Some Problems with the Perverted Faculty Argument

 

(Photo: "Kissing in Lisbon" by Pål Joakim Pollen)

 

The Perverted Faculty argument is the central argument used by proponents of what is called (Old) Natural Law Theory (ONLT) to justify conservative sexual ethics. Typically, proponents of ONLT are Catholics (David Oderberg and Edward Feser come to mind); but this is not always the case (cf., e.g., Timothy Hsiao). The basic idea behind PFA reasoning is that our faculties have certain discernible natural ends. The end of the eye is to see, for example. The end of the reproductive faculty is to reproduce, etc. Actively frustrating these ends, so the reasoning goes, is always and everywhere immoral. Proponents of ONLT use such reasoning to rule out many sexual acts, including, but not limited to, masturbation (without finishing in coitus), homosexual acts, and contraceptive acts (including "the pullout" method). While I believe there is much to commend in the idea that the universe is chalk full of teleology, ends, and purpose -- a metaphysic presupposed by ONLT -- I believe that PFA reasoning in service of justifying conservative sexual ethics is quite weak. I explain some of my reasons for thinking this below.

In responding to counterexamples against their view, Old Natural Law Theory proponents of the Perverted Faculty Argument (PFA) make a distinction between using a faculty for something other than its natural end, and using a faculty for something against its natural end or actively frustrating its natural end. Proponents of the PFA grant that using a faculty for something other than its natural end, provided that the act doesn't frustrate the faculty's end, can be morally permissible. However, they would say that actively frustrating or acting against the end of a faculty is never morally permissible. But I've always thought that the way the distinction is appealed to in order to deflect counterxamples whilst simultaneously trying to justify the immorality of, e.g., masturbation and homosexual acts is ad hoc. I don't see why masturbating or homosexual acts are examples of using the sexual/reproductive faculty for something against its natural end rather than just for something other than its end (but not against its end). In order for PFA arguments for conservative sexual morality to work, acts like masturbation and male-on-male anal sex have to be acts that actively frustrate the end of the sexual faculty -- they can't *merely* be acts that utilize the sexual faculty for something other than its end. I can see why, for example, for a man to physically castrate himself would be to actively frustrate and indeed destroy his sexual or reproductive faculty. But I don't see how masturbation or a male-on-male sex is actively frustrating the end of the sexual faculty. One is just using the sexual faculty for something other than its end. But I don't see how one is frustrating anything here. 

 

Feser says the following in order to justify why masturbatory acts are contrary to the end of the sexual or reproductive faculty, for example: 

 

"Masturbatory acts involve a twofold frustration of the natural ends of sex. For one thing, they frustrate the procreative end insofar as the natural end of the physiological process in the male leading from arousal to ejaculation is not only to get semen out of the male but into the vagina, while the natural end of the physiological process of arousal in the female is to prepare the vagina for reception of semen. But these acts also frustrate the unitive end insofar as arousal is “other-directed” in a psychological sense no less than a physiological sense. Male sexual arousal is of its nature woman-oriented, and female sexual arousal is of its nature man-oriented. In each case realization of the natural end requires connecting emotionally as well as physically with another person. Masturbatory acts involve the active taking of the process of arousal to a climax that does not involve another person, and thus turns it against its natural end."

 

I still don't get the insistence on why masturbatory acts actively frustrate the end of the sexual faculty, rather than just being acts that use it for a different end. It's true that the natural end of sex "is not only to get semen out of the male but into the vagina," but that doesn't mean that solo masturbation (without the end of coitus) is somehow actively frustrating the end of the sexual or reproductive facutly rather than just using the faculty for something other than its natural end. And he needs the bolder claim for his argument to go through. It seems quite unmotivated to me.

 

Regarding his second point, coming from a secular perspective, I don't see a good reason to think that sex has such a "unitive end," which natural-law theorists ostensibly take to be realized in a unitive, comprehensive, exclusive and-open-to-children union with exactly one person of the opposite sex. That may be the view of  Genesis 1/2 and Jesus, but that's difficult to maintain on a secular view of the evolutionary history of higher animals and homo sapiens, a history which seems to suggest sex is more for males to nonexclusively spread their seed as far and wide and possible, rather than for the engenderment of comprehensive exclusive unions, as poetic as that may sound. Indeed, it seems like one needs to appeal to a certain revelatory version of theism in order to justify the view that one of the ends of the sexual or reproductive faculty is exclusive comprehensive open-to-children union with exactly one person of the opposite sex. The idea that the purpose of the reproductive or sexual faculty in humans is reproduction seems quite plausible just from observing the world around us. However, I think when we start talking about the aforementioned (specific) unitive end of the sexual faculty, then one has to appeal to a specific version of theism and indeed revelation. It's nowhere near apparent, just from looking at our evolutionary history, that the end of the sexual faculty is a comprehensive exclusive open-to-children union. I think proponents of NL theory are wittingly or unwittingly sneaking religious assumptions through the backdoor here. The idea that there's such a (comprehensive) unitive end to the sexual faculty will only be convincing to certain sects of religious people who already believe that for different reasons. Muslims, e.g., don't believe that. Polygyny is explicitly allowed in the Qur'an and Muhammad had way more than one sexual partner. In early Judaism polygny was sanctioned and widely practiced. How will the proponent of ONLT convince such people to adopt their Catholic-ish conservative secular ethics without simultaneously trying to argue for their particular religion, the truth of which will no doubt make PFA arguments moot? That comprehensive exclusive open-to-children union is  an end of the sexual or reproductive faculty is simply not something that is evident to the natural light. One needs religious presuppositions to justify a robust conservative sexual ethic with PFA-reasoning. But if the truth of a religion like Catholicism is already established, then PFA reasoning becomes quite moot. So PFA arguments strike me as pretty much only convincing to people who are already predisposed to conservative Christian ethics.

