Sunday, January 31, 2010

Sex, gender and bigotry(1): John Finnis and the rationing of orgasm

This is the first part of a two part consideration of Law, Morality, and "Sexual Orientation" (pdf) by John Finnis (an advocate of the "new natural law theory" of natural law without its Thomist metaphysical underpinnings) arguing for Catholic natural law sexual morality and its (highly selective) legal implementation. The second part will be in my next post.

Reading Martha Nussbaum’s Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies I came across this quote from John Finnis:
In classical Athens, there was amongst the Athenian upper classes an ideology of same-sex "romantic relationships" which were specifically man-boy relationships (inherently lacking the genuine mutuality of equals) and which in a certain number of cases doubtless resulted in sexual conduct (p.1538).
What caught my eye is the phrase:
… inherently lacking the genuine mutuality of equals.
For any support of traditional Catholic doctrine (as Finnis most certainly is) to talk of a sexual relationship “lacking the genuine mutuality of equals” is fairly shameless. First, there is the simple reality that, under Catholic doctrine, only men can make binding decisions about doctrine. The notion that this has not operated to the disadvantage of women is a nonsense—starting with the denial of any legitimacy to any priestly vocation among women.

The issue being not the notion that truth is complete and coherent (so, in some important sense, singular), but that there is a single, definitive, all-encompassing point of view on truth. One that is, moreover, the possession of the notionally celibate males running the Catholic Church who somehow completely transcend human epistemic frailty.

Second, the development in the modern era of something approaching genuine equality between men and women in marriage is a product of the breakdown of social notions of the public space as being a male domain. A domination that Catholic control, and later influence, over marriage law supported.

What this illustrates is how one cannot analyse matters of sex without considering matters of gender. Some conservatives object to gender-talk as an evasion of the biological reality of there being two sexes. This is wrong on several counts. First, even among humans, the biological reality is more complex than that (consider the recent Caster Semanya case). Second, defining gender as perfectly coterminous with the form of one’s genitals is far from a universal human norm. Third, conceptions of what it means to be ‘male’ and ‘female’ (such as their “typical” emotional characteristics) change over time.

Indeed, that the term ‘homosexual’ was coined in the year John Stuart Mill published The Subjection of Women is a nice historical congruence, as homosexual liberation has marched behind women’s liberation precisely because the shift towards a strong moral norm that sex should be between equals (hence paedophilia becoming the epitome of sexual evil) allows sex between men (sex between women raises less status issues) to become much less problematic. If—as has been the general pattern in many human cultures—sex is only legitimate between unequals (man and woman, man of higher status and man of lower status) then any male-male sex which fails to uphold the required status hierarchy becomes illegitimate. It “un-mans” them: a claim that is certainly not entirely absent from our age. (I remember one commentator in Commentary referring to homosexual activity as “men using men like women” in what was clearly completely unconscious misogyny.)

It is also fairly shameless for any modern Catholic supporter of natural law moral theory to cite comments attributed to Socrates or written by Plato or Aristotle as blanket condemnations of homosexual conduct. First, their sexual ethics were very clearly not the same as that of Catholic natural law theory (for example, on abortion, contraception and even infanticide). Indeed, that natural law theory in their hands had rather different conclusions is one indication of moral natural law’s malleability: the way normative essentialism operates to select its own premises, thus allowing practitioners to draw such conclusions which are congenial by selecting those parts of the relevant phenomena which are convenient and dismissing the rest as “improper”.

Second, because the condemnations of homosexual conduct were typically not blanket condemnations, but applied to particular acts in particular contexts—usually based on contradictions of status roles or concern about the strength of sensual passions—some of which applied equally to heterosexual acts. Moreover, often it was not even a full condemnation, but simply a rating as inferior compared to goals deemed higher. At no point did it actually feed (at least in the Greek case) into law. Given that the first civic statues in Athens not of divine subjects were of a same-sex couple, it was not likely to.

The pertinent classical Roman law seems to have been a law to protect the status of male citizens (that is, to not have young citizen males be the “passive” partner and so perform a sexual role felt incompatible with their status as citizens: they could legally penetrate lower status males all they wanted) for which no prosecutions are recorded.

What people such as John Finnis and Ed Feser are attempting to establish are rational, non-Christian grounds to support a very Judaeo-Christian natural law blanket moral condemnation of homosexual conduct and the barring of any legal support for homosexuals to live as openly in legally acknowledged ways as “practising” homosexuals. Because, of course, if it is merely a religious antipathy, then it is has no justifiable role in the public law of any state without an established church (or one with an established church but whose theology does not have any determinative status in law).

