Erik A Anderson. Ethical Theory and Moral Practice. Volume 16, Issue 4. 2013.
The “new natural lawyers” (henceforth ‘NNLs’) are a prolific group of philosophers, theologians, and political theorists that includes John Finnis, Robert George, Patrick Lee, Gerard Bradley, and Germain Grisez, among others. These thinkers have devoted themselves to developing and defending a traditional sexual ethic according to which homosexual sexual acts are immoral per se and marriage ought to remain an exclusively heterosexual institution. Different NNLs have presented what amount to different versions of the same argument in a number of publications. Thus it is appropriate to speak of the new natural law argument against homosexual acts and same-sex marriage.
In their recent book Body-Self Dualism in Contemporary Ethics and Politics, Lee and George reiterate the new natural law argument and defend it against a number of objections. One objection in particular they call “the sterility objection” (2008: 197-198). This objection, which has been developed by Stephen Macedo (1995) and Andrew Koppelman (1997, 2002), holds that the NNLs are guilty of making an arbitrary and irrational distinction between same-sex couples and sterile heterosexual couples. The NNLs believe that it is a necessary condition for two people’s being morally and legally entitled to get married that they be able to perform sexual acts that are “suited to procreating” (Grisez 1993: 635). But sterile heterosexual couples are incapable of performing such acts. Therefore, it should follow from the NNLs’ own premises that sterile heterosexual couples are not entitled to marry. But the NNLs do not draw this conclusion. Instead, they maintain that sterile heterosexuals can marry while denying that the same is true of same-sex couples. The sterility objection claims the NNLs are being inconsistent in treating the two kinds of couples differently. Since neither type of couple is capable of intercourse “suited to procreating,” they should be treated in the same manner when it comes to the moral and legal entitlement to get married.
Although the sterility objection has been endorsed by recent critics (Corvino (2005: 517), Bamforth and Richards (2008:272-274)), I don’t think the objection has yet been adequately defended. The NNLs have responded to this objection by arguing that there is a sense in which the sex acts of sterile heterosexual couples are as suited to reproduction as those of fertile heterosexuals. Thus they maintain that the distinction they draw between the two kinds of couple has a rational basis. A successful defense of the sterility objection must show that this response on the part of the NNLs fails. Such is the task I undertake in this paper. In the first section I present the NNLs’ argument that homosexual conduct is intrinsically immoral and that same-sex couples cannot legitimately participate in the institution of marriage. I also present aspects of the NNLs’ overarching moral theory that form the necessary background for understanding this argument. In the second section I sketch the sterility objection and explain why I take it to be an important objection. In the third section I explain how the NNLs try to respond by arguing that what matters is not whether an act of sexual intercourse can actually succeed in achieving reproduction but whether it is the kind of act that could achieve reproduction in favorable circumstances. In the fourth and final section I explain why their response fails. The NNLs’ response fails because acts of penile-vaginal intercourse between sterile heterosexuals lack the actual causal power to produce conception that sexual acts need to be considered truly reproductive, and because their assumption that penile-vaginal intercourse always functions reproductively is bad biology.
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The NNLs’ argument against same-sex marriage employs a number of concepts and principles that are rooted in their overarching moral theory. I will begin by sketching the main outlines of that theory, highlighting the elements that play central roles in the argument against homosexual conduct.
The NNLs claim that practical reason presents us with a set of “basic human goods.” Basic human goods are ends achievable through human action that are intrinsically and objectively valuable and thus choice-worthy for their own sake. They provide us with “intrinsically choice-worthy ends or purposes” that we rationally ought to pursue in and through our actions (George 1995: 12). The lists of the basic human goods offered by the NNLs have varied somewhat. Finnis lists (human) life, knowledge, play, aesthetic experience, sociability, practical reasonableness, and religion as the basic human goods (1980:86-90). To this list we must add two subsequent additions that play significant roles in the NNLs’ argument against homosexual conduct: marriage (Grisez 1993: 556, note 43) and the good of “personal integrity” or “self-integration” (which may be implicit in Finnis’ practical reasonableness) (George 1999: 166). The NNLs hold that we grasp the intrinsic choice-worthiness of the basic human goods through “non-inferential acts of understanding” rather than through some kind of inference (George 1995: 13). When expressed in statement form, for example, as “knowledge is a good to be pursued,” the basic human goods become “basic practical principles” that are self-evidently true (Grisez et al. 1987:106).
Considered by themselves, the basic human goods are simply things that it is rational and intelligible for human beings to pursue. One can act immorally in their pursuit (George 1999: 118). It is the problem of determining how one should act in pursuit of the basic human goods that makes it necessary for us to invoke a second set of principles, which are principles of morality proper. These principles are “basic requirements of practical reasonableness” or “modes of responsibility.” Their job is to “guide the transition from judgments about human goods to judgments about the right thing to do here and now” (Finnis 1983:74-75). These principles are “specifications” of a single first principle of morality (discussed below); they are “intermediate” principles because they lie in between this first principle and conclusions about how we should act in particular situations.
