From Disgust to Humanity: Sexual Orientation and Constitutional Law.

• Author: Case, Mary Anne
• Position: Book review

The title of Martha Nussbaum's recent book From Disgust to Humanity: Sexual Orientation and Constitutional Law encapsulates well the book's normative and descriptive claims. In Nussbaum's descriptive account, the politics of disgust have been and remain at the root of all opposition to recognition of legal rights for homosexuals, whether the issue be sodomy laws, discrimination on the basis of sexual orientation, same-sex marriage or venues for public sex. Although she acknowledges that explicit appeals to disgust have declined in recent years, Nussbaum argues that disgust "has not gone away, it has gone underground." (1) In Nussbaum's normative view, disgust not only should be ruled categorically out of bounds as a basis for law and policy, but must be thoroughly extirpated and replaced with a "politics of humanity" involving not only sympathy, imagination, and respect, but "something else, something closer to love." (2)

From the moment early in its conception when she first sought my input on this new book, I had to confess myself troubled by its central claims, given my own very different take on the constitutional law of sexual orientation. (3) As I shall explain in the remainder of this essay, it seems to me that From Disgust to Humanity descriptively accounts for too little and normatively asks for too much. Although I am a lawyer and not a moral philosopher, I shall begin by questioning the more philosophical, less legal aspect of Nussbaum's normative claims before moving on to give an alternate account of developments in the law.

First let me ask, what is the minimum Nussbaum now demands of the opponents of homosexuality? From this overarching question a number of subsidiary questions arise. These include: If disgust has indeed, as Nussbaum acknowledges, "gone underground" in contemporary debates about gay rights, is this a bad thing? If disgust is out-of-bounds, is there, in Nussbaum's view, a more appropriate emotion for opponents of homosexuality to mobilize in aid of their opposition? Or is Nussbaum in effect demanding nothing short of complete capitulation from them?

Nussbaum has long been of the view that disgust is always an illegitimate emotion on which to ground law and policy. She first developed this view a decade ago in response to William Ian Miller and Dan Kahan. Miller, in The Anatomy of Disgust, while acknowledging that "the idiom of disgust" had its dangers, argues that it not only is well nigh indispensible, it also has "certain virtues for voicing moral assertions. It signals seriousness, commitment, indisputability, presentness and reality." (4) Kahan, embracing Miller's account, seeks to "redeem disgust in the eyes of those who value equality, solidarity, and other progressive values" and, thus redeemed, to mobilize it for use in the criminal law. (5) Nussbaum insisted in response that, as with envy and jealousy, "the specific cognitive content of disgust makes it always of dubious reliability in social life, but especially in the life of the law." (6) As Nussbaum sees it, taking her cue from Paul Rozin, (7) disgust is "anti-social"; (8) it involves a discomfort with and repudiation of our animal nature which is then "projected outwards onto vulnerable people and groups." (9)

Nussbaum does not, however, repudiate the use of all emotions in formulating law and policy. In earlier work, she suggested that anger or indignation compared favorably with disgust in this regard:

Indignation, by contrast [with disgust], centrally involves the idea of a wrong or a harm ... done, whether to the person angered or to someone or something to whom that person ascribes importance.... Because the notion of harm or damage lies at the core of anger's cognitive content, it is clear that it rests on reasoning that can be publicly articulated and publicly shaped. Damages and harms are a central part of what any public culture, and any system of law, must deal with; they are therefore a staple of public persuasion and public argument. (10) Although she acknowledged in Hiding from Humanity that "the reasons underlying a person's anger ... can be false or groundless," (11) she went on to valorize anger as a basis for legal sanctions in a variety of situations for which scholars such as Dan Kahan had in her view inappropriately foregrounded and endorsed the language of disgust. "To violations of the equality of a fellow citizen, the appropriate response is anger, not disgust," (12) she claimed, going on to make the same argument with respect to a variety of sex crimes, including necrophilia and the use of "religiously charged objects for sexual purposes" such as the "the sexual profanation of a religious sanctuary": (13)

