I Don’t Make the Natural Law, I Just Enforce It

To me, there’s nothing that quite says “Christmas” like schadenfreude — that grim satisfaction one takes in watching the suffering of others, especially other people whose ideas are evil. The Church father Tertullian used to write in lengthy detail of how the Romans who tortured Christians would undergo the same tortures themselves in hell, while Christians sat around in amphitheaters to watch the show. Yes, that was his idea of heaven, so perhaps it is fitting Tertullian fell into heresy and died outside the Church.

A schadenfreudian Christmas special, if they made one for television — let’s say a producer at EWTN managed to slip this one past his bosses — might start with the slaughter of the innocents, then bitterly, farcically chronicle all the subsequent miseries suffered by Herod, ending with a grotesquely funny death scene where the bloody old tyrant was torn to pieces by angry housecats. Ideally, they’d make such a show in claymation, in the style of Rudolph the Red-Nosed Reindeer. Ho, ho, ho, gather the kids.

Why should this say “Christmas” to me? Because indulging in schadenfreude is a sin, one closely aligned to Envy, the worst of the Seven Deadlies. The fact that I know better but I’m still tempted to wallow in this creepy vice is proof that I’m a sinner, in desperate need of redemption. Conveniently enough, in a few days a Savior is scheduled to arrive, as He does every year. In the midst of a deeply commercial shopping season that many of us associate with tense travel on congested highways en route to punishing family reunions, the tiny redeemer of the world seems gloriously out of place — like the solemn nativity scene that’s tacked on at the end of the Rockettes’ Christmas show at Rockefeller Center. Two hours of leggy girls in short-shorts and Santa hats high-kicking for the tourists to songs by Irving Berlin that celebrate snow suddenly gives way to a beautifully rendered crèche and “Silent Night.” The absurdity of it all brings home to me the outrageousness of the Incarnation, which makes the crazy spectacle somehow theologically sound.

The event that’s tempting me to make like Tertullian and pop myself some popcorn while I watch the souls in hell is the very public scandal of Columbia professor (and Huffington Post blogger) David Epstein. First, let me lay out why I’m inclined to detest the man: He is the icon of leftist academic self-righteousness, the kind of Ivy League teacher who sneers at the Bible readers, homeschoolers, gun owners, and pro-lifers who keep this country livable. And he does so in the language of high moral dudgeon. Witness his response when Sarah Palin — who’s certainly flawed, and I’ve criticized her myself — decided to resign as Alaska governor: “Palin has done what weak, self-centered people do when the going gets tough — they quit and blame someone else.” (Hat tip to Robert Stacy McCain.) Epstein elsewhere accused conservatives of “taking hypocrisy in their personal lives to new levels of self-indulgent weirdness.”

This week, we have learned just a little of what Professor Epstein means by “self-indulgent weirdness,” as news came out that Epstein has for three years been having an affair with his own daughter — his biological daughter, whom he raised himself. The young woman’s mother is also a professor at Columbia. I am relieved to report that she is not standing by her man.

Now facing a jail term for his actions, Epstein hired an attorney who made the kind of arguments we should by now realize are obvious: The young woman was over 18, she wasn’t coerced, so what’s the harm? What right does the state have to interfere? As Epstein’s lawyer told the Huffington Post, “What goes on between consenting adults in private should not be legislated. That is not the proper domain of our law . . . . If we assume for a moment that both parties are consenting, then why are we prosecuting this?”

Swiss activists agree: There’s a law under consideration in that once-sane country decriminalizing incestuous relations among adults: brothers and sisters, and parents and children. Such laws are already on the books in China, France, Israel, the Ivory Coast, the Netherlands, Russia, Spain, and Turkey, according to ABCNews.com.

