Why Has a Divided America Taken Gay Rights Seriously?
A philosopher credits the power of imagination.
New Hampshire state Rep. Nancy Elliott, at a recent state Judiciary Committee meeting on a proposal to repeal the state's same-sex marriage bill, described the issue of gay marriage as follows: "taking the penis of one man and putting it in the rectum of another man and wriggling it around in excrement." Rep. Elliott continued, irrelevantly, "and you have to think, I'm not sure, would I allow that to be done to me?" (Elliott has since apologized for the portion of her remarks in which she falsely claimed that because gay marriage had been legalized, New Hampshire's fifth-graders were being taught to have anal sex in the public schools.) Last month at the trial over California's ban on same-sex marriage, one witness who supported the measure testified that homosexuals are "12 times more likely to molest children." And recently, while addressing the proposed repeal of the military's "don't ask, don't tell" policy, Tony Perkins of the Family Research Council warned Larry King if gay soldiers could serve in the military, "we might have to return to the draft" because other soldiers would refuse to serve. Perkins noted that he had showered together with 80 other men during his own time in the military, and he'd feel threatened by a gay man showering there with him.
Welcome to Martha Nussbaum's politics of disgust: an America in which national policy can be discussed at the level of Beavis and Butthead, chasing each other around in circles with a stick that once touched poop.
In From Disgust to Humanity, Nussbaum, a prominent professor of law and philosophy at the University of Chicago, explains that much of the political rhetoric around denying equal rights to gay Americans is rooted in the language of disgust. Their activities are depicted as "vile and revolting," threatening to "contaminate and defile" the rest of us. Looked at starkly, she argues, much of the anti-gay argument is bound up in feces and saliva, germs, contagion and blood.
The philosophical question for Nussbaum is whether disgust of this sort is a "reliable guide to lawmaking." She cites Leon Kass, head of the President's Council on Bioethics in the George W. Bush administration, who has argued that it is; that visceral public disgust contains a "wisdom" that lies beneath rational argument. Then she proceeds to annihilate that argument by offering example after example of discarded disgust-based policies, from India's denigration of its "untouchables" to the Nazi view of Jews, to a legally sanctioned regime of separate swimming pools and water fountains in the Jim Crow South. Time and again, Nussbaum argues, societies have been able to move beyond their own politics of disgust to what she calls "the politics of humanity," once they have finally managed to see others as fully human, with human aspirations and desires.
Nussbaum is a clear, essential thinker and writer, and to anyone who cares about the debate over gay rights, she offers here an elegant—even dispassionate—defense. She systematically chips away at most of the policy arguments against gay rights in America until it's clear they are either wholly unsupported by the data or rooted in disgust, fear, or a misreading of religious and historical texts.
Perhaps the most radical aspect of Nussbaum's work, however, is her prescription for moving past the politics of disgust to the politics of humanity. This will be a familiar call to anyone who listened to President Obama last spring, as he described the qualities he seeks in a jurist. Nussbaum calls for "imagination" and "empathy," for respect and the willingness to listen to new narratives. In effect, this is a moral call to walk in the other guy's moccasins before we call him revolting. She observes that this "capacity for generous and flexible engagement with the sufferings and hopes of other people" was described by Adam Smith (of all people) back in the 18th century, even though it is derided as unmoored, mushy-headed, and even dangerous today. In Nussbaum's formulation, imagination and empathy are essential to overcoming the childish biases that allow us to use our legal machinery to turn others into subhumans.
Nussbaum is clearly right about the results of greater public empathy and imagination. Recent polling has shown, for instance, that 75 percent of Americans now support allowing openly gay Americans to serve in the military, a massive jump from the 44 percent who supported it in 1993. And one of the most reliable predictors support for gay military service is personal acquaintance with an openly gay person: Among poll respondents with a gay friend or family member, 81 percent are now in favor of allowing them to serve. In a country more polarized than ever on virtually every social issue, we have been curiously willing to take gay rights seriously.
Perhaps that's because, as Nussbaum suggests, we have been so willing to hear compelling personal narratives, ranging from the fictional Will of Will and Grace to the stories of politicians and athletes and friends. She especially credits the arts—such as Sean Penn's exuberant portrayal of Harvey Milk in Gus Van Sant's film Milk—with sentiment-shifting power. She also assigns a catalytic role to the courts. Nussbaum invokes the dawning public awareness of how black schoolchildren experienced "separate but equal" as an assault on their self-image in the Brown v. Board of Education decision. She cites the striking down of anti-miscegenation laws in Loving v. Virginia as another turning point, spurring a broader recognition that the pursuit of passion, fulfillment, and happiness belongs to all couples. It has often been the judiciary that has pushed Americans to imagine a reality, and a dream of equality, larger than their own experience.
Dahlia Lithwick writes about the courts and the law for Slate.