So citing Greek thought that was very concerned about a structure of status which definitely does not apply in modern societies, and incorporating a concern for excess of passion which certainly is not appropriate for modern law (and was not deemed at matter for actual law even then), is hardly much support. It is a case of “look, these people condemned some homosexual acts for completely different reasons in support of a very different sexual morality so there are non-religious grounds to engage in a blanket condemnation of homosexual conduct”. No, all the Greek cases do at most is support the sexual condemnations and rankings that they actually engaged in.

But there is much worse than that going on. Let us consider the issues of “homosexual conduct” and the notion of “practising homosexual”, particularly in the context of this published article (pdf) by John Finnis arguing for Catholic natural law sexual morality and its (highly selective) legal implementation.
The unfortunate reality of sexual diversity
In the paper, Finnis holds that:
… states do have the authority to discourage, say, homosexual conduct and “orientation” (i.e. overtly manifested willingness to engage in homosexual conduct).
He is concerned to defend:
The concern of the standard modern position itself is not with inclinations but entirely with decisions to express or manifest deliberate promotion of, or readiness to engage in, homosexual activity/conduct, including promotion of forms of life (e.g. purportedly marital cohabitation) which both encourage such activity and present it as a valid or acceptable alternative to the committed heterosexual union which the state recognises as marriage. Subject only to the written or unwritten constitutional requirement of freedom of discussion of ideas, the state law and state polices which I have outlined are intended to discourage decisions which are thus deliberately oriented towards homosexual conduct and are manifested in public ways.
So, without being concerned with inclination or entirely private acts, nevertheless Finnis believes the state should continue to make it clear to the same-sex attracted that they should not exist as persons with such sexual natures, as such attraction is inherently wrong. (Because if they are fully entitled to exist, with such erotic orientations and all, so are those erotic orientations entitled to equal protection of the law: subject to standard constraints about protection of others.)

Given the reality of human sexual diversity, societies have a range of possible responses. At one end is to acknowledge that reality and incorporate it into their social forms and mores. At the other is to treat it as something that just should not be the case and so repress it as much as possible. Finnis is not advocating the death penalty for same-sex acts or same-sex marriage, so is not upholding the traditional Catholic position. But he is certainly operating on the premise that same-sex attraction should not exist, has no legitimate expression and should be repressed (both by those who experience it and by the state, at least in the public realm). To Finnis, a heterosexual is inherently a preferable sexual citizen than anyone who is same-sex attracted: particularly if they act on that attraction.

So, Finnis’ position on the ranking of sexual conduct has an obvious selling point. It asks heterosexuals to give up nothing (since they are not attracted to members of the same sex) and the same-sex attracted to give up a great deal (any acting upon that attraction), particularly in any public way. Providing a large majority with a sense of effortless virtue against a small minority has historically often been a very easy sell. The Catholic Church engaged in it for centuries against the Jews, for example. The remarkable thing is not that the sort of position that Finnis advocates does not have significant popular support: it is that its popular support has declined so much.

Consistent with the position Finnis wants to uphold, he supports not listing sexual orientation among the anti-discrimination categories. Indeed, ‘sexual orientation’ is a concept he is firmly against:
For the phrase “sexual orientation” is radically equivocal. Particularly as used by promoters of “gay rights”, it ambiguously assimilates two things which the standard modern position carefully distinguishes: (I) a psychological or psychosomatic disposition orienting one towards homosexual activity; (II) the deliberate decision so to orient one's public behavior as to express or manifest one's active interest in and endorsement of homosexual conduct and/or forms of life which presumptively involve such conduct.
Yes, “gay activists” want to be treated as fully legitimate manifestations of the human, the bastards.

The distinction Finnis wishes to defend only makes sense if same-sex attraction is not a legitimate manifestation of the human. Which is, of course, what the entire argument is over. As many people, implicitly or explicitly, have come to realize: hence the decline in popular support for the position Finnis wishes to defend, with majorities tending to support recognition of same-sex relationships (recognition of same-sex marriage tends to have a lower level of support but the trend is upwards).

