from Natural and Divine Law, Reclaiming the Tradition for Christian Ethics
by Jean Porter,
Saint Paul University Series in Ethics 1999, pp. 224-234.
published by NOVALIS, William B Eerdmans Publishing Company, Canada
For the past thirty years, theological discussions of the natural law have been inextricably tied up with debates over the Roman Catholic prohibition of the use of contraceptives as set forth in the 1968 encyclical Humanae vitae. For many people both within and outside the Catholic community, the understanding of the natural law presented in this encyclical is the theory of the natural law or, at least, the distinctively Catholic theory of the natural law. Yet the traditions of natural law reflection that inform official Catholic teaching in this encyclical can also be developed in alternative ways.70 Our examination of the scholastics’ views on sexuality and marriage suggests one such alternative, which will preserve the central insight in the official Catholic view while avoiding its problematic formulation.
As is well known, Humanae vitae justifies the prohibition on the use of contraceptives by appealing to the structure of the sexual act and its intrinsic finality toward reproduction. The teaching that the use of contraceptives is always morally wrong, it explains:
“is founded upon the inseparable connection, willed by God and unable to be broken by man on his own initiative, between the two meanings of the conjugal act: the unitive meaning and the procreative meaning. Indeed, by its intimate structure, the conjugal act, while most closely uniting husband and wife, capacitates them for the generation of new lives, according to laws inscribed in the very being of man and woman. By safeguarding both these essential aspects, the unitive and the procreative, the conjugal act preserves in its fullness the sense of true mutual love and its ordination towards man’s most high calling to parenthood. We believe that the men of our day are particularly capable of seizing the deeply reasonable and human character of this fundamental principle” (HV. para. 16).
Clearly, the encyclical affirms the theological value of procreation. At the same time, however, it also claims that the moral teaching being presented is universally accessible to all persons, in virtue of its “deeply reasonable and human character.” It is perhaps for this reason that the encyclical argues on the basis of an analysis of the structure of the conjugal act, which is presumably objective and open to inspection by all.
Yet even the most sympathetic critics of Humanae vitae have found its focus on particular acts of sexual intercourse to be unpersuasive and even offensive. “To break marriage down into a series of disconnected sexual acts is to falsify its true nature”; in this remark, O’Donovan speaks for a considerable number of theologians, both Catholic and Protestant, who share the encyclical’s view of the positive value of procreation but find its specific analysis unpersuasive.71
Nonetheless, the Christian understanding of marriage does imply that children are among the greatest blessings of the marriage relationship, and what is more, that they are a gift that should not be refused lightly. At the very least, there is something problematic, from the Christian standpoint, in the deliberate choice to remain childless throughout a marriage. Many of the critics of Humanae vitae would agree with the encyclical up to this point. And yet, why should this be so?
In part, these questions can be answered by drawing on the theological arguments for the goodness of procreation, as the scholastics developed them. While Humanae vitae arguably reflects similar theological convictions, they are obscured by the encyclical’s concern to present its arguments in terms of a universally accessible moral rationality. For the scholastics, on the other hand, the defense of procreation and marriage follows from a doctrinal commitment to the goodness of creation. Many Christians of all denominations share the view that the Christian community should be “pro-family,” and the scholastic defense of procreation helps us to see that this sentiment reflects a deep and sound doctrinal instinct. This need not imply that other possible values are unimportant, or much less illegitimate, but it does reflect a sense that a commitment to procreation should have a central place in the public witness of the church.
Given such a public stance, we would expect the Christian community to discourage the use of contraceptives. We as a community cannot celebrate human procreation as a centrally important way of expressing our faith in the goodness of God’s creation without also implying that the deliberate frustration of human fertility is at best regrettable. It does not follow that the use of contraceptives is never morally justified. Nor does it imply that the Christian community should attempt to formulate the circumstances in which contraceptives may or may not be used; this is the sort of judgment that can best be made by particular couples, in view of their own circumstances and personal needs. Yet we need not say that the use of contraceptives is unjustifiable in all circumstances in order to acknowledge that, seen from the Christian standpoint, this practice involves a genuine loss, a sacrifice of a precious human capacity.
