The longer draft follows. (I'm interested in developing some of the ideas in it, especially about insults, which don't seem to be well understood. But, of course, there could be a whole literature I'm not familiar with.)
This is a lucid and powerful argument in defense of humane laws regarding gay and lesbian people, especially with reference to marriage. 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, focusing on respect for differences in religion, race, gender, and ability. 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. In the former of these chapters Nussbaum provides a careful analysis of the value of marriage generally. In the latter she is equally skillful and clear on the many different things that people have in mind when they contrast the private with the public. Throughout, Nussbaum’s argument is respectful toward her opponents but always ultimately in sympathy with the rights of gay and lesbian people. She favors equality of legal rights and freedom from the tyranny of the majority.
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. These have to do with the so-called politics of disgust. 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. 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?
That there is bigotry is undeniable. Its psychological roots are less obvious, and possibly less important for us to unearth. This is just as well, since Nussbaum is not always credible on the psychology of disgust. On p. 18, for example, she claims that “the idea of semen and feces mixing together inside the body of a male is one of the most disgusting ideas imaginable—to males, for whom the idea of nonpenetrability is a sacred boundary against stickiness, ooze, and death.” If this is true then one wonders why many gay males do not feel this way and why the same mixing inside the body of a female appears to be rather popular among heterosexual males.
It seems a little unfair to Kass and Devlin to treat them as defenders of mere prejudice. Devlin, to whom Nussbaum returns throughout the book, believes that a society is held together by moral bonds and that anything that seriously threatens these bonds is a legitimate target for defensive legal action. He also argued that prostitution and gay sex were subversively immoral in just this kind of way in the United Kingdom in the 1950s. In other words, Devlin makes three separable claims: societies are united by moral values; a society’s core moral values are sufficiently important to it that it is legitimate to use the criminal law to uphold and defend them; gay anal sex (“buggery”) is one thing that violates core 1950s British values. This last claim is probably false, but it is also irrelevant to Nussbaum, who is concerned after all with the 21st century USA. The second of Devlin’s ideas is largely ignored by Nussbaum, although it is possible that she might accept it. She thinks it relevant, at any rate, that gay marriages do not increase rates of heterosexual divorce. If they did, this might be evidence of the kind of social dissolution that Devlin feared (although, against Devlin, he never makes it very clear what it is that he has in mind). And Nussbaum is ambiguous as to how this might affect her view of allowing gay and lesbian couples to marry. Moreover, she apparently agrees with Devlin on the first point. She never makes this explicit, but the rhetoric of her book implies it again and again. References to “our values” and “American values” come up multiple times. Nussbaum is clearly trying to appeal to the reader’s sense that the United States is a) our country and b) a place founded on principles of liberty and equality. Perhaps this is just a rhetorical strategy, perhaps it is the result of wanting to make legal appeals to precedent, but she presents herself as sympathetic to the idea that we, our society, ought not to compromise its/our core, shared values, and that this is major reason why we ought to respect the rights of gay and lesbian people and allow them, for instance, to marry. There is something conservative about this, both philosophically and rhetorically, which makes it odd that it comes hand in hand with explicit attacks on conservative ideologists such as Devlin, who think much the same way but have different ideas about which values it is that hold our society together.
Nussbaum contrasts Devlin’s “politics of disgust” with 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. In such a case making oneself incapable of helping others (by taking drugs rather than fighting against the Nazis) might even be regarded as harming them. Limiting drug or alcohol use might be legitimate, Devlin thinks. 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. Devlin’s grasp of reality is questionable, but his underlying principles are not nearly as worthless as Nussbaum makes out.
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, religion, ability, gender, 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.
Nussbaum addresses the following objections to same-sex marriage: 1) it is immoral because unnatural; 2) it should not be state-sanctified because no children will be produced and raised in it; 3) sanctioning it forces everyone to approve of it, possibly against their consciences; 4) it undermines traditional marriages; 5) it demeans traditional marriage. None of these is quite the idea that allowing same-sex unions insults other-sex unions. 4 might sound like it, but Nussbaum treats it as the claim that same-sex unions will lead other-sex couples to divorce. 5 comes closest, but Nussbaum’s response to 5, which she treats as part of 4, is that it is like saying that athletes who use steroids to enhance their performance do not belong in the Hall of Fame. The analogy does not apply though, she says, since gay and lesbian people are not cheats or B-grade versions of heterosexual people: “They want to get married for reasons very similar to those of heterosexuals” (p. 147). Since their motives are the same as heterosexual people’s, and their characters are no worse, we can only make sense of the idea that allowing same-sex marriage will “sully traditional marriage,” she says, if we move “to the terrain of disgust and contamination” (p. 148). That is, anyone who thinks that state-sanctioned same-sex marriage is an insult to traditional marriage must in fact find gay and lesbian sex-acts viscerally disgusting.
Perhaps that visceral reaction does explain opposition to same-sex marriage, but must it? 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 unflattering long-range psychoanalysis seems a bit much. Until we understand the logic and ethics of insults we might do better to take such people at their word.
Kass is also more interesting than Nussbaum allows. His argument in favor of believing that there is sometimes wisdom in repugnance is not a defense of all prejudice. He is well aware of bigotry and its evil. Rather, his central claim is that we cannot always justify rationally our deepest and most important moral values and judgments. Why, for instance, should we not throw dead bodies out with the trash? Why should we believe that there are such things as natural human rights? Not unreasonably, Kass holds that we cannot fully support such beliefs with rational argument and must rely, at least in part, on some other kind of sense or perception that it is wrong to behave in certain ways. Unfortunately, and this is always a danger with non-rational feelings, one can mistake mere prejudice for the wisdom of repugnance. Devlin appears to have done so, and Kass might well have at times too. This does not mean that ethics is independent of (non-rational) feelings, intuitions, mystical insights, or whatever we choose to call them. And this makes it difficult to argue purely rationally yet completely successfully against those who feel that same-sex marriage should not be allowed. This is, presumably, one reason why Nussbaum uses the patriotic, conservative rhetoric that colors her book, and why she prefaces the book with a quotation from Walt Whitman about the leadership role of “the bard” in fostering the feelings of liberty and equality. She is offering not only legal and conceptual analysis but is also encouraging us to engage imaginatively and sympathetically with people of all sexual orientations.
Does Nussbaum fail after all then? No. 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 probably not very deep either. It seems to be evaporating from our society too quickly for it to run very deep. Even if it is deep in some cases, 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.