October 5, 2009 | 23 comments
Martha Nussbaum’s unusual argument about opposition to gay rights.
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Why did most states regulate contraceptives? The judicial record reveals three main purposes: to discourage premarital sex, to promote fidelity to one’s spouse, and to encourage the begetting of children within marriage. Implicit in these purposes was the view that sexual relations between a man and a woman are (or ought to be) “sacred” — perhaps a strange notion to contemporary liberals, but a view that accords with the teachings of Judaism and Christianity. Even if someone dislikes this language, the earlier view assumed (pace Nussbaum) that societies have an interest in trying to restrict sex to married couples. Before the sexual revolution and the invention of the “right to privacy,” most educated persons understood that the sexual act is typically fraught with social consequences — relating, for example, to public health, the long-term strength of marriage, and the welfare of children. Unsurprisingly, legislators in nearly every state enacted laws intended to make the public mindful of the gravity of so many of our choices relating to our sexuality. But our world is very different today.
After all of the ostensibly “self-regarding” sex of recent decades, nearly 40 percent of the nation’s children are born out of wedlock. Marriage remains in a highly precarious state, having suffered additional damage by the policy of “no-fault” divorce. Nussbaum has few things to say about these matters; she considers the invention of constitutional “privacy” a signal advance, and defends it without seriously considering the counterarguments. If widespread social problems are traceable to “privacy” and the social revolution it abetted, the welfare state can simply be expanded to solve those problems. Or so Nussbaum thinks.
In another chapter, she asks her readers to think of sexual orientation in the same way that most of us think of religion. That is, we may disagree with a neighbor’s religious convictions, but we ought to respect his or her right to worship freely (or not to worship at all). This analogy has some value, but not as much as Nussbaum believes, because there is a fundamental distinction between religious belief and conduct, and the freedom of the latter must be less than that of the former. (So to cite an important Supreme Court ruling, there is no “free exercise” right to ingest peyote as part of a religious ritual.)
Nussbaum, however, briskly moves from “sexual orientation” to “sexual conduct” and wants us to accept them as essentially the same. But we ought to reject the Supreme Court’s idea — put forward in Lawrence v. Texas (2003) — that the Constitution contains an unenumerated right for all adults to engage in consenting, noncommercial sexual relations. That is the ideology of the sexual revolution, and it has no place in constitutional law.
THROUGHOUT THE BOOK, Nussbaum seems to want to affirm the moral legitimacy of the entire gay rights movement. But she does not acknowledge the hostility of some gay activists toward vital social norms such as sexual exclusivity in marriage. The book includes references to works in academic “queer theory,” but a discussion of these truly radical ideas is missing.
Nussbaum’s silence here is hardly surprising, because despite her choice of words, the “politics of humanity” is really a misnomer. It does not embrace all of humanity, but only certain groups favored by academic liberals. She is more interested in championing the rights of those who would defy or “transgress” time-honored moral precepts than in assessing how such conduct might affect the lives of others.
There is irony here, because the “politics of humanity” stresses the importance of using our imagination. But as this book consistently shows, the real failure of imagination is on Nussbaum’s part.
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