For the past several decades, we have been aware of the fact that a deliberate policy of family limitation may be necessary if we as a species are not to outstrip the earth’s capacity to sustain human life. At the same time, there has been considerable debate over whether birth control is either necessary to keep human population in check, or the best means for achieving this goal. Without attempting to resolve this debate, we can at least say that a collective policy of family limitation is expedient, and may be necessary, in light of the risk of global overpopulation. Nonetheless, the Christian community does have a stake in attempting to influence the way in which such a policy is carried out: for example, by encouraging reliance on education and the expansion of economic opportunities to the greatest extent possible. At the same time, it is critically important, for the sake of the integrity of its own witness, that the Christian community not fall into the trap of regarding procreation itself as undesirable in view of our planet’s limited resources. It may well be that the Christian witness to the goodness of procreation should place more emphasis on the social and communal dimensions of this process, but that should not take the form of denying the fundamental goodness, the natural joy and hopefulness, of pregnancy and birth.
By the same token, a deliberate refusal on the part of a married couple to have children at all is problematic from a Christian standpoint. Of course, such a choice may be practically necessary: for example, if the woman’s life or health would be threatened by pregnancy, or the economic or social conditions of the couple rule out the possibility that they could properly raise any children of the marriage. In such cases as these, the Christian community should encourage couples to express the value of procreation in other ways, either through adoption or the care of foster children or else through committing themselves as a couple to fostering the life of the wider society.
What about the contrasting case, in which couples who are incapable of having children turn to medical technologies to help them conceive? Once again, many readers will be familiar with the arguments around this topic that have developed in Catholic circles. The official prohibition against the use of most reproductive technologies rests on two arguments. The first of these appeals to the structure of the human act and its intrinsic orientation toward reproduction (Donum vitae sec.4; although I cannot argue the point here, I believe that the appeal to the structure of the human act, and the immediately subsequent appeal to the “language of the body,” are in fact two variants of the same argument). A number of theologians, myself included, have found this line of analysis unpersuasive, just as it is unpersuasive as an argument against the use of contraceptives.72 However, the second argument is in my view more telling:
In reality, the origin of a human person is the result of an act of giving. The one conceived must be the fruit of his parents’ love. He cannot be desired or conceived as the product of an intervention of medical or biological techniques; that would be equivalent to reducing him to an object of scientific technology. No one may subject the coming of a child into the world to conditions of technical efficiency which are to be evaluated according to standards of control and dominion (Donum vitae, sec. 4).
I do not want in any way to minimize the pain suffered by those who are unable to have children, or to deny the good faith and compassion ·f those who wish to use all the resources of medical technology in order to help them. Those children who are conceived by artificial reproductive technologies are certainly wanted children, as their parents’ desperate efforts make clear. Yet once again we need to ask, what are the human meanings that are being institutionalized as we move toward the regular practice of artificial reproductive technologies? Donum vitae seems to me to be right on this point. In such a situation, the values embodied in our social practices do tend toward viewing children as potentially products of technology.73 This, in turn, is problematic because it undermines the fundamental basis for equality in the shared biological givens of our lives. A child who is conceived and born in the normal way comes into the world as the result of biological processes that cannot be initiated simply at the parents’ choice. In this respect, he or she comes into the world independently of the wishes of the parents, just as they themselves once did. On the other hand, a child who is conceived through biomedical technologies comes about as the foreseen product of a technical procedure, and it seems to me that this undermines the child’s parity with its parents.
It does not follow that every form of biomedical technology should be discouraged. Various forms of genetic therapy, which involve manipulating the genetic code for the benefit of an individual or his or her progeny, are sometimes stigmatized as unnatural, but given the concept of the natural law defended here, there is no reason why this should be the case. There is nothing particularly sacred about the genetic code or its material substratum per se, although we would be well advised not to tinker with it unless we are very sure indeed about what we are doing. Even germ-line therapy, which involves manipulating the genetic material in reproductive cells, need not be considered in the same light as producing a child through artificial means of reproduction. Germ-line therapy is not aimed directly at producing a child; it is a therapeutic measure, aimed at curing a defect in the individual patient, with foreseen benefits for all that individual’s future children.
