The law-free zone of human sexuality and the Church today

It is a cliché to note that sexual mores have “changed.” While it is not wrong to say that sexual norms have “changed,” the prevalence of this language tends to obscure the specificity of what has actually occurred.

(Image: Yoav Hornung/

Examining the various components of the philosophy driving the proponents of the sexual revolution, as well as many Catholic progressives, a good summary of their various proposals is simply this: the entire realm of human sexuality is not to be governed by law. Sex is, so to speak, a “law-free zone”. Although rarely advertised as such (it’s still too radical for most people), a thoughtful investigation of progressive thought—both secular and Catholic—reveals that this expression is, in fact, an accurate summary.

In other words, the entire realm of traditional moral thinking, and the rules it places on the exercise of human sexuality, is to be completely eliminated. It is to be replaced by a free exercise of choice unrestrained by anything that Western thought hitherto has recognized as a law.1

The notion that human sexuality should not be governed by firm, unchanging principles is most readily evident in secular thought. For decades, we have heard the chorus that traditional moral norms concerning sexuality were puritanical, hypocritical, inspired by male dominance and/or female suppression, oriented to “control” (taken to be a bad thing), turning women into “baby factories,” and constraining human societies in the mires of pre-Enlightenment thinking. The upshot is that we should turn this all over to human freedom. Men and women who come of age can make their own decisions concerning such matters.2

We can investigate the sexual revolution as deeply as we wish to, inquiring into who can participate in sexual acts, the various categories of relationship between the participants (lover, one-night stand, etc), and the circumstances surrounding the act (married, unmarried)—and we will find that there is nothing that can be called a law to govern any situation. The entire realm is determined by “free choice,” which itself is determined by whatever “norms” the participant has chosen for him or her self, in the pursuit of another self-chosen, normless understanding of “fulfillment” or simply pleasure.

There is no circumstance in which a sexual act can be deemed immoral because of the nature of the participants, the acts themselves, or the circumstances surrounding the acts. No argument asserting that a particular sexual act is governed by a permanent norm will have validity here—unless the participant has chosen that particular norm.

We must be more clear and more aware of the significance of this shift. It is a cliché to note that sexual mores have “changed.” While it is not wrong to say that sexual norms have “changed,” the prevalence of this language tends to obscure the specificity of what has actually occurred. I could, to use an analogy, be walking down a street and alter my course by five degrees to the left or right. That would also be a “change”. But it would be a very poor and lacking description of what has happened to sexual norms.

We have taken the norms that governed human sexuality for the entire history of the West and we have reversed them completely. And now the new “norms”—actually the absence thereof—have us going in the opposite direction from before. The new “norms” are 180 degrees in the opposite direction compared to the original.

Everything that was wrong and was recognized as such two generations ago is now right: divorce followed by serial remarriage, adultery, cohabitation among the unmarried, fornication in general, contraception, masturbation, and homosexuality. Few of us really think through the full implications of this; I will mention just two implications here.

First, whereas the traditional prohibitions were clearly oriented to preserving the creation and stability of families, and exercises of sexuality supporting that end, the current norms can logically only result in the destruction of the traditional family. As sexual morality goes, so goes the family.

Secondly, if the progressives and the new “norms” are correct, the clear implication is that Christian churches and denominations generally, and the Catholic Church most of all, has for centuries actively misled the entire human race on what are perhaps the most central norms of human moral existence.3 Given the depth and breadth of such a colossal error, why would anyone listen to what the Church or Christians say today? Further, should the Church effectively concede the supposed error? It is all the more puzzling when one realizes that those Christians advocating for a radical shift to the modern view believe that such a change will make the Church more “credible”!

It is worth noting that this phenomenon of removing laws from the sexual realm is, overall, in direct contrast with what occurs in nearly every other aspect of life. In the past two generations, we’ve witnessed a large swath of laws regulating our behavior almost across the board. Compare, for instance, where we are today with the early 1960s concerning laws regulating health care, privacy (excluding the realm of sexuality), the economy, and education. The clear pattern, in general, is to subject human behavior to more and more regulations. Politically, this translates most often into federal regulations. So, the sexual revolution has this further peculiar trait of being a call for the end of law in a society that is generally expanding the areas covered by law and multiplying regulations.

