From Disgust to Humanity: Sexual Orientation and Constitutional Law

by Martha C. Nussbaum

A distinguished professor of law and philosophy at the University of Chicago, a prolific writer and award-winning thinker, Martha Nussbaum stands as one of our foremost authorities on law, justice, freedom, morality, and emotion. In From Disgust to Humanity , Nussbaum aims her considerable intellectual firepower at the bulwark of opposition to gay the politics of disgust.

Nussbaum argues that disgust has long been among the fundamental motivations of those who are fighting for legal discrimination against lesbian and gay citizens. When confronted with same-sex acts and relationships, she writes, they experience "a deep aversion akin to that inspired by bodily wastes, slimy insects, and spoiled food--and then cite that very reaction to justify a range of legal restrictions, from sodomy laws to bans on same-sex marriage." Leon Kass, former head of President Bush's President's Council on Bioethics, even argues that this repugnance has an inherent "wisdom," steering us away from destructive choices. Nussbaum believes that the politics of disgust must be confronted directly, for it contradicts the basic principle of the equality of all citizens under the law. "It says that the mere fact that you happen to make me want to vomit is reason enough for me to treat you as a social pariah, denying you some of your most basic entitlements as a citizen." In its place
she offers a "politics of humanity," based not merely on respect, but something akin to love, an uplifting imaginative engagement with others, an active effort to see the world from their perspectives, as fellow human beings. Combining rigorous analysis of the leading constitutional cases with philosophical reflection about underlying concepts of privacy, respect, discrimination, and liberty, Nussbaum discusses issues ranging from non-discrimination and same-sex marriage to "public sex." Recent landmark decisions suggest that the views of state and federal courts are shifting toward a humanity-centered vision, and Nussbaum's powerful arguments will undoubtedly advance that cause.

Incisive, rigorous, and deeply humane, From Disgust to Humanity is a stunning contribution to Oxford's distinguished Inalienable Rights series.

Genres: Philosophy, Law, Nonfiction, Politics, LGBT, Feminism, Queer

209 pages, Hardcover

First published February 1, 2010

About the author

Martha C. Nussbaum is Ernst Freund Distinguished Service Professor at the University of Chicago, appointed in the Law School and the Philosophy Department. Among her many awards are the 2018 Berggruen Prize, the 2017 Don M. Randel Award for Humanistic Studies from the American Academy of Arts and Sciences, and the 2016 Kyoto Prize in Arts and Philosophy.

Reviews

[DoctorM · Rating 4 out of 5]

A concise and clear essay about the issues underlying efforts to stigmatise gay people and deny same-sex marriage. Nussbaum derives her arguments from her longer "Hiding From Humanity"--- the argument that popular emotions of "disgust" are used to tag others as unclean, contaminating, and subject to legal disabilities even where the others' acts and attributes do no concrete harm. Nussbaum lays out the pre-rational roots of so much anti-gay feeling (fear and loathing of bodily substances--- blood, semen, faecal matter and a consequent view of gay male sex as inherently contaminating and disgusting) ad applies John Stuart Mill's analysis of whether the state should be able to regulate or prohibit acts that involve only consenting parties. A good analysis of recent privacy law, as well as of key decisions (Romer, Lawrence) that have advanced the cause of gay equality.

While the analysis of the psychology of disgust could've been longer, and while Nussbaum does lose some focus at the end, her argument that "disgust" as such, without concrete harm to the non-consenting, is no viable basis for law, is well-taken.

[Neil · Rating 4 out of 5]

Excellent discussion of the need for rational underpinnings of laws that dictate public OR private morality. A little too polite on the question of religious motivation for disgust-based anti-sex laws, but considering she's arguing for a modern secular reading of the Constitution (which is the only one that makes sense in 2012), she more than proves her point. Read this if you want to have solid, well-informed arguments for why prohibiting any-gendered marriage is unconstitutional.

[jordan · Rating 5 out of 5]