The first principle of morality states that “in voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfillment” (Grisez 1983a: 184; Grisez et al. 1987: 128). Integral human fulfillment is an ideal of a community in which all persons enjoy “fulfillment … in all the basic goods” (Grisez et al. 1987: 128) and in which “all the goods of human persons would contribute to the fulfillment of the whole community of persons” (Grisez 1983a: 185). Integral human fulfillment is not something that can be directly produced through human effort or action (Grisez et al. 1987: 132; Grisez 1983a: 222). Nevertheless, it is an ideal that provides definite guidance for human conduct. The guidance the ideal provides is primarily negative: it rules out actions that would needlessly preclude, limit, or undermine the flourishing of ourselves or others; it requires that we pursue the basic human goods in ways that do not arbitrarily limit our own or others’ participation in those goods.
The ideal of integral human fulfillment generates the basic requirements of practical reasonableness or modes of responsibility as intermediate principles that make more definite and concrete the restrictions on our actions dictated by the ideal of integral human fulfillment. Applying these principles to particular choice-situations, we arrive at practical judgments as to what choices morality rules out in that situation. These principles “leave open a diverse array of options while ruling out” some as “inconsistent with reason” (Chartier 2001: 1603). Two of these principles figure centrally in the NNLs’ argument against homosexual conduct. The first requires that we “not choose directly against any basic human good” (Finnis 1980: 123). We choose in the prohibited way when our intention is to destroy, damage, interfere with, or otherwise impede the realization of a basic human good, either for its own sake or for the sake of some further end. The second requires that we “not choose apparent goods, knowing them to be only the simulations of real goods, even when the simulation brings real emotions or experiences, real satisfactions” (Finnis 1983:75-76). This principle requires that if the goodness of some activity we are engaged in is merely apparent, we should give it up—even if it continues to give us pleasure or gratification.
With this sketch of the NNLs’ overarching moral theory in place, we can now consider how they apply this theory to homosexual conduct. As mentioned previously, the NNLs consider marriage to be a basic human good. But what is a marriage? The NNLs often refer to marriage (using a Biblical metaphor) as a “two-in-one flesh communion” (e.g. George 1999: 215). Marriage makes possible “the most far-reaching form of togetherness possible for human beings” (Finnis 2008: 389). It includes genuine friendship between the spouses, with all that this entails. But while marriage includes friendship, it also goes beyond it, primarily in its comprehensiveness. Sherif Girgis, Robert George, and Ryan T. Anderson derive the permanence and exclusivity of marriage from its comprehensiveness (2010: 259). Both permanence and exclusivity are supposed to reflect the unconditional nature of the spouses’ commitment to each other. What is perhaps most distinctive about marital sharing is that it extends even to the spouses’ bodies—and the most intimate parts of their bodies—through sexual intercourse.
Another respect in which the NNLs think that marriage goes beyond friendship is in its teleological orientation to the having and raising of children. George describes that marital relationship as finding its “natural fulfillment” in the spouses “begetting, nurturing and educating of children together” (George 1999: 168). Men and women are biologically complementary and their sex acts are uniquely capable of bringing children into existence; the “form of life” of marriage “is fundamentally shaped by its dynamism towards, appropriateness for, and fulfillment in, the generation, nurture, and education of children” (Finnis 1997: 131). Finnis describes marriage as a “complex basic good” that includes as constituents both “the good of marital friendship” and “the good of procreation” (1997: 125). Having and raising children is distinct good from that of marital friendship but one that is coherently combined with it within the overall good of marriage. A married couple that is infertile can enjoy marital friendship and remain “open” to procreation by engaging in non-contracepted intercourse, but their marriage “cannot have the fullness that a fertile marriage can have, and in that respect is a secondary rather than a central-case instantiation of the good of marriage” (1997: 127).
Let us turn now to the role sex is supposed to play in marriage. The NNLs hold that sexual intercourse is an action that a married couple should choose to engage in for the sake of their marriage itself. Not only is sex an act that promotes and enhances the relationship between the spouses, it actually enables them to unite themselves bodily in ways that reflect the broader union of their lives together. Finnis describes sexual intercourse as enabling the spouses to “actualize” and “experience” their marriage at the biological level (1995: 28). Thus we can say that sexual intercourse, engaged in by the spouses for the sake of their marriage as something intrinsically and objectively good, is an act that is partially constitutive of marriage itself—it carries into the realm of sex and the body the spouses’ decision to completely share themselves and their lives with one another.
