Harry Jaffa, Homosexuality & the Natural Law:

[Note: I’ve been planning on tackling this issue for some time now. I am simply going to raise a few points; this post isn’t meant to be a comprehensive rebuke of Jaffa’s position, or the last word.]

Harry Jaffa believes that unaided reason-nature demonstrates that homosexuality is not just wrong, but wrong along the same grounds and on the same level as slavery and genocide (perhaps that thesis by itself, so self-evidently absurd on its face, is enough to impeach Jaffa’s argument, but let’s examine his logic nonetheless). He writes:

I challenge anybody who wants to defend homosexuality to say if they condemn slavery and genocide. Assuming they do condemn slavery and genocide (unless they are some kind of a Hitler) I think we would say that all would agree today that slavery and genocide are wrong.

Well, I’m up to the challenge!

However, as far as I can tell, the only ground on which they can be condemned is on the basis of nature. We do not speak of a rider enslaving a horse, or the farmer enslaving the ox who is pulling the plow. We do not speak of the slaughter of cattle in the Kansas City or Chicago stockyards as genocide. Why? Because these are animals of an inferior species, which we understand can be used for human purposes without violating any moral law.

Thus, the distinction upon which we make these moral judgments is based on distinctions in nature, which we find in and are consistent with nature.

In other words there is a natural distinction between man (rational) and beast (subrational). Elsewhere Jaffa notes the at least equally profound distinction between man (rational) and God (suprarational).

Not everyone accepts these distinctions. Pete Singer and the animal rights crowd argue that man and animals ought to have equal rights. And if we accept things such as slavery, genocide, and cannibalism to be wrong, then logically we would have a moral duty not to enslave, kill, or eat animals, or turn them into our clothes. Indeed, PETA has analogized what Kentucky Fried Chicken has done to the Holocaust for its “genocide” of chickens. Animal rights activists also object to humans “owning” their pets (as people presently do under the Uniform Commercial Code, and other relevant provisions of property and contract law), because that implies that our pets are our “slaves.” No, we should “adopt” our pets and have the legal relation to them of not “owners,” but “guardians.”

Also others—atheists, agnostics, etc.—reject Jaffa’s distinction between man & God, because, they would ask, how do you draw distinctions between something that does exist (man) and something that doesn’t (God)?

Let us, for argument's sake, accept Jaffa’s premises of the profound natural distinctions between man & beast on the one hand and man & God on the other. And although I question the existence of God (but tend towards belief in some kind of ultimate intelligence and sphere of existence for human consciousness beyond this realm), I do accept the distinction between man & beast, along the same grounds that Jaffa argues (that there is nothing wrong with slaughtering, enslaving, eating, and wearing animals, because rights, by nature, belong to humans only).

Then Jaffa raises a new natural distinction (the one that homosexuality violates):

Of all the distinctions in nature from which morality can be inferred, nothing is more profound than the distinction between male and female, which runs not only for human nature but through all nature.

The word nature itself, both in Greek and Latin, refers to living things. The principle of life, in virtue of which a species perpetuates itself, is the distinction between male and female. If we look at this distinction as it occurs in the human species, we can see the principal of self-preservation at work.

All of this leads Jaffa to conclude, "Sodomy is against nature, since it treats men as if they were women."

The central flaw in Jaffa’s logic is exposed in the longer passage cited above. Yes, there are natural differences between male & female, and gender is more than just a “social construct” as the poststructuralists argue (although, certain aspects of gender and gender roles certainly are socially constructed). But as a matter of Truth, the male-female distinction is not nearly as profound as the distinction between man & beast on the one hand and man & God on the other.

As Jaffa notes, these distinctions are found in and consistent with nature (in other words, “observe nature” then derive our oughts from distinctions in nature). When we observe nature, we see that the distinction between man & beast is so profound that nature never blurs the line between the two. There are no naturally occurring “man-beasts” that have both human and sub-human features. While it’s true that some animals, like apes, are from an evolutionary point of view more closely related to humans, there still are no “ape-men”; humans and monkeys clearly belong to different species; from what I understand a human and a monkey cannot procreate with one another.

In the future, science most likely will allow us to blur the line between man & beast and create a world like that of the Island of Dr. Moreau and that will in turn demand that we re-think through some of these issues. Although scientists have begun the process already, presently the distinction between man & beast remains very nearly absolute in nature.

Likewise, in observing nature we see that there is no blurring of the distinction between man & God. God-men do not exist. If one believes in the Trinity (I don’t), then Jesus represents the one and only time that the natural distinction between man and God was blurred.

But what of the distinction between males & females in nature? Nature commonly blurs the line between the two. First, not all species reproduce heterosexually. Some reproduce asexually. Some creatures have both male and female genetalia. And some species naturally and spontaneously “switch” genders in their lifetime.

Although many of these examples are in animal nature, Hermaphroditism exists within human nature. Because of what we know about how gender differences arise in nature, it shouldn’t surprise us that nature often blurs the line. As James Q. Wilson writes (and keep in mind what side of the culture war he is on):

It seems clear that Mother Nature would much prefer to produce only girls, because she does such a poor job of producing boys. Her preferences are quite clear in this regard: All fetuses begin as females; only in the third month of gestation does masculinization begin. And when it does begin, it sometimes is a process prone to error, leading to all manner of deficiencies and abnormalities….Having invented the male, Mother Nature doesn't quite know what to do with him. It is as if she had suddenly realized, too late, what every student of biology now knows: Asexual reproduction is far more efficient than sexual reproduction. But now we are stuck with men who are likely to be both troublesome and vulnerable.

