Substantive Appeal, Natural Law, Sexism and Homophobia

Prévia do material em texto

chapter 7
SUBSTANTIVE APPEAL (2): NEW NATURAL
LAW, SEXISM AND HOMOPHOBIA
In Chapter 6, we saw – via a discussion of a series of theories, and eventually by
reference to the notions of autonomy and the need to combat moral slavery –
how arguments which involve sexism and homophobia can properly be viewed as
unappealing, especially in terms of the moral value of autonomy and by reference
to the notion of moral slavery. In this chapter, we tie this analysis to the new
natural lawyers’ arguments concerning sexuality and gender, explaining how they
can be seen as sexist and homophobic and thus unappealing. We suggest that
such arguments are, in addition, unduly restrictive of the sexual autonomy of
all citizens. On the basis (discussed in Chapter 2) that one aspect of the lack of
substantive appeal of an argument may be the fact that it contains logic flaws, we
also discuss such flaws (falling short of the types of general internal inconsistency
seen in Chapters 4 and 5) in the new natural lawyers’ discussions of sexuality,
abortion, and contraception.
In section 1, we examine two general problems in the theory – namely the
idea of ‘one-flesh union’ and the definition of acts by reference only to the actor’s
intention – which contribute to the impression that its treatment of sexuality and
gender is implausible and thus unappealing. In section 2, we examine specific
problems with the new natural lawyers’ treatment of contraception, abortion, and
the structure of the family. In section 3, we turn to sexuality, analyzing the range
of permissible and impermissible sexual acts in the new natural lawyers’ scheme,
as well as the lack of connection between that scheme and many valuable aspects
of love and sexual pleasure. We also examine more generally the homophobia of
new natural law, a characteristic evident in Grisez’s and especially Finnis’s use
of hostile rhetoric, and in all the new natural lawyers’ use of unreliable ‘slippery
slope’ arguments. We argue that these difficulties make the new natural lawyers’
treatment of sexuality- and gender-related questions substantively unattractive,
both considered in their own light and when contrasted with the value of sexual
autonomy as discussed in Chapter 6.
228
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 229
1. two general problems
From the standpoint of assessing the general desirability of their arguments, it is
helpful to explore two aspects of the new natural lawyers’ account that appear
to be problematical regardless of one’s view of the authors’ substantive positions
concerning sexuality- and gender-related questions (although, since these aspects
form part of the new natural lawyers’ substantive positions, the conclusion that
they are problematical must also undermine the appeal of those positions). The
first problematical issue is Grisez’s ‘one-flesh union’ account of heterosexual sex,
and the second is his description of the nature of contraceptive acts, abortions,
and sexual acts.
(i) ‘One-Flesh Union’
We encountered this notion at length in Chapter 4, and also in Chapter 5. Grisez
(followed by Finnis and George) believes that a man and woman literally become
one organism when engaging in vaginal intercourse. He thus states that: “with
respect to reproduction, each animal is incomplete, for a male or a female indi-
vidual is only a potential part of the mated pair, which is the complete organism
that is capable of reproducing sexually. This is true also of men and women: as
mates who engage in sexual intercourse suited to initiate new life, they complete
each other and become an organic unit. In doing so, it is literally true that “they
become one flesh” (Gn 2.24).”1
Interestingly, Grisez cites only Church teaching or Biblical references in sup-
port of this and related assertions, while Finnis and George cite only Grisez.2 No
attempt is made to invoke biological or psychological data in support of a propo-
sition that seems likely to strike most reasonable readers as surprising. In fact, as
we saw in Chapter 5, Grisez’s argument gets the facts wrong even as a description
of animal reproductive biology. As Gareth Moore has observed, Grisez fails to dis-
tinguish between an animal’s activities and the functioning of its organs and other
parts.3 When an animal walks, it acts, and we ascribe to it a voluntary act: it is an
1 The Way of The Lord Jesus: Volume Two, Living a Christian Life (Quincy, IL: Franciscan Press,
1993), p. 570; see also pp. 575–6, 577; 579; 580; 586. Note that at p. 618, Grisez talks of the married
couple becoming ‘one-flesh’.
2 See Finnis, “Law, Morality, and “Sexual Orientation”” (1993–4) 69 Notre Dame L Rev 1049,
1066, and “The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and
Historical Observations” (1997) 42 Am J Juris 97, 127–9; Robert George, In Defense of Natural Law
(Oxford: Clarendon Press, 1999), pp. 144, 146–7, 168–9, 215.
3 Gareth Moore, A Question of Truth: Christianity and Homosexuality (London: Continuum, 2003),
pp. 253–7. Moore’s argument is not, we believe, undermined by the assertions of Robert George
and Gerard Bradley concerning the lack of analogy between a sex organ and a gun (Robert George,
In Defense of Natural Law, id., pp. 146–7). A sex organ, like any other organ, is and functions as
part of a person. Moore’s argument attacks the further proposition that it is inextricably bound up
with the “personal reality of the human being” (id., p. 146) as George and Bradley define it, and
thus helps undermine the plausibility of that conception of “reality”.
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230 Patriarchal Religion, Sexuality, and Gender
agent. But, the beating of an animal’s heart, an important body organ, is not some-
thing that the animal voluntarily does; the heart functions, but it does not involve
the agency of the animal (as walking does), and neither is the heart itself an agent.
The ability of an animal to act depends on the functioning of its parts, but acts and
functions are conceptually distinct. This, Moore points out, undermines Grisez’s
entire argument. The different parts of an animal, each of which has a function,
are combined to form the complete organism, capable of acting. When talking
of the male and female coming together to form the complete organism that is
capable of reproducing sexually, Grisez is thus treating two animals as organs or
parts of some other animal or organism. In doing so, Grisez gets his facts wrong.
As Moore states, “while organs are parts of animals or organisms, animals are not
parts of animals or organisms”.4 Grisez’s mating couple is not an organism, but
two people who engage in a joint activity for a certain purpose: “The real biolog-
ical unity that Grisez wishes to find, which would make of the two together one
complete organism, is simply not there. The couple just are not one flesh in the
sense that Grisez wants.”5 As Moore also observes, Grisez’s argument would, if
correct, have an extraordinary consequence: “it would be rather peculiar if Grisez
were correct, if it were the case that male and female formed one organism when
they mated. For then it would be this single organism that reproduced.. . . But if
a single organism reproduces, it is what we call asexual reproduction. It is char-
acteristic of sexual reproduction, by contrast, that it is carried out by two animals
in collaboration.”6
An argument that advances untrue ‘facts’ can be seen, for this reason alone, as
unattractive. The inaccuracy of Grisez’s description of the mating couple is also
important at a moral level, however. For, as we saw in Chapter 4, Grisez and the
other new natural lawyers employ the ‘one-flesh union’ account as a central aspect
of their explanation of the marriage good as they define it. Remove ‘one-flesh
union’ and the boundaries they ascribe to that good, and to morally permissible
sexual activity, lose their rooting and in consequence any analytical power. If the
couple having sex are not in fact one organism for reproductive purposes, they
might – other things being equal, in moral terms – reasonably engage in sexual
activity for purposes wholly unconnected with reproduction or marriage: as an
expression of sexual love and intimacy, for example, or purely for pleasure.
(ii) Definitions
A second problematical issue is the new natural lawyers’ unusual treatment
of intention in the definition of one’s acts. While this feature is extremely
4 Id., p. 256. Note also Stephen Macedo’s observation that despite the new natural lawyers’ rhetoric,
what is being united – if anything is – is penises and vaginas, not persons: “Homosexuality and the
Conservative Mind” (1995) 84 Georgetown LJ 261, 280.
