an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
According to the Sacred Congregation of the Faith of the Roman Catholic Church,
The traditional Catholic doctrine that masturbation constitutes a grave moral disorder is often called into doubt or expressly denied today. It is said that psychology and sociology show that it is a normal phenomenon of sexual development, especially among the young. It is stated that there is real and serious fault only in the measure that the subject deliberately indulges in solitary pleasure closed in on self ("ipsation"), because in this case the act would indeed be radically opposed to the loving communion between persons of different sex which some hold is what is principally sought in the use of the sexual faculty.
This opinion is contradictory to the teaching and pastoral practice of the Catholic Church. Whatever the force of certain arguments of a biological and philosophical nature, which have sometimes been used by theologians, in fact both the Magisterium of the Church - in the course of a constant tradition - and the moral sense of the faithful have declared without hesitation that masturbation is an intrinsically and seriously disordered act.
So, now that former Senator Rick Santorum has become the non-Mitt of the hour--and given that his basic theology, as Molly Worthern argues in the New York Times, seems to be drawn from classical natural-law Catholic doctrine--it seems to be an altogether fair question to ask the good former senator what his position is on masturbation (not to mention his general position on his political duties when natural law conflicts with the postive law of the United States that he, as president, would presumably be required to "take care" to enforce). Is it like Newtonian adultery, an act that he has engaged in in the far past, when he was a weak-willed teenager but now publicly atones for? Does he believe that public funds should be cut off to any group that suggests that masturbation is other than a "seriously disordered act" and might even be defensible as a source of personal pleasure? I note that Constance Johnson, a 31-year veteran of the Oklahoma legislature--the same state, incidentally, that has courageously taken the lead in preventing the injection of shar'ia law into the Edenic structure of American law--has filed a bill that would make it a criminal offense to deposit semen anywhere else than in a woman's vagina. As she notes, a "personhood" bill filed by one of her Republican counterparts--she is a Democrat herself--would subject Oklahoma women to the potential for "additional criminal charges and potential incarceration for biological functions that produce or, in some cases, destroy eggs or embryos, such as a miscarriage." She wants to produce "fair play" by placing men at risk for wasting sperm that could otherwise be productively engaged in the process of reproduction. Interestingly enough, female masturbation presumably wouldn't fall afoul of natural law theories of the sanctity of reproduction above all, since, at least to my knowledge, it has no effect on fertility. But is the point that it is equally forbidden becasue it casts doubt on the notion that the only legitimate form of sexuality is reproductive and, if need be, expression of the marital bond?
Given the emphasis being placed by former senator Santorum and others on the importance of limiting the possibility for contraception, one wonders what his position is on this proposed amendment. Perhaps he believes that it represents too great an incursion on personal liberty, perhaps because detection of the criminal offense would be so difficult. Perhaps he adopts the argument of St. Thomas, well explicated in Robert George'ss excellent bookMaking Men Moral, that an element of pragmatism is necessary with regard to the pace of that enterprise, that one can't move too much faster than the (sinning) population is ready for at any given time. But, obviously, this is an argument of tactics rather than of high principle, since presumably "grave moral disorders" ought to be limited as quickly as is reasonably possible, taking into account pragmatic considerations about the receptivity of the population to moral education (and potential coercion). (For what it is worth, I presume that most political liberals, in the loose rather than strict Millian sense, are willing to use state power on occasion to limit at least some "grave moral disorders" like racism or sexism even when one can't point to an immediate victim of such conduct).
It will, no doubt, be a bit awkward for one of the debate moderators to raise the issue of masturbation after Newt so eloquently denounced all mainstream journalists for expressing any interest in his views of adultery and "open marriage." But enquiring minds surely want to know more about former senator Santorum and masturbation, especially if one of the two "great" political parties is seriously thinking of foisting him on the nation as its candidate for the oval office and the power to veto legislation and issue administrative rules--not to mention nominating people to the federal judiciary--that comes with it. No one really cares what former governor Romney says because nobody believes that he is trustworthy with regard to anything other than the desire to limit his own taxes (and, of course, satisfy, and beat out, his father by becoming President). But Santorum is different. He actually believes things and seems to read theology.
Consider this off-hand remark of the late George Carlin:
"Masturbation is not illegal. If it were, people would take the law into their own hands."
Carlin may not have been successful on the First Amendment's speech clause before SCOTUS but seems to have made his point with "We the People." So even if the First Amendment's establishment clause failed to prevent a Santorum "clean hands" law, "We the People" just might take that law into our own hands (nullification?).
Sandy, what's wrong with a little snark from time to time? Consider the young lad responding to urges that could lead to "ipsation": "They came for the abortionists and the women they aborted and I did not object. They came for women taking birth control pills and I did not object. They came for men using prophylactics and I did not object. And then they came for me." If only masturbators had the vote!
Query if the Hosanna-Tabor ruling establishes "Sharia law" by overriding neutral general laws.
