Nussbaum - From disgust to humanity: sexual orientation and constitutional law

FROM DISGUST TO HUMANITY

INALIENABLE RIGHTS SERIES

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OTHER BOOKS IN THE SERIES

Not a Suicide Pact
The Constitution in a Time of National Emergency
Richard A. Posner

Supreme Neglect
How to Revive Constitutional Protection for Private Property
Richard A. Epstein

Out of Range
Why the Constitution Cant End the Battle over Guns
Mark V. Tushnet

Unfinished Business
Racial Equality in American History
Michael J. Klarman

Is There a Right to Remain Silent?
Coercive Interrogation and the Fifth Amendment After 9/11
Alan M. Dershowitz

The Invisible Constitution
Laurence H. Tribe

Uninhibited, Robust, and Wide-Open
A Free Press for a New Century
Lee C. Bollinger

SEXUAL ORIENTATION AND

CONSTITUTIONAL LAW

Martha C. Nussbaum

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Library of Congress Cataloging-in-Publication Data
Nussbaum, Martha Craven, 1947
From disgust to humanity : sexual orientation and constitutional law /
Martha Nussbaum.
p. cm.(Inalienable rights series)
Includes bibliographical references and index.
ISBN 978-0-19-530531-9
1. GaysLegal status, laws, etc.United States. 2. HomosexualityLaw
and legislationUnited States. 3. Sex discriminationLaw and legislationUnited States. 4. SodomyUnited States. I. Title.
KF4754.5.N87 2009
342.73087dc22 2009042461

1 3 5 7 9 8 6 4 2

Printed in the United States of America
on acid-free paper

For Herbert Foster

Whoever degrades another degrades me,
And whatever is done or said returns at last to me...
I speak the pass-word primeval, I give the sign of democracy,
By God! I will accept nothing which all cannot have their
counterpart of on the same terms....

For the great Idea, the idea of perfect and free individuals,
For that, the bard walks in advance, leader of leaders,
The attitude of him cheers up slaves and horrifies foreign despots...

Without extinction is Liberty, without retrograde is Equality,
They live in the feelings of... men and... women.

WALT WHITMAN,

FROM SONG OF MYSELF AND BEYOND BLUE ONTARIOS SHORES

CHAPTER ONE
The Politics of Disgust: Practice, Theory, History

CHAPTER TWO
The Politics of Humanity: Religion, Race, Gender, Disability

CHAPTER THREE
Sodomy Laws: Disgust and Intrusion

CHAPTER FOUR
Discrimination and Antidiscrimination: Romer and Animus

CHAPTER FIVE
A Right to Marry?

CHAPTER SIX
Protecting Intimacy: Sex Clubs, Public Sex, Risky Choices

I AM EXTREMELY grateful to Geoffrey Stone for inviting me to write this book, for his encouragement as I formulated my proposal, and for his detailed comments on draft chapters. Among the many people who have given me helpful suggestions in the early stages of the books development are Mary Anne Case, Elizabeth Emens, David Halperin, Andrew Koppelman, James Madigan, Cass Sunstein, and Kenji Yoshino. For helpful comments on earlier drafts, I am grateful to Mary Anne Case, Daniel Groll, Bernard Harcourt, Todd Henderson, Brian Leiter, James Madigan, Richard McAdams, Ariel Porat, Richard Posner, James Staihar, Lior Strahi-levitz, Cass Sunstein, Madhavi Sunder, Helga Varden, David Weisbach. Im especially grateful to Rosalind Dixon, David Halperin, Andrew Koppelman, Saul Levmore, and Jonathan Masur for reading or rereading the manuscript at a penultimate stage and giving me extensive written comments. But really, because I have written about this issue over a number of years, my debts are far more numerous. In particular I want to single out David Halperin, Richard Posner, the late Peter Cicchino, and the late John J. Winkler, all of whom formed my ideas on this topic in fundamental ways, both through their writings and through their generous conversation.

WHEN I WAS in the eighth grade I realized what all the male fantasies that I had were about and that they were sticking and that I had to deal with them. I was terrified. Thats what one gay man told social psychologist Ritch Savin-Williams, whose pathbreaking study of gay male adolescence contains dozens of similar stories.

This book, although concerned with abstract issues of constitutional law, is essentially about the divide that teen saw before him: between people who can sort of experience what a gay teenager feels and people who simply think of those desires, and, no doubt, the teenagers themselves, as being disgusting. For a long time, our society, like many others, has confronted same-sex orientations and acts with a politics of disgust, as many people react to the uncomfortable presence of gays and lesbians with a deep aversion akin to that inspired by bodily wastes, slimy insects, and spoiled foodand then cite that very reaction to justify a range of legal restrictions, from sodomy laws to bans on same-sex marriage. Partisans of the politics of disgust can barely stand to think about what that gay teenager did with his friends; they say, that stuff makes me want to throw up, and turn away from the reality of gay life as from a loathsome contaminant to the body politic. Even to look closely at what that gay teen does is to be defiled. To be looked at by a gay man is probably worse, for it means being penetrated by the defiler. Although this political approach has lost ground in recent years, it continues to influence the ways in which many people think.