LEGAL THEORY

Neil Gorsuch’s philosophical mentor cites “natural law” to reject same-sex marriage and abortion

President Donald Trump’s Supreme Court nominee is a gift to conservatives: Neil Gorsuch has a history of defending religious liberties and has written extensively on the value of human life with regards to euthanasia. But, while Gorsuch’s judicial history has been extensively discussed, it’s also worth examining his intellectual influences.

A Harvard Law School graduate, Gorsuch was later mentored as a Marshall Scholar at Oxford University by the moral and legal philosopher John Finnis, one of the great contemporary natural law theorists.

First, a brief explanation of natural law. (For a more detailed and nuanced summary, the Stanford Encyclopedia of Philosophy is a great place to start.) There is a millennia-old debate, with many different tweaks and interpretations, about whether law is “natural” or “positive.” Legal positivism argues that the law is socially constructed: Legislators create a law, apply it to a particular society, and lo, a law is formed. Those who believe in natural law, meanwhile, assert that law must reflect universal morals and protect rights that are inherent to being human. As the fourth-century Christian philosopher St. Augustine wrote, “an unjust law is no law at all.”

Discussion of natural law predates Christianity, but Christian theologians such as Aquinas are key figures in developing the theory (this makes intuitive sense, as natural law appeals to a higher and absolute moral authority on what constitutes justice, and God fits this authority well.) Finnis, a Catholic natural law philosopher, traces much of his thinking to ideas first expressed by Aquinas.

Interpretations of natural law have massive and widely varying influence. The US Declaration of Independence refers to the equality that “the laws of nature and nature’s God entitle” and is clearly founded on a belief in natural law. English Common Law sought to uphold natural law, and those who wrote the US Constitution referred, in the course of various writings, to the notion that God is the ultimate source of legal authority. The concept of human rights is also closely intertwined with natural law.

Though the US constitution is a positive law, the Supreme Court justices have not totally ignored the notion of natural law. Justice Anthony Scalia believed that “the government derives its authority from God,” and Justice Clarence Thomas argued at his Senate confirmation hearing that “we look at natural law beliefs of the Founders as a background to our Constitution.” (Meanwhile, as Mother Jones notes, then-Senator Joe Biden once criticized Reagan’s Supreme Court nominee Robert Bork for not believing in natural law. “As a child of God, I believe my rights are not derived from the Constitution…They were given to me and each of my fellow citizens by our creator,” said Biden in 1987.)

Natural law philosophers have differing theories on the fundamental rights that must be protected by this law, and these rights are derived from absolute human goods. Georgetown moral and legal theorist Mark Murphy explains that, for Finnis, these basic goods include life, knowledge, aesthetic appreciation, play, friendship, practical reasonableness, and religion.

He argues that it is inherently wrong to intentionally harm any basic good. This framework means that, in Finnis’s view as laid out in articles, abortion is inherently wrong as it’s an attempt to harm life. His theory does, however, allow for some exceptions where abortion would be considered permissible. Finnis argues that if an abortion is carried out to save a mother’s life, then it is not the intention to harm the fetus and so is morally permissible. “Finnis is obliged to say the doctor did not intend the baby’s death, because he believes there is an absolute prohibition on intentionally killing innocent people. (The alternative would be to treat the procedure as impermissible, but this is clearly not his view.),” explains legal philosopher Jonathan Crowe.

Finnis’s beliefs about the absolute value of protecting life also means that the philosopher strongly opposes the death penalty and nuclear armament.

Conversely, Finnis argues that marriage is a basic good and, in his view, it’s a heterosexual good that should lead to procreation. “It is the sort of loving union inherently oriented to family life; it is the sort of living bond that by its nature would be fulfilled—extended and enriched—by the bearing and rearing of children,” he writes. Based on his interpretation of the good protected by natural law, Finnis is strongly against giving same-sex couples the same benefits as heterosexual married couples.

Relatedly, Finnis believes that the “good of marriage” should be the foundation of all sexual relations—in other words, sex is only moral if it takes place within a heterosexual marriage. Homosexual sex, masturbation, adultery, and bestiality are all grouped in the same category and marked similarly immoral by Finnis. “The truly morally significant thing about all non-marital sex acts is that, in diverse forms, they involve disrespect for the basic good of marriage,” he writes.

Of course, though Supreme Court nominee Neil Gorsuch has worked closely with Finnis, that does not mean the two share the same views. Finnis supervised Gorsuch’s Oxford dissertation on euthanasia in the 1990s, and the Supreme Court nominee developed this work into a book where he argues that euthanasia is impermissible as “human life is intrinsically valuable and that intentional killing is always wrong.”

Gorsuch’s views on abortion and gay rights outside of the same-sex marriage debate remain unclear, as he has not explicitly written or ruled on either subject. Meanwhile, when the Guardian asked Finnis about Gorsuch’s nomination, he replied “I have resolved not to say anything to anyone at all.”

Gorsuch’s confirmation hearings are scheduled to begin next month. Only once he’s confirmed will we know how much Finnis’s thinking has shaped the Supreme Court nominee.

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