Moreover, sex for the sake of the basic good of marriage is sex that the spouses can engage in with integrity (which, as we saw above, is another basic good). The NNLs hold that if two people engage in sex for the sake of pleasure alone, each treats his or her own body and the body of the other person as “extrinsic instruments” for the production of pleasure “for the conscious self (George 1999: 149). To treat one’s own or another’s body as a mere means for the production of pleasure is to show “contempt” for it, to treat it as “a mere object for use” (Lee and George 2008: 188). But according to the NNLs, the body is an essential part or aspect of a person. Therefore, to treat the body as an instrument is both to treat as “separable” what in fact are “metaphysically inseparable parts of the person as a whole” (the body and the conscious self) (George 1999: 148) and to demean the person in his or her bodily aspect. The NNLs describe this way of treating oneself or another person as “disintegrative,” a violation of “the basic human good of self-integration” (George 1999:167). In contrast, when spouses have sex for the sake of the basic good of marriage, they are not using their bodies as mere instruments for pleasure. Their sexual act produces a “true bodily union … [that is] integrated with their emotional and spiritual union” (Lee and George 2008: 191). The pleasure they experience is “sought and welcomed” not as an end in itself but as “an experiential aspect” of their participation in the basic good of marriage itself (George 1999:149).
One might suppose that talk of sex “uniting” the spouses is only a metaphorical way of referring to the physical and emotional intimacy sexual acts produce. But the NNLs think that acts of penile-vaginal intercourse, alone among sexual acts, literally unite the spouses into a single entity. When it comes to most biological functions, e.g. “nutrition, sensation, and locomotion,” each human being, male or female, functions as a “complete individual” (Grisez, quoted in George 1999: 145). But the biological function of reproduction is different. In relation to this function, human individuals are “fundamentally incomplete,” each naturally and essentially requiring the cooperation of another individual of the opposite sex. Human beings form a “single reproductive principle” only as a “mated pair” (George 1999: 145). Therefore, when a man and a woman engage in “reproductive-type acts” they are functioning as “an organic unit,” “the complete organism capable of reproducing sexually,” or as “one organism” (George 1999: 145). No other type of sexual act is capable of producing this literal, biological unification of the spouses. Because of their unique ability to unify the two spouses, acts of non-contracepted penile-vaginal intercourse are uniquely “marital.”
We are now in a position to see why the NNLs claim that homosexual conduct is intrinsically immoral and same-sex marriage is “a sham” (Finnis 1997: 130). According to the NNLs, the sex acts performed together by two men or two women (mutual masturbation, oral sex, anal sex) perform no biological function and so cannot literally join their participants together into a single organic unit. Consequently, such acts do not enable the participants to actualize and experience the union of their two lives into one at the bodily level and cannot intelligibly be performed for the sake of marriage itself. All such acts, even if performed by heterosexuals (indeed even by married heterosexuals) are incapable of enabling two people to experience and actualize their marriage and are thus “non-marital.” True, a same-sex couple might see themselves as married and perform sexual acts with the intention of carrying their broader relationship over into the sexual realm. But according to the NNLs, there is an unbridgeable gulf between what a same-sex couple might intend to do through such acts and what those acts can actually accomplish. As Finnis puts it in a notorious passage, there is a gap between “the generous hopes and dreams and thoughts of giving with which some same-sex partners may surround their sexual acts” and what those acts actually achieve “in reality” (1995:29-30).
The NNLs have at least three reasons for thinking it is positively immoral for same-sex couples to engage in those sex acts they are capable of engaging in. First, since acts other than penile-vaginal intercourse are intrinsically unsuited for “actualizing” the marriage relationship at the bodily level, same-sex couples who choose to perform such acts are guilty of choosing to act “against” (i.e. in a manner inconsistent with) the basic good of marriage. This violates the first moral principle stated above that we should “not choose directly against any basic human good.” Second, if the members of a same-sex couple mistakenly believe that their sex acts truly unify them and succeed in actualizing their marriage, they have fallen prey to an illusion. In that case, they are guilty of violating the second moral principle stated earlier, which forbids acting for merely “apparent goods, knowing them to be only the simulations of real goods, even when the simulation brings real emotions or experiences, real satisfactions” (Finnis 1983:75-76). Third, since the sex acts in which same-sex couples engage cannot be intelligibly performed for the sake of marriage, the only thing such acts actually accomplish is to provide their participants with pleasure. But as we have seen, the NNLs think that sex engaged in solely for the sake of pleasure violates the basic good of personal integrity and thus violates the first principle mentioned above (George 1999: 149).
Because the morally good sex that is constitutive of marriage (penile-vaginal intercourse) is unavailable to same-sex couples, and because the sex acts in which they can engage are immoral, the NNLs conclude that same-sex marriages should not be legally recognized and homosexual activities should be legally discouraged (Finnis 1995: 38).
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In this section I will sketch the sterility objection and explain why it is important. Perhaps the best way to explain why the objection is important is to compare it with a different objection that has recently gained traction among critics. This objection targets the NNLs’ claim that penile-vaginal intercourse literally transforms a man and a woman into a single organism. So let me begin by presenting this alternative objection, which I call the “no unity objection.”
