From Disgust to Humanity: Sexual Orientation and Constitutional Law.

• Author: Cahill, Courtney Megan
• Position: Book review

FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION & CONSTITUTIONAL LAW. By Martha C. Nussbaum. Oxford and New York: Oxford University Press. 2010. Pp. xxiv, 217. $21.95.

INTRODUCTION

Martha Nussbaum's latest book, From Disgust to Humanity: Sexual Orientation & Constitutional Law, (1) could not have come at a more opportune time in the history of gay rights in the United States. All signs point to progress toward "humanity," from same-sex couples' successful bids for marriage equality in a handful of states (2) to the public's increasing acceptance of the prospect of gays and lesbians serving openly in the military. (3) Even if recent cognitive science research indicates that same-sex relationships provoke more than a little disgust in some people, (4) landmark marriage-equality victories in a few states suggest that the law is far less willing to tolerate that disgust as a valid basis for discriminatory and exclusionary legislation. (5) And unlike its culture-war comrade abortion, homosexuality has become less, not more, taboo over time. (6) Whereas abortion is rarely, if at all, mentioned on television, (7) homosexuality, as Nussbaum points out, is becoming a virtual regular on primetime (p. xviii). Indeed, if the gay couple on ABC's Modern Family is any indication, homosexuality--or at least a very domesticated version of it--has begun to lose its taint.

In documenting this progressive movement from a "politics of disgust" to a "politics of humanity" (pp. xvii-xviii), Nussbaum's book tends to mimic it, starting at the low point of sodomy's criminalization in American law (Chapter Three); moving toward the significantly higher points of Romer v. Evans, (8) Lawrence v. Texas, (9) and the marriage-equality movement (Chapter Five); and ending with a gesture toward a world "after disgust," one in which "progress ... is ... complete" (p. 208). To reach this post-disgust zenith, Nussbaum maintains that we must exercise not only our respect for others but also our imagination, the latter of which she defines as the capacity to "participat[e] in the lives of others" (p. xix), to identify with the situation of another "and see it as relevantly similar" (p. 48) to one's own, and to "see the other as a center of perception, emotion, and reason, rather than an inert object" (p. xix). "The politics of humanity includes," she asserts, "both respect and imagination, and imagination understood as an ingredient essential to respect itself" (p. xix). In this, Nussbaum weds her more recent work on sexuality and disgust (10) with her earlier work on literature and the literary imagination. (11) The "literary imagination," which Nussbaum wrote of fifteen years earlier, is "an essential part of both the theory and the practice of citizenship" (12) because it "asks us to concern ourselves with the good of other people whose lives are distant from our own." (13) There, Nussbaum was concerned with the imagination's relevance "to public thinking" (14) and to good citizenship in general. Here, she is concerned with the imagination's ability to facilitate a movement from disgust to humanity in the area of gay rights generally and American law in particular.

From Disgust to Humanity is novel not because it elucidates the role that disgust has played in the law. To be sure, the book's survey of law and disgust draws from the richly developed theoretical framework of disgust that antecedes it. (15) Rather, what is new here is Nussbaum's recommended antidote to disgust. Unlike other theorists of disgust, Nussbaum offers not just a theory of what it is, but also, and perhaps more importantly, a way to get past it. (16) That way, she posits, is the politics of humanity, which involves the exercise of one's imagination and the simultaneous cultivation of similarity between one and the so-called disgusting other. If the politics of disgust is all about separation and recoiling from those who disgust you, then the politics of humanity is all about association and trying to walk in those persons' shoes for a while--and, in the process, seeing them as people who are in some sense "like oneself.'" (17)

Nussbaum deserves praise for setting forth a possible solution or cure to disgust's dominion in the realm of sexual orientation and the law. Let's call that solution or cure the politics of similarity. At the same time, however, this solution, or at least a strong version of it, suffers from two potential shortcomings, one descriptive and the other normative. First, humanity-through-similarity might lead to descriptive imprecision.