What about the situation of those who cannot enter into procreative unions for another reason: namely, homosexuals? The scholastics are united in agreeing that the homosexual acts are gravely sinful violations of the natural order. Having examined their sexual ethic, we can appreciate why they make this claim. Not only are there explicit scriptural condemnations of homosexual practices, but the unnaturalness of homo sexuality also follows from the scholastic understanding of the purposes of sexuality. Furthermore, the relevant scriptural texts and the classical sources, particularly Ulpian’s definition of the natural law, reinforced each other on this point, in such a way as to foreclose the possibility of softening the scriptural prohibitions by interpreting them through an expanded concept of the natural law. Finally, their widespread consensus that sexual pleasure is inherently problematic made it impossible for the scholastics even to consider that acts that seemingly have no other purpose than pleasure could be morally licit.
Beginning (at least) in the early decades of the twentieth century, the condemnation of same-sex actions began to be challenged, within the Christian community as well as in the wider society. In part, this challenge stemmed from a growing conviction that homosexuality is itself a part of the natural human condition; more fundamentally, it reflected far- reaching changes in general attitudes toward sexuality itself. Increasingly, we have come to appreciate the ways in which sexuality can be a medium for the expression of love between two persons, a basis for self-development, and a source of joy and pleasure. None of these aims is necessarily linked to reproduction. Given this view of sexuality, it is difficult to expect someone to refrain from sexual expression simply because he or she is homosexual, particularly if homosexuality is seen as an irreversible orientation. Ironically, some Christians defend homosexual practices by appealing to a version of a natural law argument since, if homosexuality occurs spontaneously in some people, then it would appear to be ipsofacto natural and good.
Even if it is the case that homosexuality is a constitutive part of human nature as it actually exists, however, that does not mean that it is good, at least not on the logic of the scholastic concept of the natural law. As we noted in Chapter 2, this concept can accommodate different understandings of nature, but not any understanding whatever. Specifically, the intrinsic tendencies of an individual cannot give rise to a natural law, because they are too general, and neither can recurring pathologies, even if characteristic of a species, because they are not directed toward some recognizable good. Hence alcoholism, for example, cannot be considered to be a naturally good tendency, even though it is natural in the sense of being proper to some individuals and appears to stem from a genetic defect typical of our species. I choose this example because it is so often put forward as a counter-example to the claim that homosexuality must be good because it is innate to some individuals or to the species as a whole.
Andrew Sullivan has recently responded to this counter-example. In the process of doing so, he develops a more persuasive theological argument for the moral licitness of homosexual acts:
The real reason alcoholism does not work as an analogy [to homosexuality] is a deeper one. It is that alcoholism does not reach to the core of the human condition in the way that homosexuality, following the logic of the Church’s arguments, does. If alcoholism is overcome, through a renunciation of alcoholic acts, it allows the human being to realize his or her full potential, a part of which, according to the Church, is the supreme act of self-giving in a life of matrimonial love. But if homosexuality is overcome, by the renunciation of homosexual acts, the opposite is the truth: the human being is liberated into sacrifice and pain, barred from the act of union with another that the Church holds to be intrinsic to the notion of human flourishing in the vast majority of human lives. Homosexuality is a structural condition which, even if allied to a renunciation of homosexual acts, disbars the human being from such a fully realized life. The gay or lesbian person is disordered at a far deeper level than the alcoholic: At the level of the human capacity to love and be loved by another human being, in a union based on fidelity and self-giving.74
As his subsequent argument indicates, Sullivan himself does not believe that the “gay or lesbian person is disordered at a far deeper level than the alcoholic”; rather, his point is that we should accept homosexuality as an alternative way of expressing the basic human good of interpersonal love.
Sullivan goes further; not only does homosexuality offer one form for the expression of interpersonal love, but it can serve as a kind of affirmation for the centrality of heterosexual love:
In many animal species and almost all human cultures, there are some who seem to find their destiny in a similar but different sexual and emotional union. They do this not by subverting their own nature, or indeed human nature, but by fulfilling it in a way that doesn’t deny heterosexual primacy, but rather honors it by its rare and distinct otherness … the homosexual person might be seen as a natural foil to the heterosexual norm, a variation that does not eclipse the theme, but resonates with it. Extinguishing — or prohibiting — homosexuality is, from this point of view, not a virtuous necessity, but the real crime against nature, a refusal to accept the variety of God’s creation, a denial of the way in which the other need not threaten, but may give depth and contrast to the self.75
What we see here is an argument for the naturalness of homosexuality precisely in terms of its intelligible purpose, seen from the standpoint of a theological interpretation ofhuman sexuality. As such, it is in accordance with the basic logic of the scholastic concept of the natural law, although Sullivan does not frame it in those terms. Furthermore, his argument suggests a way in which the Christian community could incorporate a positive affirmation of homosexuality into its corporate witness to the goodness of procreation and marriage.