The NNLs think that a man and a woman become a single organism when they engage in penile-vaginal intercourse. To coin a name for this alleged organism, let us refer to it as a “copulant.” Do copulants exist as organisms in their own right? The no unity objection denies that they do. Copulants lack nearly all of the properties that we associate with complete organisms, at least of the animal kind: they do not have central nervous systems, their own sense organs, or limbs that are subject to centralized control, they do not take in nourishment, eliminate bodily waste, engage in locomotion (rolling around on the bed doesn’t count), maintain the integrity of their bodily systems, or adapt to changes in their environment. Instead, their component parts, the man and the woman (who are complete organisms) do all of these things separately and independently (Moore 2003: 256). Gareth Moore observes that, strictly speaking, copulants do not even reproduce sexually, since that would require two distinct entities and copulants do not “mate” with other individuals of their kind (257). Nor, I might add, do copulants reproduce themselves. Rather than giving birth to entities like themselves (little copulants), they bring into being entities that are only potential parts of future copulants (little boys and girls). We should also observe that organisms typically perform multiple biological functions, but copulants perform only one, reproduction. It seems impossible, however, for there to be an organism that performs only a single biological function. And even when it comes to that single function, copulants are apparently not very good at it since “every married couple is sterile most of the time” (Finnis 1997: 127).
Nicholas C. Bamforth and David A. J. Richards treat Moore’s version of this objection as a slam-dunk. They refer to the NNLs’ claim of organic unity as resting on an untenable “pseudo-biology” (2008: 251). But while the no unity objection weakens the NNLs’ argument, it doesn’t conclusively refute it. Arguably, that two human beings of opposite sex must jointly perform an action, penile-vaginal intercourse, to which each makes complementary and necessary biological contributions and which is necessary to accomplish an essential biological function, does make them resemble an organism in important ways in the performance of that action. The NNLs could admit that the copulating couple is only “organism-like” while still insisting that there is an important sense in which it forms a biological-functional unit. Perhaps the couple forms what Weithman calls a “sexually complementary union,” which exists when “(i) performance of the sexual activity in question engages the diverse sexual attributes and capacities of two adult partners, and (ii) the end of the activity could not be realized unless it were pursued in ways that draw on the diverse sexual capacities and attributes of the two adult partners” (1997: 230). If we add that the end of the sexual activity in question is a biologically necessary function (reproduction), the sexually complementary union formed by the couple could be said to constitute a biological-functional unit. The NNLs’ appeal to biological unity may be salvageable along these lines.
The no unity objection questions whether any sort of biological unity is possible through penile-vaginal intercourse. As I’ve indicated, the NNLs may have a plausible response to this objection (albeit one that requires them to relinquish the claim that the man and woman literally become “a single organism”). But it is just here that the sterility objection comes into play. As an objection to the NNLs’ argument, it proceeds on more conservative assumptions. For the sterility objection can grant that some kind of biological unity is achievable through penile-vaginal intercourse. What it denies is that such unity is achieved when sterile heterosexual couples have intercourse. Thus Koppelman writes that by the NNLs’ own logic, “sterile heterosexuals … are incapable of becoming one procreative organism, because it is impossible that in them sperm and egg could be united” (1997: 63). Similarly, Macedo says that “sterile heterosexuals … can form no ‘single reproductive principle’, no ‘real unity’. … The ‘one-flesh communion’ of sterile couples” appears “to be more a matter of appearance than reality” (1995: 278-279). The assumption lying behind this objection is that for an act of intercourse to be a biologically unifying case of reproductive functioning, reproduction must actually be possible through that act. Since sterile heterosexuals (at least those who are permanently sterile) cannot possibly conceive through their acts of intercourse, those acts are incapable of making them any kind of biological unit.
Suppose the sterility objector is right that sterile heterosexuals cannot become a biological unit through their acts of penile-vaginal intercourse. What follows? By the NNLs’ own logic, it follows that sterile heterosexuals ought not to be allowed to marry. For as we saw in the previous section, the NNLs think marriage requires sexual acts that truly unite their participants biologically and should be limited to couples that can perform such acts. With respect to biological unity, sterile heterosexuals are in the same boat as same-sex couples (who are similarly incapable of becoming biological units through their sexual acts) and should be treated in the same manner.
Of course, the NNLs are not going to accept this conclusion. (As we will see in more detail in the next section, it is a persistent theme of their writings that sterile heterosexual couples are fully capable of being married.) But then the sterility objector can accuse them of inconsistency in their differential treatment of sterile heterosexual and same-sex couples. If the crucial determinant of whether two people have the right to get married is their ability to become a biological unit through their sex acts, then neither sterile heterosexuals nor same-sex couples should have the right to marry. The NNLs can only defend treating sterile heterosexual and same-sex couples differently—allowing the former but not the latter to marry—by making an arbitrary and irrational distinction between them.
