Natural Law: Part 4

More Holes and Weaknesses in Natural Law and the future for sexual love
Part 1 dealt with the Natural Law.

Part 2 considered the male and female perspectives of Natural Law and the Church’s teachings on sexual morality, and recent learning from experts in evolution.

Part 3 considered examples of the world’s expertise in science and learning relating to the Church’s sexual morality teaching and assessed the Church’s teaching in the light of these critiques, and its response.

Now in this final section, Part 4, we consider more expert criticism of the use of Natural Law and Church’s sexual morality teachings about homosexuality. We critically assess what is called “New Natural Law” and its treatment of homosexuality. We conclude by examining Thomas Aquinas’s Homosexual Deception, and how this reinforced the Catholic Church’s treatment of homosexuality as a grave sin. The Church now needs to reassess whether it is transmitting the Truth about sexually expressing love in human relationships.

Natural Law and Homosexuality

Natural Law and Homosexuality are discussed in Stanford University’s Encyclopedia of Philosophy and this finds significant holes in the Catholic Church’s defence of its current Natural Law teaching. It’s clear that when Natural Law can’t defend the Church’s teaching it falls back on what it claims ‘God says’ to rescue the argument. We hear from some fresh contemporary experts, ones we did not meet in part 3. ¹

Sterile marriages and homosexual relationships

The Church makes procreation the ‘natural fulfillment’ of marriage, but this denigrates sterile marriages where one or both partners is infertile, and also devalues vaginal sex within marriage after a woman’s menopause. Yet vaginal sex within sterile and post-menopausal marriages is not morally wrong and the Church agrees these marriages are perfectly valid and acceptable. Why, people reasonably ask, is homosexual sex in the same context wrong (in a long-term committed relationship, such as a civil partnership, or lesbian or gay marriage)? ²

The Natural Law response to any suggestion that sex within lesbian and gay marriages and civil partnerships should be allowed, is to defend the Church’s teaching by saying that while vaginal intercourse within a sterile marriage is potentially procreative (considered in itself),  sex within same-sex relationships is never potentially procreative. ³

But is this biological distinction also morally relevant and persuasive, and in the way that Natural Law theorists assume?

Is this relevant and persuasive?

The Vatican and other orthodox Christians have no alternative left but to resort to tradition and interpretations of scripture to try to support natural law; they must respond that it’s because ‘God said so’ and only (even if just theoretically) procreative vaginal sex within a heterosexual marriage is ‘natural’ and ‘ordained’ by God.

Saying sex can only ever be within a heterosexual marriage because ‘God said so’, is not a Natural Law argument, it’s just based on interpretation of scripture. If you are secular, or don’t accept those scripture interpretations, that’s unpersuasive.

The Natural Law defence is particularly flimsy, because this says that the only permissible sex Natural Law ever permits is vaginal sex; but the key procreative part is irrelevant for infertile or post-menopausal couples. Asserting Natural Law to restrict sex to vaginal only appears really weak; this is more a matter of Church tradition, based on Aquinas’s reasoning.

If you insist it is from Natural Law, that requires a simplistic and particularly restrictive doctrinaire view of Natural Law that has been adopted by the Church and rigidly adhered to.

When the couple are infertile or post-menopausal, the Church attempts to include the theoretical procreativity as well, but that is an appeal for a miracle. [This happened only once in the New Testament. Barren and elderly Elizabeth, the wife of Zechariah, nonetheless had a miraculous son, John the Baptist. Zechariah was visited and informed of this by an angel (Luke 1, 6-7, 13-15)]. The Church doesn’t teach post-menopausal women or infertile couples to expect a miracle of procreation, as a justification for having vaginal sex.

The Church refuses to allow assisting fertility with things like IVF. Natural Law is behind that.

Loving unions and secular Natural Law
Secular Natural Law theorists, when they consider infertility or post-menopausal marriages, waver and oscillate. On the one hand, they want to defend an ideal of marriage as a loving union wherein two persons are committed to their mutual flourishing, and where sex is a unitive complement to that ideal. Yet that opens the possibility of permissible gay sex, or of heterosexual oral or anal sex, all of which they want to oppose.