This side of the ocean, secular news sources are actually connecting the dots between this case and the 2003 Supreme Court decision striking down Texas’s (long unenforced) sodomy laws. Family law expert Joanna Grossman told ABCNews.com that the decision in Lawrence v. Texas meant that states cannot prohibit “private, consensual, sexual or intimate conduct that does not involve minors or coercion.” I’m glad they’re making the connection, because when conservatives say things like that, they’re dismissed as alarmist cranks. Sen. Rick Santorum, whose defense of natural law I discussed last week, said ruefully during his talk at the Harvard Club that he was one of the few Republicans in Congress who warned where the Lawrence decision might lead: “I said that this ruling made gay marriage inevitable, and I caught a lot of heat for that. Sometimes you hate to find out that you were right.”

Even Santorum wasn’t alarmist enough to see legalized incest on the horizon, but Epstein’s attorney is right: If our Constitution (as reshaped in the warm hands of activist judges) has morphed into a document that protects every form of private, consensual activities among adults, there is literally no basis for punishing a man like Epstein. Squirming frantically, psychologists consulted on this story are trying to find some way to assert that every form of incest, even among adults, is “inherently coercive” because of the lingering “power differential” between, say, a father and a daughter. Their arguments won’t prevail. You can’t infantilize an adult that way; grown children defy their parents all the time and in all sorts of ways. I distinctly remember fighting with my elderly mother over the remote control, trying my best to turn off The Jerry Springer Show, to which she was addicted. I’m confident I could have fought her off, if things had gotten even weirder . . .


Sickening, isn’t it? My stomach is churning even as I write this. But we can’t make laws based on our instinctual aversion to behavior we know is vile — not if our basis for making laws is simply preserving individual rights and nothing more. Only a revival of the concept of natural law — that natural law that Jefferson cited in the Declaration of Independence — will permit us as a community to express our most profound moral instincts in the law. As I wrote last week:

Natural law is the moral code any rational person can deduce purely from reason. It is the “law written upon the human heart,” to which we can hold anyone, Christian or pagan. Consequently, in a state without an official church — in a place like America — natural law arguments are the appropriate ones to make to our fellow citizens. . . . It’s ironic that natural law is meant to be the language we use when speaking to non-believers, since it seems that nowadays only Catholics really believe in natural law — or that those who accept the latter end up becoming the former.

My old friend Br. Andre Marie was at the same event and heard Professor Hadley Arkes’ brilliant discourse on natural law. He went up to Arkes — a recent convert from Judaism — and asked him about the connection between natural law and revelation: “‘Do you know anyone who defends the natural law, who is not a Catholic?’ His response was ‘Yes . . . but they eventually become Catholics.'” That led Brother Andre to investigate what the Church teaches about this linkage, and he found in St. Thomas Aquinas a perceptive observation: While the general outlines of natural law are clear to the honest thinker, original sin tends to make us fuzzy about the details: “The natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Romans 1), were not esteemed sinful.” Because of our weakness and sinfulness, we really do need the Church to clarify and sometimes to defend (almost alone) the contents of natural law. God gives us the Church’s teaching authority as an act of mercy to help us in our weakness — since not all men are philosophers, and not all philosophers are honest.

As Brother Andre cogently notes, that raises questions for the idea of a purely secular state, like ours. If a state refuses in principle to accept any religious precepts at all as a basis for making laws — however tolerant it rightly is of religious liberty — maybe it can’t even outlaw incest. That’s enough to make us start rethinking the First Amendment. Those who really want to preserve America as a religiously neutral state had better start making room for natural law in the positive laws, and praying to whatever it is they believe in (perhaps some deist Flying Spaghetti Monster) that American Christians don’t lose patience and start rethinking the whole constitutional project. The Muslims in our midst have their own ideas on this subject, and in countries like the Netherlands where incest really is legal, the supporters of sharia look likely within the next 50 years to fill that country’s moral vacuum with their own hideous creed.


Image: Douglas Menuez, Getty Images

John Zmirak


John Zmirak is the author, most recently, of The Bad Catholic's Guide to the Seven Deadly Sins (Crossroad). He served from October 2011 to February 2012 as Editor of Crisis.