Another clarification is also in order. Some may be puzzled by the claim that the realm of sexuality is becoming a “law-free zone.” Are there not, in fact, more and more laws restricting us here? There is a proliferation of laws telling us we cannot restrict abortions, that we must provide contraceptives for free at government expense, that we must permit and protect “same-sex marriages”, transgenderism, and new “sexual rights” constructed out of whole cloth. It does not appear that the proposition of being “law-free” holds in the realm of sexuality.

All of these are undoubtedly true, but they do not really contradict the proposition. There are indeed many new laws, but they all designed to ensure that sexuality not be governed by any proper and objective sexual norms. They are there to preserve the law-free zone from potential incursions by legislators, executives, and courts. For example, laws mandating access to contraception at public expense are clearly there to promote their use, to ensure that participants in sexual acts have their free choices respected without the inconvenience of pregnancy and a child.

Let’s now consider the Catholic version of the problem, which at first glance seems to have nothing to do with progressivism. We have a Catechism filled with prohibitions against all the things the sexual revolution has legalized: divorce, cohabitation, fornication, masturbation, homosexuality, “same-sex marriage,” and transgenderism. While some Catholic progressives make common cause with their secular counterparts, the Catholic context requires (at least to some degree) these people to advance with a more indirect approach toward the same end. It would be too much to simply advance the secular agenda unabashed. Even worse, such an approach makes the end rather transparent to just about everyone; it would be obvious that the goal was simply to overturn the entire set of norms which have existed for centuries. Many Catholics are not ready for that, or at least not ready to do it so openly. The new theology that has developed here is not really that new, as we heard about it in the aftermath of the Second Vatican Council.4 One of the problems with it is that it is surrounded by endless discussions of who exactly embraces it, much of which is frankly disingenuous.5

Recall that St. Pope John Paul II’s Veritatis Splendor was written as a response to the development of the kind of deviant moral theology that negates the existence of a binding, permanent law concerning human sexuality. The various schools of thought rejected by the 1993 encyclical ultimately stood in stark contrast to actual Church doctrine. The point here is that these various schools, known variously as “the fundamental option theory,” “consequentialism”, “proportionalism,” and “teleologism”, all point in the same direction of loosening the hold of strict, concrete norms over human behavior. They all tend to support what has been called a “gradualism of the law,” by which no specific universal law governs moral behavior in all situations.

In other words, this approach does not simply negate any of the Church’s norms. It says that people may find themselves in situations wherein they are not able to meet the full demands of the law. It involves, to some degree or another, an acceptance of the violation of the norms. Often qualifiers are put up, demanding a Catholic consult with a priest first—and then, of course, with his own conscience. But, at the end of the day, the person chooses what norm is going to govern his behavior that day—so long as he promises to try to reach the Church’s norm at some future (though not determined) point. Obviously, no full discussion of this can take place here. But the contrast with the Church’s perennial teaching became clear in those who, such as Walter Kasper and most of the German bishops (and a host of others around the world) who argued for giving Communion to the divorced and remarried under certain circumstances. Those pursuing this option were expected to examine their consciences with the help of a priest to determine if their current actions were the best they could do. But the bottom line was that they would choose for themselves. The moral law would not be speaking thrown out, strictly put, but it would be “kicked upstairs” so to speak; it acted as a long-term goal, and not as an immediate guide and judge of action.

When the long theological excursions along these lines are followed in individual cases, and when it comes down to the actual practical choice of action to be made, the moral law no more guides this Catholic person than it does his secular counterpart following the relativist norm. This may seem harsh, and I am not saying the cases are identical. But the reality in both cases is that the acting person is not governed by a universal law, but (at least for some undetermined period of time) a law of his own choosing. As John Paul II and Benedict XVI made clear many times, this approach is incompatible with what the Church has always taught. The Church teaches that certain violations of sexual norms constitute grave matter and are subject to repentance and conversion the moment they are committed. The Church in no way can permit or sanction actions that intrinsically violate her moral and sacramental norms.

Looking ahead to the Synod of Bishops’ meetings coming up at the Vatican the next two Octobers, I will avoid throwing my two cents in as to the possibilities. (Others have done that and I believe it is probably best done by experts in canon law.) Ultimately, if things go sour, possible solutions will depend upon the rights of orthodox bishops and cardinals under canon law. I merely wish to underline one rather unsettling possibility. Pope Francis, in Amoris Laetitia, produced an often ambiguous document that just as clearly did not clearly forbid communion to the divorced and remarried, and seemed to open the door to it. He was asked by four cardinals to clarify the Church’s position, said he would not do it, then turned around and endorsed the Argentine bishops’ approach, but clearly did crack open the door. The Catechism has remained unchanged.

