NATURALNESS Reader Michael Williams
writes:
Good post on unnaturalness. It's a purposely vague argument generally
used to appeal to pseudo-religious or -emotional feelings that the
speaker believes he shares with the listener. It allows them to agree on
these feelings without having to actually deal with the details behind
the feelings, on which they may disagree (different religious
backgrounds, or whatever).
I think that similar arguments can be made in another realm:
environmentalism. It's not "unnatural" to eat animals, or cut
down trees, or dig oil and metal out of the ground.
Quite right. In both fields, other arguments other than unnaturalness can
of course be made -- I don't really buy them as to homosexuality, and I
buy some but not others as to environmental questions (though I leave the
details to Sasha and Juan), but at least they're plausible. But arguments
about whether something is "natural" or not just hide the true
questions.
[Jacob Levy, 9:59 AM]
IRRATIONAL TEXAS: An observation with respect to
Erik's post and
Dahlia Lithwick's Slate commentary on
the bizarre rationale for the Texas statute. according to
Andrew Sullivan's TNR piece on sodomy and the
evolution of natural law thought about it (NB: not a
subscription-only link; Sullivan's put the piece up on his own site), the
stated Texas position tracks the current position of natural law scholars
Gerard Bradley and Robert George. (George was one of my favorite profs at
Princeton-- a wonderful and a very smart scholar who defends abhorrent
positions with a smile.) They submitted an amicus brief articulating the
rationality of distinguishing between even premarital heterosexual sodomy
(because it could conceivably lead to marrital procreative intercourse,
someday-- but what about extramarital heterosexual sodomy?) and all
homosexual sodomy.
I don't believe that George has it in him to alter their understanding of
natural law for the strategic purpose of trying to make the Texas statute
look coherent. But the implicit defense of all those heterosexual
practices that aren't marital procreative intercourse is obviously
strained, and is at odds with what I had previously thought their
position to be. Sullivan's quotes their brief as follows:
The critical difference upon which the legal distinction rests is not the
raw physical behavior but the relationships: same sex deviate acts can
never occur within marriage, during an engagement to marry, or within any
relationship that could ever lead to marriage. Physically similar sexual
acts between married persons are constitutionally protected. Physically
similar acts between unmarried persons of different sexes occur within
relationships which Texas may wish to encourage, either as valuable in
themselves, or because they could mature into marriages, or
both."
From what I've read, this is the position Texas went forward with in
court-- yes?
For what it's worth, George and John Finnis have, at various times,
offered much more compelling accounts of the meaning, and the relevance,
of the "naturalness" standard in natural law theory.
[Eugene Volokh, 9:27 AM]
CRIMES AGAINST NATURE: I realize this is a pretty banal point by now, but
one argument that I've never understood against homosexuality is that
it's "unnatural," and therefore "wrong." What exactly
does "unnatural" mean, and why does it tell us anything about
what is proper?
1. "Unnatural" might mean "not found in nature."
Well, that's a bit odd, because humans are a part of nature. I suppose
"unnatural" might mean "found only in humans," but
even if that's true, then homosexuality isn't unnatural:
bonobo chimpanzees, who I doubt have
been influenced by any alleged homosexual propaganda, do it, too (I
almost wrote "do it as well" but that would have been
ambiguous).
2. "Unnatural" might mean "flowing from conscious design
rather than human's physiological nature." That, though, would be
pretty odd, too. First, the Bonobos are relevant even to this; but,
second, millions of people do it, and they seem to have the same sort of
emotional and physical drive towards it as heterosexuals do towards
heterosexual sex. I haven't seen the studies, but I'm quite sure that
homosexual stimuli yield physical reactions -- arousal, hormonal flow,
and so on -- in homosexuals just as heterosexual stimuli yield them in
heterosexuals. If heterosexual lust is "natural" in the sense
that it's part of the nature of heterosexuals, I've seen no reason to
doubt that homosexual lust is natural, too.
3. "Unnatural" might mean "not done by most humans in the
state of nature," which is to say before civilization and the
imposition of large-scale social structures which may have led people to
deviate from the practices in which they engaged for tens of thousands of
years. This is the way "unnatural" seems to be often used in
some discussions of natural lifestyles, though rarely focused on sex. But
even if the "most humans" proviso makes homosexuality
unnatural, then it's unnatural in the same sense that bathing,
toothbrushing, and representative government are unnatural. Under this
definition, "unnatural" has little to do with "morally
proper." We don't measure the morality of most of our other
practices by what most humans did in the state of nature -- why should we
measure sexual practices that way?
4. "Unnatural" might mean "not done by most humans today,
which suggests that it isn't consistent with human nature." This,
though, assumes that human nature is monolithic: If most people don't
have some trait, then it's not part of human nature. Are redheads, then,
unnatural? Or people with blue eyes? Or, shifting away from the clearly
genetically linked (for purposes of this discussion, I don't need to
enter the debate over whether homosexuality is genetically linked, though
my understanding is that separated-at-birth twin studies do support such
a link), is being a religious Jew unnatural? How about liking to run 26
miles at a stretch? Either these aren't unnatural -- because human nature
might consist of different groups of people with different traits --
which disposes of another reason why homosexuality might be
"unnatural"; or they are unnatural, in which case there's
nothing wrong with being unnatural.
5. "Unnatural" might mean "not contributing to the
propagation of the natural phenomenon of a reproducing species."
