From Disgust to Humanity: Sexual
Orientation and Constitutional Law
by Martha C. Nussbaum
Oxford University Press. 217 pages, $21.95
MARTHA NUSSBAUM, a professor of law and ethics at the University of Chicago, continues her argument that the human capacity for disgust has often been a factor in the making of laws or social norms designed to subordinate certain types of persons in society. (Her previous books on disgust and shame are 2001’s Upheavals of Thought: The Intelligence of Emotions and 2004’s Hiding From Humanity: Disgust, Shame, and the Law). In From Disgust to Humanity: Sexual Orientation & Constitutional Law, she argues that homosexuals in particular have borne the brunt of disgust used as a political weapon. In an interview on BookTV1, Nussbaum called this book her contribution from afar to the fight for same-sex marriage and against California’s Proposition 8 (recently found unconstitutional in district court in the case of Perry v. Schwarzenegger).
A prolific writer, many of Nussbaum’s books explore ethical questions and consider how social justice can be advanced in a democratic society. This book takes her exploration into the effects of disgust and shame on public policy and law, and considers how “the politics of disgust” is used to ostracize homosexuals and thwart the demand for marriage equality. She argues that those opposed to same-sex marriage render it disgusting by stressing or fabricating associations with bodily fluids, notably saliva, blood, feces, urine, and semen. It’s an emotional appeal that goes beyond the argument that same-sex relations are bad because they’re non-reproductive. (Nussbaum calmly points out that heterosexuals also engage in nonprocreative sex acts, and that many straight marriages do not produce offspring.)
Nussbaum pits John Stuart Mill’s concept of liberty for consenting adults against Lord Devlin’s defense of disgust as a basis for setting social norms in The Enforcement of Morals (1959), which argued that the collective disgust of a sufficient majority could trump individual liberty. Such an imposition of public sentiment over personal choice—as seen in laws against bathhouses and sodomy, or Proposition 8—Mill found anathema to individual liberty.
Nussbaum also looks at how demagogues and dictators have relied upon the politics of disgust historically. Disgust translated into laws against Jews in Nazi Germany and justified Apartheid in South Africa and Jim Crow laws in the U.S. She concludes, as did the Supreme Court in Romer v. Evans, that disgust is highly problematical as a basis for making laws. She does entertain the argument that repugnance can protect people in some cases, but summarily dismisses this argument.
Nussbaum traces not only the jurisprudence that shaped the right to privacy but also the role of religion and conscience in developing ideas of dignity and equality. She reviews the right to marry as well as the politics of disgust used to uphold the first sodomy case heard by the Supreme Court, Bowers v. Hardwick, along with other cases that involved the state’s intrusion into the sexual bedroom via pornography, sex toys, and so on. One could fault Nussbaum a little for not calling down the mostly male policy makers for their preoccupation with gay male sex, which they caricature in unrealistically disgusting ways. (In contrast, lesbian sex is ignored or given a pass.)
The politics of disgust emerged in the recent challenge to California’s Prop 8 in Perry v. Schwarzenegger, which Judge Vaughn Walker dismissed in language that seemed to echo Nussbaum’s critique: “Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes.”
So, how do we achieve humanity, the second part of Nussbaum’s title? She asserts that since society has relied on imagined disgust to discriminate against gay people, imagination should be used to recover their humanity. The use of popular culture images—in movies such as Milk—can allow society to re-imagine a humane understanding of gays and lesbians. I was surprised that Nussbaum, a professor of law, largely disregarded the power of political movements to move us toward a more just society through changes in the law, notwithstanding people’s lingering feelings of discomfort.
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JoAnne Myers teaches political science and women’s studies at Marist College, Poughkeepsie NY.