5 Gareth Moore, A Question of Truth: Christianity and Homosexuality, id., p. 257.
6 Id., p. 257.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 231
important to the new natural lawyers’ treatments of sexuality and gender, it would
remain an unusual and odd feature of their approach in whatever context it was
applied.
Grisez suggests that a sexual act means: “any act whatsoever – whether thought,
word, or deed – in which someone intends, either as an end in itself or as a means
to some other end, to bring about or maintain sexual arousal and/or to cause
incomplete or complete sexual satisfaction, whether in himself or herself, in
another, or both.”7 Furthermore, intentionally to entertain any thought so as to
cause or maintain sexual arousal “has the same moral significance as the act in
which it would culminate. Since the only good complete sexual act is marital
intercourse, a choice to entertain thoughts tending toward any other complete
sexual act is wrong in the same way that act would be”.8 In common sense
terms, this seems to be an extremely broad definition: A sexual act could, on
this view, encompass only thoughts without any physical activity. It also leads to
the conclusion that it is possible to commit ‘adultery in the heart’: for adultery in
deed or desire is always wrong.9 Furthermore, it is apparently possible to commit
‘adultery in the heart’ even with one’s own spouse: “The point”, Grisez says, “is
clarified by John Paul II’s teaching . . . a man can commit adultery in his heart by
looking lustfully at his own wife”.10 If ‘one-flesh union’ runs counter to the facts,
Grisez’s views about sex seem to run counter to a common-sense understanding
of the nature of sexual acts. As Edward Vacek notes, if Grisez’s analysis is correct,
then “publishing pornography or washing dishes may be a sexual act” – the first
necessarily so, the second if the requisite intention is present.11
A similar problem besets Grisez’s analysis of contraception, contraception
being defined (as we saw in Chapter 4) as a distinct act rather than part of a
sexual act.12 Vacek usefully illustrates, in the context of contraception, the curi-
ous consequences which flow from Grisez’s method of defining an act. Grisez
locates contraception not in any “pattern of behavior”, but in an action coupled
with the intention to contracept: thus, people can be contracepting even if they
use “contraceptively useless techniques”.13 As Vacek suggests, this presumably
means that people are contracepting by taking fertility pills or wearing amulets,
if they thereby intend to practice contraception – an implausible proposition, to
put it mildly. Vacek is clear that, if a categorical definition of the type asserted by
7 The Way of The Lord Jesus, Volume Two: Living a Christian Life, id., p. 633 (emphasis added).
8 Id., p. 657. 9 Id., pp. 643–4.
10 Id., pp. 637–8.
11 Edward Vacek, “Contraception Again – A Conclusion in Search of Convincing Arguments: One
Proportionalist’s [Mis?]understanding of Text”, in Robert George (ed.), Natural Law and Moral
Inquiry: Ethics, Metaphysics, and Politics in the Work of Germain Grisez (Washington, DC: George-
town UP, 1998), p. 50 at p. 58.
12 Note also Grisez’s assertion that: “Whether or not contraception is used, if there is an intention to
abort an unwanted child, that intention is homicidal” (The Way of The Lord Jesus: Volume Two,
Living a Christian Life, id., p. 655).
13 The Way of The Lord Jesus, Volume Two: Living a Christian Life, id., p. 507.
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232 Patriarchal Religion, Sexuality, and Gender
the new natural lawyers is to be plausible, “Intention is not enough. Behavior and
accomplishment are also necessary. If we allow intention to suffice, our moral
notions are stretched too far. In Grisez’s analyses, we have adulteresses who have
had sex only with their husbands (or who imaginably might be virgins), murderers
who have killed no one, suicides who are alive, liars who tell only the truth . . . we
also have contraceptors who do nothing or who do ineffectual deeds or who even
promote fertility.”14 This is, in other words, a further generally implausible aspect
of the new natural lawyers’ approach, one that flouts the imperative of both lib-
eral ethics and politics that our concern not extend to thoughts or intentions not
linked to overt acts.
2. new natural law and sexism
In this section, we consider the sexism of some of the new natural lawyers’ agu-
ments. We begin by considering Grisez’s patriarchal prescriptions for the organi-
sation of the family, before examining the new natural lawyers’ hostility to contra-
ception and abortion. We argue that their views in all three areas rest on unjust
gender stereotypes and run counter to the autonomy argument outlined in Chap-
ter 6. As such, they are undesirable arguments and, to the extent that the new
natural lawyers seek to use them when challenging legal rights to contraception
or abortion, are inappropriate in constitutional terms, within the United States
and elsewhere.
(i) The Patriarchal Structure of the Family
John Finnis has acknowledged that Thomas’s views on gender unacceptably ratio-
nalize the unjust subordination of women.15 Nonetheless, Germain Grisez’s The
Way of The Lord Jesus, in which Finnis’s and Robert George’s arguments about per-
missible sexual acts are grounded,16 itself defends a highly patriarchal view of the
family, rooted in the long-standing Catholic notion of gender complementarity.
Grisez is clear that the features of human beings which determine what marriage
14 Edward Vacek, “Contraception Again – A Conclusion in Search of Convincing Arguments: One
Proportionalist’s[Mis?]understanding of Text”, id., at p. 53. Two further examples offered by
Vacek – “top-flight students who write only failing papers, and good mothers who needlessly kill
their children” – seem unlikely to work in the way that he intends given that the relevant will,
when coupled with the actions involved, is likely to make the relevant willed act in breach of one
of the modes of responsibility.
15 See, on this point, John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford: Oxford
University Press, 1998), p. 171.
16 See further our discussion in Chapter 4, as well as (for example), John Finnis, id., “Is Natural Law
Theory Compatible with Limited Government?”, in Robert P. George, Natural Law, Liberalism,
and Morality (Oxford: Oxford University Press, 2002), pp. 1–26, at p. 13; Robert George, In Defense
of Natural Law, id., p. 161.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 233
is – namely, an institution which includes complementary gender-based roles for
the ‘husband-father’ and ‘wife-mother’17 – are the complementary capacities of
males and females, the natural inclination of men and women to realize those
capacities, and the principle of practical reason directing them to do so.18 While
Christian teaching presents marriage as a union of persons “equal in personal dig-
nity and fundamental rights, but with complementary roles”, there is nonetheless
“a certain primacy for the husband.”19 Grisez thus cites John Paul II’s teachings,
which suggest that wives can rightly resist being dominated by their husbands,
but may not appropriate ‘male characteristics’ to themselves. Grisez suggests that
the “unstated assumption” in John Paul II’s teaching is that “while a wife need
not submit to her husband’s selfish domination, she remains subject to his rightly
exercised authority.”20 Any sense of equality within a marriage must thus be inter-
preted through the lens of gender differences, instead of regarding marriage as
“a merely consensual relationship similar to other friendships, as it is by many
feminists”.21
Grisez elaborates on this thesis in some detail. He asserts that “Spouses should
accept their sexually differentiated roles”.22 Only the ‘wife-mother’ can bear and
nurse children, the nurturing role being one that women are naturally suited to,
and she is the more vulnerable and dependent spouse while doing this.23 The
‘husband-father’, by contrast, is in a position to protect his wife and children, and
if he “fulfills his role, he deals with the wider world outside the home to obtain
the necessities of life and defend his family against threats to its security.”24 This
is the role for which he is naturally suited, and he should also set standards for
and criticize the children. In a prominent subheading, Grisez states that: “The
Husband-Father Has a Special Role in Decision Making”.25 Authority within
the family is defined by the “proper spheres” of each family member,26 which
are, of course, highly gendered: We are thus told that the Christian tradition
recognizes the role of married women as good managers of the household. While
decisions should “sometimes” be reached by consensus,27 absent consensus, “the
husband-father ordinarily should decide”28 and “his wife and children should
obey”,29 a proposition defended by Grisez as “the irreducible core of the traditional
Christian teaching which Pius XI summarizes as “the primacy of the husband with
17 The Way of The Lord Jesus: Volume Two, Living a Christian Life, Id., p. 613.
18 Id., pp. 635–6.
19 Id., p. 615. 20 Id., p. 617.
21 Id., p. 619. 22 Id., p. 626; see also p. 629.
23 Id., pp. 627–8; see also p. 622.
24 Id., p. 628; note also that at p. 625, Grisez seemingly implies that sometimes the husband may
forbid the wife to work outside the home.