  • bill bannon

    The problem though is as St. Alphonsus noted in his “Theologia Moralis” is that once past the most simple level of natural law like murder and theft….that even saints have disagreed about the more complex issues like usury and slavery. If within the Church, there can be non agreement on more complex issues….what hope could one have that society would agree on complex issues falling under natural law….though incest will be upheld here in the states as one of the obvious taboos is my guess. We uphold the death penalty here in the states partly thanks to large numbers of Protestants who incline ( as pre Vatican II Catholicism did) toward taking Romans 13:4 in its obvious and literal sense…rather than John Paul’s avoidance of Romans 13:4 which he no where cites. Our body of Protestants in the south kept alive the traditional Catholic view on the death penalty ( such a body does not exist in Europe) and they will aide us too against incest. These last two Popes calling the death penalty “cruel” while God gave the death penalty numerous times in scripture….does not augur well for their being experts in natural law. I’d rather trust those rural Protestants who agree with Aquinas on the dp….as our more influential allies within the US against incest.

  • buffaloknit

    This is really powerful. I wish I could have printed this out and placed it in my Christmas cards, so all my relatives could discuss it on Christmas day. Here is what I would like batted-about further: the idea of the ‘Spaghetti Monster’ worshippers, aka (I think!) atheist/agnostic/secular folks. I seriously believe *that* community of people (I’m thinking of perhaps only 4 other people in the USA) might actually be in some ways, kindred spirits on this issue: laws and where they come from (our nature as humans).

  • inspesalvi

    John Zmirak (whose articles I generally much admire) may want to be a bit careful here. Mother Church teaches that it is a sin to take pleasure in imagining others in hell. Already the Book of Proverbs said: “”Rejoice not when thine enemy falleth, and let not thine heart be glad when he stumbleth: Lest the Lord see it, and it displease him, and he turn away his wrath from him.” (Prov 24:17

  • Andy

    [iJ]ohn Zmirak (whose articles I generally much admire) may want to be a bit careful here. Mother Church teaches that it is a sin to take pleasure in imagining others in hell.

    So, you didn’t get through the whole thing?

  • Michael Gavina

    I agree that this Columbia professor’s example to society and the profession of his innocence in such dark deeds blows a mighty wind across the current of American and modern culture. I too would like to see this man pay for the damage he may soon inflict on our weak Lulu (reference to Humphrey Bogart and Katherine Hepburn’s classic movie whose title I cannot remember) of a ship, the USA. But I guess, my anger will have as much effect as trying to blow against the Gulf Jetstream. On a lighter note, Christmas is still in effect across mcuh of America. It may not be the best one for a single Catholic trying to live out his chastity since the dawn of original sin. May we all be blessed with the Real Mighty Wind this Christmas. God Bless America and yes, even that Columbia professor.

  • Blake Helgoth

    Maybe there is no such thing as nature, only our minds organize things in such a way that some people think there is a thing a nature and other do not. Oh, wait, that would mean that science was not possible, well, except for quantum physics – they threw the idea of nature out a while back. But, if Kant was right then why when I put my hand in a fire do I get burned? Sometimes we wish we were not the sort of thing that we are, human persons, but we are, and that means we act and react in a certain way. Nat. Law is just a consequence of that. When people tell you that we are not the sort of thing that we know we are you gota wonder it they are playing with a full deck!

  • Jeff

    I am willing to bet we’ll soon see moves to legalise pedophilia. Already various left wing scholars, suggest that it’s a beneficial thing for an adult and a child to experience sexual sensations together. Time Magazine even ran an article on that in the 80s. Then pedophilia is a mental disorder, but since attraction towards the same sex has been removed from the DSM, why won’t this be? In respect to the terrible levels of depression, post traumatic stress disorder, anxiety disorder, personality disorder, suicide, alcohol and drug abuse in the child victims, the progressive scholars will say that these are the result of societal non-acceptance of child-adult sexual relationships. Once society normalises these acts, these consequences will vanish, we’ll be told, no doubt. If people now find nothing wrong with incest, and only arguments from outrage still occupy those who hold no religious values dear, it is inevitable that in time, those too will be eroded away. I can only think that bestiality will be held back for a while longer, as people (especially pet owners) tend to be more protective of animals than their fellow humans.

