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 © 201 7, 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 drafts. 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 the 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. , SHERIF GIRGIS, RYAN T. ANDERSON, & ROBERT P. GEORGE, WHAT IS MARRIAGE? MAN AND WOMAN: 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 children’s needs.”). 8 See Pope John Paul II, Lust Limits Nuptial Meaning of the Body , ETERNAL 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]. 582 CAPITAL UNIVERSITY LAW REVIEW [45:579 communion of persons.” 18 With a person’s lust comes “an impulse to ‘dominate’ . . . .” 19 From the perspective of a man: [f]rom the moment when the man “dominates” her, the communion of persons—made of the full spiritual union of the two subjects giving themselves to each other—is followed by a different mutual relationship. This is the relationship of possession of the other as the object of one’s own desire. 20 In other words, this kind of sex eschews people acting as subjects; rather, people exist only as objects defined solely by their physical existence. As Pope John Paul II sums up, “[t]he appeal to master the lust of the flesh springs precisely from the affirmation of the personal dignity of the body and of sex, and serves only this dignity.” 21 Part II explores the idea that, in order for sex to give sufficient regard to another human being, and not to be driven simply by a desire to objectify another person, it must be unitive, fulfilling a marital good between a man and a woman. 22 Ultimately, Part II criticizes this idea, showing how natural law incorrectly assumes that non-unitive sex, including sex that involves the noblest of intentions, must automatically seek self-gratification alone. 23 Thus, natural law is wrong in arguing that any act of non-unitive sex must be insufficiently respectful of other human beings. 24 Part III explores the argument that, notwithstanding the flaws of its position on non-unitive sex, the Catholic conceptualization of subjects versus objects of sex illuminate a harm to dignity that can arise from sex— regardless of whether it is unitive or non-unitive. 25 Here, this Article argues that natural law and Catholic morality complement the idea, made famous particularly by feminist scholar Catharine MacKinnon, that harm 18 Pope John Paul II, supra note 8. 19 Id. 20 Id. 21 Pope John Paul II, Realization of the Value of the Body According to the Plan of the Creator , ETERNAL WORD TELEVISION NETWORK (Oct. 27, 1980) [hereinafter Value of the Body ], https://www.ewtn.com/library/PAPALDOC/jp2tb44.htm [https://perma.cc/4G2Q-6BFF]. 22 Infra Part II. 23 Infra Part II. 24 Infra Part II. 25 Infra Part III. 2017] SCRUTINIZING SEX 583 towards another can arise from even consensual and mutually desired sex. 26 This Article works to draw a contrast between how natural law and Catholic morality...