The sterility objector certainly has a preferred view as to how this inconsistency should be resolved: by recognizing that both sterile heterosexual and same-sex couples are capable of morally good sex and of participating in the institution of marriage. Resolving the inconsistency in this way has the consequence of making it irrelevant to the ethics of sex and marriage whether or not couples can become biological units through their acts of sexual intercourse. For if sterile heterosexuals can marry despite not being able to become biological units, then the ability to become a biological unit cannot be necessary for marriage and the morally valuable sex that occurs within it. This is ultimately what I think proponents of the no unity objection are driving at. In declaring the biological unity allegedly produced through penile-vaginal intercourse to be an illusion, they are claiming that something other than biological unity accounts for the moral value of sex between spouses. This something other includes the love, commitment, desire to share pleasure, and so on, that both opposite-sex and same-sex couples are capable of expressing and experiencing through their sex acts. The sterility objection is important to pursue in its own right because it promises to reach these same conclusions without denying the possibility that penile-vaginal intercourse produces biological unity in some cases. It can succeed even if the no unity objection fails.
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The NNLs have responded to the sterility objection in a number of places. They have attempted to show that there is in fact a principled basis for treating sterile heterosexual and same-sex couples differently. Their response begins by noting that while neither sterile heterosexual couples nor same-sex couples can achieve conception through sex, the former can still engage in acts of penile-vaginal intercourse. Why is this significant? Recall that according to the NNLs, a man and woman become a single biological unit when they perform acts of penile-vaginal intercourse because performing such acts constitutes reproductive functioning. What the NNLs try to argue is that engaging in acts of penile-vaginal intercourse is sufficient for engaging in reproductive functioning even if conception is not possible through those acts. If engaging in reproductive functioning is sufficient for a couple to become a biological unit of some sort (which the sterility objection grants) then even a permanently infertile heterosexual couple can become a biological unit. But given the role that biological unity plays in the NNLs’ conception of marital sex, this is enough to distinguish sterile heterosexual couples from same-sex ones.
The crucial claim in this response is that performing an act of penile-vaginal intercourse is sufficient for engaging in reproductive functioning. The NNLs defend this claim through a number of steps. The first step is to say that penile-vaginal intercourse is “the reproductive behavior characteristic of the species” (Grisez, quoted in George 1999: 145, italics omitted), “the behavior which, as behavior, is suitable for generation” (Finnis 1995: 29, note 46), or behavior of “the reproductive type” (George 1999: 141). These passages make the point that penile-vaginal intercourse is a “natural kind,” a type of behavior that has evolved to be characteristic of the species and that employs organs (penis, vagina), activities (penetration, thrusting), and processes (orgasm, ejaculation) that are all geared toward the natural end or telos of reproduction (Lee and George 2008: 182-183, note 14). Acts of penile-vaginal intercourse by their nature aim to introduce sperm into the female’s reproductive tract— Finnis enthusiastically describes “marital acts” as culminating in the “ecstatic genital giving and genital accepting of semen” (Finnis 2008: 396)—so that conception can occur. The end of reproduction explains why such acts have the features they do and functions as an objective, natural purpose of the acts—one the acts subserve regardless of the subjective intentions of those who perform them.
The second step is to say that penile-vaginal intercourse is the behavioral component of the larger human reproductive system. Such acts are causally necessary for conception to occur (at least without the help of artificial methods) since they get sperm where they need to be. And yet, while most of the biological processes involved in reproduction are outside of direct human control, the behavioral component of the reproductive system is always within human control. A man and woman can always accomplish the behavioral component of human reproduction provided they do not suffer some disability that makes penile-vaginal intercourse impossible. They can always engage in reproductive functioning in its behavioral aspect. Thus Finnis describes acts of penile-vaginal intercourse as “actualizations, so far as the spouses then and there can, of the reproductive function in which they are biologically and thus personally one” (1995: 30, italics added).
The third and final step is more difficult to understand. The NNLs want to say that because penile-vaginal intercourse constitutes the behavioral component of the reproductive system, performing such acts automatically counts as engaging in reproductive functioning. In my description of the sterility objection I noted that its proponents assume that for an act of intercourse to be an instance of reproductive functioning (and thus biologically unifying), reproduction must actually be possible through that act. At first glance, the NNLs seem to be saying something similar. They appear to suggest that performing an act of penile-vaginal intercourse counts as engaging in reproductive functioning because conception is possible through that act:
There is a clear difference between what homosexual couples do and what infertile married couples do. No one could have children by performing sodomitical acts. Yet this is not true of the type of act performed by sterile married couples when they engage in vaginal intercourse. People who are not temporarily or permanently infertile could procreate by performing exactly the act that the infertile married couple perform. (Lee and George 2008: 198)
But there is an important difference here. Unlike the sterility objector, the NNLs are not saying that a particular act of penile-vaginal intercourse must actually have the power to cause conception in the circumstances in which it occurs. They are saying instead that it is enough for that particular act to be the type of act that would have that causal power in favorable circumstances. The ability of a sexual act to biologically unite its participants by being an instance of reproductive functioning “depends, not on its being able to cause conception, but only on its being the pattern of behavior which, in conjunction with other necessary conditions, would result in conception” (Grisez 1993: 634).
