New Natural Law, Homosexuality and Religion (Part Two)

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John Finnis, one of the leading propoents of New Natural Law

(Part One)

This is the second (and final) part of my latest series on natural law and the ethics of same-sex relations. I’ve discussed this topic at length before. This series has a narrow focus. It is considering Bamforth and Richards’s argument (from their book Patriarchal Religion) that the new natural law argument (NNLA) against same-sex relations is inherently religious; that it cannot be embraced on purely secular grounds. This is significant in that several leading proponents of the NNLA (Finnis, George) argue that it can be embraced on secular grounds.

In part one, I explained what the NNLA was. I did this by first setting out the new natural law worldview. As noted, new natural law is a comprehensive ethical theory, consisting of a particular view of what kinds of things are valuable (basic goods) and how we ought to act in relation to those things (principles of practical reasonableness). I followed this explanation by setting out the structure of the NNLA. For convenience, we can restate that argument in full here:

• (1) The marital good is a (basic) good: it is a one-flesh, multi-level union between a man and woman, oriented towards child-rearing, and consummated by ongoing procreative-type acts. 

• (2) It is impermissible to act so as to destroy, damage, impede, violate or pursue an illusory form of a basic good. 

• (3) Non-procreative sexual acts destroy, damage, impede, violate or instantiate an illusory form, of the marital good.

• (4) Therefore, non-procreative sexual acts are impermissible (from 1, 2 and 3).

There are two key aspects to this argument. First, there is the claim (premise 1) that (a) there is such a thing as the marital good and (b) it must be consummated by procreative-type acts. And second, there is the claim (premise 3) that all non-procreative acts damage, impede or violate this good. What we must ask here — following Bamforth and Richards — is whether these claims are religious in character.

We’ll do this in three stages. We’ll start by setting out (briefly) the test that Bamforth and Richards use to investigate this issue. We’ll follow this by considering Bamforth and Richards’s argument that the NNLA has an essentially religious content (i.e. that its premises are taken directly from religious sources). And finally, and most importantly, we’ll consider their argument that the NNLA has an essentially religious justification (i.e. that it cannot be persuasive to the secular mind).


1. Audi’s Test for Religiosity
Bamforth and Richards’s book is a lengthy investigation of the merits and internal consistency of new natural law. It looks at the connection between new natural law and Catholic doctrine, between new natural law and Thomism, and at whether new natural law is externally justifiable. Their examination of the NNLA against same-sex relations is merely one part of the overall project. Nevertheless, this analysis inherits the methodology they use in the remainder of the book. As a result, it is necessary to briefly consider how this methodology works.

In assessing the religiosity of new natural law, Bamforth and Richards appeal to a test set out by Robert Audi. In formulating this test, Audi’s concern was to develop criteria for determining whether arguments offered in political debates were of a religious character. The test is as follows (my formulation):

Audi’s Test: To determine whether an argument is of a fundamentally religious character (or not), four criteria can be appealed to:

(a) Content Criterion: Is the substantive content of the argument religious in nature? Paradigmatically, an argument has religious content if it includes a theistic claim (e.g. a divine command) of some sort, but can also have substantive religious content if it appeals to scripture, revelation or Church teaching.

(b) Justification Criterion: Can the argument only be accepted if one accepts some set of substantive religious beliefs? In other words, is the inference being drawn or the warrant being appealed to, only persuasive to someone who shares the religious beliefs of the person making the argument?

c) Motivational Criterion: Is the person making the argument motivated by their religious beliefs when making that argument? Or, rather, are they trying to achieve some religious purpose in making their argument?

(d) Historical/Genetic Criterion: Is the argument linked, via some cognitive chain, to another set of religious arguments or beliefs?

Some of these four criteria are stronger than others. An argument that satisfies only the last two criteria could be deemed weakly religious, since it is still possible for such an argument to be reformulated in secular terms. Contrariwise, an argument that satisfies the first two would probably be strongly religious, since it really would take acceptance of the religious beliefs to make the argument credible.