What we feel when a religious sanctuary is violated is outrage: outrage because the protection of religion is a value to which we have deeply committed ourselves as a society. Similarly, what we feel when someone takes the corpse of our loved one and damages it is anger, because it is a particularly grave kind of harm, whether or not we also view it as similar to a rape. When the surviving spouse has sex with the corpse, we may feel pity, but we will also feel outrage that he was prepared to care so little about whether there was a living and consenting being there. In all of these cases, we may also feel disgust, but perfectly good reasons for whatever legal regulation we might wish to contemplate are contained in our response of outrage. (14) Outrage is indeed what many opponents of gay rights say they feel at many of the examples of homosexual activity Nussbaum's new book is concerned with, from public displays of affection by gay couples and gay pride events, to legal recognition of same-sex marriage and adoption of children by same-sex couples, from the presence of sex clubs in neighborhoods to the presence of gay teachers and gay-themed readings in public school classrooms. But the word "outrage" only appears in From Disgust to Humanity to describe the reaction Nussbaum, and by implication any fight thinking person, has to the words and actions of gay rights opponents such as Paul Cameron, (15) never once as a reaction she recommends to those opponents in preference to disgust. (16) Nussbaum seems to see gay rights opponents only as "outrageous," not as outraged.

Because I do not view ratcheting up the level of anger in the gay rights debate as conducive to either civil peace or moral progress, I must confess myself relieved that Nussbaum does not in the end recommend outrage as a substitute for disgust to gay rights opponents. I am troubled, however, that her reasons for failing to do so seem to amount to an unwillingness to recognize any scope whatsoever for legitimate opposition to what Scalia infamously dubbed "the so-called homosexual agenda, by which [he] mean[s] the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct." (17) To be clear, like Nussbaum, I have wholeheartedly signed on to this agenda. But I do not think much in the way of legal or social progress toward it will be achieved if we misunderstand or misrepresent the views of our opponents or if we ask too much of them. Later in this essay, I shall give a fuller account of why in my view attempting to reduce all opposition to gay rights to disgust is as a descriptive matter neither accurate nor helpful.

Before doing so, however, let me consider further the normative demands Nussbaum makes of gay rights opponents. According to Nussbaum, "Disgust has two opponents today, each increasingly powerful in social, political, and even legal life: respect, and sympathy." (18) By speaking in the context of the regulation of homosexuality only of the "opponents" of disgust, rather than of alternatives to it, as she did when discussing other regulatory regimes for which the language of disgust had been mobilized such as those governing animal cruelty and necrophilia, Nussbaum signals her unwillingness seriously to consider any alternative reasons to those sounding in disgust for laws or policies disfavoring homosexuality. She demands of gay rights opponents, not a transformation of rhetoric, but no less than "a transformation at the level of the human heart." (19) They should, in her view, cultivate what Adam Smith called "humanity" (defined by Nussbaum as "a capacity for generous and flexible engagement with the sufferings and hopes of other people") and what Cicero called "humanitas" (defined by Nussbaum as "a kind of responsiveness to others that prominently included the ability to imagine their experiences"). (20) For this politics of humanity "respect, as usually conceived, is not sufficient ... something else, something closer to love, must also be involved," Nussbaum insists. (21)

I fear I am not as sanguine as Nussbaum seems to be that the necessary result of imaginative engagement with the experiences of gay people will inevitably be embrace of what Scalia calls the homosexual agenda. Imagination is not what Paul Cameron, focused as he is on vivid images of sweaty, bloody, sticky, dangerous "fecal sex," (22) seems to lack. Nussbaum, who thinks Cameron views gays as inhuman "slimy slug[s]," (23) would respond that his all too vivid imagination lacks sympathy and responsiveness to others, but, whether or not this is true of Cameron, it is surely not true of all opponents of gay rights. (24) At least some of those who favor legal restrictions on homosexual conduct do so not because they fail to imagine that choices faced by gay people are "relevantly similar to their own," (25) but because they can imagine it all too well. Consider, for example, the reaction of one of my employers at the time, a partner at a large New York law firm and a married father, on the day Bowers v. Hardwick (26) came down. "This is a great decision," he insisted, "because we are all inherently bisexual and it saves us from ourselves." Nussbaum...