Beware of classicists bearing misogyny
On what basis does Finnis uphold what he calls the standard modern position? On the grounds that homosexual acts are immoral. Why are they immoral? After defining homosexual acts as:
… bodily acts, on the body of a person of the same sex, which are engaged in with a view to securing orgasmic sexual satisfaction for one or more of the parties.
Finnis detours to attempt to recruit Socrates, Plato, Aristotle and Xenophon for blanket condemnation of all homosexual conduct so defined, including the remarkable statement:
Although the ideology of homosexual love (with its accompanying devaluation of women) continued to have philosophical defenders down to the end of classical Greek civilisation, there equally continued to be influential philosophical writers, wholly untouched by Judeao-Christian tradition, who taught that homosexual conduct is not only intrinsically shameful but also inconsistent with a proper recognition of the equality of women with men in intrinsic worth.
First, the implication that it was general position in classical philosophy to defend female equality is risible. Second, the connection between attitudes to women and attitudes to same-sex activity were much more complex than that, even in the ancient world. Sparta, for example, was notorious both for formalizing same-sex relations and giving women what many other Greeks felt was a positively “unnatural” status and freedom of action. Finnis’ later reference to:
… Aristotle's representation of marriage as an intrinsically desirable friendship between quasi-equals, and as a state of life even more natural to human beings than political life …
indicates that some difficulties are being glided over here. Finnis also refers to:
Plutarch's severe critiques of homosexual conduct (and of the disparagement of women implicit in homosexual ideology).
Let us pause and consider the breezy misogyny of that statement. Apparently, Sappho does not count. In fact, at no stage does Finnis ever stop to consider same-sex attracted women directly in his text. One could think of many possible reasons for this. I suggest a simple one: he finds what male homosexuals do to each other repellent, he does not find what female homosexuals do repellent, so he fixates on the former and ignores the latter. He is, of course, following in a long (Biblical) tradition here, St Paul providing the only reference to female-to-female sex in Scripture. What males do really, really matters (particularly if it has implications for their status as males): what females do, not so much. But this sits very badly with his breast-beating over male-female equality.

Some (though not all) Stoics did feel that procreation was the only justifiable point of sex: this was typically about restraining the passions. But, whatever your reasons, it is true that if procreation is the only justifiable point of sex, then same-sex activity is ruled out.

Finnis puts his position what makes sex legitimate or not very succinctly:
Genital intercourse between spouses enables them to actualise and experience (and in that sense express) their marriage itself, as a single reality with two blessings (children and mutual affection). Non-marital intercourse, especially but not only homosexual, has no such point and therefore is unacceptable.
In other words, no one is entitled to a deliberately induced orgasm unless they are engaged in unobstructed penile-vaginal sex within marriage. Clearly, a wide range of heterosexual sex (including masturbation) is barred by this: so what distinguishes the same-sex attracted is not that they break this sexual morality (huge numbers of people do, including millions of happily married opposite sex couples). What distinguishes the same-sex attracted is that, if they have a public persona as “actively” homosexual, as a “practising” homosexual, then they must be breaking this sexual morality. With heterosexuals, one can largely pretend that they are keeping to it. This is absolutely not so with the openly erotically same-sex active.

Hence the wish to have the law, at the very least, not concede any status or legitimacy to the same-sex attracted as erotically same-sex active. Indeed, they can perform a very useful scapegoating role: denouncing “practising homosexuals” provides public proof of one’s own commitment to moral rectitude, cathartic release of concern about one’s own foibles and a public statement of where the moral boundaries “ought” to be. Particularly given following the sexual rule Finnis is proposing would require a massive restriction of sex compared to what actually occurs: which makes the openly same-sex active an extremely useful set of scapegoats.

Indeed, Finnis is clearly himself using the same-sex attracted as scapegoats. He does not require that the state impose his rule about sex on heterosexuals whether or not they are married. He also does not propose for the state to impose the burden of that rule on the private lives of the same-sex attracted. The rule only comes into to legal play to bar same-sex couples any standing in law as couples: making them scapegoats for the offense their existence as same-sex attracted people causes his theory of sex.

One might note that this sexual theory requires human agents to agree to a massive restriction of their human agency: a small problem. In fact, a large problem given all the benefits they are expected to forgo, the control over their own lives and pleasures to be denied, in the service of a metaphysical claim: hence the Catholic Church’s notable failure to get people to adhere to it.

One might wonder why such a set-up-for-failure morality might be preached in the first place. Part of it could be a group of celibate males may well not be in the best position to see how it is set up to fail. A more cynical view (particularly given how erratic such celibacy can be) is that, within certain limits, such failure is useful. It gives priests the power of guilt. It certainly establishes their role as “gatekeepers of righteousness”, saying who is “in” and who is “out”. But it also makes scapegoats so much more useful—the “fallen woman”, the “abominable sodomite”. Which is why it has so much more power when it sells “effortless virtue”, as it does against the whore and the queer.

What the adoption of natural law sexual morality did is make priests commissars of natural law. (Just as commissars were priests of Leninism.) They get to decide who is “in” and who is “out” and why. The implications of that, and of the position John Finnis defends, is examined in my next post.

1 comment:

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