Appropriately enough, Bamforth and Richards focus most of their energies on proving that the NNLA satisfies the first two criteria for religiosity, but they do spare some thought for the third and fourth criteria too. We’ll follow suit below, starting with the content criterion and then moving on the justification criterion.


2. Does the NNLA meet the Content Criterion?
The distinct branch of natural law theory under consideration here — new natural law — owes its origins to the work of Germain Grisez, a conservative Catholic theologian, whose work has quite of bit of clout in the upper echelons of the Catholic Church. One of the more interesting aspects of Bamforth and Richards’s book — from an intellectual history standpoint — is their attempt to trace the influence of Germain Grisez’s highly theological work on the more secularised writings of Finnis and George. They do this with some pretty impressive documentary evidence — i.e. by closely analysing the text of Grisez’s work and showing how it is directly echoed or repeated in the work of Finnis and George. Only a fraction of that evidence can be considered here.

Bamforth and Richards’s major contention is that both Finnis and George’s views on the goodness of marriage and the wrongness of non-procreative sex rely, almost entirely, on the views expressed in Grisez’s four-volume work The Way of the Lord Jesus. All four of these volumes are available online for free, and they rest on explicitly religious premises. In their discussion, B & R pick some of the choicest comments from Grisez’s introduction to the 1st volume to prove this point. For example:

In this book, I assume that the reader accepts everything the Catholic Church believes and teaches. This book is not apologetics aimed at nonbelievers nor is it an attempt to rescue the faith of those who have serious doubts. (p. xxx)

Grisez also notes that the chief sources for his work are “are Scripture, the teachings of the Catholic Church, and the writings of certain Fathers and Doctors of the Church, especially St. Thomas Aquinas.” So in both its pretensions and its authorities, the work is explicitly religious in nature.

As regards the NNLA against same-sex relations, Bamforth and Richards find that the two key aspects of the argument are rooted in Grisez’s theological views. First, the explicit characterisation of the marital good, used by Finnis and George, is taken from Grisez’s work. Thus, for example, it is Grisez who describes the marital sexual act as “one-flesh union” in which man and woman literally become one organism. What’s more, he relies on scripture (specifically Genesis) and church teaching when doing so, and analogises it to communion with Jesus (see B & R, 108).

Second, in viewing non-procreative sexual acts as wrong, the connection is made to Grisez’s claim that human sexuality is part of the language that God uses to reveal himself to us. Every abuse of this language would distort the revelatory message of God and thus would be wrong. Or, rather, in Grisez’s terms, all intentional non-marital sexual acts, which are contrary to the revelatory message of God, are grave matters of sin.

Now, I have to say, I’m not sure that these connections (and I want to be clear that B & R cite many many more examples) really to prove that the NNLA satisfies the content criterion. It seems to me like they really only prove that it satisfies the genetical/historical criterion and that Finnis and George (in their presentations) show that it is possible to restate these views in a prima facie secular manner. Still, I’m willing to ignore this problem as the more serious issue is whether, even if stated in this prima facie secular manner, the argument can be persuasive on non-religious grounds. B & R think not.


3. Does the NNLA satisfy the Justification Criterion?
In claiming that the two key aspects of NNLA rely on religious grounds for their justification, B & R seem to me to be on firmer ground. We can see this by considering the two aspects in turn.

Looking first to the notion of the marital good, we have to pay serious attention to how this good is characterised. As noted in part one, and above, it is characterised as a multi-level, one-flesh union between a man and woman. In a more recent article, Girgis, George and Anderson noted that one of the key aspects of this view is that marriage is a “comprehensive” union. It involves union at the cognitive/behavioural levels and also at the physical level. Furthermore, the physical part of the union cannot consist in simply any old genital or other physical contact between the partners, it can only consist of vaginal (uncontracepted) intercourse. This is for a very particular reason. Only in vaginal intercourse do the partners coordinate to perform a biological function: reproduction. The fact that this coordinated biological activity is missing in non-procreative unions means they cannot be “comprehensive”.