25 Id., p. 629. 26 Id., p. 630.
27 Id., p. 630. 28 Id., p. 631.
29 Id., p. 629.
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234 Patriarchal Religion, Sexuality, and Gender
regard to the wife and children, the ready subjection of the wife and her willing
obedience”.30
As these citations reveal, Grisez’s (and the other new natural lawyers’) views of
the family amount to little – or nothing – more than a set of religiously-derived
gender stereotypes. As Lisa Sowle Cahill has noted, the “socially restrictive effects
for women of strongly contrasting gender roles become apparent when women’s
role is contrasted with that of the ‘husband-father’, who ‘also is naturally adapted
for his role’. . . . A woman, on the other hand, ‘is made to be a mother’. . . . Despite
the greater appreciation for the dignity of women that Grisez shares with recent
popes, he vehemently defends teachings on sexuality, including contraception
and abortion, which were originally proposed on the assumption that women are
inferior beings created primarily to be reproductive helpers to men.”31 As we saw
in chapter 6, gender stereotypes are rightly condemned from the standpoint of
autonomy arguments, and as an example of persisting patterns of moral slavery
that reflect historical traditions abridging basic human rights of groups of per-
sons on the unjust ground of stereotypes that are themselves the product of such
abridgement. One form of such moral slavery is sexism, typified by attempts to
legitimate unjust gender stereotypes such as those involved in Grisez’s conception
of family life. Of course, it is not only Catholicism which supports a conception of
gender differences that rationalize the structural injustice of sexism. We can clar-
ify the nature of the patriarchal view, endorsed by Grisez and other new natural
lawyers, by placing it in the context of earlier views with a similar structure.
Such views were familiarly employed by early advocates of political liberalism
as a way of justifying the failure to extend liberal principles to women,32 and
have been prominently used within political cultures otherwise committed to val-
ues of constitutional democracy and human rights to justify the subordination of
women. In nineteenth-century America, for example, it was Protestant thinkers
like Catherine Beecher and Horace Bushnell who defended a conception of
women’s distinctive nature, in contrast to men’s, that questioned the activism
of women for their own rights, including rights of suffrage.33 Both Beecher and
Bushnell were opposed to the idea of basic rights claimed by and for women and,
in particular, the idea of such rights asserted by and for women in the family. To
make their point, they focused on one aspect of women’s lives, namely the rela-
tionship of women as mothers to their dependent and vulnerable young children,
30 Id., p. 631.
31 Lisa Sowle Cahill, “Grisez on Sex and Gender: A Feminist Theological Perspective”, ch. 11 in
Nigel Biggar & Rufus Black (eds.), The Revival of Natural Law: Philosophical, Theological and
Ethical Responses to the Finnis-Grisez School (Aldershot: Ashgate, 2000), at pp. 247–8; see also
pp. 248–51.
32 See, on this point, Susan Moller Okin, Women in Western Political Thought (Princeton, NJ:
Princeton University Press, 1979).
33 See, for fuller discussion, David A.J. Richards, Women, Gays, and the Constitution, The Grounds
for Feminism and Gay Rightsin Culture and Law (Chicago: Chicago University Press, 1998),
pp. 144–155.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 235
and characterized that relationship as embodying a superior morality, one in
which women approximated more closely to the self-sacrificing ideal of the life of
Jesus.34 Importantly, the allegedly superior moral value of the relationship was not
described from the perspective of women at all, but from the perspective of the
powerful feelings (“the remembrances of their almost divine motherhood”35) that
children, as adults, have about the relationship to their mothers, who have “such
ineradicable, inexpugnable possession of the life of sons and daughters.”36 This
is a romantic idealization, the appeal of which seemingly rests on undoubtedly
profound and widespread human experiences and feelings at stages of life when
ego boundaries barely exist (if they exist at all) and where one’s experience is
symbiotically one with one’s primary caretaker (often, one’s mother) – a stage psy-
choanalysts call primary love.37 From within such intense feelings, one’s mother
may barely exist as an independent person but as an intense fantasy of almost
religious devotion; such feelings may be the basis of one’s worship, as Catholic
medieval spirituality apparently did, of Jesus as mother38 or, as nineteenth-century
Protestant Americans like Beecher and Bushnell did, of one’s mother as Jesus.39
In a constitutional democracy, such feelings do not amount to an adequate jus-
tification for abridging the human rights of women by infringing upon their auton-
omy, especially via a regime of moral slavery. As Susan Moller Okin has (among
others) argued, adequate normative arguments must be applied to justify the struc-
ture of family life, including not only the relationship between spouses but also the
appropriate relationship of parents to their children, and can be used to criticize
those structures where they fall short.40 The Beecher-Bushnell argument does not
supply adequate reasons of justice to defend its recommended subordination of
women, nor does it bring any realism or sense of justice to women’s perspectives,
as persons, on their role as mothers: about mothering not as romantic fantasy,
but as an exercise of practical reason and intelligence; or the crippling charac-
ter (for mothers and children) of what Adrienne Rich observed and criticized
in the “maternal altruism . . . universally approved and supported in women.”41
Instead, Beecher and Bushnell offer a highly sectarian political epistemology
34 See, id., at p. 63. 35 See, id., at p. 172.
36 See, id., at p. 171.
37 For an important treatment, see Michael Balint, Primary Love and Psycho-Analytic Technique
(New York: Liveright, 1965), especially the articles by Michael Balint at pp. 74–90 and pp. 109–35,
and by Alice Balint at 91–108. On the religious force of the romantic love tradition in nineteenth-
century America, see Karen Lystra, Searching the Heart: Woman, Men, and Romantic Love in
Nineteenth-Century America (New York: Oxford University Press, 1989).
38 See, for example, Caroline Walker Bynum, Jesus as Mother: Studies in the Spirituality of the High
Middle Ages (Berkeley: University of California Press, 1982).
39 On the background of this American development, see Ann Douglas, The Feminization of American
Culture (New York: Knopf, 1977).
40 See, for example, Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books,
1989).
41 See Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution 10th anniversary
ed. (New York: W.W. Norton, 1986, 1976), at p. 213.
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236 Patriarchal Religion, Sexuality, and Gender
of rigidly stereotypical gender roles whose force rests on chimerical fantasies.
Beecher developed her normative conception of gender in explicit opposition
to abolitionist feminism, and opposed the general claims of suffrage feminism.42
Bushnell developed his theology of gender in explicit opposition to the suffrage
movement in the United States. Both argued within the tradition of Protestant
theology. Nonetheless, we can see in these arguments an exactly similar exercise in
gender stereotyping to that employed by Grisez, according to whom the expected
role of women is to serve within their ‘proper sphere’ as care-taking ‘wife-mothers’:
a conception which perhaps also underpins his assertion that “So-called sexual
harassment is largely a problem of immodesty”,43 both idealizing and denigrating,
and deeply restrictive of the autonomy of women.
