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.

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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.

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