The visceral disgust that some people feel upon imagining the sexual practices of others is something that has always faintly confused me. First because — non-consensual sexual violence aside — I haven’t felt aversion to most sexual practices since I hit puberty. (I do remember, as a nine-year-old, declaring — after the concept had been explained to me — that I would never ever french kiss anyone because it sounded totally “gross.” My mother suggested circumspectly that I shelve the decision until it was relevant, and I have since reconsidered my position.) Second, I always deeply puzzled by the fact that a substantial portion of the voting public seems incapable of simply not imagining those sexual activities which disturb them. The idea of lesbians having oral sex doesn’t do it for you? Dudes having penetrative sex kill your libido? Great! Just … don’t think about it.
Yet this doesn’t seem possible for some folks, who insist that the mere possibility of someone doing a sexual act that they think is “gross” violates them personally — and somehow contaminates our shared civic culture and public spaces in some ineffable way. Because of this feeling of threat and contamination, they try — and often succeed, particularly here in the United States — in passing laws which circumscribe the sexual rights of certain segments of the population.
The subject of that reactive disgust for human corporeality (specifically queer sexuality) and its intersection with American jurisprudence (more specifically Constitutional law) is the subject of Martha C Nussbaum’s recent From Disgust to Humanity: Sexual Orientation and Constitutional Law (New York: Oxford, 2010). Nussbaum’s brief volume takes us on a whirlwind tour of the history of constitutional law as it relates to human sexuality, with a particular focus on the rights of gay and lesbian Americans — though the implications of her argument can be generalized out to consider the sexual practices of all citizens. Nussbaum’s goal is to sketch out the historic rationale for laws grounded in disgust and show that these arguments are extremely weak as a basis for denying certain groups fundamental and constitutionally-protected rights (such as the right to engage in consensual sexual activities with the partners of their choice, the right to marry, and the right to engage in commercial sexual activities). As a gratuitous aside … May I just say that I’m a nerd and I find reading books on law, written by lawyers, to be a truly satisfying exercise?Lawyers are often both eloquent and organized in their arguments, with a clarity of thought and succinctness of style (without the loss of narrative that comes with other forms of functional nonfiction writing). Reading well-composed legal arguments — whether in a judicial opinion, legal brief, or in a work like From Disgust – is like eating a perfectly-balanced meal and washing it down with a glass of fine wine. It almost makes me wish I had gone to law school as my government professor once suggested.
But back to the subject at hand. Nussbaum takes us on a legal tour that covers similar ground to that surveyed by Carlos Ball in From the Closet to the Courtroom which I reviewed here a few weeks ago. She looks at case law covering sodomy, same-sex marriage, discrimination, and public indecency. She contrasts a “politics of disgust” with a “politics of humanity,” a position that hold each individual in a sort of affectional or empathetic regard. A legal code that recognizes all human beings as (essentially) seekers requires an imaginative leap: it requires us to step out of our own perspective and recognize, and have sympathy for, other beings. Even those beings whose way of life we profoundly disagree with. She illustrates her concept with a narrative about the evolution of laws protecting religious liberty in the American colonies. Many early American colonies began with an established church, and freely discriminated against those who chose to practice some other form of faith. Over time, however, the settlers and their descendants realized it was possible — even preferable — to live together in mutual respect for one another’s humanity. Even if one’s fellow citizens followed a religious path that you believed would lead them to hell.
We should not delude ourselves into thinking, then, that the policies of religious respect and fairness that gradually came to dominate the colonies, shaping our Constitution, were inspired by respect for differing religious beliefs and practices. Rather, they were inspired by a more basic underlying idea of respect for persons, for our fellow citizens as bearers of human dignity and conscience. Even when we believe others are going astray, the faculty of conscience in them deserves respect from our laws and institutions. Because human beings are of equal worth, conscience is deserving of equal respect (38).
From this basis of understanding concerning the Constitutional right to equal protection for individual liberty, Nussbaum argues that we can — and must, Constitutionally-speaking — protect the right of people to do things (consensually and privately … and in some cases, publicly) which we find morally abhorrent and physically disgusting.
This probably sounds elementary to many of us. But, as Nussbaum goes on to show, the politics of disgust continue to influence the American legal and political landscape to a much greater extent than they do the politics and law of (for example) European countries — at least where human sexuality is concerned. Exactly why this is the case is something Nussbaum speculates about but doesn’t try to argue conclusively. Similarly, although she speculates about the root cause of disgust when it comes to homosexuality — particularly male homosexuality — this is not the main purpose of her argument. Her main purpose in exploring cause it to point out that disgust is a highly contingent and irrational emotion, despite the fact that those who feel disgust often believe that such feelings are reliable indicators of objective harm. She observes, for example, that disgust concerning homosexual acts is directed with particular animus toward gay men. “Prejudice against gay men … taps [into] profound anxieties about bodily penetrability and vulnerability (anxieties that are felt, above all, by men),” she writes (116). An observation I would have loved to see unpacked a bit more. Lesbians, she suggests, may face discrimination due to anxieties over their transgression of the gender binary and their “evasion” of patriarchal control. Again: an intriguing idea and one which I wish she had unpacked further — though I understand the need for brevity in a book of this length (just over 200 pages).
One thing I particularly appreciated about From Disgust to Humanity is Nussbaum’s willingness to discuss, however briefly, the legality of sexually-intimate relationships (and even marriages) that go beyond the two-consenting-adults model. All too often, proponents of same-sex marriage seek to distance themselves from associations with the legalization of other non-normative relationships. Yet Nussbaum points out that the legal arguments separating out two-person unions from other types of unions are “extremely weak.”
Who has the right [to marry]? At one extreme, it seems clear that, under existing law, the state that offers marriage is not required to allow it to polygamous unions. Whatever one things about the moral issues involved in polygamy, our constitutional tradition has upheld a law making polygamy criminal, so it is clear, at present, that polygamous unions do not have equal recognition. (The legal arguments against polygamy, however, are extremely weak. The primary state interest that is strong enough to justify legal restriction is an interest in the quality of the sexes, which would not tell against a regime of sex-equal polygamy.
Regulations on incestuous unions have also typically been thought to be reasonable exercises of state power, although, here again, the state interests have been defined very vaguely. The interest in preventing child abuse would justify a ban on most cases of parent-child incest, but it’s unclear that there is any strong state interest that should block adult brothers and sisters from marrying. (The health risk involved is not greater than in many cases where marriage is permitted.) (154-55)
I realize there are strategic reasons for the marriage equality folks to emphasize that gay and lesbian couples aren’t attempting to radically alter marriage in scary, unknown ways — the argument that anti-gay marriage folks routinely make. Yet every time I hear the “of course same-sex marriage won’t lead to polygamy!” argument I wince because of the poly relationships I know that just got kicked to the curb by queer folks who, you would think!, would be natural allies. And while I know incest seems, to the majority of people, a physically repulsive concept, Nussbaum is right in arguing that disgust alone is not a justifiable reason to outlaw a behavior that does not do demonstrable harm. And what health risks are present for the offspring of hetero sibling relationships are only there for couples intending to reproduce. Just sayin’.
So I applaud Nussbaum for not backing away from the full implications of her legal argument — a “politics of humanity” that calls us to think beyond our visceral reactions and prejudices towards an imaginative recognition of what brings other people joy.