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.
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.
Dahlia Lithwick writes about the courts and the law for Slate.