Heterosexual genital intercourse contributes to the propagation of the
species, but homosexual genital intercourse doesn't. (Heterosexual oral
intercourse, which I believe most Americans engage in at one time or
another, isn't reproductive, but, the theory goes, "one thing leads
to another.") But that's a strange definition of unnatural, and a
stranger still definition of "unnatural and therefore wrong."
First, human beings in society seem to appreciate art and music (of at
least some sorts); that seems to be part of human nature, and though it
doesn't directly lead to the propagation of the species (except insofar
as artists and musicians tend to get a lot of, er, attention), we don't
find it unnatural. And, second, if we do conclude that art, music,
abstract mathematics, and so on are all unnatural in this sense, no-one
would say that they're therefore bad.
6. "Unnatural" means "contrary to the nature of the sexual
act." Wait, someone might say, the argument in the previous
paragraph is irrelevant, because art and music aren't supposed to
reproduce the species. Sex is supposed to reproduce the species -- in the
sense that this is its chief biological function -- so while
nonprocreative art is fine, nonprocreative sex is unnatural and therefore
wrong. This theory really would mostly condemn heterosexual nongenital
intercourse, and heterosexual intercourse among the infertile and those
who use birth control; but, the theory would go, those things are more
likely to indirectly lead to reproduction, either by the couple or by
others who follow their social example.
But do we really think that our conduct should follow the chief
biological function of the items, traits, or organs involved? The chief
biological function of food is nutrition. Does it follow that it's not
only unnatural but wrong to eat food for the sake of enjoyment, when
you're not hungry? (I'm not talking about eating to excess, but about any
eating that goes beyond the biological function of food.)
The chief biological function of wood is to maintain a tree. Does it
follow that it's unnatural and therefore wrong to build houses or
furniture out of trees, or to burn them for warmth? The chief biological
function of hair is -- well, I'm told that it's complicated, but surely
the function is not served by braiding hair or dying hair. Perhaps
braiding and dying serves a secondary biological function of hair, which
is to make the person sexually attractive. But once we accept secondary
biological functions, surely one can accept that sex is chock full of
them as well, such as giving pleasure and fostering social relationships
(and social relationships are very much a part of human nature, and for
that matter of bonobo nature). Homosexual sex fits those secondary
functions.
7. "Unnatural" means "contrary to the will of God as
expressed in nature." That, it seems to me, doesn't work well for
most of the reasons given above. Nature contains homosexual desire just
like it contains red hair and blue eyes.
8. "Unnatural" means "contrary to the will of God, who
created nature, as expressed in certain authoritative religious
works." Now with that I can't argue -- theologians debate about how
various religious works should be interpreted on this score, and people
also debate, of course, about which works are the correct ones. I have no
expertise in those debates, and not much interest.
But it seems to me that this argument really has next to nothing to do
with nature as such. Killing, stealing, and adultery seem natural under
virtually any definition of nature; the religious objection to them may
turn on them being contrary to the will of God, but I don't think it
really has anything to do with naturalness. Likewise for
homosexuality.
And this is an important point, because when people say
"homosexuality is wrong because it's unnatural," it seems to me
that they are trying to assert more than just "homosexuality is
wrong because it's contrary to my contested interpretation of contested
religious texts" -- they are trying to call on a more objectively
defined, uncontroversial authority called "nature," which is
why they say "unnatural" rather than "ungodly." (Some
do say "ungodly," but that's not the argument I'm confronting
here.) The trouble is that this call fails: Whatever one's definition of
natural, either homosexuality is natural, or it's unnaturalness says
nothing at all about its propriety.
[Erik Jaffe, 8:36 AM]
Lawrence v. Texas: I saw the argument yesterday and let's just say
that it was some of the best evidence of the lack of a rational basis
behind the Texas homosexual sodomy law. If I understood the gist of the
State's argument -- not an easy thing to understand given the incoherence
of the presentation -- it is that Texas is OK with heterosexual sodomy
because it might lead to marriage and procreation; it is OK with
heterosexual sodomy among infertile couples for no reason in particular;
it is OK with both heterosexual and homosexual bestiality for no reason
in particular; it is OK with a homosexual who is living with (though
perhaps not having sex with) a same-sex partner adopting children; it has
just passed a hate-crime law that covers crimes committed because of
sexual orientation; and it generally has no objection to homosexuals who
do not have certain types of sex (but who can apparently engage in some
limited forms of sexual activity that I leave it up to the indelicate to
parse out and articulate). So, to summarize: We don't mind
"deviate" sex acts so long as it is between heterosexual or
interspecies couples, and we don't mind homosexuals so long as they do
not engage in deviate sex acts. Let's just say the two ends of the rope
are a bit off. At least Justice Scalia is consistent in his moral
arguments -- his moral objection is to homosexuality, period. That
objection may be unconstitutional for a variety of reasons, but at least
it has internal consistency. Texas is unwilling to go that far, and the
incoherence showed in the argument.
Two small additional points: First, why didn't Texas send somebody who
was prepared for the argument? One wonders about the State's commitment
to defending the law given yesterday's showing. Second, Justice Souter
raised the point that most moral judgments typically have gone
hand-in-glove with other harms-based rationales regarding particular
behavior, and then asked whether once the harm-based claims are abandoned
shouldn't we be a bit more skeptical of the vestigial moral argument? I
think he is correct, and have made a similar point in an
amicus brief in the case, with thanks
to SCOTUSblog for the initial posting of that brief.
