The Right to Do Wrong:

There is controversy over whether NYU should have invited an anti-gay figure from Singapore to be a visiting professor of "human rights." I'm going to skirt most of that controversy and instead focus on one thing she asserted that I think needs to be discussed. She argued the right to "sodomy" is not a "human right" because the behavior is wrong and there can not be a right to do wrong.

I argue, on the contrary, in a free, "rights oriented" pluralistic society, there MUST be, in PRINCIPLE a potential "right" to do what arguably may be wrong. I don't think homosexual behaviors are wrong per se; but even if they were that still doesn't mean there could be no "human right" (natural right, liberty right, privacy right, however you want to term it) for it.

There are only two possible bases for homosexuality to be "wrong" in an objective sense. One is if the specific passages in the Holy Books that tell us the behavior is wrong are in fact divinely inspired. Personally, I don't think they are. OR, if the natural law case against homosexuality is true in a moral sense. Again, I don't think it is.

Re the biblical case against homosexuality, the Bible is a big complicated book. In a pluralistic society, (i.e., America's) some folks don't believe any of it is true; some believe parts of it are true; and some believe the entire good book is inerrant and infallible. And even those who fall into that later group profoundly disagree on what it teaches regarding moral and theological issues. For instance, my friend Gregg Frazer is a smart, biblically learned and intellectually capable evangelical-fundamentalist. AND he argues based on a long, rich orthodox political theological tradition that ALL rebellion against ANY government (including the Nazis and Communists) is wrong, a sin worthy of death, the moral equivalent of witchcraft.

So how could American "higher law" -- and the human rights derived therefrom -- be based on the inerrant, infallible Bible when Sola Scriptura can't "settle" the issue of "America 101." Moreover, it can't settle the issue of slavery either. And it also does not speak to religious liberty, the most unalienable of natural rights, the right that gave birth to the concept of political liberty (folks might wonder why I, a political libertarian, spend so much time on religion & the American Founding; this is it).

The right to religious liberty necessarily means a right to break the first tablet of the Ten Commandments and MANY other parts of the Bible. Whatever their differences, every single "key American Founder" believed men had a natural right to worship false gods (that is, religious liberty extended beyond the biblical religions). And even limiting "religious liberty" to those WITHIN the "Judeo-Christian" or Abraham tradition doesn't solve this problem.

Some of the more pious unitarians argued Trinitarianism is Idol Worship. If Jesus isn't God, it is morally wrong to worship him as one. This is the same rationale that gets Christians executed under Sharia law (of course the unitarians weren't arguing for that, just that Trinitarianism is immoral idol worship). Likewise many orthodox Trinitarians argue since God is Triune in nature, if you (Jews, Unitarians, Deists) don't worship a Triune God, you don't worship Him, but a false god and hence do what the Bible forbids. Heresy was an executable offense for most of the history of Christendom.

So, the notion that the inerrant, infallible Bible is the "higher law" from where human rights derive and that any thing the Bible forbids cannot therefore be a "right" does not accord with the idea of "rights" as posited by America's Founders.

Let me note, there is a way out for those who DO want society to be more easily ruled by biblical norms -- give up on the "rights talk" and, consequently the Declaration of Independence. The First Amendment may demand religious liberty for non-Christians. AND it may be a bad practical idea to refuse to permit non-Christians to worship as they please. But it's NOT because the Bible teaches a God given right to religious liberty (it doesn't) or because the Declaration is true (I'm not going to say either way) or that the Declaration's "Truths" come from the Bible (they don't).

Social conservatives might observe that the Constitution is unalienable "rightsless"; it recognizes a very limited concept of "rights"; and an unalienable rightsless Constitution permits religious conservatives to participate in politics and write their religious values into law.

This shouldn't be a controversial issue for religious and Christian conservatives; Robert Bork, Lino Graglia, Robert Kraynak and many others argue exactly this. They would say to even DISCUSS the issue of a "right to do wrong" unduly gives credence to "rights talk." "Natural rights" are a fiction. They don't neatly line with a conservative Christian or a traditional "natural law" worldview. And they are entirely absent from the text of the US Constitution. They are central to the Declaration of Independence; but that document is NOT law and hence can be ignored.

Social conservatives are on stronger ground, intellectually, philosophically and historically when they argue the concept of "natural rights" from the "natural law," as opposed to the Bible.

By natural law, we mean what man discovers from "reason" looking to "nature" without the Bible for help. If by "nature" you mean something written in the Bible then argue Bible and stop pretending you are arguing from a "different" channel.

I am going to skirt the very important issues of 1) whether the natural law exists, and 2) if it does exist and if Thomas Aquinas' understanding of it is correct, whether said understanding vindicates ideas of "unalienable rights," religious liberty, and a right to revolt against tyrants (arguably it does not).

Rather I want us to take the traditional understanding of the natural law as it is (complete with its prohibitions on homosexual conduct) and ask whether THAT possibly could serve as the basis for any meaningful concept of "rights." Like the Bible, Aquinas' book of NATURE is complex and demanding; like the Bible it is not a politically "free" code, but rather seems the opposite. I've heard one prominent natural law scholar claim Aquinas' natural law is "permissive" and thus in accord with political liberty.

I don't think it is; on sexual issues the ONLY convincing natural law case against homosexuality also forbids, among other things, masturbation, contraception, even between married couples, any time sperm is purposefully deposited outside of a womb.

The ONLY intellectually consistent natural law theory that forbids homosexuality also forbids these things. Any attempt to argue otherwise is a contrivance -- an intellectually faulty position that wants to have its cake and eat it too. If "natural design" proves homosexuality wrong; then "natural design" proves oral sex or contraception for married couples wrong as well. Men were designed for women, penis for vagina, sperm for egg. ANY break in that chain is as naturally wrong as any other break. OR maybe homosexuality, masturbation, and contracepted sex aren't "unnatural" in an "ought" sense.

The question then is, in a free, rights oriented society, DO we have the right do things that may violate the natural law? To which I answer, if rights are to have any meaningful content, of course we do. In PRINCIPLE, in the privacy of their homes, 1) a husband has a right to ejaculate outside of his wife's womb; 2) a married couple has a right to use contraception; 3) a teenager has a right to masturbate; and 4) homosexuals have the right to do what they do, consenting and in private.