(ii) Contraception
It is one of the distinctive features of the moral theology of Germain Grisez that
he defended the Catholic Church’s traditional condemnation of contraception
in a period, after the Second Vatican Council, when such views were the subject
of debate among thoughtful Catholics.44 The new natural lawyers are clear that
contraception, when defined by the intention that a prospective new life not begin,
always involves a choice to go against the good of life, and therefore violates the
seventh and eighth modes of responsibility – even when it is chosen as a means
to a good, such as the avoidance of irresponsible procreation.45 They also suggest
that, due to its contra-life character, contraception is akin to homicide.46 We argue
in this section that the new natural lawyers’ treatment of contraception contains
logic problems, and is undesirable and unappealing in light of its treatment of
intention and its role in reinforcing patriarchal structures.
The main logic problem has already been mentioned in Chapter 4. When
suggesting that contraception goes against the good of life by stopping a possible
person from coming into being, the new natural lawyers appear to be conflating
the possibility that a new individual might be conceived if contraception is not
used and the prospect that a discernible individual will not be conceived if it is
used: something which involves a jump in logic given that, even on their own
42 Beecher accepted the case for suffrage only when a woman satisfied property qualification require-
ments. See Catharine E. Beecher, Woman Suffrage and Woman’s Profession (Hartford: Brown and
Gross, 1871), at p. 205.
43 The Way of The Lord Jesus: Volume Two, Living A Christian Life, id., p. 680.
44 Germain Grisez, Contraception and the Natural Law (Milwaukee, WI: Bruce, 1964).
45 Germain Grisez, The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., pp. 504–519;
Germain Grisez, Joseph Boyle, John Finnis and William E. May, “‘Every Marital Act Ought to
be Open to New Life’: Toward a Clearer Understanding” (1988) 52 The Thomist 365; John Finnis,
Moral Absolutes: Tradition, Revision, and Truth (Washington, DC: Catholic University of America
Press, 1991), pp. 84–90.
46 Germain Grisez, Joseph Boyle, John Finnis, and William E. May, “‘Every Marital Act Ought to
be Open to New Life’: Toward A Clearer Understanding”, id., p. 372; see also p. 366, and Germain
Grisez, The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., pp. 43–4.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 237
view, life does not begin until conception.47 Grisez, Boyle, Finnis, and May thus
describe the ‘possible person’ whose life is prevented by contraception as “an
absolutely unique and unrepeatable individual” who would otherwise exist,48
and in comparing conception to homicide they run together something which
prevents the possibility that a human being will be conceived with the ending of
an identifiable already existing life. As we showed in Chapter 4, the new natural
lawyers’ attempts to avoid this logic problem appear to depend, for their force, on
the notion of a divine plan or the goodwill of a deity. Absent a religious notion
of this type, however, the treatment of a statistically possible life as an already
identifiable, discernible life seems just as incredible as the idea that vaginal sex
gives rise to ‘one-flesh union’. The point is well made by Edward Vacek: A “real
hundred dollar bill is more valuable than a vividly imagined hundred dollar bill”.49
Turning to the lack of desirability and appeal in the new natural lawyers’
argument, it should be noted that despite their problematical attempt to tie con-
traception to the good of life (and their attempt to separate contraceptive from
sexual acts50), the Church’s condemnation of contraception was historically tied
to a procreational view of the proper purposes of sex. Such a view historically
assumed, as axiomatic, a patriarchal structure of sexual relationships, which we
now know rests on the cultural injustice of sexism; and its concern for exclusively
procreational sexuality arose in circumstances of under-population and massive
infant and adult mortality that made having children, in a largely agrarian soci-
ety, a necessity. Once these background assumptions are no longer valid, as in
contemporary circumstances, there is no appealing case for the wrongness of con-
traception. Nowadays, many Catholics – let alone persons of other faiths, or of
none – find the prohibition on contraception wholly unreasonable.51
We have already seen the link drawn by Lisa Sowell Cahill between Grisez’s
condemnation of contraception and the characterisation of women’s role as the
‘wife-mother’. In reality, new natural law’s condemnation of contraception serves –
especially when considered in light of the Church’s long standing teachings – to
reinforce cultural stereotypes whose unjust force depends on the repression of
women’s sexual voices and experiences. What seems to be at work here, as was
the case in the arguments of Beecher and Bushnell, is a highly idealized, indeed
mythological conception of motherhood, one infinitely self-sacrificing and wholly
disconnected from any sense of women’s sexual voice and interests: which can
47 See, e.g., id., pp. 370, 371, 373, 374, 376–7, 402, 410, 415.
48 “‘Every Marital Act Ought to be Open to New Life’: Toward a Clearer Understanding”, id.,
p. 388.
49 “Contraception Again – A Conclusion in Search of Convincing Arguments: One Proportionalist’s
[Mis?]understanding of Text,” id., at p. 68.
50 Germain Grisez, The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., pp. 508–9.
51 See, on these points, Garry Wills, Papal Sin: Structures of Deceit (New York: Doubleday, 2000);
Peter Steinfels, A People Adrift: The Crisis of the Roman Catholic Church in America (New York:
Simon and Schuster, 2003). See also Daniel Callahan, The Catholic Case for Contraception
(London: Arlington Books, 1969).
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238 Patriarchal Religion, Sexuality, and Gender
involve and do often involve having intercourse without procreation. There is
no interest in real voices and relationships, including that of a mother to her
child. As Edward Vacek argues, when discussing Grisez’s attempt to separate
contraceptive from sexual acts, the “reason why people consider contraception a
sexual issue”, contrary to Grisez, is “because they take a much larger view of the
sexual life than Grisez does. They are interested in the whole process. They see
both conception and preventing conception as pertaining to their sexual life as
it unfolds within and contributes to the flourishing of themselves, their progeny,
and others. They ask how contraceptives will fit in and affect a long practice of
sexual acts, how fruitful the marriage has already been or will be, and so forth”.52
When Finnis tries to consider the good reasons a couple might have for using
contraceptives (for example, giving a better life to the fewer children they have
or pursuing other interests as a couple), he dismissively claims that they have
artificially narrowed the horizons of their assessment because: “To know – that is,
to make a rational judgment – that the one future embodies more premoral good
than any and all of its alternatives would be to know and understand the future,
both of this world and of the Kingdom, in a manner that lies utterly outside the
reach of moral providence.”53 Aside from its religious grounding, Finnis’s moral
absolute is cruelly callous given the real moral choices that people face. There is
certainly no appeal here to the lived experiences of women. This ties to Edward
Vacek’s criticism of Grisez’s assumption that a couple who responsibly wish to
have fewer children necessarily have a contra-life will: “What is perplexing about
this description is that Grisez claims to know what contraceptors necessarily have
in their minds. . . . Grisez seems to picture contraceptors as sadists who dream of
the person they are going to make sure will not come into existence. . . . I doubt,
however, there are many such people.”54
Aside from the logic problem involved in the new natural lawyers’ equation of
a possible person with an individual, discernible person, we have seen that their
arguments about contraception attribute intentions to couples which they might
not in fact possess, whilst ignoring the difficult choices which they might in fact
have to make and reinforcing gender-related stereotypes. As Kent Greenawalt has
perceptively observed, the approach of the new natural lawyers “relies on abstract,
categorical modes of thought in preference to greater emphasis on qualities of lived
experience and contextual distinctions drawn from that experience”.55 Greenawalt
associates this patriarchal style of thought with Carol Gilligan’s work on traditional
male approaches as opposed to those based on the different voice of women and
52 “Contraception Again – A Conclusion in Search of Convincing Arguments: One Proportionalist’s
[Mis?]understanding of Text,” id., at p. 59.
53 John Finnis, Moral Absolutes: Tradition, Revision, and Truth, id., p. 19.
54 “Contraception Again – A Conclusion in Search of Convincing Arguments: One Proportionalist’s
[Mis?]understanding of Text,” id., at p. 61.