ALL male fetuses go through a natural transmogrification from female to male—another natural blurring of the male/female distinction, one that is universally applicable. It is thought that male homosexuality may very well have a neonatal origin, that during the masculinization process of the fetus, the delicate hormone balance becomes out of whack and hence a natural “error” or “abnormality” occurs where certain parts of the brain are left more feminized while other parts remain masculinized, or perhaps over masculinized.

It should not surprise us then that homosexuality is observed not only in human nature, but also animal nature.

After taking this into account, I don’t see how anyone can argue with a straight face that “nothing is more profound than the distinction between male and female, which runs not only for human nature but through all nature,” which is a keystone to Jaffa’s theory.

Man, Beast, God, Race, & Gender:

Now let us examine how we morally, socially, and legally distinguish between man, beast, & God and contrast that with how we make such distinctions between males & females and between the races.

Because of the profound difference between man & beast, the two are wholly non-interchangeable. An animal is closer to property than it is to a human—we may enslave, slaughter, eat, & own animals. And we may not marry animals or contract with them in any way. Nor is it possible to philosophize with animals, or flourish in a meaningful relationship (as we would with a lover, a child, parent, or close friend) with them. In other words, man and beast’s differences are wholly non-arbitrary.

Likewise the difference between man and God (if He exists) is so profound that we in no way exist on an equal footing with the suprarational intelligence who created the Universe. In short, just as beasts are subservient to man, man is subservient to God.

Racial distinctions perfectly contrast with human-animal distinctions. Racial differences although biologically evident, are from a natural, and hence a legal, moral, and (what ought to be) social context wholly arbitrary. Someone of a different race is perfectly interchangeable with someone of the same race in terms suitability for a contract or marital partner, equal familial status, capability to serve in public office, to vote, to sue or be sued or enjoy any “privileges or immunities” that human, but not animal citizens, may enjoy.

And our legal policy reflects this natural truth: If government discriminates on the basis of race, the 14th Amendment automatically strictly scrutinizes such a policy, and chances are, such a distinction will be unconstitutional. Likewise, according to the Civil Rights Act of 1964 and various state and local laws, in private markets, it’s illegal to treat blacks on a sub-par level as whites.

As mentioned above, animals have no similar rights; they can’t contract, hold public office, sue or be sued—they lack even the most basic rights against enslavement and slaughter.

So what about gender based distinctions? Western society views gender differences closer to racial differences than human-animal differences. Women, like men, have equal rights of citizenship and may not be slaughtered or enslaved. Gender, like race, has a high degree of “arbitrariness” associated with it. If government treats women differently than men, such distinctions are subject to 14th Amendment scrutiny and gender discrimination is illegal in private markets according to the Civil Rights Act of 1964 and other state and local laws as well.

Although natural gender distinctions pale in comparison to natural human/animal distinctions, gender differences are not as non-arbitrary as race. We permit gender distinctions where we don’t permit racial ones: Segregated bathrooms, dorm-rooms, and the military (although these are all highly contested by militant feminists). The 14th Amendment subjects gender distinctions to intermediate scrutiny as opposed to strict (race) thus allowing for more gender based exceptions. And gender is a bona-fide-occupational-qualification according to private anti-discrimination law, where race and color are never.

Using Men as Women and Vice Versa:

Ultimately Jaffa's case fails because he inadequately explains why ignoring the distinction between genders is morally wrong along the same lines as ignoring the man/beast distinction. Jaffa begins his argument by showing that ignoring the man/beast distinction can lead to slavery and genocide.

If gender is as profound a natural distinction as Jaffa assumes, then men & women likewise ought to have profoundly different roles to play in society. Moreover, there must be many examples, other than homosexuality, of "using men as women" and vice versa.

And are they, like homosexuality, morally wrong along the same lines as slavery and genocide? Let's try to think of some.

I once debated a fundamentalist who said she was "sickened" by a gay interlocutor's remark that he was going to "pick out China patterns" for an upcoming wedding. Why? Because he reveled in acting a woman's role. Is this as wrong as slavery?

Gender roles were once understood as denying women the right to vote or hold public office. Is it unnatural and hence wrong that we now allow women to do these things?

While few defend denying women the right to participate in government, some still argue that a man's natural role is to head the family and provide, while the woman's is to nurturer and raise the children. So what if gender roles are reversed, where the wife is a high-power executive and her husband stays home, cooks, cleans, and raises the children. Is this immoral along the same lines as genocide?

Jaffa's logic would lead us to believe that for a man & woman to swap their natural roles, whatever they are, violates the natural law as does homosexuality. And the head of household-provider/ nuturer-caregiver model is the most elementary to understanding traditional gender roles that the likes of Jaffa support. I know Jaffa opposes feminism, but I have yet to see him argue that if women wearing the pants in a marriage is not unnatural and wrong, then nothing, not even serial killing is wrong.

Our social custom has largely eliminated such gender distinctions and our laws have almost entirely obliterated them. Our anti-discrimination laws and constitutional jurisprudence make little attempt to preserve such gender roles, as one would think they should if men & woman acting outside of their prescribed roles is as bad as slavery.

I have yet the see Jaffa thunder against including "gender" in the Civil Rights Act of 1964, something that surely helped many women out of the home, or the Constitutional application of intermediate scrunity for all government gender based classifications as fostering "using women for men" and hence violating the law of nature as does genocide. Jaffa would if he consistently applied his theory. But then that would just help to expose its ridiculousness. So it's no surprise that he doesn't go there.