Reductive fallback on procreation
So secular Natural Law theorists then must defend a version of human sexuality which seems crudely reductive, emphasizing procreation to the point where literally a male orgasm anywhere except in the vagina of one’s loving spouse is impermissible, like orthodox Catholic teaching. Then, when accused of being reductive, they move back to the broader ideal of marriage.

Secular liberal ideas in modern natural law
So secular Natural Law theorists have now made significant concessions to mainstream liberal thought. In contrast to medieval times, most contemporary secular Natural Law theorists argue for little or no governmental intervention in sexual activity, and do not believe the state should attempt to prevent all moral wrongdoing.

Secular justification of discrimination and lesbian and gay exclusion
Some secular Natural Law theorists still argue against homosexuality, and some even argue there should not even be any anti-discrimination legal protection for gays and lesbians in areas like employment and housing; the most extreme have even served as expert witnesses in court cases and produced expert opinions for the courts in cases disputing the legal rights and protections of lesbians and gay men.

Where does this aversion to homosexuality come from, especially where this is also used to justify unequal treatment and discrimination? If the person is secular, then they can’t call on religion or its traditions for an explanation. Their gay aversion can only be based on a very simplistic heterosexual vaginal penetration view of sex, as proposed by Aquinas; anything else would allow heterosexual oral / anal sex and that makes excluding lesbians and gay men illogical. The only other possible explanation for such a restrictive conception of acceptable sex is secular homophobic prejudice. In the 21st century, for secularists to argue Natural Law only permits vaginal heterosexual sex is simplistic, anachronistic, and medieval, in the face of scientific studies of nature showing the biological abundance of diverse sexual behaviour patterns and the blurring of gender roles.

Catholic teaching forbids unjust discrimination
The Catholic Church certainly opposes ‘unjust’ discrimination against homosexuals, and states clearly that a homosexual orientation is never a justification for this.

                           ooops! Do what the Church says not as I do, please people

The Stanford Encyclopedia says some secular Natural Law theorists, like the Catholic Church, argue against allowing gay and lesbian marriage equality, and it cites Gerard V Bradley [4] and Robert P George [5]. However it is clear neither of them are secularists arguing a secularist view; both are Catholic authors arguing a Catholic case.

Gerard V Bradley is a Catholic working at the Notre Dame Law School and contributed his essay to the Catholic Social Science Review. Robert P George wrote his essay “‘Same-Sex Marriage’ and ‘Moral Neutrality’”, using Catholic Natural Law and religious arguments. There is a detailed critique and summary of his essay here. There is nothing new here: both use arguments we have heard before in the Pastoral letter from the London Archbishops opposing lesbian and gay marriage, but these pieces are written for an academic audience.

The “New Natural Law” and homosexuality
Stephen J Pope has written an ethical analysis and critique of the Magisterium’s arguments against same sex marriage, which appeared in Theological Studies 65 (2004). [7]
This lengthy extract below is very helpful in critically understanding current Catholic Natural Law in relation to homosexuality:

                                 Natural Law, Homosexuality and Roman Catholicism book  

“The central concern of the natural moral law in relation to the state’s civil law is, of course, justice and related notions of human rights, fairness, equity, and the common good. The state does in fact “legislate morality” in some sense, but, as St. Thomas Aquinas held, the civil law cannot and should not enforce the entire natural moral law. [8]
The Magisterium does not advocate the civil law should make illegal all “homosexual activity”. The Magisterium restricts itself to preaching this activity is wrong, both inside and outside the Church.

New Natural Law
There are a variety of ways of interpreting natural law within Catholic theology, but the “new natural law” theory presents the most visible school of Catholic ethics engaged in the public debate over same-sex marriage.