55 Kent Greenawalt, “How Persuasive is Natural Law Theory?” (2000) 75 Notre Dame L. Rev. 1647,
1672.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 239
others: “we can easily place traditional natural law reasoning far on the male side
of the spectrum.”56
(iii) Abortion
As we saw in Chapter 4, the new natural lawyers treat abortion as going against
the good of life and a violation of the seventh or eighth modes of responsibility.57
As Grisez, Boyle, Finnis and May put it, “if there is an intention to abort an
unwanted child, that intention is homicidal.”58 This position entails the view
that personhood begins at conception, from which moment a unified human
individual is developing, even before the brain develops59 – as a consequence of
which (according to Grisez), “in making moral judgments people should consider
the unborn persons from the beginning, their lives instances of innocent human
life.”60 Grisez contends that “to question the absoluteness of the right to life of
the unborn is to question the absoluteness of everyone’s right to life”,61 and that
to suggest that abortion is acceptable is to accept discrimination, on the basis of
age, against those (i.e., the unborn) who have not developed sufficiently to be
aware of their right to life.62 As with contraception, we argue that the new natural
lawyers’ treatment of abortion contains logic flaws and appears, ultimately, to
have the effect of reinforcing patriarchal conceptions of the child-bearing role of
women.63
Two difficult logic problems deserve immediate mention. The first, which we
encountered in Chapter 4, is that – as Grisez recognises – the view that life begins
at conception forces the new natural lawyers to engage in a very odd categorisation
of what happens in the case of identical twins: for, if the fertilized ovum is already
a human life by the time that it divides into identical twins, it may be necessary
to explain this by saying that “two generations have occurred rather than one, the
first by the usual process of sexual reproduction, and the second by an unusual
56 Id., at 1672, n. 93.
57 See, e.g., Grisez, The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., pp. 488–505;
Finnis, “The Rights and Wrongs of Abortion”, in Marshall Cohen, Thomas Nagel and Thomas
Scanlon (eds.), The Rights and Wrongs of Abortion (Princeton, NJ: Princeton UP, 1974) and
“Public Reason, Abortion and Cloning” (1998) 32 Valparaiso U L Rev 361, 371–9; Robert George,
In Defense of Natural Law, id., pp. 205–13.
58 “‘Every Marital Act Ought to be Open to New Life’: Toward a Clearer Understanding”, id., p. 655.
59 Germain Grisez, The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., p. 489–494;
Grisez, Abortion: The Myths, The Realities, and the Arguments, (New York: Corpus Books, 1970),
p. 114; Grisez, Boyle, Finnis and May, “‘Every Marital Act Ought to be Open to New Life’: Toward
A Clearer Understanding”, p. 387; Finnis, “The Rights and Wrongs of Abortion”, id., at p. 112;
George, In Defense of Natural Law, id., pp. 209–13.
60 The Way of The Lord Jesus: Volume Two, Living A Christian Life, id., p. 497.
61 Germain Grisez, Abortion, the Myths, the Realities, and the Arguments, id., p. 305.
62 Germain Grisez, The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., p. 491; see
also pp. 494, 498.
63 In Abortion: The Myths, the Realities, and the Arguments, id., ch. VII Grisez argued for abortion
to remain a criminal act in the United States.
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240 Patriarchal Religion, Sexuality, and Gender
process of asexual reproduction: either the first individual reproduced by giving
up part of itself, or the original individual ceased to be when it split, and two new
individuals came to be.”64 The reference to asexual reproduction is analogous
to Grisez’s implausible ‘one-flesh union’ argument, and it is noteworthy that the
idea can also be found making an appearance in the context of identical twins.
Just as implausibly, however, Grisez’s explanation of identical twins technically
makes the birth parents into grandparents of either or both of the twins.65 The
second logic problem, which we consider in Chapter 8, relates to the new natural
lawyers’ use of a complex scheme of intended effects and side effects in order to
delimit an extremely narrow set of situations in ones in which abortion might,
very exceptionally, be morally permissible. For the moment, we can simply note
that such situations do not include a choice to remove a fetus to avoid health
problems where a woman suffers from a serious medical problem such as kidney
disease, or to alleviate ongoing suffering where a woman is pregnant after being
raped.66
A further logic problem relates to the new natural lawyers’ belief that person-
hood begins at conception. Grisez cites a small amount of scientific evidence
in support of this proposition, alongside many religious assertions.67 The diffi-
culty here is that this is something about which there is, to put the matter in the
least hostile fashion possible toward the new natural lawyers’ position, widespread
scientific and ethical debate. Merely to assert, as Grisez and his supporters do,
that science now shows human life to begin at conception, and to treat this as
decisive of the matter, is not enough. Why dogmatically assimilate a fertilized
ovum to a person without detailed analysis of the range of alternative views of the
competences (sentience, brain activity, self-consciousness) of the many reason-
able persons that reject such an assimilation, including many women? It is not
plausible to claim that one’s case rests on natural sources of knowledge when the
very lack of reasonable consensus about the weight to be given to the facts shows
this is not so.68 If the new natural lawyers are to make a convincing case, they
must, therefore, engage much more fully with the range of argument which in
fact exists.69 Given the existence of such a range, it cannot be adequate to con-
clude, as Grisez does, that “There is no room for practical doubt” and that “To
be willing to kill what for all one knows is a person is to be willing to kill a person.
Hence, in making moral judgments people should consider the unborn persons
from the beginning. . . . As the magisterium teaches: ‘From a moral point of view
64 The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., p. 496.
65 Id., p. 497.
66 Id., pp. 500–1. On the use of contraception following a rape, see p. 512 and “‘Every Marital Act
Ought to be Open to New Life’: Toward A Clearer Understanding”, p. 390.
67 The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., footnotes at p. 495.
68 See, on this point, Garry Wills, “The Bishops vs. the Bible”, The New York Times, Sunday, June 27,
2004, section 4, p. 14.
69 Of the materials cited in Grisez’s The Way of The Lord Jesus: Volume Two, Living a Christian Life,
id., pp. 489–498, very few could be said to be of clearly scientific character.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 241
this is certain: even if a doubt existed concerning whether the fruit of conception
is already a human person, it is objectively a grave sin to dare to risk murder.’”70 It
should also benoted that the choice of fertilization as the point when personhood
begins is, in any event, highly sectarian, resting as such a view does on ideas of
‘ensoulment’ and women’s procreative duties that are not reasonably appealing
views to those outside of the Catholic tradition.71
Even if there was no scientific debate, however, the new natural lawyers’ moral
argument would still be open to attack. Sandeep Sreekumar has persuasively
shown that positions such as theirs are not reasonably tenable in terms of a critical
morality based on respect for the right to life, among other basic rights.72 We can
and do reasonably understand not only the right to life of human beings under
normal circumstances (including infants and children), but also of people who
are asleep or temporarily comatose and people of future generations, in terms of
the normative value we place on a preference interest to remain alive, whenever
such a human interest exists or should come to exist. All such claims of a right to
life are normatively justifiable (normatively absolute, if you will), but their critical
normative justification does not reasonably support a comparable right to life of all
fetuses, because such a right makes sense only on the basis of false assumptions
70 The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., pp. 497–8.
71 See, on the sectarian character of the choice of fertilization, Ronald Dworkin, Life’s Dominion:
An Argument About Abortion, Euthanasia, and Individual Freedom (New York: Alfred A. Knopf,
1993).