Take, for instance, the push for marriage equality by same-sex couples. In that context, a strong version of Nussbaumian similarity is already well underway, as advocates have attempted to cast same-sex couples who desire to marry as "just like" their married heterosexual counterparts in order to gain the marriage right. (18) While these kinds of "like-straight" arguments might make sense on a doctrinal level, motivated as they are by the equality principle and its antecedent philosophical tradition, (19) they tend to distort the measurable differences that social scientists have found to exist between same-sex and cross-sex intimate and family structures. (20) Indeed, by embracing such a vigorous account of similarity politics, marriage-equality advocacy has not just minimized difference but erased it entirely.

Second and more normatively, humanity-through-similarity does very little to advance a thick notion of cultural, social, and marital pluralism. It is, in short, not all that imaginative, if by imagination we understand the creative ability to imagine and respect worlds that are different from our own. (21) In prior work, Nussbaum argued that "part of the idea of flourishing is a deep respect for qualitative difference.'" (22) Here, however, difference takes a backseat to similarity. As such, the reader is left wondering whether Nussbaum's vision of sexual orientation and the law can accommodate the same sort of difference that she has championed elsewhere. More generally, at the end of this book one wonders whether actors are capable of moving past disgust for marginalized out-groups by imagining and "deeply respecting" even those differences that provoke discomfort. If not, then what we are left with is a somewhat thin conception of social and cultural pluralism in American law.

Part I provides an overview of From Disgust to Humanity, including Nussbaum's theory of the imaginative vision and the role that it might play in facilitating a movement away from disgust and toward humanity. Part II then critiques that vision and the politics of similarity on which it rests from both a descriptive and a normative perspective. This Part uses marriage-equality advocacy as an example of a movement that has adopted a strong version of Nussbaum's politics of similarity, one that fails to capture the meaningful differences that exist between gay relationships and their cross-sex counterparts. Part III finally considers an alternative way to move past disgust and toward humanity for out-groups generally, one that focuses less on similarity and more on difference; or, in words written by Nussbaum fifteen years ago, one that "attend[s] to citizens in all their concreteness and variety.'" (23) That way draws from aspects of the Supreme Court's sex equality jurisprudence, which, far from retreating from difference, has wholeheartedly embraced it.

1. FROM DISGUST TO HUMANITY: A NARRATIVE OF PROGRESS

   The law loves progress narratives. "The history of our Constitution," Justice Ginsburg intoned in United States v. Virginia, "is the story of the extension of constitutional rights and protections to people once ignored or excluded." (24) While such progress narratives might very well be, according to their skeptics, "progress myths" or even "phony history,'" (25) they are nevertheless extremely seductive for those legal actors who aspire to read legal history as reflecting an ascent from relative benightedness to relative enlightenment. (26)

   Nowhere is this tendency to read social and constitutional history in progressive terms more pronounced, at least right now, than in the context of civil rights for sexual minorities. For instance, courts that have struck down exclusionary marriage laws on state constitutional grounds have invoked narratives of progress that variously conceptualize marriage and the legal status of gays and lesbians as evolving steadily over time. (27) Similarly, certain champions of marriage equality have conceptualized marriage as the only institution that will complete gays and lesbians' progress in the law from outlaw to in-law. As William Eskridge has argued, "As a formal matter, law's civilizing movement will not be complete until the same-sex married couple replaces the outlawed sodomite as the paradigmatic application of law to gay people.'" (28)

   In the spirit of such progress, From Disgust to Humanity tends to embrace a narrative of advancement for gays and lesbians in American law on both a descriptive and a normative level; indeed, the title alone (from ... to) invites the reader to consider the relationship between sexual orientation and constitutional law within a progressive frame. On a descriptive level, Nussbaum outlines the progress that sexual minorities have in fact made in the law from disgust-provoking outlaws to (relatively) accepted legal subjects. After setting forth, respectively, the politics of disgust and the politics of humanity in Chapters One and Two, Nussbaum traces in the next three chapters what appears to be an ascensional movement, one that starts with the criminalization of sodomy before Lawrence v. Texas in Chapter Three (pp. 54-93), progresses toward the Supreme Court's rejection of disgust politics in Romer v. Evans in Chapter Four (pp. 94-125), and apparently culminates with some recent marriage-equality victories in Chapter Five--victories that suggest that at least...