'From Disgust to Humanity'

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From Disgust to Humanity

Sexual Orientation and Constitutional Law

By Martha C. Nussbaum

(Oxford University Press; 217 pages; $21.95)

Pity the enemies of gay equality who find themselves at intellectual odds with America's most prominent, and most prolific, philosopher of public life, Martha C. Nussbaum. In "From Disgust to Humanity: Sexual Orientation and Constitutional Law," Nussbaum presents a cogent and politically charged case against the unconstitutional legal arguments that have inhibited the privacy, marriage and full civil rights of gays and lesbians in the United States.

Nussbaum, a professor of law and ethics at University of Chicago, begins where her recent book "Hiding From Humanity" left off, with a deep examination of the politics of disgust. This collective failure of imagination, according to Nussbaum, leads people to distance themselves from the gay community with an aversion "akin to that inspired by bodily wastes, slimy insects, and spoiled food."

Where anti-gay activists Leon Kass, former head of President George W. Bush's President's Council on Bioethics, and Paul Cameron, the founder and head of the Family Research Institute, have seized upon this response and employed it unethically to sway both legislative rulings and public opinion against gay rights, Nussbaum takes issue.

The author parses disgust into two distinct types. The first involves a reaction to any offense that might, in fact, harm others. With the allusive precision that makes her a bracing, forceful rhetorician, Nussbaum revisits John Stuart Mill's notion that harm to others ought to be the defining requirement for any legal intervention. To this end, she is quick to indicate that a number of nuisance laws are already on the books that address just these sorts of disgust-based scenarios. All other notions of disgust, however, are characterized by Nussbaum as "projective," or conceptual in nature, such as the distaste a homophobic person might experience at the thought of two men kissing. This is a reaction to an offense of the mind or spirit, neither literal nor physical, but imaginary.

This differentiation between these types of disgust comes to life in Nussbaum's detailed account of Colorado's Amendment 2, a ballot measure introduced by Will Perkins of Colorado for Family Values. Decrying "militant gay aggression" and the homosexual community's "radically deviant obsession with sex," authors of the amendment advocated the repeal of any Colorado laws prohibiting discrimination based on sexual orientation. An injunction was soon filed by aggrieved citizens that brought the case, Romer v. Evans, to the U.S. Supreme Court. Justice Anthony Kennedy wrote the majority opinion in the case, objecting that the amendment seemed "inexplicable by anything but animus toward the class that it affects."

In addition to being crafted with illegitimate intent, argues Nussbaum, the amendment resembled a startling array of abuses of this same disgust convention throughout U.S. history - against African Americans, Jews, foreigners and immigrants, members of lower classes, the disabled, those with physical deformities and people in interracial marriages - all without legal criterion. As such, Nussbaum suggests, disgust is the new watchword for the continued effort of one group to subordinate another through irrational stigmatization, a practice Nussbaum contends should be recognized as an unsound basis for limiting liberties.

Though not quite as original, Nussbaum's equally invigorating case for same-sex marriage begins with a thoroughgoing examination of what marriage is, what it signifies, even whether states have any place being in the marriage business. The author presents several familiar arguments challenging the conservative notion that opposite-sex marriage is somehow defended through the prohibition of same-sex marriage. She points out that lunatics of all stripes can get married, that ministers are routinely ordained through the Internet and that in Connecticut and Massachusetts, two states that have legalized same-sex marriage, divorce rates are among the lowest in the country and have remained so since the legalization of said marriages.

Nussbaum powerfully contends that "sex is central to the pursuit of happiness," a private right entitled to each citizen so long as she does no harm to others. She proposes that should critics of same-sex marriage truly intend to restore the sanctity and security of marriage, "several policies suggest themselves": improved drug and alcohol counseling, tougher domestic-violence laws and more consistent enforcement of them, family and medical leave and so on.

Bookending this and so many other persuasive arguments are epigraphs from Walt Whitman, along with Nussbaum's playful notation of the poet's particular contempt for the law. Whitman believed it was no account at all "to hold men together by paper and seal or by compulsion," but one imagines the poet might "give the sign of democracy" if he knew that this bard, the philosopher for liberty whose close research advances her cause considerably, walked before us.

Elizabeth Kennedy is a freelance writer in Oakland. E-mail her at books@sfchronicle.com.

This article appeared on page FE - 7 of the San Francisco Chronicle


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