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)
With the right for same-sex couples to marry now constitutionally established in the US, you’d think the war against gay rights would be over. But, as the Republican candidates for President are still demonstrating, the hearts and minds of conservatives are far from won. In their war against gay rights, conservative Christians deploy two primary weapons: the Bible and natural law, which together represent for them “divine law.”
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 personal worldviews. I’ll leave that battle to those better versed in biblical literature. So let me focus on the other argument: 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:
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. 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. “We live in a ‘fallen’ world.”
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 assimilated into Christian thought most eloquently by Thomas Aquinas, becoming the basis for natural theology. Those who subscribe to natural theology believe that knowledge of the supernatural is at least partially accessible through reasoning that begins from the observation of nature.
The 18th-century Enlightenment unleashed “reasoning from nature” upon nearly every aspect of human existence, resulting in “self-evident” truths – “truths” that found their way into the works of Thomas Jefferson and became enshrined in 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” for anyone to rule as king over me just because of their family heritage! That was the rationale behind the American Revolution. (See Tom Paine’s pamphlet “Common Sense.”) Favorable outcomes (like our independence) may be achieved even if the reasoning used to arrive at them is somewhat flawed.
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.” 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.
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? According to the laws of nature and commonsense (and the Bible too!), the answer to such questions by thinkers in the past—and by a few reptilian thinkers in the present–was obvious: NO!
The truth many conservatives find difficult to 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 those former “natural conditions” as immoral, and perhaps even unnatural. Socially, we’ve evolved past them.
But back to Jefferson and the Declaration of Independence. The American experiment may well be seen as an example of a more advanced concept of governance, but those natural, God-given rights of life, liberty, and the pursuit of happiness of which Jefferson wrote in 1776 were originally intended almost exclusively for wealthy, white-male landowners. That state of affairs was based in part on the ethical intuition of the American founders, most of whom were wealthy planters. Their exclusive right to the vote was, for them, a self-evident truth. Only an evolving sense of social morality, brought about by concerted activism, eventually extended their lofty creed to others–first to underclass white men, later to women and minorities, and now, increasingly, to gays.
Even the Church evolves
The dirty little secret of history is that the church world also evolves to accommodate dominant cultural currents. That’s in part how it has survived all these centuries. The Church is adept at survival by adaptation. And eventually even the bigoted experiments of anti-gay legislation, masquerading under the guise of religious liberty, will run their course and lie dead in the gutter of history. Then the greater part of mainstream Christianity will likely adjust to the new reality and move on.
Think about it. No one these days would use the Bible or natural law to promote racism. (Yeah, the reptiles, I know! I know!) And apart from Roman Catholics, Southern Baptists, and a few smaller conservative bodies, most denominations accept the full equality of women. Several already welcome and ordain openly-gay members. 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” theology to a similar fate. Many, of course, already do.
Human ethics have 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 to discriminate against the LGBT community or to deny them the right to marry.
But some conservatives will argue that without “divine law” there is no basis for morality. It’s the slippery slope. Are we not left to drift with only humanism and moral relativism as our guide? The answer is more complex, but, quite simply, no we are not. 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.**
Oliver Wendell Holmes’ words from 1918 are well heeded in the current continued 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.”
With the rights of women and minorities, history has proven that this is not the case. And it will again, in America and around the world, with the rights of LGBT people.
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 teaches U.S. History and Humanities at Tulsa Community College and blogs about history, religion, and politics.