Neil Gorsuch and Natural Law


Judge Neil Gorsuch
Judge Neil Gorsuch (photo: Alex Wong/Getty Images)

Neil Gorsuch, the Trump administration’s nominee for the U.S. Supreme Court, is a proponent of natural law. What does that say about Gorsuch and about issues of high interest to faithful Catholics? It says a lot, and what it says is very good.

First, what is natural law?

Natural law affirms that we do what we ought to do according to nature, to our very nature. “What we ought to do is based on what we are,” writes Boston College theologian Peter Kreeft. The natural law, notes Kreeft, is naturally known, by natural human reason and experience. You need not be a religious believer to know the natural law, even if that law (many of us believe) was written into nature by a Creator.

Really, it’s easier to give examples of natural law than a definition. Human sexuality demonstrates natural law so well because it’s so self-evident. For instance, a man and a woman have obviously and observably different but complementary sexual parts that are capable of biological union. A male sperm fertilizes a female egg. That leads to life. That’s how the laws of nature, or nature’s God, has ordained it.

But let’s move away from sexuality. Another violation of natural law is murder: one human life taking another. That’s a violation held by cultures, societies and governments of all times.

The Catechism of the Catholic Church (1954-1960) states that natural law is “immutable and permanent throughout the variations of history.” It is a “universal rule that binds men,” that is “engraved in the soul of each and every man,” and that is “present in the heart of each man.”

St. Gregory of Nazianzen observed that this “unwritten law of nature” serves as a vital “watchdog of our actions, by way of pricking our consciences and advising and directing us.” It navigates us.

St. Gregory was a Christian, but one need not be a Christian to understand what Thomas Jefferson referred to as “the Laws of Nature and Nature’s God.” Pre-Christian figures like Aristotle and Cicero spoke of this eternal law. “True law is right reason in agreement with nature,” stated Cicero. “It is of universal application, unchanging and everlasting.”

Moreover, Cicero asserted, “It is a sin to try to alter this law … and it is impossible to abolish it entirely.” He added that “whoever is disobedient” to the natural law “is fleeing from himself and denying his human nature.”

In this, Cicero would have agreed with the Catechism, which states that even when this law is rejected, “it cannot be destroyed or removed from the heart of man” (1958).

Nonetheless, many in today’s culture aggressively seek to do just that, because they don’t like the dictates of the natural law. If you’re endeavoring to fundamentally transform human nature, especially on issues like marriage, family, sexuality and gender, then the natural law is your chief foe.

For many liberals, this is why natural law is anathema. As a CNN reporter notes of natural law and Neil Gorsuch, because “some philosophers” have “employed natural law to argue against abortion and same-sex marriage, the field has become controversial, especially among liberals.”

Controversial? Well, okay. But it is what it is. Abortion and same-sex “marriage” go against the teachings of natural law. They also go against the teachings of Scripture, the Catechism and the Roman Catholic Church, which upholds natural law.

Thus, if you’re an aggressive secular progressive, one seeking, day in and day out, to redefine human nature, what do you do with natural law?

Some boldly proclaim that “natural law doesn’t exist,” as one of my shocked students heard from her professor in law school.

But if this progressive professor makes that assertion, then the progressive professor must also reject the natural-law-based conclusions of tribunals such as Nuremberg after World War II, when the judges told Nazi officials that regardless of what Hitler’s laws proclaimed, they should have known that what they were doing was wrong. To gas human beings and recycle their corpses into soap and lamp shades is an obvious violation of basic laws of humanity — no excuses.

Or consider slavery and various civil-rights laws. One current libertarian writer states that “the greatest spokesman for natural law in the 20th century was probably Martin Luther King, who denounced segregation not because of its technical complexities, but because it betrayed the natural-law principles of the Declaration of Independence.”

This being the case, most progressives will do with natural law what they do with biblical law and other moral laws — they will pick the applications they like and ignore or reject those they don’t. Or, even more brazenly, they will try to remake the natural law in their own image.

No — sorry; it doesn’t work that way. Nature tells you what to do; you don’t tell nature what to do. Your biology tells you your sex; you don’t get to determine your own sex.

But tell that to modern disciples of the dictatorship of relativism, where everything is deemed re-definable, from one’s gender to whether a human life is even considered a human life.

And that brings us to Neil Gorsuch.

Gorsuch is incredibly well-educated. It’s difficult to find a more credentialed academic pedigree. He studied natural law while earning a Ph.D. at Oxford (he has a J.D. from Harvard) under one of the world’s pre-eminent authorities on natural law, John Finnis. Professor Finnis was Gorsuch’s dissertation adviser. He’s now on faculty at Notre Dame Law School and a professor emeritus at Oxford. Finnis’ best-known work is his Natural Law and Natural Rights.

Gorsuch’s application of natural law was on display in a 2006 book on euthanasia and assisted suicide, published by Princeton University Press. In that book, he wrote that “all human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.” (Amazingly, this line drew the condemnation of pro-abortion Sen. Dianne Feinstein, D-California, during day one of Gorsuch’s confirmation hearings.) It’s a line that could have come right out of the Catechism or an encyclical from Pope John Paul II. It’s a statement any faithful Catholic would love.

For that matter, so is Gorsuch’s statement in support of the Little Sisters of the Poor when the Obama administration tried to force the religious order to pay for abortion drugs. He wrote: “When a law demands that a person do something the person considers sinful, and the penalty for the refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion.”

It is wrong for the state to force a person to violate that person’s conscience. The eternal laws of God supersede the temporal laws of the state.

Here, I’m reminded of a classic affirmation of natural law from Sophocles’ play Antigone, where the protagonist tells the ruler who is repressing her: “I had to choose between your law and God’s law, and no matter how much power you have to enforce your law, it is inconsequential next to God’s. … No mortal, not even you, may annul the laws of God.” (Of course, people who don’t believe in God will not support Antigone’s reasoning.)

In all, this means that Neil Gorsuch’s thinking on issues like human life and religious liberty should be in concert with faithful Catholics, and it should be sympathetic to the rights of those Catholics against a government that tries to coerce them.

Paul Kengor is a professor of political science at Grove City College in Grove City, Pennsylvania.

His forthcoming book is A Pope and a President: John Paul II, Ronald Reagan and the Extraordinary Untold Story of the 20th Century (April 2017).