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Nathaniel Frank

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Gay Rights and the Natural Law Farce

Posted: 12/21/09 11:34 AM ET

For years now a culture war has raged between liberal rationalists and religious dogmatists over whether homosexuality should be treated equally by civil law. Having lost ground in recent years as young people grow up in a world far more familiar with the banalities of what it really means to be gay, the right wing has begun taking careful steps to re-brand its homophobia as a rational, secular position, instead of the sectarian prejudice that it is.

This is the latest project of the Princeton professor, Robert George, profiled in this Sunday's New York Times magazine. It's a dangerous trend, and a starkly immoral one, as credentialed, highly educated people who should know better lend their social science credentials to the sloppy thinking and outright bigotry of those who are unable or unwilling to challenge their own dogma.

George is a rising conservative intellectual, counselor to Catholic bishops and Republican presidential contenders, and chair of the board of the National Organization for Marriage, founded in 2007 to oppose the right of gays to marry. Most recently he penned the "Manhattan Declaration," a call to action for modern Christians to oppose abortion and gay marriage. It was signed by over 150 top Christian and conservative leaders. In this document and elsewhere, George roots his argument against gay marriage in what's called the "new" natural law--"invoking no authority beyond the authority of reason itself." But the only thing new about it is the brazenness of George's effort to claim a monopoly on human reason.

Natural law has meant different things over the centuries, but today it most commonly means deriving moral value by looking to nature. It doesn't mean that everything that occurs in nature is good, a common misunderstanding of natural law that's easily clarified by considering that disease, the cruelty of the jungle, and death are all natural but that doesn't make them good; but natural law does involve walking a rational path from empirical observation to moral valuation: we might observe that certain human goods are empirically desirable--friendship, knowledge, life itself--and reason from that observation to the assertion that they are therefore morally right, along with other acts that serve those ends. Since life is a good, the procreative act is morally right since it produces life, and so is an institution like heterosexual marriage, which blesses the procreative act. Using the body for anything else, or privileging a relationship characterized by non-procreative acts, becomes morally wrong by default.

If this sounds fishy to you, it's not because I'm doing an injustice to natural law theory, or even so-called "new" natural law. It's because a Princeton University professor has succeeded at pulling the wool over thousands of educated eyes by passing off his personal, religious beliefs as "invoking no authority beyond the authority of reason itself."

George and other proponents of natural law believe that nature endows humans with reason, and all you have to do is consult that reason to know that, just as a stone falls by gravity, homosexuality is morally wrong.

But there are (at least) two main problems with natural law reasoning as the basis of public policy. First is that it is utterly circular: it relies on broad agreement about what is a human good, from which natural law theorists deduce morally right action as anything that leads to that good; but how do we decide in the first place what is a moral good? Conservatives might posit that human goods include procreation or religion, while liberals might include tolerance, pleasure, or equality. That this latter good was Thomas Jefferson's top "self-evident" good when he wrote our founding natural law document, the Declaration of Independence, does not seem to convince conservatives like George that gay people should be included in the enjoyment of equality. Most of us may agree on friendship or knowledge as human goods, but the test of a good theory is whether it's applicable when the tougher stuff comes into play. Natural law fails this test, as it's totally incapable of actually answering the question of how nature or reason resolves the question of what is morally good.

The second problem is that the link that natural law makes between observation and valuation relies on privileging one natural act over another as your starting point, and insisting that act is supreme, to the exclusion of other acts that some view as good. Those like Freud and George, who apparently view the world through a telling prism of sexual fixation, choose the procreative act as supreme. They reason that this act is central to the "biological good of the whole," as George puts it, and is therefore morally good for individuals to engage in. (Of course, it's only deemed moral if you're married, and while I don't have room to address this here, note that conservatives use a bait-and-switch to toggle sloppily between marriage and sex, which really must not be used interchangeably.) The trouble is that urinating is also central to the biological good of the whole, because if we didn't eliminate waste, we'd all perish. But we don't hear much about this in natural law. Instead, we hear that the penis was naturally designed for procreation, so the only morally proper use of it is an act that leads to procreation (or resembles an act of procreation, if you're straining to give straight, infertile sex a moral pass). Yet since the penis was also designed for urination, why not claim its only moral use is anything that involves wetting the bed? By natural law reasoning, using your mouth to kiss instead of eat is unnatural and immoral, and should perhaps be illegal. Same for using your hand to shake someone else's, instead of restricting it to hunting, gathering, and feeding oneself. And so on.

Remember, it's not that anything that's natural is good; it's that nature provides humans with the tool of reason to know what's good and choose what's right. But this means we're back to square one. On what mystical "authority of reason" does George rest his claim that heterosexual intercourse is moral and homosexual intercourse is not? Indeed, where life gets tricky and tests natural law theory is when several things that our reason might judge to be "good" are in conflict. Once again our founding document, the Declaration, deems equality such a high good that it's first on the list and is considered worth killing for in a war of rebellion. So why is heterosexual intercourse, which is so messy, indulgent, and narcissistic (after all, what's more narcissistic than reproducing yourself?) a moral good, while equality for gay people is not? George waxes poetically about "bodily sharing," "sexual complementarity" and "one-flesh union," but he seems not to realize that his poetry is metaphor--could he actually be so confused as to think that heterosexual intercourse makes two people into one organism, literally? Could he really think that his own preference for male-female unions is an empirical fact that his own right reason recognizes while the rest of us are simply confused?

Pointing out the subjective dimension of morality does not mean resorting to anything-goes relativism. There are many other promising avenues of thought that might help us understand where our morality comes from and how we can strive to live moral lives, ranging from the genetic selection of altruism to faith in moral instincts. Reason certainly plays a role. But if we're going to use reason, let's use real reason, and not lean on our ivy-league credentials to pass off homophobia as genuine rationality.