As to Santorum, Chris Hayes just played a clip of him citing the French Revolution as an example of what happens when we no longer rest things on natural law. Yes, imagine if the GOVERNMENT told us who to marry, what type of sexual relations to perform, what to do with our body, including control of our family size.
Of course, like Hayes guest from Notre Dame noted, we do from "time to time" lie and all. OTOH, people don't think that is generally a good idea. Use of contraceptives, or well masturbating, most Catholics don't find bad. At least, if done in certain places.
Molly Worthen says that Santorum's beliefs are " ... based on centuries of Roman Catholic natural law." But is such natural law universal? Has natural law, Catholic or otherwise, evolved over the centuries in the fashion of common law? Does the layperson, Catholic or other, have significant knowledge of such natural law or must the layperson rely upon religious elites to be informed? Is there a concept of originalism to such natural law? How has natural law fit with our Constitution? (Is information available on the religious affiliations of the framers/ratifiers?) Or is natural law subject to discovery in addressing situations not anticipated by the framers/ratifiers? I wonder if there has been any recent polling on natural law in America.
Mormons believe masturbation is a sin too, at least if the masturbator is a single person. The "masturbation" question is asked by a Mormon bishop in a "worthiness interview," and the answer should be "no," or the person can't enter a Mormon temple (man or woman) or hold the priesthood (man only; women can't hold the priesthood). Lots of young boys lie to their bishop about their masturbation(http://mormoncurtain.com/topic_interviews.html). Oh, and the bishops are as clueless as Mormons were in Brazil when blacks were getting into the temple because the blacks didn't know they had "one drop" of black blood in them (see http://www.exmormon.org/mormon/mormon480.htm).
So, give Santorum a break, but don't vote for him or Romney if you want to be able to continue masturbating. LOL.
I thought we got past the issue of whether Catholic presidents would enforce church doctrine as law when JFK was elected.
The Catholics and a majority of their fellow citizens are opposed to the Obamacare decree that church owned employers must pay for birth control for their employees because the government is getting into church business, not the other way around.
If we are going to review presidential candidates' church doctrine for indications of their future governance, perhaps we should start with Mr. Obama's racist and socialist black liberation church.
Our yodeler once against demonstrates his "masterdebating" proclivities with his racist/socialist rant. Perhaps in our yodeler's mind Obama's church can be compared with the Roman Catholic Church in power, influence and wealth.
By the Bybee [expletives deleted], is Newt still our yodeler's anti-Mitt candidate?
Obama had a far more intimate relationship with the right Reverend Wright and his black liberation church than Santorum likely had with the Catholic church into which he was born.
Being abandoned by his biological father profoundly shaped his youth, causing him to seek out a series of surrogate father mentors. The last two of these were a communist writer and family friend - Frank Marshall - and then Wright. Both Marshall and Wright hated U.S. capitalism and saw socialism as the cure for racism.
Obama went church shopping as a young community organizer, interviewing preachers and chose Wright because of his black liberation theology.
Although Obama has whitewashed his relationship with these two men, they both figure priminently in Obama's middle age autobiographies. It is difficult to believe that they did not have a significant influence on pour President's thinking.
" ... than Santorum likely had with the Catholic church into which he was born."
So how many years has Santorum been with the world-wide Catholic church as compared to the time that Obama was with Rev. Wright's church? During Santorum's political career, which has been much, much longer than Obama, Santorum has made statement after statement of the influence of the Catholic church on his role as an elected official. Santorum was on the morning political shows today avoiding, except for his body language, responses that his lifelong religious upbringing would not impact his decisions if elected President.
Our yodeler's refusal to take my "By the Bybee" bait suggests he may be leaning to Santorum as his new non-Mitt and his comment photo may soon display a sweater vest - perhaps continuing with the blue color of his blue state.
I would presume that Santorum's position on masturbation is the same as Joe Lieberman's position on wearing shatnez. For myself, I don't go around sneering at other people's religious beliefs, but that's just me.
I note at Daily Kos a discussion on Viagra that contrasts the position of the Catholic Bishops with that of Rick Santorum. Apparently the former okay Viagra as enhancing procreation (even though the Viagra user may be kinda old) although they might use condoms. Santorum objects because the prime mover seems to be use for pleasure. From the woman's position, she may have to rely upon the pill to be protected from a drug enhanced male, especially over a four=hour period. Of course Viagra may also enhance masturbation. Could the Bishops' tolerance of Viagra be influenced by the fact they are all males?
Even though it is now post-2012 Valentine's Day, consider Cole Porter's "Let's Fall In Love." A recent commenter chides "commentators" on this thread, suggesting their comments are more "fit" for the VC Blog. A review of Porter's lyrics reveals a broad spectrum of those that succumb, alas, not libertarians.
Speaking of Valentine's Day, at the next GOP presidential debate I would hope that the candidates would be shown and asked for their comments on the "interview" by Jon Stewart of Ricky Gervais yesterday. Apoplexy may result or panda-monium.