Homosexuality and the Natural Law

In one of my classes we are discussing what makes a community. I do not know why but the professor is requiring us to talk about homosexuality in the context of community. I wrote something. Many people responded. One man responded at length. The professor asked me to answer him. This is what I wrote.
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There is much in what Anthony said that begs for a reply. I won't get to all of it. But before I get to any of it, I want to say how sorry I am that this conversation is even happening. According to the theology of my church, the Orthodox Church, the evil I struggle against, and which usually defeats me, is several orders of magnitude greater than homosexual activity. Sodomy is a sin against oneself, but gluttony is a sin against oneself and against the poor, who, as you might know from reading the Bible are under God's special protection . The Bible never says it would be better for a homosexual to kill himself, but the Bible says exactly that (in Proverbs 23:2) about gluttony.

Right now, during the Orthodox Church's Lent, several times a day I prostrate before an Icon and pray the prayer of St. Ephraim the Syrian which says:

"O Lord and Master of my life, take from me the spirit of sloth, faint-heartedness, lust of power, and idle talk. But give rather the spirit of chastity, humility, patience, and love to thy servant. Yea, O Lord and King grant me to see my own errors and not to judge my brother; for Thou art blessed unto the ages of ages. Amen."

I am not supposed to be thinking about anyone's sins but my own (which are plenty), so, please know that what I am about to write is not born of animosity of judgementalism. I certainly do not think I smell more pleasing to God than Anthony does. But I have been asked what I think, so I shall say what I think is true. It is my goal to inform, not offend, though I am sure offense will be suffered.

First I need to address the idea of rights. What are they? What is their origin? At one point in his argument, Anthony appeals to nature. So it is only fitting that I address natural law, but not only because of Anthony's appeal to nature, but because natural law is the basis of the political, commercial, and civil rights I mentioned in an earlier post.

Every American is familiar with the idea of Natural Law (it is usually capitalized) since they have to memorize these lines sometime during the childhood, (in California it is in the 6th grade):

"When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."

But Thomas Jefferson did not pluck those words "Laws of Nature and Nature's God" out of then air. He could, and did look back through thousands of years of legal and political thought to understand exactly what that phrase meant. In a bright line that is seen running from Plato's "the Laws", though Aristotle, through Cicero, through Augustine, through Aquinas, through Blackstone's Commentary on the Common Law, and Locke's Two Treatises on Government, and right into those words of Jefferson's quoted above.

Without going into great detail of their arguments, I will simply state that all of them were in agreement with the idea summed up by Cicero thusly: "True law is right reason in agreement with nature.” That is, in the fabric of the universe there is built in Law which by observation and reason can be discovered by human beings. It is for this reason that for centuries when a judge did what we now call "making a law" he was said to have "discovered a Law". But what of laws that violate the Natural Law? Well, as Aquinas wrote, "Lex malla, lex nulla". They simply are not law.

Perhaps, you don't believe all of this stuff about Natural Law. Maybe, following Jeremy Benthem you think law merely whatever people say it is. If so, then I say the burden is on you to prove it. But beware! On my side are the giants of civilization, while you will have to find support from the monsters of history. Do you really want to rely on de Sade's hideous justification of rape on the grounds that it brings about the most happiness? Do you want to find an ally in Mao's assertion that power comes from the barrel of a gun? That is where legal positivism (the technical name for Benthem's idea) leads. After a couple of years of living in that kind of society you'll be begging for old books to be opened again, for Amos to give instruction on how to treat the poor, for Jesus to tell you how to treat women, for Aquinas and Locke to set limits on the state. Men like de Sade and Bentham and Mugabe and Pol Pot and Stalin chaffe under the yoke of Natural Law, but as the old saying goes, lex praesidium libertatis, law is the safeguard of liberty.

I wish I could just put here the text of John Locke's Two Treatises on government, but that would take you several days to read. So, to be brief, I will explain that one of the rights arising out of Natural Law is that people may form governments to secure the natural rights. In forming those governments, they actually cede some of their rights and some of their powers. (Waging war, a species of the right of self-defense, is an example of one such right that individuals cede to governments.) Those governments may, and as far as I know, always have created certain concrete rights through statute. A right to vote is one such right. It does not exist as a natural right. It is a man-made political right.

Under the laws of the United States there are three kinds of rights. Some are also rights arising from the Natural Law (In the lists that follow I will mark those rights clearly arising from natural law with an "N"), and none of them violate the Natural Law, as far as I can tell. Under U.S. law none of these rights is absolute and they are all regulated to various degrees. I think you will agree with me that homosexuals are not denied any of these rights.

Only two political rights that are given to non-office holders:
The right to vote
The right to run for office

There are civil rights:
The right to peacefully assemble
The right to seek redress for grievances (N)
The right to bear arms (N)
The right to speak freely (N)
The right to print freely (N)
The right not to be forced to quarter soldiers in your house (N)
The right to exercise freely your religion (Traditionally, this is a religious right not a civil right, but in the U.S. it is termed a civil right.) (N)
The right to form or not form associations with other people (N)
The right to legal counsel (N sometimes)
The right to be tried by a jury (Blackstone argues that it is a Natural Right, but I am not convinced)
The right to not be tortured into a confession (N)
The right to not incriminate oneself (N)
The right of habeus corpus
The right not to be decapitated for crimes committed
The right not to be cruelly punished for crimes committed
The right not to receive an other than usual punishment for crimes committed
The right to have the governments laws equally applied to all people(Interstingly, this is a reveled Divine Law that might not be a Natural Law)
The right to be secure in one's person, home, and papers from government invasion (N)
The right to legal due process before being deprived of life, liberty or property

There are commercial and property rights:
The right to buy, own, encumber, redeem, lease, hold, sell, bequeath, pledge, and enjoy real and chattel property (N)
The right to negotiate the terms of and make contracts, (N) and have those contracts enforced by the state
The right to sell and be paid for labor (N)
The right not to suffer trespass (N)


Anthony mentioned several items, and I will take them in order.