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Into the vitriolic debate about homosexuality and society, esteemed philosopher Martha Nussbaum's "From Disgust to Humanity: Sexual Orientation and Constitutional Law" arrives like a breath of well reasoned air. Combining rigorous logic, thorough research, and humanity, Nussbaum examines our legal tradition to explain how the insidious notion of "disgust" is offered as a basis to deny rights to the "unworthy." Few will read her history of invectives used to demonize "the other," whether black, Jewish, or immigrant by association with disease, bodily fluids, odor, germs, and excrement, without feeling a chill. Examining the legal status of homosexuality, she contrasts the views of two British thinkers. Philosopher John Stuart Mills, "abhor[ed:] the tyranny of public sentiment over personal choice," and thought government had no place in regulating the activities of equal, competent, consenting adults. In opposition to Mills, she offers Lord Patrick Devlin, a British judge and Neo-Burkian, who opposed ending the legal sanction against homosexuality arguing that the state can and should use force to encourage social solidarity and enforce a common morality. Devlin saw sodomy laws as just and necessary, setting bounds on what is acceptable; according to Nussbaum, Mills would have seen them as nothing less than an assault on liberty. And though at times casting Devlin against Mills can feel like an intellectual middleweight taking a beating from Mohammed Ali, one's sympathy quickly passes. //From Disgust to Humanity// explores the jurisprudential history of our "right to privacy," explaining cogently how the justices grounded it in the Constitution. In matters of privacy in general and homosexuality in particular, she demonstrates how jurists are divide followers of Mills and Devlin. In the case of the latter, arguments always track back to disgust, homosexual being "others" and "deviants," engaging in behavior that exists only in deranged fantasy. Thinkers such as Justice Scalia and Leon Klass, Chair of the Bioethics Council under President Bush, both of a Devlinian bend thinking disgust as a basis for sound ethics, receive an intellectual drubbing. Nussbaum continually beats them with a simple question: given their views of homosexuality, how can they claim they wouldn't have felt the same way in 1967, when the Supreme Court in Loving v. Virginia invalidated miscegenation laws, at a time when an overwhelming number of Americans thought interracial marriage wrong and unnatural? Against various arguments as to why homosexuals should not enjoy their fellow citizens' rights to marriage and intimacy, Nussbaum brings an irresistible vanquishing logic, wielding Equality and Liberty as her foil. In places she demonstrates a sharp sense of humor, as when she muses about why legislators (doubtless mostly men) seem so often preoccupied with gay male sex, but are inclined to give lesbianism a pass. Yet more thrilling than Nussbaum's rhetorical skills and the soundness of her argument, is how she weds both to an appeal to our basic and essential humanity, to reject the hyperbolic language of hate and oppression in favor of recognizing the essential rights with which we are all endowed.

[Vincent Li · Rating 4 out of 5]

An excellent volume, well reasoned arguments. In short Nussbaum argues that "disgust" in the average person is not enough to legislate on. She argues that we should move from disgust to humanity which is a respect for people to choose their own means of living and a deep sympathy in imagination of what others experience. Don't let the readability and shortness of the book deceive you, it's packed with broadness in subject and depth in treatment. Nussbaum discusses the psychological roots of disgust (an evolutionary aversion to possible carriers of disease but also a psychological aversion of being reminded of our animal nature), and tells us of the difference between primary disgust and projective disgust. She shows how the latter has been used historically to justify subordinating unpopular minorities. Her solutions tend to parallel Mill, to only legislate behavior that affects others and directly legislate those behaviors. She discusses the requirements for nuisance laws (causation, imposition, primary exposure) as a method for identifying behavior that affects others. Nussbaum summarizes the major cases in the area, and lays out the arguments both legal and historical. I found interesting her analogy to the colonial conception of "conscience" which developed out of religious freedom. Conscience was the idea that people be free to choose their beliefs even if (at the time) one really believed that such beliefs would damn that person to hell. In her detailed discussion of case law she makes some interesting observations. Nussbaum argues that there is some confusion over the meaning of "private" vs "public" (private as in private behavior, or related to the home, or non-commerical...etc) in the cases, which creates all types of issues. She also argues that heightened scrutiny does not actually require the three commonly seen requirements (political powerlessness, immutability, history of discrimination) to be met, that those are only common indicators of the existence of a categorization scheme and the irrelevance of these categories. It's also interesting to note that in many ways this book is outdated. She calls for the repeal of DOMA, so the book is pre-Windsor. It's interesting to note how quickly the legal landscape (in a post Hodges world) has changed. Hard to say I agree with everything that she has to say, but it's a good guide for someone looking for well reasoned legalistic argument over the slogan throwing that's commonly seen.

[Paige McLoughlin · Rating 5 out of 5]

Disgust is an emotion like other emotions probably a psychological mechanism to be repulsed by rotting food or a corpse as a defense mechanism against pathogens. In the highly developed thought of humans, these physiological responses are recruited for more abstract thought and concepts. And Humans besides language and math love to abstract about religion and politics. This is where the disgust response gets tricky when employed around religion and politics. Sometimes it is justified ethical feeling sometimes it fuels superstitious bigotry against different outgroups based on ethnic markers, religious practices, sexual practices, or differences in other areas. This makes for a lot of strife and torment and chaos as can easily be demonstrated in the news or talking head content. Nussbaum wrote this book to contend with this human response which often has a hard time finding compatible expression with the pluralistic societies of modernity. Recommended.

