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Finnis on Homosexuality

Finnis argues in both metaphysical and highly abstract moral terms that homosexual sex is wrong. He begins by setting forth the core of his view:

    In masturbating, as in being masturbated or sodomized, one's body is treated as instrumental for the securing of the experiential satisfaction of the conscious self.

This seems unarguably true. Absent some very unusual circumstances, (e.g., providing a sperm sample for fertility testing) people masturbate because it feels good; they are using their bodies to give pleasure to their conscious selves. What may be less clear is why this is of any significance, and in particular, why it is supposed to be wrong. Finnis claims that it is because it involves a disintegration of the self. By this he doesn't mean, of course, that we literally fall apart. He means that the unity or coherence of the different components of the self -- body and mind in this case -- is interrupted. And he says that this happens in two ways:

  1. "by treating one's body as a mere instrument of the consciously operating self, and
  2. by making one's choosing self the quasi-slave of the experiencing self."

We seem to have here a rather complex understanding of the person behind all this. There is -- at the least -- (i) the body, (ii) the conscious self (the experiencing self) and (iii) the choosing self. Presumably Finnis sees these components as operating ideally in some sort of integrated and hierarchically ordered fashion, presumably with the choosing self in charge.

Let us look at this structure a little more carefully. Go back to the first item. Finnis tells us that the disintegrative aspect lies in letting one's body be the "mere instrument" of the conscious self -- from using one's body merely as a source of experiences. He apparently thinks that this is not the proper role of the body; presumably he thinks that the body should serve the choosing self rather than the mere experiencing self. In masturbating, the functional relations among these elements of the self are disrupted, and so there is a dis-integration -- a losing of unity, coherence, integrity -- of the person.

The second of Finnis's two aspects of disintegration is perhaps a little more easily grasped. My conscious, experiencing self is demanding gratification. And I let my choosing self give into this demand, once again upsetting the hierarchy.

One of the questions we need to return to is why this is so bad, if indeed it is. But for the moment, let us follow the thread where Finnis sees it leading. Finnis tells us that the gratification is worthless. He also tells us that this worthlessness and the disintegration are the both the result of the fact that "one's conduct is not the actualizing and experiencing of a real common good."

For Finnis, sexual activity achieves its worth -- and permits integrity to be retained -- when it is in the service of a "common good." Just what the phrase "common good" means here is not altogether clear, but it presumably means -- at least -- some good that is not merely private.

What might this common good be? Finnis tells us that marriage, which has the components of procreation and friendship -- is a common good. And orgasmic sexual union can promote both goods when the sexual activity is an expression of the committment of the man and woman to procreation and friendship. Finnis writes:

    Conjugal activity and ... only conjugal activity is free from the shamefulness of instrumentalization that is found in masturbating, and in being masturbated or sodomized.

We might ask: what exactly is conjugal activity? Does it mean sex within the context of legal marriage? Finnis refers constantly to marriage, but can he really be saying that absent the legal institution of marriage -- a human creation -- sexual activity is always worthless and always involves the dis-integration of the person?

Finnis offers us no help on this point -- at least, not in the portion of his testimony to which we have access. But perhaps we could construe marriage broadly enough to go beyond the bounds of legality; after all, in some primitive societies, it may not exactly make sense to talk of law as we understand it. But even in those societies, couples form social units for the sake of what Finnis refers to as friendship and procreation.

Even here there is much to be queried. In many societies, marriage has at least as much to do with property as with friendship. Procreation, to be sure, is part of the mix, not least because it involves passing property from one generation to another. Perhaps Finnis would disapprove of such marriages. What is clear, however, is that he takes procreation to be central to the good of sexuality.

Why might this be? Why could not friendship alone suffice to make the sexual act acceptable? Even if we granted that the combination of friendship (or love) and procreation is a higher good than sexual friendship by itself, why couldn't friendship suffice on its own?

Finnis in fact considers this possibility. He notes that in all probability, there are many sexual acts between "friends" (particularly friends of the same sex) that are intended by the participants to promote the common good of friendship. But Finnis insists that when people pursue this hope, they are deceived:

    The attempt to express affection by orgasmic nonmarital sex is the pursuit of an illusion. The orgasmic union of the reproductive organs of husband and wife really unites them biologically (and their biological reality is part of, not merely an instrument of, their personal reality); that orgasmic union therefore can actualize and allow them to experience their real common good -- their marriage with the two goods, children and friendship, which are parts of its wholeness as an intelligible common good. But the common good of friends who are not and cannot be married (man and man, man and boy, woman and woman) has nothing to do with their having children with one another, and their reproductive organs cannot make them a biological (and therefore a personal) unit. So their genital acts together cannot do what they may hope and imagine.

