In articles published on 4th February 2017, the Times and Guardian newspapers drew attention to the intellectual influence of Oxford legal theorist John Finnis on U.S. Supreme Court nominee Judge Neil Gorsuch. Both newspapers highlighted Finnis’s deeply conservative views on the legal rights of LGBTQ citizens, including his opposition to same-sex marriage. Finnis is one of the ‘new natural lawyers’: a group with conservative and theologically-derived positions concerning sexual minorities and women’s rights, including the right to abortion, which are sometimes articulated – garbed in constitutional language – in litigation briefs to the Supreme Court. If Gorsuch is confirmed, his connection with this group should greatly concern human rights defenders.
Finnis supervised Gorsuch’s Oxford D.Phil. thesis, and the central argument of Gorsuch’s resulting book, The Future of Assisted Suicide and Euthanasia (Princeton University Press, 2006), rests heavily on the new natural law scheme of basic goods and modes of responsibility (sometimes called requirements of practical reasonableness). Relying on the writings of Finnis and Robert George – another prominent new natural lawyer, and persistent brief-filer – Gorsuch sought to ‘defend an exceptionless norm against the intentional taking of human life by private persons’ rooted in the notion that ‘there are certain irreducible and non-instrumental human goods’ and a ‘moral imperative not to do intentional harm to such goods’. Not all life-terminating actions were prohibited, but the legalization of assisted suicide and euthanasia was impermissible. Gorsuch’s book was published in a series edited by George, and many of his comments in praise of Finnis, cited at length by the Guardian, are drawn from a George-edited volume (J Keown and R George (eds), Reason, Morality, and Law: The Philosophy of John Finnis (Oxford University Press, 2015)).
Gorsuch was keen to state that his arguments were ‘based on secular moral theory’. Whether or not one agrees, analysis suggests that in relation to sexuality and abortion, the new natural lawyers – whatever their intentions – have trouble separating the religious from the secular. Finnis claims, in an article following testimony in Romer v. Evans (1996), that even between committed same-sex partners, intercourse ‘cannot express or do more than is expressed or done if … a prostitute pleasures a client to give himself pleasure in return for money, or (say) a man masturbates to give himself pleasure … after a gruelling day on the assembly line’. Such intercourse violated the good inherent in truly marital sexual acts, at the heart of which lay so-called two-in-one flesh communion: the notion that a male-female married couple become literally one biological unit during the ‘union of the reproductive organs of husband and wife’. However, this idea – without which the opposite-sex boundaries of the marriage good are hard to defend – originated in the theological treatise The Way of the Lord Jesus, authored by Finnis’s long-term collaborator Germain Grisez. Meanwhile, Finnis argues elsewhere that opposite-sex marriage ‘discloses the possibility of divine-human communion, initiated by a covenant relationship in which we trust God will remain faithful unconditionally’.
George helped draft the 2009 ‘Manhattan Declaration’, a ‘Call of Christian Conscience’ in opposition to abortion and same-sex marriage. The signatories – Protestant fundamentalists as well as conservative Catholics – stated that they would ‘not comply with any [state] edict that purports to compel our institutions to participate in abortions … or any other anti-life act … [U]nder no circumstances we will render to Caesar what is God’s’. The Declaration was essentially new natural law reasoning combined with biblical literalism, and reflects the strong practical links between the new natural lawyers and conservative Protestants in campaigning and filing litigation briefs. The appeal of new natural law reasoning to non-Catholic conservatives is illustrated by the fact that Gorsuch is himself an Episcopalean.
These concerns assume that Gorsuch will, if confirmed, be unable to detach himself sufficiently from new natural law. His book’s dependence on its thinking is not a helpful sign, and if he continues to assess matters from the same perspective, it may be hard for him to avoid new natural law’s blurring of the religious with the secular in cases concerning abortion and LGBTQ rights. More broadly, if Judge Gorsuch cannot separate himself from his intellectual mentors, things may not bode well for the U.S. constitutional distinction between church and state.
This blog draws on: Nicholas Bamforth and David A.J. Richards, Patriarchal Religion, Sexuality and Gender: A Critique of New Natural Law (Cambridge University Press, 2008); and Nicholas Bamforth, ‘New Natural Law, Religion, and Same-Sex Marriage: Current Constitutional Issues’ (2011) Wake Forest J.L. and Policy 207.