  • Linus

    Epstein is too disgusting for words.

  • Turtle Day

    The Jets coach video taping his wife’s feet and wondering where this belongs along the spectrum of unnatural to natural….or is there an area in the middle called “overdoing the natural”. Isaiah 3:18. ” On that day the LORD will do away with the finery of the anklets…..”

  • inspesalvi

    Andy — I did get through the whole thing, but I have no disagreement with the arguments about natural law. Sometimes quietness may indeed be understood as agreement. It does not detract from my note of caution.

  • Brother Andre Marie

    Thanks for the excellent article, John.

    –your old friend

  • JPZmirak

    If you did read through to the end, I’m afraid you missed this explanation: “indulging in schadenfreude is a sin, one closely aligned to Envy, the worst of the Seven Deadlies. The fact that I know better but I’m still tempted to wallow in this creepy vice is proof that I’m a sinner, in desperate need of redemption.”

    So the start of the article was… ironic. Sigh.

  • dymphna

    I’m pretty sure and sad that both incest and pedophilia will be legalized in this counry eventually.


    This is insane.
    Simply insane. I do not really know what else to say.
    Why isn`t the lawyer on trial as well?

    Both Epstein, his daughther and his lawyer should be in jail.

    As far as evil goes, this might be the cleverest trick the devil has ever played.
    This is what you get with your “secular state.”

    Either the judge rules that this is wrong because God has said so: End of debate,-
    or: A few years from now, secularists and devil-worshippers will be eating human flesh on Christmas, arguing that it does not hurt anyone as long the dinner was dead already.

    In the end you really only have two choices. You either choose God and renounce the Devil and all his works, or you choose the Devil.

    There is no middle ground for humans to play on.
    Take a stand.

  • Brian

    When I returned to the Church after 50 years of wandering and exploration, it was because, in the end, the Catholic Church was the only thing that made sense. This was the best article I’ve read on why it the Faith just makes good sense.

  • William

    The point has been made by many commentators and always scoffed at by the usual suspects: once male and female ceases to be the measure of normality in sexual relations, then Pandora’s box is open.

    That line was crossed culturally a while ago, it is the basic assumption of our intellectual and “chattering” classes and now there is no logical reason to deny homosexual relations, incest, polyamoury, bestiality (and you should read the twists and turns modern thinkers go through to block that one. It usually comes down to: “I don’t think it’s a good idea because the animals can’t consent“).

    The right of the individual to rule his/her life by nothing more than their desires and their ego is supreme. All that’s left is for our legal system to finish up the paperwork.

  • digdigby

    The most natural of natural law arguments against incest was always ‘the damaged offspring’ of consanguinity and this was comfortably ‘scientific’ and not an ‘irrational religious prejudice’. Making incest more ‘do-able’ is yet another of contraception’s results.
    The first person to really understand The Pill and the devastation in its wake to the family, morals, natural law and the relationship of the sexes was George Gilder in his prescient book Sexual Suicide.

  • Dave

    My thoughts of incest are like most. It’s MORALLY wrong.

    However, I’ve met way to many GOOD Catholics that voted for a gay rights president in the U.S.

    Moral decline is ascending, not descending. We must be carefull of our mental apptidude towards our love for mankind. As a country we are failing. But, as the branch of life? Where your treasure lies, so will your heart be there.

    Read the book of Noah. Even the first family after the flood, was subject to moral question. God Bless and keep you Safe

  • Donna

    >bestiality (and you should read the twists and turns modern thinkers go >through to block that one. It usually comes down to: “I don’t think it’s a >good idea because the animals can’t consent”).

