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This is a lucid and powerful argument in defense of humane laws regarding gay and lesbian people. Nussbaum begins by opposing what she calls “the politics of disgust,” on which she blames most of the historical and remaining discriminatory laws, and then moves on to outline an alternative “politics of humanity” (based on respect, imagination, sympathy, and love) and the kind of laws that such politics would support. The book is easy to read and will be of interest to anyone who cares about law, politics, philosophy, psychology, or social justice.
As well as a preface and a conclusion there are six main chapters. The first examines the rhetoric, theory, and history of disgust toward homosexuality and toward gay and lesbian people themselves. The second describes a contrasting politics of humanity. Chapter Three looks in detail at laws against sodomy, both in the United States and in other countries. Chapter Four is about the U.S. Supreme Court case of Romer v. Evans, which declared Colorado’s anti-gay Amendment 2 unconstitutional. The last two chapters look in turn at the ethics and legality of same-sex marriage and sex in public places, such as bath houses. Throughout, Nussbaum’s argument is respectful toward her opponents but always ultimately in sympathy with the rights of gay and lesbian people.
It is hard to imagine an argument that would overpower what Nussbaum has set out here, but there are a couple of points on which she might be questioned. Nussbaum presents the politics of disgust as bigotry based on unhappiness with our physicality, and this bigotry, she says, is defended intellectually by such people as Leon Kass and Patrick Devlin. In other words, she treats three things (bigotry, feelings about the human body, the philosophies of Kass and Devlin) as being closely connected without this being clearly the case. Undoubtedly there is bigotry and this is one of the main reasons why people oppose “special” (i.e. equal) rights for gay and lesbian people. But is it really so clear that this prejudice comes from discomfort at our own embodied human nature? Nussbaum makes a plausible case that it is, but it is no more than plausible. She suggests, for instance, that some heterosexual men dislike the idea of sharing a shower with gay men because: “The gaze of a homosexual male is seen as contaminating because it says, “You can be penetrated.” And this means that you can be made of feces and semen and blood, not clean plastic flesh.” [p. 19] This might be true, but surely few people would accept that this is why many women would object to sharing a shower with heterosexual men. It seems equally plausible that many people are simply uncomfortable with being the possible object of sexual desire, especially when the desiring gaze belongs to someone they do not themselves desire. Need this discomfort be a desire to deny one’s own carnality?
Nussbaum contrasts Devlin’s “politics of disgust” with J.S. Mill’s harm-based liberalism. Mill famously insists that only acts that harm others may be restricted by the law, while Devlin argues that it is legitimate to restrict liberty more than this. One example that Devlin uses is drunkenness, and we might update this example by thinking about drug abuse. Each drinker or drug-user might harm only him- or herself, Devlin thinks, but if the nation is so weakened by widespread intoxication that it cannot defend itself against Nazi aggression then something must be done. He also thinks that allowing gay sex is like allowing drink or drug use in this way. On that point his position is ludicrous, but the more general idea that Mill’s harm-principle is too liberal is much more plausible.
Another problem with the harm-principle is its ability to deal with insults. It is clearly wrong to abuse people verbally because of their race, say, or sexual orientation. Whether it should be illegal to do so is much less clear, but if I oppose public displays of swastikas on the grounds that they show disgusting insensitivity to the value of (especially Jewish and other ethnic minority) human life then I am being rather Devlinian and yet humane at the same time. This suggests that Nussbaum’s apparent identification of the politics of humanity with Millian liberalism is imperfect. Disgust might be illiberal (it is not an Enlightenment value, after all) but it is not always bigoted, conservative, or inhumane. This might not matter much, but it leaves a hole in Nussbaum’s argument in favor of giving same-sex unions the same status as other-sex unions.
At least some opponents of same-sex marriage claim to do so on the grounds that there is no sexual act that same-sex couples can engage in that is the kind of act that produces children. This, and not the mere fact that no children will in fact be produced, they say, is what makes same-sex marriages a demeaning parody of traditional marriage. This is, supposedly, what is insulting about it. However little one might share this sense of outrage, it is what some people claim to feel. Incredulity seems a reasonable response, but a refusal to believe them combined with an insistence that they can only be motivated by merely visceral disgust seems a bit much.
Deep feelings that are enshrined in such documents as the United Nations Declaration of Human Rights and the United States Constitution are not only deeply but also almost universally felt. Opposition to gay sex and same-sex marriage is not like this. It is far from universal and seems to be evaporating from our society too quickly for it to run very deep. Its confinement to certain groups or sub-cultures makes it more like a religious belief than an insight into the universal moral law. And religious beliefs that do not rise to this level of moral insight have no place in the law of the United States. Nussbaum’s conclusion, therefore, as well as most of her argument in its defense, is perfectly correct.
© 2010 Duncan Richter
Duncan Richter, Ph.D., Virginia Military Institute