How can an act of penile-vaginal intercourse that is incapable of producing conception here and now nevertheless count as an instance of reproductive functioning in virtue of the fact that it would be capable of producing conception in more favorable circumstances? Perhaps an analogy will help make the NNLs’ claim easier to grasp. The relationship between being an act of penile-vaginal intercourse and being an instance of reproductive functioning, as understood by the NNLs, seems to be analogous to the relationship between being a tiger and being a four-legged animal. If we suppose that biological species like tigers have essences or natures, we can say there is a sense in which it is part of the essence or nature of a tiger to have four legs. When everything works as it is designed to work and conditions are favorable, tiger essence or nature produces a four-legged animal. But that doesn’t mean some individual tiger cannot have fewer than four legs. A tiger can have fewer than four legs due to a birth defect or to having one of its legs cut, shot, or bitten off (say by another tiger). Actually having four legs is not an essential part of being a tiger. But having an essence or nature that is “teleologically oriented” toward producing four legs, and in normal circumstances is causally efficacious in doing so, is an essential part of being a tiger. Thus, as strange as it sounds, there is a sense in which even a three-legged tiger is a four-legged animal.
The NNLs seem to be relying on a similar account of how being a case of penile-vaginal intercourse entails being an instance of reproductive functioning. An act of penile-vaginal intercourse performed by a sterile heterosexual couple resembles a three-legged tiger. Imagine a particular three-legged tiger named Tony. Just as Tony has only three legs, so this act of intercourse cannot possibly result in conception. Nevertheless, just as there is a sense in which Tony is a four-legged animal, so there is a sense in which this act of penile-vaginal intercourse can cause conception to occur. It is not part of the essence or nature of an act of penile-vaginal intercourse that it actually be able to cause conception in whatever circumstances it occurs. But it is part of the essence or nature of such an act that it would be able to cause conception in the right circumstances. Tony is a four-legged animal in the sense that he possesses a nature that would produce and sustain four legs in the right circumstances; the sterile couple’s act of penile-vaginal intercourse has the power to cause conception because it possesses a nature that would cause conception in the right circumstances.
We can call the sense in which Tony possesses the property being four-legged and the sterile couple’s act of intercourse possesses the property being able to cause conception the “kind-possession” sense of property possession. An individual kind-possesses a property if that individual has a nature that is teleologically oriented toward producing that property and in normal circumstances that nature is causally efficacious in doing so. Kind-possession seems to be possession only in an attenuated sense. Tony can kind-possess properties like being four-legged and being a ferocious predator while he lies there licking his stump and slowly dying of hunger. But it is in this sense that the NNLs see all acts of penile-vaginal intercourse, including those engaged in by sterile heterosexuals, as having the ability to cause conception.
I can now summarize the NNLs’ response to the sterility objection. The first step claims that acts of penile-vaginal intercourse share an essence or nature that is teleologically oriented toward causing conception. The second step claims that penile-vaginal intercourse is the behavioral component of the human reproductive system and, as such, is always within the power of heterosexual couples to complete even if such an act could not possibly result in conception due to “a condition extrinsic to what they do” (Lee and George 2008: 199). The third, harder to grasp step holds that simply being the kind of act that would result in conception in propitious circumstances is adequate to render an act of penile-vaginal intercourse a biologically unifying instance of reproductive functioning. An act of penile-vaginal intercourse need only kind-possess the ability to cause conception for it to unify the spouses. The NNLs’ conclusion is that since sterile heterosexual couples’ sexual acts can unify them biologically in ways that same-sex couples’ cannot, they are not guilty of making an arbitrary distinction between the two.
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Does the NNLs’ response to the sterility objection succeed? I will give two arguments in support of the conclusion that it does not. My first argument makes a simple point: the connection the NNLs draw between a sterile heterosexual couple’s acts of penile-vaginal intercourse and conception is too tenuous to justify seeing those acts as instances of reproductive functioning and thus as biologically unifying. Consequently, we cannot appeal to infertile couples’ ability to engage in penile-vaginal intercourse to justify morally and legally distinguishing them from same-sex couples.
Consider the following two cases. First imagine that a healthy, young, fertile heterosexual couple engages in non-contracepted penile-vaginal intercourse in the hopes that they will conceive. Either the woman will get pregnant in this case or she will not. If she does, it certainly seems clear that she and her husband have successfully engaged in reproductive functioning. But the odds are that she will not get pregnant. Finnis notes that “the couple as such is fertile not more than 4 or 5 days in each more or less monthly cycle” (1997: 127, note 121) and that “every married couple is sterile most of the time” (127). Women who are ovulating normally are only fertile during a brief phase of their cycle, and even when they are ovulating intercourse has a relatively low likelihood of causing conception to occur. So the more likely event of the woman failing to get pregnant may result from naturally occurring infertility, difficulties inherent to the process of fertilization, or simple bad luck.