The “new natural law theory” works from a key premise:

“In voluntary acting for human goods and avoiding what is opposed to them, one ought to choose and will those and only those possibilities whose willing is compatible with integral human fulfillment.” [9]

Individuals may never legitimately attack a “basic good,” including the “marital good.” [10] According to “new natural lawyers” Gerard Bradley and Robert George,

“Marriage, considered not as a mere legal convention, but, rather as a two-in-one-flesh communion of persons that is consummated and actualized by sexual acts of the reproductive type, is an intrinsic (or, in our parlance, ‘basic’) human good; as such, marriage provides a non-instrumental reason for spouses, whether or not they are capable of conceiving children in their acts of genital union, to perform such acts.” [11]

“Homosexual acts” are thus not ethically permitted because they are incapable of attaining this “one flesh unity”; in fact, “homosexual acts” merely create the “appearance” of true sexual intimacy.” [12]

The “new natural lawyers” in effect maintain that the “good of union” cannot be pursued unless the couple is also “open to procreation.” [Contraception is unacceptable].

The “new natural lawyers” recognize that the law should neither simply legislate the entirety of the moral law, nor outlaw all sexual acts such as contraception or fornication that violate the “marital good.” The purpose of civil law is to secure the conditions that “favor, facilitate and foster the realization by each individual of his or her personal development.” [13]

             New Natural Law: The State should do what it can to discourage gay life: Finnis

Finnis argues that the state has a “compelling interest in denying that homosexual conduct—a ‘gay lifestyle’—is a valid, humanly acceptable choice and form of life,” and that it ought to do “what it properly can . . . to discourage such conduct.” [14] Since the government is a teacher and the law has a pedagogical function, neither government nor law can remain “morally neutral” with regard to social institutions as important as marriage and the family.

Thus in some settings a government could be perfectly justified in imposing legal restrictions on “the advertising and marketing of homosexual services, the maintenance of places of resort for homosexual activity, or the promotion of homosexualist ‘lifestyles’ via public education and public media of communication,” [15] and so forth.

Objections to “New Natural Law”

The “new natural law” theory is vulnerable to two objections. First, it fails to build a logical case for its claim that accepting the ethical legitimacy of any and all “homosexual acts” necessarily implies that one regards sexual activity as nothing more than the pursuit of individual self-gratification. [16]

Its sweeping ethical condemnation of all intentionally non-procreative sex is excessively monolithic and undifferentiated.

As legal scholar Stephen Macedo points out, it is

“strikingly simplistic and implausible to portray the essential nature of every form of non-procreative sexuality as no better than the least valuable form.” [17]

The same habit of gross over-generalization is exhibited in its claims about gay people. It is a reductionistic exaggeration to epitomize the behavior of every gay person as driven by a “promiscuous, liberationist ‘gay lifestyle,’ which rejects all sexual restraints and value judgments.” [18] If this were universally the case, there would in fact be few gay activists lobbying for same-sex marriage. Gay people are more diverse, and in morally relevant ways, than is recognized by the “new natural law theory.”

Second, the “new natural law” argument does not take into account the concrete experience of gay people. Here it replicates the Magisterium’s oversight. It attempts to justify its position on the basis of a deductive argument and abstract philosophical analysis, but it cannot avoid making claims of a predictive nature about the real world, how people will act in it, and the probable consequences of their actions on their communities. This empirical dimension is especially important when considering moral arguments against same-sex marriage.”

Continuing evolution of attitudes and moral responses
We are still going through a period and process where attitudes and thinking about lesbian and gay marriage and behaviour are evolving and developing, in both secular and Christian moral philosophy. Both are heatedly debated in the USA, far more so than in the UK.

The significantly shifting public attitudes to lesbian and gay marriage illustrate sharply this ideological flux and the tension between liberal and conservative orthodox opinions. The tide has turned and is running generally, in most of the developed and nominally Christian world, in support of lesbian and gay rights and acceptance.

