By Steve Peterson | 26 February 2014
The Freethinker’s Distillery
“The jurists of natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.”
—Oliver Wendell Holmes, Supreme Court Justice, “Natural Law” (1918)
In their battle against gay rights, conservative Christians deploy two primary weapons: divine law and natural law. Divine law usually just means the Bible, where commands against homosexuality are relatively easy to come by, provided one is willing to cherry-pick the Old Testament or perhaps remove passages from their proper context in the New Testament.
Admittedly, scholars of goodwill differ on what the Bible has to say about homosexuality, but I suspect many are influenced by their own church traditions and their personal worldviews. Liberal Christians make a reasonably convincing case in favor of a Bible that does not condemn same-sex relations between consenting adults (click here for an example). At the same time, it would seem a bit dodgy for anyone to suggest that all was well for homosexuals in biblical times. Since the Bible exerts no authority over my thinking about gay rights, I’m ambivalent about the debate and will leave that battle to those better versed in biblical literature. Later in this essay, however, I will briefly revisit the subject of divine law and the Bible. For now I want to focus on the weapon of natural law.
The natural law argument against homosexuality generally follows the line of reasoning found on the conservative Roman Catholic website Catholic Answers (click here):
People have a basic, ethical intuition that certain behaviors are wrong because they are unnatural. We perceive intuitively that the natural sex partner of a human is another human, not an animal.
The same reasoning applies to the case of homosexual behavior. The natural sex partner for a man is a woman, and the natural sex partner for a woman is a man. Thus, people have the corresponding intuition concerning homosexuality that they do about bestiality—that it is wrong because it is unnatural.
Natural law reasoning is the basis for almost all standard moral intuitions.
Leaving aside the staggeringly offensive comparison to bestiality, an obvious rejoinder to this declaration is (ahem!): nature itself is replete with examples of species that practice homosexuality. In fact, it’s so common that one could argue the phenomenon is a perfectly “natural” occurrence within the animal kingdom. According to one study, as many as 1,500 animal species practice homosexuality (click here). Apparently it’s most common among herding groups and is found among highly intelligent species including chimpanzees and dolphins.
So what? One could argue that homosexuality among animals only confirms how nature can go awry, just as when humans are born with birth defects. Okay, but then why argue for morality from the premise of nature at all since it appears to operate rather unreliably? As Seinfeld’s Kramer said, “Mother Nature is a mad scientist!” The point is, through the observation of nature the argument can go both ways (no pun intended). We might also think about monogamy in a similar fashion. After all, there are many species of animals (including a fair number of human animals) that find monogamy to be an “unnatural” state of existence.
Natural law offers the opponents of gay rights a rather potent weapon because of its long historical tradition and its pseudo-scientific appeal to commonsense. Until the 20th century it was considered the foundation for jurisprudence. Its pedigree stretches back to the ancient Greek Stoics and was later articulated by the brilliant Roman philosopher Cicero, who lent gravitas to the idea of innate natural rights. Natural law as a philosophy—for so it should be viewed—was assimilated into Christian thought most eloquently by Thomas Aquinas, becoming, among other things, the basis for natural theology or Thomism.
Thomists believe that knowledge of the supernatural is at least partially accessible through reasoning that begins from the observation of nature. It may also be called “theology from below” to contrast it with the Reformed tradition of presuppositional apologetics or “theology from above.” (Oh the places theology degrees will take you!) From Aquinas came the various rational arguments or proofs for the existence of God, still a staple of ardent defenders of the faith.
In modern times, natural law and natural theology were institutionalized into Western thought during the 18th-century Enlightenment. English deists, French philosophes, and Scottish commonsense realists took their cue from seminal thinkers of the 17th-century such as John Locke and Isaac Newton. The Enlightenment unleashed “reasoning from nature” upon nearly every aspect of human existence, resulting in “self-evident” truth. Recall that Thomas Jefferson’s phrase “the laws of nature and of nature’s God,” a thoroughgoing statement of natural law reasoning, enshrined the principles of the Enlightenment into the American canon of democracy. And what loyal American dares to question the reasoning behind the Declaration of Independence? Well, with all due deference to Mr. Jefferson, may I?
Taken at face value, natural law appears sensible. Hell yes, one might justifiably reason, it’s certainly “unnatural,” based solely upon family heritage, for anyone to rule as king over me! That was, quite simply, the rationale behind the American Revolution. (See Tom Paine’s pamphlet “Common Sense.”) Favorable outcomes may be achieved even if the reasoning used to arrive at them is somewhat flawed.
