Document Type

Response or Comment

Publication Date


Publication Information

84 Geo. L.J. 301 (1995-1996)


In an article marked by the intelligence and fairmindedness for which his work is widely-and rightly-admired, Stephen Macedo has argued against our view that sodomy, including homosexual sodomy, is intrinsically nonmarital and immoral. His goal is to show that "new natural law" theorists, such as Germain Grisez, John Finnis, and the two of us, have no sound argument for drawing moral distinctions-which would, in turn, provide a basis for legal distinctions (particularly in the area of marriage)­ between the sodomitical acts of "devoted, loving, committed homosexual partners" and the acts of genital union of men and women in marriage. We propose in this response to defend our view against Macedo's criticisms.

We heartily commend Macedo's efforts to understand and accurately represent the view we defend. Nevertheless, we are not entirely happy with. his formulations of it. Neither Grisez, nor Finnis, nor either of us perceives the central moral wrongness of sodomitical and other nonmarital sex acts as consisting in their being "distractions from" genuine human goods. A more adequate, though unavoidably more complex, formulation of our position is the following: (1) Marriage, considered not as a mere legal convention, but, rather, as a two-in-one-flesh communion of persons that is consummated and actualized by sexual acts of the reproductive type, is an intrinsic (or, in our parlance, "basic") human good; as such, marriage provides a noninstrumental reason for spouses, whether or not they are capable of conceiving children in their acts of genital union, to perform such acts. (2) In choosing to perform nonmarital orgasmic acts, including sodomitical acts-irrespective of whether the persons performing such acts are of the same or opposite sexes (and even if those persons are validly married to each other)-persons necessarily treat their bodies and those of their sexual partners (if any) as means or instruments in ways that damage their personal (and interpersonal) integrity; thus, regard for the basic human good of integrity provides a conclusive moral reason not to engage in sodomitical and other nonmarital sex acts.

Macedo attacks the claims we have formulated in (1) above by offering to show that whatever values can possibly be realized in the acts of genital union of sterile spouses can equally be realized by those spouses-or similarly committed couples, whether of the same sex or opposite sexes-in oral or anal sex acts. His challenge to proponents of the natural law position is to identify a valid reason for sterile married couples to engage in acts of genital union that is not, at the same time, a valid reason for such couples (or others, married to each other or not, fertile or infertile, "gay" or "straight") to engage in oral or anal sex if they prefer or desire it.

In effect, Macedo denies that what we refer to as the "reproductive-type acts" of spouses can have the special value and moral significance we ascribe to them. He attempts to show that we hold a "double standard" in maintaining (a) that sodomitical acts cannot be marital; and (b) that penile-vaginal acts, even of spouses who know (or at least believe) themselves to be temporarily or permanently sterile, can be marital.

Macedo also rejects the claims we have formulated in (2) above about the damage to personal (and interpersonal) integrity, and hence, the intrinsic immorality, of choosing to perform nonmarital orgasmic acts. He affirms, and claims that many people will find it "deeply unreasonable'' of us to deny, that pleasure (including sexual pleasure) is a good in itself and, as such, provides a basic reason for acting. Relatedly, he argues that there is something implausible about our claim that it is necessarily wrong for persons sometimes to use their bodies as mere instruments in the pursuit of pleasure and other extrinsic goals. He attempts to show, by way of a reductio ad absurdum, that the principle that we believe excludes sodomitical and other nonmarital sex acts as immoral would, on our argument, also exclude as immoral such obviously innocent pleasures as chewing sugarless gum, "which gives pleasure but has no nutritional value."


Reprinted with permission of Georgetown Law Journal.



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