I have quoted this passage at length because the heart of Finnis's argument seems to lie here. The image of the passage -- uniting a man and a woman biologically -- echoes Biblical passages that refer to a man and a woman becoming one flesh. But the justification for this image is not given in religious terms; the appeal is to biology: when a married couple have orgasmic sex, they are united biologically. The idea of biological union here goes beyond mere physical linking; otherwise, all mutual and orgasmic sexual acts would amount to a biological union. Reproduction (or, one assumes, the possibility of reproduction) is the key. The idea seems to be this: it is of the very essence of the particular kind of friendship we call marriage that it involves a procreative union. Friendship between people of the same sex cannot involve procreation, and hence cannot involve procreative union. As Finnis puts it, it "cannot make them a biological (and therefore a personal) unit." Therefore, Finnis concludes, sex between same-sex couples "cannot do what they hope and imagine."

The question is: does this conclusion really follow? Same-sex couples who have sex are not deceived. They know that they cannot procreate. What they may well hope and believe -- as Finnis seems to agree -- is that their lovemaking is an expression of their love and a way of deepening it. Does the fact that they cannot form a biological unit in Finnis's sense really mean that their lovemaking can't serve the purpose of expressing and deepening their love for one another?

Finnis would presumably insist that sexual love is not, as it were, by nature part of the sort of friendship of which same-sex partners are capable, because sexual love is procreative. But the reply to this seems all too obvious: most sexual acts do not result in procreation. In some cases, they can't. In fact, let us consider an example. Suppose a woman has had a hysterectomy -- we will assume it was for medical reasons other than birth control to avoid irrelevant issues. And suppose that after her hysterectomy, she falls in love and marries. In the nature of the case, sexual relations with her husband cannot make the two of them a biological unit in Finnis's sense. Finnis might insist (I am speculating here) that at least their sex acts are of the sort that could be procreative and that that is enough to make them "unitive," to borrow a word from Catholic theology. But even if he does make this reply, it isn't clear where it leaves us. "Unitive" seems to come down by definition to "being the sort of sexual act that normally can lead to procreation." But what if the couple are actually relieved that they can't have children? Is their sex still unitive in Finnis's sense? Does it matter?

The issue of birth control comes up in an obvious way as well. Many couples -- probably most these days - use birth control at least some of the time. In that case, the procreative aspect of sex is being interfered with deliberately. Finnis migth conclude, along with the Roman Catholic Church, that this makes the sexual acts in those cases wrong -- reduces them to nothing more than mutual masturbation in the basest sense. But the argument might equally wll cut the other way. It seems manifestly true that sex withing marriage can both express and deepen the bonds of love even when the couple uses birth control. If Finnis protests otherwise, then he could only do so on the basis of a highly metaphysical notion of love that is arguably not to be found in experience itself. And it would then become quite unclear to most people why that sort of love must be the basis for judging all sexual acts within marriage.

Put another way, the difficulty is this: we can grant Finnis his notion of biological union. But we can ask why all sex must satisfy this definition in order to be acceptable. Most people would insist that there can still be genuine good to the sexual dimension of a marriage in which one or both partners is infertile. More important, most people believe that the same is true in cases in which the couple practice birth control. Finnis's mere insistence to the contrary won't help. Nor will appeals to highly abstract and metaphysical analyses of the nature of the sex act. The experience of most married couples is that they have feelings for one another that call out for sexual expression, and that even though sex and procreation are linked, the particular form of love that has sexual passion as a component need have no procreative intent in order to be legitimate. Expressing love through sexual intercourse and wanting to have children are psychologically quite distinct.

Here Finnis might reply that his initial analysis of what is wrong with masturbation shows that without the procreative dimension, sex is "disintegrative'; sex needs procreation to rescue it from shamefulness. What should we make of this?

In class I tried to suggest -- vividly -- that many people do associate masturbation with shamefulness. If masturbation is indeed shameful, and if non-procreative intercourse is essentially like masturbation, then Finnis is entitled to his conclusion.

So is masturbation shameful? And is it essentially like non-procreative sex between two people?