72 See Sandeep Sreekumar, An Argument About the Right to Life of the Foetus in Critical Morality,
thesis submitted toward the degree of Doctor of Philosophy in Law, Corpus Christi College, Oxford
University, Trinity Term 2005. A summary of Sreekumar’s argument would be this:
(a) a strictly jurisprudential analysis of “rights” does not warrant the conclusion that a fetus
cannot have a right to life which protects either its objective interest in life (viz., that fact
that life is, on a “thin evaluative” level, good for it), or (assuming a certain view of human
identity over time) its future preference-interest, when it becomes a human being like you
and me, in having remained alive as a fetus, or both but
(b) a normative analysis of the values to be attributed to these respective interests shows that
(ba) we can say that objective interest is valuable enough to justify anything more than a negli-
gibly weak duty correlative to a fetal right to life only if (i) we can adduce some defensible
reason for holding that human biological aliveness is in itself a locus of intrinsic value of
some kind (given that Dworkin’s “sacred value” argument from Life’s Dominion, id., is logi-
cally defective, and the typical conservative assumption in the area is untenably speciesist) or
(ii) we can defend the dubious position that some experiences in human life possess categor-
ical value of the sort the necessitates our bringing into existence experiencers in whose lives
those values may be actualized (in which case, of course, we also have a duty to conceive
hypothetical human beings that is, pending the provision by a proponent of this view of a nor-
matively robust difference between such entities and fetuses, as strong as any duty we have to
fetuses), and
(bb) we can say that future preference-interest is valuable enough to justify anything more than
a negligibly weak duty correlative to a fetal right to life if and only is we can first defend
the controversial “orexigenic” view that if a preference will be satisfied if and when it comes
into existence, we ought to bring that preference into existence (and, if we can defend this
view, we again stand in need of an argument that can robustly distinguish the conception of
hypothetical human beings from the letting-live of fetuses).
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242 Patriarchal Religion, Sexuality, and Gender
about the value of aliveness in general (do the lives of noxious bacteria have
value?), or the value of the human experiences or preference satisfactions that a
fetus, when born and developed, will have. The categorical value Grisez places on
human experiences (requiring our bringing into existence ‘experiencers’ in whose
lives those values may be realized) is demonstrably unreasonable once we see how
problematic its intuition is (requiring not only that all fetuses be born, but that we
have as many children as we can). This categorical view also implausibly insists
that there is a value in human life when no humans exist, and insists on value
comparisons (between existing and nonexistent humans) that cannot reasonably
be made. Similarly, the value Grisez places on future preferences fallaciously
infers from the fact that an existing rational preference should be satisfied rather
than frustrated that we have a reason to bring into existence preferences that do
not currently exist – a view that also implausibly requires both not permitting
abortions and bringing into existence as many humans as possible. As Sreekumar
shows, it cannot be a reasonable critical morality that is doing the work in Grisez’s
argument, for the normative assumptions on which that argument depends are
not reasonable.
Indeed, it seems clear that there are strong normative arguments pointing
in favor of permitting abortion, at least up to a certain point in a pregnancy.
Blanket anti-abortion laws, grounded in the alleged protection of life, could be
said unreasonably to equate the moral weight of a fetus in the early stages of
pregnancy with that of a person, and abortion with murder; such laws fail to take
seriously the weight that should be accorded a woman’s basic right to reproductive
autonomy in making highly personal moral choices central to her most intimate
bodily and personal life against the background of the lack of public consensus
about the possibility that fetal life, as such, can be equated with that of a moral
person.73 As Emily Jackson has cogently observed, the imposition on a woman
who does not want to bear or have a child, of a legal or moral duty to have
such a child imposes on women and women only a compulsion to use their
bodies to save another: an obligation we accept nowhere else.74 Such injustice
supports a sexist culture and psychology of “maternal self-abnegation.”75 There
are legitimate interests that society has in giving weight at some point to fetal
life, as part of its commitment to the importance of taking the lives of children
seriously and caring for them. But, such an interest does not justify forbidding
abortion as such throughout all stages of pregnancy;76 rather, it can be accorded
its legitimate weight after a reasonable period has been allowed for the proper
scope of a woman’s exercise of her decision whether or not to have an abortion. In
73 For further discussion, see David A. J. (New York: Oxford University Press, 1986), Richards, Toler-
ation and the Constitution, at pp. 261–69; Ronald Dworkin, Life’s Dominion, id., pp. 3–178.
74 See, on this point, Emily Jackson, Regulating Reproduction: Law, Technology and Autonomy
(Oxford: Hart Publishing, 2001), id., pp. 73–74, 76, 133.
75 See Emily Jackson, Regulating Reproduction, id., p. 3.
76 See David A. J. Richards, Toleration and the Constitution, id., pp. 266–7.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 243
U.S. constitutional law, the Roe-Casey doctrine of allowing criminalization only
at viability may be regarded as making this point: giving a reasonable freedom to
women to choose to have an abortion, subject to making a decision by a time that
marks an appropriate starting point for legitimate concerns for valuing children.77
Once one takes seriously the point that fetal life is not a value sufficient
inevitably to outweigh the right of reproductive autonomy, the argument for
criminalizing abortion cannot be seen as a reasonable argument for regarding
abortion as homicide. Instead, it looks more like a proxy for background assump-
tions, often religiously based, about ‘proper’ sexuality and gender roles. From this
perspective, undue prohibitions on abortion encumber the ability of women to
make conscientious and difficult choices regarding their bodies, their sexuality
and gender, and the nature and place of pregnancy, birth, and child-rearing in
their personal and ethical lives. Carol Gilligan’s important study of women mak-
ing the abortion choice clarifies the way in which, in the United States, Roe v.
Wade supported women’s ethical voices in sensitive decisions such as whether to
have a child, not ceding to society or the state an authority it lacks.78 The tra-
ditional condemnation of abortion fails, at a deep ethical level, to take seriously
the moral independence of women as free and rational persons, resting instead
on theological ideas of biological naturalness and gender hierarchy (expressed
in mythological conceptions of women as idealized and infinitely self-sacrificing
mothers) that degrade the constructive moral powers of women themselves to
establish the meaning of their sexual and reproductive life histories. This under-
lying conception appears to be at one with the sexist idea that women’s minds
and bodies are not their own, but the property of others, namely, men or their
masculine God, who may conscript them and their bodies, like cattle on the farm,
for the greater good. The abortion choice is thus one of the choices essential to
the just moral independence of women, centering their lives in a body image and
aspirations expressive of their moral powers. The little weight accorded women’s
interests and the decisive weight accorded the fetus in blanket anti-abortion laws
makes sense only against a background conception of mandatory procreational,
self-sacrificing, caring, and nurturing gender roles for women, and it is its sym-
bolic violation of that normative idea that imaginatively transforms abortion into
murder.
New natural lawyers often defend their views by claiming that their opponents,
in particular on questions of sexual morality, are not arguing from reason but are
instead rationalizing forms of injustice79 rooted in corrupt traditions.80 Sometimes
an analogy is made to slavery: Finnis, for example, claims that pro-choice views
rationalize the injustice of abortion in the way that pro-slavery views rationalized
77 Roe v. Wade (1973) 410 U.S. 113; Planned Parenthood of Southern Pennsylvania v. Casey (1992) 505
U.S. 833.
78 See Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development
(Cambridge, MA: Harvard University Press, 1982); Roe v. Wade, id.