    And that’s not a reason ? IMHO, the one thing that is keeping us from total sexual anarchy is the insistence on consent. I’d be hesitant to minimize its importance.
    (No, consent is not enough, but at least it’s a place where we can all start…)

  • Kevin

    Tertullian is not the only Church Father who believed that souls in Heaven experience joy witnessing the just punishments of the damned. St Thomas Aquinas taught that the blessed rejoice in the suffering of the wicked in hell (ST Suppl Q94 A3). Let he who desires to see a notorious sinner suffer the just consequences of his sin ask himself honestly whether he would rejoice as much or more if that sinner were to repent before death and receive the grace of salvation and forgiveness? If he can honestly say that such a turn of events would satisfy him more than watching the sinner suffer, then perhaps the desire that is being maligned and judged as a sinful indulgence in schadenfreude is nothing more than a firm, natural, lively hope for divine justice.

  • JPZmirak

    RE: Kevin, you’re right. If someone would PREFER the penitence of the sinner, but accepts his punishment as a lesser good (but still better than seeing justice simply violated) than “a firm, natural, lively hope for divine justice” seems right. Tertullian went further than that, though, and since I’m tempted in the same way, perhaps I’m trying to over-correct.

  • Jennifer

    “then perhaps the desire that is being maligned and judged as a sinful indulgence in schadenfreude is nothing more than a firm, natural, lively hope for divine justice.”

    …implies (via Aquinas) that we are assured that we are the blessed and the sinner we wish justice upon is going to Hell. We are entitled to no such life on Earth because we are assured neither of our own salvation nor of our neighbors damnation.

    It’s pretty clear–love the sinner hate the sin.

    I am pretty leery of arguments going to abolishing the First Amendment, simply because it was when humans declared themselves the Supreme Head of the Church and married that arbitration of Religious Law with Civil Law, that Catholics found themselves in a whole heap of trouble and it was the First Amendment that provided refuge.

    As for using Thomism in defense of any argument in the civil sphere such as this one, St. Thomas had no problem, relative to his culture, in allowing the human law to fall short of the natural law because he did not see human law as serving the function of eternal law, moral law, or religious law, and by delimiting the scope of human law we actually allow for a more robust construal of the moral law as it is enforced by both eternal and religious means.

    Which is by way of saying–not prosecuting sexual activity between consenting adults, in no way sanctions it as being permissible in natural, eternal, or religious law.

    In fact, there are many cases in which it would be a greater evil to legislate (and enforce) laws against actions that defy natural law so we must limit the scope of the human law in order to not perform the larger social evil. (I think the TSA might need to read up on the limits of human law.)

    So we can agree with Aquinas that “human nature rebels against an indeterminate union of the sexes and demands that a man should be united to a determinate woman and should abide with her a long time or even for a whole lifetime.”

    And still not argue that prostitution, for example, be made (or remain) illegal. (As Aquinas famously aruged.)

    The Treatise on Law is clear: St. Thomas is not a theocratic thinker. There are limits on human law and there are reasons those limits exist.

    One COULD make the argument against these types of sexual unions (consensual, adult relations between man and woman who are father and daughter) but you can’t simply pound your fist on the table and say it goes against the natural law. Of course it DOES. But that isn’t the ultimate arbiter of what is to be included within the LIMITS of the human law.

    Where are the lines and why? It makes sense that protection to the weak should be provided: minors, financial dependents, those coerced by force, etc. But when it comes to “sexual perversions” where do you stop. Are we going to convict those who use contraceptive sex activity in the martial bedroom? Are we going to convict those who get drunk and mess around with someone at a holiday party? Those who co-habitate? Why?

    How about those who seek bogus annulments to satisfy an extra-marital romantic union?

    All of this to say–these are questions worth pursuing, but because the natural law tell us that something is illicit doesn’t necessarily follow that it should be illegal in a civil sense. That’s a necessary but not sufficient criteria within the context of Thomism.

    What’s more–the more limited the civil law, the more robust the religious law is. And religious law is a covenant which (so far) we freely choose to bind ourselves too.