helped to ease tensions in arranged marriages.”  Yet as theologians from Chrysostom to Soloviev have suggested to us—not to mention Pope John Paul II!—Christians, and contemporary Christians living in industrial and post-industrial societies more than any others, have received other and more generous graces. We should be grateful to God for them, and we should make use of them.
The center—legal but not legalistic—can, and must, hold.
Victor de Villa Lapidis
 John Boswell, Christianity, Social Tolerance and Homosexuality (Chicago: University of Chicago Press, 1981), p. 15.
 John H. Erickson, The Challenge of Our Past: Studies in Orthodox Canon Law and Church History (Crestwood, New York: S. Vladimir’s Seminary Press, 1991), p. 9.
 Summa theologiae IaIIae, 94, 5.
 Diana Wood, Medieval Economic Thought (Cambridge: Cambridge University Press, 2002), p. 204.
 Digesta, Constitutio “Tanta,” §18.
 Ethica Nicomachea vii. 5, 1148b-1149a.
 Eve Levin, Sex and Society in the World of the Orthodox Slavs, 900-1700 (Ithaca, New York: Cornell University Press, 1989), pp. 175-76.
 Ibid., pp. 197-204.
 Boswell, Christianity, pp. 128, 210-13.
 Levin, Sex and Society, p. 179.