Thomas Aquinas’s deliberate deceptions about Sodomy [19]
As the conclusion to this series, it’s time to look into Thomas Aquinas’s homosexual deception, and how this reinforced the treatment of homosexual behaviour by the Church as a serious sin. This was referred to in the first post on Natural Law, when I described St Thomas Aquinas as a naughty deceptive moral theologian, because he buried and distorted some key passages in Aristotle to suit the Church’s historic hostility.

The background is that the Church has fairly consistently taught that some kind of sexual behaviour, which the Church now says are homosexual acts, was a serious sin (‘homosexual’ was a word only invented in the late 19th century); this is based on Romans 1: 26–27. St Paul’s words are taken together with passages in Leviticus which are understood to be also about homosexual acts.

But Leviticus was actually condemning other things. One was breaking a major Jewish and middle eastern social taboo by being inhospitable to your visitors and guests (Lot and his wife did this). Reform Jews see in another of Leviticus’s warnings: “Thou shalt not lie with mankind, as with womankind: it is an abomination”, a warning against temple prostitution, of Jews adopting the idolatrous fertility cults and practices of their Canaanite neighbours.

St Paul had been a strict Jew who actively persecuted the early Christians, converted but remained an authoritarian character. What he was actually condemning (in Romans 1 26) was the sexual abuse of male power and privilege: sexual acts by a more powerful, higher status male, imposing sex on a younger, lower status male. Among Greeks this was typically a youth who lived with an older man as a pupil and apprentice, learning to be a good adult male citizen. Among Romans, Paul was condemning higher status males imposing themselves sexually on their male slaves.

We only hear his condemnation about sex with other males. Sex with a woman would be the sins of adultery and fornication (sex outside marriage) which were bad, but not publicly shameful in Paul’s eyes.

St. Paul also instructed women to always cover their heads in Church, but the Catholic Church chooses to ignore that and now keeps quiet about it.

There was no such thing as ‘homosexuality’ or ‘homosexuals’, as we understand these in the Greek or Roman world at the time. Despite the claims usually made, and the wording of the translations commonly quoted, what St Paul was really condemning was male power abuse, through the sexual use of vulnerable males.

There was no culture of male couples preferring sex with each other, to sex with a woman; refraining from marriage to have a male partner was alien. So in religious and secular writing from this time and later, the references are always to acts, never to a “sexual orientation”, nor to “homosexuals”, which are modern concepts.

Both Roman and Greek pagan society vehemently derided and stigmatized behaviours such as male effeminacy, any adult Roman male citizen being penetrated by another citizen, or by anyone of a lesser status, particularly by a slave. The early Church inherited these pagan hostile attitudes and these linked into Judaic prohibitions in Leviticus. So early writings by Church fathers describe same-sex acts as sinful, and St Chrysostom in the 4th century described same sex acts as worse than murder. This condemnation of same sex behaviour continued in later centuries.

However, the historian John Boswell disagreed strongly with this account, and referred to the same-sex Church ceremony of adelphopoiesis, which united two people of the same sex as “spiritual sisters/brothers”, and Boswell argued this gave Church blessings to romantic and sexual unions. Others point out that the ceremony’s words say that it was not a carnal union, and that the union was a ceremony creating “blood-brothers”, and that is what the pictures of Saints Sergius and Bacchus together are depicting. However Saints Sergius and Bacchus were both referred to as erastai in ancient Greek manuscripts, the same word used to describe lovers. We won’t ever really know for sure because it was so long ago and we can’t know what happened in or out of bed.

Boswell, in his essay The Church and the Homosexual,  attributes Christianity’s denunciations of “homosexuality” to a supposedly rising intolerance in Europe throughout the 12th century, but the historian R W Southern disagrees: “the only relevant generalization which emerges from the penitential codes down to the eleventh century is that sodomy was treated on about the same level as copulation with animals.”

St Thomas has his say on homosexual acts [6]

It was shortly after this, in the middle of the 13th Century, that Thomas Aquinas produces his work where he distorted Aristotle, to support the Church’s condemnation of same sex acts.

