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Martha C. Nussbaum - From Disgust to Humanity: Sexual Orientation and Constitutional Law

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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 equality: 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 Bushs Presidents 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 Nussbaums powerful arguments will undoubtedly advance that cause.
Incisive, rigorous, and deeply humane, From Disgust to Humanity is a stunning contribution to Oxfords distinguished Inalienable Rights series.

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FROM DISGUST TO HUMANITY

INALIENABLE From Disgust to Humanity Sexual Orientation and Constitutional Law - image 1RIGHTS SERIES

SERIES EDITOR

Geoffrey R. Stone

Lee C. Bollinger
PRESIDENT
COLUMBIA UNIVERSITY

Alan M. Dershowitz
FELIX FRANKFURTER PROFESSOR OF LAW
HARVARD LAW SCHOOL

Richard A. Epstein
JAMES PARKER HALL
DISTINGUISHED SERVICE PROFESSOR
UNIVERSITY OF CHICAGO LAW SCHOOL

Pamela S. Karlan
KENNETH AND HARLE MONTGOMERY
PROFESSOR OF PUBLIC INTEREST LAW
STANFORD LAW SCHOOL

Alexander Keyssar
MATTHEW W. STIRLING, JR.,
PROFESSOR OF HISTORY AND SOCIAL POLICY
JFK SCHOOL OF GOVERNMENT, HARVARD
UNIVERSITY

Michael J. Klarman
JAMES MONROE DISTINGUISHED PROFESSOR
OF LAW AND HISTORY
UNIVERSITY OF VIRGINIA

Larry D. Kramer
RICHARD E. LANG PROFESSOR OF LAW
AND DEAN
STANFORD LAW SCHOOL

Lawrence Lessig
C. WENDELL AND EDITH M. CARLSMITH
PROFESSOR OF LAW
STANFORD LAW SCHOOL

Michael W. McConnell
JUDGE U.S. COURT OF APPEALS FOR
THE TENTH CIRCUIT

Martha C. Nussbaum
ERNST FREUND DISTINGUISHED SERVICE
PROFESSOR, PHILOSOPHY, LAW, DIVINITY,
SOUTH ASIAN STUDIES
THE UNIVERSITY OF CHICAGO

Richard A. Posner
JUDGE U.S. COURT OF APPEALS FOR THE
SEVENTH CIRCUIT

Jack N. Rakove
WILLIAM ROBERTSON COE PROFESSOR OF
HISTORY AND AMERICAN STUDIES
STANFORD UNIVERSITY

Geoffrey R. Stone
HARRY KLAVEN, JR., DISTINGUISHED SERVICE
PROFESSOR
UNIVERSITY OF CHICAGO LAW SCHOOL

Kathleen M. Sullivan
STANLEY MORRISON PROFESSOR OF LAW
AND FORMER DEAN
STANFORD LAW SCHOOL

Laurence H. Tribe
CARL M. LOEB UNIVERSITY
PROFESSOR OF LAW
HARVARD LAW SCHOOL

Mark V. Tushnet
WILLIAM NELSON CROMWELL
PROFESSOR OF LAW
HARVARD LAW SCHOOL

GEOFFREY STONE AND OXFORD UNIVERSITY PRESS GRATEFULLY ACKNOWLEDGE THE INTEREST AND SUPPORT OF THE FOLLOWING ORGANIZATIONS IN THE INALIENABLE RIGHTS SERIES: THE ALA; THE CHICAGO HUMANITIES FESTIVAL; THE AMERICAN BAR ASSOCIATION; THE NATIONAL CONSTITUTION CENTER; THE NATIONAL ARCHIVES.

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

From Disgust to Humanity

SEXUAL ORIENTATION AND

CONSTITUTIONAL LAW

Martha C. Nussbaum

From Disgust to Humanity Sexual Orientation and Constitutional Law - image 2

From Disgust to Humanity Sexual Orientation and Constitutional Law - image 3

Oxford University Press, Inc., publishes works that further Oxford Universitys objective of excellence in research, scholarship, and education.

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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

Contents

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

Acknowledgments

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.

Preface: From Disgust to Humanity

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.

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