[Adam Lowy · Rating 5 out of 5]

A brief , dense work of extreme importance in these dark days of othering and hypocrisy. Nussbaum, an essential legal philosopher, argues that disgust, often used as justification to limit freedoms and rights for sexual minorities, is a culturally influenced, inconsistent and untrustworthy sensor. Her explication of various Court decisions and her demonstrations of the misuse of disgust to mask bigotry is powerful and relevant to so much of our daily lives in these times. Empathy, true empathy, towards others in authentic moments of self-expression, their sexual behavior , surely must be a goal to strive for. This striving leaves disgust as a relic of past prejudices.

This book needs to be read!

[新新 Xin-Xin · Rating 3 out of 5]

裡面關於噁心感的政治與公民投票法的討論或許可以借鏡？

[Davide · Rating 1 out of 5]

La banalità di un libro.

[Ms. Online]

DISGUST, PROPAGANDA, AND SAME-SEX MARRIAGE
Reviewed by: Maya Schenwar

In her groundbreaking new book, From Disgust to Humanity: Sexual Orientation and Constitutional Law, political philosopher Martha Nussbaum distills the true scariness of “disgust” propaganda.

Nussbaum gives the example of the 1993 treatise “Medical Consequences of What Homosexuals Do,” by Paul Cameron, firebrand founder of the anti-gay Family Research Institute, in which he revealed the “horror story” of “fecal sex.” He claimed that “80 percent of gays” ingest “medically significant amounts of feces” on a regular basis, and also tend to “eat or wallow in it.”

Cameron and his allies–in other anti-gay groups and in legislatures across the country–can’t get enough of such descriptions, associating gay sex acts with feces, urine, blood, vomit, and other indelicacies that make for unpopular dinner-party discussion. The lurid imaginings of these folks may seem a marginal oddity, just a small, eccentric fish paddling in the sea of propaganda that washes over Americans on a daily basis. But this fish has some mean fangs. In the early 1990s, Cameron directed the effort to pass Colorado’s Amendment 2, a sweeping initiative banning anti-discrimination protections for gays and lesbians. He spoke of gay people drinking blood, ingesting urine and traveling to the U.S. from all parts of the world to “participate in this biological swapmeet.” The measure passed.

Disgust is a dangerous weapon. According to Nussbaum, we must understand its workings if we hope to comprehend how prejudice and discrimination have been hard-wired into this country’s legal system. The book examines the insidious use of disgust to achieve political goals and outlines a framework for rooting out disgust and growing a “politics of humanity” that grants liberty, justice and respect to all. Her book makes the most hard-and-fast case for the legalization of same-sex marriage I’ve heard yet–doubters will have a hard time conjuring up a comeback for this one.

Although the use of disgust-laden, anti-gay propaganda may not surface as blatantly these days as it did in 1992, it still undergirds the opposition to equal rights for LGBT Americans, Nussbaum writes. National figures are no longer sermonizing about “fecal sex” (at least not in public), but the imagery of contagion, perversity and moral pollution plays a key role in standard anti-equality arguments.
We’re all born with a gag reflex. Humans have a natural aversion to fetid, squirmy things such as excrement, worms, maggots and festering wounds. Disgust propagandists like Cameron associate a group of people with this bodily reaction, driving others to distance themselves from that group–to wall it off, to quarantine it.

Jews were once painted as contagious, homeless wanderers who must be separated from the rest of European society. “Untouchables” in India were portrayed as filthy and unfit to marry into other castes. Nowadays, undocumented immigrants in Arizona are depicted as leprosy-laden, food-tainting drug traffickers, and are sprayed with Lysol by xenophobic protesters. The politics of disgust turns people into contaminants.

In order to combat the likes of Cameron and the armies of “eewwwww,” Nussbaum proposes a “politics of humanity” that replaces projective disgust with sympathy. The basic idea isn’t radical; in fact, the same moralizers who profess a politics of disgust in the courtroom probably profess the art of love-your-neighbor-as-yourself around the kitchen table. However, Nussbaum’s formulation goes beyond neighborliness – after all, we often choose our neighbors. She envisions a framework in which we move beyond stigmatization by way of “historically and socially informed imagining,” working to sympathize with the estranged group’s humanity.

Both Nussbaum and the Constitution advise us to go forth and pursue happiness – and to let others do the same. We can only hope that the courts, the state legislatures, the White House and the American people will come to agree.

[Dale · Rating 4 out of 5]

While a little dry at times this is a really good look at the disgust that underpins attempts to deny equal rights to gay people. Highly recommended reading.

[Emilio PÆsano · Rating 5 out of 5]

an important, powerful work... the framework is accessible, her critique is exacting, and her responses are prescient... essential reading

[Stephen · Rating 4 out of 5]

Excellent

[Laura · Rating 2 out of 5]

2.5
Interesting argument and background; however, I was not sold on the liberal approach to dismantling homophobia.