Now I’m not suggesting the study of nature tells us nothing about the human condition or how it might be improved. Since humanity is part of nature it tells us much about why we behave as we do. The problem arises when reasoning from nature, void of proper scientific inquiry, becomes the basis for building philosophical or religious systems which are then used to mandate human behavior. Commonsense reasoning from nature can often be wrong or, at best, inconclusive. (Click here for my previous post about how Enlightenment thinkers came to opposite conclusions about politics, theology, and human progress by reasoning from nature.) Once upon a time, through commonsense observation of nature, everyone knew the sun revolved around the earth, right? I mean, you can literally watch the sun “rise” and “set.” (But please don’t do that with the naked eye!) And once upon a time it was obvious to certain white people that slavery was the divinely appointed and natural state of black Africans. To borrow the phrase of our conservative Catholic friends, you might say they “perceived intuitively” that whites were “by nature” the masters of blacks.
In previous centuries, other conditions related to race and gender were also brought under the scrutiny of natural laws. Was it natural for different races to marry? Could slaves be educated? Should African-Americans be treated equally under the law and have equal access to public spaces? Are women allowed to vote? Is it natural for a woman to work a job or must she remain at home with the children? No, according to the laws of nature and commonsense (and the Bible too!) was the answer frequently given to such questions by thinkers in the past—and by a few naturally reptilian thinkers in the present.
The truth many conservatives cannot or simply will not accept is that human morality has almost always adapted to culture. If there are absolute values present at all times such as love, life, justice, and equality, the ways in which society interprets them has always been, and likely always will be, in a state of flux. Certainly with respect to women and minorities, history demonstrates that most people now view as immoral, and perhaps even unnatural, conditions once thought to be otherwise. One might even argue that through “ethical intuition” such ideas regarding equality of the races and the sexes can be “perceived intuitively.” But that may be a case of arriving at a good outcome through flawed reasoning.
As an example of evolving values, let’s return for a moment to Jefferson and the Declaration of Independence. For my money the American experiment was certainly an example of a more advanced concept of governance. But the natural, God-given rights of life, liberty, and the pursuit of happiness of which Jefferson wrote were in 1776 intended almost exclusively for wealthy, white-male landowners. Everything we know about the early decades of the new nation tells us that is true. Such a condition was based in part on the ethical intuition of the American founders, most of whom were of the wealthy planter class. Such things were considered to be self-evident truths. Only an evolving and more inclusive concept of social morality, brought about by concerted activism, eventually extended the lofty creed to others—first to underclass white men, later to women and minorities, and now, increasingly, to gays.
The (not so) dirty little secret of history, at least post-Middle Ages, is that the church world also tends to adapt and evolve in order to accommodate the dominant cultural currents in society. It has been a primary means by which Christianity has remained a constant fixture. You might even say the institution is “Darwinian” because it is so adept at survival by adaptation. (OUCH!) Eventually the bigoted experiments of anti-gay legislation, masquerading in state assemblies under the guise of religious liberty, will have run their course and will lie in the gutter dead. Then the greater part of mainstream Christianity will likely adjust to the new reality.
Think about it, no one these days would use the Bible or natural law to promote racism. (Yeah, yeah, the reptiles, I know! I know!) And apart from Roman Catholics, Southern Baptists, and a few smaller conservative bodies, most Christian denominations now accept the full equality of women as practitioners and leaders of their faith. Several already welcome and ordain openly-gay members. Most trained theologians speak of biblical references to female inequality as cultural relics of the past, intended largely for the period they were written. If we consider the rapid pace with which gays are finding acceptance in American culture, it’s not difficult to imagine a time not far off when a majority of Christians will relegate the “anti-gay” verses to a similar fate. Many, of course, already do.
Like it or not, human society has evolved morally on a number of fronts. Gay rights are merely the most recent example. There exists a growing chorus, comprised of believers and non-believers, gays and straights, who now sense that it is wrong for society to discriminate against the LGBT community or to deny them the legal right to marry. Like President Obama, many of us, myself included, have had to evolve on the issue. Those who disagree with my assessment will undoubtedly respond that without divine law (the Bible) and natural law there is no basis for morality. It’s the slippery slope argument. Are we not left to drift, they will say, with only humanism and moral relativism as our guide? The answer is more complex, but, simply, no. Humans have an evolved sense of empathy and cooperative justice that will continue to guide us to the degree that we allow it to operate.[**]
Of course the necessity of biblical law in society is easy to dismiss when we consider that thriving ancient civilizations, with advanced moral codes, were built without the aid of either the Old or New Testaments. China and India come to mind. As for natural law, it cannot be a reliable guide for human morality for the reasons I have stated.
I believe Oliver Wendell Holmes’ words from 1918, although directed at the legal profession, are well heeded now in the controversy over gay rights. Those who appeal to the laws of nature in order to discriminate are “in a naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.”
[**]End Note: The question of the basis for morality apart from divine and natural law is a topic for another day. In the meantime, I refer you to the Dalai Lama’s profoundly enlightening book on the topic: Beyond Religion: Ethics for a Whole World.
Reprinted with permission from the author.
Steve Peterson has been a collegiate educator in the U.S. for over twenty years and holds a Ph.D. in History from the University of Stirling in Scotland. He blogs about history, religion, and politics in the context of contemporary culture.
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