But what if the current Synod terminates next year with the issuance of a document, from the Pope and with magisterial authority, that essentially takes the same approach to a range of sexual issues that the Pope previously took to Communion for the divorced and remarried? Without changing the Catechism, the entire Church’s doctrine on sexuality, marriage and family could be effectively undermined and overturned using the same methods: issue an unclear document, refuse to give a definitive interpretation, then allow the Argentinian or German bishops and others to interpret it as they choose—an approach I think would clearly lead the Church into at least a “practical schism.” The supporters could all deny that anyone changed Catholic teaching. I think it would make the Catholic Church, in essence, much like the current mainstream Protestant churches or the Anglican Communion, in which no one can agree on the nature of marriage, or family, or sexual morality.

More attention should be given to just how “normal” all of this already seems, and how much worse that sense of indifference is likely to get. Have we not already accustomed ourselves to the idea that some bishops and cardinals are orthodox, while others are not? And is this not already reflected in our acceptance that some parishioners hold Catholic positions while others hold to the opposite positions? Are not younger Catholics absorbing all of this? So, unorthodoxy—holding the opposite of what the Church teaches—is no big deal. Pope Francis is already on record saying that he does not fear schisms. And it is hard to see him really cracking down on these bishops in the future for doing what they are already doing today.

I really dislike publicly criticizing the Pope, but I must say this is one of the worst results of his way of governing the Church. The young Catholic is led to understand that Latin Masses in his parish must be banned by decisive papal intervention, but Cardinals can mouth unorthodox positions on a regular basis with generally no response from the Pope. Theologians have already been doing it for two generations. Yes, the Pope has formally criticized the German bishops and the “Synodal Path”, but they and others may interpret the lack of action as a kind of indifference to the offense. And just a week ago, several Germany bishops announced they will allow liturgical blessings of “same-sex unions” in their churches. Again, what lessons do young Catholics absorb?

We all need to say more in opposition to what is happening before our eyes. When I was growing up, it was unthinkable for professing and practicing Catholics to oppose Catholic moral teaching on sexuality and family. A bishop doing so would have been removed, and quickly if he did not publicly repent! Now we can wonder if there are ever going to be any disciplinary measures taken against bishops and cardinals holding unorthodox positions. Let us all pray very hard for Holy Mother the Church this Lent and beyond.


1 This discussion assumes a Thomistic approach to the definition of law. It accepts a distinction between natural law and human law. In most instances, the article means law in the sense of natural law, but it would include human laws based on natural law.

2 One might be tempted to think that laws against rape would be a real exception here, but they are not. The prohibition against rape is no insertion of a remnant of the older morality, although it was always condemned by that morality. In the case of rape, what is being violated is not a strictly sexual norm, but a norm against violence in general and the right of woman to make free choices. If we consider the typical rape case, the act would in all cases be judged to have been fine if there had been consent. On a similar note, laws forbidding adult sexual relations with minors fall into the broader pattern by which the law treats minors differently in many instances because of their perceived inability to make adult decisions at a certain age. Again, the very same act committed with someone two days shy of their eighteenth birthday would in all cases be fine three days later, assuming consent.

3 I call sexual norms the most central norms under the assumption that nothing could be more central to human flourishing than the state of the family in society, a proposition still completely supported by any honest perusal of the evidence. Societies or communities where the family is largely non-existence are places where all human pathologies flourish. No government program or spending of money can save such communities.

4 Theologically, this seems to be a characteristic of Pope Francis’ papacy. It is the re-emergence of the agenda of the later Sixties and the Seventies, but now with an apparent advocate in the Chair of Peter.