At the same time, we need to consider not only whether individual homosexual acts might be morally permissible, or what forms a genuinely Christian affirmation of homosexuality might take, but also how homosexuality is institutionalized in the wider society. In reflecting on this issue, it is important to realize that there is as much diversity of lifestyles among gays and lesbians as there is among straight men and women. Yet there do appear to be some characteristically gay lifestyles, which are cohesive enough to be considered as stable institutionalized social options for expressing a homosexual orientation, and which are sustained through a complex set of rituals, roles, and expectations. Generalizations in this regard need to be offered with great caution, but it seems fair to say that these lifestyles are typically characterized by a celebration of the erotic, as expressed through a cult of personal beauty and the practice of widespread sexual activity.
What is wrong with any of this? Of course, the threat of AIDS has led to modifications in gay sexual practices, but AIDS is not a necessary concomitant of a gay lifestyle, nor is it by any means an exclusively “gay disease.” There is an element of misogyny in some sectors of the gay community, and its celebration of personal beauty can have cruel conse quences for older persons. However, misogyny and the worship of youth and beauty are not unknown among heterosexuals, either. Over against these negative elements, these gay lifestyles offer much that is positive, in particular, a celebration of eroticism, humor, freedom, and play. A life devoted to the pursuit of such values can have its own integrity and goodness, even when it takes forms that shock the sensibilities of many others.76
Yet this does not mean that all of these lifestyles are necessarily compatible with Christianity, or that the church should try to incorporate them into its common life. In the last chapter, we observed that a way of life may be an expression of genuine natural goods but still be in tension with, or even incompatible with, Christianity. I would suggest that in some of its forms, contemporary gay culture offers examples of such a way of life. The privileging of the erotic and the affirmation of sexual freedom do reflect natural human tendencies and genuine goods. But such a construal of human sexuality, with its privileging of the value of the erotic and its concomitant de-emphasis of the value of procreation, stands in tension, at least, with a Christian sexual ethic. Hence, the difficulty with some forms of contemporary gay culture, seen from a theological standpoint, is not that they represent an evil or unnatural way of life. Rather, they are problematic because they represent an alternative construal of human nature that has its own value and integrity but that is nonetheless in tension with fundamental Christian commitments.
The tension does not stem from the fact that homosexual activity is non-procreative. Rather, it reflects a more basic tension between the values of erotic experience and procreation, when these are considered as potentially key values for a socially embodied sexual ethic. The bearing and raising of children is not particularly sexy, and more important, it requires a degree of stability in interpersonal relationships that is not readily compatible with a primary commitment to the pursuit of the erotic. I am not saying that the two values cannot be brought together, but it is difficult to see how individuals, or much less communities, could give equal weight to both. One or the other must be given priority, and it is here, in the choice of priorities, that a Christian sexual ethic will be in tension with some aspects of contemporary gay culture.
Of course, the gay community does not have a monopoly on the celebration of eroticism. Its privileging of the erotic reflects a more general tendency to invest sexual experience with spiritual value and to celebrate sensuality and immediacy over against the rational and historical, which characterize romanticism. Seen in this light, gay culture in some of its forms is only one expression, albeit an especially prominent and striking expression, of a romantic strain that has been prominent in Western cultures for at least two centuries. Romanticism, in turn, is partially rooted in Christian beliefs and sensibilities, but that does not mean it is theologically unproblematic.77 Christians should be wary of the high spiritual value given to sexuality, not because of the carnality of sex, but because this particular route to enlightenment is too easy. This does not mean that romanticism is morally evil, but again, it reflects a privileging of human goods that is in tension, at least, with a Christian construal of human values. We Christians can acknowledge the goodness and integrity of this strain of secular culture, while still promoting an alternative way oflife which is more congruent with our central doctrinal commitments.