From a secular point of view, the notion that “multi-level” unions are valuable seems mildly attractive. Certainly, I think goods arise from the mutual cooperation and affection typical of healthy relationships, and from the mutually pleasurable physical contact they often involve. But to claim that these unions can only be valuable if they are “comprehensive” and that this “comprehensiveness” is only possible if the partners engage in uncontracepted vaginal intercourse seems rather more far-fetched.

As Richard Yetter Chappell notes over on his blog, this view of the marital good is centred on a “bizarre and fetishistic appeal to the normative significance of biological functions.” This is unlikely to be persuasive to the non-religious. If there is one thing that is distinctive of the non-religious worldview (and I know I shouldn’t make claims on behalf of all its adherents) it is that the universe as a whole is morally indifferent. In other words, that there is no moral agency directing or guiding the natural world toward a morally desirable end. This view is deeply embedded in the Darwinian explanation of biological functions, which holds that although biological organs can display a teleology of sorts, this is not a normatively significant teleology. It follows from this worldview that biological functions do not necessarily have any intrinsic value. Consequently, any attempt to necessarily tie the good of multi-level unions to a coordinated biological function will seem odd to the non-religious mindset. Thus, it looks like B & R are correct in thinking that this aspect of the NNLA is justified by religious premises.

But, of course, the NNLA goes even further than this. Not only does it claim that the marital union is good (something I am willing to accept even if I disagree about what makes it good), it also claims that all other non-procreative physical unions are bad. Again, this seems bizarre. To illustrate the point, consider four possible relationships:

Marital Relationship: A heterosexual couple, bound together in a marital union which has the blessing of the Church, who provide behavioural and emotional support for one another, and only engage in uncontracepted vaginal intercourse.

Heterosexual Procreative Relationship: A heterosexual couple, not officially married, who provide behavioural and emotional support for one another, and only engage in uncontracepted vaginal intercourse.

Heterosexual Occasionally Non-Procreative Relationship: Same as above, but the couple also engage in non-procreative sexual acts.

Homosexual Relationship: A homosexual couple, who provide behavioural and emotional support for one another, and engage in non-procreative sexual acts.

Many more examples could be listed, but these will suffice for present purposes. According to the NNLA (in its most extreme form) only the first of these relationships is permissible. All the others are impermissible (though some NNLA proponents might concede some ground to the second relationship). And they are impermissible on the grounds that they actually impede or violate the good of the first relationship. But why on earth should we think that? All of the relationships consist in the realisation of some goods — companionship, love, mutual support and so forth; neither of two heterosexual relationships precludes the possibility of achieving a comprehensive union; and the partners in the homosexual relationship are gaining access to goods that would not be available to them in a heterosexual relationship (since they could not feel the same bonds of affection in such a relationship). Each of them seems perfectly permissible, even if they are not the same as the marital relationship.

It really does seem like the only way you could think that these other three relationships are impermissible is if you accepted something like Grisez’s view. In other words, if you believed that human sexuality is part of the language of God’s revelation, and that any “mispronunciation” or distortion of that language would defeat God’s purpose. And this, of course, would be to justify the argument on an explicitly religious ground.


4. Conclusion
If this is correct, then Bamforth and Richards have made their point. The NNLA is an essentially religious argument. Neither of its two key premises can be accepted on strictly secular grounds. But this raises the question: why do Finnis and George think that it does?

Bamforth and Richards speculate about this, and in doing so they draw attention to the ways in which the NNLA may satisfy the third of Audi’s criteria for a religious argument: the motivational criterion. As they see it, both Finnis and George are deeply religious men. Their entire worldview is pervaded by religious concepts and ideas, and premised on religious commitments. Consequently, it may be very difficult for them to peer through the veil of this religiosity and see what their arguments look like from the outside-in. Thus, they may miss the obvious religious connotations of what they say, and think they are expressing themselves in secular terms.

Of course, this is speculation. I can’t really say for sure how deeply religious Finnis and George actually are — though their published work is certainly of some evidentiary weight — nor can I say, with all honesty, that I am not guilty of something similar. The non-religious view to which I cling may cloud my perception too. But since the new natural lawyers are trying to build a bridge to the secular worldview, not vice versa, this is not at issue here.