Nussbaum works her way through the relevant case law, from Bowers v. Hardwick (finding no right to gay sodomy in the U.S. Constitution) to Romer v. Evans (striking down Colorado's Amendment 2, which disqualified gays and lesbians from the benefits of anti-discrimination laws), frequently analogizing the struggle for gay rights to the struggle for religious equality in America. In both instances, Americans had to learn to tolerate people with beliefs they found abhorrent, even disgusting, because they understood, as she puts it, that "even when we believe others are going astray, the faculty of conscience in them deserves respect from our laws and institutions."
Ultimately, the most intriguing aspect of Nussbaum's call for greater imagination is that, as she shows (and as Homer Simpson famously said of alcohol), imagination is in fact both the cause of and the solution to so many of our problems. Nussbaum details the ways in which our overactive imaginations are often the source of our biases. As she traces the genesis of the fear and disgust American feel toward homosexuals, she describes what she calls "projective disgust"—the magical thinking that allows us to believe that things that disgust us (i.e., male homosexuality) are contagious and that heterosexual sex is somehow better and less messy than it really is. So the reason male (as opposed to female) homosexual sex is ultimately experienced as so revolting and so terrifying, Nussbaum contends, is that it is viscerally threatening; it raises the possibility of being penetrated and violated. The very "gaze of a homosexual male is seen as contaminating because it says 'you can be penetrated.' "
What Nussbaum is really saying here is that Perkins experiences discomfort at the prospect of showering with 79 straight men and one gay one because in his imagination, "the very look of a gay man can be contaminating." In his imagination there has been an assault, even though nobody really wants to assault Tony Perkins in the shower. Elliott, too, lost in her fantasy of being personally assaulted by excrement, cannot help but experience gay marriage as a physical assault of herself. This isn't rational. It's fantasy and magical thinking, and that's what makes it so initially counterintuitive to claim that this type of irrational logic—the abundance of wild imagination that leads us to conclude that every gay man wants to invade our homes and assault our kids—can be conquered only by yet more imagination.
What Nussbaum really means, I think, is that we must replace one set of fantasies—about homosexuals as aggressive outsiders who seek to defile us—with the reality that they are just like us, people with aspirations and dreams and desires. In a sense she is using the word imagination in the first instance to describe a solipsistic experience: the subjective fear that the misunderstood "other" is coming to defile you. At the cure stage, however, imagination stops being a solo sport and becomes a way to reach beyond your own experience. Instead of dwelling on the other as other, you find some point at which his dreams and yours look similar. It's a profound idea: that we might use empathy and imagination to see people as they really are.
Nussbaum doesn't fully unpack the difference between the pernicious imaginings of the bigot and the imagination that opens our eyes to the experience of the outsider. She deftly shows how judicial empathy and imagination are critical to broadening American civil liberties beyond a single jurist's life experience, but doesn't quite answer the question that nearly derailed Sonia Sotomayor's confirmation last summer: Does judicial empathy itself risk being invoked to back up bias, and can it be constrained? Nussbaum cannot be arguing that every episode of judicial empathy brings us more liberty. After all, when Justice Anthony Kennedy imagined himself right into the shoes of a mother who regretted her abortion in the 2007 "partial birth abortion" case, Gonzales v. Carhart,the result was a Supreme Court decision that made American women less free, not more so.
Nussbaum's cure raises questions, but they should not obscure her basic diagnosis of the problem, which rings perfectly true. Centuries of experience have taught us that making law and policy from a place of imagined contagion and childish disgust has never brought us closer to justice.
TODAY IN SLATE
Blacks Don’t Have a Corporal Punishment Problem
Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology.
I Bought the Huge iPhone. I’m Already Thinking of Returning It.
Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.
Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough
So they added a little self-immolation.
Two Damn Good, Very Different Movies About Soldiers Returning From War
The Most Terrifying Thing About Ebola
The disease threatens humanity by preying on humanity.