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.