Anthony mentioned organizations such as the Boy Scouts of America which do not allow homosexual members. Anthony was right in pointing out that they are private organizations. As distasteful as some organizations are, they do have a right to set the terms of their membership. Women's health clubs do not have to admit men. The Augusta Golf Club does not have to admit women. For some reason I do not understand, the government does discriminate between clubs, political parties, churches, and other non-profits on one hand, and most for-profit businesses on the other. The laws of the United States are not consistent in this area. As far as homosexuals are concerned, most for-profit businesses want as many customers as they can get, regardless of what their personal habits might be.

Anthony equates homosexual acts with heterosexual acts and homosexual marriage with heterosexual marriage. In the course of his argument he says that the United States treats homosexuals unfairly because it refuses to let homosexual soldiers marry, while encouraging heterosexual soldiers to visit whores. ( I want to say that the military should not be encouraging soldiers to use prostitutes. I am more than a little bit surprised that that is going on. When I was a soldier in the 1980s it was a punishable offense and I saw sergeants in my unit become privates because of using prostitutes. And though they were not dishonorably discharged, their careers were ruined and they were barred to re-enlistment. I am very disturbed to read about this change. Especially since I have a son who is in the Army. ) But appealing to the existence of another wrong, does not make homosexual behavior right. It merely points out the fact that the policy makers are operating in something of a moral vacuum. Perhaps the military authorities see prostitution as military expediency. If so, they would not be the first to recommend violation of the Natural Law for the sake of military expediency. Plato did the same. In his book "The Laws" he explained very clearly how homosexual behavior violates the Natural Law, but a few years later the "Symposium" recommended the creation of homosexual military units. This isn't unlike Thomas Jefferson insisting the Natural Law forbade chattel slavery while owning slaves. It just goes to show us that it takes great effort, not just education, not mere knowledge to resist evil desires.

I think I need to explain common law marriages. Anthony seems to think that they exist "Solely on the length of time a couple has lived together". Common law marriages are inherited from of the law of contracts in the English Common Law. (Interesting fact: Because California law is based on Spanish law, and Louisiana Law is based on the Napoleanic Code neither state has common law marriages.) There are two parts to the law on common law marriages: 1. That the couple hold themselves out to the public as being married. 2. That the contract be licit. The first part means that it doesn't matter if the couple has children and grandchildren; if they haven't held themselves out to the public as a married couple, they are not married. The scond part goes to the nature of the contracting parties. It is important to remember that the right to make contracts is a right under the Natural Law. But can anyone make the contract? No. Siblings may not. Neither may parents and children. Nor grandparents and grandchildren. These are violations of the Natural Law (Aquinas develops this.) and as such they are not licit contracts. The maxim applies: Lex malla, lex nulla. Such marriages do not exist. They cannot exist. When taken before a judge there is no divorce, for a divorce ends a marriage. Instead of a divorce decree there is a judgment of nullity, which means there never was a marriage. Now here is the question, can homosexuals contract for marriage? No. It isn't possible. Lex malla, lex nulla. Well, what if the state makes it legal? Still no. Lex mallus, lex nulla. The state can not make laws that violate the Law of Nature.

But who say's homosexuality is a violation of the Law of Nature? Well, remember all those names, the giants of civilization I listed? They say so, and our western liberal democracy rests on their words. Well, to be fair, Aquinas didn't speak to homosexuality per se, he only described how it is that only monogamous heterosexual marriage fulfills the requirements of the Natural Law, saying everything that was monogamous heterosexual marriage was illicit. Of course, this settles the question of inheritance, too. Where there is no marriage there is no next-of-kin relationship.

Anthony raises two points that I think can be dealt with together. They are the ideas of "committed", "loving" homosexual relationships and the double standard that exists vis-à-vis heterosexual marriage. This might seem strange, but there is no double standard. Men are only allowed to be married to women. Women are only allowed to be married to men. It doesn't matter to which sex they might want to be married. You might think, oh, how horrible to be married to someone you don't love, someone to whom you are not physically attracted. Well, truth be told there are many marriages in this world that are sexless, many marriages in which couples endure with clenched teeth the society of their spouse. According to Mother Jones Magazine (Jan 2005) Only 38% of wedded Americans say they are “happily married.” Marriage is not really about cuddly romantic feelings. Those warm fuzzy feelings are not love. Well, they might overlap a little with eros (desire), but they are not phileo (friendship), and they are very far removed from agape (selfless and self-sacrificing servitude for the good of the beloved). But marriage is not even about phileo or agape, though we hope those two loves develop over time and are the fruit of many years lived together. No. Marriage is traditionally about two things: Children and property. (In my Church it is also about salvation but that doesn't come into play for people outside the Church.) We see in the divorce rate the result of people thinking marriage is about love and happiness.

Anthony said, " If I had had a choice, I wouldn't have put myself through all of the extra pain and confusion being gay causes."

You do have a choice. You can say "No, I will not act on my desires. I will not give into temptation." It won't be easy. You will fail often. But you can get back up and start over again every day. I can tell you from experience that resistance is not futile. Slowly, but surely, you can gain control over your passions. And having sex is not like drinking water. You must drink to live. And though I have seen people die from having sex, I have never seen any one killed by chastity.

Having said all of this, I do not think I have convinced anyone who hopes I am wrong. For as Julius Caesar said ," Libenter homines id quod volunt credunt", which roughly translated is "people believe what they want." But I have written what I think is true.