Now consider a case discussed by Grisez. An elderly married couple wants to continue engaging in penile-vaginal intercourse because they enjoy the physical sensations and emotional closeness sex produces, but they have difficulties stemming from the husband’s impotence. Not to be deterred, these frisky and resourceful septuagenarians (as I imagine them) avail themselves of some useful devices that make intercourse possible for them:
The couple are quite determined, and have tried various remedies for impotence. To avoid the disadvantages of other approaches, they are using a vacuum device placed over the penis so that the air pressure surrounding it is lowered, bringing on an erection, which is then sustained by placing an elastic constriction ring around the base of the penis. The vacuum device is then removed, and they engage in satisfying intercourse. (Grisez 1983b: 133)
Here conception will obviously not result because it is physically impossible. The woman has gone through menopause and it is a biological fact that “all postmenopausal women are infertile” (133, note 105). Moreover, the constriction ring (colloquially known as a “cock ring”) has the side effect of interfering with the man’s ability to ejaculate, leaving the couple in doubt about whether any “semen reaches the wife’s vagina” (133). Indeed, because they accept a sexual ethic like that defended by the NNLs, the couple worries that if no semen reaches the wife’s vagina they have failed to engage in a morally licit, reproductive-type, biologically unifying act. Grisez responds by saying that the couple needn’t worry: “intercourse with the use of a constriction ring to overcome impotence is true sexual intercourse—and so can be marital intercourse—if any semen whatsoever reaches the vagina, which can be assumed in case of doubt” (134).
Now the question I want to raise about the couples in these two cases is whether they have both successfully engaged in reproductive functioning. The NNLs’ answer to this question should be clear. They would say that both couples have successfully engaged in reproductive functioning and hence have successfully become biologically unified in the way that marital sex requires. The young, fertile couple successfully engages
in reproductive functioning whether they conceive or not; the elderly, infertile couple successfully engages in reproductive functioning (provided a dollop of semen ends up in the right place) despite the fact that conception is impossible for them. The reason both couples successfully engage in reproductive functioning is that regardless of whether conception occurs or is even possible, they have engaged in the right type of act. The NNLs think that while an act-token must have some causal connection to its end in order to count as functioning to produce that end, that causal connection need not amount to the actual power to bring about that end in the circumstances. All that is required is that the act-token possess the causal power to bring about the end in the kind-possession sense discussed above. Even the elderly, infertile couple performs the kind of act that could or would result in conception if conditions external to the act itself were different. And that, the NNLs maintain, is enough.
But the NNLs’ proposed connection between act-token and end is too tenuous. The NNLs stress that reproductive functioning, when it occurs, is something that occurs in reality. It happens here and now, independently of people’s minds, intentions, and experiences. It happens—or fails to happen—independently of the “generous hopes and dreams” with which people surround their sexual acts (Finnis 1995: 29). One can engage in such functioning without knowing or intending it, and one can think one is engaging in it when one is not. It has the power, so the NNLs claim, to make a man and a woman into a single biological reality. It thus requires the exercise of actual causal powers. The causal powers that the NNLs invoke to claim that acts of penile-vaginal intercourse performed by sterile couples should count as instances of reproductive functioning are not actual causal powers in the required sense. I grant that there may be a weak sense in which they are actual causal powers. Since acts of penile-vaginal intercourse are said to kind-possess the power to cause conception, those acts actually possess here and now the power to bring about conception in favorable circumstances. But those favorable circumstances may not, and often do not, actually obtain. A causal power that an act penile-vaginal intercourse could only exercise in a counter-factual situation cannot count as an actual causal power the act expresses or exercises here and now. But exercising causal power here and now is what making a man and woman into a real “organic unit” through their acts of intercourse requires (granted that they form some kind of biological unit at all).
Therefore, the NNLs are mistaken in holding that the elderly, infertile couple in the example above succeeds in engaging in reproductive functioning. More generally, they are mistaken in holding that engaging in penile-vaginal intercourse is sufficient for engaging in reproductive functioning.
It might be objected that on my account the only situation in which one of the couples succeeds in engaging in reproductive functioning is when the young couple actually conceives. But surely, the objector might say, people can successfully engage in reproductive functioning without actually reproducing. It seems unduly restrictive to say that penile-vaginal intercourse constitutes reproductive functioning only in the statistically rare case that conception occurs.
In response to this objection, I would say that my account does not require that conception actually occur in order for an act of penile-vaginal intercourse to count as an instance or episode of reproductive functioning. What it requires is that conception be a real possibility when the act occurs. The clearest example of such an act would be one that actually results in conception. But when the fertile young couple fails to conceive because of the difficulties inherent to the process of fertilization or bad luck, their act of sexual intercourse still counts as an instance of reproductive functioning. The septuagenarians, in contrast, do not succeed in engaging in reproductive functioning because their acts of penile-vaginal intercourse cannot possibly result in conception. Now admittedly there are less clear cases lying in between these two. For example, what do we say about the case where the young couple fails to conceive because their act of intercourse occurs during one of the woman’s naturally occurring periods of infertility? On the one hand, their act of intercourse does not actually have the power to produce conception in the circumstances, so it would seem that it should not count as an instance of reproductive functioning. On the other hand, it may seem strange not to see intercourse as functioning reproductively when its failure to result in conception is caused by a temporary condition that recurs as part of the proper functioning of a woman’s reproductive system. But whichever way we go on this case, the point remains that the elderly couple’s acts of penile-vaginal intercourse are clearly non-reproductive, which suffices to show that penile-vaginal intercourse, all by itself, does not automatically amount to reproductive functioning.