79 See John Finnis, Aquinas, id., p. 78. 80 See John Finnis, Aquinas, id., p. 129.
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244 Patriarchal Religion, Sexuality, and Gender
slavery.81 However, this analogy is deeply inapt. When serious moral argument
arose to question slavery, it arose not from mainstream established churches, but
from usually quite heterodox figures and religions (for example, William Lloyd
Garrison and the Quakers) that not only questioned most views of the dominant
established Christian churches, but were also famously anti-hierarchical in their
conception of authority.82 Their arguments brought to bear a distinctive liberal
political theory on American politics, one that condemned the political force of
American slavery, racism, and sexism and supported free conscience. Calling abor-
tion murder, by contrast, draws its appeal from long-standing unjust stereotypes of
gender and sexuality that importantly idealize mothers as, at once, asexual and
infinitely self-sacrificing. As Grisez asserts, “even if it otherwise is fair to accept or
risk the unborn baby’s death as a side effect of some appropriate operation or treat-
ment of a pregnant woman” (allowed only in extremely limited circumstances
under his approach83), “she may be free to offer her own life or risk it to save her
baby or prevent risking its life. If such self-sacrifice is not morally excluded . . . a
Christian mother rightly does this work of mercy for her child”84 (presumably the
model here is “Mary, the virgin mother whose impossible sexuality idealizes and
frustrates the desires of real women”85). It is only on the basis of the uncritical
acceptance of such patriarchal stereotypes that abortion is transformed into mur-
der, and support for pro-choice laws made comparable to support for slavery. It is
irrelevant, from this perspective, that an early-term abortion allows a woman to
avoid real harms to her interests and more responsibly to decide when she will
undertake a parental relationship with a child. The force of moral and legal con-
demnation is aggressively directed against women’s real sexual voices, interests,
and lives.
Lisa Sowle Cahill, who agrees with Grisez that the status of the fetus is a cru-
cial question in the abortion debate, has nonetheless stressed that the “abortion
question is a useful lens through which to view the tacit views of women still oper-
ative in Catholic teaching about sex-related matters” and that “the most important
missing piece in the Catholic abortion platform is a serious, demonstrable, and
effective commitment to the equality and well-being of women”.86 What is true
of the ‘Catholic platform’ in general is true of the new natural lawyers’ position
more particularly. The logic problems in their approach aside, their account of
abortion is undesirable, ultimately, given that it accords a decisive weight to the
81 See John Finnis, “Abortion, Natural Law, and Public Reason”, in Robert P. George and Christo-
pher Wolfe, eds., Natural Law and Public Reason (Washington, DC: Georgetown University
Press, 2000), at p. 89; see also Robert P. George and Christopher Wolfe, “Natural Law and Public
Reason,” in the same volume, pp. 51–74.
82 See, for pertinent historical discussion, David A.J. Richards, Women, Gays, and the Constitution.
83 The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., pp. 502–3.
84 The Way of The Lord Jesus: Volume Two, Living a Christian Life, id., p. 503.
85 Karen L. King, The Gospel of Mary of Magdala: Jesus and the First Woman Apostle (Santa Rosa,
Calif.: Polebridge Press, 2003), p. 149.
86 “Grisez on Sex and Gender: A Feminist Theological Perspective”, id., at p. 252.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 245
interest of the fetus from the very outset of apregnancy, giving very little if any
weight to the interest of a women to have control over her body and to make
responsible choices concerning childbirth. The interest of the fetus may well take
priority at viability, but an argument such as that advanced by the new natural
lawyers would, if converted into law, have a radically restrictive impact on the
lives of women, serving to reinforce patriarchal conceptions of their ‘appropriate’
role as submissive child-bearers. In consequence, it would seem – if given effect
through law – seriously to undermine the autonomy of women, denying them
control over their bodies and ethical choices.
3. new natural law, sexual autonomy, and homophobia
As we saw in Chapter 4, the new natural lawyers regard permissible sexual behav-
ior as confined to ‘marital’ sexual acts. In this section, we begin by exploring the
implications of their arguments for the sexual autonomy of all individuals: implica-
tions which we regard, in light of the autonomy argument advanced in Chapter 6,
as thoroughly undesirable for everyone, regardless of marital status or sexual ori-
entation. In the course of this discussion, we analyse the new natural lawyers’
treatments of emotion (as opposed to reason), of love, and of the importance
of sexual imagination: aspects of human life which, we argue, they fail fully to
understand and/or seek unduly to restrict. We then move on to consider what we
categorise as the homophobia of the new natural lawyers’ arguments, evidenced
in their use of abusive rhetoric (especially towards gay men) and unreliable slip-
pery slope arguments, and in their failure reasonably to compare same-sex and
opposite-sex relationships. We conclude that the new natural lawyers’ treatment
of sexuality is undesirable both because of its general restrictions on sexual auton-
omy and because of its specific, apparently homophobic treatment of lesbians and
gay men.
(i) Sexual Autonomy, Emotion and Love
In Chapter 6, we discussed the moral value of sexual autonomy, and the objec-
tification associated with restricting the autonomy of particular groups of people
by reference to the consensual sexual acts in which they engage. In this section,
we consider how the new natural lawyers’ arguments concerning sexuality run
counter to sexual autonomy and seek to justify the imposition of unjust restrictions.
As Stephen Macedo has put it, the new natural lawyers have an “extremely narrow
view of valuable sexual activity as only that which is open to procreation and within
a permanent heterosexual marriage”.87 Although Finnis does not (as we saw in
Chapter 4) believe that the law should be used completely to prohibit same-sex
87 “Homosexuality and the Conservative Mind” (1995) 84 Georgetown LJ 261, 281. We touch on logic
problems in the new natural lawyers’ arguments about sexuality here rather than in section 1 since
many of those problems relate to their discussions of same-sex sexual acts.
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246 Patriarchal Religion, Sexuality, and Gender
sexual acts, he is happy for the law to seek to discourage them, for example, via
measures such as the disputed Colorado constitutional amendment.88 On his
view, anti-discrimination protections for lesbians and gays should be resisted, as
should the legal recognition of same-sex marriage (or, for example, civil part-
nership arrangements).89 George and Bradley go further, urging that criminal
prohibitions on same-sex sexual acts should remain in place.90 Indeed, George
has argued that in principle the law may prohibit any ‘immoral’ sexual activity
(heterosexual or homosexual), although there may be pragmatic reasons for it not
to do so in many situations.91 Of course, the sexual morality of Germain Grisez,
on which Finnis, George, and Bradley rely for their arguments concerning the
law, applies not just to lesbians and gay men, but to all sexual acts and relation-
ships. As such, its implications for the sexual autonomy of all persons – that is, of
heterosexuals as well as of lesbians and gay men – is important in any assessment.
To demonstrate the undesirability of the new natural lawyers’ approach, in terms
of autonomy, we must begin by summarizing some of Grisez’s arguments.
Grisez’s restrictions on the range of morally permissible sexual acts, as set out
in The Way of The Lord Jesus, are wide. For married couples, a sexual act involving
ejaculation by the husband is wrong insofar as it is not “marital intercourse” – in
other words, an act in which the husband ejaculates inside the wife’s vagina.92 A
‘non-marital’ act violates the sixth mode of responsibility because, “by diverting
the couple’s sexual behavior and experience from the good of marriage in its
integrity”, it “damages that good and substitutes a merely apparent good: some
of the psychological satisfactions or sentient pleasures pertaining to marital sex
isolated from its wholeness. If such an act is chosen with the intent to impede new
life, it also is contraceptive, and so wrong because it violates the seventh or eighth
mode of responsibility.”93 Thus, a married couple might be able to engage in oral
sex if – but only if, and to the extent that – it is tied to the achievement of orgasm
by the husband through vaginal sex.94 Oral sex performed for its own sake and/or
involving orgasm is impermissible. Grisez stipulates that the married should not
seek sexual satisfaction with a person other than their spouse and, outside of the
‘marital’ act, should never choose to do anything to sexually stimulate themselves
(including masturbation) or others, nor seek complete sexual satisfaction.95
88 “Law, Morality, and ‘Sexual Orientation’”, id., pp. 1070–6; see also Finnis’s “Is Natural Law
Theory Compatible with Limited Government?”. An analogous recognition of the limits of legal
enforcement can be found in Robert George, In Defense of Natural Law, id., pp. 152–3.
