From Disgust to Humanity: Sexual Orientation and Constitutional
Law
By Martha C.
Nussbaum
(Oxford University Press, 256 pages,
$21.95)
In ways that are inspiring to some and infuriating to others,
many Americans continue to oppose the “gay rights” movement and
“same-sex marriage.” To the consternation of secular liberals, much
of this opposition is grounded in religious faith. But no one
should exaggerate the intensity of this opposition; most Americans,
for instance, do not hate homosexuals. Indeed, it is more
reasonable to suppose that most religious opponents of the gay
rights movement accept the words commonly attributed to Saint
Augustine: “Hate the sin, but love the sinner.”
Admittedly, those seven words could apply to many different
sins. But in view of how quickly the issue of gay rights appeared
on the national political landscape, the vast majority of Americans
deserve credit for responding calmly and civilly to the demands of
gay activists. Those opposing the gay agenda have stuck to their
principles, and in doing so, they have not been nasty or
vicious.
Of course, one can oppose same-sex marriage and gay rights on
grounds other than religion. Philosophic arguments against them
have been made, and will continue to be made. Yet the teachings of
traditional Judaism and Christianity on human sexuality cannot be
ignored, because few persons are philosophers and most Americans
identify with what is commonly called the “Judeo-Christian” ethical
tradition.
In her new book, From Disgust to Humanity, Martha
Nussbaum offers an unusual argument about opposition to gay rights.
She wants to show that much of that opposition arises from what she
calls the “politics of disgust”—a politics based on visceral
reactions and disreputable attempts at psychological manipulation.
According to Nussbaum, those who promote this kind of politics try
to provoke feelings of disgust in their audience by disclosing
facts about the sexual practices of homosexuals. In turn, the
audience directs those feelings toward gay men and lesbians.
Nussbaum’s goal is to document the politics of disgust as an
influential though largely unnoticed phenomenon in our time. She
also criticizes it as unworthy of the American political
tradition.
As the book’s subtitle suggests, Nussbaum contrasts the politics
of disgust with “the politics of humanity.” The latter purports to
be a compelling blend of reason, sympathy, moral imagination, and
political principle. Although she avoids mentioning it, the
“politics of humanity” has affinities with President Barack Obama’s
“empathy jurisprudence,” an approach to judging that American
liberals discussed with much earnestness in 2008 and 2009, but
which lost much of its cachet when Supreme Court justice Sonia
Sotomayor disavowed it during her Senate confirmation hearings in
2009.
This book appears in the “Inalienable Rights” series of Oxford
University Press, and its author is among the most prominent
liberal academics of our time. Nussbaum holds an endowed
professorship at the University of Chicago, with appointments in
the Law School, philosophy department, and Divinity School. Giving
much attention to legal and constitutional questions, she wants
judges to endorse something like “the politics of humanity” when
deciding cases involving the putative rights of gays and lesbians.
She also tries to persuade other readers about the need for this
new kind of politics.
Taken as a whole, however, Nussbaum’s arguments are weak.
Although intelligible, her account of the “politics of disgust”
lacks coherence, and “the politics of humanity” betrays itself by
not treating more sympathetically those opposed to the gay rights
movement. Finally, the book is marred by factual errors and
inconsistencies.
IN THE PREFACE, Nussbaum writes that the politics of disgust has
been used “for a long time” in opposing gay rights. But that view
cannot be right. The most prominent initiative in the gay rights
movement thus far relates to same-sex marriage, and it made inroads
only in the 1990s. Before then, no one needed a broad strategy to
oppose gay rights, because there was no national movement to
oppose. (The AIDS outbreak in the 1980s led to demands for greater
medical resources, but not to national demands for “marriage
equality.”) In fact, for most of the 20th century, gay rights and
the gay lifestyle were rarely discussed in public because it was
considered unseemly or vulgar to talk about intimate life there.
Such strictures applied to everyone, as Rochelle Gurstein has shown
in her remarkable book The Repeal of Reticence (1996).
Even when confining her attention to new developments, Nussbaum
fails to show that the politics of disgust is widely used today.
She singles out three men as advocates of this kind of politics:
Lord Patrick Devlin, a British jurist; Leon Kass, chair of the
President’s Council on Bioethics from 2001 to 2005; and Paul
Cameron, leader of the Family Research Institute, based in
Colorado. But the influence of the first two men on “the politics
of disgust” has surely been de minimis. Devlin was born in
1905 and died in 1992, and he was not an activist of any sort.
Kass’s writings on the “wisdom of repugnance” have more to do with
human cloning than homosexuality. Nussbaum concedes this, and she
does not cite any book or essay by Kass devoted exclusively to the
question of gay rights.
Paul Cameron’s writings stand apart from those of Devlin and
Kass, and if we adhere to Nussbaum’s initial account, we could say
that Cameron engages in the politics of disgust. But Nussbaum
becomes so casual in her use of the word “disgust” that her
narrative loses credibility. The word is used to describe the
reaction of children upon learning basic facts about human
sexuality; the reaction of adults when apprised of what a
colonoscopy entails; and the initial reaction of most people when
they see someone with a physical deformity. “Disgust” is also said
to figure prominently in the Supreme Court’s ruling in Bowers
v. Hardwick (1986), in the Hindu tradition’s designation of
certain persons as dalit (“untouchable”), and in religious
conflicts in the West during the early modern era.
Furthermore, Nussbaum contradicts herself in describing the
pervasiveness of the politics of disgust in the United States
today. We are told that “large segments” of the Christian right
“openly” practice this kind of politics, but a few paragraphs later
we are informed that the politics of disgust has “gone underground”
because it is politically incorrect. It is then described as still
being dominant, though it now faces “unprecedented challenges” from
the politics of humanity.
Nussbaum would have done well to consider the religious grounds
for opposing the gay rights movement, since she underestimates the
relevance of the Judeo-Christian tradition for the matters at hand.
She suggests, incredibly, that the only strictures in the Bible
pertaining to homosexuality are found in the Book of Leviticus. Has
she managed to wipe completely the story of Sodom and Gomorrah from
her mind?
NUSSBAUM IS MORE CONSISTENT when writing about the “politics of
humanity.” Nonetheless, her arguments are predictably liberal. She
maintains that the American political tradition is libertarian in
matters of “personal morality,” especially regarding sexual
conduct. She applies John Stuart Mill’s “harm principle” to various
questions of law and public policy, as if that principle has now
become part of the Constitution. Like most proponents of gay
rights, Nussbaum broadly sees sexual relations between consenting
adults as “self-regarding” conduct.
Until fairly recently, however, no responsible judge in the
United States could accept that view. The turning point was the
Supreme Court’s invention of a “right to privacy” in cases such as
Griswold v. Connecticut (1965) and Eisenstadt v.
Baird (1972). Here the Court struck down regulations on the
use and distribution of contraceptives — regulations that were
initially enacted in the late 19th century. The Court held that
they violated an “unenumerated” right to constitutional privacy,
and in striking down the laws, it effectively legitimized the
sexual revolution (as did Roe v. Wade, decided in
1973).
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.
