Back Talk: Martha C. Nussbaum
Philosopher Martha C. Nussbaum teaches law and ethics at the University of Chicago and is the author of more than twenty books. Her latest, From Disgust to Humanity: Sexual Orientation and Constitutional Law (Oxford; $21.95), expands the thinking on the "politics of disgust" that she explored in Hiding from Humanity. She argues that opposition to gay equality is rooted not in legally defensible reason but in an anxiety of contamination and a fear of the body's animal nature. She advocates instead a "politics of humanity," based on the capacity to imagine others as being persons like ourselves, pursuing ends not unlike our own, and worthy of equal respect and treatment under the law. --Christine Smallwood
What is the politics of disgust?
It's an aversion to being sullied by something one views as degrading or foreign. The things that inspire that idea are typically reminders of our animality and bodily nature, particularly mortality and the weak decaying aspects of our bodily nature. In Hiding from Humanity I used the idea to criticize first of all theories, like the theory of Lord Devlin, that say that disgust is a reliable way of thinking about what should be legally regulable. Disgust tends to extend itself to groups of people to whom the person then imputes disgusting properties--these people are smelly, they have germs, they'll contaminate me. You can see the role of disgust in racism, anti-Semitism, the subordination of women, etc. All these groups have been characterized as hyper-animal, hyper-bodily, therefore disgusting. It's unusually unreliable as emotions go, because it embodies a shrinking from some aspect of our nature.
The politics of humanity is a politics that says, We're going to think of these people as our fellow citizens and equals and try to imagine them as people with projects they're pursuing that are similar to ourselves. Respect is, of course, crucial to maintaining the equality of people in society, but respect doesn't sustain itself. You need this quality of imagination to give it life, to stabilize it.
Why can we trust ourselves to imaginatively identify with others but not to imaginatively oppose them?
I don't think any emotion should be trusted on its own without being constantly in dialogue with moral principles. At every point, whether it's anger or fear or any emotion--even compassion, which can, of course, lead you to favor your family against other people--you should always be asking, Is this consistent with the idea of a society of people who are free and equal? Disgust, though, is different because it has this singular type of irrationality. It's not noncognitive; it has an idea. But the idea repudiates some aspect of ourselves. It embodies a kind of self-loathing. In the case of compassion, compassion can be uneven; it can target people in a partial way. Or anger can be wrong about the facts. But disgust always has this edgy irrationality about it. It's a way of fleeing from yourself. Whether it's useful in evolutionary terms, that I leave to evolutionary scientists. Probably it is. That doesn't mean that in the law we should rely on it. The imagination of humanity, of course, can be unreliable too. But all we're really asking is that people see the other people as people. And I think that's actually not so unreliable. What we see is that when people know that their children or their children's friends or some relative is gay or lesbian, they immediately change. Then they can't see them as slimy slugs. They're just people. They may not like those people, but they still see them as people.
Can you walk me through your defense of the legal right to gay marriage?
I look at the various arguments that have been made against same-sex marriage. And always in the back of the picture is the analogy to miscegenation. In both cases the arguments look like public arguments, but they're driven by a deeper loathing. Some of them look perfectly OK within a given religion, but that doesn't lead to making something illegal for everyone. They're like Jewish arguments against the eating of pork. Then there's another class of arguments that look public, but they always have a flaw, like the argument that marriage is about procreation. That's not something we've ever believed in our history or, in our case, law. People who are above the age to conceive, who are sterile, who never see each other, like prison inmates serving life terms, people on their death bed--they've all been held to have a constitutional right to marry. Then I look at the argument that children do best when raised with one mother and one father; and if that were true, that would provide a public reason for fostering that institution, although it's not clear it would provide a reason for opposing others. But psychological research shows that when you define child welfare in a nonreligious way, children do just as well. Then there's finally the argument that legalizing same-sex marriage will degrade or defile straight marriage. What's that about? It looks something like the claim that admitting all these baseball players who use steroids to the Hall of Fame would degrade the achievements of the genuine competitors. It taints the achievement. But what can that be about? We don't think that heterosexuals who are flaky, silly or awful, Britney Spears marrying on a whim and then divorcing almost immediately, we don't think that that taints the institution of heterosexual marriage. By the same token, people do think that the marriage of two gay people of good character does taint the institution. We can't understand what's being said without going back to some kind of magical idea about stigma or taint.
You suggest that perhaps the state should get out of the marrying business altogether.
I guess the first thing to say is that they can't do it in a way that just simply takes away the possibility of marriage from gays and lesbians. During integration in the South there were attempts to get around mandatory integration by ending the program in question. They closed down the public swimming pools or the public schools rather than integrate them. That kind of thing has been held to be unconstitutional, and quite rightly so. But I guess I think that marriage as it currently exists is a weird institution. There are a bunch of civil benefits that could be captured in civil unions. There are religious elements, but they're not really part of state marriage. Then there's the expressive significance--we want the state to dignify or affirm our marriage. Should the state be in the business of dignifying certain unions? The answer would be no. If we were starting over again, we'd want to go back and look at the privileges associated with marriage--tax benefits, immigration status, etc.-- and ask, Who do we want to give those benefits to? What do we want to do? That kind of thorough rethinking would be ideal, but it's also not likely to actually happen. How do we get from where we are to there? In the short run, I think the best thing is just to push on the equality issue and say, So long as marriage is offered by the state, it should be offered with an even hand.
You build a lot of your thinking on John Stuart Mill.
Mill is one of my favorite philosophers. He's so complicated and sees many sides of most issues. But also he's a genuine ally of women's equality, and that's so rare in the history of philosophy. In this area, what Mill wants to do is to say that there are two types of behavior: what he calls self-regarding, involving only yourself and other consenting parties; and behavior that's other-regarding, involving the rights and interests of other nonconsenting parties. That's the fundamental distinction. Not this place or that place, solitude or public space. His further claim is that behavior that's self-regarding should be off limits to legal regulation. The key notion in making something legally regulable is the notion of a potential harm. If there's no harm in the offing except a self-chosen one, for Mill that's just no business of the law.
The United States has never fully accepted Mill's idea. It has been accepted by certain state constitutions, like states that wanted to decriminalize the consumption of alcohol by private parties. In certain alcohol-producing states it was a crime to have alcohol in your possession, so they rewrote the state constitution and put in Mill's harm principle. Much later, part of the Pennsylvania and Kentucky constitutions were used to decriminalize sodomy. So it was very closely connected. Mill reigns in Pennsylvania and Kentucky, and is kind of on the borderline in New York. But most of the US Constitution has never been interpreted in a Millian spirit. Justice Scalia is right that we've never agreed to the idea that something that's consensual is fine so long as it does no harm to others. We've allowed public moral laws to prevail. I just think that's wrong and that we're gradually beginning to realize that's wrong. Mill, I hope, will come more and more to underlie the values of a decent society.