Recently, we have had several posts (including here, here, and here) on sex, sexuality, gender, and sexual orientation. Sex AND morals, culture, or law are topics that generate a lot of heat these days. And, I am thankful that MOJ provides a forum where profound differences can be discussed civilly and with respect. Here I offer a short reflection on why I think this is one of the most fundamental topics for the development of Catholic Legal Theory (our stated purpose at MOJ). Unfortunately, other commitments prevent me from engaging in an extended and ongoing discussion of this thesis for at least two weeks, but I want to offer the thesis now while it is fresh in my brain (distracting me from the work I need to do), and I will be happy to come back to it when that work is done. Exploring these issues is also a heavily frieghted endeavor, but hopefully I have managed to put some of the baggage aside.
If possible, I think we need to bracket the moral, cultural, and legal issues surrounding sex and set those issues aside in order to address what I sense is a deeper and more foundational question – an anthropological question. What or who is the human person and how does that person relate – to other human beings, to nature, and to the transcendent. Science, philosophy, and theology can all be helpful here.
I take as an objective biological fact when it comes to human beings that 1 + 1 = 1 for one type of relationship and 1 + 1 = 0 for two other types of relationships. Yes, I know that the new math is hard to follow. One man and one woman equal one whole and complete biological unit (at least when it comes to reproduction) in a way that two men or two women do not. In this sense, Jerry Maguire is stating a truth when he says “You complete me.” There is something in our design that suggests an incompleteness (perhaps a radical incompleteness) without the other sex.
I also take as an objective fact that some minority of human beings have subjective preferences that deviate from this biological norm. Homosexuals, for instance, are attracted to persons of the same sex, transgendered (if I understand this term correctly) are males living in female bodies and females living in male bodies, and pedophiles are attracted to pre-pubescent children. By using the term “subjective preference,” I am not suggesting that these preferences are chosen. These subjects may have been born with these desires, inclinations, and preferences. They may be genetically predisposed or some early life experience may have embedded these preferences deep within the psyche. All of this is beyond my limited scientific knowledge. But, I will assume as fact that some subjects have deeply ingrained (non-chosen) preferences that deviate from the biological norm.
If I am correct about everything stated above, we now get to the crucial set of questions. Does the biological reality (1 + 1 = 1) signify a deeper reality about the human person? Is there really a complementarity of the sexes that is not just a product of social construction? If the answer to these questions is “yes,” can we conclude that the coupling of a man and a women is the “ideal form” of coupling? (Much more argument would need to be made to develop the idea that the coupling should take place within a stable, lifelong relationship that we call marriage.) If the answer to these questions is “no,” then apart from ensuring a replacement population (which can now be done without coupling), is there any reason for society to view one form of coupling as “ideal”?
Assuming that the answers to the first two questions are “yes”; that the biological reality reflects and signifies a deeper design reality involving the complementarity of the sexes, how should we as a society treat deviations from the norm? Should we pretend that there is no “ideal” and treat all (or most) subjective preferences (as defined above) as if they were equivalent? Should we celebrate the deviations as if they were unique flowers planted in God’s garden, giving us variety and diversity? Should we “tolerate” those who act on these preferences, understanding that while not “ideal” there is really no harm (like tolerating a Mohawk hair cut in a school classroom)? Should we look at these deviations as a product of the fall, acknowledging that each of us is an imperfect and incomplete being? If so, do we treat the deviations as we would chronic fatigue or blindness or some other deviation from the norm that has to be coped with the best we can (suffering and the cross seem to be built into the plan of redemption) or do we treat the deviation as if it was a cancer killing the subject and requiring immediate and aggressive attention to root it out?
Karol Wojtyla, in Love and Responsibility, provides an extended philosophical examination of some of these questions. As John Paul II, his Theology of the Body provides a theological examination of some of these themes.
At the outset, I suggested that this topic is fundamental for the development of Catholic Legal Theory. Reflecting on the design of our bodies, our radical incompleteness, our intense desire (especially in males) to “use” another’s body to satisfy our own needs, and a whole host of related topics can offer insight into the origin and nature of community, the need for rules (and hence the need for promulgators of rules) to govern behaviour, the origins and nature of government and other governing structures (the corporation, etc.). In other words, I suggest that serious reflection on these matters of sex and sexuality is foundational to the CLT project.
What do others think?
I've justed posted a paper to SSRN explaining why, in my judgment, capital punishment violates the cruel and unusual punishments clause of the Constitution--and then explaining why the Supreme Court probably should not so rule.
Here's the abstract:
Whether a law (or other
policy) is unconstitutional is one question; whether the Supreme Court (in an
appropriate case) should rule that the law is unconstitutional is a different
question. Contemporary constitutional theorists are virtually unanimous in ignoring
the analytic space between the two questions. That a law is unconstitutional
does not entail that the Supreme Court should rule that the law is
unconstitutional. In this paper - a revised version of which will be my
contribution to a symposium issue of the Georgia Law Review honoring Professor
Milner Ball - I explain why we should conclude that capital punishment violates
the cruel and unusual punishments clause. (I am inclined to think that we are
all originalists now; in any event, my explanation presupposes an originalist
conception of constitutional interpretation - although, to be sure, *not*
Antonin Scalia's misconceived originalist conception of constitutional
interpretation.) I also explain, however, why the Supreme Court (probably)
should not rule that capital punishment is unconstitutional.
To download/read the paper, click here.
