Scrutinizing Sex Under Natural law: Unitive Sex, Self-Gratifying Sex, and Concepts of Harm

• Author: Marvin Lim
• Position: Yale Law School, J.D.; Emory University, B.A. For editorial guidance, my substantial thanks to Zachary O'Driscoll, Carley Kranstuber, and the staff of the Capital University Law Review. A special note of gratitude to the late Robert 'Bo' Burt, for inspiring this piece and reading earlier drafts.
• Pages: 579-634

SCRUTINIZING SEX UNDER NATURAL LAW: UNITIVE

SEX, SELF-GRATIFYING SEX, AND CONCEPTS OF HARM

MARVIN LIM*

I. INTRODUCTION

Governmental regulation of sexuality is undergoing tremendous

changes, particularly as the question of same-sex marriage has reached the

Supreme Court of the United States.1 As this question suggests, it is not

just what is and is not appropriate for the government to regulate at stake,

but also the underlying question of the morality of sex. The conflict over

sexual morality often plays out in one side arguing for individual rights and

the other side arguing that every act of sex must take into account larger

societal consequences.2 Those who argue in favor of sex positivity—the

idea that sexual pleasure in and of itself is a positive good that should be

valued and not stigmatized—tend to stress that a person should have the

freedom to control his or her own body.3 This conceptualization of sexual

morality places a high value on the concepts of bodily autonomy and

personal privacy.4 Those who favor a more traditional conceptualization

of sexual morality stress the broader consequences of sex beyond the

individual, such as pregnancy and parenthood, the formation of families

Copyright © 2017, Marvin Lim.

* Yale Law School, J.D.; Emory University, B.A. For editorial guidance, my

substantial thanks to Zachary O’Driscoll, Carley Kranstuber, and the staff of the Capital

University Law Review. A special note of gratitude to the late Robert “Bo” Burt, for

inspiring this piece and reading earlier dr afts.

1 Obergefell v. Hodges, 135 S. Ct. 2584, 2604–05 (2015) (holding that the Fourteenth

Amendment recognizes a right to two people of the same sex to obtain a state marriage

license).

2 One of the most famous iterations of this debate is that between H.L.A. Hart and John

Devlin. Cf. H.L.A. HART, LAW, LIBERTY, AND MORALITY 4–6 (1963) (advocating against

regulation of moral offenses); PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 5–7 (1968)

(arguing that moral offenses can be regulated) .

3 See, e.g., Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of

Sexuality, in PLEASURE AND DANGER 267, 283 (1984) (“A democratic morality should judge

sexual acts by the way partners treat one another, the level of mutual consideration, the

presence or absence of coercion, and th e quantity and quality of the pleasures they

provide.”).

4 See id.

580 CAPITAL UNIVERSITY LAW REVIEW [45:579

and lineage, and the sustenance of the human population.5 They argue that

every sexual act morally implicates and has consequences for these ideas,

including, by necessity, those that consciously attempt to avoid

parenthood.6

Among the loudest, and perhaps most interesting voice on these

questions is that of the Catholic Church, particularly to the extent that the

Catholic Church posits not just religious doctrine, but also a more

secularized “natural law” to support its position on both the morality and

the regulation of sex alike.7 What is particularly interesting is the Catholic

Church’s conceptualization of how human beings dignify—and are

dignified by—one another in sex.

This issue on which that Catholic doctrine is particularly focused

highlights consequences of sex, less far-reaching than parenthood and

family, yet broader than one individual and her autonomy: sex speaks to

the question of what kind of regard we owe to another human being in our

immediate interpersonal interactions with them.8 Of course, it is hardly

only Catholic doctrine that recognizes this. Sex positive scholar Gayle

Rubin herself puts it rather astutely: while rejecting an analysis of sex in

terms of “sin, disease, neurosis, pathology, decadence, pollution, or the

decline and fall of empires,” she urges us to think of sex in the less morally

loaded terms of “populations, neighborhoods, settlement patterns,

migration, urban conflict, epidemiology, and police technology.”9 As she

states, “[s]exuality is as much a human product as are diets, methods of

transportation, systems of etiquette, forms of labor, types of entertainment,

processes of production, and modes of oppression. Once sex is understood

5 See, e.g., SHERI F GIRGIS, RYAN T. ANDERSON, & ROBERT P. GEORGE, WHAT IS

MARRIAGE? MAN AND WOM AN: A DEFENSE 74 (2012) (“To form a true marriage, a couple

needs to establish the comprehensive mind-and-body union that would be completed by and

apt for procreation and domestic life and that thus inherently calls for permanent and

exclusive commitment.”).

6 See id.

7 See, e.g., Sherif Girgis, The Historic Christian Teaching Against Contraception: A

Defense, PUB. DISCOURSE (Aug. 10, 2016), http://www.thepublicdiscourse.com/

2016/08/17559 [https://perma.cc/E2HD-2GXJ] (“A contraceptive culture therefore tends to

privatize adult desire and prioritize it over ch ildren’s needs.”).

8 See Pope John Paul II, Lust Limits Nuptial Meaning of the Body, ETERN AL WORD

TELEVISION NETWORK (June 30, 1980), https://www.ewtn.com/library/PAPALDOC/

jp2tb30.htm [https://perma.cc/WRU2-PM63].

9 See Rubin, supra note 3, at 277.

2017] SCRUTINIZING SEX 581

in terms of social analysis and historical understanding, a more realistic

politics of sex becomes possible.”10 In highlighting these factors that

influence sexual tastes—and particularly in pointing out that sex “is as

much a human product as are diets”—Rubin illuminates the idea that our

tastes must always impute our desire, and just as importantly our disgust,

towards other human beings.11 Where sexual conduct involves more than

just one person, our desires and disgusts are actualized through another

human being.12 In this way, what kind of regard we owe to another human

being is a question that is inevitably present during sex—a question that

Catholic sexual morality in particular seeks to answer.13

It is this question that this Article explores, particularly from the

lens—and through simultaneous critique—of Catholic sexual morality and

the body of so-called natural law it has inspired. More specifically, this

Article looks at the idea, which is an integral part of Catholic morality and

natural law on sexuality, that sex must be motivated not by lust—which is

considered both subrational and insufficiently respectful of other human

beings—but by greater reason and purpose that gives due regard to

others.14 In sex that is morally licit, a person “is not just a passive object,

defined by his or her own body and sex . . . .”15 Instead, a person must be

“‘given’ to the other as a unique and unrepeatable subject, as ‘self,’ as a

person.”16 As this Article will establish, Catholic morality and natural law

establish that, for this to be possible, sex must be “unitive,” involving a

married man and woman who seek to fulfill the positive good of

marriage—a conceptualization that, most visibly, is key to natural law and

Catholic morality’s condemnation of same-sex sexual conduct.17

By contrast, in sex that is illicit, “lust of the flesh directs these [sexual]

desires . . . to satisfaction of the body, often at the cost of a real and full

10 Id.

11 Id. at 277.

12 Id. at 279.

13 Id. at 278.

14 Id.

15 Pope John Paul II, Analysis of Knowledge and of Procreation, ETERNAL WORD

TELEVISION NETWORK (Mar. 10, 1980) [hereinafter Knowledge and Procreation],

http://www.ewtn.com/library/papaldoc/jp2tb19.htm [https://perma.cc/TY2U-SVZE].

16 Id.

17 Pope Paul VI, Encyclical Letter: Humanae Vitae, HOLY SEE (July 25, 1968),

http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-vi_enc_25071968_

humanae-vitae_en.html [https://perma.cc/5WAZ-R6LA].