Therefore, my judgement on Old Natural Law theory is that while its underlying metaphysic seems to
have something going for it, pace its proponents, the metaphysic is not sufficient, without appeal to religious doctrines, to derive a conservative sexual ethic. There's no good secular reason to believe that masturbation or homosexual acts actively frustrate the end of the sexual faculty, rather than just being acts that stimulate the sexual faculty for something other than, but not contrary to, its end.

Should the State be Involved in Marriage To Begin With? Homosexual Marriages and State Interest

I have difficulty seeing why the government should be involved in marriage at all given that homosexual marriage has been enshrined into law.

When I ponder marriage, I find myself concluding that the only possibly compelling reason for the government to be involved in marriage to begin with is because it has an interest in perpetuating itself (and the only reason I add the qualifying adjective "possibly" is because I am not sure the government should be involved in marriage in the first place). In other words, the state has an interest in providing stable healthy environments for its future denizen,viz., children, and helping married couples provide that is why the state is involved. Yes, some married people never have children; some are physically unable to have children. But these are exceptions to the rule: historically, married couples have had children with one another. And laws are directed to the common good, not to individual goods, which is why it made sense to give married couples tax benefits -- they will typically have children and children are, as many parents know, expensive. So in order to help married couples provide a stable environment for childrearing, the state gives them tax breaks. This is, I believe, the only possibly compelling reason for why the state should be involved in marriage to begin with. 

But this reason for the state's involvement does not extend to homosexual marriage. Per Obergefell v. Hodges, the state now recognizes as marriage a type of union which cannot possibly produce children. The only way for married homosexual couples to have children is for them to adopt (or at least for one of them to). And the vast majority of married homosexual couples do not raise children. So, because it is biologically impossible for homosexual couples to reproduce, and because only a small percentage end up adopting and raising children, it would seem that the state's interest in such unions should be minimal or nonexistent. Unlike in the case of heterosexual marriage, there's simply no similarly possibly compelling reason why the state should support these types of unions. The state should not be in the business of regulating love affairs, as most people would grant. But that is basically what the current state of play is in the United States. Once you take children out of the equation, the state's regulation of marriage simply amounts to the state's regulation of peoples' love affairs. And I submit to you that it is no business of the state to be involved with the love affairs of its denizens. Why should the state care whether Joe and Bob, or Mary and Sally, would like to live with one another and engage in sexual acts in the privacy of their own bedrooms? I can detect no compelling reason for the state to insert its tentacles here. And given that I see no compelling or even good reason for state involvement here, I believe that  giving out tax breaks in support of homosexual marriages is simply a waste of hard-earned taxpayer money. Basically, I believe that the state's blessing homosexual unions and thereby elevating them to the status of a legally codified contract called "marriage" is silly. I see it as a reductio ad absurdum for current government involvement in marriage in the first place. Maybe the state should recognize hetereosexual marriages, maybe not. But if  the state is going to recognize homosexual unions as marriages, then I think it's better off just getting out of the marriage business entirely. If, as I believe, the only putatively compelling reason for the state to be involved in marriage to begin with is children, and marriage is, from the state's perspective, no longer about children, then the state should no longer be involved in marriage.

Now, someone may respond and say that while it is true that it is biologically impossible for homosexual married couples to produce children, and that most of them do not end up raising children for adoption, many heterosexual couples do not end up raising children either (whether because of infertility issues or otherwise). So, the argument goes, my view unjustly discriminates against homosexuals. By way of rejoinder I would repeat what I said above: laws are meant to be promulgated for the common good, and not to individual goods. That is, laws are not meant to make exceptions, but to make rules -- exceptions and particularities are handled at the level of the actual application of the law to a particular case. Most heterosexual married couples can conceive and have historically had children. The same is not the case for homosexual married couples. So there is no unjust discrimination in my view that there is a putatively compelling state interest in enshrining heterosexual marriages into law, but not homosexual marriages. However, I'm open to the possibility of only bestowing tax breaks for married couples, heterosexual or otherwise, who can prove that they are raising children. But perhaps that will be too messy. And perhaps that's all the more reason the state should finally get out of the marriage business.