5 It became almost humorous in the aftermath of the issuance of Veritatis Splendor to listen to the constant complaints of theologians insisting that St. Pope John Paul II’s criticisms of “fundamental option” theory, proportionalism, consequentialism, relativism, and teleologism did not constitute a criticism of any actual theologian. None of these theologians could recognize themselves in the Pope’s description of their school of thought. (I guess we should all feel sorry for the Pope. He wasted an entire encyclical criticizing schools of thought that had no actual adherents?) We have seen this same charade again and again. When the Sacred Congregation for the Faith issued its first directive on Liberation Theology, we were again told that the Congregation had it all wrong, that no one actually held the positions being criticized. Much the same is going on today. The theologians all scoff at any criticism of their theories, claiming that the critics just do not seem to really “get” what they are actually saying. It is not, however, a problem they believe characterizes their own much harsher judgments of their critics.

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About Dr. Thomas R. Rourke 3 Articles
Dr. Thomas R. Rourke was the winner of the American Political Science Association, Religion and Politics Section's Aaron Wildavsky Award for the best dissertation on a topic of Religion and Politics, upon receiving his doctorate from Texas Tech in 1994. He taught at FIU in Miami before moving to Clarion University of Pennsylvania. He is the author of five books and numerous articles, most recently: The Roots of Pope Francis's Social and Political Thought (Lanham and London: Rowman and Littlefield, 2016).


  1. Church, Government, Marriage, and Parental discipline…like Gods, are based on our willingness to have Faith in the wisdom of a creatively ordered hierarchy and the LOVE which designed it. Hebrews 11:6 (ESV) And without faith it is impossible to please him, for whoever would draw near to God must believe that he exists and that he rewards those who seek him.

  2. We read: “I think [practical schism] would make the Catholic Church, in essence, much like the current mainstream Protestant churches […] in which no one can agree on the nature of marriage, or family, or sexual morality.”

    Of course!

    Yours truly grew up in a middling-size boom town in arid eastern Washington. Almost the only gas station in town was the “Rainbow.” The gas was a diluted COMPOSITE of various blends—the mixed “slug” that passes through the refinery pipeline when one grade of oil is followed by another—to serve whatever the market will bear.

    Likewise, the sexual revolution celebrates the rainbow (actually, from “The Wizard of Oz.”). AND, within the Church we have well-positioned (!) cardinals and bishops gassing at each other under the pretense that moral coherence and ecclesial UNITY (like “marriage”) can be redefined as a diluted and “composite” solution.

    So, yes, the obvious agenda for sin-nod-ism in October 2023 and 2024 seems to be a slug of “aggregated, compiled and synthesized” (The Vademecum) ingredients; and then to remain silent about the LGBTQ inputs and outputs, so to speak. Whatever the market will bare!

    Not “practical schism,” butt “proctological schism.”

  3. Could we please change “government- and/or federal funding” to “taxpayer-funded?” Too many people don’t seem to understand that no form of government — local, state, federal — funds anything. They all get their money from taxpayers, and when people understand that all the programs are funded by their taxes, they might be more concerned about how their money is being spent.

  4. This article jumps back and forth between secular and religious without even the hint of a theme statement or any other kind of tracking or warning. Bottom line, I am much more comfortable with a laissez-faire approach regarding secular law and sexuality then I am with its opposite. If that means the Church needs to wake up and do its job instead of just letting “government” you secular tyranny to enforce what it thinks this week are “ethics,” I am fine with that. What I was able to glean from all this writing — some people are of the world, summer of the spirit and Francis is soft on Bishops’ impropriety, heresy and hypocrisy. Kind of already knew that…

  5. At times I am so tired and fed up with all this rubbish and madness that I wonder when will my head stop spinning!!!!

  6. This is an extremely incisive article, and I thank the writer for it.
    I cannot presume to speak to the second half of it, but I did want to offer some observations on the first part.
    The law-free zone that has arisen is a necessary result of endorsing the concept of “consent of the governed” as first political principle. Things inexorably collapse after this endorsement, as the original understandings of the context of this principle ultimately give way to its logic. In truth, consent of the governed is an oxymoron; it is not governance at all. We do not (yet) have actual anarchy, so what one is left with is a political structure oriented to Material Collectivism, but Moral Anarchy.

  7. There is the natural law (e.g. The Ten Commandments). And it is exists even if humans don’t enforce its dictates with human law. St. Augustine famously wrote essentially that right is right even if no one is doing it, while wrong is wrong even if everyone is doing it.

    Given that The Ten Commandments were enforced under Mosaic law which was written by God Himself, then it is clear to me that it is a duty of the state to enforce the same. But that is almost certain not “to work” in a democracy/republic which eventually, without religion, turns into the rule by the immoral mob. My understanding is that adultery immorally ceased to be a crime around the 11th century in England. That may have been the beginning of the decline of the West.