Near the end of a survey of current Roman Catholic sexual ethics, the theologian Lisa Cahill remarks:
In my view, the Catholic Church needs to develop a “credible witness” on moral matters, including sexual morality. It needs to speak to the situation of moral confusion in the larger cultures in which it exists … It needs the courage to hold up ideals in sexual morality beyond personal fulfillment and individual autonomy. It needs to be said that commitment and children are somehow essentially connected to sexual relationships as important human meanings. There should be a bias in marriage in favor of children; children are not a merely incidental outcome of the marital relationship, to be excluded if spouses choose to be “child free.” Conversely, children are not a “right” of all adults, even married ones, even though children are a great blessing. When a couple faces infertility, they usually undergo considerable suffering, and it is commendable to attempt its alleviation through medical means. But there may be limits to means which are acceptable.78
This is a good summary of the sexual ethic implied by a contemporary appropriation of the scholastic concept of the natural law. While Cahill does not propose it at such, it is no coincidence that she speaks from within a moral tradition that has been shaped by that concept. In this way, it is not a sexual ethic for Catholics only (nor is that Cahill’s intent).
Indeed, we would expect this ideal to take different forms in different churches. Some churches have theological and cultural traditions that are historically more open to recognizing a variety of purposes and forms for sexual expression, in addition to its primary procreative form; others are more austere in their construal of sexuality. By the same token, the churches have different resources for accommodating the complexities of individual experience through their official structures. For example, communities that emphasize the sacramental character of marriage will have less flexibility in recognizing alternative forms of partnership than those communities that have a “low” doctrine of marriage. However, these complexities must be left for another day.
70. Noonan argues this point specifically with respect to scholastic teachings on the use of contraceptives; see Contraception,361-362. Of course, it does not follow that he would endorse the reformulation of scholastic natural law thought proposed here.
71. Begotten or Made? 77; O’Donovan’s overall assessment of the official Catholic view on contraception comprises 76-79. Paul Ramsey offers a similar critique in Fabricated Man (New Haven, CT: Yale University Press, 1970), 41-43. Of course, this line of argument has also been put forth by many Catholics; for a good recent example, see Cahill, Sex, Gender, and Christian Ethics, 199-216.
72. See, for example, Cahill, Sex, Gender, and Christian Ethics, 231-232; Richard McCormick, “Document is Unpersuasive,” in Responses to the Vatican Document on Reproductive Technologies (St. Louis, MO: Catholic Health Association, 1987), 8-10.
73. O’Donovan offers the same argument in Begotten or Made? 67-86. Likewise, William May, although his argument rests in part on a Kantian analysis of marriage which I find unpersuasive; see his “Donum Vitae: Catholic Teaching Concerning Homologous IVF,” in Kevin W. Wildes, ed., Infertility: A Crossroad of Faith, Medicine, and Technology (Kluser Academic Publishers, 1997), 73-92. In addition, both Ramsey and Cahill raise similar concerns, although they do not pursue the same line of analysis; see Fabricated Man, 32-59 and Sex, Gender, and Christian Ethics, 243-246. For the record, I have changed my mind on this question; 1 express a different view in “Human Need and Natural Law,” in Wildes, Infertility, 93-106.
74. Andrew Sullivan, Virtually Normal: An Argument about Homosexuality, 2nd edition with new afterword (London: Picador, 1996), 44-45.
75. Ibid., 47.
76. I did not fully appreciate this until I read Oliver O’Donovan’s “Homosexuality in the Church: Can There Be a Fruitful Theological Debate?” in Timothy Bradshaw, ed., The Way Forward: Christian Voices on Homosexuality and the Church(London: Hodder and Stoughton, 1997), 20-36.
77. On this point, see Peter Gardella, Innocent Ecstasy: How Christianity Gave America an Ethic of Sexual Pleasure (Oxford: Oxford University Press, 1985), 150-161.
78. Lisa Cahill, “Current Teaching on Sexual Ethics,” in Dialogue about Catholic Sexual Teaching, 525-535 at 533-534. Cahill has consistently defended this view; for a later and fuller statement of her position, see Sex, Gender and Christian Ethics,108-120