It is not clear what to make of our feelings of shame -- such as they are -- about masturbation. Certainly there are many psychologists who insist that masturbation is a healthy expression of one's sexuality, but no doubt Finnis would simply disagree. And feelings of shame are hard to read. Most people would be a little ashamed to admit in public that they pick their noses. But it is hard to see on reflection why picking one's nose is something to be ashamed of, even if it is not an appropriate thing to do in public.

What of our second question? Is non-procreative sex essentially like masturbation? Finnis admits that it can be intended as a way of expressing love. That certainly would make it different from solitary masturbation. Finnis argues that nonetheless it is not capable of fulfilling this function, but his argument seems to rest on a premise -- the centrality of procreation to healthy sexuality -- that is open to question.

There are other themes noted in Finnis's essay. Some have to do with the attitude of various classical authors -- Plato, Aristotle, Plutarch... toward homosexuality. That part of Finnis's article is the major focus of Martha Nussbaum's response. This is a scholarly debate on which I have nothing to say; I simply do not have the expertise. From the point of view of sorting out the moral issues, the question of whether Finnis or Nussbaum gets the Greeks right seems relatively peripheral. But Finnis raises some points not yet touched on in a passage in which he sums up what he takes to be wrong with homosexual intercourse:

    It is not simply that it is sterile and disposes the participants to an abdication of responsibility for the future of humankind. Nor is it simply that it cannot really actualize the mutual devotion that some homsexual persons hope to manifest and experience by it; nor merely that it harms the personalities of the participants by its disintegrative manipuation of different parts of their one personal reality. It is also that it reats human sexual capacities in a way that is deeply hostile to the self-understanding of those members of the community who are willing to commit themselves to real marriage [even one that happens to be sterile] in the understanding that its sexual joys are not mere instruments or accompniments to, or mere compensatins for, the accomplishments of marriage's responsibilities, but rather are the actualizing and experiencing of the intelligent commitment to share in those responsibilities.

Some of this we have commented on already. Two quick thoughts, however. The first is that Finnis clearly believes that sex of the wrong sort harms the personality through what he sees as its disintegrative aspect. Surely, however, there is an empirical question here. What we need to know is whether, for example, people who regularly masturbate are psychologically less healthy on other measures than people who don't. A philosophical theory about the organization of the person and how certain kinds of sex supposedly disrupt it is not a substitute for empirical knowledge, even if we admit that "health" is a concept that involves an evaluative dimension. What I mean is this: if people who masturbate turn out on average to be as well-adjusted, as capable of affectionate relationships, as responsible, sensitive and in touch with reality as people who don't masturbate, then it would be hard to see why we should care about Finnis's metaphysical notion of "disintegration." I have no empirical proof to offer one way or the other. But neither does Finnis.

The second thought is that the hostility toward traditional marriage that Finnis sees in homosexual relations need not be a hostility on the part of the homosexual couple themselves. If homosexuality is a more-or-less given feature of one's personality rather than a choice (and whether this is so is, again, an empirical question) then traditional marriage simply is not a possibility for homosexual individuals. Expressing what they find to be their own nature need not involve any actual hostility at all toward the institution of heterosexual marriage.

As we noted, Martha Nussbaum's reply to Finnis concentrates mainly on issues of scholarship about classical authors. However, she adds two further objections. The first is that Finnis's argument "assumes that the purpose of a homosexual act is always or usually casual bodily pleasure and the instrumental use of another person for one's own gratification." Here it seems to me thqat Nussbaum is simply wrong. Finnis need assume no such thing. In fact, he allows that many homosexual acts may be intended to be "an intimate expression of... mutual affection." It is simply that he insists that this is an illusion, becuase non-cojugal sex cannot fulfill this role. Whether he is right or wrong, it seems important not to mistake his argument for a quite different one.

Nussbaum's second point is that

    A sexual relationship may create, quite apart from the possibility of procreation, a community of love and friendship, which no religious tradition would deny to be important human goods.

Here, of course, Finnis simply disagrees. According to him, homosexual sex simply cannot create or express friendship or affection in the way that Nussbaum claims it can. The questions that remain for you to answer are: which view seems more plausible and why?

© copyright Allen Stairs, 1997

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Web surfer's caveat: These are course notes, intended to augment classroom discussion of the issues and readings. They should be read as such and are not intended for general distribution or publication.