    In one state of the USA that I am very familiar with it was in 1972 (effective 1974) that the CRIME of “cohabitation in a state of fornication” was repealed. Granted that it was likely not well known by the populace at the time that this offense, which came into being around 1830, even existed. And the same ignorance couldn’t have been an accident.

    But AFAIK actually finding out how and why that immoral repeal occurred would not be a simple, and probably impossible, matter. I see no reason that their shouldn’t be transcripts of all public (committees and chamber floor debates) and private (i.e. within or between different legislator offices) legislative discussions, but that isn’t universal.

    “So, unorthodoxy—holding the opposite of what the Church teaches—is no big deal. Pope Francis is already on record saying that he does not fear schisms. And it is hard to see him really cracking down on these bishops in the future for doing what they are already doing today.”

    Unorthodoxy is heresy which is excommunicable and a mortal sin. Unconcern for schism is evidence of malice. Schism is a mortal sin.

    “When I was growing up, it was unthinkable for professing and practicing Catholics to oppose Catholic moral teaching on sexuality and family. A bishop doing so would have been removed, and quickly if he did not publicly repent! Now we can wonder if there are ever going to be any disciplinary measures taken against bishops and cardinals holding unorthodox positions.”

    I am going to guess, based on evidence, that the time that the author is referring to is the 1960s.

    Assuming that this is true, it is a template for what effective punishment ought to be for any person in a position of authority. One of the biggest – and probably by malicious design – issues is that effective discipline only exists in “the private realm.” People have unjustly languished for years in prison to only be exonerated at some later time. And any immoral behavior of public officials that might have been responsible for the same is almost never publicly or effectively punished.

    My guess is that this state of affairs was created and is maintained by bribery and blackmail. For TPTB losing an “asset” after working so hard to get him “in position,” is potentially a very big deal and certainly an annoyance.

    And the same is likely the reason for how and why it is pretty much impossible for a private citizen to make his OWN way to testify before a grand jury. The grand jury “MUST” be kept ignorant by corrupted officials that “control” it and certainly pick and choose which evidence (especially exculpatory) will be presented to it.

    On the other hand, those who speak out against very powerful people or groups are eventually and severely punished. One such hero was Jim Traficant. There is a good article about him that was written by The American Free Press.

    The biggest heresy related to this article is that of legal positivism. It was that which essentially attempts to create “a divide” between morality and human law. While is would be heresy to hold that the state has the duty to enforce all morality, that doesn’t mean that it has the power to create and enforce unjust “law.” Actually writing a history of the spread of this heresy hasn’t been done AFAIK.

    Simply speaking legal positivism denies that an unjust human law isn’t law at all.

    According to the posivitists, the obligation to obey alleged law is presumed. While it may be that the law is unjust, it isn’t within the power of a person allegedly subject to it to deny its legitimacy.

    The prime example of an unjust “law” along the lines of legal positivism is the “crime” of resisting arrest. I have traced that back to the 1830s in my state. AFAIK legal posivitism was “born” about that time. I can point to a passage in a book of moral theology written by a Catholic which says that is it possible for an innocent man to lawfully resist arrest. However, whether that is the prudent course, may be up for debate.

    The effect of legal positivism – along with codification – has been to create a condition of tacit license of immorality (e.g. sex).

    It is likely that most people will, immorally or ignorantly, use human law as their standard for conduct. The scheme has been to write down law (i.e. codify), change or add some of it as “law,” “repeal” law, have the media call “law” law, have the police immorally enforce both “law” and law, and then have the population tricked into obeying “law” and law by manipulation or coercion due to the well publicized threat of police violence – as opposed to legitimate force – and the encouragement (e.g. “See something, say something.”) and “requirement” of mandatory reporting “laws.”

4 Trackbacks / Pingbacks

  1. The law-free zone of human sexuality and the Church today – Catholic World Report – The Old Roman
  2. Will synodality overturn Catholic sexual ethics? - JP2 Catholic Radio
  3. The law-free zone of human sexuality and the Church today – Catholic World Report – The Faith Herald
  4. La zona sin ley de la sexualidad humana y la Iglesia de hoy – Oraciones y Pruebas de Dios

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