Thomas Aquinas is responsible for the ‘sodomy delusion’. In a crucial passage of his major work Summa Theologiae (III, q. 31, 7) he falsified the material which he borrowed from Aristotle’s Nicomachean Ethics (VII v 34, 1148b).

In this, Aristotle had explicitly stated that sexual attraction to males (venereorum masculis) could be motivated either by nature (natura) or from habit (ex consuetudine).

In his commentary on this Latin translation of Aristotle, Aquinas dutifully reported Aristotle saying that acting on an attraction to the same gender could be ‘natural’: “from the nature of the physical constitution which [certain people] have received from the beginning” (ex natura corporalis complexionis quam acceperunt a principio).

But when he came to write his theological masterwork, the Summa Theologiae, he suppressed the fact that acting on one’s homosexual nature can be ‘natural’, and instead bluntly asserted that what is contrary to human nature (id quod est contra naturam hominis) may “become connatural to a particular human being” (fiat huic homini connaturale).

“Connatural” here does not mean “inborn” but applies to feelings that have fused with your personality, to be “second nature”. So Thomas is saying ‘unnatural homosexual behaviour’ can become ‘second nature’, which is not what Aristotle had said at all. So Aquinas fiddled his sources to fit the Church’s rules, to reinforce the Church’s teaching about same sex sin. He was writing a major theology book for the Church. If you did this at university now, you’d risk being failed for serious misrepresentation of your sources and academic deceit.

Later he manages another fiddle by adding something Aristotle never said, that “such corruption can be…for psychological causes” (quae corruptio potest esse…ex parte animae). Aquinas claims this involves “intercourse with animals or males” (in coitu bestiarum aut masculorum), which neatly fits the Church’s sin agenda by deliberately paraphrasing the Christian notion of sodomia (which then included both bestiality and any same sex behaviour).

Homosexuality as a theological problem
So Aquinas strongly reinforced homosexuality as problem for Christian theologians, who have, ever since, kept up the tradition that erotic attraction to one’s own sex is a choice that becomes second nature and therefore must be condemned as deliberate, unnatural, abnormal and pathological.

Aquinas gave the condemnation of same sex acts a proper scholastic context, making it a standard in moral theology and the Canon Law of the Roman Catholic Church, and this helped legitimise homophobic criminal laws and social discrimination for the last 750 years.

His authority appears unchallengeable, because the Council of Trent in the 16th century declared him a ‘Doctor of the Church’. The Church will want to avoid admitting a major Saint and Doctor of the Church made any error in writing about natural same sex attraction, a foundation stone of Catholic moral theology.

His theological conclusions help explain why the Church is reluctant now to reassess its teaching, when modern evidence and thinking calls for a serious review. Aquinas codified a teaching and reinforced a Tradition that was built on mistranslations and misinterpretations of Scripture, the pagan patriarchal roots of same-sex revulsion and exclusion, and the Church now chooses to disregard the wealth of scientific understanding about the flexibility and diversity in gender and sexual behaviour found throughout the natural world and different human cultures, and the changed world situation since 2000 years ago. The Church is discomforted because all this doesn’t fit the doctrinaire and simplistic construction which is the Catholic Natural Law for sexual behaviour.

Rather than recognise the weight of evidence calling for a thorough reassessment of whether the Church is actually transmitting God’s Truth and the message of Jesus in Gospels about sexually expressing human love, the Church is still sheltering within its comfort zone of old certainties. The Second Vatican Council made clear this is not good enough. The Church has found new understandings of the Truth before, including about slavery and usury. The Truth about the  sexual expression of love between people is its latest challenge.

Further Reading and References
¹ Pickett, Brent, “Homosexuality”, The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.),  and Homosexuality and Natural Law

² Macedo, Stephen, 1995, “Homosexuality and the Conservative Mind” Georgetown Law Journal 84: 261-300.