I turn now to my second argument against the NNLs’ response. The NNLs are committed to the claim that penile-vaginal intercourse always functions reproductively. They hold that whenever a couple performs an act of penile-vaginal intercourse, they perform an act of the reproductive type and so successfully engage in reproductive functioning. My second argument points out that the best explanation for a number of features of human sexuality is that penile-vaginal intercourse often does not function reproductively. We better account for the facts of human sexuality by saying that penile-vaginal intercourse often performs some function other than reproduction.
As we saw above, the NNLs recognize that human beings usually engage in penile-vaginal intercourse in circumstances that render conception unlikely or impossible. This fact is a by-product of a number of evolved human characteristics. In human females, ovulation is largely concealed—there are no obvious signs that a woman is fertile—and women remain receptive to sexual intercourse throughout their menstrual cycle, during pregnancy, lactation, and after menopause. Human males have a desire for sex that is largely independent of women’s fertility. The result is a sexuality that Jared Diamond characterizes as “bizarre” compared to that of many other animals.
An evolutionary explanation of some of these aspects of human sexuality has recently been defended by Randy Thornhill and Steven W. Gangestad. They attempt to explain why women have evolved “extended female sexuality,” that is “female receptivity to sex . during periods other than when females are fertile—sex when they cannot conceive” (2008: 37). They propose a version of the “male-assistance hypothesis.” According to this hypothesis, women’s extended sexuality evolved as a way in which women could “exchange” sex for male-provided benefits, including “material benefits and services (e.g. food, protection, shelter)” and “paternal care of offspring” (2008: 73). Women receiving such “non-genetic benefits” from men were (on average) able to raise more children to reproductive age than women who did not. Women evolved so that they did not display “unambiguous direct cues of peak fertility,” which resulted in men’s desire for sex becoming largely detached from female fertility (2008: 73). Male provisioning paid off for ancestral men too: those men who provided benefits to women with whom they had children enjoyed greater reproductive success, in the form of more offspring surviving to reproductive age, than men who did not.
Whether or not Thornhill and Gangestad’s hypothesis is correct, it illustrates the point that the feature of human sexuality often pointed out by the NNLs themselves—that acts of penile-vaginal intercourse often occur when conception is impossible—stands in need of some explanation. That human beings have evolved to have sex even when it is obvious that reproduction will not occur, as in the case of our frisky septuagenarians, is biologically puzzling. The NNLs’ assumption that penile-vaginal intercourse always functions reproductively not only fails to explain these facts, it seems positively discordant with them. If penile-vaginal sex always performs the function of reproduction, then why have humans evolved to have it when reproduction is clearly impossible? A better explanation will most likely take the form of assigning some function or functions other than reproduction to acts of penile-vaginal intercourse that occur when conception is impossible. That penile-vaginal intercourse does not always function reproductively links it to the impressively wide array of human sexual practices that have no procreative potential at all. But if acts of penile-vaginal intercourse do not always function reproductively, then performing such acts cannot be equivalent to engaging in reproductive functioning, as the NNLs’ response to the sterility objection supposes.
My conclusion is that the NNLs have failed to rebut the sterility objection. Koppelman has identified the crucial question: how can it be “that an act in which reproduction is known to be impossible is an act of the reproductive kind?” (1997: 67). I have tried to identify the NNLs’ answer in this paper. I suggest that they take acts of penile-vaginal intercourse between sterile heterosexuals to kind-possess the property being an instance of reproductive functioning. But understood as invoking kind-possession, their response to the sterility objection fails. Penile-vaginal intercourse between sterile heterosexuals does not possess the actual causal power to achieve reproduction necessary to make them a biological functional unit. Perhaps it is true that performing acts of penile-vaginal intercourse is necessary for making two people into a single biological unit, but it is not sufficient. Furthermore, the NNLs’ assumption that penile-vaginal intercourse always functions reproductively is bad biology. Even among heterosexual couples, sexual intercourse occurs in circumstances in which procreation is obviously impossible, which is most plausibly explained by saying that it does not always function reproductively.
Given their assumption that the ability to engage in reproductive functioning is necessary for two people to get married, the NNLs ought to conclude that sterile heterosexuals are incapable of marriage. They don’t draw this conclusion and persist in treating sterile heterosexual and same-sex couples differently when it comes to marriage. But if my critique in this paper is successful, they have no rational basis for this differential treatment. They are simply being inconsistent in extending the right to marriage to sterile heterosexuals but not gays and lesbians. Like other proponents of the sterility objection, I think the best way to resolve this inconsistency is the “inclusive way”: “broadening the scope of legitimate sexuality”—and marriage—”to include committed gay couples” (Macedo 1995:281).