The "New" Natural Law

Robbie George got what can only be called a source-greaser puff-piece from David Kirkpatrick in the NYT Magazine last weekend. He must have been delighted. For those of you somewhat befuddled by George's argument about natural law, it behooves me to direct you to Chapter 3 of The Conservative Soul where I argue, point by point, against its absolutism and indifference to the actual facts of nature. Among those facts: human reproduction requires the deaths of countless human beings if you count fertilized embryos as fully human; death itself has no absolute clear line in science the harder you look for it; conception itself is very difficult to demarcate exactly at a moment in time; non-procreative sexual acts are endemic in nature and human nature, just as homosexual orientation is ubiquitous; and on and on. For an excellent account of how science, especially neuroscience has also exploded George's Aristotle-Hume axis, see John Culhane here.

But my deeper point is actually an agreement of sorts: there does seem something intuitively right about seeing our "nature" as some sort of guide to the way we should live our lives. But this is the beginning of an argument, not an end to it. What do we mean by nature? How do emotion and reason interact? How precise and universal can we be in adducing morals from something as diverse and varied as the fruits of natural selection? How can we be sure we aren't smuggling in all sorts of pre-existing views of what nature is and what morality is when we declare something "unnatural"? How does an argument that designates an entire sub-section of humankind as inherently immoral square with the goodness of God's creation or the morally neutral power of Darwin's theory?

On marriage, it seems to me that George is right about something: heterosexual intercourse within marriage that begets children is a vital, sacred, wondrous and central fact of human life. I've never doubted that. I've never even argued that the sacrament of matrimony in Catholic tradition could be anything but heterosexual. Where I differ most from George is how one approaches the diversity of nature around this central - and largely civil - human institution.

George is selectively flexible on this (for an online discussion, see Jon Rowe's post here). He can see oral sex, for example, as okay even if it is not procreative, as long as it is somehow integrated into the procreative, i.e. foreplay. He is even prepared to endorse the sex lives of the infertile or post-menopausal, although both groups obviously have no natural way to procreate by sex. Why? Because they are engaging in something he calls "procreative in form," as long as he is on top and rubber-free. If it looks like heterosexual procreation, even if it actually isn't, it's kosher. Maybe if a man and a man had sex with one dressed as a woman and retained rigid gender roles, they might squeak through George's "procreative in form" loophole. But one suspects the loophole is there not to express compassion for the straight but to retain an iron-clad exclusion for the gay.

If the whole thing sounds like convenient sophistry to you, you're not alone.

In fact, it is very hard to see what George's argument means unless it can be reduced to the idea that sex for the infertile is moral merely because they are heterosexual, and that sex and love for homosexuals is immoral merely because they are homosexuals.  So sexual orientation is the critical category here, not procreation or nature as it is actually found, and the result is to retain a stigma and legal discrimination against homosexuals - simply because they are what they are.

But what of gay existence in every culture, every place, every era of human history? What of same-sex orientation that is, as even the Vatican has conceded, innate? What of the prevalence of homosexuality across so many natural species? If anything looks like a natural fact of human nature, it is this resilient and fascinating drop-shadow on heterosexuality normativity. You'd think that Christian scholars would be intrigued to figure out the questions - what are homosexuals for? why did God create them? why did natural selection favor their persistence? And yet, for the new natural lawyers, these obvious questions never seem to arise. Because homosexuals are not objects for open-minded inquiry for these fellows; they are objects to maintain hostility toward. To advance this project, they have no interest in the new genetics of homosexuality, or the varieties of its expression across the ages, or the gayness of many saints and Popes; they just have a class of people to be categorized as "objectively disordered" and discriminated against for their own good.

It is this exceptionalism that exposes the core prejudice gussied up as reason that lies behind some, but not all, natural law reasoning. And it is this exceptionalism and hostility to the diversity of God's actual creation that strikes me as arrogant and wrong and un-Christian. It would be wrong and un-Christian if it merely applied these arcane ideas to everyone; but to infer that these arguments demand that a tiny minority of people must thereby be designated beneath civic dignity and family security makes this worse than un-Christian. It makes it evil.