³ George, Robert P., 1999, In Defense of Natural Law. New York: Oxford University Press

[4] Bradley, Gerard V., 2001, “The End of Marriage” in Marriage and the Common Good. Ed. by Kenneth D. Whitehead. South Bend, IN: St. Augustine’s Press.

[5] George, Robert P., 2001, “‘Same-Sex Marriage’ and ‘Moral Neutrality’” in Marriage and the Common Good. Ed. by Kenneth D. Whitehead. South Bend, IN: St. Augustine’s Press.

[6] http://www.williamapercy.com/wiki/images/Aquinas.pdf

[7] Pope, Stephen J., 2004, The Magisterium’s arguments against same sex marriage: an ethical analysis and critique, Theological Studies, 65

[8] Aquinas, Thomas Summa theologiae 1–2, q. 96, a. 2, ad 3.

[9] Finnis, “Law, Morality, and ‘Sexual Orientation,”’ 1075, n.63.

[10] See Germain Grisez, The Way of the Lord Jesus, vol. 2: Living a Christian Life(Quincy, Ill: Franciscan, 1993) 651; and John Finnis, “Law, Morality, and ‘Sexual Orientation,”’ Notre Dame Law Review 69 (1994) 1049.

[11] Gerard V. Bradley and Robert P. George, “Marriage and the Liberal Imagination,”Georgetown Law Journal 84 (1995) 301–20, at 301–2.

[12] Grisez, The Way of the Lord Jesus 2.653. Finnis argues that sexual intimacy between two members of the same sex can by their very nature accomplish no more than what is expressed in casual sex, sex contracted with a prostitute, or solitary masturbation. (See Finnis, “Law, Morality, and ‘Sexual Orientation,”’ 1049, 1067.) Some critics of course object strenuously to this description of gay and lesbian sexual activity, but this debate need not be entered here. See Paul J. Weithman, “Natural Law, Morality, and Sexual Complementarity,” in David M. Estlund and Martha C. Nussbaum, ed., Sex, Preference, and Family: Essays on Law and Nature (New York: Oxford University, 1997) especially 239–41.

[13] John Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1980) 147.

[14] Finnis, “Law, Morality, and ‘Sexual Orientation,”’ 1070, emphasis in original text. See also Robert P. George, “’Same-Sex Marriage’ and ‘Moral Neutrality,”’ in Christopher Wolfe, ed., Homosexuality and American Public Life (Dallas: Spence Publishing Company, 1999) 141–53.

[15] Finnis, as [14]

[16] Weithman, “Natural Law, Morality, and Sexual Complementarity” 242–43.

[17] Stephen Macedo, “Homosexuality and the Conservative Mind,” Georgetown Law Journal 84 (December 1995) 261–300, at 282; emphasis in the original text.

[18] Stephen Macedo, as [17]

[19] http://www.williamapercy.com/wiki/images/Aquinas.pdf

Chris Morley’s complete series on natural law

• Natural Law Part 1:  Sex and Catholics introduced the Natural Law.
• Natural Law Part 2: Gender perspectives and evolution considered the male and female perspectives of Natural Law and the Church’s teachings on sexual morality, and recent learning from experts in evolution.
• Sex and Catholics 3: Vatican II and Modern Specialists considered examples of the world’s expertise in science and learning relating to the Church’s sexual morality teaching and assessed the Church’s teaching in the light of these critiques, and its response.
• Sex and Catholics 4: More Weaknesses in Natural Law considered more expert criticism of the use of Natural Law and Church’s sexual morality teachings about homosexuality and critically assessed what is called “New Natural Law” and its treatment of homosexuality.

Related articles

• Natural Law, Pure Reason and Vatican Jargon. (queeringthechurch.com)
• Sex and Catholics 2: Gender perspectives and Evolution (queeringthechurch.com)
• Sex and Catholics: the problems in Natural Law (queeringthechurch.com)
• Sex and Catholics 3: Vatican II and Modern Specialists (queeringthechurch.com)
• “Against Nature?”: Exclusive HETEROsexuality, and HomoPHOBIA.(queeringthechurch.com)