89 “Law, Morality, and ‘Sexual Orientation’”, id., p. 1076.
90 Robert George, In Defense of Natural Law, id., pp. 139, 153. For the new natural lawyers’ public
role in these regards, see Franklin Foer, “Brain Trust”, The New Republic, 14 November, 2005,
at 6; Charles Colson, et al., “Evangelicals and Catholics Together: The Christian Mission in the
Third Millennium,” First Things, May 1994, pp. 15–22.
91 J.I. Merritt, “Heretic in the Temple: Robby George once worked for George McGovern; now he’s
the hero of the intellectual right”, Princeton Alumni Weekly 8 October 2003.
92 The Way of The Lord Jesus: Volume Two, Living A Christian Life, id., p. 646.
93 Id., p. 646. 94 Id., pp. 641–2.
95 Id., p. 643; compare, in relation to masturbation, pp. 646–7 and 642.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 247
Restrictions on the unmarried (both straight and gay) are total: According to
Grisez, they “Should Never Engage in Any Sexual Act”,96 given that it will “in one
way or another . . . violate the good of marriage, that is, the good of fully personal
one-flesh communion realized in true marital acts.”97 Four types of ‘complete’
sexual act – that is, one in which someone seeks orgasm – are thus described
as wrong for the unmarried: adultery (intentionally havingsex with a married
person), masturbation (an unmarried person intentionally thinking, doing, or
undergoing something other than vaginal intercourse in order to bring about
orgasm), ‘fornication’ (an unmarried man and unmarried woman engaging in sex,
intending at least that the man ejaculate in the woman’s vagina), and ‘sodomy’
(unmarried men choosing to engage in oral or anal sex, intending that at least one
of them ejaculates inside the other’s body).98 Other types of sexual act involving
the unmarried (including lesbian sex) are apparently “reducible” to one or more
of the last three types of act, having “essentially the same moral character”.99 We
will focus here on the last three categories.
In relation to masturbation, Grisez suggests that when choosing to masturbate,
a person does not choose to act for a goal which fulfills them as a unified, bod-
ily person. Instead, the body is used as an extrinsic instrument, given that the
only immediate goal is satisfaction for the conscious self. In consequence, “in
choosing to masturbate one chooses to alienate one’s body from one’s conscious
subjectivity . . . a specific kind of self-disintegrity, and, since choices determine
the self unless and until the person makes another, incompatible choice .. the
choice of self-disintegrity damages the basic good of self-integration. But choosing
to damage any basic human good violates the eighth mode of responsibility, and
so is always wrong. . . . Therefore, to choose to masturbate is always wrong.”100
Furthermore, masturbation “damages the body’s capacity for the marital act as an
act of self-giving which constitutes a communion of bodily persons. . . . Thus, mas-
turbators violate the good of marital communion by violating the body’s capacity
for self-giving.”101
The same is, it seems, true of acts of ‘fornication’. Even if an unmarried hetero-
sexual couple intends to marry and only engages in the type of sex acts permissible
for married couples (and perhaps even has a baby as a result), “they do not make
the marital commitment essential to the complete realization of the good of mar-
riage”.102 This is because the part of the marital communion which they choose –
“[s]exual mating”103 – is not an intelligible good outside of the good of marriage.
It “contributes to an intelligible good, which fulfills persons, only insofar as it is
one element of the complete [marital] communion by which a man and a woman
become, as it were, one person.”104 Grisez speculates that the immediate motive
96 Id., p. 649.
97 Id., p. 649: Grisez notes that other goods are possibly harmed as well.
98 Id., p. 648. 99 Id., p. 649.
100 Id., p. 650. 101 Id., pp. 650–1.
102 Id., p. 651. 103 Id., p. 651.
104 Id., p. 652.
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248 Patriarchal Religion, Sexuality, and Gender
of an unmarried couple’s choice to have sex cannot be the good of marriage:
Instead, it is merely an emotional desire to share in the experience of intimate
communion and, in “choosing to act on that motive, they ensure that whatever
experience of communion they achieve is only illusory, not an experience of the
reality in which they are interested.”105 In consequence, their choice violates the
sixth mode of responsibility, since it is a choice to act for the appearance of a good
rather than its actuality. Grisez also describes such sexual activity as masturbatory:
a use of the body for pleasure, and one which may hinder rather than help true
friendship between the couple.106
Finally, we are told that “Sodomites use their bodies in a self-defeating attempt
at intimacy”.107 Grisez is willing to concede that, “Like everyone else, sodomites
have sexual urges and a natural inclination toward intimate, one-flesh commu-
nion”,108 so that their motivations and choices are similar to those of ‘fornicators’.
He also asks whether, if sodomy is seen as a natural inclination and the only
sexual choice open to some people – i.e., gay men – as a way of expressing inti-
macy (after all, gay men cannot bring their sexual activity within Grisez’s good
of marriage), it can really be seen as involving the choice of an illusory good
instead of a real one. Grisez’s answer again relies on the idea of ‘one-flesh union’.
He suggests that while partners of the same sex “could conceivably share in a
committed relationship with sincere mutual affection and express their feelings
in ways that would be appropriate in any friendship”, nonetheless “the coupling
of two bodies of the same sex cannot form one complete organism and so cannot
contribute to a bodily communion of persons. Hence, the experience of intimacy
of the partners in sodomy cannot be the experience of any real unity between
them. Rather, each one’s experience of intimacy is private and incommunicable,
and is no more a common good than is the mere experience of sexual arousal and
orgasm. Therefore, the choice to engage in sodomy for the sake of that experience
of intimacy in no way contributes to the partners’ real common good as committed
friends.”109
Grisez goes on to suggest that a gay couple cannot claim that sodomy can
appropriately be chosen, despite its lacking in ‘one-flesh union’, as a way to com-
municate goodwill and affection: for gay men do not choose to have sex just as a
more expressive way to communicate affection than might be possible via conver-
sation. Instead, he suggests, the sexual act is chosen because it provides subjective
satisfactions that are otherwise unavailable. In consequence, “while sodomites
may not choose, as fornicators do, an illusory good instead of a real one, they do
choose to use their own and each other’s bodies to provide subjective satisfac-
tions, and thus they choose self-disintegrity as masturbators do. Of course, while
masturbators can be interested exclusively in the experience of sexual arousal and
105 Id., p. 652. 106 Id., p. 653.
107 Id., p. 653. 108 Id., p. 653.
109 Id., p. 653, emphasis added.
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Substantive Appeal (2): New Natural Law, Sexism, and Homophobia 249
orgasm, sodomites also are interested in the illusion of intimacy.”110 In conse-
quence, “those who engage in sodomy can be interested in some aspects of the
good of marriage, including satisfaction of the inclination toward sexual intimacy
and, perhaps, ongoing partnership in a common life. However, in choosing sexual
intercourse for its subjective satisfactions, sodomites violate the body’s capacity for
self-giving as masturbators do. At the same time, in choosing to act for an expe-
rience which they know cannot fulfill that capacity, they act on their inclination
toward one-flesh communion in a self-defeating way, and in this respect sodomy
is similar to fornication, though more unreasonable.”111
We argued in Chapter 4 that this scheme of proscribed and permissible sexual
acts makes no real sense in the absence of an underpinning scheme of religious
belief. Furthermore, Grisez places frequent and considerable reliance on reli-
gious authority when setting out his arguments.112 Finnis, meanwhile, describes
the good of marriage in wholly religious terms: “Unless God had created sex,
and thus familial relationships, we could not begin to understand the mean-
ing of ‘Father’,