The New Natural Lawyers

Editors' note: Kenan Professor of Government Harvey C. Mansfield Jr. '53 made his recent controversial statements about homosexuality when he testified in the Denver trial of the Colorado state constitution's Amendment Two. The plaintiffs in this trial seek to prove the amendment--a statute which prevents cities from including homosexuals specifically in civil rights laws--is unconstitutional. Mansfield testified for the state, which seeks to uphold the amendment. In the same trial, Associate Professor of Government Steven Macedo filed a deposition in support of the plaintiffs. The following is a slightly revised form of Macedo's expert witness testimony.

Given the tenor of Harvey Mansfield's remarks about homosexuality, it is worth noting that the most prominent contemporary natural lawyers (at least within the Catholic tradition--John Finnis of Oxford, Robert George of Princeton, Germain Grisez) do not single out homosexuality for special condemnation. They deny, indeed, that homosexual acts are unique in being distractions from real human goods, or in justly being subject to legal discouragement.

These "new natural lawyers" (as they style themselves)--whose arguments with respect to homosexuality are less sensational but more elaborate than those of my deservedly famous colleague--strikingly treat gay and lesbian sexual activity just like most forms of heterosexual activity: just like all recreational sex, all sex outside of marriage, all contracepted sex and sex not open to the good of procreation, including all contracepted sex between married couples. Finnis and George were, indeed, among the expert witnesses who testified in Colorado (and what follows is based on my own written testimony against Finnis.).

When Harvey suggests that sexual activity among gays and lesbians is a prescription for unhappiness and frustration (as he is reported to have said) he echoes the natural law contention that procreation is a uniquely integrating point of the goods of married life. Openness to new life within stable, permanent marriage is what gives sex meaning: It makes sex more than the mere use of bodies for pleasure.

The question is, does Harvey endorse the extremely broad prohibitions on "recreational" sexual activity of Finnis, Grisez and company. For them, all non-procreative, recreational sex amounts to the mere instrumentalization of bodies for mutual use and pleasure, all are the moral equivalent of mutual masturbation: not only valueless but distractions from real human goods. With a surprising broadmindedness, the contemporary natural lawyers who have written extensively on sexuality regard homosexual acts as the moral equivalent of contracepted sex in marriage. Does Harvey agree?

Indeed, this "natural law" case against recreational heterosexual sex may be even stronger than that against gay sex. Uncontracepted heterosexual sex risks the great evil of bringing unwanted children into the world. Even when effectively contracepted, it is a choice against the great good of new life. Gay sex does not share in either of these evils. The new natural lawyers allow that people may be gay by nature, and so the goods of procreation and child-rearing are not open to them. Gay sex is not, then, a choice against the great integrating goods of heterosexual marriage (as are wrongful heterosexual acts) because these goods are not open to gays.

The wrongfulness of gay sex is merely its "self-disintegrity:" the purported failure to act in a way that is consistent with a desire for the real goods that stable homosexual couples may share in common, goods such as friendship and mutual helping. Real goods can be embodied in homosexual friendships, but sex only distracts from them. When sex is chosen it is chosen as a source of "subjective satisfactions" through the "use [and] instrumentalization of each other's bodies."

One important service of the new natural law is that it reveals the gross and unreflective arbitrariness of public policies and proposals that--in the name of family values--fix their scornful attention on gays and lesbians. What could be easier--in the face of rampant heterosexual promiscuity, premarital sex, teenage pregnancy, and skyrocketing divorce crates--than to fasten our attention on a long-despised class of people who bear no children?

The new natural law shows that on reflection such attitudes embody a double-standard of permissiveness toward straights and censoriousness toward gays engaging in acts that are essentially the same. Contracepted sexual acts between happily married couples are essentially the same as homosexual sodomy.

An important implication of all this is that to the extent that the state has an interest in discouraging homosexuality on natural law grounds, it has an equal interest in acting against all premarital and contracepted sex. To the extent that the state has no interest in discouraging the use of contraception, it has no interest in discouraging homosexuality. Contracepted heterosexual sex, like homosexuality, is not open to the good of procreation and so must lead to unhappiness and frustration.

Of course, the basic premise on which all this rests is slightly wacky: namely that all sex divorced from procreation (or openness to procreation) is valueless. It may well be that promiscuous, casual sex, engaged in with strangers tends toward the utterly valueless and distracting. It is implausible and simplistic, however, to portray every form of non-procreative sexuality as no better than the least valuable form.

There is one other problem with the new natural law's sexual teaching, namely, their allowance that sex between sterile, elderly, or otherwise infertile couples has intrinsic value. The reason seems to be that infertility is a condition, not a choice against the good of procreation and new life. But these natural lawyers allow that homosexuality is also an unchosen condition, so what's the difference? If infertile heterosexual partners have sex, it is for pleasure and to express their love, or friendship, or some other shared good.

It will be for precisely the same reasons that committed, loving gay couples have sex. Why are these good reasons for sterile or elderly married couples but not for gay and lesbian couples? In effect, gays can have sex in a way that is open to procreation, and to new life. They can be, and many are, prepared to engage in the kinds of loving relations that would result in procreation--were conditions different. Like sterile married couples, many would like nothing better.

All we can say is that conditions would have to be more radically different in the case of gay and lesbian couples than sterile married couples for new life to result from sex...but what is the moral force of that? The new natural law does not make moral judgments based on natural facts. It is hard to see how this double-standard can be reconciled.

Arguments like those described above could give natural law a bad name. That would be unfortunate. To reject unreasonably narrow and arbitrary strictures on sexuality should not lead us to embrace a completely "non-judgmental" attitude with respect to sexuality. Reasonable elements within the natural law tradition constitute good grounds for public measures to elevate and improve our sexual lives--both for our own good and the good of society.

Sexual desire can be a problem. The self-control and character-development crucial to a healthy and happy life benefit from social support, such as the inducements to stability that flow from the institution of marriage. Extending marriage to gays and lesbians is a way of allowing that the natural lawyers are not all wrong: promiscuous gay sex may well have the distracting and valueless character that the natural lawyers describe.

We have legitimate public reasons to favor certain institutions that help order, stabilize and elevate sexual relations. But we should offer these inducements even-handedly to all whose real good can thereby be advanced: we offer them to the elderly and the sterile, to gays and lesbians, and not only to fertile hetero-sexuals. We provide everyone with help to stabilize and elevate their sexual relationships, and so achieve the benefits that natural lawyers rightly claim for marriage. This allows us to accept and deploy a reasoned and defensible version of natural law.

My colleague has, once again, bravely extended the bounds of what can be said on college campuses. Hopefully, those who disagree with him can now participate in the sort of reasoned discourse that he surely hopes to provoke.